TIBA's G&S Texas Criminal Law Report - Texas Independent Bar ...

TIBA's G&S Texas Criminal Law Report 

Published by Texas Independent Bar Association 

Post Office Box 783 

Austin, Texas 78767 

Tel. 512-474-2727 

eMail: gsreports@texindbar.org Fax: 512-532-6282 Web Page: www.texindbar.org 

Alan Curry 

Lee Haidusek 

John G. Jasuta 

Copyright © 2006 Texas Independent Bar Association and the following Commentators 

Karyl Anderson Krug 

Charles Mallin 

Gail Kikawa McConnell 

Volume 14, Number 37 ~ Monday, September 18, 2006 

Henry C. Paine, Jr. 

David A. Schulman 

Jeff Van Horn 

Ed Note: It is TIBA's policy that commentators do not summarize or comment on cases in which they were involved. 

Get FREE CLE. The cases summarized in this report will be discussed during the live webcast 

from the TIBA office this Thursday (September 21st). Attendees can claim 1 hour participatory 

and ½ hour Ethics CLE. Contact our office for a user name and password if you want to join us. 

Court of Criminal Appeals 

Case Name: Raymond Edward Olivas v. The State of Texas 

! OFFENSE: Evading Arrest (3x) 

! COUNTY: Brazos 

! COURT OF APPEALS: Waco 2004 

! C/A CITATION: 153 S.W.3d 108 

! C/A RESULT: Punishment Reversed 

! CCA. CASE No. PD-1933-04; PD-1934-04 and PD-1935-04 

! DATE OF OPINION: September 13, 2006 

! DISPOSITION: Court of Appeals Reversed 

! OPINION BY: Cochran, J. VOTE: 8-0 

! OPINION: cca.courts.state.tx.us/opinions/htmlopinioninfo.asp?opinionid=14368 

! TRIAL COURT: 272nd D/C; Hon. Rick Davis 

! LAWYERS: Stephen Gustitis (Defense); Bill Turner, Doug Howell (State) 

Ed Note: Four times, in less than a month, appellant evaded arrest by outracing Bryan or 

College Station police officers who were attempting to arrest him for stalking and assaulting his 

former girlfriend. A jury convicted appellant of all four evading arrest charges, and it found that 

he used his mother's Pontiac Bonneville as a deadly weapon during three of those offenses. 

Appellant brought two points of error on appeal-legal and factual sufficiency to support the four 

evading arrest convictions. He argued that the officers could not identify him as the driver of 

his mother's car. 

G&S 320 Court's Charge (Deadly Weapon Special Issue): The Court of Appeals rejected 

Appellant’s sufficiency claims, but reversed three of his convictions based on what it called 

"fundamental charge error" even though Appellant had never raised such a claim either in the 

trial or appellate court (see G&S, Vol. 12, No. 46; 11/22/04). It stated that the trial court had 

626 

G&S Vol. 14, No. 37 - September 18, 2006 - Page 1

"charged the jury at the guilt-innocence phase on the deadly weapon issue by asking an extra 

question on the verdict form after the jury had determined whether Appellant had evaded arrest 

using a vehicle." (6) The Court of Appeals concluded that (1) "the [trial] court did not properly 

place the burden of proof regarding the deadly weapon issue on the State"; (2) "the charge did 

not require that the jury make the finding that [Appellant] used a deadly weapon 'beyond a 

reasonable doubt'"; (3) this error was "structural" and immune to any harmless-error analysis; 

(4) if the error was subject to a harmless-error analysis, it caused Appellant egregious harm 

under Almanza; and (5) it was harmful constitutional error under Rule 44.2(a), T.R.A.P. Chief 

Justice Gray dissented and stated: "There is no fundamental error in the charge without 

egregious harm." 

Holding: The Court of Appeals failed to analyze each Almanza factor, and its ultimate 

conclusion is not supported by the record. * * * It is hypothetically possible that the jury could 

have ignored defense counsel's cogent explanation of the State's burden of proof as being 

"beyond a reasonable doubt" both as to the elements of the offenses and as to the deadly 

weapon findings. There is, however, nothing in this record that suggests that the jury did ignore 

this plain statement of the law or that it failed to apply it correctly. Applying the individual 

Almanza factors to a review of this record, we conclude that Appellant has failed to show 

"egregious harm," - that type and level of harm which affects "the very basis of the case," 

deprived him of a "valuable right," or "vitally affect[ed] a defensive theory." 

Concurring / Dissenting Opinions: Judge Meyers did not participate. 

Case Name: Jeffery Scott Davis v. The State of Texas 

! OFFENSE: Manufacture of Controlled Substance 

! COUNTY: Montague 

! COURT OF APPEALS: Ft. Worth 


! C/A RESULT: Conviction Reversed 

! CCA. CASE No. PD-0636-05 



! OPINION BY: Price, J. VOTE: 7-1-0 


! TRIAL COURT: 97th D/C; Hon. Roger Towery 

! LAWYERS: Gregory King (Defense); Tim Cole (State) 

G&S 31.01 Search & Seizure / Search Warrants: The warrant in this case was a “smell” warrant, 

based on information from an officer that he smelled a strong chemical odor coming from a 

residence that he associated with the manufacture of methamphetamine. The affidavit 

submitted does not include information about the officer’s expertise or experience in 

recognizing odors associated with methamphetamine manufacture. There were no details about 

why the officer thought it was from that particular house. The officer who swore to the 

affidavit was not the officer who smelled the chemicals, and he had no personal knowledge of 

the odor or the suspected residence and did not verify the other officer’s observations. Other 

information provided in the affidavit was not verified or substantiated in the affidavit. The 


Court of Appeals averred that while "the veracity of an officer is presumed if unchallenged, 

expertise is not presumed." Over a dissent which noted that "common sense and reasonable 

interpretation" dictate that the officer (Westervelt) "had enough experience and expertise that 

he had previously smelled the same chemical odor and had previously associated it with the 

manufacture of methamphetamine," the majority of the court below held that this assumption 

added information to the affidavit that "is contained nowhere in it" (see G&S, Vol. 13, No. 13; 

04/03/05). 

Holding: It is not unreasonable to infer that when a person identifies a smell by association, he 

has encountered that odor-causing agent before. This is especially so when that person may 

reasonably be expected to have had some experience with that kind of odor. For example, if a 

pilot says, "That smells like jet fuel," the natural assumption is that, because he is a pilot, he has 

previously encountered jet fuel and recognizes it specifically by its smell. That is not an 

unreasonable inference. Neither is the inference that a police officer in today's society, with the 

current prevalence of methamphetamine, who says that he smells an odor that "he has 

associated" with the manufacture of methamphetamine, has previously come into contact with 

a methamphetamine laboratory and can recognize the odor it emits. * * * Today, we have 

examined the affidavit and conclude that the magistrate has drawn reasonably available 

inferences in finding that it supplied probable cause. We hold that the trial court properly 

deferred to the magistrate's probable cause determination in this case, and did not err to deny 

the ASappellant's motion to suppress. 

Concurring / Dissenting Opinions: Judge Meyers did not participate. Judge Johnson concurred 

in the result. 

Case Name: Calin Muger Oprean v. The State of Texas 

! OFFENSE: DWI Felony 

! COUNTY: Harris 

! COURT OF APPEALS: Houston [1st] 2005 

! C/A CITATION: Unpublished 

! C/A RESULT: Conviction Affirmed 




! OPINION BY: Keller, PJ. VOTE: 7-2-0 


! TRIAL COURT: 337th D/C; Hon. Don Stricklin 

! LAWYERS: Edward Chernoff (Defense); 

Ed Note: (Background Facts) On February 25, 2004, the trial court a discovery order directing 

the State to furnish certain items for inspection and copying at least 10 days prior to trial. 

Those items included, among other things, "all video and tape recordings that contain the 

defendant's voice." No such items were produced before trial. Trial began on April 12, 2004. 

The jury found Appellant guilty on April 14 and was recessed for the day. That evening, defense 

counsel asked the prosecutor what evidence she intended to present on the punishment issue 


the next morning. She replied that she intended to present only the "judgments and sentences" 

in Appellant's prior convictions. 

G&S 331 Prosecutorial Misconduct / Suppressing or Secreting Evidence: Just minutes before the 

punishment phase began, and only after defense counsel inquired about the presence of a police 

officer in the courtroom, who he assumed was present for another case, defense counsel learned 

that the prosecutor was going to offer a videotape depicting one of Appellant’s previous offenses 

into evidence. The prosecutor informed the trial judge and defense counsel that the officer was 

there to "testify that the video is a fair and accurate depiction." Outside the presence of the 

jury, defense counsel objected to the admission of the video, pointing out to the judge that the 

prosecutor had violated the discovery order by failing to allow the defense ten days to inspect 

the video and relating the conversation he had with the prosecutor the previous evening. The 

prosecutor replied that "there was no [Article 37.07 (g)] charge in this Court's discovery order 

and no [37.07] request was ever made by defense counsel, which is required to be made to me 

to give him this evidence." The trial judge overruled defense counsel's objection to the tape's 

admission. Defense counsel then asked the judge to grant a recess so that he could inspect the 

video and prepare his strategy, but the judge summarily denied his request and the tape was 

introduced before the jury. The Court of Appeals affirmed the conviction, determining that 

it could not "conclude that the State's article 37.07, section 3(g) explanation is meritless on it 

face." As a result, the court stated: "the record does not demonstrate that the State acted with 

specific intent to willfully disobey the discovery order. We hold that the trial judge did not 

abuse its discretion in admitting the videotape." 

Holding: Two things are particularly unacceptable about the prosecutor's conduct. First, the 

prosecutor told defense counsel the night before the punishment phase began that she intended 

to introduce only the judgments and sentences from the previous convictions. She did not 

dispute the fact that she made that statement. There is no suggestion that later that night or 

early the next morning she suddenly discovered the videotape's existence. And because her 

signature appears at the end of the discovery order, it cannot be said that she was unaware of 

it. Second, when defense counsel argued that he had not received notice as required by the 

discovery order, the prosecutor responded by stating that "there was no [37.07] charge in [the] 

Court's discovery order." When affirming the judgment of the trial court, the Court of Appeals 

relied on the prosecutor's explanation. (court found the explanation was not "meritless on its 

face" and concluded that "in light of the State's explanation, and regardless of an ultimate 

determination of its validity, the record does not demonstrate that the State acted with specific 

intent to willfully disobey the discovery order." But the validity of the explanation offered by 

the prosecutor is a relevant factor that should be considered when determining willfulness. The 

discovery order did not mention anything about Article 37.07, and therefore was not limited 

by that provision. Because the prosecutor knew about the discovery order and chose to invoke 

Article 37.07 after counsel called her attention to the order, she made a conscious decision to 

violate the plain directive of the discovery order. Affording total deference to the trial judge's 

implicit findings of fact that are supported by the record, we find that the trial judge abused his 

discretion in admitting the videotape over defense counsel's objection. The record reveals that, 

unlike the prosecutor in LaRue v. State, 152 S.W.3d 95 (Tex.Cr.App. 2004)(see G&S, Vol. 12, 

No. 45; 11/15/04), the prosecutor's conduct here was a calculated effort to frustrate the defense. 


Because intent is inferred from acts done and words spoken, we have considered the 

prosecutor's statements and actions in finding her conduct to be willful. 

Concurring / Dissenting Opinions: Judge Cochran concurred, joining in the judgment but 

stating that she “cannot join the majority opinion which concludes that the prosecutor 

‘willfully’ violated a discovery order.” 

Sidebars: (David A. Schulman) I kinda’ agree with Judge Cochran here. While the prosecutor 

needed to be chastised for not advising defense counsel about the tape when asked, I just don’t 

see the main problem as being the result of misconduct by the State. Taking the prosecutor’s 

statement at face value, she did not believe the original discovery order covered the tape in 

question. I fault the trial judge for not getting involved. As Judge Cochran wrote, the trial 

judge “had the discretion to do one of two things: (1) exclude the videotape because it had not 

been produced in a timely manner to allow the defense to see it and digest its import before the 

punishment phase started; (10) or (2) declare a short recess for the defense (and the trial judge) 

to view the videotape and prepare for the State's offer.” We’ve listed this as G&S category 330 

(Prosecutorial Misconduct) only because the majority opinion relied on LaRue and the 

prosecutor’s intent. In my opinion, it should be under “judicial nonfeasance.” 

Case Name: Larry Martin Ellison v. The State of Texas 

! OFFENSE: Sexual Assault 

! COUNTY: Medina 

! COURT OF APPEALS: San Antonio 2005 





! DISPOSITION: Court of Appeals Affirmed 

! OPINION BY: Keasler, J. VOTE: 9-0 


! TRIAL COURT: 38th D/C; Hon. Watt Murrah 

! LAWYERS: Michael Gross (Defense); Patrick Maguire (State) 

G&S 440 Evidence at Punishment Phase: Appellant pled guilty to sexual assault but chose to 

have a jury decide his sentence. During punishment, a probation officer testified that Appellant 

was not a "suitable" candidate for community supervision. The Court of Appeals held that the 

trial judge did not abuse his discretion in admitting the testimony (see G&S, Vol. 13, No. 16; 

04/25/05). In doing so, the court observed that the 1989 amendment to Article 37.07 §3(a), 

C.Cr.P., considerably widened the scope of evidence admissible at punishment. The court 

further determined that the admissibility of evidence of suitability for probation is judged by 

its relevancy to sentencing. 

Holding: A jury must be able to "tailor the sentence to the particular defendant." The actions 

by the Legislature in continually broadening §3(a)'s language and a plain reading of that section 

persuade us to conclude that suitability is a matter "relevant to sentencing" under the current 

version of Article 37.07 §3(a) when a defendant seeks community supervision. 


Ed Note: The opinion also offered the following: Some may construe the admission of this type 

of evidence as heavily burdening the defendant. This is simply not true. Under today's ruling, 

a defendant would also be allowed to introduce the testimony of a probation officer whose 

opinion is that the defendant is, in fact, suitable for community supervision. Today's decision 

gives equal opportunity to the State and a defendant to put on testimony of the defendant's 

suitability for community supervision. We also recognize that our holding may cause concern 

about potential "unfettered discretion" now seemingly given to trial judges in determining what 

is "relevant to sentencing." But we specifically note that the trial judge must still restrict the 

admission of evidence to that which is "relevant to sentencing" -- in other words, a trial judge 

must operate within the bounds of Texas Rules of Evidence 401, 402, and 403. We are also 

confident that a jury will weigh the credibility of witnesses. Once the testimony is admitted, the 

jury is free to assign the weight it will accord to any testimony. For instance, if the jury 

determines that the testimony of a witness is unbelievable, it can disregard it. And should the 

Legislature again disagree with our interpretation of the plain language of §3(a), it is certainly 

free to amend the statute. But until such time, we are bound by §(a)'s broad language. Today's 

holding furthers the policies inherent in the punishment phase and will provide the jury with 

sufficient information so that it may tailor an appropriate sentence for the defendant. 

Ed Note: (Application to this Case) In this case, the probation officer testified: (1) she was 

employed by the 38th Judicial District Community Supervision and Corrections Department; 

(2) her job duties included supervising cases, doing intakes and doing presentence investigation 

reports; (3) she has a degree in psychology with an emphasis on sex crimes and aggression; (4) 

she has a degree in criminal justice; (5) she is a certified officer with the State of Texas; (6) she 

has had special training in sex offender cases and supervising sex offenders; and (7) she has 

attended several seminars and special training on violence, domestic violence, and sex offenders. 

But perhaps most importantly, the probation officer testified that she interviewed [Appellant] 

while preparing her presentence investigation report. She also interviewed the thirteen-year-old 

victim of the sexual assault. So the probation officer not only based her testimony on her 

general professional knowledge and experience but also on her personal knowledge and 

perceptions of [Appellant] and the complainant during their interviews. Under these facts, we 

cannot say that the trial judge abused his discretion in allowing the probation officer to testify 

as to her opinion of [Appellant]'s suitability for community supervision. 

Sidebars: (David A. Schulman) To those members of the defense bar as some kind of loss, I 

would say that you need to read this opinion and then go out and use your imagination. At two 

points in the opinion the Court points out that this ruling applies equally to defense's 

evidentiary offerings. As our “Commentator Emeritus” Roy Greenwood said the day this 

opinion was delivered, the Court’s rationale for allowing such evidence may “open the door” 

for the defense to then put into evidence all kinds of expert testimony about TDC overcrowding 

conditions, lack of protection, drug use, violence, etc., to counter such an opinion. The previous 

old rationale that such evidence of TDC conditions was not admissible may have been altered 

by this opinion allowing the probation officer's testimony/opinion. 


Case Name: Willie Hampton Bell, Sr. v. The State of Texas 

! OFFENSE: DWI Felony 

! COUNTY: Lampasas 

! COURT OF APPEALS: Austin 2005 





! DISPOSITION: Court of Appeals Affirmed 

! OPINION BY: Hervey, J VOTE: 9-0 


! TRIAL COURT: 27th D/C; Hon. Joe Carroll 

! LAWYERS: Scott Stevens (Defense); 

G&S 421 Judgments & Convictions / Challenges to Prior Convictions: The indictment charged 

Appellant under state law with felony of driving while intoxicated. An enhancement paragraph, 

which elevated the offense to a third-degree felony, alleged that Appellant had two prior DWI 

convictions in federal court. Both judgments reflecting these two prior convictions refer to18 

U.S.C. § 13. One of these judgments also refers to Penal Code §49.04 and the other judgment 

refers to Penal Code §49.09(a). For example, the "Title and Section" portion of the judgment 

reflecting one of the DWI convictions in federal court refers to "18 USC 13 & Texas Penal 

Code § 49.04." Claiming that the two prior DWI convictions in federal court could not be used 

for enhancement purposes in the state DWI prosecution, appellant filed a motion to quash the 

enhancement paragraph. The trial court denied appellant's motion to quash, and appellant 

appealed after he pleaded guilty and was assessed a probated sentence. The Court of Appeals 

decided that the two prior DWI convictions in federal court could be used for enhancement 

purposes in the state DWI prosecution under §49.09(b)(2) and §49.09(c)(1)(A). 

Holding: We agree with Appellant that his two prior DWI convictions in federal court under 

the federal Assimilative Crimes Act are convictions under federal law. But, the ACA's language 

and its basic purpose demonstrate that these are also convictions for an "offense under Section 

49.04" as required by §49.09(c)(1)(A) and as stated in the judgments in the federal DWI 

prosecutions under the ACA. Appellant's analogy to Texas' criminal attempt statute in Penal 

Code §15.01 fails because a criminal attempt to commit a substantive offense cannot by its very 

nature assimilate the entire substantive offense in the same way that the ACA assimilates the 

entire substantive state crime. We hold that federal ACA convictions assimilating a state-law 

offense contained in §49.04 may be used for enhancement purposes under §49.09(b)(2). This 

is consistent with the plain language of §49.09(b)(2) and its obvious legislative intent to punish 

those who commit multiple DWIs more harshly than those who do not. 


Case Name: Anthony Dixon v. The State of Texas 

! OFFENSE: Aggravated Sexual Assault of a Child 

! COUNTY: Brazoria 

! COURT OF APPEALS: Houston [14th] 2005 


! C/A RESULT: Conviction Reversed 






! TRIAL COURT: 23rd D/C; Hon. Randall Hufstetler 

! LAWYERS: Josepha Varela (Defense); David Bosserman (State) 

G&S 320 Court's Charge (Election By Prosecution - Appropriate Harm Analysis): The victim was 

appellant's niece, who was six years old at the time the abuse occurred and seven years old at 

the time of trial. During the year 2002, while the child was six, appellant lived with the child, 

her mother, and the mother's boyfriend. Appellant slept on the couch in the child's bedroom. 

In response to the prosecutor's inquiries, the child related a sequence of events that occurred 

every time appellant sexually assaulted her. Each time, appellant would undress himself and 

remove the child's underwear. He would touch her "private parts" with his hand and then touch 

her "private parts" with his "private parts." The child's testimony indicated that, by "private 

parts," she meant genitalia. According to the victim, this sequence of events occurred one 

hundred times. Except for one time during the day, this activity always occurred at night. The 

child could not remember the last time she was sexually assaulted, and she gave no further 

details regarding this activity. At the end of the State's case-in-chief and at the close of the 

evidence, defense counsel requested that the State be required to elect which instance of sexual 

assault it would rely upon for conviction. Defense counsel also requested that the jury charge 

be modified to reflect an election for one offense. These requests were denied. In denying 

appellant's request at the end of the State's case-in-chief, the trial court commented: "I will deny 

your motion because I have no earthly idea what to do with the election in the indictment." 

The Court of Appeals held that the trial court erred in failing to grant appellant's election 

request. Deciding that the error was constitutional in nature, the court further found that it was 

not harmless beyond a reasonable doubt (see G&S, Vol. 13, No. 29; 08/01/05). 

Concurring / Dissenting Opinions: (Standard of Review) Recently, on discretionary review from 

the court of appeals's decision in Phillips v. State, 193 S.W.3d 904 (Tex.Cr.App. 2006)(see G&S, 

Vol. 14, No. 22; 06/12/06), this Court has held that election error, at least insofar as it 

implicates notice and jury unanimity, is analyzed under the harm standard applicable to 

constitutional errors. This Court also approved as accurate the four purposes cited therein as 

underlying the election rule. We turn, then, to those purposes in addressing the question of 

harm. (Harm Analysis ) (1) The first purpose may be easily dispensed with: Appellant was not 

entitled to be protected from the admission of evidence of extraneous sexual offenses committed 

by him against the child. Article 38.37 permits the admission of evidence of these offenses to 

show the previous and subsequent relationship between appellant and the child victim. * * * 


(2) With regard to the second purpose, we see no risk that the jury found appellant guilty of 

an offense that was not proven to its satisfaction beyond a reasonable doubt. The "multiple 

offenses" were all recounted by the same source - the child. * * * (3) We likewise perceive no 

risk that the present case led to a non-unanimous verdict. The only distinguishing detail among 

the one hundred offenses is that one occurred during the day, while all the others happened at 

night. * * * (4) Finally, we reject the notion that appellant was deprived of adequate notice. As 

we have already discussed, the only distinction made between the incidents is that one occurred 

during the day. Further, there is no real doubt regarding which option the State would pick if 

forced to choose whether the offense relied upon was committed during the day or at night: it 

would pick the night, a characteristic shared by ninety-nine percent of the offenses about which 

the victim testified. And as previously discussed, there is no remotely significant risk, under the 

facts of this case, that a jury would convict appellant without believing that he committed an 

offense at night. We are confident beyond a reasonable doubt that the error in failing to 

require an election did not contribute to appellant's conviction or punishment. 

Concurring / Dissenting Opinions: Stating that “It is a truism that bad facts make bad law, The 

facts in this case are bad. They are also depressingly familiar . . .,” Judge Cochran concurred. 

She suggested that the Legislature should “address this conundrum and consider enacting a new 

penal statute that focuses upon a continuing course of conduct crime-a sexually abusive 

relationship that is marked by a pattern or course of conduct of various sexual acts. Such a 

statute would have advantages and disadvantages for both the prosecution and defense, but it 

might well assist in preserving our bedrock criminal-procedure principles of double jeopardy, 

jury unanimity, due-process notice, grand-jury indictments, and election law.” Judge Price 

dissented, arguing that, “with one hundred undifferentiated incidents to consider as evidence 

of one charged offense, there is a distinct danger that the jurors will not only fail to reach a 

unanimous verdict in convicting the defendant, but that they could convict on as many as 

twelve different incidents. Whatever the jeopardy implications, clearly such a verdict would 

meet neither the unanimous jury guarantee of the Texas Constitution, nor the "substantial 

majority" requirement of the Sixth Amendment. Error of this kind vitiates the entire jury 

verdict, calling into question whether the appellant received the jury trial guaranteed by the 

Sixth Amendment at all. Accordingly, I do not agree that the trial court's error in failing to 

require an election when the State sought to prove a single count with evidence of one hundred, 

unelected, undifferentiated incidents is harmless error. 


Case Name: Ex parte Alan Lynn Richardson 

! OFFENSE: Post-Conviction Habeas Corpus 

! COUNTY: Navarro 

! CCA. CASE No. AP-74,824 


! DISPOSITION: Relief Denied 



! TRIAL COURT: 13th D/C; Hon. Kenneth Douglas 

! LAWYERS: Kelly Gatewood (Defense); 

G&S 560 Post-Conviction Habeas Corpus / Cognizibility: Applicant was originally sentenced to 

confinement for eight years, but imposition of sentence was suspended and he was placed on 

probation. The State later filed a motion to revoke probation. Pursuant to an agreement 

between the parties, applicant pled true and was sentenced to seven years in prison. The judge 

presiding over the revocation proceedings was the prosecutor in the original prosecution. In his 

habeas corpus application, Applicant asks the Court to overturn his probation revocation 

because the judge who presided over the revocation proceeding was the prosecutor in the 

original prosecution. 

Holding: Applicant was aware at trial that the trial judge was subject to disqualification, but he 

instructed counsel to proceed with the plea anyway. The issue could have been raised at trial 

by objection or motion to recuse. If rejected there, it could have been raised on direct appeal. 

In line with our opinions in Ex parte Townsend, 137 S.W.3d 79 (Tex.Cr.App. 2004)(see G&S, 

Vol. 12, No. 24; June 21, 2004), and Ex parte Pena, 71 S.W.3d 336 (Tex.Cr.App. 2002)(see 

G&S, Vol. 10, No. 11; 03/18/02), we find that applicant's claim may not now be considered on 

habeas corpus. To the extent Ex parte Miller, 696 S.W.2d 908 (Tex.Cr.App. 1985), and cases 

following it held to the contrary, they are overruled. 

Case Name: Ex parte Brian Keith Owens TIBA’s Case of the Week 


! COUNTY: Tyler 



! DISPOSITION: Relief Granted 

! OPINION BY: Price, J. VOTE: 3-4-2 


! TRIAL COURT: 1A D/C; Hon. Monte Lawlis 

! LAWYERS: Russell Wright (Defense); 

G&S 124 Right to Counsel / Ineffective Assistance Claims (Out-of-Time PDR): After Applicant 

was convicted of aggravated sexual assault of a child and appealed, his appellate counsel filed 

a brief pursuant to Anders v. California, but never notified Applicant that he had the right to 

file a pro se petition for discretionary review. After he filed this application for post-conviction 

habeas corpus, the trial court recommended denying relief. The Court filed and set the 


application to determine whether its holding in Ex parte Wilson, 956 S.W.2d 25 (Tex.Cr.App. 

1997)(see G&S, Vol. 5, No. 44; 11/10/97), requires appellate counsel to inform his client of the 

client’s right to file a pro se petition for discretionary review in this Court when appellate 

counsel filed an Anders brief in the Court of Appeals. 

Holding: We fail to perceive any principled reason that our holding in Wilson should not apply 

equally to an appellant whose attorney files an Anders brief. As our opinion in Ex parte Crow, 

180 S.W.3d 135 (Tex.Cr.App. 2002)(see G&S, Vol. 13, No. 45; 11/28/05), recognized, the harm 

that occurs from the failure to timely inform the appellant of his right to file a petition for 

discretionary review is that he is deprived of the benefit of an entire proceeding, or at least of 

the opportunity to exercise his unfettered right to “attempt to persuade us to exercise our 

discretion.” The appellant whose attorney files an Anders brief and then fails to alert his client 

to his client’s right to follow up with a petition for discretionary review is no less deprived of 

that opportunity than is the appellant whose lawyer has filed an ordinary appellate brief. 

Concurring / Dissenting Opinions: Judge Womack delivered a concurring opinion in which he 

was joined by Judge Cochran. He argued that the “Wilson / Axel requirement” is based on a 

fallacy. He claimed that Court's reasoning in Ex parte Axel, 757 S.W.2d 369 (Tex.Cr.App. 

1988), “when it gave trial counsel, and only trial counsel, the duty to advise the defendant how 

to perfect an appeal without a lawyer” . . . “was clearly wrong. Additionally, he argued that the 

“principled reason that the holding in Wilson should not apply when counsel files an Anders 

brief is that such an attorney must sever the attorney-client relationship. He concluded by 

noting that “ Not a decision day passes without this court's granting habeas corpus relief, in the 

form of out-of-time appeals or petitions for discretionary review, to convicted defendants whose 

counsel failed to carry out the responsibilities that the Court gave them in Axel and Wilson. We 

should, and we can, have a better method of informing defendants of their rights and duties in 

the appellate process.” Judge Hervey addressed the issue raised by the dissenting opinion 

(below) that the application should be denied because the supplemental writ application is not 

sworn. She argues that, under Ex parte Golden, 991 S.W.2d 859 (Tex.Cr.App. 1999)(see G&S, 

Vol. 7, No. 19; 05/17/99), “this Court has discretion to address the merits of an unsworn 

petition,” and that addressing the merits of Applicant's Wilson claim is "an appropriate exercise 

of the habeas corpus power" . . . “primarily because the State does not rely on Applicant's 

supplement being unsworn as a basis to deny relief on his Wilson claim. Presiding Judge Keller 

dissented, arguing that, because the lawyer appointed to represent Applicant after the case was 

filed and set filed a supplemental application that “was signed only by the attorney and was not 

verified” . . . “Nothing in the habeas record substantiates the unsworn allegation contained in 

the supplement. Applicant could have made a sworn allegation that he would have filed a PDR 

upon being informed of his right to do so if, in fact, that allegation were true. He did not, and 

thus, he is not entitled to relief.” 

Sidebars: (David A. Schulman) For years I have argued (and written) that an attorney who files 

an Anders brief is not only not required to withdraw, but is required by Axel to stay on an 

advise the client when necessary and required. Thus, I take issue with Judge Womack. Whether 

Axel is sound or not, it is and has been the law since shortly after the Appellate Rules were 

adopted. Unless and until the Legislature or the Courts rewrite the rules, Axel should be 

followed. However, although I agree with the premise of this opinion, given recent changes in 


the law pertaining to the effect of having been held to be ineffective, I think it grossly unfair to 

find this lawyer to have been ineffective based on the rule that is, for all intents and purposes 

announced for the first time in this opinion. Why not simply announce the rule, state that it 

will take effect immediately, and give this fellow relief because he didn’t do anything wrong and 

to deny him the ability to file an out-of-time PDR would be a violation of due process, as 

discussed in Ex parte Riley, No. AP-75,185, 06/07/06 (see G&S, Vol. 14, No. 22; 06/12/06)? 

Case Name: Ex parte Manuel Escarcega Florentino 


! COUNTY: El Paso 



! DISPOSITION: Relief Granted 

! OPINION BY: Per Curiam VOTE: 8-1-0 


! TRIAL COURT: 120th D/C; Hon. Robert Dinsmoor 

! LAWYERS: Applicant Pro Se (Defense); 

G&S 124 Right to Counsel / Ineffective Assistance Claims (Out-of-Time PDR): Applicant was 

convicted of aggravated assault (5 counts) and sentenced to 40 years' imprisonment. The Eighth 

Court of Appeals affirmed his conviction in an unpublished opinion. In this habeas corpus 

application, Applicant contends that his appellate counsel rendered ineffective assistance 

because counsel failed to timely advise him of his right to petition for discretionary review pro 

se. Appellate counsel filed an affidavit with the trial court. Counsel also filed his original 

notification letter sent to Applicant informing him his conviction was affirmed on direct appeal. 

That letter did not inform Applicant of his right to file a pro se petition for discretionary review. 

Counsel does not assert in his affidavit that he ever personally informed Applicant of his right 

to file a pro se petition for discretionary review. 

Holding: The trial court has entered findings of fact and conclusions of law that appellate 

counsel did not render deficient performance. We disagree. We conclude appellate counsel 

failed to timely notify applicant of his right to petition for discretionary review pro se. Ex parte 

Wilson, 956 S.W.2d 25 (Tex.Cr.App. 1997)(see G&S, Vol. 5, No. 44; 11/10/97). We find, 

therefore, that Applicant is entitled to the opportunity to file an out-of-time petition for 

discretionary review. 


Courts of Appeals 

Fifth Court of Appeals (Dallas) 

Case Name: Scott Howard Hunter v. The State of Texas 

! OFFENSE: DWI 

! COUNTY: Dallas 

! C/A CASE No. 05-05-0728-CR 


! DISPOSITION: Conviction Affirmed OPINION BY: Lagarde, J. (Ret.) 

! OPINION: 5thcoa.courts.state.tx.us/cgi-bin/as_web.exe?c05_07.ask+D+62217 

! TRIAL COURT: CCrC 2; Hon. Neil Pask 

! LAWYERS: Martin LeNoir, Gary Udashen (Defense); Kathy Drew (State) 

G&S 31.025 Search & Seizure / Authority of Arresting Officer: Appellant was stopped by a 

DART (mass transit) officer after the officer observed Appellant run several red lights which the 

officer testified were on DART bus routes. During the hearing on the motion to suppress, 

defense counsel established that Appellant was never on property that was owned, rented, 

leased, controlled, or operated by DART, and argued that the DART officer did not have the 

lawful authority to detain Appellant for a traffic violation not committed on DART property 

in accordance with Transportation Code §§ 451.001 and 451.108. In response, the State cited 

§452.110 as authority that if an officer is a certified peace officer, has taken the sworn oath of 

police officers, and is within the jurisdiction of the commissioning transit authority system, such 

officer has county-wide jurisdiction. 

Holding: Based on Transportation Code §452.110(c), a certified regional transit peace officer 

in the actual course and scope of the officer's employment has all the rights, privileges, 

obligations, and duties of any other peace officer in Texas. This includes the authority to detain 

and arrest an offender without a warrant for any offense committed in his presence or within 

his view. Because the DART officer had authority to stop and arrest Appellant, the trial court 

did not err in denying the motion to suppress. 

Tenth Court of Appeals (Waco) 

Case Name: Douglas Dwane Shirley v. The State of Texas 

! OFFENSE: Not Listed 

! COUNTY: Jack 

! C/A CASE No. 10-05-0027-CR 


! DISPOSITION: Appeal Dismissed OPINION BY: Per Curiam 

! OPINION: 10thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=7728 

! TRIAL COURT: 271st D/C; Hon. John Fostel 

! LAWYERS: Jimmy Browning (Defense); Jana Jones (State) 

Ed Note: Appellant filed a motion to dismiss his appeal and the court complied. In a dissenting 

opinion, Chief Justice Gray states that the motion to dismiss the appeal is premised on the 

assertion that "Appellant is now released from custody and all issues are moot," and, as this is 


a legally insupportable argument, he would deny the motion as presented and order the appeal 

to proceed. 

Sidebars: (David A. Schulman) Ah yezzzz, the domestic tranquility in the intermediate 

appellate court on the Brazos continues. A dissent to the granting of requested motion to 

dismiss appeal??? Puh-leeeeeze. 

Case Name: Martin Saucedo Castor v. The State of Texas 

! OFFENSE: Not Listed 

! COUNTY: McLennan 

! C/A CASE No. 10-06-0124-CR 


! DISPOSITION: Appeal Dismissed OPINION BY: Gray, CJ. 


! TRIAL COURT: 54th D/C; Hon. George Allen 

! LAWYERS: Appellant Pro Se (Defense); John Segrest, Christy Barber (State) 

G&S 519 Appellate Procedure / Dismissal of Appeal: Appellant filed a notice of appeal acting as 

his own attorney. Still acting as his own attorney, Appellant now filed a "Motion to Dismiss 

Appeal." In the motion, Appellant indicates that the notice of appeal was filed in error and that 

the issue he is seeking to appeal is "jail time credit 'Nunc Pro Tunc' appeal. . . ." 

Holding: We do not have appellate jurisdiction of the denial of a motion for judgment nunc 

pro tunc. The appropriate remedy to obtain review of the denial of a nunc pro tunc motion is 

by a petition for writ of mandamus. 

Eleventh Court of Appeals (Eastland) 

Case Name: David Edward Myers v. The State of Texas 

! OFFENSE: Possession of Controlled Substance (Cocaine 4-200 gr) 


! C/A CASE No. 11-05-0022-CR 


! DISPOSITION: Conviction Affirmed OPINION BY: McCall, J. 


! TRIAL COURT: 230th D/C; Hon. Belinda Hill 

! LAWYERS: Brian Wice (Defense); Eric Kugler (State) 

G&S 31.024 Search & Seizure / Warrantless Searches / Probable Cause: Appellant entered a plea 

of guilty to the felony offense of possession of cocaine weighing more than four grams but less 

than two hundred grams and was placed on deferred adjudication for six years. Appellant 

argues that the trial court erred in denying his motion to suppress because the State failed to 

demonstrate that probable cause existed for his warrantless arrest based either on his expired 

inspection sticker or on a confidential informant's tip that Appellant was trafficking narcotics. 

The informant was asked to set up a drug purchase with Appellant at a specific location. When 

Appellant arrived at that location, a police officer stopped him for having an expired inspection 

sticker at the request of the narcotics officer who set up the drug purchase. While being 


detained for the expired sticker, Appellant was questioned by the narcotics officer. Appellant 

gave written consent for the search of his vehicle and his home. In Appellant's first point, he 

argues that the police officer did not have probable cause to arrest Appellant because the officer 

was not in a position to observe the inspection sticker and that the inspection sticker had not 

in fact expired. Appellant offered testimony showing that an inspection sticker had been issued 

for his vehicle that was valid on the day of arrest. In his second point, Appellant argues that 

the State failed to demonstrate that probable cause existed for his warrantless arrest based on 

a confidential informant's tip. 

Holding: Any peace officer may arrest without a warrant a person found committing a violation 

of the Texas traffic laws because a violation of the traffic laws constitutes probable cause to 

arrest the violator. Appellant's arguments concerning whether the police officer was in a 

position to observe the inspection sticker as Appellant drove past and whether the inspection 

sticker had expired turn on the credibility and statements of the witnesses. Based on the 

officer's testimony, the trial court may have decided that Appellant was driving with an expired 

inspection sticker despite the testimony an inspection sticker had been issued for the car 

because Appellant's witness did not see the new inspection sticker placed on Appellant's car. 

The trial court could have reasonably concluded that the arrest of Appellant for the expired 

inspection sticker was a legal arrest. Appellant's argument, under his second point, is again 

based on his assumption that the police officer's warrantless arrest occurred before Appellant 

gave his consent to search his car. Based on the record, the trial court may have concluded that 

Appellant's argument under both points of error was based on a false premise because either 

there was no arrest by the police officer or his arrest of Appellant occurred after Appellant's 

written consent to search was given. The trial court could reasonably have viewed the stop of 

Appellant as an investigation detention, his consent to search as having been freely given, and 

the warrantless arrest as having been based on the cocaine found during the search. Looking 

at the totality of the circumstances, we hold that the record supports a finding by clear and 

convincing evidence that Appellant's consent to search was free and voluntary regardless of 

when the police officer's arrest occurred. The illegality, if any, of the police officer's arrest rests 

alone upon the violation of a traffic statute. We hold that Appellant's written consent to search 

his car was not an exploitation of the illegal arrest, if any, by the officer. The trial court did not 

abuse its discretion in denying Appellant's motion. 

Sidebars: (Lee Haidusek) The whole time I read this overly lengthy opinion, I kept 

remembering that line from Hamlet: "The lady doth protest too much, methinks." This court 

is trying awfully hard to justify this man's arrest for an expired inspection sticker. Do you think 

something may be rotten in the state of Denmark, or Texas rather? After all, the ends should 

not justify the means. 


Twelfth Court of Appeals (Tyler) 

Case Name: Raul Tamez v. The State of Texas 

! OFFENSE: Murder 

! COUNTY: Anderson 

! C/A CASE No. 12-05-0142-CR 


! DISPOSITION: Conviction Affirmed OPINION BY: Hoyle, J. 


! TRIAL COURT: 3rd D/C; Hon. Deborah Evans 

! LAWYERS: Jeffrey Herrington (Defense); Melinda Mayo (State) 

Ed Note: (Background Facts) Appellant and the deceased were both inmates at the Coffield 

Unit of the Texas Department of Criminal Justice. Appellant had been convicted of burglary 

and, once imprisoned, had been convicted of possession of a deadly weapon within a penal 

facility. The deceased was serving a sentence for murder. Both men were housed in single 

occupancy cells in the maximum security portion of the prison. After the recreation period, 

Appellant was escorted to the deceased's cell by mistake. When another guard escorted the 

deceased to his cell, Appellant attacked him with a fan motor wrapped in a sock and fractured 

his skull in several places. The deceased was taken to a hospital in Palestine then transferred 

to another hospital in Tyler where he died a few days later. The medical examiner who 

conducted the autopsy concluded that he died of complications from blunt trauma to the head. 

Appellant presented testimony of an expert witness who concluded that he died as a result of 

the hospital's attempt to intubate him, which was unnecessary and negligently performed. 

Appellant's expert testified that the intubation caused the aspiration of the deceased's stomach 

contents, inducing a chemical pneumonia which caused his death. The jury found Appellant 

guilty of murder and assessed punishment at life imprisonment. 

G&S 233 Jury Selection / Challenges: In his first issue, Appellant complains that the trial court 

improperly excused jurors for cause on its own motion. 

Holding: As Appellant points out, trial courts may not make challenges for cause. However, 

this type of complaint must be preserved before it may be considered on appeal. Over what 

took fifteen pages to record, the attorneys and the trial court worked together to determine who 

should be struck or dismissed. While the court did state that is was striking jurors for cause, 

it was merely working with two experienced attorneys to shortcut the process of excusing and 

removing jurors. All of Appellant's counsel's requests to challenge jurors were granted, none of 

the challenges to jurors were opposed, and Appellant's counsel affirmatively failed to object to 

the assembled petit jury. This complaint is not preserved for our consideration. 

G&S 273 Cross-Examination & Impeachment / Impeachment of the Defendant: In his second 

issue, Appellant complains that the trial court erred when it allowed the State to impeach 

Appellant's testimony with evidence that he had been previously convicted of the offense of 

possession of a deadly weapon in a penal institution. 


Holding: Rule of Evidence 609 provides that a witness may be impeached by evidence that 

he had previously been convicted of a felony if the trial court determines that the probative 

value outweighs its prejudicial effect. This determination is reviewed for an abuse of discretion, 

and in Theus v. State, 845 S.W.2d 874 (1992), the Court of Criminal Appeals articulated a five 

factor analysis to evaluate the admission of a prior felony. The fourth and fifth factors, the 

importance of Appellant's testimony and the importance of his credibility, weigh in favor of 

admission. Essentially the balance in this issue was between the possibility of an improper 

inference being drawn from Appellant's previous felony conviction and the importance of his 

credibility. Because the defense relied on facts and statements of intent that were not addressed 

by other evidence, Appellant's testimony and his credibility were very important. Therefore, 

the trial court's decision to allow Appellant to be impeached with evidence of his prior felony 

conviction is not outside a zone of reasonable disagreement. 

G&S 66 Challenges to Prosecutions / Discovery: In his third issue, Appellant complains that the 

State failed to give appropriate notice of anticipated expert witnesses and that the trial court 

should have excluded the testimony of four of the State's witnesses. 

Holding: A portion of this complaint is waived because Appellant did not object to the 

testimony when it was offered. Appellant raised the issue prior to trial, but the trial court 

indicated that it would not rule until the issue was before it. Appellant did not object to the 

testimony of three witnesses, or to the trial court's decision to defer a ruling until the evidence 

was offered. Appellant did object to the expert testimony of an assistant warden. Appellant 

asserts that Art. 39.14(b), C.Cr.P., requires the State to disclose, prior to trial, the name and 

address of any expert witness it intends to call. Rather, Art. 39.14(b) allows the trial court to 

require the State to list their expert witnesses upon request. The record does not show that the 

court ever ordered disclosure, and Appellant does not direct us to any place in the record where 

such an order was made. Even if the court had ordered the State to disclose its expert witnesses, 

we perceive no reversible error. First, Appellant sought the wrong remedy. The appropriate 

remedy for a discovery violation is to request a continuance. Second, there was notice that the 

assistant warden was an expert witness. Appellant complains that because the State designated 

every witness as a potential expert witness, he may have had actual notice but not realistic 

notice because of the number of witnesses. Even if the assistant warden had not been disclosed 

at all, we would review the decision to allow him to testify in terms of whether the prosecutor 

acted in bad faith and whether Appellant could have reasonably anticipated the testimony. The 

theory that the fan motor in the sock was a deadly weapon was not a novel argument not was 

it unexpected. This testimony could have reasonably been anticipated, and the State did not 

act in bad faith when it listed all of its witnesses as possible expert witnesses. 

G&S 301 Witnesses / Experts / Qualifications: In his seventh issue, Appellant complains that the 

trial court erred when it permitted the assistant warden to testify that the fan motor wrapped 

in a sock was a deadly weapon. 

Holding: The assistant warden was qualified as an expert by virtue of his knowledge and 

experience in the prison system observing the use of improvised weapons in prison. His 

testimony was helpful to the jury as they were called upon to decide if the fan motor was a 


deadly weapon. The trial court did not abuse its discretion when it allowed the assistant 

warden to offer an opinion as to whether the fan motor was a deadly weapon. 

G&S 329 Court’s Charge / Punishment Charge / Deadly Weapons (Unanimity): In his eighth 

issue, Appellant complains that he was deprived of his right to a unanimous verdict because the 

jury charge defined a deadly weapon in the disjunctive and the jury may have reached its verdict 

without unanimous agreement as to which definition of deadly weapon applied. 

Holding: The jury was instructed that a deadly weapon is anything manifestly designed, made, 

or adapted for the purpose of inflicting death or serious bodily injury; or anything that in the 

manner of its use or intended use is capable of causing death or serious bodily injury. The jury 

was not told that they had to agree on at least one of the parts of the definition of a deadly 

weapon. This is not a straightforward Ngo error, which is present when the jury is permitted 

to find the defendant guilty without agreeing on the same essential elements of the offense. 

Ngo v. State, 175 S.W.3d 738 (Tex.Cr.App. 2005)(see G&S, Vol. 13, No. 11; 03/21/05). The 

deadly weapon allegation is not an essential element of the offense of murder. As was done in 

this case, a deadly weapon finding can be made when the jury finds a defendant guilty as 

charged and the indictment alleges the use of a deadly weapon. Said another way, an individual 

juror could not have found Appellant guilty -- finding that he struck the deceased with the 

motor with intent to cause serious bodily injury -- without finding that he intended use of the 

motor was to cause serious bodily injury. The hypothetical problem of a nonunanimous 

decision on the issue of the deadly weapon finding is simply not present in this case. 

G&S 536 Sufficiency of the Evidence: In his fourth and fifth issues, Appellant complains that 

the evidence was insufficient to show that he cause the deceased's death. Appellant argues that 

he is not criminally responsible for the death because there was a concurrent cause, the alleged 

negligence of the hospital staff, that caused the death. Texas law provides that a person is not 

responsible for the result of an action if a concurrent cause was clearly sufficient to produce the 

result, and the actor's conduct was clearly insufficient to cause the result. 

Holding: The expert testimony offered by Appellant, if believed, suggested that the intubation 

was unnecessary, that the intubation was negligently performed, and that death would not have 

occurred without the subsequent chemical pneumonia. The medical examiner and treating 

emergency department physician testified differently. The jury's conclusion that Appellant had 

criminal responsibility for the deceased's death is a reasonable conclusion between contradicting 

testimony offered by expert witnesses. Evaluating the evidence in a neutral light, we hold that 

the evidence is not too weak to support the verdict, nor is it outweighed by contrary evidence. 

G&S 276 Extraneous Offenses / (Evidence of Gang Affiliation): In his sixth and ninth issues, 

Appellant complains that the trial court erred when it allowed evidence that Appellant was a 

member of a gang during the guilt/innocence phase of the trial. Specifically, Appellant 

complains that his written statement that he was a member of a prison gang was not relevant 

and that he was not provided timely notice of the intent to offer the evidence. Appellant also 

complains that the trial court erred when it permitted an employee of the prison system to 

testify that Appellant had identified himself as a member of the Latin Kings prison gang 


ecause the statement was not recorded and Appellant was subject to punishment by prison 

officials if he did not answer their questions. 

Holding: These complaints were not preserved. Generally, a complaint about the introduction 

of evidence is not preserved for our review unless there has been an objection at the time the 

evidence was admitted. It appears that the trial court, in an abundance of caution, was 

prepared to order the written statement to be redacted. Appellant declined to request that the 

written statement be redacted and may not take the contrary position on appeal. Appellant's 

counsel at trial objected to a perceived lack of notice and the perceived improper use of 

character evidence prior to the testimony of the prison employee regarding Appellant's gang 

affiliation. The present complaint, that the statement was no recorded and was taken under 

legal compunction, is waived for failure to raise it in the trial court. 

Defendant’s Name: Frank Cooks, Jr. 

Information Section 

(PDRs Granted) 

! PDR(S) GRANTED: Appellant’s 


! GRANTED ON: September 13, 2006 

! OFFENSE: Aggravated Assault w/ a Deadly Weapon 

! CCA CASE NO: PD-0010-06 

! COURT OF APPEALS CITATION / CASE NO: No Citation Yet (see G&S, Vol. 13, No. 47; 

12/12/05) 

ISSUE GRANTED: When Appointed Appellate Counsel “Asserts” in a “Motion to Abate 

Appeal to File Out-of-time Motion for New Trial” That Whatever Time Remained of the 

Statutory 30 Days Following Her Appointment, Was Insufficient for Appellant to “Enjoy the 

Benefit” of Her Representation at That Critical Stage of Trial, the Court of Appeals Should 

Accept Counsel’s Assertion as Rebutting the Usual Presumption That When No Motion for 

New Trial Was Filed, it Was Because an Appellant, with the Benefit of Counsel’s 

Representation, Had Considered and Rejected That Option. 

Defendant’s Name: Joshua Thompson 


! COUNTY: Travis 


! OFFENSE: Aggravated Assault 



12/19/05) 

ISSUE GRANTED: Can the Doctrine of "Transferred Intent" in Section 6.04(b)(1) of the 

Texas Penal Code Authorize a Conviction for a First-degree Felony Merely upon Proof That a 

Second-degree Felony Was Committed? 


Defendant’s Name: Michael Leroy Cameron 


! COUNTY: Montgomery 


! OFFENSE: Deliver y of Controlled Substance 


! COURT OF APPEALS CITATION / CASE NO: Unpublished 

ISSUE GRANTED: 

1. Did the Court of Appeals Misapply this Court's Holding in Reyes [Sic – Reyna] v. State, 168 

S.W.3d 173 (Tex.Crim.App. 2005), Where the Appellant Clearly Explained to the Trial Court 

the Reasons That the Proposed Testimony Should Be Admitted? 

2. Where a Trial Court, in Excluding Evidence from a Trial, Gives a Specific Legal Reason for 

its Exclusion, and the Proponent of the Evidence Explains Why He Believes That Such Reason 

Is Not Valid, Is the Proponent of the Evidence Then Required to Also Explain Why Other, 

Unmentioned Legal Objections Which Might Also Have Been Made to the Introduction of 

Such Evidence Are Also Not Valid? 

3. Where the Trial Court, in Excluding Evidence from a Trial, Explains as its Reason for 

Exclusion That the Attorney-client Privilege Specifically Applies, and That the Evidence May 

Not Be Admitted Without a Waiver of Such Privilege, Has Defense Counsel Adequately 

Explained His Legal Reasoning for Admission of Such Evidence If He Responds That He Does 

Not Believe That a Waiver Is Necessary? 

Defendant’s Name: Mircea Volosen 

! PDR(S) GRANTED: State’s 

! COUNTY: Tarrant 


! OFFENSE: Animal Cruelty 



02/27/06) 

ISSUE GRANTED: The Court of Appeals Erred in Reversing Appellant’s Cruelty to Animals 

Conviction on the Basis of Tex. Health & Safety Code § 822.033, Where Appellant Never 

Demonstrated at Trial That the Statute Had Been Adopted by Tarrant County Voters and 

Where the Statute, in Fact, Was Not Applicable to Appellant’s Case. 


Defendant’s Name: Carlos Valdez 




! OFFENSE: Robbery (2x) 



ISSUE GRANTED: Whether the El Paso Court of Appeals Erred in Allowing an Enhanced 

Punishment on a less than Unanimous Jury Verdict? 

Defendant’s Name: Nicholas George Klein 


! COUNTY: Denton 


! OFFENSE: Aggravated Sexual Assault 



04/17/06) 


1. Did the Court of Appeals Err in Holding That the Evidence Was Not Legally Sufficient to 

Prove That Klein Sexually Abused His Daughter on Four Separate Occasions as Alleged in the 

Indictment When the Evidence Showed That the Abuse Happened on Monday Nights When 

the Child's Mother Was at Dance Class and When the Mother Took the Dance Class for a 

Period Encompassing at Least Eight Weeks. 

2. Did the Court of Appeals Err by Finding That the Trial Court Abused its Discretion by 

Admitting the Testimony of a Cps Investigator and the Investigating Police Officer under 

Evidence Rule 801(e)(1)(B) When the Court of Appeals Itself Acknowledged That the 

Testimony of the Child Victim Was Internally Conflicting? 

Defendant’s Name: Olugbenga Fakeye 


! COUNTY: Tarrant 


! OFFENSE: Organized Criminal Activity 

! CCA CASE NO: 0514-06 


02/20/06) 


1. The Court of Appeals Erred in Relying on Allegations in a Motion in Limine as “Some 

Evidence” of Appellant’s Immigration Status. 


2. The Court of Appeals’ Opinion Reversing this Conviction Is Unwarranted Because under the 

Texas Rules of Appellate Procedure this Conviction Should Be Remanded for a Hearing Where 

a Full Record Can Be Made Regarding Appellant’s Immigration Status and If He Was Aware 

of the Collateral Consequences of Pleading Guilty. 

Defendant’s Name: Dearl Hardy 


! COUNTY: Chambers 


! OFFENSE: Perjury 



02/20/06) 

ISSUE GRANTED: The Fourteenth Court of Appeals Erred by Reversing and Rendering 

Appellee’s Sentence Based on a Nearly Fifty-year-old Case That Has Been Cited by Only One 

Intermediate Texas Appellate Court and Which Conflicts with Other Intermediate Texas 

Appellate Court Decisions. 

Defendant’s Name: Willis Deshaun Reed 




! OFFENSE: Aggravated Robbery 

! CCA CASE NO: PD-0590-06 and PD-0591-06 


ISSUE GRANTED: Whether the Court of Appeals Erred by Resolving the Harm Analysis in 

Reed’s Favor Solely Because Certain Exhibits Are Missing from the Record Without 

Determining Whether the Missing Exhibits Were Necessary for Resolution of Reed’s Appeal. 

Defendant’s Name: Alfredo Pruitt 


! COUNTY: Caldwell 


! OFFENSE: Aggravated Sexual Assault 



02/13/06) 


1. What Constitutes an Adequate Election of Offenses Based on the Court's Charge and Jury 

Argument in Light of Tex. Code Crim. Proc. Art. 38.37? 


2. Does an Acquittal for Genital Penetration Necessarily Bar a Subsequent Prosecution for 

Genital-to-Genital Contact from the Same or a Different Transaction? 

Defendant’s Name: Wilbert Teal 


! COUNTY: Angelina 


! OFFENSE: Hindering Apprehension 



03/20/06) 

ISSUE GRANTED: The Court of Appeals Erred in Holding That the Indictment Presented in 

this Case Was Insufficient to Vest the District Court with Subject-matter Jurisdiction. 

Defendant’s Name: Gregory Lee Villanueva 


! COUNTY: Burleson 


! OFFENSE: Injury to a Child (2x) 

! CCA CASE NO: PD-0718-06 and PD-0719-06 


04/03/06; and Vol. 14, No. 23, 06/19/06). 

ISSUE GRANTED: Whether the Court of Appeals Erred When it Held That Convictions for 

Injury to a Child by Both an Act and an Omission, under Tex. Penal Code § 22.04, Arising out 

of the Same Criminal Transaction, Did Not Violate Double Jeopardy Prohibitions Against 

Multiple Punishments for the Same Offense. 

Defendant’s Name: Peter David Winegarner 




! OFFENSE: Assault Involving Family Violence 



04/03/06) 

ISSUE GRANTED: Whether the Court of Appeals Applied the Correct Standard of Review 

When it Reversed the Trial Court's Exclusion of Evidence Based Solely upon an Opinion of this 

Court, Decided after the Trial of this Case, Dealing with the Admission of Evidence? 


Defendant’s Name: John Dominick Colyandro, James Walter Ellis, and Thomas Dale Delay 


! COUNTY: Travis 


! OFFENSE: Conspiracy to Make Illegal Contribution 

! CCA CASE NO: PD-0826-06 to PD-0833-06 

! COURT OF APPEALS CITATION / CASE NO: No Citation Yet (see Delay - G&S, Vol. 14, 

No. 16; 05/01/06)(Colyandro and Ellis were Unpublished) 

ISSUE GRANTED: The Court of Appeals Erred in Holding That, Prior to September 1, 2003, 

the Criminal Conspiracy Provisions of Section 15.02 of the Texas Penal Code Did Not Apply 

to the Felony Offense of Making an Illegal Contribution under the Texas Election Code. 

Defendant’s Name: Lawrence Wendell Few 




! OFFENSE: Solicitation to Commit Capital Murder 




1. Whether Appellant’s Notice of Appeal in this Cause Was Sufficient in Law to Invoke the 

Jurisdiction of the Court of Appeals. 

2. Whether it Was Appropriate for the Court of Appeals to Dismiss Appellant’s Appeal 

Without First Giving Him a Reasonable Opportunity to Correct Defects in His Notice of 

Appeal. 

Defendant’s Name: Mark Wayne Lomax 




! OFFENSE: Felony Murder 



ISSUE GRANTED: Can a Felony Murder Conviction Be Based on an Underlying Felony That 

Expressly Requires No Mens Rea, Despite the Fact That in a Felony-murder Conviction, the 

Mens Rea for the Act of Murder Is Supplied by the Mens Rea of the Underlying Offense? 


Defendant’s Name: Elmer Ray Jordan, Jr. 


! COUNTY: Denton 


! OFFENSE: Possession of Controlled Substance w/ Intent to Deliver 



ISSUE GRANTED: Did the Court of Appeals Err in Refusing to Conduct a Harm Analysis in 

this Case Where the Evidence Supporting an Enhancement Allegation Was Found to Be 

Insufficient When this Court Has Previously Held That Only "Structural" Constitutional Errors 

Are Categorically Immune to Harmless Error Analysis? 

Defendant’s Name: Craig Hill Johnson 


! COUNTY: Gillespie 


! OFFENSE: DWI 



05/29/06) 

ISSUE GRANTED: Did the Court of Appeals Err in Construing the Amended Statute of Texas 

Transportation Code § 502.409(a) in a Manner Which Was Not in Favor of the Accused as 

Required by this Court in Thomas v. State, 919 S.W.2d 427, 430 (Tex. Crim. App. 1996)?

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