Texas Court of Criminal Appeals

Crawford v. State

No. PD-0243-23                3/26/25

Issue:

Did the State’s indictment permit the State to obtain a conviction for assault on a peace officer when the indictment alleged assault of “a public servant, to wit: Menard County Deputy Sheriff?”

Holding (Parker, J.):

Yes. Reversing the lower court, the Court first looked to CCP Art. 2.12 (now Art. 2A.001) for the definition of “peace officer:” “A sheriff’s deputy” is included in the definition of a peace officer. “Although the body of the indictment facially alleges assault on a public servant, with that public servant being more specifically described as a ‘deputy sheriff,’ it is nevertheless true that the body of the indictment also includes every fact needed to convict of assault on a peace officer” (emphasis in original). The Court concluded, “While the better practice, even with this indictment, would have been for the jury charge to explicitly track the language of the ‘peace officer’ provision in the assault statute, the language actually used still required the jury to find facts that necessarily satisfied all the elements of the offense of assault on a peace officer.” Read opinion.

Dissent (Newell, J., joined by Richardson, J., Walker, J., McClure, J.):

“The body of the indictment alleged a facially complete offense. There was no failure to include one or more allegations necessary to give notice of the statutory offense with which the defendant was charged. The indictment alleged assault on a public servant and described a type of public servant. Contrary to the State’s suggestion, there was no notice issue because the indictment contained sufficient allegations of the offense of assault on a public servant.” Read dissent.

Dissent (Walker, J., joined by Newell, J.):

“The result of this case is dictated by Delarosa—when the body of the indictment alleges a facially complete offense, the body of the indictment dictates which offense has been charged, despite any contrary information found elsewhere such as in the caption or header and despite any intention to try the case as something else. In this case, the indictment explicitly used the statutory language ‘public servant,’ and it completely alleged that Appellant committed assault of a public servant, a third degree felony. The indictment’s descriptions—that the public servant was a sheriff’s deputy and that the official duty being discharged was attempting an arrest—are factual averments and not elements of the offense being charged.” Read dissent.

Commentary:

This case should prove useful for the State going forward because errors like this often are not uncommon in charging instruments.  In reaching its holding, the Court instructs that, although the caption of the offense cannot supply a missing element or allegation, the cognate-pleadings approach allows for a charging instrument to adequately allege the offense that the State intends to charge if the body of the charging instrument includes all necessary elements of that intended charge, even if another, unintended charge could be deduced from the pleadings, as well.  Although the State prevailed here, prosecutors should still read this case as a cautionary tale which reminds us of the critical need to double-check our charging instruments before trial to ensure that they track the statute of the intended offense (particularly when the offense depends upon the complainant having a particular status, as here) and include all of the necessary elements of that offense.

 Ex parte Zubiate

No. WR-95,541-01          3/26/25

Issue:

Does a defendant have the right to confront his witnesses in person in a parole-revocation hearing rather than over Zoom?

Holding (Keel, J.):

The Court held that the Sixth Amendment’s Confrontation Clause does not apply to parole-revocation hearings “for three reasons: parole hearings are not ‘criminal prosecutions,’ a parolee is not an ‘accused,’ and witnesses who testify in such hearings are not ‘against’ the parolee.” Here, “the Sixth Amendment did not apply to the defendant’s parole revocation hearings, and his limited due process rights to confront the witnesses in those hearings was honored by their appearance by Zoom.”  Read opinion.

Concurrence (Newell, J., joined by Walker, J.):

“It is enough to simply say that the full panoply of rights due a defendant in such a criminal proceeding does not apply to parole revocations as the United States Supreme Court has already said. There is no reason to embellish the Court’s legal analysis further with cases involving other applications of the Sixth Amendment in other types of proceedings. Rather than try to inflate the value and reach of an otherwise routine case, we should just rely upon Morrissey instead of trying to walk needlessly through wet cement.” Read concurrence.

Concurrence (Walker, J., joined by Newell, J.):

Even if Zoom videoconferencing can meet the minimum requirements of due process, the Court’s opinion today should not be a signal to parole hearing officers that they should be content with the bare minimum. We should strive to achieve the ideal whenever and wherever possible. I would encourage parole hearing officers to try for better. They should not use Zoom and other tele- and videoconferencing options simply because they are available. There should be in-person, face-to-face proceedings to the extent practicable, giving life to the high ideals of the framers who proclaimed that no person shall be deprived of life, liberty, or property, without due process of law” (emphasis in original). Read concurrence.

Commentary:

The Constitution and statutes provide minimum, essential protections and procedures, but do not mandate the “ideal” or “preferred” application of those Constitutional and statutory rights, beyond the minimum thresholds.  This is the case in this context and others, such as with claims of ineffective assistance of counsel, where abundant case law from the Supreme Court and the Court of Criminal Appeals has explained that a defendant is entitled to the assistance of a reasonably effective attorney, but is not entitled to perfect or errorless counsel.  Although certainly the police, prosecutors, and trial courts should strive to be as thorough and diligent as possible to safeguard the rights of the accused, this case, among others, reiterates that perfection or meeting the defendant’s preferences is not required.

In re Texas Department of Criminal Justice

No. WR-95,689-01          3/26/25

Issue:

After a trial, final conviction, and the disposal of a first habeas application in a capital murder case, does the trial court have authority to order the Texas Department of Criminal Justice (TDCJ) to provide access to the defendant for the purposes of obtaining a blood sample?

Holding (Parker, J.):

No. A trial court has no “general” jurisdiction after a defendant’s conviction has become final. Here, the defendant’s conviction had been final for nearly 30 years before the trial court’s order for access (referred to in the holding as the “Access Order”). While a defendant may file subsequent habeas applications, those applications would be filed with the Court of Criminal Appeals for review and would be sent back to the trial court only if the Court found that an exception under CCP Art. 11.071, §5 had been met. “With no pending proceeding and no freestanding statutory authorization to issue an order such as this, the trial court indisputably lacked jurisdiction to issue the Access Order. It is that simple.” Read opinion.

Dissent (Walker, J.):

“TDCJ has not shown that the convicting court had a ministerial duty to undo the Access Order because TDCJ has not shown that the convicting court clearly lacked the authority to enter the Access Order. Instead, Art. 11.071 affords a convicting court judge the implicit authority to enter orders facilitating the factual investigation of potential post-conviction claims for initial and subsequent writs, even in the prefiling stage. Such orders further both Art. 11.071’s purpose and notions of fundamental fairness. In any event, this Court has never squarely held that the statute does not afford a convicting court the discretion to enter such orders” (emphasis in original). Read dissent.

Commentary:

The Texas Constitution and Texas statutes establish when a trial court has jurisdiction and the parameters of that jurisdiction, and a court does not have jurisdiction beyond what the Constitution and statutes specifically provide.  It is vital to remember this principle because jurisdiction is a threshold matter which can be raised at any time, and jurisdiction must exist before any assessment of the merits of the complaining party’s claim may properly commence.  Keep this opinion in mind if you have a case where the defendant moves the trial court to enter an order or take some action which you believe is beyond the trial court’s jurisdiction, rather than pursuing relief through another, appropriate avenue (as is more likely to occur if the defense perceives that the other route or venue is less favorable).

Texas Courts of Appeals

Madas v. State

No. 14-23-00792-CR       3/20/25

Issue:

In reviewing a motion to suppress hearing for abuse of discretion, did the State present clear and convincing evidence that the defendant freely and voluntarily consented to a search of his person other than the defendant stating, “Go ahead,” when officers asked to search his pockets? 

Holding (McLaughlin, J.):

No. While the federal constitution requires only a preponderance finding for the State to prove voluntariness of consent, the Texas Constitution requires a finding of clear and convincing evidence. Comparing the facts to Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000), the Court found that the detention included the presence of two undercover police officers, the defendant’s placing his hands on the police vehicle, and the defendant undergoing a prior involuntary pat-down search. The Court found that, like in Carmouche, the facts “would not have led a reasonable person to conclude the search was optional,” and thus there was not clear and convincing evidence of the defendant’s voluntariness to the search. Read opinion.

Dissent (Bridges, J.):

“If I was judging this motion to suppress, I might not have reached the same conclusion as to the voluntariness of [the defendant]’s consent as this trial judge did. In this case voluntariness should be gauged by more factors than saying, ‘Go ahead.’ But I cannot go so far as to say that, on the implicit findings we must give deference to in this case, this trial court abused its discretion when it denied [the defendant]’s motion to suppress. I therefore respectfully dissent.” Read dissent.

Commentary:

The circumstances of this case are less drastic than those in Carmouche, which the court nearly exclusively relies upon to substantiate its holding.  Further, as the dissent observes, this appears to be an instance where reasonable minds might differ.  In such cases, appropriate deference to the trial court’s fact-findings and determinations ordinarily means that a reviewing court will uphold the trial court’s ruling.  That did not happen here, which might prompt the State to pursue discretionary review by the Court of Criminal Appeals.

Attorney General Opinion Request

RQ-0590-KP       3/24/25

Issue:

Does the term, “the death of a prisoner in a county jail,” as stated in Tex. Gov’t Code §511.021(a), apply only to those inmates who die within the premises of a county jail but not to those inmates who die in custody outside the premises of a county jail? Read opinion request.

Requested by:

Phil Sorrells, Tarrant County Criminal District Attorney

RQ-0588-KP       3/19/25

Issue:

Whether a county “shall,” “must,” or “may” require each contractor for a road and/or bridge project to carry a performance bond and/or payment bond, or both? Read opinion request.

Requested by:

Lilli Hensley, County Attorney in Sterling County