News and Insights

“On Sunday, he advised me that he had been in Russia” is not the same as “He advised me that he had been in Russia on Sunday.”

The Court of Criminal Appeals considered a similar ambiguity in an Affidavit for a search warrant in State v. McClain. The Affiant stated in the affidavit, “In the past 72 hours, a confidential informant advised” the defendant had been seen in possession of Meth. Without more, this purports to state that the informant provided the information in the past 72 hours and DOES NOT state when the informant actually observed the behavior – a critical piece of information, indeed.

The trial court found the affidavit deficient and suppressed the evidence that was seized during the search. The 7th District Court of Appeals (Amarillo) affirmed. The CCA now reversed the Court of Appeals, holding that the search warrant based on this affidavit was proper.

The CCA cautions trial courts not to view such affidavits in a “hypertechnical” manner.

Since the Fourth Amendment strongly prefers searches to be conducted pursuant to search warrant, the United States Supreme Court has provided incentives for law-enforcement officials to obtain warrants instead of conducting warrantless searches. One incentive is a less-strict standard for reviewing the propriety of a search conducted pursuant to a warrant. In this situation, courts must give great deference to the magistrate’s probable-cause determination.

The CCA, with the exception of Judge Johnson who dissented, held that the lower courts violated the prohibition on hypertechnical review of warrant affidavits when it strictly applied rules of grammar and syntax in its analysis. The CCA further held:

Reviewing courts should only be concerned with whether the magistrate’s determination in interpreting and drawing reasonable inferences from the affidavit was done in a commonsensical and realistic manner. And reviewing courts should defer to all reasonable inferences that the magistrate could have made.

Can the State prove Reckless Discharge of a Firearm by simply proving discharge of a firearm in the city limits?

The State charged Roman Rodriguez under section 42.12 of the Texas Penal Code for reckless discharge of a firearm inside city limits. The information alleged that the defendant

recklessly discharged a firearm by pulling the trigger on a firearm which contained ammunition and was operable.

Upholding the 4th District Court of Appeals (San Antonio), the CCA held that the charge was deficient because it failed to allege that the act was done recklessly. The CCA noted that,

The State’s information alleged that Mr. Rodriguez recklessly discharged a firearm inside [the city limits] “by pulling the trigger on an firearm which contained ammunition and was operable.” Well, of course he did. Everyone who discharges a firearm pulls the trigger, and every firearm that is discharged contains ammunition and is operable if it discharges.

The Court explained that, in essence, the State pled a tautology – “The defendant recklessly discharged a firearm because he discharged a firearm.” The Court further noted that there are many occasions where a person might discharge a firearm inside the city limits by pulling the trigger on an operable firearm containing ammunition, such as: “if a person shoots a robber or a rapist climbing into his bedroom window,” or “if he shoots a rattlesnake lying in the bushes.”

Accordingly, because the State only alleged “how” the defendant discharged the firearm and failed to alleged how he “recklessly” discharged the same, the information was deficient and should be set aside.

Judge Price concurred in the result and writes separately to express his opinion that the statute (section 42.12) is “hopelessly ambiguous” regarding the recklessness requirement.  Presiding Judge Keller joined in Judge Price’s concurrence. Judge Womack also concurs without opinion.

a question that commits a prospective juror to resolve or to refrain from resolving an issue a certain way after learning of a particular fact. Commitment questions are impermissible unless the law requires a commitment, and the law does not require a commitment on what facts a juror will consider during sentencing.

The CCA also cautions, however, that “a trial court abuses its discretion if it disallows a proper voir dire question.”

In Davis v. State, a case decided by the CCA last month, the defense counsel asked the venire panel the follow question:

Let’s talk about factors in [assessing] the sentence in a case of aggravated robbery with a deadly weapon, what factors do y’all think are important?

Despite counsel’s fine use of the word “y’all,” and without any objection to the question by the State, the trial judge interjected, saying, “that’s a commitment question. You can’t ask that question.” On appeal, the 14th District Court of Appeal (Houston) agreed.

The CCA now reverses, holding that

appellant’s counsel asked “what factors…are important” in sentencing. This did not ask the jurors how particular facts would influence their deliberations. This was an inquiry into the jurors’ general philosophies.

There you have it. Cases regarding commitment questions are always very fact dependant, but for now, we can add one more to the list. Counsel may properly ask: "What factors are important in assessing the sentence in a [name your offense] case."

Presiding Judge Keller penned the lone dissent.  She deems the question an improper commitment question.

Byrd v. State

In Byrd, the state charged appellant with theft of certain property from owner “Mike Morales.” At trial, however, the State did not prove, in any way whatsoever, that the property belonged to Mike Morales. The overwhelming proof showed that the property, in fact, belonged to Walmart. On appeal, appellant argued the the evidence was insufficient because the State did not prove that the property belonged to Mike Morales. The 4th Court disagreed, holding that the name of the owner was not required, as it was simply a variance of proof.

This week, the Texas Court of Criminal Appeals reversed the decision of the Court of Appeals. In a unanimous opinion written by Judge Cochran, the CCA held that:

Although the name of the owner is not a substantive element of theft, the State is required to prove, beyond a reasonable doubt, that the person (or entity) alleged in the indictment is the owner is the same person (or entity) – regardless of the name – as shown by the evidence.

The CCA explained that a conviction would still stand if an indictment alleged an incorrect name, such as Buddy Smith, when the proof at trial revealed that the victim’s name was, in fact, John Smith (Buddy was simply a nickname). In that instance, there would be sufficient evidence showing that the person alleged in the indictment is the same person from whom the property was stolen.

In this case:

Not only did the State fail to offer any evidence that "Mike Morales" - the person alleged in the theft indictment - has any ownership interest in or relationship to the property appellant shoplifted, but the jury, without any apparent concern the missing "Mile Morales," convicted her nevertheless.  According to the State, the "only explanation for this exceptional circumstance seems to be that it was so clear to all the parties involved - and possibly to the jury as well - that the real victim (both alleged and proven) was Wal-Mart that the discrepancy seemed not to matter."  An alternate, less generous explanation, is that everyone was asleep at the wheel.

As a rule for future Walmart theft cases (and all theft cases), the majority opinion states:

The parties, the court, and the jury must know the identity of the owner [of the stolen property] regardless of how the State names him.

It is worth noting that the CCA did not foreclose the option of the State reindicting the appellant for theft from “Walmart,” as jeopardy has not attached to that specific offense. But as far as theft from Mike Morales goes, the appellant stands acquitted.

The Texas Court of Criminal Appeals released an opinion this month in a case where a man entered a convenience store brandishing a rifle. When the man looked around, however, he noticed that there wasn’t anyone in the store. The store clerk was in the back office watching the man on the security camera. When the clerk saw the man enter the store, he locked the office and called 911. Unable to open the cash register, the "robber" stole the clerk’s wallet and some money that was behind the counter. The "robber" never saw anyone inside the store.  Then he left.

The man was later charged with and convicted of Aggravated Robbery under Texas Penal Code Section 29.02, which provides in relevant part:

a person commits [robbery] if, in the course committing theft…and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or harm.

Appellant argued that “because there was no evidence of interaction between him and [the victim], the evidence was legally insufficient to support a robbery conviction, and the conviction should be reformed to that of theft. Accordingly, the CCA was faced with a question of first impression in Texas:

Does the Offense of Aggravated Robbery Require Interaction Between the Accused and the Purported Victim?

Appellant contested that he could not intentionally or knowingly place a person in fear, if that person was unknown to him. A unanimous CCA disagreed, explaining that

'knowingly' does not refer to the defendant’s knowledge of the actual results of his actions, but knowledge of what results his actions are reasonably certain to cause. Using this definition, robbery-by-placing-in-fear does not require that a defendant know that he actually places someone in fear, or know whom he actually places in fear. Rather, it requires that the defendant is aware that his conduct is reasonably certain to place someone in fear, and that someone is actually placed in fear.

In this case, because Appellant brandished the rifle in the convenience store, the CCA held that his culpable mental state was not negated by the fact that the victim did not happen to be in his presence. In sum, the CCA answered the question presented in the negative.

The offense of Aggravated Robbery does NOT require interaction between the accused and the purported victim.

Read the full CCA opinion in Howard v. State.