TEXAS COURT OF CRIMINAL APPEALS

CLICK TO READ Ex Parte Harry Lee Gradney, Docket # WR-95,160-01

Defendant pled guilty to Delivery of a Controlled Substance and was sentenced to 8 months imprisonment pursuant to Texas Penal Code § 12.44(a).  Even though he completed his sentence, the Court of Criminal Appeals found that he was “confined” for purposes of Article 11.07 due to hardships associated with finding a job as a result of his conviction, enhanced penalties for future convictions; and potential impeachment of his credibility in future judicial hearings.

He filed an 11.07 petition based on denial of Due Process and an involuntary plea based on the discovery of misconduct by former Houston Police Officer Gerald Goines, who was the primary officer involved in the alleged offense.  The Court of Criminal Appeals granted the petition and set aside his conviction.

CLICK TO READ Ex Parte Lasha Eileen Spacek, Docket # WR-95,058-01

Lasha Eileen Spacek pled guilty to theft and was sentenced to two years in state jail.  Her attorney failed to inform her that the sentence could be stacked on top of a sentence she was already serving, and she would be subject to consecutive sentences.  When she filed an 11.07 habeas corpus petition, her attorney filed an affidavit which stated that he affirmatively misadvised Defendant that any sentence from a jury would run concurrently, which caused the defense to reject a plea offer from the State.  As a result, the Court of Criminal Appeals found that her plea was involuntary, and granted the petition and vacated the conviction.

TEXAS FIRST COURT OF APPEALS

No reversals reported.

TEXAS SECOND COURT OF APPEALS

CLICK TO READ Sergio Alejandro Aguilar v. State of Texas, Docket # 02-22-00271-CR

Defendant was convicted after a jury trial of Assault on a Family Member with a previous family violence conviction and Continuous Violence Against the Family, Texas Penal Code §§ 22.01(b)(2)(A), 25.11(a).  In this appeal, he argued that (1) his convictions on both counts violate the Double Jeopardy protections contained in Penal Code Section 25.11(c); (2) the trial court erred by admitting State’s Exhibit 3, a recording of two 911 calls, in violation of Aguilar’s Sixth Amendment Confrontation Clause rights; (3) the evidence is insufficient to show that Aguilar assaulted the complainant on March 13, 2022, as alleged in Count Four; and (4) the cumulative effect of the complained-of errors is such that Aguilar should be acquitted of both counts.

The Court of Appeals held that both convictions violated Double Jeopardy and reversed the Assault on a Family Member charge.  Penal Code Section 25.11, the continuous-violence-against-the-family statute, expressly provides that unless certain statutory conditions are met, “[a] defendant may not be convicted in the same criminal action of another offense the victim of which is an alleged victim of the [continuous-violence offense] and an element of which is any conduct that is alleged as an element of the [continuous-violence offense].”  By including this provision, “the legislature indicated its clear intent: a person cannot be convicted in the same criminal action of continuous violence against a victim and also be convicted of additional, discrete instances of bodily-injury assault against that same victim if those discrete assaults could have been charged as part of the continuous count.”  Because the continuous-violence count was predicated on the same assault as the first count, his conviction and sentence violated his right to be free from Double Jeopardy.  The Court of Appeals affirmed the conviction for that continuous violence count and reversed as to the other count.

TEXAS THIRD COURT OF APPEALS

CLICK TO READ Linda Marie Coolbaugh v. State of Texas, Docket # 03-22-00318-CR

Defendant was convicted of misdemeanor Driving While Intoxicated, Penal Code § 49.04(b) after a jury trial.  At trial, the evidence established that she was pulled over for failing to maintain a single lane of traffic.  Defendant admitted that she had been drinking, and when she got home her boyfriend went through her phone and found a text message from another man that created an argument.  She told the officer that her boyfriend became physical, choked her and pulled her out of bed by her hair so “she needed to get in her vehicle and get out of there.”  She was crying and upset and appeared to have injuries consistent with being choked, and video from the police cruiser corroborated her account.  Defendant testified as to the assault from the boyfriend, who had broken her phone and she ran away from him after he beat her nearly unconscious. 

During the charge conference after the close of evidence, Coolbaugh requested an instruction on the defense of necessity, which the trial court denied. The jury subsequently found Coolbaugh guilty of driving while intoxicated.

The Court of Appeals reversed and ordered a new trial, finding that a jury charge of necessity was warranted.  The statutory defense of necessity provides that conduct that is otherwise criminal is justified if: (1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm [and] (2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct.  A defendant’s testimony alone is sufficient to raise a defensive issue requiring an instruction in the charge.  The evidence was that Coolbaugh had a reasonable belief that driving while intoxicated was immediately necessary to avoid imminent harm.  Therefore, it was error to refuse to charge the defense,

TEXAS FOURTH COURT OF APPEALS

CLICK TO READ Johnny Gabriel Lazalde v. State of Texas, Docket # 04-21-00566-CR

Defendant was arrested for driving without a valid license after parking his car on a sidewalk and walking towards the entrance of a convenience store that sold alcoholic beverages. Law enforcement recovered a handgun from a holster on Lazalde’s ankle while conducting a search incident to his arrest and then charged Lazalde with Unlawfully Carrying a Weapon on Premises Licensed or Permitted by the State to Sell Alcoholic Beverages, which was then a third degree felony offense.

At trial, Lazalde objected to the proposed definition of “premises” in the jury charge and requested a different definition of “premises” that excluded the sidewalk and entrance area immediately outside the convenience store. The trial court denied his objection and request.  He was found guilty.

The Fourth Court of Appeals reversed, finding the jury instruction erroneously (1) defined “premises” as “the grounds and all buildings, vehicles, and appurtenances pertaining to the grounds, including any adjacent premises if they are directly or indirectly under the control of the same person,” as the term is defined by section 11.49(a) of the Texas Alcoholic Beverage Code, and (2) excluded his requested definition from former section 46.035(f)(3)4 of the Texas Penal Code as it existed in January 2019.

Reversed and new trial ordered.

TEXAS FIFTH COURT OF APPEALS

CLICK TO READ State of Texas v. Christian Bruce Gonzales, Docket # 05-22-01154-CR and 05-22-01155-CR

Defendant’s motion to suppress physical evidence was granted after the trial court concluded that police lacked probable cause to conduct a warrantless search.  The evidence at the suppression hearing established that police officers were sitting in their parked vehicles talking through an open window when a pickup truck drove past them emitting a smell of marijuana.  He followed the truck to a gas station, and two passengers exited the vehicle to go into the convenience store.  Police ordered them back to the truck, and searched the inside, finding marijuana on the back seat right door pocket and a gun in the map pocket behind the front passenger seat.  Police arrested Defendant after he admitted to sitting on the rear right side of the vehicle.  He was charged with Unlawful Possession of a Firearm by a Felon and Unlawful Carrying of a Weapon with a Felony Conviction, Penal Code §§ 46.04(e), 46.02(e)(1). Gonzales filed motions seeking to suppress evidence asserting the officers lacked probable cause to conduct the warrantless search of the truck.  At the hearing, both officers testified that they were trained and experienced in detecting the odor of marijuana. They acknowledged that they could not tell whether the substance they smelled was marijuana or hemp without a lab test to differentiate the tetrahydrocannabinol (THC) concentration of the substance.  Gonzales challenged whether police officers could still rely on their training and experience and senses of sight and smell to establish probable cause for marijuana possession, as a basis to conduct a warrantless search, since hemp, which comes from the same plant as marijuana, has become legal and can be easily

confused for marijuana.  The trial court granted the motion, finding that legal hemp and marijuana were indistinguishable, and therefore, did not provide probable cause.  The State appealed.

The Fifth Court of Appeals reversed, finding that the odor of marijuana still provides probable cause regardless of the legalization of hemp.

The motion to suppress was denied and the Indictment reinstated.

TEXAS SIXTH COURT OF APPEALS

No reversals reported.

TEXAS SEVENTH COURT OF APPEALS

No reversals reported.

TEXAS EIGHTH COURT OF APPEALS

No reversals reported.

TEXAS NINTH COURT OF APPEALS

CLICK TO READ James Bradley Albright v. State of Texas, Docket # 09-22-00338-CR

In 2020, Defendant pleaded no contest to Possession of a Controlled Substance (Methamphetamine), was placed on deferred adjudication, and community supervision for 5 years.  The State filed a motion for a violation of probation.  However, his attorney had been discharged by the court several months before.  The violation of probation hearing proceeded in the absence of counsel, and there is nothing in the record that shows that the trial court warned Albright about the danger of representing himself.  As a result, his right to counsel was violated,  The violation of probation and sentence were reversed, and a new hearing ordered.

TEXAS TENTH COURT OF APPEALS

No reversals reported.

TEXAS ELEVENTH COURT OF APPEALS

CLICK TO READ Demetrius Shaun Lee v. State of Texas, Docket # 11-21-00253-CR

Defendant was a police officer serving with the Midland Police Department which had software that enabled police officers to conduct searches for a person’s driving records and involvements with the Midland Police Department.  The computer system gave access to confidential information about the individuals contained therein.  A police officer must use his specific login credentials to access the software programs. In turn, each entry a police officer makes is recorded in the officer’s “unit” history. Police officers are required to receive training on the use of the software programs and are instructed that using the software programs for personal reasons is prohibited.

An internal affairs audit revealed that Defendant ran a total of twenty-five searches for information on six individuals, doing so with no legitimate law enforcement purpose. Sergeant Taylor determined that Appellant personally knew these six individuals through either dating relationships or the police department.  Defendant was interviewed, and said that three of the six individuals had asked him to access their information and that he thought running a search for an individual’s information upon their request was permitted.  At trial, four of the six people testified, and one confirmed that she asked Defendant to access her driving record.  The other three testifying individuals stated that they had not given Appellant permission to access their information.  In an effort to prove value, the State offered a purchase order for eight laptops. However, the State did not prove whether Appellant’s in-vehicle laptop was one of the computers listed in the purchase order. Jennifer Frescaz, the City of Midland’s Chief Information Officer, confirmed that Appellant’s in-vehicle laptop was not damaged in any way upon its return and that none of the searches at issue caused the laptop to depreciate in value.  After the State rested, Defendant moved for a directed verdict, arguing that the State failed to establish that (1) Appellant acted with an intent to obtain a benefit, harm, or defraud another; or (2) the value of the use of the computer(s) accessed by Appellant was between $750 and $2,500. The trial court overruled Appellant’s motion for directed verdict. Appellant did not present any witnesses during the guilt/innocence phase of trial.

The Court of Appeals reversed, finding the evidence was insufficient to establish Defendant received a benefit for misuse of the computers.  Further, there was no evidence that Defendant intended to cause any harm to the six individuals, and no evidence that any of them suffered any loss, disadvantage, or harm.  Finally, there was no evidence that Defendant intended to defraud anyone.  Because there was no evidence to support Appellant’s conviction under Section 39.02(a)(2) of the Texas Penal Code, the conviction was reversed and dismissed.

TEXAS TWELFTH COURT OF APPEALS

No reversals reported.

TEXAS THIRTEENTH COURT OF APPEALS

CLICK TO READ State of Texas v. Gustavo Lopez Mireles, Docket # 13-22-00003-CR

The State appeals an order granting Defendant post-conviction DNA testing. 

To be entitled to Chapter 64 post-conviction DNA testing, the movant must first show: (1) the items were not previously subjected to DNA testing, see id. art. 64.01(b)(1); or (2) if the items were previously DNA-tested, those items (a) “can be subjected to testing with newer testing techniques that provide a reasonable likelihood of results that are more accurate and probative than the results of the previous test” or (b) the previously tested items were tested “at a laboratory that ceased conducting DNA testing after an audit by the Texas Forensic Science Commission revealed the laboratory engaged in faulty testing practices.” Texas Code of Criminal Procedure 64.01(b)(2)(A).  Once the movant satisfies the above-stated predicates, the defendant must show the following: (1) the evidence exists and is in a “condition making DNA testing possible”; (2) the evidence has been kept within a chain of custody establishing that no one has substituted, tampered with, replaced, or altered the items “in any material respect”; (3) identity was or is an issue in the case; and (4) the defendant’s request for DNA testing “is not made to unreasonably delay the execution of sentence or administration of justice.”  The defendant must also establish, as pertinent here, that the defendant “would not have been convicted if exculpatory results had been obtained through DNA testing” by a preponderance of the evidence.

In this case, Defendant’s items were previously DNA tested.  He failed to make a showing that new testing would have produced different and more accurate results.  Accordingly, the trial court should not have ordered DNA testing.  The order was reversed.

CLICK TO READ State of Texas v. Louis Ramos, Docket # 13-22-00319-CR

Defendant was arrested in 2019 for Aggravated Sexual Assault of a Child.  He was released on bail conditions that he report to a pretrial community supervision officer once per week and wear an electronic monitoring device, which was later removed as a condition of bail.  Almost three years later, Defendant appeared in court on a hearing to remove the ankle monitor, and the court asked if there was a “pre-file” case, and the State responded that it planned to present the case to a Grand Jury in the next few weeks.  Four months later the State filed an Indictment charging him with Super Aggravated Sexual Assault of a Child, four counts of Aggravated Sexual Assault of a Child, and one count of Indecency with a Child.  Defendant filed a motion to dismiss based on a violation of the right to a Speedy Trial.  The court dismissed the Indictment, finding that the delay was presumptively prejudicial.

The Court of Appeals reversed, finding that Defendant’s failure to assert his Speedy Trial rights until after he was indicted weighed against him.  The Court also held that because Defendant was not incarcerated during the pre-trial delay, did not lose his job or otherwise suffered any other inconvenience, he did not show prejudice.  The Indictment was reinstated and the order reversed.

TEXAS FOURTEENTH COURT OF APPEALS

CLICK TO READ Landon Johnson v. State of Texas, Docket # 14-22-00135-CR

Appellant Landon Johnson appeals his conviction for aggravated assault of a security officer by threat. A jury found appellant guilty and assessed his punishment at 45 years in prison. In his first issue, appellant contends that the evidence was insufficient to sustain his conviction because there was no evidence he threatened complainant or that complainant was a security officer. In his second issue, Appellant contends that the jury charge erroneously failed to include the statutory definition of security officer and stated that a security officer is a public servant. Concluding the evidence was insufficient to establish the complainant was a security officer and the trial court erred in its submission of the jury charge, The Fourteenth Court of Appeals modified the judgment and remand to the trial court for a new sentencing hearing.