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.

luggage abandoned (What Is a Search)

• Trial court mischaracterized issue of police officer encounter with bus passenger when it considered whether there was probable cause to approach def and engage him in conversation or to detain the bus. The issue of probable cause arises in searches, seizures, and arrests. It does not apply to a police officer’s approaching a citizen to engage in conversation. Nor does the issue of articulable suspicion to detain under Terry v. Ohio apply here. According to the trial court’s findings of fact, this was “a consensual conversation” between def and officer. It is not an arrest or a detention. It is an encounter. Record did not support trial court conclusions of law, that def's bag was abandoned as a result of police activity. There was no evidence of police misconduct and def at least twice denied ownership of the bag and voiced no objection to the search. It was error for trial court to grant motion to suppress drugs found in bag. State v Velasquez, 994 S.W.2d 676 (June 16, 1999)

rules on false info (Search & Seziure Rules)

• It was abuse of discretion to refuse to allow defense witnesses to testify at a Franks [Franks v Delaware, 438 U.S. 154 (1978)] evidentiary hearing after: (1) defendant made a substantial preliminary showing of falsity, and (2) state was allowed to present testimony in support of the affidavit's accuracy and the affiant's veracity. No merit to state's contention def was not entitled to Franks hearing because his written motion did not contain sworn affidavits or sworn statements; def is not required to include a sworn affidavit in making a preliminary showing under Franks. In his motion to suppress, def made substantial preliminary showing of falsity under Franks. By alleging a deliberate falsehood by the affiant and specifically pointing out those portions of the affidavit claimed to be false, as well as identifying the specific reasons why he knows this information is false, def satisfied the first prong of Franks. Language in def's motion* could only be construed as an offer of proof of what def and his wife would testify to at a Franks hearing if allowed to do so. Def met all three prongs of Franks and made substantial preliminary showing of falsity; he was entitled to an evidentiary hearing in which to offer proof of his Franks challenge. By denying def the opportunity to present testimony or any other evidence to prove his specific allegations of falsity, trial court denied def his right to a full Franks hearing. Cates v State (November 12, 2003, No. 1206-02)

showing probable cause (Search & Seziure Rules)

• The standards for a warrantless entry into a home differ from those for a warrantless arrest. Each action requires the police to meet two distinct hurdles. In both situations the first hurdle involves the existence of probable cause to believe that some offense has been or is being committed, but differs depending on whether probable cause points to a person (arrest) or a location (search). The second hurdle differs depending on whether the officer is crossing the threshold of a home without a warrant to investigate an offense, or he is making a warrantless arrest. Under Texas law, a police officer must have both probable cause with respect to the person being arrested, plus statutory authority to make that arrest. To establish probable cause to arrest, the evidence must show that at the moment of arrest the facts and circumstances within the officer's knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the arrested person had committed or was committing an offense. There is a significant difference between (1) probable cause to believe that someone has committed an offense and (2) probable cause to believe that this particular person has committed an offense. Probable cause to arrest must point toward the specific person being arrested. Second, the officer who lacks a warrant to arrest must have statutory authority to make such a warrantless arrest. On the other hand, when the question is probable cause to cross the threshold of a private residence, probable cause may point to the location, but not necessarily a specific person. Again, the State must leap two hurdles. Probable cause to search exists when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe that the instrumentality of a crime or evidence of a crime will be found. Probable cause that points toward the location (but not necessarily any particular person) is the first hurdle. The second hurdle is that exigent circumstances, those which justify an immediate need to enter a residence without first obtaining a search warrant, must also exist. If either probable cause or exigent circumstances are not established, a warrantless entry will not pass muster under the Fourth Amendment. Parker v State (April 12, 2006, PD-0250-05)

• Probable cause does not depend upon the accumulation of only those facts which show overtly criminal conduct. Instead, probable cause is the accumulation of facts which, when viewed in their totality, would lead a reasonable police officer to conclude, with a fair probability, that a crime has been committed or is being committed by someone. The determination of whether an officer has probable cause to enter a person's home without a warrant is a factual one based on the sum of all the information known to the officer at the time of entry. Parker v State (April 12, 2006, PD-0250-05)

incident to arrest (Search & Seziure Rules)

• Once an officer has probable cause to arrest, he may search the passenger compartment of a vehicle as a search incident to that arrest. It is irrelevant that the arrest occurs immediately before or after the search, as long as sufficient probable cause exists for the officer to arrest before the search. State v Ballard, 987 S.W.2d 889 (Feb. 24, 1999)

• The time at which an officer announces arrest is not the critical issue; rather it is whether sufficient probable cause for arrest existed before the search. State v Ballard, 987 S.W.2d 889 (Feb. 24, 1999)

search of person (Search & Seziure Rules)

• There are several different forms of searches, each involving a different degree of intrusion. Courts classify some of the more intrusive searches as "strip searches," "visual body-cavity searches," and "manual body-cavity searches." The term "strip search" generally refers to an inspection of a naked person, without any scrutiny of the person's cavities. A "visual body-cavity search" includes a visual inspection of a person's anal or genital areas. A "manual body-cavity search" involves some degree of probing or touching a person's body cavities. McGee v State (April 23, 2003, No. 1408-00)

• Where officer ordered def to bend over and spread his buttocks for inspection, but did not touch or probe def's anus, facts presented a visual body-cavity search. McGee v State (April 23, 2003, No. 1408-00)

• In reviewing a visual body-cavity search, court must decide whether, on the whole, the manner in which the search was conducted was reasonable. One factor court may consider is whether the search was violent. McGee v State (April 23, 2003, No. 1408-00)

automobile (Search & Seziure Rules)

• Automobile exception to the warrant requirement was not applicable where vehicle in which def was a passenger was not stopped due to any violation of traffic laws or because it was suspected of having been involved in any criminal activity. (Officer observed def leaning out of an open rear window and vomiting.) Wright v State, 7 S.W.3d 148 (Dec. 15, 1999)

probable cause (Affidavit for Search Warrant, No Error)

• It was not error to deny motion to suppress on claim police lacked probable cause to enter def's home, where they had probable cause to believe a crime had been or was being committed inside def's home, where officer testified: (1) a woman known to second officer had reported to them that minors were consuming alcohol at a two-story house in the 1400 block of Avenue C; def's house was the only two-story house on that street; (2) when officer knocked on the door, someone parted the blinds and said, "It's the police"; (3) someone who looked like a juvenile whom testifying officer and second officer both knew then ran upstairs; (4) a strong odor of burnt marihuana came from inside the house when def opened the front door; and (5) officer knew def because of three previous encounters, one of which had led to def's arrest. Parker v State (April 12, 2006, PD-0250-05)

probable cause & informant reliable (Affidavit for Search Warrant, No Error)

• It was not error to deny motion to suppress evid seized in search of def's car, over claim officer lacked probable cause to search car, where evid showed informant: (1) had been reliable in the past; (2) gave detailed information about def, his recent whereabouts and his recent possession of cocaine "rocks"; and (3) provided many verifiable details; and officer was able to verify almost every piece of informant's information, except the actual presence of the cocaine, before detaining def and searching his car. Dixon v State (May 24, 2006, PD-1592-05)

false information (Affidavit for Search Warrant, No Error)

• It was not error to deny motion to suppress over contention the supporting affidavits contained nine factual assertions that were false and made knowingly or with a reckless disregard for the truth; the information supporting probable cause in the search and arrest warrant affidavits was substantially correct, and did not present error under Franks v. Delaware, 438 U.S. 154 (1978). Hinojosa v State, 4 S.W.3d 240 (October 27, 1999)

• No merit to contention that misstatement in affidavit as to source of information provided by another officer to affiant, showed Franks error, where the underlying substantive information was essentially consistent; any misrepresentation was only with regard to how the information was gained. Hinojosa v State, 4 S.W.3d 240 (October 27, 1999)

• No merit to contention that misstatement in affidavit, that def was on parole for murder, when he was on parole for voluntary manslaughter, showed Franks error. Failure to confirm the murder charge, although negligent, was not reckless disregard given affiant's reasonable reliance on the parole officer’s misinformation. Hinojosa v State, 4 S.W.3d 240 (October 27, 1999)

• No merit to contention that affidavit contained falsehoods, where def relied on contradictions in testimony of witnesses. Deliberate falsehood or reckless disregard was not established simply because def’s ex-wife denied making the statements in the affidavit. These allegations of false statements in the affidavit come down to a credibility determination between affiant and defense witness. Hinojosa v State, 4 S.W.3d 240 (October 27, 1999)

• No merit to contention that misstatement in affidavit, that samples had been delivered for forensic analysis, when they had not been delivered at time affidavit was made, showed Franks error. Whether the samples had been or were yet to be submitted for forensic analysis at the time the affidavit was presented to the magistrate is immaterial. Hinojosa v State, 4 S.W.3d 240 (October 27, 1999)

search under warrant - no error (Search Under Warrant, No Error)

• Where search warrant authorized seizure of def's blood, and he did not contest validity of the warrant, compliance with the implied consent statute was not necessary to satisfy the Fourth Amendment. The implied consent statute does not offer protection greater than the Fourth Amendment. No merit to contention that, despite existence of a search warrant, search was invalid because it violated implied consent statute. The implied consent statute requires the State to take an arrested suspect's blood, over his refusal, when there is an accident and someone is injured. No merit to contention the statute, by implication, excludes the taking of blood without consent under any other circumstances, including by the authority of a search warrant. Beeman v State (October 9, 2002, No. 1079-01)

place searched (Search Under Warrant, No Error)

• It was not error to deny motion to suppress evid obtained in search of premises, over contention search exceeded scope authorized by search warrant*, on claim warrant authorized search of business premises at 5627 Star Lane, Suite A, and evid was seized during search of def's residence at 5625 Star Lane. Search warrant authorized search of premises described as "U.S. Apparel which is located at 5627 Star Lane, Suite A, Houston, Harris County, Texas." 5625 Star Lane was the address of another business that had no connection to U.S. Apparel. Def's claimed residence was connected by a unlocked door to the 5627 A address and was not connected to the 5625 address. Def had "carved out" a portion of the 5627 address and placed the numbers 5625 on the door. Business records for U.S. Apparel were found in def's residence area. Also, evidence at suppression hearing showed that, when def obtained a Texas driver's license, he stated to the Department of Public Safety that 5627 A Star Lane was his home address, thus conceding that his residence was part of 5627 A Star Lane. Amir v State (May 16, 2001, No. 951-00)

search without warrant - no error (Search Without Warrant, No Error)

• Officers had probable cause and exigent circs to enter home to investigate suspected burglary-in-progress. Officers entered home based on more than odor of burnt marihuana. Barocio v State (March 9, 2005, No. PD-1980-03)

search of automobile incident to arrest (Search Without Warrant, No Error)

• Trial court incorrectly applied the law in determining that arrest was valid, but that the search incident to that arrest was not. Facts showed officer received a radio dispatch describing an eighteen-wheeler that was traveling on the highway and driving recklessly and forcing other vehicles off the road; saw a truck matching the description; turned on his lights and siren and pursued the truck for approximately one mile, at which point the truck pulled over; during pursuit, officer observed the truck occasionally traveling directly on the center line of the highway and occasionally crossing the “fog line” on the extreme right side; after he stopped the vehicle, officer asked def (the driver) to walk to the back of the truck; as def walked to the back of the truck he veered to the side and collided with the side of the truck; officer noticed further that def’s speech was slurred, he had difficulty standing still, was unsure about his whereabouts for that day and his intended destination; and officer concluded that def was impaired, although he did not form an opinion as to the cause of the impairment. Second officer, who had originally radioed for assistance in stopping the truck, arrived at the scene shortly thereafter and instructed first officer to place def in the squad car for “safety reasons,” and then searched the truck’s cab and found prescription drugs, marijuana and a crack pipe. Second officer then placed def under arrest. Under facts, trial court was left with only two options in determining when probable cause was established: either first officer’s personal observations of def established adequate probable cause to arrest before the search was undertaken, or probable cause was established after the search of the vehicle and before the time of the arrest. However, nothing occurred between the search and the arrest that could have given rise to a finding of probable cause: when the officer concluded his search of the vehicle, he simply walked back to the squad car and arrested def. The only logical explanation for the trial court’s ruling is that it determined sufficient probable cause to arrest was established before the search of the vehicle. Once it is determined that probable cause to arrest existed prior to the search of def’s vehicle, the subsequent search must be ruled as a valid search incident to the arrest. Officer had probable cause to arrest def before the search of the vehicle. Misapplication of the law to the facts of a particular case is a per se abuse of discretion. The Court of Appeals was correct in reversing the suppression of the evidence based on an illegal search. State v Ballard, 987 S.W.2d 889 (Feb. 24, 1999)

search of person incident to arrest (Search Without Warrant, No Error)

• It was not error to deny motion to suppress fruits of search of def's person, where search was incident to def's lawful arrest. Busby v State, 990 S.W.2d 263 (March 31, 1999)

search of personal effects incident to arrest (Search Without Warrant, No Error)

• 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)

scope of incident to arrest incident to arrest (Search Without Warrant, No Error)

• Visual body cavity search, where officer ordered def to bend over and spread his buttocks for inspection, but officer did not touch or probe def's anus, was a reasonable search incident to arrest where search was conducted in reasonable manner, not a violent manner; there was probable cause to believe def was engaged in illegal activity; and search was conducted in manner to protect privacy interests of def. McGee v State (April 23, 2003, No. 1408-00)

based on observatns (Search Without Warrant, No Error)

• It was not error to deny motion to suppress evid seized after warrantless entry of def's home, where officer had probable cause to investigate situation and there were exigent circs for entry without warrant. Probable cause was based on odor of marihuana coming from the house and observation of two minors under influence of alcohol who told officer they had been drinking alcohol and smoking marihuana in def's house. This gave officer probable cause to believe that offense had been or was being committed and that evid of that crime would be found in the house. Exigent circs where shown where officer testified that he could hear people inside the house who did not answer when he knocked and identified himself as a police officer and that there were several persons attempting to leave the residence before he returned to investigate further. Based on this testimony, trial court could reasonably have found that the warrantless search was justified by the need to prevent destruction of evidence or contraband in the time it would have taken for him to procure a warrant. In addition, the officer stated that the reason he stepped up into the doorway of def's residence was because he had information from def's friends that there were a number of people inside the house, and he wanted to be able to see and identify them for his safety as he investigated the situation. The trial court could reasonably have found that exigent circumstances existed that allowed the officer to protect himself from people he believed were present and may have been armed or dangerous. Estrada v State (January 26, 2005, No. PD-1629-03)

search of automobile for drugs based on observatns (Search Without Warrant, No Error)

• It was not error to deny motion to suppress marihuana seized from def's truck where officer had probable cause to arrest def for Transportation Code violations, then conducted lawful pat-down of def's person based on reasonable belief def had a knife, and after recovering knife that was legal length officer placed knife on front seat of def's truck. Initial entry of def's truck by officer was not a search; on opening door of truck officer smelled marihuana and def admitted to officer he had marihuana in truck, giving separate justification for search of truck. Glazner v State (October 19, 2005, No. PD-0998-04)

exigent circs: premises (Search Without Warrant, No Error)

• Officers had probable cause and exigent circs to enter home to investigate suspected burglary-in-progress. Officers entered home based on more than odor of burnt marihuana. Barocio v State (March 9, 2005, No. PD-1980-03)

• It was not error to deny motion to suppress evid seized after warrantless entry of def's home, where officer had probable cause to investigate situation and there were exigent circs for entry without warrant. Probable cause was based on odor of marihuana coming from the house and observation of two minors under influence of alcohol who told officer they had been drinking alcohol and smoking marihuana in def's house. This gave officer probable cause to believe that offense had been or was being committed and that evid of that crime would be found in the house. Exigent circs where shown where officer testified that he could hear people inside the house who did not answer when he knocked and identified himself as a police officer and that there were several persons attempting to leave the residence before he returned to investigate further. Based on this testimony, trial court could reasonably have found that the warrantless search was justified by the need to prevent destruction of evidence or contraband in the time it would have taken for him to procure a warrant. In addition, the officer stated that the reason he stepped up into the doorway of def's residence was because he had information from def's friends that there were a number of people inside the house, and he wanted to be able to see and identify them for his safety as he investigated the situation. The trial court could reasonably have found that exigent circumstances existed that allowed the officer to protect himself from people he believed were present and may have been armed or dangerous. Estrada v State (January 26, 2005, No. PD-1629-03)