Texas Court of Criminal Appeals
State v. Green and Leanox v. State
Nos. PD-1182-20 & PD-1213-20 1/17/24
Issue:
Are the 2017 amendments to the forgery statute—establishing a value ladder for punishment in Penal Code §32.21(e-1)—mandatory if the facts of the offense show that the defendant engaged in forgery “to obtain or attempt to obtain a property or service of a specific value”?
Holding:
Yes. The offense-classification provisions in §32.21(e-1) control over those in §32.21(d) and (e). The Court also concluded that subsection (e-1) is a statutory element that must be proved at the guilt–innocence phase rather than a punishment issue. Read opinion.
Commentary:
As this opinion for these consolidated cases instructs, Penal Code §32.21 contains four separate forgery offenses in subsections (b), (d), (e), and (e-1) that the State can charge by simply tracking the applicable statutory language. However, because of the language in subsections (d) and (e) that makes them mandatorily “[s]ubject to Subsection (e-1),” if the evidence establishes that a defendant committed forgery by “engag[ing] in the conduct to obtain or attempt to obtain a property or service[,]” then subsection (e-1) controls—even if the conduct might also fall under subsections (d) and (e). In this case, the defendant is entitled to be convicted and punished under the pertinent value-ladder provision contained in subsection (e-1), not under subsection (d) or (e), which involve harsher penalties. If you prosecute these types of cases, keep this decision in mind when making charging decisions; while alleging the appropriate type of forgery offense at the outset could be challenging if the investigation is still ongoing, anticipating and charging the correct variant—even if that means charging a lower-level offense—will help avoid unfavorable rulings on motions to quash or reversal on appeal.
Nicholson v. State
No. PD-0963-19 1/17/24
Issue:
Does the evading arrest or detention statute (Penal Code §38.04) require the State to prove a defendant knew the attempted arrest was lawful?
Holding:
No. “[T]he statute’s history and purpose do not support the application of a suspect’s knowledge to the lawfulness of a stop or arrest. Furthermore, requiring laypersons to comprehend the technical jurisprudence on when an arrest or detention is lawful is absurd. This leads us to conclude that the 1993 amendment that moved the lawfulness of the stop from an exception to prosecution to being part of the evasion offense was a non-substantive change.” Read opinion.
Concurrence (Yeary, J.):
“The Court says that this statute does not require the accused to know that the officer’s attempt to arrest him is lawful. I strongly disagree. … First, it overlooks the plain import of a 1993 amendment to the applicable statute, declaring that the amendment actually preserves an ‘exception’ to the offense. But the Legislature could not have more clearly eliminated the former exception in favor of adding to the culpable mental state in the definition of the offense itself” (emphasis in original). Read concurrence.
Commentary:
This case settles a dispute among the intermediate appellate courts and instructs that the State is not required to prove that the defendant subjectively knew that the peace officer from whom the defendant was evading was attempting to make a lawful arrest or detention. In other words, although the State must still prove that the peace officer was, in fact, attempting to lawfully arrest or detain the defendant, it does not have to prove that the defendant subjectively knew that particular, legal-conclusion-based detail. As the Court observes, the legality of the officer’s attempted arrest or detention can be a complicated, fact-intensive question that is best reserved for the trial court to assess—not defendants, who may lack legal training or expertise, and who may certainly have an incentive to “claim ignorance on arrest and detention law.”
Continental Heritage Insurance Co., Agent Pat Kinnard, D/B/A Pat Kinnard Bail Bonds v. State
No. PD-0018-23 1/17/24
Issue:
Are civil filing fees part of the court costs that a bonding company must pay if a bond is forfeited?
Holding:
“Yes, except when a statute exempts the State from liability for a particular filing fee, unless another provision requires a civil defendant to pay the fee if the State prevails.” On rehearing (in which the Court addressed an argument by the surety about the Rules of Civil Procedure but left the essence of its original ruling from Sept. 2023 intact), the Court concluded that filing fees at the trial-level are part of the court costs that a surety who loses a bond-forfeiture case must pay. But the surety is not responsible for every possible filing fee. “The surety has to pay only the filing fees the State would have paid if it had lost, except where a statute nevertheless requires the defendant to pay the filing fees when the State wins.” Read opinion.
Commentary:
The Court’s new, substitute opinion is a few pages longer than the original opinion, with much of the added length devoted to addressing an argument by the surety on rehearing concerning the existence and applicability of formal rules governing civil suits prior to when the Rules of Civil Procedure were adopted in 1941. The Court rejected the surety’s argument on rehearing and explained that, if the Legislature intended for bond-forfeiture proceedings to be governed only by the Rules of Civil Procedure, the Legislature could easily create that decree, but it has not done so. Aside from this aspect, this substitute opinion still instructs that bond forfeiture proceedings that derive from criminal prosecutions are independent criminal matters—not civil—despite that they are procedurally controlled by the Rules of Civil Procedure as to when costs are paid, whether security must be given for costs, who must pay the costs, and how payment of costs is enforced.
Texas Court of Appeals
Johnson v. State
No. 12-22-00270-CR 1/10/24
Issue:
Did the State have probable cause to seize the defendant’s cell site location information (CSLI) through a search warrant when the affidavit did not establish a nexus between the defendant’s phone and the offense?
Holding:
Yes. The Court drew a clear distinction between a cell phone search (governed by CCP Art. 18.0215) and a phone carrier’s records of the defendant’s CSLI. “To support this type of search, an affidavit need not establish a nexus between the phone and the offense.” The Court reviewed the affidavit using a totality of the circumstances analysis, concluding that there were “sufficient facts from which the magistrate could reasonably determine there was a fair probability that those records contained CSLI evidence that would implicate Appellant in the robbery.” Read opinion.
Commentary:
Per Carpenter, Holder, and Baldwin, and their progeny in the lower appellate courts, there is an important distinction between the contents of a cellphone (e.g., text messages, emails, voicemails, contacts, call records, calendar notations, etc.) and the cellphone’s CSLI (which is essentially raw geographical data). While the police need a search warrant to access both the contents and CSLI, a search warrant affidavit for only CSLI need not establish a nexus between the cellphone and the offense, whereas a search warrant affidavit for cellphone contents does require that nexus. Because of this difference, keep in mind that even if the police do not have sufficient, articulable facts to establish a nexus between a suspect’s cellphone and the offense to obtain a search warrant for the cellphone’s contents at the outset, the police may be able to obtain a search warrant for the cellphone’s CSLI first (since, again, a nexus between the cellphone and the offense is not required in that instance) and then use the information gleaned from the CSLI to establish the required nexus to obtain a subsequent search warrant for the cellphone’s contents.
Polvon v. State
No. 11-22-00010-CR 1/11/24
Issue:
Was the defendant’s Fifth Amendment privilege against self-incrimination violated by ordering the defendant to submit to a psychiatric examination by the State’s expert psychiatrist to rebut the defendant’s insanity defense in a non-death capital murder?
Holding:
No. The defendant cannot use a defense expert as a proxy for the defendant’s own testimony without allowing the State to have its own expert evaluate the defendant for rebuttal. By submitting to an examination by a defense expert, the defendant constructively waived his Fifth Amendment privilege against self-incrimination. “An examination by the State’s mental health expert … is not limited by the type of expert that the State may use, the type of examination that the State’s expert may employ, or the sequence of the examination performed by the State’s expert.” The Court made clear that the State’s expert cannot be used to address any other issues other than the issue of sanity. The 11th Court joined Fort Worth’s 2nd Court of Appeals in concluding that the procedure of allowing the State to have an expert witness psychologically examine a defendant for rebuttal of an insanity defense applies to non-death penalty cases. Read opinion.
Commentary:
As in Lott, issued by the 2nd Court of Appeals and referenced by this opinion, the Court adopts a logical and sound extension of the Soria-Lagrone rule to a non-death penalty case where the defendant raised an insanity defense and submitted to psychiatric examination by a defense expert. The Court of Criminal Appeals refused the defendant’s petition for discretionary review in Lott and, given that this opinion does not depart from or disagree with Lott, it is doubtful that the Court would grant review in this case.