TEXAS COURT OF CRIMINAL APPEALS

CLICK TO READ Ex Parte Lucas Vieira, Docket # PD-0690-22

On July 9, 2021, Appellant was indicted for aggravated assault by threat while acting as a public servant.  The indictment alleged that the offense occurred on or about July 7, 2019.  Appellant filed a pretrial application for writ of habeas corpus, claiming the indictment is time-barred because it was filed more than two years after the date of the offense. The trial court denied Appellant’s habeas application, and Appellant timely appealed.  Appellant argued on direct appeal that under Code of Criminal Procedure Article 12.04, the last day of the two-year limitations period for an offense occurring on July 7, 2019, is July 7, 2021, and that an indictment filed on July 9, 2021, is two days late.

The Court of Criminal Appeals held that the Indictment was 2 days late, and because it was outside of the statute of limitations, reversed and dismissed.  The Court of Criminal Appeals also held that a pretrial writ of habeas corpus is not available to test the sufficiency of an indictment, except when the face of the indictment “shows that the offense charged is barred by limitations.”

The manner in which the Court of Criminal Appeals arrived at the time calculation is extremely important to the determination of this case.

CLICK TO READ Ex Parte MacArthur Ross, Jr., Docket # WR-95,091-01

Applicant was convicted of delivery of a controlled substance and sentenced to two years imprisonment.  Applicant claims that he was denied due process through the use of material false evidence, and his guilty plea was involuntary. These claims relate to the discovery of misconduct by former Houston Police Officer Gerald Goines, who was the sole witness against Applicant in his case. Based on the record, the trial court found that Applicant was denied due process by the use of material false evidence against him, and Applicant’s guilty plea was involuntary.  The State and trial court both recommend granting relief on false evidence and involuntary plea grounds.  The Court of Criminal Appeals granted habeas relief and remanded.

CLICK TO READ Ex Parte Shaquetta Janay Mays, Docket # WR-95,091-01

Applicant entered an open plea of guilty to aggravated assault and was sentenced by the judge to twenty years’ imprisonment. The Eleventh Court of Appeals affirmed her conviction.  She filed a habeas corpus petition alleging ineffective assistance of counsel for multiple reasons.  The Court of Criminal Appeals determined Applicant has alleged facts that, if true, might entitle her to relief, and remanded the case for a hearing.

CLICK TO READ Ex Parte Syed Mohmed Rabbani, Docket # WR-86,593-01

 In July 1988, a Harris County jury found Applicant guilty of capital murder. Based on the jury’s answers to the special issues set forth in Article 37.071, the trial court sentenced Applicant to death. On direct appeal, Appellant raised seventeen points of error. In an opinion only part of which was designated for publication, the Court of Criminal Appeals rejected Applicant’s points of error and affirmed his conviction and sentence.

Applicant filed this habeas application in July 1994. In September 1994, the habeas judge received a psychiatric report reflecting that Applicant was not competent to be executed. See Ford v. Wainwright, 477 U.S. 399, 409–10 (1986). Resultingly, the State declined to answer Applicant’s 11.07 application. The record before us suggests that, because the State did not answer Applicant’s 11.07 application, the habeas proceedings were effectively held in abeyance. The Court of Criminal Appeals did not receive Applicant’s 11.07 application until August 2022.

The Court of Criminal Appeals concluded that only claim two, a Penry claim, see Penry v. Lynaugh, 492 U.S. 302, 328 (1989), alleged facts that if true might entitle Applicant to relief.  The Court of Criminal Appeals therefore remanded claim two to the convicting court for findings of fact and conclusions of law illuminating that claim.

On remand, the State submitted proposed findings of fact and conclusions of law indicating that, in the State’s view, Applicant suffered reversible Penry error at trial. Applicant, agreeing, submitted a “supplemental authorities” brief for the convicting court to review. Reviewing these submissions, the convicting court adopted the State’s proposed findings and conclusions.  The Court of Criminal Appeals agreed, set aside the death sentence, and remanded for a new punishment proceeding.

 CLICK TO READ Ex Parte Terrence Terrel Spriggs, Docket # WR-94,947-01

Applicant pled guilty to delivery of cocaine less than one gram and was sentenced to four days imprisonment.  Applicant raises allegations of false evidence and involuntary plea. Applicant contends that his due process rights were violated because Gerald Goines, a former officer with the Houston Police Department, who was the sole witness against him, was under investigation for falsifying evidence and had been relieved from duty. Applicant argues that the Court should infer that the officer’s allegations were false based on his prior misconduct and that Applicant’s due process rights were violated. Applicant also argues that his guilty plea was involuntary because he did not have sufficient awareness of the relevant circumstances, specifically that Goines was making up charges against others during the same time Applicant was facing these charges. Based on the record, the trial court, with agreement from the State, recommended granting relief on both false evidence and involuntary plea.  The Court of Criminal Appeals agreed and vacated the conviction.

CLICK TO READ Ex Parte Milat Mukimiyan, Docket # WR-94,933-02

Applicant was convicted of fraudulent use of identifying information and sentenced to one year imprisonment in county jail.  He filed a habeas corpus petition arguing that trial counsel rendered ineffective assistance because they failed to advise him of the deportation consequences of his guilty plea, as required by Padilla v. Kentucky, 559 U.S. 356 (2010).  Based on the record, the trial court has determined that Applicant’s plea was involuntary because trial counsel’s performance was deficient and Applicant was prejudiced.  The Court of Criminal Appeals granted habeas relief and vacated the conviction.

CLICK TO READ Ex Parte Teresa Lynn Grinstead, Docket # WR-92,482-01

Applicant originally pleaded guilty to two counts of obtaining a controlled substance by fraud in exchange for ten years’ community supervision. Her community supervision was later revoked and she was sentenced to two years’ imprisonment for each count, to run concurrently.  Applicant contends, among other things, that the trial court lacked jurisdiction to revoke her community supervision. Both counts of the indictment to which Applicant pleaded guilty were believed by the parties to be third degree felonies. However, the offense as charged in Count 2 of the indictment should have been a second degree felony under Section 481.129(d)(1) of the Texas Applicant contends, among other things, that the trial court lacked jurisdiction to revoke her community supervision. Both counts of the indictment to which Applicant pleaded guilty were believed by the parties to be third degree felonies. However, the offense as charged in Count 2 of the indictment should have been a second degree felony under Section 481.129(d)(1) of the Texas Health and Safety Code because the substance Applicant was charged with attempting to obtain in that count was Hydrocodone, a Schedule II substance under 21 CFR 1308.12(b)(1).

Unbeknownst to all of the parties at the time of Applicant’s plea, the maximum period of community supervision authorized for a third degree felony under the Texas Health and Safety Code is five years.  Therefore, Applicant’s ten-year community supervision was unauthorized as to Count 1 of the indictment. Because the State alleged that Applicant violated the conditions of her community supervision more than five years after she had been placed on community supervision, Applicant alleges that the trial court lost jurisdiction to revoke her community supervision, and that the revocation and resulting sentences were therefore void.  The Court of Criminal Appeals agreed, and ruled that because the offense to which Applicant pleaded guilty in Count 2 was in fact a second degree felony, her ten-year period of community supervision was not unauthorized and the trial court retained jurisdiction to revoke her community supervision as to that count.  The judgment revoking community supervision was vacated.

CLICK TO READ Ex Parte Brian Allen Scott, Docket # WR-94,485-02

Applicant was convicted of attempted delivery of a controlled substance and sentenced to thirty-one days imprisonment pursuant to Texas Penal Code § 12.44(a).  Applicant contends that plea was involuntary because he was not informed that this plea would result in a felony conviction. Based on the record, the trial court has determined that Applicant’s plea was involuntary because he believed this conviction was a misdemeanor and did not understand the consequences of his plea.  Habeas relief was granted, the plea was vacated, and the case remanded.

CLICK TO READ Ex Parte Brianna McFall, Docket # WR-95,046-01 & 95,046-02

Applicant pleaded guilty to aggravated assault and assault/family violence and was sentenced to two years’ imprisonment in each cause.  Applicant contends that her pleas were involuntary because trial counsel had an actual conflict of interest. Based on the record, the trial court has determined that trial counsel’s performance was deficient and that Applicant is entitled to relief.  The Court of Criminal Appeals concurred and vacated the convictions, and remanded them for further proceedings on the Indictment.

CLICK TO READ Ex Parte Carlos Lopez, Jr., Docket # WR-94,958-01, 94,958-02, 94,958-03, 94,958-04, & 94,958-05

 Applicant was convicted of burglary of a habitation, two offenses of burglary of a building,

two offenses of unauthorized use of a motor vehicle, and two counts of evading arrest with a vehicle.  He was sentenced to ten years’ imprisonment on the burglary of a habitation, two years’

imprisonment on the burglary of a building offenses and unauthorized use of a motor vehicle

offenses, and ten years’ imprisonment on the two counts of evading arrest with a vehicle. The

Thirteenth Court of Appeals dismissed Applicant’s appeal.  Applicant filed these applications for writs of habeas corpus.  He argued that this trial counsel and appellate counsel were ineffective because trial counsel failed to object to the trial court’s improper cumulation order and appellate counsel failed to raise the issue on direct appeal.

Based on the record, the trial court has determined, and the State agrees, that both counsels’ performances were deficient and that Applicant was prejudiced.  Habeas relief was granted to the extent that the sentences were ordered to run concurrently. 

CLICK TO READ Ex Parte Gabriel Villareal, Docket # WR-79,132-02 & WR-79,132-03

A jury found Applicant guilty of aggravated sexual assault of a child.  Prior to the punishment phase, he entered into a plea agreement and was sentenced to

fifty years’ imprisonment for that offense and pled guilty in another case to aggravated sexual assault of a child (count I) and indecency with a child

(count II) and was sentenced to fifty-years’ imprisonment for count I and twenty years’ imprisonment, all counts to run concurrently.  He later filed applications for writs of habeas corpus, arguing that trial counsel was ineffective because he failed to adequately investigate the case and to call available defensive witnesses

during guilt-innocence. Based on the record, the trial court determined that trial counsel’s performance was deficient and that Applicant was prejudiced, and that the ineffectiveness caused the separate guilty plea in the second case.  The Court of Criminal appeals agreed, and vacated the convictions. 

TEXAS FIRST COURT OF APPEALS

No reversals reported.

TEXAS SECOND COURT OF APPEALS

No reversals reported.

TEXAS THIRD COURT OF APPEALS

No reversals reported.

TEXAS FOURTH COURT OF APPEALS

CLICK TO READ Steven James Elsik v. The State of Texas, Docket # 04-22-00333-CR

Police observed Defendant driving a weighted-down pickup truck on a highway and attempted to pull it over, but Defendant accelerated and drove for several miles before pulling over.  Police took him into custody and found 13 people, including two juveniles, hiding in the bed of the pickup who were Mexican nationals.  United States Border Patrol agents arrived and collected the names and pedigree information of the 13 people.  Defendant was charged with two counts of second-degree smuggling of persons under 18, eleven counts of third-degree smuggling of adults, and one third-degree count of evading arrest with a motor vehicle. None of the 2 Mexican nationals testified at trial, and the court admitted their names and information over objection.  The jury convicted Elsik on all counts. He pled true to an enhancement paragraph and the jury assessed punishment at ninety-nine years on the second-degree smuggling counts, twenty years on the third-degree smuggling counts, and five years on the evading count.

The Fourth Court of Appeals reversed in part, finding that the hearsay statements of the Mexican nationals negatively affected Defendant’s conviction on the two second-degree counts for smuggling of juveniles.  The State’s case was strong, except on the point of the juvenile status of two of the passengers.

The convictions were affirmed in part, reversed in part, and remanded for a new trial on those two counts only.

CLICK TO READ The State of Texas v. Aldo Galindo-Zamora, Docket # 04-22-00739-CR

This is another Operation Lone Star case with the same results.  Habeas relief affirmed. 

CLICK TO READ The State of Texas v. Bill Rodolfo Ramirez, Docket # 04-22-00692-CR

As part of Operation Lone Star, Billy Rodolfo Ramirez, a noncitizen, was arrested for trespassing on private property in Webb County. He filed an application for writ of habeas corpus seeking dismissal of the criminal charge based on a violation of his state and federal rights to equal protection.  Specifically, Rodolfo Ramirez asserted that the State of Texas was engaging in selective prosecution because only men were being charged with misdemeanor criminal trespass. The trial court granted Rodolfo Ramirez’s requested relief, and the State appealed.  The Court of Appeals affirmed, finding that the prosecutions were discriminatory.

Affirmed.

CLICK TO READ The State of Texas v. Jonathan Colin-Tapio, Docket # 04-23-00156-CR

This is another Operation Lone Star case with the same results.  Habeas relief affirmed. 

CLICK TO READ The State of Texas v. Perfecto Trejo-Rubio, Docket # 04-22-00741-CR

This is another Operation Lone Star case with the same results.  Habeas relief affirmed. 

CLICK TO READ Ex Parte Isaac Barahone-Gomez, Docket # 04-23-00230-CR

As part of Operation Lone Star (“OLS”), Barahona-Gomez, a noncitizen, was arrested for trespassing on private property in Kinney County. He filed an application for writ of habeas corpus seeking dismissal of the criminal charge based on a violation of his rights under the United States Constitution’s Equal Protection Clause and the Texas Constitution’s Equal Rights Amendment. See U.S. CONST. amend. XIV; TEX. CONST. art. 1, § 3(a). Specifically, Barahona-Gomez argued the State’s selective prosecution of men, and not similarly-situated women, for criminal trespass as part of OLS violated his state and federal equal protection rights. Without conducting an evidentiary hearing, on March 8, 2023, the trial court denied Barahona-Gomez’s application for writ of habeas corpus.  The trial court found, based on its personal knowledge, that women were being arrested and charged for criminal trespass under OLS and that the trial court had arraigned women charged for this offense under OLS. However, the record on appeal provides no evidence supporting this conclusion.  Defendant appealed.

The Fourth Court of Appeals reversed and ordered an evidentiary hearing to allow Defendant to present a prima facia case of a selective-prosecution equal protection claim.

TEXAS FIFTH COURT OF APPEALS

No reversals reported.

TEXAS SIXTH COURT OF APPEALS

No reversals reported.

TEXAS SEVENTH COURT OF APPEALS

CLICK TO READ The State of Texas v. Israel Navarette, Docket # 07-23-00132-CR

Defendant was charged in April, 2020 of Driving While Intoxicated.  The Information contained an unsworn complaint, and the State dismissed it as a result.  In February, 2023, the State filed a second Information, and Defendant moved to quash, arguing it was past the statute of limitations.  The trial court agreed and dismissed the Information, and the State appealed.

The Seventh Court of Appeals reversed, finding that the original Information tolled the statute of limitations despite the defective complaint.  The case was reinstated and remanded.

TEXAS EIGHTH COURT OF APPEALS

No reversals reported.

TEXAS NINTH COURT OF APPEALS

CLICK TO READ Pat Lane Swanzy Jr. v. The State of Texas, Docket # 09-22-00136-CR

Defendant was charged with Driving While Intoxicated as a third degree felony based on two prior DWI convictions.  One of those convictions was from 1979, in which Defendant pled guilty, was placed on probation, and the case was dismissed upon completion of probation.  The jury found Defendant guilty after trial.  In the punishment phase of the trial, the trial court submitted a question asking the jury to address whether Swanzy had committed at least two of the prior, sequential felonies that were alleged in the State’s “Notice to Enhance Punishment.” Because the jury determined it was “True” that Swanzy committed at least two of the prior sequential felonies, the jury answered a verdict form in which the trial court instructed the jury that it could assess Swanzy’s punishment at not less than 25 years or more than 99 years.  The jury assessed punishment at 99 years. 

The Court of Appeals reversed, finding that because the 1979 DWI case did not result in a final conviction, the State failed to prove that he had incurred convictions on two prior DWIs in the trial of his 2021 DWI.

The case was remanded for resentencing on a Class A misdemeanor DWI.

TEXAS TENTH COURT OF APPEALS

No reversals reported.

TEXAS ELEVENTH COURT OF APPEALS

No reversals reported.

TEXAS TWELFTH COURT OF APPEALS

CLICK TO READ Ex Parte Omarion Lewis, Docket # 12-23-00159-CR

A warrant was issued for Appellant’s arrest for aggravated assault with a deadly weapon. Three co-defendants were also arrested for aggravated assault with a deadly weapon. At the time of the alleged offense,1 Appellant was seventeen years old and a high school student. Accompanied by his mother, Appellant turned himself in, and he was subsequently indicted.2 Appellant’s bond was set at $500,000, and he filed an application for writ of habeas corpus, in which he sought reduction of his bond. In the motion, Appellant asserted that he is a United States citizen with no prior criminal record, and he asked the court to schedule an evidentiary hearing and to set a bond in a reasonable amount with reasonable conditions to allow him to obtain release pending trial.  At the hearing, his mother, a correction officer, testified that she was able to afford only a $30,000 bond, and surrendered her son to police.  The trial court denied a bond reduction.

The Twelfth Court of Appeals reversed.  It found that his inability to make bail or post a bond is one factor to be considered, and when bail is so high that the defendant cannot realistically pay for it, the trial court essentially displaces the presumption of innocence.  The Court of Appeals held that the bail set here was excessively high and was an abuse of discretion.

TEXAS THIRTEENT COURT OF APPEALS

No reversals reported.

TEXAS FOURTEENTH COURT OF APPEALS

No reversals reported.