This page of Baker's Legal Pages contains casenotes from recent decisions of the Texas Court of Criminal Appeals. This information is made available as a free public service for your personal, non-commercial use. While every effort has been made to provide accurate material at this site, it is provided "as is" and no representations are made that it is free of mistakes or inaccuracies. If you inform me of any mistake or inaccuracy that you find here, I will make every effort to determine what corrections are required and to make those changes.

Below are casenotes from recent opinions of the Texas Court of Criminal Appeals, supplementing Baker's Texas Criminal Evidence Handbook. Each casenote is linked to the text of the opinion from which it was derived.

For links to other casesnote pages supplementing Baker's Texas Criminal Evidence Handbook, see the Criminal Evidence Handbook Casenotes Listing.

For links to casesnote pages for other handbooks, see the Main Casenotes Listing.

If you already know the name of a particular recent case of interest, you may go directly to that opinion from the Table of Recent Opinions.

rules (CCP Art. 18.01. Search Warrant)

• The amendment to Article 18.01(d), deleting the prohibition against subsequent search warrants and providing that subsequent warrants be issued by specified courts, is procedural in nature. It affects only the circumstances in which subsequent evidentiary search warrants may be issued; the amendment does not impact a defendant’s right to be free from unreasonable searches and seizures. Ibarra v State, 11 S.W.3d 189 (Oct. 20, 1999)

search lawful (CCP Art. 18.01. Search Warrant)

• Issuance of a second search warrant under 1995 amendment of Article 18.01(d), following first search warrant under prior version of 18.01, did not violate the prohibition against retroactive laws contained in Texas Constitution Art. I, Sec. 16. [Facts of case: Instant offense, murder in the course of a sexual assault, occurred on March 5, 1987. On or about March 10, 1987, Waco police detectives obtained an evidentiary search warrant for blood and hair samples from def. An indictment was returned on May 25, 1987. However, due to the detectives’ failure to properly procure the search warrant through a court of record, the items seized pursuant to that warrant were eventually suppressed. The State was unable to obtain a subsequent search warrant because Article 18.01(d), as it then provided, prohibited it. Without this evidence, the State dismissed the indictment. In 1995, Article 18.01(d) was amended to permit the issuance of subsequent search warrants. Following the amendment, the State obtained a second search warrant for hair and blood samples from def, who was re-indicted and convicted.] Ibarra v State, 11 S.W.3d 189 (Oct. 20, 1999)

notes (CCP Art. 18.10. How Return Made)

• Article 38.23 does not apply to violations of Article 18.10. Article 38.23(a) requires the exclusion of evidence "obtained...in violation of any provisions of the Constitution or laws of the State of Texas...." Article 18.10's requirement that property not be removed from the county applies only after the property has already been seized. The "obtaining" of a particular item of evidence is not a continuing act. That officers may move an item of evidence to an unauthorized location after it has been legally obtained does not vitiate the status of such evidence as having been legally obtained. Martinez v State, 17 S.W.3d 677 (May 17, 2000)

• No merit to contention trial court erred in admitting evidence over def's objection which was seized in Harris County, but later removed to Montgomery County without order and for use in a criminal proceeding against def, in violation of 18.10 and 38.23. The complained-of photographs were the work product of the officers investigating the instant offense and were not items seized pursuant to a search warrant, so 18.10 and 38.23 did not apply. Kutzner v State, 994 S.W.2d 180 (June 9, 1999)

state's burden (Search & Seizure, Presenting Issue)

• It was not error to deny motion to suppress evid seized under search warrant, on claim state did not present search warrant to trial court, where def never established his standing to challenge the search in question: He never established that he personally had a reasonable expectation of privacy in the premises that were searched. Although def asserted in his boilerplate motion to suppress that his residence was the place searched, he presented no proof of such claim to the trial court. Also, def never established that the search in question was on its face unreasonable. Under these circumstances, the State had no duty to exhibit the search warrant and its supporting affidavit to the trial court. Handy v State (April 12, 2006, PD-1220-04)

role of appeals court (Search & Seizure, Presenting Issue)

• On appeal, the question of whether a specific search or seizure is "reasonable" under the Fourth Amendment is subject to de novo review. Despite its fact-sensitive analysis, "reasonableness" is ultimately a question of substantive Fourth Amendment law. It is true that, in assessing this legal issue, courts give great deference to the trial court's findings of historical fact. However, questions involving legal principles and the application of law to established facts are properly reviewed de novo. Kothe v State (October 20, 2004, No. PD-1738-03)

issue not waived (Search & Seizure, Waiver Factors)

• Def's guilt-stage and punishment-stage testimony admitting his guilt did not waive claimed error in overruling motion to suppress cocaine.

  As to his punishment stage testimony, after considering basis for DeGarmo doctrine [DeGarmo v. State, 691 S.W.2d 657 (Tex. Cr. App.), cert. denied, 474 U.S. 973 (1985)], Court held that doctrine could not be invoked to prevent appellate review of whether evid was illegally seized.

  Def's guilt stage testimony did not waive issue because def could rely on exceptions to waiver for (1) defendant’s testimony was impelled by the State’s introduction of evidence that was obtained in violation of the law, and (2) the harmful effect of improperly admitted evidence is not cured by the fact that the defendant sought to meet, destroy, or explain it by introducing rebutting evidence. Court of Appeals erred in deeming the issue was waived by def's guilt stage testimony under an extension of the “DeGarmo doctrine.” Leday v State, 983 S.W.2d 713 (Dec. 16, 1998)

role of appeals court (Search & Seizure, Role of Appeals Court)

• A magistrate's determination to issue a warrant is subject to the deferential standard of review articulated in Illinois v. Gates, 462 U.S. 213 (1983) ["so long as the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more."] and Johnson v State, 803 S.W.2d 272 (Tex. Crim. App. 1990). Resolving a split among court's of appeals regarding appropriate standard for review: State v. Bradley, 966 S.W.2d 871 (Tex. App.- Austin 1998, no pet.)(great deference); Daniels v. State, 999 S.W.2d 52 (Tex. App. - Houston [14th Dist.] 1999, no pet.)(deference); Ramos v. State, 31 S.W.3d 762 (Tex. App. - Houston [1st Dist.] 2000, no pet.)(de novo). Distinguishing standard of review in warrantless search situations [Ornelas v. United States, 517 U.S. 690 (1996), where the Supreme Court held that appellate review of reasonable suspicion and probable cause should be conducted de novo, and Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). Swearingen v State (June 23, 2004, No. 110-03)

Texas Const rights (Search & Seizure, Constitutional Rules)

• Where def did not contend that Article I Sec. 9, Texas Const, provides different protections than the Fourth Amendment, and did contend that the constitutional provisions are identical in all material aspects, appeals court, having resolved def's Fourth Amendment claims against him, did not need to separately address his state constitutional claims. Busby v State, 990 S.W.2d 263 (March 31, 1999)

presenting issue (Search & Seizure, Standing & Expectation of Privacy)

• No merit to def's contention that state could not raise standing issue for first time on appeal. Because standing is an element of a Fourth Amendment claim, the state may raise the issue of standing for the first time on appeal, even when the defendant is the prevailing party in the trial court. The appellate court may raise the issue of standing on its own; it may analyze that issue as a part of the Fourth Amendment claim presented; or it may conclude that the state has forfeited that argument because it failed to raise it in the trial court. Kothe v State (October 20, 2004, No. PD-1738-03)

rules (Search & Seizure, Standing & Expectation of Privacy)

• On 11.07 petition for habeas corpus, relief granted where TDCJ-CID was improperly calculating def's sentence. Where def received stacked sentences, the sentence on the first conviction "ceased to operate" when he was released on parole and he was entitled to credit on sentence for second conviction for all the time he had been confined since that date (time confined subsequent to revocation of parole). Ex parte Salinas (January 25, 2006, No. AP-75,323)

• Whether a defendant has standing to contest a search and seizure is a question of law which appeals court will review de novo. State v Parker (January 18, 2006, No. PD-221-04)

• To challenge a search, the defendant must have a legally protected right to the expectation of privacy. The two-prong method (from Smith v. Maryland, 442 U.S. 735 (1979)) for determining whether a defendant has a reasonable expectation of privacy that has been invaded by some action of the government requires the court to ask (1) whether the defendant had a subjective expectation of privacy in the place searched, and (2) if the answer is yes, whether the defendant's expectation of privacy is one that society recognizes as reasonable or justifiable under the circumstances. State v Parker (January 18, 2006, No. PD-221-04)

• A defendant with burden of demonstrating a legitimate expectation of privacy can do so by establishing that he had a subjective expectation of privacy in the place invaded that society is prepared to recognize as reasonable. Several factors are relevant to determining whether a given claim of privacy is objectively reasonable: (1) whether the accused had a property or possessory interest in the place invaded; (2) whether he was legitimately in the place invaded; (3) whether he had complete dominion or control and the right to exclude others; (4) whether, prior to the intrusion, he took normal precautions customarily taken by those seeking privacy; (5) whether he put the place to some private use; and (6) whether his claim of privacy is consistent with historical notions of privacy. This list of factors is not exhaustive, and none is dispositive of a particular assertion of privacy; rather, the circumstances surrounding the search are examined in their totality. Granados v State (May 8, 2002, No. 73,525)

• While Minnesota v. Olson, 495 U.S. 91 (1990), recognized that an overnight guest has a legitimate expectation of privacy in his host's home, it recognized that its conclusion was premised upon certain observations about social custom, including that, among other things, the houseguest and his possessions "will not be disturbed by anyone but his host and those his host allows inside" and that "[t]he houseguest is there with the permission of his host." The overnight guest doctrine thus assumes that the guest is present with the host's permission when a government intrusion occurs, and that the guest must accept the reality that the host will permit others to intrude. These statements in Olson suggest that when, for example, the host chooses to allow others, such as police, inside, or when the houseguest no longer has the permission of his host to be on the premises, the guest's expectation of privacy diminishes. Granados v State (May 8, 2002, No. 73,525)

no standing - vehicle (Search & Seizure, Standing & Expectation of Privacy)

• It was not error to admit evid seized in search of car, where def did not show reasonable expectation of privacy. Def was passenger hiding on floorboard in backseat when officer approached car at a gas station. Fact def had previously received traffic tickets while driving car did not show expectation of privacy, where def did not show he had permission to drive car in those instances, that he had contining permission to drive car, or that he had any possessory interest in it. Jones v State (November 5, 2003, No. 74,060)

• It was not error to deny motion to suppress evid seized from car and other suspect in offense, over contention it was product of illegal arrest. Regardless whether def's arrest was illegal, he could not claim a violation of any legitimate, reasonable expectation of privacy as a result of the search and seizure of the vehicle or its other occupants, where def claimed no possessory interest in the vehicle itself or in those items seized from within it, nor did he claim possession of any property found on the second suspect. With regard to those items, def endured no infringement of any right ensuring freedom from unreasonable searches and seizures. Hughes v State, 24 S.W.3d 833 (Apr. 12, 2000)

• Def had no standing to object to a search of truck that was stolen. Busby v State, 990 S.W.2d 263 (March 31, 1999)

no standing - building (Search & Seizure, Standing & Expectation of Privacy)

• It was not error to deny motion to suppress evid seized under search warrant, on claim state did not present search warrant to trial court, where def never established his standing to challenge the search in question: He never established that he personally had a reasonable expectation of privacy in the premises that were searched. Although def asserted in his boilerplate motion to suppress that his residence was the place searched, he presented no proof of such claim to the trial court. Also, def never established that the search in question was on its face unreasonable. Under these circumstances, the State had no duty to exhibit the search warrant and its supporting affidavit to the trial court. Handy v State (April 12, 2006, PD-1220-04)

• It was not error to deny motion to suppress over claim evid was obtained in warrantless search of def's residence. Def and his wife had already moved out of residence, and when officer arrived landlord had just cleaned it out in order to rent it to another party; landlord showed officer where he had thrown out the trash and officer recovered evid at issue. Because def voluntarily abandoned the residence prior to date evid was recovered, he lacked standing to complain about any search conducted of the residence or trash removed from it on that date. Swearingen v State (March 26, 2003, No. 73,851)

• Although def at one time had a reasonable expectation of privacy in apartment when he began spending the night there with resident's permission, def lacked standing at time police arrived and firefighters forced door of apartment open. Resident had asked def on several occasions to leave her apartment. Def understood this request, for it was precisely this request that appeared to inflame him prior to his attack on resident and her 3-year-old son. Resident gave def several opportunities to gather his belongings and vacate the apartment before his attack on them, and nearly twelve hours passed between the time she asked him to leave and the time of the police intrusion. Def took normal precautions to protect his privacy (such as locking the front door and ignoring visitors) and he put the place to some private use. Nevertheless, aside from keeping his belongings in the apartment and establishing phone service in his name, he had no other property or possessory interest in the apartment itself; because he had been asked to leave, he was not legitimately in the apartment when the search occurred; he did not have dominion over the apartment with the right to exclude others; and, his claim is not consistent with historical notions of privacy. Given these facts, def failed to meet his burden of showing that his expectation of privacy was objectively reasonable, and therefore lacked standing to challenge the search of the apartment. Granados v State (May 8, 2002, No. 73,525)

no standing - third party (Search & Seizure, Standing & Expectation of Privacy)

• Def had no standing to complain of the search of passenger in truck def was driving because Fourth Amendment does not confer standing to challenge the search of a third party. Busby v State, 990 S.W.2d 263 (March 31, 1999)

no standing - other (Search & Seizure, Standing & Expectation of Privacy)

• It was not error to deny motion to suppress blood evid taken from def's clothing after he was arrested for unauthorized use of motor vehicle and parole violation, and given a jail uniform, and his clothes and other effects were inventoried, then clothes were sent to crime lab for DNA analysis which linked def to murder victim. Seizure was incident to arrest and def presented no evid he had a subjective expectation of privacy in clothing that was in police custody. Threadgill v State (October 13, 2004, No. AP-74,458)

• It was not error to deny motion to suppress evid obtained from analysis of def's clothing that he was wearing at time of arrest. Def had no reasonable expectation of privacy in the items under facts of instant case. Def was initially detained at police station as a potential witness to a murder, and during this detention the police discovered an open warrant issued for his arrest on a motion to revoke probation and arrested him on that outstanding warrant, not for the murder. The police inventoried and stored def’s clothing pursuant to this lawful arrest. There was no evidence on or within this clothing that was immediately apparent to the naked eye. Eight days later, with def still incarcerated pursuant to the revocation warrant, an investigator took his clothing to the medical examiner’s office to determine if it contained blood traces. A serologist discovered blood on def’s shoes that matched the blood of the murder victim and police charged def with instant murder. It was of no consequence that def was arrested for a different crime than the one for which he was eventually charged. The police lawfully arrested def pursuant to an open arrest warrant, and any evidence discovered in a search incident to that arrest, if otherwise reasonably seized, should not be suppressed merely because it relates to a different crime than the one for which def is eventually charged. There was virtually no evidence that def harbored a subjective expectation of privacy in his clothing that was in the custody of the police, nor was there evidence that society would deem such a belief reasonable under these circumstances. Def failed to meet his burden of proof in establishing a legitimate expectation of privacy in this clothing. Oles v State, 993 S.W.2d 103 (May 26, 1999)

record showed standing or reasonable expectation of privacy (Search & Seizure, Standing & Expectation of Privacy)

• Court of appeals erred in concluding that def did not have standing to contest search of rental car because his name was not listed on rental agreement, where def was driving car rented by his girlfriend who had given def permission to drive the car even though rental agreement did not allow def to drive car or allow her to give him permission to drive car. If she had loaned def her own car to drive, it would be clear that society would recognize def's expectation of privacy in the use of his girlfriend's car with her permission. However, because her car was being repaired that day, she rented a car for her personal use and loaned the rental car, rather than her own car, to def. The fact that the car is a rental does not change an individual's expectation of privacy in a car that he borrows from his girlfriend. Def did not steal the car; he did not even use it without his girlfriend's knowledge. Rather, he had her express permission to drive the car that she had rented. There was nothing in the record that indicated that he knew about the terms of the car rental agreement or that he knew the agreement did not list him as an authorized driver. His use of the car may have resulted in a breach of the contract between his girlfriend and the rental agency, but that did not automatically abolish his standing to contest a violation of his constitutional rights. Given the evidence in this particular case, society would recognize as reasonable def's expectation of privacy in the use of his girlfriend's rental car with her permission even though he was not listed as an authorized driver on the rental agreement. State v Parker (January 18, 2006, No. PD-221-04)

• Although def did not have standing to challenge search of passenger in car def was driving, def did have standing to contest legality of detention and challenge admission of evid seized from passenger as fruit of poisonous tree if search constituted an exploitation of an illegal detention. Kothe v State (October 20, 2004, No. PD-1738-03)