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On August 10th the 9th Court of Appeals released several opinions and other rulings, one of which was not a memorandum opinion. GIPSON v. TEXAS – Reversed and Remanded At issue in this case was the 252nd District Court’s revocation of the Appellant’s probation. The Appellant had plead “True” to one of three allegations that he violated the terms of condition of probation. For reasons that are unimportant to us, the other two allegations were not pursued at the revocation hearing. The Appellant pleaded “True” to not paying the court-assessed fees. The prosecution did not put on any evidence, and the trial court revoked Appellant’s community supervision, assessing a prison sentence of 8 years, solely on the pleadings. For those not well-versed in the Texas Code of Criminal Procedure, Article 42.12 is the (rather lengthy) portion of the code detailing the ins and outs of probation and deferred adjudication. The court in Beaumont cites the pertinent part, section 21(c), and goes through a bit of legislative history detailing a recent change. In brief, that section calls for trial courts hearing a revocation matter which has at issue only proof or the admission of non-payment of “compensation paid to appointed counsel, […]

The highest appellate court for criminal matters held that a warrantless search through a cell phone violated the 4th Amendment on the U.S. Constitution. The cell phone was in the property lockup of the Walker County Jail when an officer with the Huntsville Police Department accessed the contents of the phone without a warrant or permission from the owner. The phone’s owner was incarcerated for a matter totally unrelated to the officer’s investigation when prompted him to look through the phone’s contents. The Court, because it reasoned that “a cell phone is not like a pair of pants or a shoe,” held that the search was unconstitutional and upheld the trial court’s suppression of the evidence gathered in that search. The full text of the opinion is here: Texas v. Granville.

Johnny Louis Torres Jr. v. State of Texas – PDF of Opinion – Modified and Affirmed The court’s opinion here deals with an appeal of a conviction for possession of a less than one ounce of cocaine, a state jail felony which was enhanced to a second degree felony by prior state jail convictions. Mr. Torres pled guilty to the charge, and he was sentenced to twelve years confinement in TDC. Torres appealed his conviction on two grounds.Firstly that that the trial court did not order a substance abuse evaluation as required by statute. Secondly that he was given a sentence that was impermissibly long because the trial court did not make express oral or written findings on the enhancement paragraphs. The appellate court overruled Torres’s first point of error because Torres did not raise that particular issue at trial. Citing Alberto v. State, the court found that while a substance abuse evaluation is mandatory, a defendant must assert that right at trial or the claim is waived, and the claim may not be addressed on appeal. 100 S.W.3d 528, 529 (Tex. App.—Texarkana 2003, no pet.). Torres’s second issue, that his sentence was unlawfully enhanced, was also overruled by the […]

By now most are familiar with no-refusal weekends. Taking their cue from case law, law enforcement agencies and prosecutor’s offices have put in place procedures on certain high-risk weekends to ensure that as much evidence as possible is gathered against anyone suspected of DWI. The procedure is now common, but still usually limited to those weekends when the resources are in place and on-call to get the required blood warrant from a magistrate in order to draw blood from an arrestee who refuses to give a breath or blood sample. Now Harris County is expanding their program beyond special weekends, in fact, the program is expanded beyond weekends altogether. It is notable that the Houston Police Officer’s Union has mixed thoughts about the change in policy. While it, of course, supports the idea, it has misgivings as to the extent this policy shift will change how much time a given officer spends dealing solely with DWI. The police union is essentially saying that investigation into other kinds of crime is likely to suffer.

Harlon Ray Buckner, II v. The State of Texas – Link to Opinion – Affirmed DNA testing of old evidence has become almost routine, however, procedural issues can easily stand in the way of allowing a convicted person getting a new trial. Buckner v. State shows how careful an attorney must be to preserve rights of appeal when an inmate requests DNA testing after conviction. Harlon Ray Buckner was convicted by a jury of aggravated kidnapping and sexual assault and sentenced to 20 years in TDC in 1997. In 2008, Buckner made a motion for post-conviction DNA testing under Article 64.03. The state indicated that the Harris County Clerks Office was in possession of a few pieces of evidence that could be DNA tested including a rape kit and some microscope slides containing hairs. The Trial Court ordered the testing done. Based upon the results of the testing the Trial Court concluded that the DNA testing was not favorable to Buckner. Buckner did not appeal this 2008 motion. In 2009 the Trial Court appointed Tom Martin to represent Buckner in another motion for post-conviction DNA testing. Buckner claimed that a motion was filed in his brief, but the record has […]

Up until now, of all the crimes you hypothesized you could commit and get arrested for, we are certain one has never streamed into your mind. That thought is whether or not you could get arrested for Boating While Intoxicated as you paddle a canoe. Under the strictest interpretation of Texas Penal Code, Chapter 49, it looks like you can get arrested. Let’s assume you’ve had a very nice picnic downstream, and it’s time to head upriver. Somehow, during this picnic you became intoxicated, which means  you have lost the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or by having an alcohol concentration of 0.08 or more. No problem, you think, this canoe doesn’t have a motor, and you’re going to take a nice easy trip upriver, and nap it off under the old oak tree by the launch site. You have a life preserver on even. This seems like a perfectly reasonable thing to do. Well, here is some bad news, a canoe which is being paddled is […]