TEXAS COURT OF CRIMINAL APPEALS

CLICK TO READ Ex Parte Tomas Raul Gallo, Docket # WR-77,940-03

This is a postconviction application for a writ of habeas corpus filed under Texas Code of Criminal Procedure Article 11.071, Section 5. In February 2004, a Harris County jury found Tomas Gallo, Applicant in this case, guilty of capital murder.

Applicant filed the instant 11.071 application in the convicting court in November 2016. He raised eight claims, including a claim that he is intellectually disabled and therefore ineligible for execution.

The habeas court agreed the Applicant has met his burden to show by a preponderance of the evidence that he meets the current, medically accepted diagnostic criteria for intellectual disability. Therefore, relief is appropriate as to this claim and his death sentence is converted to a sentence of life imprisonment.

CLICK TO READ Ex Parte Derek Jermaine Harris, Docket # WR-94,870-01

Applicant was convicted of manufacture or delivery of a controlled substance and sentenced to 90 days imprisonment. Applicant filed this application for a writ of habeas corpus in the county of conviction. The Applicant contends his  plea was involuntary because he did not know of the bad acts of the officer who implicated him in this alleged offense.

Habeas relief granted and judgement vacated.

CLICK TO READ Ex Parte Melvin Mitchell, Docket # WR-95,393-01

Applicant pleaded guilty to possession with intent to deliver a controlled substance and was sentenced to four years’ imprisonment. Applicant filed this application for a writ of habeas corpus in the county of conviction. Applicant claims that he was denied Due Process through the use of material false evidence, and that his guilty plea was involuntary. These claims relate to the discovery of misconduct by former Houston Police Officer Gerald Goines, who was the primary officer involved in the alleged offense. These claims relate to the discovery of misconduct by former Houston Police Officer Gerald Goines, who was the primary officer involved in the alleged offense.

Habeas relief is granted and the trial court shall issue any necessary orders within ten days from the date of this courts mandate.

CLICK TO READ Ex Parte Felix DeLaCruz, Docket # WR-95,378-01

Applicant pleaded guilty and was convicted of continuous sexual abuse of a child and sentenced to forty years’ imprisonment. Applicant filed this application for a writ of habeas corpus in the county of conviction contending his plea was involuntary because counsel gave him erroneous information regarding his parole eligibility. Applicant contends, and his counsel admits, that Applicant was told he would be eligible for parole after serving twenty years. But the sentence was without parole. Applicant contends he would not have plead guilty and gone to trial.

The court finds there a reasonable probability that Applicant would have rejected the plea and gone to trial had he known that the sentence was without parole.

Relief is granted and the judgement is set aside. The applicant was remanded into the Sheriff’s custody to answer for the charges set forth in the indictment.

CLICK TO READ Ex Parte Juan Carlos Baldercastro, Docket # WR-95,435-01

Applicant pleaded guilty and was convicted of driving while intoxicated with a child under 15 years of age, with an affirmative deadly weapon finding, and sentenced to 6 months in State Jail. Applicant filed this application for a writ of habeas corpus in the county of conviction.

Applicant contends that his plea was involuntary because the sentence the parties agreed to is illegal because the sentence is outside the statutory range. Therefore, his plea of guilty was unknowing and involuntary.

Relief is granted, the judgement is set aside and the applicant was remanded to the Sheriff’s office to answer the charges as set out in the indictment.

TEXAS FIRST COURT OF APPEALS

CLICK TO READ Sostenes Lorenzo Tolentino v. State of Texas, Docket # 01-22-00442-CR

The Appellant was found guilty of driving while intoxicated. The video from the arrest shows the Detective speaking to the Appellant in Spanish and the Appellant either answering in two-word phrases or not at all. On appeal, Tolentino argues that he could not understand the trial proceedings because he was not provided with an interpreter in his native language, Nahuatl; despite asking for one a year in advance. Nahuatl is an indigenous language of Mexico and given the same status as Spanish in their respective  regions. He was given a Spanish interpreter. He also argues the trial court abused its discretion when it denied his motion for a new trial.

The question on appeal is whether the Appellant was provided with sufficient means to understand and participate in the court proceeding and thus afforded Due Process of Law. It was evident the Appellant did not understand Spanish as the video from the arrest shows the Detective speaking to the Appellant in Spanish and the Appellant either answering in two-word phrases or not at all.

The Court agrees he should have been provided with a Nahautl interpreter and reverses based on Tolentino’s due process rights. The case is remanded for a new trial.

TEXAS SECOND COURT OF APPEALS

CLICK TO READ Bryson Mead v. State of Texas, Docket No. 02-23-00186-CR

Appellant Bryson Mead challenges his misdemeanor conviction for failing to report a collision with a structure, fixture, or landscaping adjacent to a highway, for which he was sentenced to pay a $750 fine and to serve 120 days’ confinement, probated for nine months. He argues two issues.1) He argues that the evidence is insufficient to support his conviction because the alleged offense occurred on a privately maintained road and (2) that Transportation Code Section 550.041 does not expand the authority of officers to arrest for traffic offenses occurring on privately maintained roads but merely expands the authority of officers to investigate accidents on private property. The specific statute creating a duty to report a collision (Section 550.025) applies only to collisions with items adjacent to a highway, which is statutorily defined as a publicly maintained way. That statute does not criminalize Appellant’s conduct because he collided with items adjacent to a privately maintained road.

The question focuses on whether Appellant had committed any criminal offense by not reporting a collision with items adjacent to a privately maintained road.

The court concluded because Appellant had no duty under Section 550.025 to report a collision with a structure, fixture, or landscaping adjoining a privately maintained road, he committed no criminal act when he failed to report the collision with those items adjoining a privately maintained road. Therefore, the trial court’s judgement was reversed on both issues and the appellant was acquitted.

TEXAS THIRD COURT OF APPEALS

No reversals reported.

TEXAS FOURTH COURT OF APPEALS

CLICK TO READ Cody Lee Wisecarver v. The State of Texas, Docket # 04-22-00277-CR

The Appellant raises two evidentiary issues on appeal from his conviction for evading arrest or detention with a motor vehicle, a third-degree felony offense that was enhanced to a second-degree felony offense at punishment. The first issue, a 911 recording, the appellate court rules was properly introduced.  The second issue argued by the Appellant is the trial court erred by allowing the State’s witness to read excerpts from a newspaper article about the Appellant during the punishment phase of his trial. The Appellant contends this was inadmissible hearsay.

The Court concludes the State failed to establish the newspaper article excerpts were from a learned treatise, periodical, or pamphlet considered as “reliable authority” as the rule stipulates. The Court reverses the sentence and remands the case back to the trial court for a new punishment proceeding.

TEXAS FIFTH COURT OF APPEALS

No reversals.

TEXAS SIXTH COURT OF APPEALS

CLICK TO READ Ex Parte Sergio Herrera Campos, Docket # 06-24-00039-CR

The Appellant, a noncitizen who was arrested in Kinney County under Operation Lone Star (OLS), was charged with the misdemeanor offense of criminal trespass on a railroad. An application for a writ of habeas corpus was filed seeking dismissal of the criminal charge. The trial court denied his requested relief.

The Appellant appealed to the Fourth Court of Appeals in San Antonio arguing he was selectively prosecuted. This case was transferred to this Sixth Court of Appeals by the Texas Supreme Court pursuant to its docket equalization efforts. Therefore, prior case law from the Sixth Court of Appeals must be followed.

The Court concluded based on the prior existing case law of the San Antonio Court of Appeals, “even in reviewing the facts in the light most favorable to the trial court’s ruling, we hold the trial court erred in denying him relief on his selective prosecution claim under the Texas [ERA],” id. at 513, and “on his federal equal protection selective prosecution claim,” id. at 514.

CLICK TO READ Ex Parte Angel Alberto Ruiz Vallesteros, Docket # 06-24-00040-CR

The Appellant was arrested in Kinney County under Operation Lone Star (OLS), was charged with the misdemeanor offense of criminal trespass. He filed an application for a writ of habeas corpus seeking dismissal of the criminal charge. The trial court denied his requested relief.

The Appellant  appealed to the Fourth Court of Appeals in San Antonio arguing he was selectively prosecuted. This case was transferred to this Sixth Circuit Court by the Texas Supreme Court pursuant to its docket equalization efforts. Therefore, prior case law from the sixth circuit must be followed. On appeal that the trial court erred in denying his requested relief because (1) he “properly raised his selective-prosecution claim in a pretrial writ of habeas corpus,” (2) he met his burden of establishing a prima facie claim of selective prosecution based on sex discrimination, and (3) the State failed to meet its burden of justifying its discriminatory conduct under the United States or Texas Constitutions.

The Court concluded based on the prior existing case law of the San Antonio Court of Appeals, “even in reviewing the facts in the light most favorable to the trial court’s ruling, we hold the trial court erred in denying him relief on his selective prosecution claim under the Texas [ERA],” id. at 513, and “on his federal equal protection selective prosecution claim,” id. at 514.

TEXAS SEVENTH COURT OF APPEALS

CLICK TO READ Lawrence Joseph Gall, v. The State of Texas, Docket # 07-23-00283-CR

Appellant, Lawrence Joseph Gall, was convicted by a jury of theft of property valued at $100 or more but less than $750, a Class B misdemeanor and sentenced to ninety days in jail and a $1,000 fine.

On appeal he challenged the sufficiency of the evidence to support his conviction. The State admits it did not present any evidence of the value of the stolen items but then requested the judgment of conviction be reformed to reflect a conviction for a Class C misdemeanor.

The Court ruled this would absolve the State of its burden of proof because a jury should not be permitted to use “common sense” to supply a missing essential element of an offense.  The remedy was acquittal.

CLICK TO READ Alfredo Paez, Jr., v. The State of Texas, Docket # 07-24-00050-CR

Appellant appealed his conviction for aggravated assault. The trial court denied his request for a free transcript to appeal his conviction.  The Court of Appeals reversed, finding that if an appellant is indigent they are entitled to a free appellate record when unable to pay or give security for it.  The assessment occurs on a case-by-case basis with the focus resting on the movant’s financial capability at the time of appeal, not trial.  It also entails a two-step process.  The initial burden lies with the appellant to make prima facie showing of indigence through evidence.  Should that be done, the State must then rebut the showing.   Furthermore, the trial court must accept the movant’s evidence of indigence as true, unless there exists a reasonable, articulable basis to discount it. 

Reversed and remanded

TEXAS EIGHTH COURT OF APPEALS

CLICK TO READ The State of Texas, v. Daniel Gonzalez, Docket # 08-23-00077-CR

Appellee, Daniel Gonzalez voluntarily met Detective James Nance of the El Paso Sheriff’s Office at the station for questioning after speaking with him on the phone. Before the interview he was read his rights. He was informed of his right to remain silent and have an attorney present. He declined and agreed to speak to detectives. At a point during the interrogation Mr. Gonzalez said he was going to get an attorney to protect him. When the detectives told him he was free to leaver he kept talking. During the ensuing interrogation Mr. Gonzalez confessed to sexual abusing his daughter multiple times when she was between the ages of 12 and 18. He moved to suppress the statements and confessions made after he stated that he would get an attorney to protect himself and the trial court granted his motion. The state Appealed

The two main arguments the State raised on appeal were  (1) Gonzalez did not invoke his right to counsel, and (2) the right to counsel did not attach because he was not in custody.

Because Gonzalez was not in custody and was free to terminate the interrogation. A reasonable person in Gonzalez’s circumstances would understand that he was free to leave. Therefore, the Court concluded the trial court erred in suppressing Gonzalez’s statements.

The trial court was reversed.

TEXAS NINTH COURT OF APPEALS

No reversals reported.

TEXAS TENTH COURT OF APPEALS

No reversals reported.

TEXAS ELEVENTH COURT OF APPEALS

No reversals reported.

TEXAS TWELFTH COURT OF APPEALS

No reversals reported.

TEXAS THIRTEENTH COURT OF APPEALS

CLICK TO READ The State of Texas v. Christopher Lynn Newton, Docket # 13-22-00616-CR, 13-22-00617-CR

Newton was charged by information and complaint with DWI with a prior conviction, a Class A misdemeanor, see TEX. PENAL CODE ANN. § 49.04(a) (DWI); id. § 49.09(a) (enhancing a DWI to a Class A misdemeanor when a defendant has been previously convicted of the offense), and failure to meet his duty on striking a fixture, a Class B misdemeanor. See TEX. TRANSP. CODE ANN. § 550.025(a), (b)(2).

At a suppression hearing, Texas Department of Public Safety Trooper Matthew Ochoa testified that he responded to a single vehicle crash reported by a 911 caller where he discovered Newton’s damaged truck and spoke with Newton, who admitted to driving the truck.  The officer observed the classic signs of intoxication, and Defendant admitted to drinking a glass of wine.  The officer started to perform Standardized Field Sobriety Tests and after the Horizontal Gaze Nystagmus Test, Newton refused to perform any more, and he was arrested.  The officer called a magistrate for a blood draw warrant, and was issued a warrant.  The blood draw was performed at a local hospital.

The trial court suppressed the evidence finding that the Trooper lacked probable cause to arrest without a warrant and without any exigent circumstances.

The Court of Appeals reversed, finding that there was probable cause to arrest for public intoxication when Newton was outside and displayed signs of intoxication and admitted to driving the vehicle that crashed.

Reversed and remanded.

TEXAS FOURTEENTH COURT OF APPEALS

No reversals reported.