Habeas Corpus - Texas Independent Bar Association

Ex parte LaHood 

Volume 21, No. 26 - July 1st 

Landers v. State 

Volume 21, No. 27 - July 8th 

Ex parte Skeleton 


Ex parte Roberts 

Volume 21, No. 29 - July 22nd 

Haggerty v. State 

Volume 21, No. 29 - July 22nd 

State v. Coker 


Rodriguez v. State 

Volume 21, No. 31 - August 5th 

Ex parte Medrano 

(Unpublished) 


Thompson v. State 


CLICK the CASE NAME 

Odelugo v. State 


In re Ligon 


Acosta v. State 


Lundgren v. State 

Volume 21, No. 35 - September 2nd 

To Read the Full Summary 

Court of Criminal Appeals 

No. AP-76,873 & AP-76,874 

Post-Conviction Habeas Corpus 


No. PD-1637-12 

Tampering with a Witness 

San Antonio Court of Appeals 

No. 04-12-0066-CR 


San Antonio Court of Appeals 

No. 04-12-0642-CR 


Houston [14th] Court of Appeals 

No. 14-12-0461-CR & 14-12-0462-CR 

Possession of Controlled Substance 

Dallas Court of Appeals 

No. 05-12-0616-CR 

Possession of Controlled Substance 

Austin Court of Appeals 

No. 03-10-0715-CR 

Felony Murder 


No. WR-78,123-01 


Austin Court of Appeals 

No. 03-12-0569-CR 

Possession of Prohibited Weapon 

Houston [1st] Court of Appeals 

No. 01-12-0521-CR 

Engaging in Organized Criminal Activity 

Beaumont Court of Appeals 

No. 09-13-0242-CR 

Mandamus 

Houston [1st] Court of Appeals 

No. 01-12-0151-CR 

Delivery of a Counterfeit Instrument 

Beaumont Court of Appeals 

No. 09-13-0242-CR 

Mandamus

eMail: gsreports@texindbar.org 

Published By 

Texas Independent Bar Association 

Austin, Texas 78767 

Web Page: www.texindbar.org 

Copyright © 2013 Texas Independent Bar Association and the following Commentators 

Alan Curry 

Helena Faulkner 

Jeffrey S. Garon 

Lee Haidusek 

John G. Jasuta 

Charles Mallin 

Gail Kikawa McConnell 

Angela J. Moore 

Editor-in-Chief: John G. Jasuta 

Doug O’Brien 

Greg Sherwood 

David A. Schulman 

Kevin P. Yeary 

Clicking a hyperlink (such as a judge’s name) will load the linked opinion 

or document in your web browser. 

It is TIBA’s policy that commentators do not summarize or comment on 

cases in which they were involved. 

Summer Update - September 12, 2013

Volume 21, No. 26 - July 1st 

TIBA’s Case of the Week 

Case Name: Ex parte Michael George Lahood 

RETURN TO TABLE OF CONTENTS 

! OFFENSE: Post-Conviction Habeas Corpus (Agg. Kidnapping & Agg. Sexual Assault) 

! COUNTY: Harris 

! CCA. CASE No. AP-76,873 & AP-76,874 DATE OF OPINION: June 26, 2013 

! DISPOSITION: Relief Denied 

! OPINION: Hervey, J. VOTE: 7-2-0 

! TRIAL COURT: 185th D/C; Hon. Susan Brown 

! LAWYERS: Anthony Smith (Defense); Alycia Harvey (State) 

G&S 124 Right to Counsel / Ineffective Assistance: Applicant’s convictions were affirmed in 2005. LaHood 

v. State, 171 S.W.3d 613 (Tex.App. - Houston [14th] 2005)(see G&S, Vol. 13, No. 32; 08/22/2005), and the 

CCA refused his PDR. In these habeas corpus applications, he claims that he received ineffective 

assistance of counsel because his trial counsel failed to investigate his mental-health history, and if she 

had, there was a reasonable probability that the outcome of his proceeding would have been different. 

Holding: (Strickland I - Deficient Performance) Applicant argues that his trial counsel observed evidence 

of his lack of mental health before trial, at his trial, and during the sentencing phase. He contends that 

his trial counsel’s failure to follow up on the various indicia of his alleged incompetency fell below 

prevailing professional standards and, as a result, her performance was constitutionally deficient. We 

agree. *** Applicant’s medical records from the jail were easily accessible and contained significant 

information (including evidence of a suicide attempt during the trial) that could have allowed his 

attorney to assert that he was incompetent. After reviewing the quantum of evidence known to counsel 

before and during trial, and whether the known evidence would lead a reasonable attorney to investigate 

further, we conclude that trial counsel’s failure to further investigate was unreasonable under the 

circumstances. 

Holding: (Strickland II - Prejudice) Even if Applicant failed to receive some of his medication, there is 

nothing in the record that leads us to believe Applicant lost the ability to understand the proceedings or 

rationally confer with his counsel. To the contrary, the only time at which Applicant possibly appeared 

legally incompetent, the trial was stopped and the medication problem was corrected. Moreover, the 

record supports many of the habeas court’s findings that Applicant’s behavior was that of a competent 

person. For example, the habeas court concluded that Applicant’s direct examination showed 

considerable clarity of thought, his outbursts regarding medication and lack of comprehension began only 

on cross examination, and the only opportunity for the victim’s testimony to be rebutted was by 

Applicant. He testified that the victim drove the car to Houston (directly contradicting her assertion that 

she had been kidnapped), that they stopped in multiple populated areas where the victim could have 

alerted someone if she was in trouble, and that the victim packed for the trip (directly contradicting her 

assertion that the fact she had a hairbrush, clothes, and a toothbrush was merely coincidental). Applicant 

has not met his burden of proof to show a reasonable probability that he would have been found 

incompetent if there had been an incompetency trial. As a result, Applicant’s ineffective-assistance-of 

counsel claim must fail. 

Concurring / Dissenting Opinions: Presiding Judge Keller filed a concurring opinion. She said she cannot 

agree with the majority’s holding that, “even though counsel was correct in her assessment that 

Applicant was competent to stand trial,” her performance was deficient because she failed to investigate 

his mental health situation. Judge Meyers concurred without note. 

Sidebars: (David A. Schulman) I have to agree with the majority and disagree with Judge Keller. 

More than twenty years ago, in Bouchillon v. Collins, 907 F.2d 589 (5th Cir. 1990), the Fifth Circuit 

TIBA’s Texas Law Reporter - Summer Update - September 12, 2013 - Page 1

held that a lawyer is not competent, by himself or herself, to determine whether a client is competent. 

Thus, the failure to “investigate” the client’s mental health situation, when there are outward 

manifestations of mental heath problems, is always deficient. That it turns out that the investigation 

would have revealed that the client is / was competent doesn’t change the fact that, under Strickland ‘s 

two prong test, the lawyer’s performance was deficient. 

Volume 21, No. 26; - July 8th 



Case Name: Tristan Landers (aka McNiel) v. The State of Texas 


! OFFENSE: Tampering with a Witness 

! COUNTY: McLennan 

! COURT OF APPEALS: Waco 2012 

! C/A CITATION: Unpublished (10-11-0408-CR) 

! C/A RESULT: Conviction Affirmed 

! CCA. CASE No. PD-1637-12 DATE OF OPINION: July 3, 2013 

! DISPOSITION: Court of Appeals Reversed - Case Remanded 

! OPINION: Womack, J. VOTE: 8-1-0 

! TRIAL COURT: 54th D/C; Hon. Matt Johnson 

! LAWYERS: Stan Schwieger (Defense); Alan Bennett (State) 

Ed Note: (Background Facts) Appellant was indicted for tampering with a witness. The elected district 

attorney recused himself and his office from her case because he had previously represented Appellant 

“adversely to the State of Texas.” An attorney pro tem was appointed to prosecute Appellant, who was 

convicted and sentenced to confinement for two years and a $10,000 fine. At sentencing, the trial judge 

made no mention of imposing court costs. The written judgment (which was otherwise typed), however, 

included $4,562.50 in costs that were handwritten. The record does not indicate whether the 

handwriting was added before or after Appellant signed the judgment. There was no itemization or 

explanation of the costs. The Clerk’s Record includes a “Bill of Costs” which was issued six days after 

judgment was imposed. This bill itemized the court costs and included fees of $3,718.50 for the attorney 

pro tem and $440.00 for investigative costs of the prosecutor. This document was not provided to 

Appellant or her counsel. When Appellant complained on appeal about the imposition of these fees, the 

Court of Appeals held she had not preserved the issue for appeal because she had not made a “timely 

request, objection, or motion” in the trial court. The Court of Criminal Appeals granted review to 

determine if an objection was required to preserve error concerning the imposition of the costs of the 

special prosecutor’s fees. 

G&S 514.01 Appellate Procedure / Perfecting Appeal / Waiver of Issues (Motion for New Trial 

Requirement): The State makes two arguments, the first of which is that Appellant should have raised 

the issue in a motion for new trial. No motion for new trial was filed. 

Holding: Even if [Appellant] could have raised the issue in such a motion (an issue we need not decide 

today), she was not required to. A motion for new trial is required to preserve error only when it is 

necessary to adduce facts not in the record. In this case, [Appellant]’s complaint was one of law and not 

facts. Consequently, she was not required to file such a motion in order to preserve this complaint. *** 

Further, we decline to create such a requirement. In this case, the Bill of Costs was filed six days after 

[Appellant]’s sentence was imposed in open court. This left [Appellant] with 24 days to retrieve the 

document from the clerk’s office (though there was no notice it had been created) and submit an objection, 

motion, or other request for relief. Arguably, in this case, the appellant had enough time to submit such 


a motion. However, we decline to adopt a rule that would allow a judge to de facto alter the statutory 

time frame for motions for new trial. 

Concurring / Dissenting Opinions: Presiding Judge Keller filed a concurring opinion, expressing “my 

disagreement with the idea that Appellant could properly have raised the issue in a motion for new trial.” 

She argued that, “a ‘new trial’ occurs only when the trial court has ‘set aside a finding or verdict of guilt.’ 

A ‘new trial on punishment’ occurs only when the trial court has ‘set aside an assessment of punishment 

without setting aside a finding or verdict of guilt.’ A meritorious claim regarding the bill of costs would 

entitle a defendant to neither of these remedies.” 

Sidebars: (David A. Schulman) Rule 21, Tex.R.App.Pro. (“New Trials in Criminal Cases”) provides 

different circumstances for the award of a completely new trial, or simply a new trial on punishment. 

The latter might be appropriate in this case, as the cost at issue are part of the punishment. Because 

of Judge Keller’s concurrence, the first question the Court should have asked is whether a complaint 

about specific costs which have been imposed constitutes an attempt to “set aside an assessment of 

punishment.” If (and only if) it is, then the Court would have to answer the question of whether it was 

necessary to litigate the issue in a motion for new trial. If it is not, then Judge Keller is correct, and a 

challenge to the imposition of costs isn’t even cognizable in a motion for new trial. Presuming the answer 

is that a complaint about specific costs which have been imposed does constitute an attempt to “set aside 

an assessment of punishment,” then the majority’s statement that Appellant’s “complaint was one of law 

and not facts” is correct, as Appellant’s ultimate complaint is not about the amount which was charged 

for the attorney pro tem, but, rather, that she cannot be required to pay those as costs of court. 

Ultimately, that is the question the Court will eventually have to answer. 

G&S 514.01 Appellate Procedure / Perfecting Appeal / Waiver of Issues (Failure to Complain at Trial): 

The State and the Court of Appeals relied on Mendez v. State, 138 S.W.3d 334 (Tex.Cr.App. 2004)(see 

G&S, Vol. 12, No. 26; 07/05/2004) for the proposition that Appellant waived error. 

Holding: The State and the Court of Appeals argue that since this error does not fit in either of those 

categories, a timely objection in the trial court was required. However, Mendez is distinguishable because 

it took place within the context of an active trial, during which an appellant would be given an 

opportunity to object. It is not on point and does not control in this instance. *** We hold that 

[Appellant] may not be faulted for failing to object when she was not given the opportunity. Since the 

fees were not imposed in open court and she was not required to file a motion for new trial, she has not 

forfeited the complaint on appeal. 



Fourth Court of Appeals (San Antonio) 

Case Name: Ex parte Patricia Foster Skelton 


! OFFENSE: Post-Conviction Habeas Copus (Article 11.072) 

! COUNTY: Real 

! C/A CASE No. 04-12-0066-CR 

! DATE OF OPINION: July 10, 2013 

! DISPOSITION: Trial Court Affirmed OPINION: Chapa, J. 

! TRIAL COURT: 38th D/C: Hon. Camile Dubose 

! LAWYERS: Nancy Barohn (Defense); Danny Kindred (State) 

Ed Note: (Background Facts) Applicant/Appellant, an attorney, was convicted of forging the will of a 

deceased client, Ysidro Canales. To obtain a conviction under Penal Code section 32.21(b), the State had 

to prove Appellant forged a writing with intent to defraud or harm another. The State specifically 


alleged Appellant committed forgery by altering a writing so it purported to be an actual act of Canales, 

and argued that Appellant committed forgery because she filed an unsigned copy of the will intending 

to defraud the court or potential heirs. At trial, the State and Appellant both presented evidence that 

Appellant had literally cut and pasted the signatures of Canales and two witnesses onto a document, 

which Appellant claimed was a computer copy of a will executed by Canales. She then photocopied the 

altered document and filed that copy with the probate court without informing the court that neither 

Canales nor the witnesses ever signed that particular document. Appellant was ultimately convicted of 

forgery and sentenced to community supervision. He conviction was affirmed in an unpublished opinion. 

Skelton v. State, No. 04-08-0720-CR (Tex.App. - San Antonio; June 9, 2010). The Court of Criminal 

Appeals refused her petition for discretionary review. Appellant then applied for a writ of habeas corpus 

under Article 11.072, C.Cr.P. The habeas court denied relief without a hearing, but the Court of Appeals 

abated the appeal and remanded her case to the habeas court to conduct an evidentiary hearing on the 

ineffective-assistance-of-counsel claim. The habeas court once again denied relief. 

G&S 563.01 Post-Conviction Habeas Corpus / Sufficiency of Claims for Relief / Actual Innocence: 

Appellant’s claim of actual innocence relies on the conflicting verdicts between the criminal and civil 

trials related to the fabricated will. The criminal jury convicted Appellant of forgery. The civil jury found 

(1) that Canales executed a valid will, (2) that Appellant did not forge the will she filed with the probate 

court, and (3) that the probated will was an accurate copy of Canales’s will. Appellant points to the 

conflicting civil verdict as “new evidence” of her innocence and argues “it is more likely than not that no 

reasonable juror would have convicted her in the light of the later determination of the will’s 

genuineness.” 

Holding: In both her habeas application and her brief, [Appellant] briefs only a Schlup v. Delo, 513 U.S. 

298 (1995)-type claim of actual innocence. Such a claim is not a freestanding ground for relief but is 

intertwined with allegations of other constitutional error at trial, e.g., violations of Brady v. Maryland, 

373 U.S. 83 (1963) or ineffective assistance of counsel. Ex parte Reed, 271 S.W.3d 698 (Tex.Cr.App. 

2008)(see G&S, Vol. 16, No. 50; 12/22/2008). Because we have found no constitutional error at [Appellant]’s 

trial, we need not decide whether the conflicting civil verdict is new evidence of actual innocence. We hold 

[Appellant] is not entitled to habeas relief on this ground. 

G&S 330 Prosecutorial Misconduct: Appellant alleges her trial was rife with instances of prosecutorial 

misconduct, all of which combined denied her right to due process. 

Holding: Every allegation of misconduct contained in [Appellant] application rests on facts that were 

known to [Appellant] at the time of her direct appeal -- yet she failed to raise her 

prosecutorial-misconduct claim in that forum. She cannot resuscitate it now through a writ of habeas 

corpus. Ex parte Nelson, 137 S.W.3d 666 (Tex.Cr.App. 2004)(see G&S, Vol. 12, No. 25; 06/25/2004). 

G&S 124 Right to Counsel / Ineffective Assistance of Counsel: Appellant alleges she received ineffective 

assistance of counsel at five different points at her trial. She claims her attorney acted deficiently when: 

the State enlarged its theory of the case at trial beyond the indictment without objection; both the 

State (without objection) and her own attorney repeatedly elicited testimony about her pre-arrest, 

pre-Miranda silence; the State wrongly presented Texas Ranger Coy Smith as an expert on the law 

of forgery and Ranger Smith testified Appellant was guilty of forgery without objection; the State used 

hearsay to wrongly bolster a different witness’s credibility without objection; and the State made 

improper jury arguments by enlarging its theory of the case beyond the indictment and struck at 

Appellant over the shoulders of her attorney without objection. After the Court of Appeals remanded for 

an evidentiary hearing, the habeas court made findings of fact and conclusions of law. The court found 

Appellant’s attorney had been practicing law for over thirty years, he was a former District Attorney of 

Jasper County, and he was a witness of the highest degree of credibility and truthfulness. The court 

further found her attorney “explained valid and compelling strategic reasons for all of the acts and 

omissions that form the basis for the applicant’s post-probation writ of habeas corpus” and that “those 


ationales are valid and within the range of acceptable strategic decisions required of trial counsel.” 

Finally, the court concluded even if any of her attorney’s acts or omissions could be considered deficient, 

Appellant had not demonstrated prejudice. 

Holding: (Enlarging the Indictment) [Appellant] first contends her counsel was ineffective because he 

allowed the State to enlarge its theory of the case beyond the indictment’s charge of forgery by alteration 

to include forgery by passing. [Appellant] previously raised in her direct appeal the claim that the State’s 

actions with respect to “enlarging the indictment” were reversible error. *** We found no error. *** 

[Appellant] may not use the writ of habeas corpus to re-litigate an issue that was decided adversely to 

her on direct appeal. *** Moreover, her counsel could not have been ineffective for not objecting to the 

State’s actions which we previously held were not error. 

Holding: (Pre-Arrest, Pre-Miranda Silence) The United States Supreme Court recently considered 

whether or not the Fifth Amendment’s protection against compelled self-incrimination bars the 

admission of evidence about a defendant’s pre-arrest, pre-Miranda silence as substantive evidence of 

guilt. Salinas v. Texas, 570 U.S. ___, 2013 (see G&S, Vol. 21, No. 25; 06/24/2013). *** The historical 

uncertainty and split of federal and state authority over this issue are fatal to this part of [Appellant]’s 

claim. *** Because the state of the law at the time of [Appellant]’s trial was unsettled, [Appellant] cannot 

claim that her attorney’s failure to object to such evidence fell below the standard of reasonable 

professional assistance. 

Holding: (Hearsay & Witness Bolstering) Part of the State’s theory that Canales did not execute a will 

was supported by the testimony of Canales’s sister, Irene Canales, who was part of the lawsuit contesting 

the validity of the probated will. She testified that on the Friday afternoon of the will’s alleged execution, 

Canales was en route to her home in Buda, Texas, so they could travel to Louisiana to gamble that 

weekend. She testified she spoke to Ranger Smith about casino records that confirmed her belief that on 

this particular weekend she and Canales gambled in Shreveport; he therefore could not have executed 

a will on the alleged date because he would have been en route to her home at that time. *** Irene’s 

testimony was inadmissible hearsay by implication. *** At the habeas hearing, [Appellant]’s attorney 

agreed the records probably were not admissible, but testified that Irene had such poor credibility it did 

not matter what she said. His opinion about her credibility was based on her status as a plaintiff in the 

will contest, which was a topic of his cross-examination. *** Because [Appellant]’s attorney had cast 

doubt upon Irene’s credibility and we consider it a reasonable trial strategy to not object to the testimony 

of a credibility-compromised witness, we will defer to the habeas court’s finding that the attorney’s 

performance was not deficient in this respect. 

Holding: (Improper Jury Argument) [Appellant] complains her attorney failed to object to improper jury 

arguments made by the prosecution *** [when] *** the prosecutor struck at her over the shoulders of her 

attorney by arguing [Appellant] was guilty in part by “hiring a criminal defense attorney to run around 

criticizing and complaining about the way everybody is doing their job.” *** In this case, the prosecutor 

made only a passing reference to the actions of [Appellant]’s attorney. [Appellant]’s attorney testified at 

the hearing that he thought the State was overreaching and the jury would see through the improper 

argument. [Appellant]’s attorney reasonably decided not to object to the slight attack on his character 

at closing arguments. Therefore, we will not disturb the habeas court’s finding that his performance was 

not deficient in this respect. 

Holding: (Texas Ranger’s “Expert” Testimony and Opinion as to Guilt) (Strickland I - Deficient 

Conduct) [Appellant]’s attorney agreed at the habeas hearing that he did not object to Ranger Smith’s 

testimony and that a law enforcement officer is not entitled to give an opinion as to whether a defendant 

is guilty. *** He testified different lawyers handle such a question in different ways; he chose to 

undermine Ranger Smith’s testimony by showing that he did not look at certain evidence that truly 

reflected whether the will was in accord with the intent of the testator. On cross-examination, the State’s 

habeas counsel suggested the actual focus of the prosecutor’s final question was whether or not the 

Ranger thought a forged will had been filed. [Appellant]’s attorney agreed and said he did not interpret 


the prosecutor’s question as asking the Ranger’s opinion of [Appellant]’s guilt. *** We cannot agree with 

that view nor accept it as a reasonable interpretation of the question. *** By not objecting to Ranger 

Smith’s “expert” and clearly inadmissible opinion of [Appellant]’s guilt, [Appellant]’s attorney performed 

below an objective standard of reasonable representation. (Strickland II - Prejudice) In Weathersby v. 

State, 627 S.W.2d 729 (Tex.Cr.App. 1982), the Court of Criminal Appeals overturned the conviction for 

ineffective assistance because two detectives had without objection given their opinions of the defendant’s 

guilt, which were repeated in closing arguments; the conviction of a codefendant was introduced into 

evidence without objection and repeated in closing arguments, and the defendant was asked on 

cross-examination about the criminal character of his friends without objection. *** The multiple and 

egregious errors, both of commission and omission, made by the counsel in Weathersby stand in stark 

contrast to the single damaging, but isolated, error in [Appellant]’s case. In this case, Ranger Smith’s 

objectionable “expert” opinion was given in the middle of the first of two days of trial testimony and was 

a relatively small part of his testimony. The prosecution never emphasized or revisited the inadmissible 

part of his testimony, either during the rest of its case or in closing arguments. *** In light of the isolated 

nature of the attorney’s error and the State’s lack of reliance on the inadmissible evidence, we cannot say 

that [Appellant] proved by a preponderance of the evidence that the outcome would have been different 

without her attorney’s error. 

Sidebars: (David A. Schulman) Skelton was suspended from the practice of law during the term of her 

criminal conviction, but the SBOT website shows Ms. Skelton as once again being eligible to practice law. 

Amazin’ - to quote one of my favorite sports figures, the “Old Professor,” Casey Stengel. Who says Texas 

doesn’t believe in rehabilitation and second chances? 

Volume 21, Number 29 - July 22nd 


Case Name: Ex parte Mary Roberts 


! OFFENSE: Post-Conviction Habeas Corpus (Article 11.072, C.Cr.P.) 

! COUNTY: Bexar 

! C/A CASE No. 04-12-0642-CR 


! DISPOSITION: Trial Court Reversed OPINION: Chapa, J. 

! TRIAL COURT: 226th D/C; Hon. Sid Harle 

! LAWYERS: Appellant Pro Se (Defense); Enrico Valdez (State) 

Ed Note: (Background Facts) Appellant and her husband engaged in an extortion scheme in which 

Appellant would engage in extramarital affairs, and her husband would subsequently threaten her 

partners with court action unless they paid him not to pursue any legal claims. Some of the extortion 

payments were delivered as checks made out to a children’s charity set up and controlled by Appellant 

and her husband. She was convicted of five counts of theft by coercion and deception, and her conviction 

was affirmed. Roberts v. State, 319 S.W.3d 37 (Tex.App. - San Antonio 2010)(see G&S, Vol. 18, No. 12; 

04/01/2010). 

Ed Note: (Procedural History) When the trial court modified the terms of her probation, Appellant sought 

to prosecute a separate appeal of that decisions. The Court of Appeals dismissed that appeals for want 

of jurisdiction. Appellant then filed an application for a writ of habeas corpus (Article 11.072, C.Cr.P.) 

in the court that sentenced her, and the habeas court denied relief. 

G&S 426 Judgments & Sentences / Reformation or Modification of Judgment (Modifying Terms of 

Probation to Include Restitution): The trial court sentenced Appellant to ten years’ imprisonment for 

each count of theft to run concurrently. The judgments of conviction reflect that “$0.00” in restitution was 

assessed or ordered on each count of theft. The court probated each sentence for ten years and required 


Appellant to perform 400 hours of community service as a term of her community supervision. Appellant 

and the State agree that the court did not order restitution and it stated “there are no victims in this case 

other than the respective families of the paramours and yourself.” The order containing the terms of her 

community supervision did not set any restitution. After the conviction had been affirmed, the modified 

the terms of Appellant’s community supervision. The court ordered that Appellant be given the same 

terms of community supervision as her husband -- which apparently included restitution. When 

Appellant objected and argued the court had already declined to order any restitution in her case, the 

trial court replied “[n]o restitution to the paramours. Restitution to the charitable corporation.” Appellant 

again objected and the court told her to “appeal it.” At a subsequent hearing, the trial court explained 

that Appellant was ordered to pay $70,000 to a charitable corporation. The court acknowledged that it 

initially “assessed no restitution in regard to the paramours/alleged complainants.” But because the 

couple extorted funds in the amount of $70,000 under the guise of charitable donations, the trial court 

ordered Appellant to jointly and severally with her husband make an equal payment to a charitable 

corporation approved by the probation department. 

Holding: [Appellant] contends the trial court was without authority to order her to pay $70,000 in 

restitution to any charity benefitting children because [Appellant] was not convicted of a crime against 

a particular charity or any charity at all. She also argues the court could not modify the terms of her 

community supervision to include restitution three years after the conditions were first imposed at the 

time of her sentencing. The State concedes the trial court could not modify [Appellant]’s terms of 

community supervision to include restitution for both the reasons advanced by [Appellant], but it argues 

the court could have validly modified the terms of [Appellant]’s community supervision to impose the 

$70,000 payment because it is related personally to [Appellant]’s rehabilitation, as opposed to being 

restitution. We hold the trial court lacked the authority to impose a monetary payment on [Appellant] 

as a term of her community supervision. 

Fourteenth Court of Appeals (Houston) 

Case Name: Jason Dwayne Haggerty v. The State of Texas 


! OFFENSE: Possession of Controlled Substance / Possession of Marihuana 


! C/A CASE No. 14-12-0461-CR & 14-12-0462-CR 


! DISPOSITION: Convictions Affirmed as Reformed OPINION: Frost, J. 

! TRIAL COURT: 185th D/C; 

! LAWYERS: Steven Lieberman (Defense); Alan Curry & Clint Morgan (State) 

Ed Note: (Background Facts) At trial, officers with a special-operations division of a local police 

department testified that, based on citizens' complaints of narcotics-related activities, they initiated an 

investigation of a specific residential address in Baytown, beginning in August 2011. During their 

surveillance of the home, the officers observed vehicular and foot traffic of known narcotics users at the 

location. The officers often saw Appellant or a truck registered to Appellant at the residence. They saw 

him use a key to enter the home on many occasions; they did not see anyone else use a key to enter the 

home. Officers noticed a pattern: whenever Appellant was at the home or his truck was parked outside 

the home, vehicular and foot traffic followed, individuals would go inside the house, stay for a short 

period of time, and leave. This activity did not occur when Appellant's truck was not parked at the home. 

On September 21, 2011, the officers received a phone call from a confidential informant, regarding 

activities inside the home. Two officers met with the informant, who told them he had been inside the 

house that day and that a person named "Gator" was selling marijuana and cocaine. The officers knew 

Appellant used the name "Gator" and showed the informant a photo of Appellant; the informant 

identified Appellant as the person selling the contraband inside the home. The officers returned and 

observed individuals leaving the home, including Appellant, who was carrying a black backpack. 

Appellant locked the door and left the premises in his truck. As he drove away, the officers saw him 

commit a traffic violation and informed a uniformed officer of the traffic offense. A uniformed officer in 


a marked patrol unit initiated a traffic stop of Appellant's vehicle. During the traffic stop, the officer 

arrested Appellant for the traffic violation and conducted an inventory search of the vehicle. The officer 

recovered from the vehicle a black backpack containing over $2,000 in small bills. When officers produced 

a search warrant, Appellant supplied the keys to the house. The search revealed “a large, plastic bag 

of marijuana from the oven, a plastic cup containing crack cocaine from a kitchen cabinet, a salt 

container in the trash containing plastic bags of crack and powder cocaine, and large plastic bags 

containing marijuana from a bedroom closet.” 

G&S 533 Sufficiency of the Evidence: Appellant challenges the sufficiency of the evidence to support his 

convictions for possession of a controlled substance and possession of marijuana. He challenges the 

evidence as being insufficient to show he knowingly exercised care, custody, and control over the 

contraband seized from the home. He also challenges the sufficiency of the evidence to show that he had 

exclusive possession of the home. 

Holding: The record reflects that over the course of two or three months, officers observed Appellant at 

the home almost every day. Each time Appellant arrived, he used a key to enter, and as he left the home, 

he used a key to lock the door. Officers did not see any other person use a key to enter the home, and no 

one entered the home when Appellant was not there. Officers could not recall seeing activity at the home 

when Appellant was not inside. *** An electric bill bearing the home’s address was found in Appellant’s 

backpack. Officers also discovered over $2,000 in small denominations inside Appellant’s backpack. 

Appellant gave officers a key to the home to enter and execute a search warrant. *** To the extent 

Appellant suggests that the contraband belonged to someone else, we note that control over contraband 

need not be exclusive, but can be jointly exercised by more than one person. *** But, Appellant does not 

point to any evidence of shared possession, and the record, likewise, reflects none. *** Viewing the 

evidence in the light most favorable to the verdict, a rational trier of fact could have determined beyond 

a reasonable doubt that Appellant knowingly exercised actual care, custody, control, or management of 

the home and the contraband recovered from it. 

G&S 31.015 Search & Seizure / Informants (Identity of Informant): Appellant asserts the trial court erred 

in denying his motion to disclose the identity of the confidential informant and in failing to conduct an 

in camera hearing as to the identity. 

Holding: As reflected in the affidavit, the officer knew Appellant by name and by sight from other prior 

narcotics investigations and knew Appellant used the alias “Gator.” The record reflects that the 

informant’s information was used to obtain probable cause for a search warrant, not to establish 

Appellant’s identity or his connection to the premises, as Appellant contends. *** There is no evidence 

that the confidential informant participated in the offenses for which Appellant was charged. *** Nor 

is there evidence that the informant participated in the execution of the search warrant. *** Under these 

circumstances, Appellant has not demonstrated that he met the threshold burden of showing that the 

informant’s testimony was necessary to a fair determination of guilt or innocence. *** The trial court did 

not err in denying Appellant’s motion.*** Therefore, an in camera hearing was not required to determine 

whether the informant’s identity would be admissible. 

G&S 31.024 Search & Seizure / Probable Cause (Misstatements in Affidavit?): Appellant asserts the trial 

court erred in failing to conduct an evidentiary hearing and in denying his related motion to suppress, 

in which he asserted that the probable-cause affidavit contained false statements. Appellant contends 

that he made the requisite showing of falsity to warrant an evidentiary hearing under Franks v. 

Delaware, 438 U.S. 154 (1978), and that the trial court should not have denied his related motion to 

suppress. 

Holding: To be entitled to a Franks hearing, a defendant must request one and make a substantial 

preliminary showing that an affidavit supporting a search warrant contains a false statement that was 

made knowingly, intentionally, or with reckless disregard for the truth. *** Because Appellant did not 


make the requisite showing, he was not entitled to a Franks hearing. *** Likewise, the trial court did 

not abuse its discretion in overruling Appellant’s related motion to suppress. 

G&S 327.02 Court’s Charge / Punishment Charges / Burden of Proof: Appellant did not object to the 

court’s charge. Nevertheless, he asserts that he suffered egregious harm because the trial court’s 

punishment charge did not instruct the jury that the State’s burden with regard to evidence of 

Appellant’s prior criminal record was proof beyond a reasonable doubt. According to Appellant, the jury 

charge should have reflected an instruction that the State was required to prove the additional criminal 

convictions beyond a reasonable doubt. 

Holding: In any final conviction, the evidence has been subjected to judicial testing of guilt with a 

beyond-a-reasonable-doubt standard of proof, and the burden of proof has been met. The trial court did 

not err in failing to instruct the jury that the State’s burden with regard to evidence of Appellant’s prior 

criminal record was proof beyond a reasonable doubt because all of the evidence as to Appellant’s 

criminal behavior was in the form of prior convictions, which had been subjected to judicial testing under 

the proper burden of proof, and that burden had been satisfied. Such an instruction would have been 

useless because no evidence of unadjudicated offenses was introduced. 

Ed Note: Based on its review of the record and the State’s agreement with Appellant’s argument, the 

judgment was reformed to show a conviction for simple possession of controlled substance in one of the 

judgments. 

Volume 21, Number 30 - July 29th 


Case Name: The State of Texas v. Jeffrey Brian Coker 


! OFFENSE: Possession of Methamphetamine in a Drug Free Zone / State’s Appeal 

! COUNTY: Dallas 

! C/A CASE No. 05-12-0616-CR 


! DISPOSITION: Trial Court Reversed OPINION: Bridges, J. 

! TRIAL COURT: 291st D/C; Hon. Susan Hawk 

! LAWYERS: Lori Ordiway (Defense); Michael Casillas (State) 

Ed Note: After getting a tip, from an informant whose name was not revealed in the search warrant 

affidavit, that Appellant was “was involved in the clandestine manufacturing of Methamphetamine at 

the dwelling,” Garland police detective M.R. Roberds conducted surveillance of Appellant’s residence and 

noticed several full trash bags next to “the large City of Garland trash receptacle adjacent to the 

residence.” The next morning he noticed that the trash receptacle had been placed at the curb for pickup. 

Two hours later, narcotics investigator M. Mendoza collected the trash receptacle and transported 

it to the police department for examination. The inspection of the trash revealed numerous materials 

used in the manufacture of methamphetamine. The officers also recovered an off-white powder 

substance and a piece of mail addressed to Appellant at the target residence. Subsequent testing of the 

off-white powder confirmed the presence of methamphetamine. 

G&S 32.014 Search & Seizure / Probable Cause (Informant’s Tip + Additional Investigation): Based on 

Roberds' affidavit, the trial court issued a search warrant for Appellee's residence. After he was indicted, 

Appellee filed motions to suppress on the grounds the search of his residence was conducted pursuant 

to a search warrant issued upon an affidavit that did not contain written sworn averments of fact 

sufficient to constitute probable cause. At the hearing on his motions to suppress, Appellee argued the 

search warrant affidavit was based on an anonymous citizen tip and a single examination of his trash. 

Defense counsel argued “there’s not a single Texas case where an anonymous tip plus a single search 


of the trash has ever established probable cause.” The trial court granted the motions to suppress. On 

appeal, the State argues the search warrant affidavit contained sufficient facts from which the 

magistrate was entitled to find probable cause. 

Holding: The magistrate was entitled to rely on the information provided by the private citizen. *** The 

letter addressed to [Appellee] provided a direct link between the drugs in [Appellee]’s trash and 

[Appellee]’s house. *** In addition to the methamphetamine recovered from [Appellee]’s trash, police 

recovered what amounted to a “methamphetamine lab in a bag,” a variety of items used in the 

manufacture of methamphetamine. *** We conclude that the trash search in this case was sufficient to 

establish probable cause to search [Appellee]’s house in light of the totality of the circumstances. This 

case is similar to those cases where a single trash search revealed the presence not only of residue of a 

controlled substance but was coupled with other circumstances. Further, in this case, officers conducted 

surveillance two days in a row at [Appellee]’s residence, establishing that the searched trash bags were 

present both days. We conclude the presence of the “methamphetamine lab in a bag” in this case, in light 

of the totality of the circumstances, provided the magistrate with a substantial basis to conclude 

methamphetamine was probably in [Appellee]’s residence at the time of the search. 

Volume 21, Number 31 - August 5th 


Case Name: Nilda Iliana Rodriguez v. The State of Texas 


! OFFENSE: Felony Murder 

! COUNTY: Bell 

! C/A CASE No. 03-10-0715-CR 


! DISPOSITION: Conviction Affirmed OPINION: Goodwin, J. 

! TRIAL COURT: 426th D/C; Hon. Martha Trudo 

! LAWYERS: Jim Kreimeyer (Defense); Bob Odom (State) 

Ed Note: (Background Facts) Appellant gave birth to her son on October 8, 2008, and already had other 

children. After her son was discharged from the hospital, Appellant was solely responsible for his care 

as well as her other children’s care, as her husband was overseas at the time. Her son died on December 

3, 2008, as a result of malnutrition, dehydration, and medical neglect. Appellant did not take her son 

to see a doctor from the day that he went home from the hospital until the day he died. On that day, EMS 

was called to Appellant’s home. Her son was taken to the hospital where he was pronounced dead. 

G&S 22 Charging Instruments / Requirements of Indictment or Information: In two paragraphs, the State 

charged Appellant with felony murder. The State alleged that Appellant committed and attempted to 

commit the felony offense of injury to a child and “in the course of and in furtherance of the commission 

and attempted commission of the said felony, Nilda Iliana Appellant, did attempt to commit and commit 

an act clearly dangerous to human life which caused the death of [her child].” On appeal, Appellant 

claimed that “The indictment does not support appellant’s conviction for felony murder because the 

predicate felony of injury to child, as alleged in each paragraph of the indictment, [is] committed by 

omission, not acts, as required by section 19.02(b)(3) [of the Texas Penal Code].” 

Holding: Rodriguez contends that the State prosecuted her under the wrong statute and theory of law. 

She argues that the indictment only alleged omissions, not affirmative acts, and that injury to a child 

by omission cannot support the offense of felony murder. Rodriguez, however, did not file a motion to 

quash the indictment, object to the indictment at any time during the trial, or otherwise raise this 

argument with the trial court. She, therefore, failed to preserve this issue for appellate review. *** 

[However] To the extent that Rodriguez’s complaint is that the indictment failed to charge an offense 

and, therefore, the trial court did not have subject matter jurisdiction, we may consider this complaint 

for the first time on appeal. *** The proper test to determine if a charging instrument alleges ‘an offense’ 


is whether the allegations in it are clear enough that one can identify the offense alleged.” *** Applying 

this test here, we conclude that the allegations in the indictment “are clear enough that one can identify” 

that the offense alleged is felony murder under section 19.02(b)(3) of the Penal Code based upon the 

underlying felony of injury to a child. 

G&S 536 Sufficiency of the Evidence: After both parties had submitted their briefs, the Court of Appeals 

requested supplemental briefing from the parties, asking “whether we can and should raise, on our own 

motion, the sufficiency of the evidence to support the conviction and “whether the evidence was sufficient 

to prove that, as alleged, the Appellant committed an act clearly dangerous to human life in the course 

of committing the felony of injury to a child.” In response, both parties filed supplemental briefs that 

addressed both issues. “In this context,” the Court addressed Appellant’s challenge in her supplemental 

brief to the legal sufficiency of the evidence to support the judgment of conviction. Similar to her 

challenge to the indictment raised in her appellant’s brief, Appellant argued that the conduct alleged in 

the indictment and proven at trial -- “starvation and neglect” -- were “omissions,” and that the felony 

offense of injury to a child by omission cannot support felony murder because felony murder requires an 

“act.” 

Holding: The jury could have reasonably inferred from the evidence presented that the defendant 

committed acts -- such as continuously feeding her son far less than he needed -- in starving her son 

that were “clearly dangerous to human life.” *** Viewing the evidence in the light most favorable to the 

verdict, we conclude that the evidence was legally sufficient to support the conviction. 

Concurring / Dissenting Opinions: Justice Field concurred, arguing that, because Appellant did not raise 

sufficiency of the evidence in her original brief, she has not preserved the ground for appeal, and he 

would not have joined in the Court’s request for supplemental briefing. Chief Justice Jones filed a 

dissenting opinion, arguing that, “ this Court has a duty, in assessing the legal sufficiency of the 

evidence, to ensure that the evidence presented actually supports a conclusion that the defendant 

committed the crime that was charged.” He would find that the “evidence here fails to show that 

Appellant committed any “act” or an “act clearly dangerous to human life” that caused her son’s death. 

Thus, the evidence is insufficient to support her conviction for felony murder.” 


Opinions Not Designated for Publication 


No. WR-78,123-01 Ex parte Rodolfo Alvarez Medrano Applicant was convicted of capital murder in 

Hidalgo County in 2005 and sentenced to death. His conviction and sentence were affirmed in an 

unpublished opinion in 2008 (see G&S, Vol. 16, No. 47; 12/01/2008). Applicant’s habeas corpus application 

under Article 11.071, C.Cr.P., was due to be filed not later than November 26, 2007. Habeas counsel 

timely filed a motion seeking the 90 day extension permitted by Art. 11.071, but it was not granted in 

time to be effective. Thus, when original appointed counsel filed an application in November 2007, it was 

not timely filed. Subsequently, the Court determined that counsel did not have good cause for his late 

filing. The original application was struck and new counsel was appointed. On July 31, 2013, on motion 

by Applicant’s new lawyer, the Court held, in an unpublished per curiam opinion, that, because initial 

habeas counsel’s writ application, filed on November 20, 2007, was untimely and ultimately struck - with 

habeas counsel being replaced, if replacement habeas counsel’s application is timely filed, it will be 

deemed to have been “timely filed as of November 20, 2007.” 

Concurring / Dissenting Opinions: Presiding Judge Keller dissented, arguing that the Court does not 

have authority to grant such an extension and, similarly, has no authority to backdate an application 

in these circumstances. She was joined by Judge Keasler and Judge Hervey. Judge Meyers dissented 

without note. 


Sidebars: (David A. Schulman) This is totally unnecessary, and inconsistent with the Court’s practices. 

The issue isn’t yet ripe, because new counsel hasn’t yet filed an application, so this opinion, at best, is 

an “advisory” opinion. The question of whether the original writ application was timely filed affects only 

the AEDPA time limit. The much better way to handle this would have been for the court to determine 

that, under Article 11.071, the habeas corpus proceeding is pending from the time of the original 

appointment until the time the Court disposes of the case. 

Third Court of Appeals (Austin) 

Case Name: Brithe Thompson v. The State of Texas 


! OFFENSE: Possession of Prohibited Weapon 

! COUNTY: Williamson 

! C/A CASE No. 03-12-0569-CR 


! DISPOSITION: Conviction Affirmed OPINION: Jones, CJ. 

! TRIAL COURT: CCL 1; Hon. Suzanne Brooks 

! LAWYERS: Cherie Ballard (Defense); Kevin Stryker (State); Lisa McMinn (SPA) 

Ed Note: (Background Facts) DPS Trooper Jason Ernst stopped Appellant for speeding while she was 

driving southbound on Interstate 35 at 84 m.p.h. in a 70 m.p.h. zone. After Appellant pulled over on the 

highway shoulder, Ernst parked his patrol car and walked to the passenger side window and saw that 

Appellant was sitting in the car wearing only a bra and pants, which he considered unusual behavior. 

G&S 31.028 Search & Seizure / Continued Detention: Approximately 11 minutes after he first identified 

himself to Appellant, Ernst got on his radio and requested that another officer join him. He also began 

asking over the radio for a K-9 unit to come to the scene. Ernst got out of the car and told Appellant that 

he was asking for a K-9 unit to come. He stated to her, “That’s why we’re waiting.” Ernst returned to his 

patrol car, after which there followed more discussion over the radio about the availability of a K-9 unit. 

After a minute or so, a K-9 unit officer responded that he was nearby and could be there in 15 minutes. 

Ernst then got out of the patrol car, approached Appellant, and told her that the K-9 unit was en route 

and would be there in 10 minutes. Ernst then returned to his car where he began talking to a second 

officer who had by then arrived at the scene. Ernst told the officer that a K-9 unit was on the way and 

explained that Appellant had been driving the car in her bra, was nervous and fidgety, and did not have 

her driver’s license with her. Ernst told the officer that Appellant had refused to give him consent to 

search the vehicle. The officer asked Ernst if Appellant “had a history,” and Ernst responded that there 

was “nothing.” The officer asked Ernst if he had asked Appellant where she stayed the night before, to 

which Ernst responded: “No, she would have no clue.” Ernst then stated that Appellant was “nice” at first 

but that her attitude changed when he asked to search her car and told him that it was her right not to 

give him her consent. Ernst recounted the conversation he had had with Appellant regarding why he 

wanted to search her car, to which the other officer responded that they would just have to wait and see 

“how good” the K-9 unit was and stated, “We’ll see what happens.” The officer added that if anyone had 

smoked anytime within the last two weeks in or around the vehicle, the dog would alert. When the K-9 

Unit arrived, the dog “alerted” on the vehicle. Ernst then searched the inside of the vehicle where he 

found marijuana seeds by the driver’s side door and in the driver’s seat and marijuana “shake” on the 

driver’s side floorboard. Inside a purse on the passenger’s Ernst testified that the term “shake” refers 

to the residue from ground marijuana. seat Ernst found a “butterfly knife” (considered a type of 

switchblade). On appeal, Appellant contends that the trial court erred by denying her motion to suppress 

because, “although Ernst’s initial detention of her was proper, the detention was unreasonably extended, 

rendering the search of her vehicle improper.” 

Holding: An investigative stop may last no longer than necessary to effectuate its purpose. Kothe v. 

State, 152 S.W.3d 54 (Tex.Cr.App. 2004)(see G&S, Vol. 12, No. 42; 09/29/2003). *** When the traffic-stop 

investigation is completed, the detention must end and the driver be permitted to leave. *** Continued 


detention is justified only if the officer has developed reasonable suspicion that the detainee is or will be 

engaged in criminal activity. It is evident that Ernst had ceased his investigation of the traffic violation 

for which he first stopped Appellant at least 15 minutes before the K-9 unit arrived. *** Ernst had 

nothing more than an inchoate and unparticularized suspicion or “hunch” that something illegal might 

be in Appellant’s car because she was nervous, had been oddly attired when stopped, and had repeatedly 

declined to give him consent to search the vehicle. Nevertheless, rather than issuing a warning or 

citation and permitting Appellant to leave, Ernst called dispatch and requested that a K-9 unit be sent 

to the scene. Appellant’s continued detention to await the arrival of the K-9 unit after the completion of 

the traffic stop investigation, absent reasonable suspicion of criminal activity, violated her Fourth 

Amendment rights. *** We conclude that the trial court abused its discretion by misapplying the law to 

the undisputed facts as reflected in the videotape and Ernst’s testimony. *** Consequently, we sustain 

Appellant’s first issue and hold that the trial court erred in denying Appellant’s motion to suppress. 

G&S 543 Sufficiency of the Evidence: Appellant challenges the sufficiency of the evidence to support her 

conviction. She argues that the State failed to establish that the knife in question was a “knife” as 

defined in Section 46.01(7) of the Penal Code. Appellant contends that the State failed to introduce 

evidence that the butterfly knife in her possession was “capable of inflicting serious bodily injury or death 

by cutting or stabbing a person with the instrument.” 

Holding: In his testimony, Ernst identified the knife he had found in appellant’s car and testified that 

it had a serrated edge. The knife was admitted into evidence, and the jury was permitted to take it to the 

jury room and examine it. Consequently, testimony that the knife was capable of inflicting serious bodily 

injury or death was not required. *** A rational trier of fact could have found beyond a reasonable doubt 

that the knife, with its serrated edge, was capable of inflicting serious bodily harm. 



Case Name: Aghaegbuna Odelugo v. The State of Texas 


! OFFENSE: Engaging in Organized Criminal Activity (Theft Over $200,000) 


! C/A CASE No. 01-12-0521-CR 

! DATE OF OPINION: August 6, 2013 

! DISPOSITION: Conviction Reversed OPINION: Jennings, J. 

! TRIAL COURT: 248th D/C; Hon. Joan Campbell 

! LAWYERS: Stan Schneider (Defense); Eric Kugler (State) 

Ed Note: (Background Facts) Appellant entered an “open” plea of guilty. Appellant agreed to pay 

$600,000 in restitution at his sentencing hearing, which was set for a later date. Before the trial court 

concluded the subsequently-held sentencing hearing, Appellant, a non-citizen, filed a motion to withdraw 

his guilty plea, arguing that his plea was involuntary because his counsel did not apprise him of the 

mandatory immigration consequences of his plea. The trial court denied Appellant’s motion to withdraw 

his guilty plea, and, later, after it had concluded the sentencing hearing, assessed his punishment at 

confinement for eighteen years. 

G&S 124.01 Right to Counsel / Ineffective Assistance of Counsel / Conflict of Interest: In a new trial 

motion, Appellant argued that he had received ineffective assistance of counsel because trial counsel, 

Erik Sunde “had an actual conflict of interest” and “did not advise him of . . . certain immigration 

consequences of his guilty plea.” He asserted that he had delivered $285,000 to Sunde to pay the 

$600,000 in restitution he was to pay the court pursuant to his guilty plea. The lawyer, however, did not 

use the money to pay the required restitution and instead told Appellant that the money was “gone and 

unavailable.” Appellant asserted that trial counsel “misappropriated the funds making payment to the 


State impossible.” At the hearing on his new-trial motion, Appellant testified that he retained Sunde 

for $25,000 to represent him in the underlying case and a related federal prosecution against him. When 

he hired the lawyer, Appellant was concerned about his immigration status, and Sunde told him that if 

he paid $600,000 in restitution, adjudication of his guilt would be deferred in the underlying case and 

it would be dismissed. Among the other evidence, Appellant offered into evidence a check that he had 

written to Chase Bank for $160,000, which he used to obtain a cashier’s check to give to Sunde “to pay 

in his trust account towards my restitution.” Appellant testified that, before pleading guilty in both the 

state and federal cases, Sunde had not discussed the immigration consequences of his plea; and 

Appellant noted that he did not “want a trial,” but wanted to “pay off the restitution.” Sunde asserted 

his Fifth Amendment right against self-incrimination in connection with Appellant’s new-trial hearing, 

and refused to testify. The trial court denied appellant’s new-trial motion. 

Holding: [A]ppellant’s uncontroverted testimony and affidavit established that he gave Sunde $285,000 

to pay towards restitution, which Sunde did not pay. Indeed, rather than explain what happened to the 

money, Sunde invoked his right not to incriminate himself. *** Here, if Sunde used the money given to 

him by Appellant for his own interests rather than paying Appellant’s restitution, as alleged by 

Appellant, he would be advancing his own interests ahead of appellant’s, constituting an actual conflict 

of interest. *** And Sunde’s invocation of his own Fifth Amendment right in connection with appellant’s 

new-trial hearing about matters concerning Sunde’s legal representation of Appellant in connection with 

the plea agreement and payment of restitution was itself an advancement of Sunde’s interests above 

Appellent’s interests. *** Although the trial court stated that it would not have held its sentencing 

hearing with the understanding that adjudication of Appellant’s guilt would be deferred if he paid 

$600,000 in restitution, the payment of such a significant amount of restitution would have constituted 

a serious factor to consider in sentencing. And the trial court noted that the $600,000 in restitution was 

a condition added into the plea papers by the State. It is apparent that the State would have sought a 

lesser punishment for Appellant had he been able to pay the restitution. Thus, Appellant has established, 

through his uncontroverted testimony and evidence, that his counsel’s actual conflict of interest adversely 

affected him at trial. *** Accordingly, we hold that the trial court erred in denying Appellant’s new-trial 

motion on the ground that his trial counsel had a conflict of interest. 

Ed Note: Because of its resolution of this issue, the Court held the it need not reach Appellant’s third and 

fourth issues, in which he argued that the trial court erred in denying his new-trial motion on the ground 

that his trial counsel failed to adequately inform him of the immigration consequences of his guilty plea. 



Case Name: In re Brett W. Ligon 


! OFFENSE: Mandamus Proceeding 

! COUNTY: Montgomery 

! C/A CASE No. 09-13-0242-CR 


! DISPOSITION: Relief Denied OPINION: Per Curiam 

! TRIAL COURT: CCL 4; Hon. Mary Ann Turner 

! LAWYERS: Michael Young & Gilbert Garcia (Real Party Joseph Leners); Katherine Shipman 

(Real Party Robert Anderson); Jerald Crow (State); Bill Delmore (Relator) 

Ed Note: (Background Facts) Real parties in interest Joseph Michael Leners and Robert Tyler Anderson 

were arrested on warrants and charged by complaint and information with trespass. The entry on the 

property and the breaking in or entry in the vehicle are alleged by the State to be without the effective 

consent of the owner, Brett W. Ligon, the elected District Attorney. Leners and Anderson filed motions 

to disqualify the District Attorney due to his dual status in the cases. They supplemented the motions 

to specify that a failure to disqualify the District Attorney and his staff would violate due process. They 


asserted that the District Attorney is personally interested in the cases as a private citizen. The trial 

court signed orders granting the motions to disqualify and appointing a special prosecutor. 

Holding: Relator appoints the assistant district attorneys who carry out the duties of his office. *** 

Following uniform case-law, the trial court could reasonably rule that because the District Attorney is 

disqualified, all Assistant District Attorneys in the district are also disqualified. *** To obtain a writ of 

mandamus from an appellate court requiring a trial court to withdraw an order, the Relator must 

demonstrate not only that there is no adequate legal remedy, but also that there is a clear and 

indisputable right to the relief. *** We cannot say the trial court’s disqualification decision “lies ‘outside 

the zone of reasonable disagreement.’” *** On the mandamus record presented, Relator has failed to 

show a clear and indisputable right to the relief sought. *** The petition for writ of mandamus is 

therefore denied. 



Case Name: John Acosta v. The State of Texas 


! OFFENSE: Delivery of a Counterfeit Instrument 


! C/A CASE No. 01-12-0151-CR 


! DISPOSITION: Conviction Affirmed OPINION: Brown, J. 

! TRIAL COURT: 178th D/C; Hon. David Mendoza 

! LAWYERS: Brian Wice (Defense); David Newell & Alan Curry (State) 

Ed Note: (Background Facts) During an investigation into the sale of allegedly counterfeit documents 

at a Houston flea market, HPD Officer Garza used an alias and purchased a Louisiana identification card 

from Appellant, who was working at a flea market booth, which displayed signs or banners stating 

“Novelty ID cards” and “Not a government document. For novelty use only.” Another sign read, “This 

establishment does not issue, alter, or duplicate government records or documents.” There was also a 

sign indicating that all activities were video taped. 

G&S 537 Sufficiency of the Evidence (Counterfeiting): Garza asked to buy a Louisiana identification card 

and told Appellant that he planned to work in Louisiana and wanted to cash checks there. Garza testified 

that Appellant did not tell him that the card he was making was a novelty item or that it would not be 

appropriate for cashing checks because it was not for official use. Before buying the card, Officer Garza 

filled out a form which stated “Novelty Form” at the top, “Not a Government Document” in the middle, 

and “I know this is not a real I.D. Card” under the signature line for the buyer. The form also included 

lines for the buyer’s name, street address, city, state, zip code, date of birth, eye color, height, and sex. 

Garza gave Appellant a Louisiana address. Appellant asked for Garza’s weight, which he provided, and 

a Social Security number. Garza did not have one; a number was not put on the card. Appellant also 

asked for a Social Security card for identification “or do I invent one?” Appellant was arrested 

approximately two weeks after Garza bought the card. At the time of the arrest, the police recovered 

blank ID cards in boxes, blank and completed card forms, the printer that Appellant used on the day in 

question, a laptop computer, and a signature pad. A computer forensics expert, M. Kelly, reviewed the 

contents of the computer and testified that the computer was registered to Rosa Acosta and that he found 

documents indicating Appellant had used the computer. The computer also contained a software 

program called Instant ID Plus that creates identification cards from different templates. On appeal, 

Appellant challenges the sufficiency of the evidence. He asserts that the disclaimers that the card was 

“for novelty use only,” “not a government document,” and “not for official use” precluded a rational fact 

finder from concluding beyond a reasonable doubt that he intended to create or sell a counterfeit 

identification card. 


Holding: [Appellant] manufactured the identification card and sold it to Officer Garza. The identification 

card purports to be an identification card issued by the State of Louisiana and closely resembles a 

Louisiana driver’s license, as shown in the guide to which [Appellant] referred when making the card “to 

get it right.” *** Although Garza, in his requests to [Appellant], repeatedly stated that he wanted the 

card to appear authentic and that he intended to use the identification card to cash checks, [Appellant] 

did not inform Garza that the card could not be used for this purpose. Finally, the jury viewed the video 

of the transaction at the flea market, saw the card that Garza purchased from [Appellant], and saw the 

guide that [Appellant] used to make the card. Viewing the evidence in the light most favorable to the jury 

verdict, we conclude that the evidence is legally sufficient to support the conviction. 

G&S 324 Court’s Charge / Defensive Issues (Mistake of Fact): Appellant contends that the trial court erred 

in failing to instruct the jury on the defense of mistake of fact. He asserts that he was entitled to a 

mistake-of-fact instruction based on the evidence of the disclaimers printed on the identification card and 

displayed at the flea market booth in combination with testimony that a government-issued identification 

card would not contain those disclaimers. Appellant did not request a jury instruction on the defense of 

mistake of fact or object to a failure to include an instruction. Recognizing that he did not request an 

instruction, he further asserts that the failure to instruct the jury egregiously harmed him. In effect, 

Appellant contends that the trial court was required to submit the instruction sua sponte and the failure 

to do so was erroneous. 

Holding: A trial court . . . has no duty to instruct a jury on a defensive issue sua sponte. *** Indeed, the 

Court of Criminal Appeals has specifically held that a trial court does not err in failing to submit the 

defense of mistake of fact under article 36.14 unless the defendant timely requests the issue or objects 

to the omission of the issue from the jury charge. Posey v. State, 966 S.W.2d 57 (Tex.Cr.App. 1998)(see 

G&S, Vol. 6, No. 12; 03/30/1998). Acosta did not request that the trial court include a jury instruction on 

the mistake-of-fact defense. Absent that request, he cannot demonstrate error in the charge. 

G&S 124 Right to Counsel / Ineffective Assistance of Counsel: Appellant contends that his trial counsel 

was ineffective because counsel failed to request a jury instruction on the defense of mistake of fact. He 

raised his ineffective assistance complaint in a motion for new trial, at which trial counsel testified at 

length about the mistake-of-fact defense and his decision not to request an instruction. He testified that 

co-counsel and he were focused on the words “forged” and “counterfeit” and “they were part and parcel 

with the word ‘intent’ because of the way the statute reads, whether or not he intended to forge -- present 

a forged or a counterfeit or produce a forged or counterfeit document.” Trial counsel also testified that 

there was a tactical downside to requesting the instruction -- getting an instruction that the defense did 

not want. He testified that he believed arguing a mistake-of-fact defense would be tantamount to an 

admission that Appellant committed a crime by creating a counterfeit document and would undermine 

the defensive theory that no crime was committed. 

Holding: Appellant contends that trial counsel’s decision not to request a mistake-of-fact instruction is 

not entitled to any deference because the decision was not based on an informed legal and factual 

investigation, was based on a misunderstanding of the law, and produced no tactical benefit. Acosta’s 

argument rests, in part, on an argument that he was entitled to the instruction, if requested in this case. 

But even if Acosta were entitled to the instruction, if requested, we cannot conclude that the failure to 

request the instruction was uninformed. Trial counsel and his co-counsel met with Acosta multiple times, 

read the State’s file on the case, read the offense report, and obtained discovery. Trial counsel testified 

that, as to mistake-of-fact, he did not recall conducting any “independent pretrial research” on the 

defense but looked at the statute once the jury charge was discussed. *** We cannot conclude that 

Acosta’s counsel’s choice not to request an instruction was an unreasonable trial strategy. The trial 

court’s ruling that Acosta was not denied effective assistance of counsel does not lie outside the zone of 

reasonable disagreement. *** Considering the evidence in the light most favorable to the trial court 


uling and in light of trial counsel’s reasonably articulated trial strategy to not request the jury 

instruction, Acosta fails to meet the first prong of the Strickland test. 

G&S 334 Prosecutorial Misconduct / Improper Argument (Striking at the Defendant): Appellant contends 

that the State struck at defendant over counsel’s shoulder in two instances. First, the State argued 

during closing, “Now, with respect to the transcript, don’t be fooled by this. Okay. This is good lawyering, 

folks.” Second, the State argued, “So the idea that this is a legitimate business that paid taxes, that had 

some sort of franchising agreement, that’s not evidence. That was just words from the defense attorney’s 

mouth. You have no proof of that. And I think, you know why you don’t have proof of that.” 

Holding: In his jury argument, [Appellant]’s trial counsel referred directly to the transcript of the 

transaction between [Appellant] and the officers on the day in question and to comments that the officers 

made to each other about “stick[ing]” [Appellant] with a felony. The State’s argument about the 

transcript responded directly to [Appellant]’s counsel’s argument. The State’s argument about “words 

from the defense attorney’s mouth” responded to [Appellant]’s counsel’s argument that [Appellant] 

worked at a “business.” During the trial, [Appellant]’s counsel questioned Officer Garza about whether 

he knew if the flea-market-booth business was registered in Texas and paid franchise taxes. Garza 

answered that he did not know. During the jury argument, [Appellant]’s counsel referred to “the place 

of business” and “the business.” The State’s argument responded to defense counsel’s argument 

suggesting that [Appellant] operated a legitimate business. 

G&S 334 Prosecutorial Misconduct / Improper Argument (Arguing Outside the Record): Appellant 

contends that the trial court erred in overruling his objections to the State’s argument on matters outside 

the record. He asserts that the State argued matters outside the record when it argued that “every piece 

of evidence . . . represented identification . . . to be used against real victims.” Appellant’s counsel 

objected to the argument as outside the record and inflammatory; the trial court overruled the objection. 

The State continued to discuss ways in which a fake identification could be used. The State concluded 

its argument with reference to a seventeen-year-old who goes “to the club to get drunk, and she gets in 

a car wreck on her way home and her mother gets that horrible call . . . as to why her 17-year-old is 

drinking alcohol in a club.” The trial court again overruled defense counsel’s objection. The State 

continued its argument, referring to an illegal immigrant who uses “that identification” to collect a 

paycheck and a college student who does not get student loans because someone else used his identity. 

Appellant’s counsel again objected, “He’s not on trial for identity theft. He’s on trial for creating what 

they believe to be a forged document. This argument goes way beyond the scope of this crime and what 

they have to prove in their burden. [The State’s] trying to inflame the jury. It’s improper argument.” 

Holding: The State’s argument was not improper. The State did not argue that [Appellant] committed 

identity theft. The State referred to identifications “in the hands of people who may or may not, but 

probably will, use these identifications for criminal purposes.” Additionally, the evidence included 

testimony about use of fake identification documents in scams and for identity theft and about records 

found on the computer seized at the flea market booth detailing approximately 212 transactions related 

to making IDs. Use of false identifications in identity theft is common knowledge. Thus, the State’s 

argument was a permissible plea for law enforcement. 

G&S 334 Prosecutorial Misconduct / Improper Argument (Misstating the Law): Appellant contends that 

the trial court erred in overruling his motion for mistrial after the State misstated the law contained in 

the jury charge during the State’s final argument. But Appellant also acknowledges that the trial court 

sustained his counsel’s objections. When it sustained the objections, the trial court directed the jury to 

the statement of the law contained in the charge as a statement of what the State was required to prove 

beyond a reasonable doubt. Appellant asserts that sustaining the objection and directing the jury to the 

charge did not cure the error. 

Holding: [Appellant] does not point out, nor can we find, where in the record he requested a mistrial. 

When an appellant has been given all the relief he requested, “there is nothing to complain of on appeal.” 


*** The trial court sustained [Appellant]’s objections and directed the jury to the law set out in the court’s 

charge. [Appellant] did not move for a mistrial and did not object to the State’s further argument on the 

law. [Appellant] did not preserve a complaint for appeal. 

Volume 21, Number 35 - September 2nd 


Courts of Appeals - Criminal Cases 

Case Name: Jerry Paul Lundgren v. The State of Texas 


! OFFENSE: DWI (Probation Revocation) 

! COUNTY: Wise 

! C/A CASE No. 02-12-0085-CR 


! DISPOSITION: Trial Court Affirmed OPINION: Gabriel, J. 

! TRIAL COURT: CCL; Hon. Melton Cude 

! LAWYERS: Barry Green (Defense); James Stainton (State) 

Ed Note: (Background Facts) On August 18, 2010, Appellant was charged by information with driving 

while intoxicated. The information included an allegation that Appellant previously had been convicted 

of driving while intoxicated in 2009. Appellant pled guilty to the information under a plea-bargain 

agreement, and the trial court sentenced Appellant to 365 days’ confinement on January 7, 2011. The 

trial court suspended Appellant’s sentence and placed him on community supervision for 18 months. The 

community-supervision terms prohibited Appellant from committing any new offense and required him 

to abstain from alcohol. The trial court’s judgment stated that the sentence commenced that same day -- 

January 7, 2011. Appellant’s plea-bargain agreement further included the provision that “the defendant 

has NO right of appeal.” Seven days later on January 14, 2011, Appellant again was arrested and 

charged with driving while intoxicated. 

Ed Note: (Procedural History) On January 19, 2011, Appellant filed a notice of appeal from his 

community-supervision sentence. On January 28, 2011, Appellant filed a motion for new trial, which was 

overruled by operation of law on March 23, 2011. On February 18, 2011, the State filed a motion to 

revoke Appellant’s community supervision based on the new January 14, 2011 offense and Appellant’s 

use of alcohol -- both of which violated the community-supervision terms. On March 3, 2011, the Court 

of Appeals dismissed Appellant’s appeal for want of jurisdiction based on Appellant’s waiver and issued 

mandate on May 12, 2011. 

G&S 410.02 Probation / Terms of Probation (Date of Effect): On July 13, 2011, Appellant sought to quash 

the State’s motion to revoke his community supervision because the grounds for the motion—Appellant’s 

arrest for a new offense and use of alcohol—occurred when the community-supervision terms had not 

taken legal effect. The trial court denied the motion and explained that Appellant’s “failure to obtain 

permission of the trial court was a failure at the trial court level, not the appellate court level, so the 

probation terms came into effect immediately” on January 7, 2011. During the subsequent hearing on 

the State’s motion to revoke, Appellant sought to suppress any evidence discovered during Appellant’s 

January 14, 2011 arrest based on a lack of “reasonable suspicion or probable cause to detain and seize 

[Appellant].” The trial court denied Appellant’s motion to suppress, found by a preponderance of the 

evidence that Appellant had violated the terms of his community supervision, revoked Appellant’s 

community supervision, and sentenced him to 300 days’ confinement. On appeal, Appellant argues that 

the trial court erred by denying his motion to quash the State’s motion to revoke community supervision 

because the judgment on which the community supervision was based had been appealed. In short, 

Appellant asserts that the terms of his community supervision did not begin until after this court issued 


its mandate; therefore, his arrest on January 14, 2011, and use of alcohol could not violate terms that 

were not in effect at that time. 

Holding: [T]he question we are asked to decide is when the terms of a community-supervision judgment 

take effect if the defendant violates the terms while the trial court has plenary jurisdiction and before 

a notice of appeal or a motion for new trial is filed. No one disputes that Appellant voluntarily pleaded 

guilty and waived his right to appeal, which prevents him from appealing any issue in the case without 

the consent of the trial court that was not raised in a written pretrial motion. *** Further, all parties 

agree that the terms and conditions of community supervision are not in effect while a case is on appeal 

or during the pendency of a motion for new trial. *** The cases relied on by Appellant to support his 

argument are distinguishable. In those cases, the violations did not occur after the community 

supervision was imposed and commenced pursuant to a plea bargain but before a notice of appeal or 

motion for new trial was filed. Indeed, in most of the cases, the violations occurred while an appeal or 

a motion for new trial was pending. *** [W]e conclude that Appellant’s community-supervision terms 

were in effect at the time he violated them and his subsequent (yet timely) notice of appeal and motion 

for new trial were ineffective to retroactively act as a cure for those violations. 

Concurring / Dissenting Opinions: Justice Dauphinot filed a dissenting opinion in which she disagreed 

with the majority’s conclusion that, because Appellant entered into a negotiated plea and waived his 

right of appeal, he cannot do what the Court has indicated in its previous opinions in order to pursue 

claims: pursue a motion for new trial. She argued that, “Appellant used rules of procedure to his benefit. 

The majority holds that he cannot use the rules of procedure to manipulate the system for his benefit. 

Respectfully, the rules do not change just because a defendant, or the State for that matter, reaps an 

unintended benefit that we do not approve of. The application of statutes, rules of evidence, and even 

rules of procedure must be consistent, no matter who benefits.” 

Sidebars: (David A. Schulman) The Court of Appeals cited to and, at least in part, relied on the Tyler 

Court’s opinion in McConnell v. State, 34 S.W.3d 27 (Tex.App. - Tyler 2000). In that case, some of the 

defendant’s probation violations occurred after sentence was imposed but before motion for new trial was 

filed. The Tyler Court held that “prior to the filing of a motion for new trial, the trial court retains 

jurisdiction and has the power to exercise its authority to punish violations of its conditions of community 

supervision. To hold otherwise would permit a criminal defendant to manipulate the system to its 

manifest detriment. A defendant could violate his conditions of community supervision within thirty 

days of sentencing and then avoid the consequences thereof by filing a motion for new trial. The law and 

common sense do not contemplate such a result. The defendant is subject to the court's control, not vice 

versa. Once a court acquires jurisdiction, it retains it until something occurs to divest it thereof.” In 

these unusual situations, I believe both the Tyler Court in McConnell and the Court of Appeals in this 

case, reached the correct decision. 

Ed Note: The Court of Appeals also rejected Appellant’s claim that the State’s motion to revoke should 

have been quashed because the post-mandate and nunc-pro-tunc judgments provided that the 

community-supervision terms “commenced” on June 22, 2011, which was after his January 14, 2011 

arrest 

G&S 31.024 Search & Seizure / Warrantless Arrests / Probable Cause: Seven days after being initially 

placed on the probation, Appellant again was arrested following a report to police that the driver of a 

silver truck was passed out in the drive-through lane of a Whataburger. The responding police officer 

saw a silver truck in the drive-through lane as reported. The driver, who the officer later identified as 

Appellant, was awake when the officer approached the truck. Based on Appellant's demeanor and the 

odor of alcohol, the officer conducted a field sobriety test and then arrested Appellant for driving while 

intoxicated. Appellant argues that the evidence obtained after the officer asked him to pull out of the 

drive-through lane should have been suppressed because the initial call regarding the silver truck was 

unconfirmed and because the officer did not have reasonable suspicion that Appellant was involved in 

criminal activity or probable cause to arrest him. 


Holding: In this case, the totality of the circumstances, viewed in the light most favorable to the trial 

court’s ruling, shows that the encounter was consensual and, thus, not subject to the requirements of the 

Fourth Amendment. Once the arresting TIBA’s officer Case performed of the Week the partial field sobriety test and had the 

benefit of all his observations from the initial voluntary encounter forward, he had sufficient probable 

cause to arrest Appellant for driving while intoxicated. 

Courts of Appeals - Criminal Cases 

Case Name: Jerry Paul Lundgren v. The State of Texas 


! OFFENSE: DWI (Probation Revocation) 

! COUNTY: Wise 

! C/A CASE No. 02-12-0085-CR 


! DISPOSITION: Trial Court Affirmed OPINION: Gabriel, J. 

! TRIAL COURT: CCL; Hon. Melton Cude 

! LAWYERS: Barry Green (Defense); James Stainton (State) 

Ed Note: (Background Facts) On August 18, 2010, Appellant was charged by information with driving 

while intoxicated. The information included an allegation that Appellant previously had been convicted 

of driving while intoxicated in 2009. Appellant pled guilty to the information under a plea-bargain 

agreement, and the trial court sentenced Appellant to 365 days’ confinement on January 7, 2011. The 

trial court suspended Appellant’s sentence and placed him on community supervision for 18 months. The 

community-supervision terms prohibited Appellant from committing any new offense and required him 

to abstain from alcohol. The trial court’s judgment stated that the sentence commenced that same day -- 

January 7, 2011. Appellant’s plea-bargain agreement further included the provision that “the defendant 

has NO right of appeal.” Seven days later on January 14, 2011, Appellant again was arrested and 

charged with driving while intoxicated. 

Ed Note: (Procedural History) On January 19, 2011, Appellant filed a notice of appeal from his 

community-supervision sentence. On January 28, 2011, Appellant filed a motion for new trial, which was 

overruled by operation of law on March 23, 2011. On February 18, 2011, the State filed a motion to 

revoke Appellant’s community supervision based on the new January 14, 2011 offense and Appellant’s 

use of alcohol -- both of which violated the community-supervision terms. On March 3, 2011, the Court 

of Appeals dismissed Appellant’s appeal for want of jurisdiction based on Appellant’s waiver and issued 

mandate on May 12, 2011. 

G&S 410.02 Probation / Terms of Probation (Date of Effect): On July 13, 2011, Appellant sought to quash 

the State’s motion to revoke his community supervision because the grounds for the motion—Appellant’s 

arrest for a new offense and use of alcohol—occurred when the community-supervision terms had not 

taken legal effect. The trial court denied the motion and explained that Appellant’s “failure to obtain 

permission of the trial court was a failure at the trial court level, not the appellate court level, so the 

probation terms came into effect immediately” on January 7, 2011. During the subsequent hearing on 

the State’s motion to revoke, Appellant sought to suppress any evidence discovered during Appellant’s 

January 14, 2011 arrest based on a lack of “reasonable suspicion or probable cause to detain and seize 

[Appellant].” The trial court denied Appellant’s motion to suppress, found by a preponderance of the 

evidence that Appellant had violated the terms of his community supervision, revoked Appellant’s 

community supervision, and sentenced him to 300 days’ confinement. On appeal, Appellant argues that 

the trial court erred by denying his motion to quash the State’s motion to revoke community supervision 

because the judgment on which the community supervision was based had been appealed. In short, 

Appellant asserts that the terms of his community supervision did not begin until after this court issued 


its mandate; therefore, his arrest on January 14, 2011, and use of alcohol could not violate terms that 

were not in effect at that time. 

Holding: [T]he question we are asked to decide is when the terms of a community-supervision judgment 

take effect if the defendant violates the terms while the trial court has plenary jurisdiction and before 

a notice of appeal or a motion for new trial is filed. No one disputes that Appellant voluntarily pleaded 

guilty and waived his right to appeal, which prevents him from appealing any issue in the case without 

the consent of the trial court that was not raised in a written pretrial motion. *** Further, all parties 

agree that the terms and conditions of community supervision are not in effect while a case is on appeal 

or during the pendency of a motion for new trial. *** The cases relied on by Appellant to support his 

argument are distinguishable. In those cases, the violations did not occur after the community 

supervision was imposed and commenced pursuant to a plea bargain but before a notice of appeal or 

motion for new trial was filed. Indeed, in most of the cases, the violations occurred while an appeal or 

a motion for new trial was pending. *** [W]e conclude that Appellant’s community-supervision terms 

were in effect at the time he violated them and his subsequent (yet timely) notice of appeal and motion 

for new trial were ineffective to retroactively act as a cure for those violations. 

Concurring / Dissenting Opinions: Justice Dauphinot filed a dissenting opinion in which she disagreed 

with the majority’s conclusion that, because Appellant entered into a negotiated plea and waived his 

right of appeal, he cannot do what the Court has indicated in its previous opinions in order to pursue 

claims: pursue a motion for new trial. She argued that, “Appellant used rules of procedure to his benefit. 

The majority holds that he cannot use the rules of procedure to manipulate the system for his benefit. 

Respectfully, the rules do not change just because a defendant, or the State for that matter, reaps an 

unintended benefit that we do not approve of. The application of statutes, rules of evidence, and even 

rules of procedure must be consistent, no matter who benefits.” 

Sidebars: (David A. Schulman) The Court of Appeals cited to and, at least in part, relied on the Tyler 

Court’s opinion in McConnell v. State, 34 S.W.3d 27 (Tex.App. - Tyler 2000). In that case, some of the 

defendant’s probation violations occurred after sentence was imposed but before motion for new trial was 

filed. The Tyler Court held that “prior to the filing of a motion for new trial, the trial court retains 

jurisdiction and has the power to exercise its authority to punish violations of its conditions of community 

supervision. To hold otherwise would permit a criminal defendant to manipulate the system to its 

manifest detriment. A defendant could violate his conditions of community supervision within thirty 

days of sentencing and then avoid the consequences thereof by filing a motion for new trial. The law and 

common sense do not contemplate such a result. The defendant is subject to the court's control, not vice 

versa. Once a court acquires jurisdiction, it retains it until something occurs to divest it thereof.” In 

these unusual situations, I believe both the Tyler Court in McConnell and the Court of Appeals in this 

case, reached the correct decision. 

Ed Note: The Court of Appeals also rejected Appellant’s claim that the State’s motion to revoke should 

have been quashed because the post-mandate and nunc-pro-tunc judgments provided that the 

community-supervision terms “commenced” on June 22, 2011, which was after his January 14, 2011 

arrest 

G&S 31.024 Search & Seizure / Warrantless Arrests / Probable Cause: Seven days after being initially 

placed on the probation, Appellant again was arrested following a report to police that the driver of a 

silver truck was passed out in the drive-through lane of a Whataburger. The responding police officer 

saw a silver truck in the drive-through lane as reported. The driver, who the officer later identified as 

Appellant, was awake when the officer approached the truck. Based on Appellant's demeanor and the 

odor of alcohol, the officer conducted a field sobriety test and then arrested Appellant for driving while 

intoxicated. Appellant argues that the evidence obtained after the officer asked him to pull out of the 

drive-through lane should have been suppressed because the initial call regarding the silver truck was 

unconfirmed and because the officer did not have reasonable suspicion that Appellant was involved in 

criminal activity or probable cause to arrest him. 


Holding: In this case, the totality of the circumstances, viewed in the light most favorable to the trial 

court’s ruling, shows that the encounter was consensual and, thus, not subject to the requirements of the 

Fourth Amendment. Once the arresting officer performed the partial field sobriety test and had the 

benefit of all his observations from the initial voluntary encounter forward, he had sufficient probable 

cause to arrest Appellant for driving while intoxicated.

Habeas Corpus - Texas Independent Bar Association

Create successful ePaper yourself

Delete template?

Save as template?