Case of the Week Archive

Lemon v. State

The trial court allowed an improper jury argument when the prosecutor commented that the defendant had a designated DNA expert but did not call him to testify. However, the comment regarding the defense's failure to put on the expert did not call for reversal. Ample evidence, including the DNA results and the victim's testimony that the defendant sexually assaulted her continuously over three years, supported the guilty verdict. 

Lemon v. State No. 04-08-00405-CR

Mbugua v. State

In the defendant's murder trial,  the trial court correctly admitted the defendant's videotaped statement during questioning at the police department's homicide division. The defendant's mere question to officers asking if he could wait until his lawyer got there was not enough. He needed to unequivocally and unambiguously request an attorney.

Mbugua v. State No. 01-01-00690-CR

Foster v. State

The trial court incorrectly denied the defendant's motion to suppress when, after stopping behind an unmarked police car at a red light, revving his engine, and lurching his truck forward two times, he was then blocked by the arrival of a marked police car and eventually arrested for DWI. There was not reasonable suspicion to justify the stop. The situation did not warrant a detention, and the court commented, "Poor or even rude driving habits do not necessarily translate into traffic violations."

Foster v. State No. 03-08-00457-CR

Thompson v. Connick

A district attorney's office can be held civilly responsible for deliberate indifference to its obligation to train employees on their obligations under Brady v. Maryland. The Court held that withholding blood evidence that showed the defendant could not have committed a prior offense could be attributed to the policies and procedures of the entire office, rather than simply the unanticipated action of a single rogue prosecutor.

Thompson v. Connick No. 07-30443 

Ex parte Wolf

The trial court correctly granted the defendant's petition for habeas-corpus relief based on an ineffective assistance of counsel claim four years after his adjudication for stealing clothing from a department store while in college.At the time of the original trial, the defendant told defense counsel that he needed to resolve the case in a way that would enable him to clear his record so that he could work in the banking and securities industry after college. Defense counsel did not pursue either of the options (a pretrial diversion or a Class C special expense) that would have allowed for a later expungement of the defendant's record.

Ex parte Wolf No. 14-08-00078-CR

Isassi v. State

A county attorney did not commit improper influence during multiple conversations with court personnel regarding the possible prosecution of his aunt for evading arrest with a vehicle. The defendant did contact court personnel and advised them that the arresting constable was under investigation, and that the assistant district attorney did not intend to prosecute his aunt for that reason, however there was no evidence that the he offered to do anything, as county attorney, in exchange for a favorable result in his aunt's case. Neither was there evidence that the defendant gave any information to court personnel that those individuals could not lawfully use in determining how to exercise their official discretion in the case.

Isassi v. State No. 013-08-00510-CR

Stewart v. State

The defendant was not incorrectly sentenced when the jury was instructed that he would not become eligible for parole until the actual time he served plus any good conduct time earned was equal to one-fourth of the sentence it imposed, an incorrect statement regarding parole law. The jury did not have any questions regarding either the meaning or the application of the parole law. Nothing suggests that the misinformation regarding parole affected the jury's decision in sentencing or that it did not follow the trial court's instruction to not consider how good conduct time might apply to the defendant.


Stewart v. State No. 06-08-00009-CR

Sumrell v. State


During the defendant's trial for delivery of a controlled substance, he should have been present during individual questioning of prospective jurors. While the trial court informed the defendant that if he continued his unruly behavior he would be placed in a holding cell, the court did not later find him disruptive and commented on his improved behavior during defense counsel's general voir dire. Nothing in the record indicates that the defendant waived his right to be present. Remarks by defense counsel indicated that the defendant wanted to be present and no explanation was provided for the defendant's absence from individual questioning during voir dire.

Sumrell v. State No. 05-08-00732-CR

Carballo v. State

In the defendant's trial for aggravated robbery, the trial court correctly ruled that the defendant could not read his own written statement about the events. The trial court itself did not actually prevent the defendant from testifying because the trial court did not have a duty to interfere with defense counsel's trial strategy not to question the defendant. Evidence showed that the defendant approached the victim and engaged him in conversation before demanding his car keys. The defendant then pulled a handgun from his pocket and shot the victim five times during the subsequent struggle. The victim, who was able to see the defendant run to a vehicle and leave the scene, called his wife and then 9-1-1 and described the defendant to officers before he collapsed. After spending a month in a coma, the victim picked the defendant out of a photographic lineup.


Carballo v. State No. 1-07-00824-CR

Shipp v. State

The trial court should have ordered the defendant's sentences for possession of a controlled substance in a drug-free zone (60 years' imprisonment), forgery of a government instrument (25 years), and forgery of a commercial instrument (20 years and a $10,000 fine) to run concurrently. The original sentencing was based on Health and Safety Code §481.134(h). Because the court of appeals found that the evidence was legally insufficient to sustain the jury's verdict that the defendant possessed an illegal substance within 1,000 feet of a school zone, the statute's prohibition against concurrent sentences does not apply.

Shipp v. State No. 06-08-00122-CR

Kjolhede v. State

The defendant did not have standing to challenge a search of his suitcase at airport curb-side check-in by a Transportation Security Administration officer who subsequently found a vial of cocaine in the bag. The defendant had a possessory interest in his own suitcase, but he willingly surrendered the bag to the TSA for screening. There were numerous signs warning that passengers need to be available to unlock their baggage if they want to travel with locked bags. Any hope that the defendant had that his baggage would not be checked before being loaded aboard a passenger aircraft was not reasonable in a post-9/11 world.

Kjolhede v. State No. 05-06-01361-CR

Grays v. State

The defendant's sentence was incorrectly assessed when the trial court ordered cumulation of the defendant's sentence of 13 years for burglary of a habitation with his sentence of five years for aggravated sexual assault of a child after it failed to orally under the cumulation during sentencing. While the trial court heard the State's motion to cumulate, it withheld ruling on it until the State submitted a written motion with supporting case law. This action did not establish the trial court's intention to cumulate sentences and did not establish that the defendant agreed to allow the trial court to cumulate his sentences at a later date outside his presence. The State offered no authority creating an exception to the statutory requirement that sentencing for a felony offense must be pronounced in the defendant's presence nor any authority establishing an exception to the general rule that when there is a conflict between the oral pronouncement of sentence in open court and the sentence set out in the written judgment, the oral pronouncement controls.


Grays v. State No. 14-08-00051-CR

DeLeon v. State

After the defendant's conviction for multiple counts of aggravated sexual assault, sexual assault, and indecency with a child, the trial court correctly assessed punishment under Penal Code §3.03 when it stacked counts with offense dates prior to September 1997 on top of counts with later offense dates. Because the punishment did not exceed the statutory limit that was in effect at the time when the offenses occurred, the stacking was permissible.

DeLeon v. State No. 07-07-0325-CR

Scott v. State

The harassment statute was deemed unconstitutionally vague. The provisions of Penal Code 42.07 §(a)(4) and (7) are too broad to determine whether the defendant's actions in leaving a series of late-night voicemail messages while intoxicated for his ex-wife violated the statute. The Court noted that similar language in an earlier version of Texas' stalking statute was held unconstitutional in Long v. State, 931 S.W.2d 285 (Tex. Crim. App. 1996).

Scott v. State Nos. 04-08-00501-CR & 04-08-00502-CR

Wenger v. State

In the defendant's trial for promotion and possession of child pornography through a peer-to-peer file sharing network,  the trial court correctly admitted evidence of the defendant's "shared" folder to prove that he was aware of the nature of the files he shared with other users. The admission of the "shared" folder showed that the defendant both intentionally and knowingly permitted other users to access his files, which contained child pornography.

Wenger v. State No. 2-07-282-CR

Menefee v. State

During the defendant's open plea to possession of cocaine with intent to deliver, his sworn response of "guilty" was not sufficient to satisfy CCP art. 1.15. When the defendant answered the trial court's question, "As to that charge in the indictment as we've just covered, how do you plead, guilty or not guilty?" by responding "Guilty, Your Honor," he was only entering his plea, not confessing the truth or correctness of the indictment.


Menefee v. State No. PD-1530-08

Moore v. State

The trial court exceed its authority by adding conditions to the State's plea bargain agreement with the defendant for manufacture of methamphetamine, including a requirement that the defendant appear in court on a future sentencing date. The trial court's actions turned the plea into an open plea of guilt when he subsequently violated the conditions imposed on him. However, the defendant failed to object to the new conditions during the sentencing hearing and never asked to withdraw his plea so the plea stands.


Moore v. State No. PD-1340-08

Sakil v. State

The trial court correctly included a requested voluntary-intoxication instruction in the jury charge during the defendant's trial for assault. The defendant readily disclosed his own drug use, with defense counsel going so far as to suggest a link between the drug use and the defendant's symptoms at the time of the assault. The victim testified that the defendant was restless on the day of the assault and that he believed someone was following him and someone was after him. A psychiatrist testified that the defendant had a drug-use history including the abuse of amphetamines, marihuana, alcohol, and heroin and explained that a person abusing amphetamines becomes paranoid and hyper-vigilant.

Sakil v. State No. PD-0971-08 

Nguyen v. State

The trial court should have suppressed the defendant's oral statement claiming that he owned his friend's drugs when the investigating officer failed to warn the defendant of all of his rights under CCP art. 38.22 §3 during a traffic stop and roadside interrogation. There is no statutory exception in art. 38.22 for statements that constitute a crime committed after law enforcement officials violated that provision in attempting to obtain evidence of a previously committed crime. The Court rejects the State's argument that art. 38.23 requires that evidence of a crime committed before illegal conduct be suppressed, but evidence of a crime committed after the illegal conduct is not subject to suppression.

Nguyen v. State No. PD-0888-08

Montoya v. State

The trial court should not have sua sponte raised the issue of the defendant's competency to stand trial for possession of cocaine when she exhibited momentary confusion during the plea hearing and testimony indicated past impairment possibly due to end-stage liver disease. The trial court correctly used the bona fide doubt standard for determining whether there should be an inquiry into the defendant's competency. The defendant did not exhibit any truly bizarre behavior and did not have a recent history of severe mental illness or at least moderate mental retardation.

Montoya v. State No. PD-0239-08

Russeau v. State

During the defendant's sentencing for capital murder, the death penalty was correctly assessed based on the jury's finding of future danger. The State presented 62 witnesses and numerous exhibits to present evidence to the jury of the defendant's extremely dangerous behavior. The defendant had a documented history of committing felonies from the age of 17, including numerous counts of attempted burglary, felony theft, burglary of a habitation, possession, and engaging in organized criminal activity. He was a known drug abuser. While incarcerated in the county jail and in the prison system, he committed numerous serious conduct rule infractions. He committed capital murder by burglarizing a 75-year-old man's auto repair shop and then killing him by crushing his skull with a blunt instrument.


Russeau v. State No. AP-74,466

Safford Unified School District #1 et al. v. Redding

A middle-school student had a Fourth Amendment right to privacy when she was subjected to a search of her bra and underpants by school officials who were acting on reasonable suspicion that the student brought forbidden prescription and over-the-counter drugs to school. There was no reason to suspect that the over-the-counter and prescription drugs presented a danger or were concealed in the student's underwear. Despite the school personnel's report that they did not see anything during the search, a strip search and its Fourth Amendment consequences are not defined by who was looking or how much may or may not have been seen.

Safford Unified School District #1 et al. v. Redding No. 08-479

Melendez-Diaz v. Massachusetts

Business records such as laboratory reports by chemists are not admissible over a defendant's Confrontation Clause objection if the reports were created to establish or prove some fact at trial. The State's introduction of affidavits detailing a laboratory analysis of seized drugs without calling the chemist who analyzed the drugs violated of the defendant's Sixth Amendment right to confrontation. Laboratory reports by chemists are subject to the rule in Crawford. States, however, may adopt notice-and-demand statutes-and the Court specifically cited CCP Art. 38.41-to deal with the non-testifying chemist issue.

Melendez-Diaz v. Massachusetts No. 07-591

Kacz v. State

In the trial of an off-duty police officer for deadly conduct, the court should not have granted a mistrial when the State inquired about the defendant's invocation of his right to remain silent and his right to counsel. The prosecutor never asked the witness if the defendant actually invoked his right to silence; he merely mentioned that the defendant stopped talking. The witness never answered the State's question about remaining silent and the right to counsel, so the jury never heard whether the defendant had invoked any constitutional rights.

Kacz v. State No. 14-07-00841-CR

Walker v. State

In the defendant's trial for bail jumping, he had received sufficient notice of his felony arraignment hearing when the formal notice was not mailed to the address he provided at the time of his arrest, but to an address differing only in the usage of "street" vs. "lane" and was not returned as "undelivered" to the clerk. While the notice was sent to an address on Walker Lane (the address the defendant provided at the time of his booking and the actual location of the defendant's residence), there is little doubt that in the town of 1,500 it would not have been correctly delivered when addressed as Walker Street. The bondsman also spoke with the defendant's relative who said that the defendant had received the notice and would contact the bondsman before that hearing date.

Walker v. State No. 06-08-00232-CR

Ex parte Arce

In the defendant's trial for failure to register as a sex offender, he was required to register when his sexual assault sentence had discharged before the September 1, 1997, effective date of the relevant amendment to the registration statute. In determining whether a defendant must register as a sex offender, revocation of mandatory supervision for sentences that were stacked under the old statute places the releasee in the same position he was in when he was released. The defendant's sentence had not yet discharged when he was released, so it remained undischarged when his mandatory supervision was revoked. He was in custody on the sexual assault offense on the effective date of the statute requiring sex-offender registration.

Ex parte Arce No. AP-76,098

Whitaker v. State

In the defendant's trial for the capital murder of his family, the State's references to the defendant's proffer and the court's exclusion of it in the record were permissible. The proffer and the plea negotiations were a significant part of the defendant's mitigation case at punishment. They showed that he was willing to plead to as many life sentences as the State was seeking to take responsibility for the crime and to spare his remaining family members the ordeal of a trial. The defendant testified that his guilt was never an issue and that he never planned to present a defense to the charges against him at the guilt-innocence phase of trial. The defendant made no objection to the State's references to the proffer and to the plea negotiations and therefore waived any error.

Whitaker v. State No. AP-75,654

Greer v. State

The trial court incorrectly overruled two of the defendant's Batson objections to the State's use of peremptory strikes against African-American jurors during his trial for a drug offense. The State used 100 percent of its peremptory strikes to eliminate African-American venire members when only 27 percent of the panel was African-American. One African-American panelist was struck after disclosing that a relative had been through the criminal justice system, while a white panelist with a similar experience was not and the State did not conduct any further individualized questioning of that African-American juror. The State then struck another African-American jury pool member based on his response to a question regarding officer credibility when the record reflects that several other jurors also expressed the same viewpoint.

Greer v. State No. 05-08-00146-CR

Smith v. State

When the State filed a motion to adjudicate the defendant for new charges after his original plea and subsequent deferred adjudication, the trial court should not have granted a hearing on the defendant's motion for new trial when the basis of the motion was ineffective assistance of counsel. The defendant's motion for new trial and supporting affidavit raised an issue that could not be determined from the record: whether trial counsel was ineffective for failing to inform him of his right to testify on his own behalf and to enter certain medical records into evidence. The defendant failed to explain how counsel's allegedly unprofessional errors would have changed the trial court's finding of true on all three violations in the State's motion to adjudicate and failed to show that the result of the hearing to adjudicate guilt would have been different.


Smith v. State  No. PD-0777-08

Johnson v. State

During the defendant's trial for two counts of indecency with a child, it was not within the trial court's discretion to impose jail time as a condition of community supervision immediately after the judge heard an unsworn and un-cross-examined victim allocution that the victim wanted the defendant to go to jail. Code of Criminal Procedure art.42.03 requires that a victim-allocution statement be read after the court has announced the terms and conditions of the sentence.

Johnson v. State No. PD-1187-07Read opinion.

Mason v. State

During the defendant's trial for capital murder,  the trial court incorrectly denied the defendant's pre-trial motion to quash the indictment after the State conceded that the indictment was obtained in a grand jury proceeding that violated Code of Criminal Procedure art. 20.011 and 20.04 The presence of two law enforcement officers who questioned witnesses in the grand jury room was clearly improper. The officers questioned a witness regarding evidentiary details, asked leading and suggestive questions, attempted to rehabilitate the witness, and bolstered the witness's testimony. While the State acknowledged its mistake, it still tried to persuade the trial court to deny the motion to quash, which was the ultimate result. The case is reversed and remanded for a new trial.


Mason v. State No. 07-07-0383-CR

Caperton v. A.T. Massey Coal, et al.

In denying a recusal motion directed at him, a judge who had previously received generous campaign contributions linked directly to the board chair and principal officers of the corporation in the case before him violated the Due Process Clause of the Fourteenth Amendment. It is unconstitutional for a state supreme court justice to sit on a case involving the financial interests of a major donor to that judge's election campaign.

Caperton v. A.T. Massey Coal, et al. No. 08-22

Houston v. State

The trial court correctly denied the defendant's motion to suppress where the defendant claimed the driver's consent to search was invalid because the defendant had a greater right to privacy in the vehicle than the driver's right to possession. The vehicle was registered to the defendant's father, yet the defendant had been driving it for about four years. The defendant admitted that the driver had his permission to operate the vehicle and to exercise control and management over it.

Houston v. State No. 09-08-00254-CR and 00255-CR 

Eduardo Valtierra v. State and Heriberto Valtierra v. State

The trial court incorrectly denied two separate motions to suppress brought by two brothers charged with drug offenses arising out of the same search of their shared residence. In both cases the State did not meet its burden to show that exigent circumstances justified the officers' proceeding down the hallway in the defendants' home and conducting a protective sweep of the premises while searching for a runaway minor who was allegedly in the house. There was no evidence that the officers believed they were in danger, only that they were concerned about the runaway who was supposedly inside.

Eduardo Valtierra v. State No 04-08-00236-CR     Heriberto Valtierra v. State No 04-08-00239-CR

Ahmad v. State

In the defendant's trial for possession of a hoax bomb,  the first grand jury indictment alleging that the defendant buried a training bomb tolled limitations with regard to a second indictment alleging that she made a false report about a bomb and possessed a hoax bomb. Both indictments stem from the defendant's possession of, and report about some kind of bomb-hoax, training or unspecified. If prior and subsequent indictments charge different offenses but those offenses arise from the same conduct, the prior indictment tolls the statute of limitations.

Ahmad v. State No. 2-08-008-CR 

Salazar v. State

In the defendant's trial for burglary of a habitation the fact that the structure was a habitation provided notice that entry was forbidden. A habitation carries a greater right of privacy and most habitations are not open to the public. Common sense and courtesy teach that it is essential to seek permission to enter a habitation, rather than to enter it without permission. If a habitation did not inherently give notice that entry is forbidden without permission, there would be no need to include a doorbell, knocker, or even a lock on a home.

Salazar v. State No. PD-0956-08 

Ocon v. State

The defendant was not entitled to a mistrial when in the restroom during a recess in the trial, defense counsel and a juror overheard another juror speaking on his cell phone about his jury service. While on the call, the juror expressed frustration with being required to perform one of his civic duties and said that he did not like the subject matter of the case. No evidence was presented to suggest that the juror received any outside information about the case because of the conversation.

Ocon v. State No. PD-0297-08 

Ex parte Imoudu

A defense attorney provided ineffective assistance of counsel to a defendant charged with murder by not alerting the defendant to the possibility of pursuing an insanity defense after he exhibited strange behaviors and signs of mental illness. The defendant's father and a jail social worker told the defense attorney that the defendant was "not himself" and was acting bizarrely during their meetings with him. An exam was conducted to determine if the defendant was competent to stand trial, but the defense never investigated whether he was insane at the time of the offense. Defense counsel did not review jail medical records or speak to any jail personnel who had contact with the defendant after his arrest, nor did counsel request an insanity evaluation or hire a psychiatrist to evaluate the defendant's mental condition at the time of the offense.

Ex parte Imoudu No. AP-75,964

Gabriel v. State

In his prosecution on a theft charge, the defendant had no expectation of privacy in the postal box that he had rented within a retail shipping and mailing center. By submitting the federally required form to rent a postal box in a commercial mailing center, the defendant created an agency relationship with the mailing center. The defendant's postal box could be opened only in the front by a key, while the back remained open to the mailing center employees. The manager of the mailing center had the authority to consent to the investigator's warrantless request to view the defendant's mail by collecting the mail from the postal box and copying the front of the envelopes.

Gabriel v. State No. 14-08-00037-CR

Briseno v. State

For a defendant charged with sexual assault of an adult victim, a trial judge is allowed to impose conditions of community supervision limiting the defendant's interaction and contact with minor children and subjecting him to warrantless searches. The searches were to be conducted during certain hours and only by the defendant's supervision officer. The provisions restricting the defendant's interaction and contact with minor children were modified to allow him contact with his own family and otherwise were reasonably related to the purposes of probation, even though his victim was not a child.

Briseno v. State No. 04-08-00353-CR

Brock v. State

The trial court incorrectly refused to include the lesser-included offense of misdemeanor assault in the jury charge during the defendant's trial for assault on a public servant. Two inmate witnesses testified that the incident began with an unprovoked attack on the defendant, to which he responded by striking the officer. The officer and two other officers who witnessed the altercation testified that the officer was blindsided when the defendant struck him. The court held that a rational jury could find that the officer may have either criminally or tortiously abused his status as a public servant by acting outside the lawful discharge of his duties during the altercation.

Brock v. State No. 01-08-00509-CR

Montejo v. Louisiana

Law enforcement officers are free to approach for custodial interrogation a defendant who has first appeared before a magistrate at the jail. So long as the officers first read the suspect his Miranda rights and have obtained a waiver of counsel under standard Miranda rules. With this decision, overruling Michigan v. Jackson (prohibiting interrogation of a defendant who invoked his right to counsel at arraignment), the Supreme Court allows for a bypass of the issue created in Rothgery v. Gillespie County (where magistration created protection under the Sixth Amendment with regard to right to counsel). The Court concluded, "What matters for Miranda and Edwards is what happens when the defendant is approached for interrogation, and (if he consents) what happens during the interrogation - not what happened at any preliminary hearing."

Montejo v. Louisiana No. 07-1529

Woodard v. State

There was an error in the jury charge when the indictment charged the defendant only with murder and the court submitted a charge that authorized the jury to convict the defendant not only of murder, but also conspiracy to commit aggravated robbery and/or conspiracy to commit robbery. Conspiracy to commit aggravated robbery and conspiracy to commit robbery are not alternatives to or lesser-included offenses of murder. To prove the unindicted offenses, the State would have needed to demonstrate the existence of an agreement, an overt act, and theft, elements not required to establish the commission of murder.

Woodard v. State No. 14-08-00288-CR

Lemons v. State

The trial court should not have refused to admit an incriminating photo found on the defendant's cell phone because in finding it, the investigating officers did not exceede the scope of the defendant's consent to search. When the officer asked to examine the defendant's cell phone, the defendant nonverbally assented by handing the phone to the officer. Nothing indicates the defendant meant to limit his consent - either in the content of the conversation that he had with the officer or in his handing over the phone. Further, the defendant's lack of protest during the officer's continued search of the phone indicated that the search was within the scope of the defendant's initial nonverbal consent.

Lemons v. State Nos. 12-08-00074-CR and 12-08-00075-CR

Durden v. State

The trial court incorrectly denied a defensive instruction on mistake-of-fact in the defendant's trial for theft of copper wire when the defendant testified that he believed the wire was abandoned and that he only moved it a short distance from where he discovered it. The defendant's testimony could have served as some evidence to the jury that he believed the wire to have been abandoned. While the mistake-of-fact instruction might have been repetitive to the required proof of intentionally or knowingly committing theft, the trial court was still statutorily required to include that properly requested instruction. The court concluded, however, that the error was harmless.


Durden v. State No. 06-08-00223-CR 

State v. Hoffman

Investigating officers did not have probable cause to conduct a warrantless search of the defendant's motel room while they held her boyfriend on a drug charge. One of the officers testified that when they visited the motel, they did not have probable cause to search the room and were there in the hopes of gathering more information so they could get a search warrant. While the officers had arrested the defendant's boyfriend earlier in the day, they had no specific information that the defendant possessed drugs in the motel room. (See TDCAA Case Summaries - April 17, 2009).


State v. Hoffman Nos. 04-08-00614-CR & 04-08-00615-CR 

Smith v. State


During the defendant's sentencing for a violating his community supervision,  the trial court incorrectly reopened the adjudication hearing and find the allegations of felony aggravated robbery to be true. The trial court heard testimony regarding the defendant's numerous community supervision violations and evidence regarding the current charge for armed robbery. Both the State and the defense rested and delivered closing arguments. At this point, the argument had concluded. In allowing the reopening the trial court violated Code of Criminal Procedure art. 36.02.

Smith v. State No. 14-07-00966-CR

Jackson v. State

In the defendant's trial for interference with an emergency telephone call, he was not entitled to a mistrial when his former girlfriend made reference during her testimony to the defendant's two previous incarcerations. The disclosures of the defendant's two previous incarcerations were not calculated to inflame the minds of the jury, nor were they so damaging as to make it impossible to remove the harmful impression from the jurors' minds. In the first case, the trial court's instruction directing the jury to disregard the references adequately addressed the defendant's objection. In the second, the judge gave an appropriate curative instruction in response to the defendant's second objection.


Jackson v. State No. 14-08-00369-CR

Gutierrez v. State

Upon the defendant's guilty plea to forgery and assessment of two years in state jail and a $500 fine, the trial court correctly refused to grant him credit for the time he had served in a county jail. The limiting language in Code of Criminal Procedure art. 42.12 §15(d) that the trial court may not require a defendant to submit to both the term of commitment authorized by the subsection and a term of confinement in the county jail under §12 refers to situations where the trial court has ordered confinement in a state jail facility at the beginning of the community supervision term.


Gutierrez v. State No. 11-07-00322-CR


Esparza v. State

A sexual assault victim's assertion that she had consensual sex with another man two days before she was sexually assaulted by the defendant does not preclude the defendant, during the trial, from seeking DNA testing of material in the rape kit under CCP Chapter 64. The victim's prior sexual encounter did not preclude the defendant from establishing that the DNA testing could have yielded exculpatory results. In a fact-intensive opinion the Court compared to Smith v.Slate (165 S.W.3d 361 (Tex. Crim. App. 2005)), the Court ruled that there was no scientific evidence supporting the contention that biological material deposited two days before the sexual assault would still be present in the victim when the rape kit was conducted.

Esparza v. State No. PD-1616-07