Took bench 2015-01-01 · 18 side opinions in the corpus
The most significant clusters concern evidence admissibility and jury instructions: whether character evidence such as artistic expression and prior sexual offenses can be admitted without nexus to the charged offense, whether jury charges must conform to properly admitted evidence, and how appellate courts review eyewitness identification under suggestive procedures. A major secondary cluster involves the element-versus-enhancement distinction in multiple statutory contexts—.15 BAC in DWI, prior conviction degree-elevators, and culpable mental state for failure-to-register—each creating widespread confusion about charging, proof burdens, and trial procedure. A third cluster addresses Fourth Amendment privacy doctrine: the Kyllo analysis for drug-detection dogs and the reasonable expectation of privacy standard in wiretap communications.
| Date | Case | Type | Summary | Tags |
|---|---|---|---|---|
| 2024-05-08 | Hart, Larry Jean, PD-0677-22 | concurrence | Judge Richardson addresses whether artistic expression such as rap videos can be admitted as character evidence in guilt-innocence trials without concrete connection to the alleged offense, arguing such evidence is inherently prejudicial because it invites jury decision-making based on emotional reaction and cultural taste rather than logical inference about actual criminal conduct. | artistic expression evidence, character evidence, rule 403 prejudice, music lyrics trials, cultural bias |
| 2021-09-29 | Do, Phi Van, PD-0556-20 | concurrence | Judge Richardson concurs but emphasizes that the Court has failed to definitively establish whether the .15 BAC allegation in a DWI case is an element of the offense or an enhancement, creating widespread confusion among prosecutors, defense attorneys, and trial judges about charging, proof strategy, and objection timing. | dwi .15 bac, element or enhancement, offense definition, trial procedure, appellate guidance |
| 2018-10-10 | Jacobs, Joshua, PD-1411-16 | dissent | When a statute authorizes introduction of a defendant's prior sexual offense during the guilt/innocence phase, the defendant has a constitutional right to conduct voir dire questioning specifically about potential jurors' biases against repeat sexual offenders, because such questioning is necessary to identify and remove jurors biased on that ground when the prejudicial evidence will be presented. | voir dire, prior sexual offense, article 38.37, impartial jury, constitutional error, bias examination |
| 2018-05-23 | Oliva, Jose, PD-0398-17 | concurrence | Judge Richardson identifies a conflict with Calton v. State, arguing that a prior conviction that elevates an offense to a higher statutory degree should be treated as an element of the offense, not merely as a punishment enhancement, questioning whether jurisdictional status should determine element status. | prior conviction requirements, offense degree elevation, elements vs enhancements, jurisdictional elements, calton precedent |
| 2018-02-14 | Febus, Albert Junior, PD-1369-15 | dissent | Judge Richardson dissents from the court's holding in Robinson v. State, arguing that a culpable mental state (intent, knowledge, or recklessness) should be required not just for the duty to register but also for the failure to register under the sex offender registration statute, rather than treating failure to register as a strict liability offense that requires no proof of mens rea. | culpable mental state, strict liability, sex offender registration, failure to register, statutory interpretation, mens rea |
| 2018-02-07 | Velasquez, Victoria Mari, PD-0228-16 | dissent | Judge Richardson argues that Article 28.01 requires prosecutors receive notice of the specific time of any pre-trial hearing conducted before trial begins—including hearings on the trial date before jury selection—and that notice of only the trial date inadequately informs prosecutors who must arrange witness preparation. | pre-trial notice requirement, article 28.01, time of hearing, prosecutor notification, criminal procedure |
| 2017-10-18 | Hernandez, Teodoro Miguel, PD-1049-16 | concurrence | Judge Richardson argues that no variance exists between the indictment and trial proof in Count 2, whereas the majority would permit the variance as immaterial. | variance doctrine, aggravated assault, deadly weapon, indictment specificity, material variance |
| 2017-09-20 | Burnett, Burt Lee, PD-0576-16 | concurrence | Judge Richardson explains that a jury charge is erroneous when it includes language supporting theories of liability based on evidence properly excluded through objection, and that this jury charge error is inseparable from the underlying evidentiary error. The substantive issue is the principle that jury charges must be confined to facts supported by properly admitted evidence, with objections to evidence becoming dispositive of whether a charge limitation was required. | jury charge scope, evidentiary admissibility, interrelated errors, dwi intoxication, objection effects |
| 2017-06-28 | Long, Wendee, PD-0984-15 | dissent | Judge Richardson dissents on the proper standard for determining reasonable expectation of privacy in communications under the wiretap statute, arguing that courts must examine the totality of circumstances—including content, manner, and educational context—rather than giving determinative weight to the location of communication, and that a coach's instructional locker room speech should not be protected as a private "oral communication" analogous to a teacher's classroom instruction. | wiretap statute, reasonable expectation of privacy, totality of circumstances, educational communications, location versus context |
| 2017-06-28 | Burks, Antwain Maurice, PD-0992-15 | dissent | Judge Richardson criticizes the majority's retreat from the principle that appellate courts must review all elements of an offense when legal sufficiency is raised on appeal, arguing that inadequate briefing by an appellant does not excuse the appellate court's duty to conduct a complete Jackson v. Virginia review. | legal sufficiency, appellate duty, all elements, jackson standard, briefing requirements, appellate scope |
| 2017-03-22 | Green, Clifford Wayne, PD-0171-16 | concurrence | Judge Richardson identifies the unaddressed doctrinal question of whether a defendant's Cuyler v. Sullivan right to conflict-free representation extends beyond counsel to defense experts—specifically, whether an expert retained and paid by the defense, but also paid by the state to testify adversely, creates a cognizable conflict-of-interest violation when defense counsel permits the expert to testify. | cuyler conflict of interest, defense experts, scope of counsel protections, actual conflict standard |
| 2017-02-15 | Crawford, Milton Ray, PD-1283-15 | concurrence | The judge addresses the interaction between the sex offender statute's specific enhancement provision (Chapter 62.102(c)) and the general habitual offender enhancement statute (Section 12.42(d)), concluding that because the sex offender statute fails to address enhancement for multiple prior failure-to-register convictions, the general habitual offender statute properly applies by default. | statutory interpretation, sex offender registration, habitual offender enhancement, specific vs. general statutes, criminal sentencing |
| 2016-11-02 | Balderas, Juan a/k/a Apache, AP-77,036 | concurrence | Although the pre-trial photo lineup was suggestive and possibly impermissibly so, an eyewitness identification derived from such a procedure remains admissible when reliable under the totality of circumstances, applying the five-factor test from Neil v. Biggers rather than automatically suppressing identifications based on suggestiveness alone. | eyewitness identification, suggestive procedures, totality of circumstances, neil factors, due process reliability |
| 2016-06-29 | Robinson, Olin Anthony, PD-0974-15 | concurrence | Richardson questions whether direct appeal or mandamus is the proper remedy when a trial court grants shock probation without statutory authority, highlighting tension between prior precedent establishing mandamus as the appropriate vehicle for void orders and the Court's current practice of entertaining direct State appeals in such cases. | shock probation, mandamus vs appeal, void orders, ministerial acts, appellate remedy, statutory authority |
| 2016-06-22 | Duran, Francisco Jr., PD-0429-15 | concurrence | The proper remedy for double jeopardy violations involving multiple convictions is to affirmatively vacate the conviction for the lesser offense from the judgment, rather than merely noting that the prosecution abandoned it. | double jeopardy, multiple convictions, remedy, vacatur |
| 2016-04-13 | Leming, James Edward, PD-0072-15 | concurrence | Judge Richardson clarifies the correct interpretation of Transportation Code § 540.060: the statute's two requirements for proper lane maintenance are connected by "and," but a violation occurs if a driver breaches either requirement, not both; he analogizes to self-defense jury instructions where conjunctive requirements similarly function such that failure of any single element triggers the operative consequence. | statutory interpretation, traffic code, conjunctive requirements, lane compliance, reasonable suspicion |
| 2015-12-16 | Rendon, Michael Eric, PD-0013-15 | concurrence | Judge Richardson argues that drug-detection dogs should be analyzed as "sense-enhancing technology not in general public use" under Kyllo v. United States, since their superior olfactory abilities detect interior home information analogous to the thermal-imaging device in Kyllo. | fourth amendment, drug-detection dogs, sense-enhancing technology, kyllo doctrine, curtilage, home privacy |
| 2015-12-16 | Rendon, Michael Eric, PD-0015-15 | concurrence | Judge Richardson writes separately to emphasize that drug-detection dogs should be analyzed as "sense-enhancing technology" under Kyllo v. United States, suggesting they could constitute a search based on privacy intrusion independent of the majority's property-based curtilage analysis. She also stresses that apartments deserve equal Fourth Amendment protections as houses, including their door thresholds as protected curtilage. | drug detection dogs, sense-enhancing technology, kyllo doctrine, apartment curtilage, fourth amendment |
Took bench 2015-01-01 · 54 side opinions in the corpus
Judge Newell's opinions concentrate on three primary doctrinal fault lines: appellate review standards and remand doctrine, particularly whether appellate courts must remand for inadequate trial court findings of fact or may conduct harmless error analysis from the existing record; statutory interpretation in criminal law, specifically whether courts may impose requirements not express in the statutory text and whether the rule of lenity properly resolves statutory ambiguities; and jury instruction standards, especially the asymmetrical application of the "valid-rational-alternative" test for lesser included offenses. A secondary but persistent cluster involves charging document sufficiency, particularly the relationship between indictment caption and body in defining charged offenses.
| Date | Case | Type | Summary | Tags |
|---|---|---|---|---|
| 2026-02-12 | Tucker, Michael, PD-1059-24 | concurrence | Judge Newell argues that appellate courts should not correct judgment forms for non-legally-required notational details, as this policing of style issues lacks a legal basis and exceeds the appellate court's proper role—such matters should remain with trial courts or the Office of Court Administration. | judgment form requirements, clerical versus legal error, appellate jurisdiction over forms, error preservation doctrine, judgment notation standards |
| 2026-01-29 | Coleman, Christopher Tye, PD-0093-25 | dissent | Judge Newell argues that under State v. Elias, when trial courts make incomplete findings on essential elements like intent and credibility, appellate courts must remand for those findings rather than making inferred findings themselves. | appellate review standards, essential factual findings, remand requirements, intent elements, credibility determinations |
| 2026-01-29 | Coleman, Christopher Tye, PD-0094-25 | dissent | Whether a statutory penal code violation (impersonation of a peace officer) can serve as the basis for Article 38.23 exclusionary rule standing when the trial court actually suppressed the evidence on a different legal ground (lack of investigatory authority) and failed to make findings on the statutory violation theory. | article 38.23 standing, statutory violations, appellate standards, essential findings, impersonation statute, trial court authority |
| 2026-01-29 | Lennox, Bobby Carl Aka Bobby Carl Leanox, PD-0284-25 | concurrence | Judge Newell applies the rule of lenity to resolve an irreconcilable conflict between two provisions of the forgery statute in favor of the defendant, holding that absent clear legislative intent, an ambiguous criminal statute must be construed to benefit the accused. | rule of lenity, statutory ambiguity, forgery statute, criminal statute interpretation, statutory conflict |
| 2025-09-03 | Griffin, Ex Parte Gary, PD-0611-24 | concurrence | Judge Newell argues that the court of appeals improperly imposed a timeliness requirement on a post-conviction habeas corpus application despite the absence of any statutory deadline for such filings, contending that such arbitrary temporal restrictions on habeas relief lack legal support. | habeas corpus, timeliness requirement, post-conviction relief, statutory interpretation, habeas access |
| 2025-05-28 | Armstrong, Joshua Ray, PD-0409-22 | concurrence | Judge Newell agrees that exigency is not required under the statute's text, but separately cautions that courts must not rewrite the statute by reading guilt-related circumstances into the definition of "suspicious place"—the statute's text keeps these as two distinct requirements. | suspicious place, statutory interpretation, textualism, judicial restraint, criminal procedure |
| 2025-03-26 | Crawford, Shawn Edward, PD-0243-23 | dissent | The judge argues that when the body of an indictment alleges a complete statutory offense with adequate factual description, it controls the charged offense, and the caption should not be used to supplement, modify, or contradict the body's allegation. | indictment interpretation, caption versus body, charging sufficiency, grand jury authority, notice of charge |
| 2024-12-11 | Hradek, Lindsey, PD-0083-23 | concurrence | Judge Newell contends that the prejudice prong of Strickland in motions for new trial should receive mixed review—appellate courts must defer to trial court factual findings and credibility determinations while applying de novo review only to purely legal conclusions, not categorical de novo review of the entire prejudice analysis. | standard of review, prejudice prong, strickland, appellate deference, mixed law and fact, motion for new trial |
| 2024-11-27 | Tanner, Bradrick Gerlmaine, PD-0302-24 | dissent | Judge Newell argues that unsworn statements by trial counsel regarding the defendant's intent cannot be considered as evidence by appellate courts, as they lack proper evidentiary foundation and risk circumventing attorney-client privilege protections in ineffective assistance claims. | unsworn attorney statements, attorney-client privilege, ineffective assistance, appellate review standards, evidentiary competency |
| 2024-09-04 | Cruz, Martin, PD-0628-23 | concurrence | Judge Newell contends the court should have addressed the retroactivity of the 2021 amendments to Article 42.15(a-1) requiring on-the-record ability-to-pay inquiries rather than dismissing based on preservation of error, since the legal requirement did not exist at trial. | retroactive application, ability to pay, article 42.15, preservation of error, intervening legal changes |
| 2024-08-21 | Crumley, John Paul, PD-0471-23 | concurrence | Mental condition evidence can theoretically rebut mens rea requirements if supported by expert testimony explaining how the condition caused the defendant's mental state regarding the particular element; without such testimony, the evidence is properly excluded. | mental condition evidence, mens rea, expert testimony, evidentiary foundation, admissibility |
| 2024-07-31 | Sinclair, Ex Parte Chester, PD-0184-22 | dissent | The dissent argues that a magistrate's written recommendation granting habeas relief, which becomes the trial court's decree by operation of law under the magistrate statutes when not modified or rejected, should satisfy Article 11.072's "written order" requirement, and that the majority's contrary interpretation effectively nullifies longstanding magistrate statutes that trial courts have relied upon for decades. | statutory interpretation and harmonization, magistrate authority and judicial decrees, article 11.072 written order requirement, habeas corpus procedure |
| 2024-06-26 | Turley, Andrew James, PD-0262-20 | concurrence | Judge Newell identifies an interpretive ambiguity in the human trafficking statute regarding whether a child victim must have actually engaged in sexual conduct when the predicate offense is promotion of prostitution, despite that predicate offense (post-2019 amendment) not requiring such actual engagement. He notes the statute's phrase requiring the child to "engage in, or become the victim of" listed predicates may create an unintended gap between what promotion of prostitution requires and what the trafficking statute demands. | human trafficking statutory interpretation, prostitution predicate requirements, child victims, requisite conduct elements, statutory language ambiguity |
| 2024-06-26 | Turley, Andrew James, PD-0263-20 | concurrence | Judge Newell identifies a doctrinal gap in the statutory treatment of child sexual exploitation: "compelling prostitution" and human trafficking require proof the child engaged in prostitution, whereas the 2019-amended offense of "promotion of prostitution involving a child" does not. He highlights remaining ambiguity in the human trafficking statute regarding whether a child victim must "engage in" the predicate offense of promotion of prostitution. | child prostitution, statutory interpretation, human trafficking, promotion of prostitution, predicate offense, elements of crime |
| 2024-01-10 | Williams, Jemadari Chinua, PD-0099-23 | dissent | Judge Newell argues that when a statute defines an offense through multiple undefined or variably-defined manners or means, the State must specifically elect which method it intends to prove upon timely defendant request to satisfy the constitutional notice requirement. | prosecutorial election, indictment specificity, notice requirement, undefined statutory language, alternative methods of commission |
| 2023-12-20 | Johnson, Zimbabwe Raymond, PD-0055-23 | dissent | Judge Newell argues that Article 42.037's restitution provision applies to defendants convicted of failure to provide contact information after a collision, because the statute's phrase "the offense that results in damage" refers to the complete statutory offense—which includes the collision causing damage—rather than requiring that the defendant's failure to provide contact information directly caused the damage. | restitution, statutory interpretation, causation requirement, hit-and-run offense, criminal code |
| 2023-12-20 | Johnson, Zimbabwe Raymond, PD-0056-23 | dissent | Judge Newell dissents on the question of whether restitution under Article 42.037 requires causation—that is, whether the defendant's actions must have caused the property damage—or whether restitution is proper whenever the defendant is convicted of an offense that involves property damage as an element, even if the defendant's particular failure did not cause that damage. | restitution, causation requirements, statutory interpretation, property damage, criminal procedure |
| 2023-06-28 | Ransier, Charles Robert, PD-0289-20 | dissent | Judge Newell contends that the valid-rational-alternative/guilty-only test governing jury instructions on lesser included offenses is an asymmetrically applied, court-made rule that should be eliminated entirely. | lesser included offenses, jury instructions, valid-rational-alternative test, tampering, appellate review standards, attempted crimes |
| 2023-05-17 | Inman, Callie Renee, PD-0251-22 | concurrence | Judge Newell observes that probation revocation hearings provide two distinct constitutional bases for confrontation rights—the Sixth Amendment and due process—and that appellants must preserve both claims at trial to raise them on appeal, not merely assert the Sixth Amendment violation. | confrontation clause, probation revocation, due process rights, sixth amendment, constitutional preservation |
| 2023-04-26 | Massey, James Calvin, PD-0170-22 | concurrence | Judge Newell argues that the plain view doctrine should be conceptualized as a recognition that there is no expectation of privacy in objects exposed to public view, rather than as an exception to the warrant requirement, which means courts need not invoke attenuation doctrine when an officer lawfully seizes contraband found in a public place. This framing represents a more principled and direct justification for the seizure than the majority's attenuation analysis. | plain view doctrine, expectation of privacy, warrant requirement, exclusionary rule, fourth amendment |
| 2023-04-19 | Torres, Sebastian, PD-0018-22 | concurrence | Judge Newell disputes the majority's interpretation that a magistrate "uses" a juvenile confession procedure merely by initiating it; instead, he contends the procedure's essential element—the magistrate's voluntariness determination—occurs only upon completion, and that the officers' failure to return the juvenile and recording to the magistrate violates the Family Code and mandates suppression under Article 38.23. | statutory interpretation, juvenile confessions, magistrate procedure, evidence suppression, voluntariness determination |
| 2023-04-19 | Torres, Sebastian, PD-0019-22 | concurrence | Judge Newell agrees the statement should be suppressed but rejects the majority's interpretation of "uses the procedure" in Family Code § 51.095(f), arguing instead that suppression should rest on the simpler ground that officers violated the statutory requirement to return the juvenile and recording to the magistrate, which Article 38.23 of the Code of Criminal Procedure can remedy. | statutory interpretation, juvenile procedure, magistrate authority, exclusionary rule, evidence suppression |
| 2023-04-19 | Chavez, Jose Juan, PD-0759-21 | concurrence | Judge Newell critiques the asymmetrical application of Texas's lesser-included offense instruction standard, which permits jury consideration based on mere disbelief when the state requests instructions but requires affirmative evidence negating the greater offense when defendants request them, arguing the non-statutory test should be eliminated or applied symmetrically. | lesser-included offense instructions, jury instructions, asymmetrical standards, statutory interpretation, procedural consistency |
| 2023-02-22 | King, Justin Shane, PD-1003-20 | concurrence | Judge Newell argues that a silent record regarding a specific proceeding does not preclude harmless error analysis if courts can examine the broader trial record to determine whether the error caused actual harm, distinguishing this approach from VanNortrick's rule that silence on material facts makes analysis impossible. | harmless error analysis, silent record doctrine, record sufficiency, appellate review scope, vannortrick |
| 2022-09-28 | Williams, April Loreace, PD-0504-20 | concurrence | Judge Newell argues that the majority improperly circumvents the Waller framework by characterizing a physical courtroom exclusion as trivial or de minimis simply because the excluded party can observe via livestream. He contends that partial closures remain subject to the full Waller analysis, including the requirement that the party seeking closure demonstrate a substantial overriding interest, and that virtual access cannot substitute for this legal protection. | partial courtroom closure, waller overriding interest, virtual access via livestream, de minimis exception, sixth amendment public trial, openness presumption |
| 2021-10-06 | MacIel, Bethany Grace, PD-0753-20 | concurrence | Judge Newell argues that the Court of Criminal Appeals should independently conduct harmless error analysis after finding error, rather than remand to the court of appeals. He contends that harm analysis is a systemic requirement like error preservation that involves applying established standards, not resolving novel legal questions. | harmless error doctrine, appellate remand, error preservation, systemic requirements, appellate standards |
| 2021-09-29 | Do, Phi Van, PD-0556-20 | concurrence | Judge Newell argues that the Court should definitively classify alcohol concentration allegations in DWI cases as sentence enhancements rather than elements, establishing a clear framework using statutory language and precedent to resolve practitioner confusion about charging and jury trial requirements. | alcohol concentration, element versus enhancement, dwi sentencing, apprendi doctrine, jury trial rights |
| 2021-09-15 | Lujan, Erlinda, PD-0244-19 | concurrence | Judge Newell argues that the "Bible factors" test for determining whether a second statement is a continuation of a first is conceptually muddled and conflates distinct doctrinal concerns (voluntariness of waiver, continuation of statement, and effectiveness of warnings), and that the test misinterprets Article 38.22 by focusing on "interviews" rather than discrete "statements" as the statute requires. | confession admissibility, custodial interrogation, continuation of statements, statutory interpretation, warning requirements |
| 2021-09-15 | Lujan, Erlinda, PD-0245-19 | concurrence | Judge Newell argues that Bible v. State is doctrinally incoherent because it conflates three distinct legal questions—whether a statement is voluntary, whether a second statement is a continuation of the first for statutory purposes, and whether prior warnings constitute "fully effective equivalent" warnings—without clarifying which it actually addresses. The judge contends that Bible misreads Article 38.22 by focusing on whether statements constitute a single "interview" when the statute's text repeatedly requires warnings before each "statement." | article 38.22 doctrine, bible factors ambiguity, interview vs statement, warning continuation, custodial interrogation |
| 2020-11-04 | Work, Sidney Alex, PD-1247-18 | concurrence | Judge Newell argues that evidence of drug addiction cannot be admitted under Rule 404 because it lacks independent relevance apart from character conformity, and because treating addiction as a character trait contradicts Robinson v. California's holding that addiction is an illness rather than a prosecutable trait. | character evidence, drug addiction, rule 404, separate relevance requirement, robinson v. california |
| 2020-09-23 | Price, Braden Daniel, PD-0722-19 | dissent | Judge Newell identifies a doctrinal incoherence in Fourth Amendment search jurisprudence: Chadwick prohibits luggage searches incident to arrest once police control the luggage, while automobile exception cases allow container searches with probable cause. He argues the Supreme Court should clarify whether search-incident-to-arrest should extend to personal luggage or acknowledge why the distinction matters. | fourth amendment, search incident to arrest, luggage searches, automobile exception, chadwick doctrine, probable cause |
| 2020-09-16 | Crider, Robert Lee Jr., PD-1070-19 | concurrence | Judge Newell concurs that blood analysis constitutes a separate search but contends its authorization should be grounded in the probable cause determination supporting the initial seizure, with scope limited to what that determination supported, rather than implied from the seizure warrant alone. | blood analysis, implied authorization, warrant scope, general warrants, fourth amendment |
| 2020-06-10 | Ebikam, Obinna, PD-1199-18 | concurrence | The terminology of "confession and avoidance" is misleading because entitlement to self-defense jury instructions depends on whether evidence raises the defensive issue itself, not on whether the defendant admits to committing the crime. | self-defense jury instruction, confession and avoidance doctrine, defensive evidence, criminal culpability, penal code defenses |
| 2019-09-11 | Fraser, Marian, PD-0711-17 | concurrence | The judge argues that the felony murder statute does not expressly require the "act clearly dangerous to human life" to be separate from the underlying felony, and that the court should not impose such a separation requirement beyond what the statutory text requires, particularly given legislative inaction to correct the interpretation since 1999. | merger doctrine, felony murder, statutory interpretation, dangerous act, legislative inaction, separate act requirement |
| 2019-05-15 | Ross, Dai'Vonte E'Shaun Titus, PD-1066-17 | dissent | Judge Newell argues that a charging instrument for displaying a firearm in a manner calculated to alarm must allege specific facts about the manner of display, not merely track the statutory language, to provide the defendant adequate notice of the charges and opportunity to prepare a defense. | notice pleading, charging instrument specificity, firearm display, manner element, statutory interpretation |
| 2019-03-27 | Jones, Dedric D'Shawn, PD-1289-17 | concurrence | Judge Newell argues that cross-examination about collateral proceedings to establish witness bias should require evidence of a witness's direct interest in the proceeding's outcome, rather than allowing it whenever a jury could logically infer potential bias from the proceeding's mere existence. | witness bias, cross-examination standards, collateral proceedings, direct interest test, confrontation clause |
| 2019-01-09 | Martinez, Roger Anthony, PD-0324-17 | concurrence | Judge Newell questions the State v. Elias doctrine requiring appellate courts to remand for inadequate trial court findings of fact, arguing this practice causes unnecessary micro-management of trial courts and proposing remands should only be required when the trial court was objected to about finding inadequacy, otherwise applying deferential review standards. | appellate remand, findings of fact, trial court deference, appellate review, state v. elias, judicial efficiency |
| 2018-10-31 | Waters, Amanda Louise, PD-0792-17 | concurrence | Judge Newell questions whether the civil doctrine of collateral estoppel is properly grounded in the Fifth Amendment's Double Jeopardy Clause, arguing that the clause's text and historical origins prohibited re-prosecution of the same crime, not re-litigation of individual issues or evidence, and that the "run the gauntlet" rationale from Ashe v. Swenson is more appropriately a due process concern. | double jeopardy, collateral estoppel, issue preclusion, constitutional interpretation, fifth amendment text, civil doctrine application |
| 2018-10-10 | Jacobs, Joshua, PD-1411-16 | concurrence | Judge Newell argues that the permissibility of commitment questions in voir dire must account for what evidence is substantively admissible under applicable law; after Article 38.37(b) made prior sexual offense evidence admissible through character conformity, Appellant could not properly ask jurors to commit to disregarding such evidence. | voir dire, commitment questions, article 38.37, character conformity, extraneous offense evidence, evidentiary admissibility |
| 2018-06-06 | Ukwuachu, Samuel, PD-0366-17 | concurrence | When trial courts review ambiguous evidence, they should determine whether a reasonable jury could interpret the statements for an admissible purpose under the applicable rule, rather than determining what the statements actually mean; the trial court's gatekeeping role parallels authentication doctrine, where courts need not resolve ultimate meaning but only whether reasonable jurors could. | ambiguous statements, reasonable jury interpretation, trial court discretion, evidentiary standards, optional completeness |
| 2018-01-24 | Cortez, Jose Luis, PD-0228-17 | concurrence | Judge Newell concurs that Texas's codified rule of lenity (Government Code § 311.035) requires that ambiguities in the Transportation Code's definition of "improved shoulder" be resolved in favor of the defendant, rather than through judicial line-drawing about where markings distinguish a roadway from a shoulder. | rule of lenity, ambiguous criminal statute, traffic law, statutory construction, shoulder definition |
| 2017-11-15 | Proenza, Abraham Jacob, PD-1100-15 | concurrence | Judge Newell argues that the Marin framework fails to adequately explain how to categorize criminal procedure rights and risks encouraging courts to narrow substantive rights to accommodate procedural efficiency concerns. | marin framework, fundamental rights, error preservation, judicial impartiality, efficiency concerns |
| 2017-10-04 | Guerrero, Gregorio, PD-0665-15 | concurrence | Judge Newell argues that applying the retroactivity framework from Salinas v. State creates unequal treatment of defendants on direct appeal, a problem he believes warrants review in a properly presented case. | retroactivity doctrine, direct appeal inequality, equal protection, salinas framework |
| 2017-10-04 | Guerrero, Gregorio, PD-0666-15 | concurrence | Judge Newell expresses concern that applying the retroactivity framework from Salinas v. State produces unequal treatment among defendants on direct appeal, and signals willingness to grant review in a properly presented case to address this systemic inequality. | retroactivity doctrine, equal treatment, appellate procedure, direct appeal, salinas v. state |
| 2017-10-04 | Johnson, William, PD-1254-15 | concurrence | Judge Newell criticizes how the retroactivity framework from Salinas v. State is applied inconsistently across cases, resulting in unequal treatment of defendants on direct appeal, and advocates for a properly framed case to address this doctrinal inequality. | retroactivity doctrine, equal protection, salinas framework, direct appeal, doctrinal inconsistency |
| 2017-10-04 | Davis, Terrell Ladel, PD-1314-15 | concurrence | Judge Newell contends that applying retroactivity doctrine from Salinas v. State creates unequal treatment of defendants on direct appeal, and indicates willingness to grant review in a case properly presenting this issue. | retroactivity doctrine, direct appeal, unequal treatment defendants, salinas v. state, appellate procedure, procedural consistency |
| 2017-05-17 | Arizmendi, Rosa Elena, PD-0623-16 | concurrence | Judge Newell argues that "in the interest of justice" should denote a trial court's authority to grant new trials rather than serve as an independent legal ground for relief, as treating it as the latter has created confusion and unreviewable discretion that should instead be anchored to valid legal claims with proper standards of review. | appellate discretion, new trial standards, interest of justice doctrine, judicial authority, appellate review standards, discretionary relief |
| 2017-03-08 | Salinas, Orlando, PD-0170-16 | dissent | Judge Newell argues that facial constitutional challenges require demonstrating a statute cannot operate constitutionally in any circumstance, and that the majority wrongly treated explicit statutory limitations as necessary conditions for validity rather than merely sufficient conditions, thereby reversing the presumption of constitutionality and eliminating as-applied challenges. | facial constitutional challenge, standard of review, burden of proof, presumption of constitutionality, court costs, separation of powers |
| 2016-12-14 | Martinez, Roger Anthony, PD-1337-15 | concurrence | Judge Newell argues that the majority improperly evaluates the legal merits of probable cause while simultaneously remanding for essential factual findings, particularly credibility determinations about police officer testimony, when proper appellate procedure requires trial courts to establish what they actually found to be true before appellate courts address legal claims. | remand for essential findings, credibility determinations, appellate procedure, legal vs. factual analysis, probable cause, trial court deference |
| 2016-06-29 | Henley, Gregory Shawn, PD-0257-15 | dissent | Trial courts improperly exclude evidence of self-defense beliefs by weighing overall defense sufficiency rather than applying relevancy independently; moreover, self-defense does not statutorily require imminent harm but only reasonable belief in immediate necessity. | self-defense, relevancy, sufficiency, imminent harm, immediate necessity |
| 2016-04-13 | Leming, James Edward, PD-0072-15 | dissent | Judge Newell argues that appellate supervisory authority requires remand to the intermediate court of appeals when a novel issue raised in a discretionary review petition is not clear-cut and the intermediate court never had the opportunity to address it in the first instance. | appellate remand, supervisory authority, discretionary review, appellate jurisdiction |
| 2016-02-24 | Perry, Ex Parte James Richard "rick", PD-1067-15 | concurrence | Judge Newell argues that pretrial habeas courts should address "as-applied" constitutional challenges when the pleadings themselves reveal the constitutional violation, rather than categorically excluding such claims on the ground that they typically require factual development at trial. | pretrial habeas corpus, as-applied constitutional challenges, cognizability doctrine, separation of powers, veto power |
| 2016-02-24 | Perry, Ex Parte James Richard "rick", PD-1067-15 | concurrence | Judge Newell argues that constitutional violations apparent from the pleadings are cognizable on pretrial habeas corpus without requiring factual development, advocating for a broader application of the Boetscher doctrine rather than narrowing it to specific constitutional contexts. | pretrial habeas cognizability, constitutional pleadings, boetscher doctrine, as-applied challenges, factual development |
| 2015-11-18 | Wachtendorf, John Allen Jr., PD-0280-15 | concurrence | Judge Newell argues that the Court of Criminal Appeals should simply refuse discretionary review when a lower court correctly applies established precedent, rather than granting the petition and issuing an opinion dismissing or reversing it, emphasizing the need for consistency in how the court manages its discretionary review docket. | discretionary review authority, judicial economy, appellate procedure, established precedent application |
Took bench 2015-01-01 · 169 side opinions in the corpus
Judge Yeary's flagged issues cluster heavily around jury charge doctrine and harmless error analysis, particularly Lesser-included-offense instructions, error preservation requirements, and when errors are structural versus curable. A substantial secondary cluster concerns statutory interpretation methodology, especially tensions between plain language and legislative intent, with accompanying separation-of-powers concerns. A third recurring area involves appellate review standards—what questions warrant de novo versus deferential review, and the proper scope of discretionary review authority. Fourth Amendment/search-and-seizure doctrine and double jeopardy/jury unanimity analysis each constitute a notable but smaller subset.
| Date | Case | Type | Summary | Tags |
|---|---|---|---|---|
| 2026-04-16 | Barber, Grady Jack, PD-0510-25 | concurrence | Judge Yeary joins the majority but writes separately to suggest that on remand, the court of appeals should consider whether the appellee has standing to invoke the statutory exclusionary rule, since the officer's unauthorized execution of the warrant may not have impacted the appellee's personal constitutional rights. | standing to suppress, exclusionary rule, personal rights, officer authorization |
| 2026-04-02 | Cuevas, Victor Hugo, PD-0144-25 | dissent | Judge Yeary argues that a trial court may not be reversed and remanded for a new trial based on jury charge error without first establishing that actual error occurred, and that a correct but inapplicable abstract instruction is merely superfluous and cannot constitute reversible error merely because it was unnecessary. | jury charge error, reversible error standards, appellate reversal requirements, harmless error doctrine, abstract instructions |
| 2026-02-12 | Tucker, Michael, PD-1059-24 | dissent | Whether statutory subsections that establish offense-defining elements, particularly those creating super-aggravated offense variants, must be included in the judgment's notation of the offense, and whether courts can avoid deciding such doctrinal issues based on party agreement. | judgment notation, offense elements, super-aggravated offenses, party stipulation, statutory subsections, judicial authority |
| 2026-01-29 | Lennox, Bobby Carl Aka Bobby Carl Leanox, PD-0284-25 | dissent | Judge Yeary argues that jury instructions on the lesser-included forgery offense in Penal Code § 32.21(e-1) should be treated as defensive instructions requiring defendant preservation or request, not automatically as "law applicable to the case" even when charged under higher subsections. He contends that treating § 32.21(e-1) as mandatory law would create an impractical burden on trial courts and an unworkable symmetry problem where courts would also have to instruct on greater unpled offenses. | jury charge instructions, lesser-included offenses, defensive instructions, preservation and waiver, in pari materia doctrine, forgery statute |
| 2025-12-19 | Hernandez, Israel Garcia, PD-0176-25 | dissent | Judge Yeary argues that appellate courts should afford greater deference to a jury's determination of reasonable suspicion in a legal sufficiency of evidence context following trial, rather than applying de novo review as the majority did; he contends that because reasonable suspicion is a mixed question of law and fact meant to be applied by jurors using ordinary understanding, the proper standard should respect jury latitude rather than treating it as a pure legal question subject to de novo appellate review. | appellate review standard, jury deference, reasonable suspicion, legal sufficiency, mixed law and fact, standard of review |
| 2025-11-20 | Joe, Daryl, PD-0423-23 | dissent | Judge Yeary disputes the Court's statutory interpretation methodology for theft crimes, arguing that the Court wrongly imports limitations based on presumed legislative intent rather than plain language, and he urges abandoning the Lang precedent that excluded lone actors from organized retail theft liability so those same principles are not now corrupted into the Cargo Theft statute. | statutory interpretation, plain language doctrine, organized retail theft, cargo theft, criminal statute construction |
| 2025-11-06 | Navarro, Jeremiah, PD-0222-22 | concurrence | Judge Yeary argues that courts should immediately overrule demonstrably erroneous precedent without applying traditional stare decisis factors, since elevating misconstrued statutory text over the actual law violates the separation of powers and encourages judicial hubris. | stare decisis, overruling precedent, statutory interpretation, separation of powers, demonstrable error |
| 2025-09-24 | Speer, William Keith, AP-77,119 | concurrence | Judge Yeary concurs with the majority's holding that habeas corpus relief must be sought in the Court of Criminal Appeals through its original jurisdiction, but clarifies that this jurisdictional limitation does not necessarily preclude the applicant from pursuing alternative extraordinary remedies, such as a writ of prohibition. | habeas corpus jurisdiction, alternative extraordinary writs, remedy availability, original jurisdiction |
| 2025-07-02 | Tates, Elijah, PD-0486-23 | concurrence | The proper categorization of a defendant's statutory right to be personally present at trial under the Marin error-preservation framework—whether this is a forfeitable right lost by failure to object at trial or a non-forfeitable "waiver-only" right that can only be lost by effective waiver. | error preservation, forfeiture and waiver, personal presence requirement, marin framework, statutory construction |
| 2025-06-04 | Owens, Kevin J., PD-0075-24 | dissent | Judge Yeary argues the majority creates an irreconcilable contradiction: if a statute against harassing communications regulates non-speech conduct (per Ex parte Barton), it cannot violate the First Amendment merely because communicative elements were employed in the offense. | first amendment, harassing communications, overbreadth doctrine, speech versus conduct distinction |
| 2025-05-28 | Armstrong, Joshua Ray, PD-0409-22 | concurrence | Judge Yeary agrees the statute contains no exigent circumstances requirement but writes separately to criticize the persistent failure of Texas courts to supply substantive meaning to the "suspicious place" language in Article 14.03(a)(1), arguing that decades of "totality of circumstances" formulations and factor tests remain jurisprudentially empty and proposing an alternative reading focused on whether the location enhances probable cause. | suspicious place definition, warrantless arrest authority, statutory vagueness, article 14.03(a)(1), texas criminal procedure, probable cause standard |
| 2025-05-14 | Rodriguez, Erik, PD-0377-24 | concurrence | Judge Yeary establishes that the "immediately apparent" element of plain view doctrine constitutes a probable cause inquiry subject to de novo appellate review rather than deferential review, clarifying that appellate courts cannot defer to trial courts' legal conclusions about whether an object's incriminating character was immediately apparent. | plain view doctrine, immediately apparent, probable cause, standard of review, appellate review, de novo |
| 2025-05-14 | Rodriguez, Erik, PD-0378-24 | concurrence | Judge Yeary clarifies that Guzman requires de novo review of a trial court's legal application of search and seizure law to facts, not abuse of discretion deference; he establishes that the "immediately apparent" element of plain view is a probable cause question subject to de novo review. | guzman, standard of review, plain view, probable cause, fact versus law |
| 2025-05-07 | Alkayyali, Tareq, PD-0290-23 | concurrence | Judge Yeary argues that actual harm exists when a jury charge omits an element from the application paragraph of alternative murder theories, because jurors conflicted on intent might strategically resort to the flawed theory to avoid resolving that conflict—and since jury verdicts are general, we cannot know whether some jurors convicted without finding the necessary causation element. He separately advocates (though not conclusively) that such errors warrant structural error treatment under the Texas Constitution rather than harmless error analysis. | jury charge error, general verdict, actual versus theoretical harm, harmless error analysis, elements of offense, structural error |
| 2024-12-18 | Bradshaw, Charles, PD-0577-23 | concurrence | Judge Yeary criticizes the majority's statutory "harmonization" approach to resolving a conflict between two provisions governing criminal court costs, arguing that if the statutes are truly irreconcilable, the Code Construction Act provides that the later-enacted statute should prevail, rather than effectively nullifying the 2019 transition provision. | statutory interpretation, irreconcilable statutes, code construction act, effective dates, harmonization doctrine |
| 2024-11-27 | Finley, Tayton Seth, PD-0634-22 | dissent | Judge Yeary dissents from the court of appeals' application of Maryland v. Craig's strict particularized-need requirement to a witness's wearing of a surgical mask during COVID-19 pandemic testimony, arguing that masking during a global pandemic does not categorically trigger the heightened confrontation scrutiny the court applied. | confrontation clause, surgical mask witnesses, maryland v. craig, pandemic exception, sixth amendment |
| 2024-11-13 | Floyd, James Earnest Jr., PD-0148-23 | concurrence | Judge Yeary agrees with the result but criticizes the majority for failing to apply the statutory definition of "element" from Texas Penal Code Section 1.07(a)(22) as the primary tool for jury unanimity questions, instead reflexively following double jeopardy precedent that itself provided inadequate rationale. | jury unanimity, statutory construction, elements of offense, penal code definitions, statutory interpretation |
| 2024-10-23 | Zapata, Rudy, PD-0800-23 | dissent | Judge Yeary argues that a trial court has legal authority to enter an affirmative finding of family violence when sentencing a defendant to deferred-adjudication community supervision, despite Article 42.013's requirement that such findings be made "in the judgment of the case," because that statute's language does not categorically prohibit such findings in other statutory contexts, and family violence determinations are substantively relevant to deferred adjudication conditions under Articles 42A.104(a) and 42A.504(b). | family violence findings, deferred adjudication authority, statutory interpretation, trial court discretion, expressio unius doctrine |
| 2024-10-09 | Villarreal, David Asa, PD-0048-20 | concurrence | The judge argues that the Supreme Court's time-dependent standard for the Sixth Amendment right to counsel during trial recesses is fundamentally incoherent because a constitutional right should not depend on recess duration, and he urges the Court to adopt a bright-line rule instead. | right to counsel, trial recess consultation, bright line rule, temporal standard, testifying defendant |
| 2024-10-09 | Aparicio, Ex Parte Luis Alfredo, PD-0461-23 | dissent | Judge Yeary argues that selective prosecution claims based on constitutional equal protection violations should be cognizable in pretrial habeas because such constitutional rights would be effectively undermined if not vindicated before trial, contrary to the Presiding Judge's position that selective prosecution claims should ordinarily not be cognizable. | selective prosecution cognizability, pretrial habeas, equal protection, as-applied claims, prosecutorial power |
| 2024-09-04 | Stafford, Ex Parte John Morgan, PD-0310-23 | dissent | Courts must narrowly construe ambiguous statutes under the canon of constitutional avoidance, and should first ask whether the regulated conduct—fraudulent misattribution of campaign messages—is even constitutionally protected speech. | constitutional avoidance canon, narrow construction, false attribution, unprotected fraud, political speech |
| 2024-06-26 | Curipoma, Jesus Alberto Guzman, PD-0159-22 | concurrence | Judge Yeary argues that when a pre-trial habeas corpus petition is filed in one county to challenge a criminal prosecution pending in another county, the prosecuting attorney of the county where the underlying case is pending—not where the habeas petition was filed—has authority under Article 44.01 to represent the State on appeal. His disagreement with the dissent centers on whether "the case" in Article 44.01(i) refers to the criminal prosecution itself or the ancillary habeas proceeding. | prosecuting attorney authority, habeas corpus jurisdiction, article 44.01 interpretation, multi-county prosecution, state's appellate standing, criminal procedure statute |
| 2024-06-26 | Turley, Andrew James, PD-0262-20 | dissent | Judge Yeary argues that the defendant cannot be guilty of attempting to cause the child to commit prostitution because his intentional drugging of her to unconsciousness demonstrates he could not have held the specific intent required for attempt—namely, to cause her to knowingly engage in sexual conduct for a fee. | attempt liability, specific intent, sex trafficking, victim intent, lesser-included offenses |
| 2024-06-26 | Turley, Andrew James, PD-0263-20 | dissent | Judge Yeary argues that the defendant cannot be liable for attempted compelling prostitution or trafficking because, having rendered the victim unconscious, he could not have possessed the specific intent to cause her to knowingly commit those offenses—an intent essential to attempt liability when the predicate crime requires the victim's knowing participation. | attempt liability, specific intent, victim knowledge requirement, logical inconsistency, lesser-included offense reformation |
| 2024-06-12 | Null, Alan William, PD-0192-22 | concurrence | Judge Yeary distinguishes the reliability standard required for an expert's own opinion under the Kelly test from the less stringent requirement that underlying data be the kind experts in the field would reasonably rely upon under Rule 703, contrary to the majority's approach. | kelly test scope, expert opinion, underlying data, rule 703, expert reliance, texas evidence |
| 2024-05-22 | Hughes, Darren Tramell, PD-0164-22 | dissent | Judge Yeary disputes the Court of Criminal Appeals' authority to decide issues on discretionary review that were neither raised in the petition for discretionary review nor addressed by the lower court, without explicitly granting discretionary review sua sponte on those issues. | appellate jurisdiction, discretionary review scope, sua sponte authority, issue preservation |
| 2024-05-22 | Baltimore, Ijah Iwasey, PD-0436-22 | dissent | Appellate courts conducting legal sufficiency review must first properly construe the applicable statutory law to establish a hypothetically correct jury charge; the majority improperly reviewed sufficiency based on an assumed rather than determined interpretation of the law. | legal sufficiency of evidence, hypothetically correct jury charge, statutory construction, appellate review, judicial deference |
| 2024-05-08 | Hart, Larry Jean, PD-0677-22 | dissent | Judge Yeary argues that the majority improperly abandoned the deferential abuse-of-discretion standard for reviewing evidentiary rulings and mischaracterized rap lyrics as uncharged-misconduct evidence (Rule 404(b)) when they were properly admitted as character-trait rebuttal evidence (Rule 404(a)(2)(A)), which does not require a factual nexus to the charged crime. | standard of review, abuse of discretion, rap lyrics evidence, character rebuttal evidence, rule 404, evidentiary deference |
| 2024-03-27 | Mays, Randall Wayne, AP-77,093 | dissent | Judge Yeary dissents from dismissing the competency-to-be-executed appeal as moot, arguing that because he would not have granted the underlying intellectual disability claim that resulted in commuting the death sentence, the competency challenge remains justiciable and warrants merits review. | mootness, competency to be executed, capital punishment, post-conviction habeas, intellectual disability |
| 2024-02-14 | Daniel, Bernard, PD-0037-22 | concurrence | Judge Yeary argues that the Texas Transportation Code establishes two distinct lane-related offenses with different elements—maintaining lane and unsafe lane change—but the State v. Hardin precedent wrongly imposed a unified safety requirement across both, conflating them into a single offense that misreads the statutory language. | statutory construction, lane maintenance violations, originalism, textualism, traffic enforcement |
| 2024-02-07 | Becerra, Joe Luis, PD-0280-22 | dissent | Judge Yeary argues that any unauthorized person actively participating in jury deliberations violates Texas's constitutional requirement for exactly twelve jurors, regardless of formal designation by the trial court, and that such violations cannot be harmlessly cured by later removal or jury instructions. He also objects to the majority's unannounced rejection of the presumption of harm traditionally applied to jury deliberation integrity violations. | jury composition, unauthorized participation, constitutional error, harmless error analysis, jury deliberations, presumption of harm |
| 2024-01-10 | Williams, Jemadari Chinua, PD-0099-23 | dissent | Judge Yeary argues that the court improperly assumed the statutory methods listed in Section 43.04(a) constitute alternate manners and means of a single offense, when the threshold question—whether they are elements of distinct offenses—must be decided first as it is outcome-determinative for proper pleading, jury unanimity, and double jeopardy principles. | statutory construction, manners and means versus elements, criminal pleading, jury unanimity, double jeopardy analysis |
| 2023-11-16 | Renteria, David Santiago, AP-77,118 | dissent | Judge Yeary dissents on jurisdictional grounds, arguing that the appellant failed to demonstrate any statutory or constitutional right to appeal the trial court's denial of habeas relief, and therefore the court lacks appellate jurisdiction and should dismiss the appeal. | right to appeal, appellate jurisdiction, habeas corpus, jurisdictional bar, constitutional appeal rights |
| 2023-10-09 | Murphy, Jedidiah Murphy, AP-77,116 | dissent | Judge Yeary argues that district courts lack authority to grant stays of execution in capital cases, as the Court of Criminal Appeals holds exclusive jurisdiction over such matters, and execution method challenges must be pursued through mandamus or prohibition in the proper appellate forum. | exclusive jurisdiction, capital cases, appellate jurisdiction, execution stays, district court authority, mandamus |
| 2023-10-04 | Delarosa, Francisco Jr., PD-0197-22 | dissent | Appellate review of sufficiency of evidence must focus on the offense of conviction, not the offense charged in the indictment, and an indictment's caption language is adequate to charge offenses despite inconsistency with the body. | sufficiency of evidence, indictment adequacy, jury verdict, offense elements, appellate review |
| 2023-10-04 | Delarosa, Francisco Jr., PD-0198-22 | dissent | Judge Yeary argues that sufficiency of evidence must be measured against the offense for which the defendant was actually convicted, not a different offense alleged elsewhere in the indictment, and that indictment caption language charging an offense adequately authorizes jury instructions on that offense despite body-caption discrepancies and defects. | sufficiency of evidence, indictment adequacy, jury instructions, pleading requirements, waiver forfeiture |
| 2023-10-04 | Delarosa, Francisco Jr., PD-0199-22 | dissent | Judge Yeary argues that an indictment adequately charges an offense when its caption explicitly designates that charge using "Charge" and count language, thereby obtaining grand jury authorization, even if the indictment's body describes a different theory of a related offense; he also contends that sufficiency-of-evidence review must be measured against the elements of the offense actually convicted of, not hypothetical alternatives the jury might have found. | indictment adequacy, caption charging authority, grand jury authorization, sufficiency of evidence standard, inconsistent pleadings, lesser included offense |
| 2023-09-06 | Huggins, Noel Christopher, PD-0590-21 | dissent | Judge Yeary dissents on the proper interpretation of Article 1.051(h), arguing that the statute's plain language permitting a defendant to withdraw a waiver of counsel "at any time" contains no implicit circumstantial or efficiency-based limitations, and that the majority wrongly engrafted judicial restrictions the Legislature did not express. | waiver withdrawal, statutory interpretation, right to counsel, criminal procedure, plain language, judicial discretion |
| 2023-06-28 | Green, Maxie D. d/b/a A To Z Bail Bonds, PD-0008-22 | dissent | Judge Yeary argues that evidence of a defendant's name being called at the courtroom door cannot categorically satisfy the statutory requirement to call the name at the courthouse door, and contests whether courts may apply a "substantial compliance" standard to a statute that does not explicitly authorize such flexibility. | substantial compliance doctrine, statutory interpretation, bond forfeiture, separation of powers, courthouse door requirement |
| 2023-06-28 | Ransier, Charles Robert, PD-0289-20 | dissent | Judge Yeary dissents on the standard for instructing juries on lesser-included offenses, arguing that trial courts must provide such an instruction upon request whenever evidence creates a rational potential for doubt regarding an elevating element of the offense charged. | lesser-included offense instructions, jury instructions, reasonable doubt, trial court duty, criminal procedure |
| 2023-04-19 | Chavez, Jose Juan, PD-0759-21 | dissent | Judge Yeary contends the lesser-included-offense instruction requirement should encompass evidence subject to alternative interpretations—not solely affirmative evidence—and should be reformed to align with statutory law rather than the court-created "guilty only" doctrine. | lesser-included-offense instructions, guilty-only test, evidence standard, statutory interpretation |
| 2023-04-19 | Allison, Markerrion D'Shon, PD-0905-21 | concurrence | Judge Yeary contends that Detective Reed was not properly qualified as an expert in slang interpretation under Texas Rule of Evidence 702, arguing that consulting hearsay sources three weeks before trial about an unfamiliar phrase does not establish genuine specialized knowledge, which should be grounded in training, experience, and sustained knowledge independent of the litigation. | expert qualification standards, slang interpretation, hearsay foundations, rule 702, police expertise, specialized knowledge |
| 2023-03-08 | Sledge, Donnell, PD-0065-22 | dissent | Judge Yeary dissents on two grounds: first, that the double jeopardy claim was not properly before the court because the appellant never raised it and the court of appeals had discretion to refuse consideration when the state raised it for the first time in a motion for rehearing; and second, that the majority's reliance on State v. Zalman to interpret "contrary to the law and the evidence" in Rule 21.3(h) as necessarily connoting legal insufficiency is not inevitable, since the phrase likely refers to factual sufficiency or other legal grounds for new trial that would not implicate double jeopardy. | new trial grounds interpretation, legal sufficiency doctrine, double jeopardy, appellate jurisdiction, advisory opinion, factual vs legal sufficiency |
| 2023-03-08 | Sledge, Donnell, PD-0066-22 | dissent | Judge Yeary argues that the phrase "contrary to the law and the evidence" in Texas Rule of Appellate Procedure 21.3(h), which authorizes new trials, does not necessarily mean the trial court found evidence legally insufficient (which would trigger double jeopardy bar to retrial), but could instead refer to factual insufficiency or other legal grounds, and that the record fails to show which basis the trial court actually applied. | double jeopardy, new trial standards, legal sufficiency, factual sufficiency, rule interpretation |
| 2023-03-08 | Sledge, Donnell, PD-0067-22 | dissent | Judge Yeary challenges the majority's reliance on State v. Zalman to interpret "contrary to the law and the evidence" in Rule 21.3(h) as necessarily meaning legal insufficiency; he argues the phrase is ambiguous and could refer to factual insufficiency or other legal grounds for granting a new trial. | new trial standards, rule 21.3(h), legal insufficiency, appellate procedure, double jeopardy |
| 2023-03-08 | Igboji, Jerel Chinedu, PD-0936-20 | dissent | Judge Yeary argues that the warrantless seizure of a cell phone is Fourth Amendment-reasonable when there is probable cause to believe evidence is on the phone and evidence that the suspect is aware of police suspicion and has both the ability and incentive to destroy incriminating evidence. | fourth amendment, cell phone seizure, probable cause, evidence destruction risk, warrantless seizure |
| 2023-01-11 | Dunham, Marc Wakefield, PD-0831-18 | dissent | Judge Yeary contends the majority improperly interpreted "style, grade, or model" in Texas Penal Code § 32.42(b)(7) to encompass the service provider's company identity rather than the actual characteristics of the commodity or service, thereby converting a commission offense into one of omission and improperly charging conduct that belongs under the separate "passing off" provision in § 32.42(b)(5). | deceptive business practices, statutory interpretation, style grade model, passing off property, omission versus commission, charging theory |
| 2022-12-21 | Cyr, Danna Presley, PD-0257-21 | dissent | Judge Yeary argues that the concurrent cause doctrine under Section 6.04(a) should apply to crimes of omission, rejecting the State's position that concurrent causation has no application when criminal responsibility is based on failure to act. | concurrent cause, omission liability, failure to act, injury to child, causation, criminal responsibility |
| 2022-11-02 | Hardin, Sheila Jo, PD-0799-19 | dissent | Judge Yeary argues that Texas Transportation Code § 545.060(a) establishes two separate, independently actionable traffic offenses—failing to drive within a single marked lane and unsafe lane changes—rather than one combined offense, contending that the statute's structure makes the conjunctive "and" create alternative grounds for prosecution rather than cumulative elements. | statutory interpretation, traffic violations, interpreting conjunctions, alternative offenses, penal statutes |
| 2022-10-26 | Rogers, William, PD-0242-19 | concurrence | The judge argues that whether a defendant is entitled to a defensive instruction turns solely on evidence actually admitted to the jury under TEX. PENAL CODE § 2.03(c), and should not conflate the trial court's alleged error in excluding evidence, which constitutes separate reversible error requiring independent analysis. | defensive instructions, admitted evidence, reversible error, appellate scope, trial court interference, jurisprudential clarity |
| 2022-10-12 | Brown, Ex Parte Sulia Lawrence, PD-0034-20 | dissent | Judge Yeary argues that the competency restoration commitment limit under Article 46B.0095(a) should be determined by the full adult statutory penalty for the offense charged (99 years to life), not a juvenile determinate sentence maximum, when a juvenile incompetent offender is transferred to adult court under Section 55.44(a), regardless of whether the State obtained grand jury approval for determinate sentencing. | competency restoration, juvenile transfer, statutory interpretation, penalty calculation, mental health commitment, determinate sentencing |
| 2022-10-05 | Anastassov, Stoyan K., PD-0848-20 | concurrence | Judge Yeary joins the majority opinion but flags that the precedential authority of the Crook plurality opinion—which may underlie the decision—remains an unsettled doctrinal question warranting future reconsideration. | plurality opinion precedent, crook standard viability, stare decisis reservation, open doctrinal questions |
| 2022-09-07 | Perkins, Mickey Ray, PD-0310-20 | concurrence | Judge Yeary clarifies that when specific details of extraneous offenses are probative to a contested guilt-phase issue (not merely to establish legal status), a defendant's offer to stipulate to the bare fact of conviction does not require the State to accept it, and such detailed evidence is not automatically rendered more prejudicial than probative under Rule 403. | evidentiary relevance, extraneous offense evidence, stipulation offers, rule 403 analysis, prior convictions, probative details versus legal status |
| 2022-08-24 | Lynch, Charles, PD-1089-20 | concurrence | In applying Rule 403's balancing test to prior offense evidence used for non-character purposes, similarity between incidents is not required for logical relevance, and temporal remoteness of prior convictions does not automatically render the evidence substantially more prejudicial than probative. | rule 403 balancing, prior offense evidence, logical relevance, unfair prejudice, extraneous misconduct |
| 2022-08-24 | Lang, Terri Regina, PD-1124-19 | dissent | Judge Yeary dissents because the jury's verdict does not necessarily embrace every element of the lesser theft offense, which Thornton requires for judgment reformation. | thornton test, lesser-included offenses, judgment reformation, verdict embracement, elements of offense, theft |
| 2022-07-27 | Parker, Silas Graham, PD-0388-21 | concurrence | Judge Yeary agrees that anticipatory search warrants are permissible under Article 18.01(b), but separately contests the majority's construction of Article 18.01(c) as prohibiting anticipatory evidentiary search warrants, arguing that present-tense statutory language may include future applications under the Code Construction Act and that this issue was unnecessary to resolve. | statutory construction, present tense legislation, anticipatory warrants, judicial restraint, code construction act |
| 2022-07-27 | Jefferson, Harold Gene, PD-0677-21 | concurrence | Judge Yeary argues that the court of appeals improperly treated a defendant's constitutional right to grand jury screening as subject to forfeiture by failure to object at trial, when that constitutional right should be waiver-only and cannot be lost by mere inaction. He contends the court conflated waiver and forfeiture, and suggests that Article 28.10(c)'s objection requirement may be unconstitutional insofar as it would render a constitutional grand jury right subject to forfeiture rather than waiver. | grand jury indictment, waiver and forfeiture, constitutional procedure, indictment amendment, felony charges |
| 2022-06-22 | Oliver, Roy, PD-0845-20 | concurrence | Judge Yeary argues that the Court should have reviewed whether an officer's statement to external investigators was involuntary under Garrity when it occurred immediately after internal affairs investigators had explicitly threatened him with job termination if he refused to cooperate, raising whether a reasonable officer would perceive the same employment-based compulsion applied to the external interrogation. | garrity doctrine, compelled statements, police employment coercion, involuntariness, external investigators |
| 2022-05-11 | Stredic, Vincent Depaul, PD-1035-20 | concurrence | Judge Yeary argues that Article 36.28 grants trial courts discretion in how (not just what) disputed testimony is provided to juries, and that providing an accurate transcript responsive to a jury's express request does not constitute an impermissible comment on the weight of evidence nor a reversible error because it cannot adversely affect the defendant's substantial rights. | article 36.28, jury readback, trial court discretion, harmless error, statutory interpretation |
| 2022-05-04 | Edwards, Ex Parte Maurice, PD-1092-20 | dissent | Judge Yeary argues that the majority misapplies Ex parte Smith by using it to foreclose pretrial habeas corpus review of sexual assault indictments that are facially barred by limitations and fail entirely to allege any of the statutory exceptions that would avoid the ordinary ten-year limitation period, when Smith actually addressed only the limited question of whether a flawed tolling paragraph could be repaired. | statute of limitations, pretrial habeas corpus, indictment sufficiency, reparable indictment doctrine, sexual assault |
| 2022-04-06 | Sanders, Ex Parte Nathan, PD-0469-19 | concurrence | Judge Yeary separately emphasizes that Texas's harassment statute, particularly its electronic communications provision, applies only to communications targeted and directed at specific individuals, establishing a limiting principle to confine the offense to conduct analogous to stalking or assault rather than broader categories of communication. | harassment statute scope, targeted communications, electronic harassment, statutory interpretation, texas penal code, individual targeting requirement |
| 2022-04-06 | Barton, Ex Parte Charles, PD-1123-19 | concurrence | The harassment statute is properly limited in scope to targeted electronic communications directed at specific individuals rather than broader categories of offensive speech or communications, a limitation that mirrors other criminal protections like stalking or assault. | harassment statute scope, targeted conduct, individual victimization, penal code § 42.07, electronic communications |
| 2022-03-30 | Alcoser, Danny Wayne, PD-0166-20 | concurrence | When reviewing unobjected-to jury-charge errors for egregious harm, appellate courts should confine their analysis to the specific errors the appellant raises on appeal, rather than independently identifying and evaluating additional potential errors in the jury charge. | jury charge error, appellate review scope, egregious harm, unobjected error, appellate procedure |
| 2022-03-30 | Valadez, Adrian, PD-0574-19 | dissent | Judge Yeary contends that appellate courts are improperly substituting judgment for the trial court's discretionary Rule 403 balancing determination, which should receive abuse-of-discretion deference, and that evidence of prior marijuana connections was admissible to rebut the defendant's "innocent passenger" defense by establishing familiarity with the drug's odor, rather than being inadmissible character evidence. | appellate deference rule 403, prior misconduct knowledge vs character, trial strategy responsive evidence |
| 2022-03-02 | Garcia, Daniel, PD-0025-21 | dissent | Judge Yeary dissents from the majority's apparent elimination of the Idowu distinction between "appropriateness" restitution order claims (which require trial-court preservation) and "factual basis" claims (which might not, analogous to legal sufficiency challenges), arguing this doctrinal change was not adequately briefed by the parties and should have been remanded to the court of appeals for initial consideration. | restitution orders, error preservation, appellate procedure, idowu distinction, factual basis claims |
| 2022-02-09 | Pham, Happy Tran, PD-0287-20 | concurrence | Trial counsel has an independent constitutional obligation to investigate mitigation evidence that cannot be justified merely by prioritizing guilt-phase self-defense strategy, a duty the judge emphasizes as distinct from guilt-phase defense obligations under Strickland v. Washington. | trial counsel effectiveness, mitigation investigation, strickland deficiency test, punishment phase, strategy prioritization |
| 2021-12-15 | Stephens, Zena Collins, PD-1032-20 | dissent | Judge Yeary argues that the Attorney General's constitutional duty to perform such other duties as may be required by law constitutes an express exception to the separation of powers doctrine, permitting the Legislature to authorize the AG to prosecute election law violations despite this power normally belonging to local prosecutors in the Judicial department. His dissent relies on Brady v. Brooks to support this constitutional interpretation. | separation of powers, attorney general authority, prosecutorial power, constitutional catch-all clause, brady precedent |
| 2021-12-15 | Stephens, Ex Parte Zena Collins, PD-1033-20 | dissent | Whether the constitutional catch-all provision authorizing the Attorney General to perform legislatively-prescribed duties serves as an express exception to separation of powers, thereby validating the legislature's grant of prosecutorial authority for election law crimes to an executive officer. | separation of powers, attorney general authority, constitutional exception, election law, brady precedent |
| 2021-12-15 | Martin, Terry, PD-1034-20 | concurrence | Whether a person prosecuted under the enhanced handgun provision for gang members must actually be one of the gang members who continuously or regularly participate in criminal activities, or whether passive gang membership alone suffices. Judge Yeary agrees with the majority's construction requiring active participation, though he expresses less certainty about the plain language of the statutes and does not reach potential constitutional concerns. | statutory interpretation, gang membership, criminal street gang, enhanced penalties, criminal liability |
| 2021-10-27 | West, Timothy, PD-0236-20 | dissent | Judge Yeary argues that the statute of limitations should be tolled by any pending indictment against a defendant, as Article 12.05(b) plainly states, rather than only when subsequent indictments charge the same conduct—a judicially-imposed requirement unsupported by the statute's text. | statute of limitations tolling, plain language interpretation, judicial construction, indictment, criminal procedure |
| 2021-10-20 | Brent, Lakesia Keyon, PD-0020-21 | concurrence | Judge Yeary addresses the temporal scope of trial court jurisdiction to grant judicial clemency under Article 42A.701(f)—whether courts may set aside convictions indefinitely after discharge from community supervision or only within the standard 30-day plenary jurisdiction period—holding that despite the statute's lack of explicit temporal language, discretion is limited to the discharge proceeding based on textual structure and legislative inaction. | judicial clemency, statutory interpretation, trial court jurisdiction, temporal limits, conviction set-aside |
| 2021-09-29 | Do, Phi Van, PD-0556-20 | dissent | When the State fails to properly plead or prove an essential element distinguishing a greater-inclusive offense from a lesser-included offense and fails to object to its omission from the jury charge, the defendant should not be required to object on the State's behalf; the State's failure to join issue should result in forfeiture of the greater conviction, not penalize the defendant with an illegal sentence based on a verdict that did not authorize it. | jury charge, elements vs enhancement, state forfeiture, lesser-included offense, procedural burden, sixth amendment |
| 2021-09-15 | Simms, Christopher, PD-1248-19 | dissent | When a defendant charged with aggravated assault on multiple alternative theories of recklessness presents evidence negating some theories but not all, and at least one unrebutted theory directly caused the victim's serious injury, Judge Yeary argues the lesser-included offense instruction is not required because the evidence does not permit a rational jury to reject the greater offense. | lesser-included offense instruction, multiple alternative theories, aggravated assault, recklessness and causation, evidentiary sufficiency |
| 2021-06-30 | Lanclos, Ex Parte Allen Christopher, PD-0243-21 | dissent | Judge Yeary argues the majority opinion fails to address which party bears the burden of proving what bail amount a defendant can afford under Article 17.151, and contends the burden should rest on the defendant as the beneficiary of the reduction provision who is best positioned to prove his own financial resources. | bail reduction, burden of proof, article 17.151, criminal procedure, evidentiary burden |
| 2021-06-30 | Anderson, Andrew, PD-0279-20 | dissent | Whether pro se inmates invoking the prisoner mailbox rule must send their notice of appeal strictly to the appellate clerk or whether addressing it to the trial court satisfies the "proper clerk" requirement of Rule 9.2(b)(1), with Judge Yeary arguing for the flexible interpretation the Texas Supreme Court has applied to the predecessor rule. | prisoner mailbox rule, appellate filing requirements, pro se inmates, proper clerk requirement, notice of appeal, rule construction |
| 2021-05-26 | Williams, Issac, PD-0477-19 | dissent | The dissent argues that a defendant requesting a lesser-included offense instruction need not point to specific evidence supporting the instruction to preserve error for appeal; the applicable error-preservation rule requires only that the request be sufficiently clear to alert the trial court to the defendant's complaint, a standard the appellant satisfied. | error preservation, lesser-included offense instructions, specificity standard, jury instructions, appellate procedure |
| 2021-05-26 | Jones, Ex Parte Jordan Bartlett, PD-0552-18 | concurrence | Whether courts should interpret criminal statutes implicating the First Amendment primarily through ordinary state statutory construction principles—specifically by presuming a culpable mental state attaches to circumstance elements that render otherwise innocent conduct criminal—rather than invoking federal constitutional doctrines like strict scrutiny and overbreadth analysis. | statutory construction, culpable mental state doctrine, circumstance elements, nonconsensual intimate images, first amendment methodology, interpretive hierarchy |
| 2021-05-12 | Anderson, Kenneth Dwayne, PD-0063-20 | dissent | This dissent incorporates by reference Judge Yeary's earlier dissent in Dulin v. State (decided March 31, 2021) without restating the substantive issue in the opinion itself. | opinion structure, cross-referenced dissent, the *dulin* opinion would need to be consulted. |
| 2021-05-12 | Bryant, Tometheus Lee, PD-0092-20 | dissent | This dissent incorporates by reference Judge Yeary's separate dissent in Dulin v. State (issued March 31, 2021), without independently articulating the substantive legal issue within this opinion text. The specific doctrinal basis cannot be determined without reviewing the referenced Dulin dissent. | incorporation by reference, discretionary review, dissent methodology |
| 2021-05-12 | Warren, James Earl, PD-0117-21 | dissent | This dissent contains no substantive elaboration, referring entirely to the judge's prior dissenting opinion in Dulin v. State for the reasoning supporting the dissent's position. | incorporeal dissent, cross-reference opinion, no substantive reasoning in text |
| 2021-05-12 | Williams, Toronto Clayvernon, PD-0124-20 | dissent | The judge's dissent incorporates by reference the substantive reasoning from his dissenting opinion in Dulin v. State without stating the specific doctrinal issue in this opinion text itself, making it impossible to identify the judge's separate point from this excerpt alone. | dissent by reference, discretionary review, procedural incorporation |
| 2021-05-12 | Watts, Kenneth, PD-0170-20 | dissent | Unable to determine substantive issue from this excerpt; the dissent incorporates by reference Judge Yeary's reasoning in Dulin v. State without articulating independent substantive analysis. | dissent, incorporation by reference, the dulin v. state dissent (nos. pd-0856-19 & pd-1857-19, 2021 wl 1202400) would need to be reviewed. |
| 2021-05-12 | Forister, Albert, PD-0196-20 | dissent | Judge Yeary dissents from the Court's disposition of the State's petition for discretionary review, incorporating by reference his previously articulated position from a parallel dissent in Dulin v. State without independently restating the underlying doctrinal disagreement in this opinion. | petition for discretionary review, criminal appellate procedure |
| 2021-05-12 | Jackson, Tio, PD-0199-20 | dissent | This dissent provides no independent doctrinal analysis, instead incorporating by reference Judge Yeary's dissenting opinion in the companion case Dulin v. State without elaborating the substantive issue in dispute. | discretionary review, lack of substantive analysis, incorporation by reference |
| 2021-05-12 | Horn, Michael Andrew, PD-0209-21 | dissent | This dissenting opinion provides no substantive reasoning, instead explicitly incorporating by reference Judge Yeary's dissenting opinion in Dulin v. State; the actual doctrinal issue cannot be determined from this opinion text alone. | dissent, discretionary review, incorporated by reference |
| 2021-05-12 | Percivill, Richard Lee Jr., PD-0347-20 | dissent | Judge Yeary's dissent does not articulate a substantive position within this opinion but instead incorporates by reference his reasoning from Dulin v. State, indicating disagreement with the majority's handling of the State's petition for discretionary review on unstated grounds that are detailed in the earlier case. | cross-reference dissent, discretionary review, petition disposition |
| 2021-05-12 | Percivill, Richard Lee Jr., PD-0348-20 | dissent | Judge Yeary dissents from the Court's disposition of the State's petition for discretionary review but does not specify the substantive doctrinal issue within this opinion, instead incorporating by reference his reasoning from a parallel dissent in Dulin v. State. | discretionary review, unexplained dissent |
| 2021-05-12 | Mendoza, Gabriel, PD-0394-20 | dissent | This is an incorporative dissent that does not articulate a substantive issue; Judge Yeary merely incorporates by reference his dissenting opinion in Dulin v. State (decided the same month) without restating the doctrinal or jurisprudential grounds for disagreement with the Court's disposition. | incorporative dissent, discretionary review, texas criminal appeals |
| 2021-05-12 | Porter, Darrell Jan, PD-0422-20 | dissent | Judge Yeary's dissent does not articulate substantive doctrine; it incorporates by reference the reasoning from his dissent in Dulin v. State (decided the same month) without elaborating the doctrinal issue in this opinion. | dissent by reference, procedural incorporation |
| 2021-05-12 | Donham, Timothy, PD-0572-20 | dissent | Judge Yeary dissents from the Court's disposition of the State's petition for discretionary review, though he does not develop independent reasoning in this opinion, instead incorporating by reference the analysis from his dissent in Dulin v. State. | petition for discretionary review, criminal appeals, appellate standards |
| 2021-05-12 | Wells, Michael, PD-0579-20 | dissent | Judge Yeary's dissent addresses whether mandatory criminal court cost assessments—specifically portions of the time payment fee directed to general revenue rather than discrete court functions—violate separation-of-powers principles by functioning as unconstitutional taxation. | separation of powers, court costs, taxation, criminal procedure |
| 2021-05-12 | Atkins, Thomas Elijah, PD-0666-20 | dissent | Unable to determine from this opinion. Judge Yeary's dissent consists entirely of an incorporation by reference to his dissenting opinion in Dulin v. State (Nos. PD-0856-19 & PD-1857-19, 2021 WL 1202400), without stating the substantive doctrinal issue in this opinion itself. | unable to assess, incorporation by reference, missing content |
| 2021-05-12 | Atkins, Thomas Elijah, PD-0667-20 | dissent | This dissent does not articulate a substantive issue; it incorporates by reference Judge Yeary's dissenting opinion in Dulin v. State (decided March 31, 2021) without restating the doctrinal concern. | incorporation by reference, dissent without elaboration, 2021 wl 1202400). |
| 2021-05-12 | King, James Elwood Jr., PD-0779-19 | dissent | This dissenting opinion does not articulate a substantive position; Judge Yeary simply incorporates by reference his dissenting opinion in Dulin v. State without explaining the doctrinal disagreement in the present case. | incorporation by reference, dissent without articulation, substantive issue unstated |
| 2021-05-12 | Kremplewski, Leland, PD-0848-19 | dissent | Judge Yeary dissents from the Court's disposition of the discretionary review petition, but declines to restate his substantive reasoning, instead incorporating by reference his dissenting opinion in the related Dulin cases decided the preceding month. | discretionary review disposition, dissenting opinion, cross-referenced reasoning |
| 2021-05-12 | Armindariz, Matthew John, PD-0883-19 | dissent | Judge Yeary dissents from the denial of the State's petition for discretionary review, incorporating by reference his dissenting opinion in a parallel case (Dulin) without elaborating the substantive grounds for disagreement in this opinion. | discretionary review standards, state petition standards, appellate jurisdiction, incorporation by reference |
| 2021-05-12 | Anderson, Keith Davis, PD-0926-20 | dissent | Judge Yeary dissents from the majority's disposition of the State's discretionary review petition, relying entirely on substantive reasoning articulated in his concurrent dissent in Dulin v. State rather than presenting independent argument in this opinion. | discretionary review petition, incorporation by reference, criminal procedure, companion dissents |
| 2021-05-12 | Bailey, Misty Rae, PD-0942-19 | dissent | Judge Yeary dissents from the Court's disposition of the State's petition for discretionary review, incorporating by reference the reasoning from his prior dissent in Dulin v. State; the specific substantive issue is not elaborated in this opinion but relies entirely on the separate Dulin dissent. | discretionary review, dissenting opinion, incorporated reasoning, criminal procedure |
| 2021-05-12 | Lopez, Gerardo Alonzo, PD-0943-19 | dissent | This dissenting opinion does not articulate a substantive doctrinal issue within its text; Judge Yeary incorporates by reference his dissent in a companion case (Dulin v. State, decided the same day) without elaborating the legal principle at stake. | dissent, reference to companion case, insufficient detail |
| 2021-05-12 | Irvin, Charity, PD-0959-20 | dissent | Judge Yeary dissents from the majority's disposition of the State's petition for discretionary review, incorporating by reference his reasoning from a separate dissent in Dulin v. State without articulating the substantive issue in this opinion. | petition for discretionary review, dissent incorporation |
| 2021-05-12 | Hutson, Kimberly Anne, PD-0987-19 | dissent | Judge Yeary dissents from the Court's disposition of the State's petition for discretionary review, incorporating by reference his reasoning in a companion dissent filed the same term in Dulin v. State. | discretionary review, criminal procedure, petition disposition |
| 2021-05-12 | Dye, Akeem Denoise, PD-0991-20 | dissent | This dissent incorporates by reference the substantive reasoning from the judge's dissent in Dulin v. State rather than articulating independent grounds; the specific doctrinal issue cannot be identified from this opinion text alone. | dissent by incorporation, dulin v. state reference, discretionary review |
| 2021-05-12 | Elliott, Holly Leann, PD-1088-20 | dissent | The dissent does not articulate a substantive doctrinal issue in this opinion; Judge Yeary incorporates by reference his reasoning from a contemporaneous dissent in Dulin v. State without restating the grounds for disagreement with the majority's disposition. | dissent by reference, discretionary review, deferred reasoning |
| 2021-05-12 | Biggs, Kendall, PD-1094-20 | dissent | Judge Yeary dissents from the Court's disposition without articulating the substantive basis in this opinion, instead incorporating by reference his reasoning from a prior dissent in Dulin v. State. | incorporation by reference, discretionary review, unexpounded dissent, march 31, the *dulin* dissent would need to be consulted. |
| 2021-05-12 | Crooks, Kendrick Antre Clark, PD-1183-20 | dissent | This dissent does not articulate a substantive position. Judge Yeary incorporates by reference their dissenting opinion in a parallel case (Dulin v. State) without restating the underlying doctrinal issue in this opinion. | dissent-by-incorporation, discretionary review, the dulin dissent would need to be reviewed. |
| 2021-05-12 | Ortega, Delfino Jr., PD-1193-19 | dissent | This opinion contains insufficient information to identify a substantive issue; it is a reference dissent adopting Judge Yeary's reasoning in Dulin v. State without restating the doctrinal disagreement. | reference dissent, cross-citation, issue not stated in text |
| 2021-05-12 | Villegas, Abigail, PD-1201-20 | dissent | Judge Yeary dissents from the majority's disposition of the State's petition for discretionary review, incorporating by reference his dissenting reasoning from Dulin v. State, but does not articulate the substantive doctrinal issue within this opinion itself. | discretionary review petition, petition disposition, the dulin dissent would need to be reviewed. |
| 2021-05-12 | Turner, Delvron, PD-1245-20 | dissent | This dissent provides no substantive doctrinal content; Judge Yeary merely incorporates by reference his dissenting opinion in a companion case (Dulin v. State) without elaborating on the specific jurisprudential disagreement in this matter. | insufficient content, cross-referenced dissent, procedural posture only |
| 2021-05-12 | White, Jeffery Thomas, PD-1256-20 | dissent | Judge Yeary dissents without articulating a substantive doctrinal position in this opinion, instead incorporating by reference his reasoning from a contemporaneous dissent in Dulin v. State, leaving the specific jurisprudential issue unstated. | dissent, incorporation by reference, discretionary review, opinion structure |
| 2021-05-12 | Foley, William Larry, PD-1257-20 | dissent | Judge Yeary dissents from the Court's disposition of the State's petition for discretionary review but does not articulate the substantive issue in this opinion, instead referring entirely to his prior dissent in Dulin v. State, decided the previous month. | discretionary review, appellate jurisdiction, state petition standard, nos. pd-0856-19 & pd-1857-19 (tex. crim. app. mar. 31, 2021). |
| 2021-05-12 | Townsend, Randall Todd, PD-1259-19 | dissent | Judge Yeary's dissent declines to restate substantive reasoning, instead incorporating by reference his dissenting opinion in Dulin v. State without independent elaboration in this opinion. | cross-reference dissent, incorporated by reference, discretionary review |
| 2021-04-21 | Miranda, Christopher, PD-1340-18 | concurrence | Judge Yeary argues that Texas courts should abandon the corpus delicti rule entirely rather than continue extending judge-made exceptions to it, contending the rule lacks statutory, constitutional, or precedential support. | corpus delicti rule, confession evidence, common-law exceptions, rule elimination, texas criminal law |
| 2021-04-14 | Curlee, Dallas Shane, PD-0624-20 | dissent | Judge Yeary argues that appellate courts should not overturn jury factual findings about statutory requirements based on photographs taken months after the offense, absent evidence those photographs reflected conditions on the offense date. He emphasizes the jury's prerogative to make such determinations and warns against appellate courts functioning as additional fact-finders in evidence sufficiency review. | evidence sufficiency, jury prerogative, post-offense evidence, appellate restraint, statutory interpretation |
| 2021-03-31 | Dulin, Bryant Edward, PD-0856-19 | dissent | Judge Yeary's dissent argues that legislatively-enacted court costs should be evaluated for constitutional validity based on whether total amounts assessed do not exceed actual criminal justice administration costs, regardless of whether collected funds are deposited into general revenue or specifically designated accounts. | separation of powers, court costs, reimbursement standard, constitutional review |
| 2021-03-31 | Dulin, Bryant Edward, PD-0857-19 | dissent | Judge Yeary disputes whether courts should invalidate legislatively enacted court costs based on how collected revenues are allocated to general funds, arguing that reimbursement-type fees serving legitimate criminal justice purposes (like enforcing timely payment) should survive separation-of-powers review regardless of fund allocation. | separation of powers, court costs, judicial review, legislative authority, criminal procedure, reimbursement fees |
| 2021-03-03 | Watkins, Ralph Dewayne, PD-1015-18 | dissent | Judge Yeary argues that courts should interpret statutes by focusing on plain textual meaning rather than attempting to discern legislative intent, warning that the latter approach improperly risks judicial lawmaking in violation of constitutional separation of powers principles. | statutory interpretation methodology, textualism, separation of powers, judicial restraint, discovery evidence law |
| 2021-03-03 | Brown, Frederick L., PD-1292-19 | dissent | Judge Yeary argues that the forfeiture by wrongdoing doctrine requires proof of two distinct elements—both intentional wrongdoing AND the witness's unavailability—and that the court of appeals erred by addressing only the first element and failing to require the State to establish actual unavailability as part of its burden once a Confrontation Clause objection is preserved. | forfeiture by wrongdoing, confrontation clause, witness unavailability, burden of proof, sixth amendment |
| 2020-12-09 | Haggard, James Ray, PD-0635-19 | concurrence | Judge Yeary argues that the Sixth Amendment's Confrontation Clause mandates literal, physical, face-to-face confrontation in the courtroom and cannot be satisfied by two-way video testimony, even if the technology might achieve equivalent truth-finding results, because the constitutional text reflects the framers' specific procedural choice rather than a flexible goal-oriented standard. | confrontation clause, sixth amendment, originalism, video testimony, procedural guarantees, witness confrontation |
| 2020-06-10 | Whillhite, Bryan Wayne, PD-0095-20 | concurrence | Judge Yeary concurs in remanding for Anders purposes but expresses ongoing skepticism about the retroactive application of the overbreadth doctrine, arguing that facial unconstitutionality should not broadly benefit defendants who have not suffered First Amendment violations themselves and that such issues should not be raised for the first time on discretionary review. | overbreadth doctrine, facial unconstitutionality, retroactive application, first amendment standing, appellate review scope, anders procedure |
| 2020-06-10 | Ebikam, Obinna, PD-1199-18 | dissent | Judge Yeary dissents from the majority's imposition of a "confession and avoidance" requirement for justification defenses, arguing that Texas Penal Code § 2.03(c) does not require a defendant to admit the elements of the offense before being entitled to a jury instruction on justification, even when denying the specific manner or means alleged in the charging instrument. | confession and avoidance, justification defense, jury instruction, statutory construction, self-defense, defense evidence |
| 2020-04-22 | Stahmann, Karl Dean, PD-0556-18 | dissent | Whether the word "conceal" in the evidence tampering statute means an object must be hidden from all view, or whether it can mean relocated from where investigators would naturally notice it, even if visible to observant third parties. | concealment definition, evidence tampering, statutory interpretation, relative concealment, investigator notice |
| 2020-02-05 | Jordan, Patrick, PD-0899-18 | dissent | Yeary argues that the harm from omitting a multiple-assailants instruction in the self-defense charge is not "plainly evident" as the majority claims, because the instruction given was adequate—even arguably more favorable—in allowing acquittal on Appellant's reasonable belief about Royal's threat, and it remains genuinely debatable whether including other assailants would have materially changed the jury's verdict. | jury instructions, self-defense, harm analysis, multiple assailants, plainly evident error |
| 2019-11-20 | Garcia, Freddy, PD-0035-18 | concurrence | Judge Yeary questions whether election error—the trial court's failure to require the state to elect which act constitutes the charged offense—is truly a constitutional error warranting the Chapman harmless-beyond-a-reasonable-doubt standard, arguing it may instead implicate only the non-constitutional substantial rights standard and does not necessarily implicate jury unanimity or bedrock due process protections. | election error, harmless error standard, constitutional errors, jury unanimity, due process, appellate review standards |
| 2019-11-20 | Allen, Ruben Lee, PD-1042-18 | concurrence | Judge Yeary questions whether Ex parte Carson, the foundational precedent underpinning Peraza v. State's separation of powers analysis of anticipatory court costs, actually addressed the Texas Constitution's separation of powers clause at all, and urges the Court to reconsider this doctrinal foundation when a suitable case arises. | separation of powers, court costs, anticipatory charges, constitutional doctrine, precedential foundations, ex parte carson |
| 2019-11-20 | Allen, Ruben Lee, PD-1042-18 | concurrence | Judge Yeary questions whether the foundational case establishing that court cost statutes implicate the Texas Constitution's separation of powers clause actually addressed that constitutional provision, suggesting the entire doctrinal framework may lack proper constitutional grounding. | separation of powers, court costs, doctrinal foundation, anticipatory costs, stare decisis |
| 2019-11-06 | Hestand, Dustin Wade Aka Dustin W. Hestand, PD-0513-19 | dissent | Judge Yeary argues that the "illegal sentence" exception to the contemporaneous objection rule should not extend to complex enhancement claims involving statutory interpretation questions, such as whether a state-jail felony can serve as a predicate for enhancing another state-jail felony. He contends that defendants should be required to object at the punishment phase when such issues become apparent, rather than being excused from the procedural default that results from raising them for the first time on appeal. | illegal sentence exception, enhancement claims, contemporaneous objection, statutory construction, procedural default, sentencing |
| 2019-10-30 | Curry, Steven, PD-0577-18 | concurrence | The judge argues that although the legislature apparently intended the 2013 amendment to the failure to stop and render aid statute to eliminate culpable mental state requirements, the statutory language does not "plainly" dispense with one, so courts must read in knowledge of the accident and injury as required, preserving mistake of fact defenses. | failure to stop, culpable mental state, statutory interpretation, plain language, legislative intent, mistake of fact |
| 2019-06-19 | Riley, Charlie, PD-0255-18 | dissent | Judge Yeary dissents from the Court's reversal based on the facial unconstitutionality of Texas Government Code § 551.143, incorporating his detailed dissent from the companion case State v. Doyal. | facial constitutional challenge, statutory validity, appellate dissent, judicial review |
| 2019-06-19 | Davenport, Marc, PD-0265-18 | dissent | Judge Yeary dissents from the Court's reversal based on the facial unconstitutionality of Texas Government Code Section 551.143, disagreeing with the constitutional conclusion adopted in State v. Doyal that he separately addressed in his dissent in that case. | facial unconstitutionality, section 551.143, statutory validity, constitutional challenge, government code |
| 2019-05-15 | Ross, Dai'Vonte E'Shaun Titus, PD-1066-17 | concurrence | Judge Yeary disputes the majority's construction of Texas Penal Code Section 46.035(a), arguing that the statute distinguishes between merely "carrying" a holstered handgun (which is lawful) and "displaying" it (which requires an affirmative act of conspicuous ostentation), grounding this interpretation in the 2013 amendment's shift from "fail to conceal" to "intentionally display." | statutory interpretation, display versus carry, open carry licensing, legislative history, criminal liability scope |
| 2019-02-27 | Doyal, Craig, PD-0254-18 | dissent | Judge Yeary argues that facial vagueness challenges—even in First Amendment cases—should require the challenger to demonstrate the statute is vague as applied to their own conduct, which is particularly inappropriate to resolve pre-trial before the defendant's actual conduct is established. | vagueness doctrine, facial constitutional challenges, first amendment, burden of proof, pre-trial adjudication |
| 2019-01-09 | Martinez, Roger Anthony, PD-0324-17 | concurrence | Judge Yeary defends the institutional role of trial courts in making factual findings about probable cause through circumstantial evidence and credibility determinations, arguing it was proper to remand for such findings rather than having appellate courts apply the collective knowledge doctrine to impute knowledge an officer may not have actually possessed. | collective knowledge doctrine, probable cause, trial court fact-finding, institutional role, appellate review standards, arrest justification |
| 2018-12-12 | Garcia, Joel, PD-0344-17 | dissent | Judge Yeary argues that Missouri v. McNeely does not categorically foreclose per se exigent circumstances exceptions to the warrant requirement, and that the specific context of a hospitalized DWI suspect in a fatal collision—where routine medical procedures like IVs dilute blood-alcohol evidence—justifies a categorical rule rather than case-by-case analysis, which he contends creates an impossible situation for officers and produces unreliable fact-finding. | categorical exigent circumstances, dwi blood draw warrant, fourth amendment medical procedures, per se versus case-by-case, hospital evidence preservation |
| 2018-12-05 | Thomas, Kenneth Dewayne, AP-77,047 | dissent | The dissent argues the majority improperly invoked unassigned error doctrine to reverse based on an expert testimony issue that was neither preserved at trial nor adequately briefed in the point of error, and that the Court must either locate a trial objection in the record or justify why ordinary procedural default requirements do not apply. | unassigned error, procedural default, preservation of error, appellate review, briefing requirements |
| 2018-12-05 | Jenkins, Deondre Javqueen, PD-0086-18 | concurrence | Constitutional sufficiency of an indictment under Article V, Section 12(b) should be measured by examining the indictment as a whole rather than against the specific statutory formal requisites of Article 21.02, such that an indictment can be procedurally defective under statute while remaining constitutionally valid and jurisdictionally sufficient. | constitutional indictment requirements, statutory formal requisites, indictment as a whole, constitutional versus statutory standards, jurisdictional sufficiency |
| 2018-11-21 | Lang, Terri Regina, PD-0563-17 | dissent | Judge Yeary defends the textualist principle that courts must apply statutes according to their plain language and cannot consult legislative history to override that plain meaning, arguing that doing so would unconstitutionally allow courts to usurp legislative authority in violation of separation of powers. | statutory interpretation, textualism, separation of powers, plain language doctrine, legislative history |
| 2018-11-07 | Johnson, Dondre, PD-0197-17 | concurrence | Judge Yeary argues that vicarious criminal liability under Texas Penal Code Section 7.02(a)(2) requires proof that the other person actually committed an offense with the requisite mens rea, not merely participated in criminal conduct without the intent to commit the crime. | vicarious liability, mens rea requirement, penal code section 7.02, aiding and abetting, criminal intent |
| 2018-10-10 | Jacobs, Joshua, PD-1411-16 | concurrence | While prior convictions for similar offenses are admissible as character-conformity evidence under Texas law, jurors cannot use such evidence as a shortcut to guilt when the state's proof falls short of beyond-a-reasonable-doubt; they must appreciate this critical distinction between evidence of character and substitute proof of guilt. | character-conformity evidence, prior conviction admissibility, proof standards, jury instructions, criminal procedure |
| 2018-10-03 | Marks, William, PD-0549-17 | dissent | Judge Yeary argues that courts should apply Article 12.05(b)'s plain statutory language without judicial intervention, contending that the majority's Hernandez precedent improperly read in an unstated "same transaction" requirement based on policy preferences rather than statutory text, and urges overruling Hernandez to restore the statute's unqualified meaning. | plain language statutory interpretation, judicial gap-filling, separation of powers, statute of limitations, statutory construction methodology |
| 2018-10-03 | Marks, William, PD-0550-17 | dissent | Judge Yeary argues that courts must strictly adhere to the plain language of statutes and cannot depart from it to impose judicially-created limitations based on policy considerations, criticizing the Hernandez precedent for reading an unwarranted "relatedness" requirement into a statute that plainly requires no such limitation. | statutory interpretation, plain meaning rule, separation of powers, statute of limitations tolling, textualism |
| 2018-10-03 | Marks, William, PD-0551-17 | dissent | Judge Yeary contends that Article 12.05(b) has plain meaning requiring no judicial construction—any pending indictment tolls the statute of limitations without requiring relatedness to other charges. He argues that Hernandez wrongly imposed a "same transaction" requirement based on policy rather than statutory text and should be overruled. | statutory interpretation, plain meaning rule, statute of limitations, separation of powers, judicial construction |
| 2018-06-13 | Niles, Scott, PD-0234-17 | dissent | Judge Yeary dissents from the majority's application of harmless error review to a jury charge that omitted an essential element, arguing that because no fact-finder made any finding on the missing "public servant" element, this presents an illegal sentence rather than a curable jury charge error, and the State should not be permitted to reframe the appellant's appellate complaint after failing to object at trial. | jury charge omissions, harmless error doctrine, essential elements, illegal sentences, jury trial rights, procedural waiver |
| 2018-06-13 | Niles, Scott, PD-0235-17 | dissent | A dissent arguing that when jury instructions omit an element necessary for sentencing enhancement and no fact-finding body has made any finding on that element, the error differs fundamentally from Apprendi violations and should be treated as illegal sentence rather than jury charge error subject to harmless error analysis; further, the state should not unilaterally recharacterize a defendant's appellate complaint regarding an error the state failed to object to at trial. | jury instruction defects, sentencing enhancements, apprendi doctrine, harmless error, appellate waiver, structural error |
| 2018-06-06 | Bien, Michael Joseph, PD-0365-16 | dissent | Judge Yeary argues the majority incompletely applied the double jeopardy analysis by conducting only an "elements" test under Benson while ignoring the required "units of prosecution" analysis, which becomes critical because the evidence shows the defendant's conduct occurred on two discrete occasions that could constitute separate prosecutable instances. | double jeopardy, units of prosecution, benson test, temporal separation, concurrent offenses |
| 2018-06-06 | Bien, Michael Joseph, PD-0366-16 | dissent | Judge Yeary argues that double jeopardy analysis requires both an "elements" test and a "units of prosecution" analysis; the majority erred by examining only statutory elements without determining whether the evidence showed two separate acts on different dates that might constitute distinct units of prosecution. | double jeopardy, units of prosecution, blockburger test, separate occasions, statute interpretation, double criminal liability |
| 2018-06-06 | Ukwuachu, Samuel, PD-0366-17 | concurrence | The appropriate standard of appellate review for trial court rape shield evidence decisions, specifically the degree of deference appellate courts should afford to trial court discretionary rulings when a defendant invokes the rule of optional completeness to introduce contextual evidence about victim statements. | rape shield rule, optional completeness, standard of review, appellate deference, evidentiary discretion, sexual assault |
| 2018-05-23 | Flores, Mayra, PD-1189-15 | dissent | Judge Yeary dissents from the plurality's interpretation that an inadvertently incomplete custodial recording is "inaccurate" under Article 38.22 and therefore inadmissible, arguing the statute's accuracy requirement means only that what was recorded faithfully represents what was actually said, not that it must comprehensively capture the entire interview. | article 38.22, recording accuracy, completeness requirement, custodial statements, evidentiary admissibility |
| 2018-05-02 | O'Brien, Kelvin Lynn, PD-0061-16 | dissent | Judge Yeary contends that predicate offenses in organized criminal activity charges must be treated as elements requiring jury unanimity because they are statutorily determinative of the offense's degree, making it logically inconsistent to classify them as mere manner and means while allowing them to affect punishment levels. | jury unanimity, predicate offenses, organized crime, elements of offense, statutory interpretation, double jeopardy |
| 2018-01-24 | Cortez, Jose Luis, PD-0228-17 | dissent | Judge Yeary argues that the majority improperly resolved issues not granted for discretionary review, functioning as a super-appellate court that decides individual cases rather than establishing clear jurisprudential precedent on the specific legal issues warranting review. | discretionary review, scope of review, appellate jurisdiction, issue presented, judicial hierarchy |
| 2017-12-20 | Vandyke, Roger Dale, PD-0283-16 | dissent | Judge Yeary argues that the majority defines "pardon" too narrowly as merely remitting punishment while preserving conviction. He contends that a full pardon should completely erase guilt and conviction, and that the legislature's retroactive nullification of the conviction therefore violates the Governor's exclusive clemency power under separation of powers principles. | separation of powers, pardon definition, clemency power, executive prerogative, constitutional interpretation |
| 2017-11-22 | Beck, Ex Parte Clinton David, PD-0618-16 | concurrence | Judge Yeary argues that facial constitutional statute challenges should be categorized as fundamental defects cognizable in post-conviction habeas based on their nature, rather than whether they have been previously validated by appellate courts. He further argues that overbreadth challenges require the applicant to demonstrate the statute was unconstitutional as applied to their own conduct. | facial constitutional challenge, overbreadth doctrine, marin framework, post-conviction habeas, as-applied requirement, claim categorization |
| 2017-11-15 | Amie, Willie Lee Jr., PD-0253-16 | dissent | Judge Yeary dissents on the same constitutional issue he raised in Salinas v. State regarding adverse inferences drawn from a defendant's silence during interrogation and the Fifth Amendment implications of such inferences. | adverse inference from silence, fifth amendment, custodial interrogation, constitutional protections, self-incrimination |
| 2017-11-15 | Amie, Willie Lee Jr., PD-0254-16 | dissent | Judge Yeary's dissent does not elaborate on the substantive issue; it incorporates by reference his dissenting opinion in Salinas v. State without further explanation in this opinion. | dissent by incorporation, cross-reference to prior opinion |
| 2017-11-01 | Owings, Richard Charles Jr., PD-1184-16 | concurrence | Judge Yeary challenges whether the trial court's failure to grant a defendant's request to force the State to elect a particular act of sexual assault should be treated as constitutional error subject to Chapman harmlessness review, arguing instead that neither the jury unanimity nor notice rationales underlying the constitutional classification adequately support that designation and suggesting the error should instead be measured under the non-constitutional harmless error standard. | election doctrine, harmless error standard, constitutional error classification, jury unanimity, charging specificity |
| 2017-10-04 | Guerrero, Gregorio, PD-0665-15 | dissent | Judge Yeary dissents on the basis of his dissenting opinion in Salinas v. State, which concerns the evidentiary use of a defendant's silence during custodial interrogation and the proper application of Fifth Amendment protections against adverse inferences from silence in criminal proceedings. | silence at interrogation, fifth amendment, adverse inferences, custodial interrogation, evidentiary use of silence |
| 2017-10-04 | Guerrero, Gregorio, PD-0666-15 | dissent | Whether a defendant's pre-Miranda silence during custodial police interrogation may be used to impeach the defendant's credibility at trial, specifically addressing the scope of the constitutional right to remain silent. | interrogation rights, pre-miranda silence, impeachment, right to remain silent, custodial questioning |
| 2017-10-04 | Lee, Ronald Edgar Jr., PD-0880-16 | concurrence | Judge Yeary questions whether courts should infer an implicit "would be" contingency into the predicate offense language of § 21.02(c), allowing out-of-state acts of sexual abuse that would constitute violations if committed in Texas, despite the statute's plain language requiring acts that "is a violation" of Texas law. | predicate offenses, statutory interpretation, extraterritorial jurisdiction, criminal enhancement, legislative ambiguity |
| 2017-10-04 | Johnson, William, PD-1254-15 | dissent | This dissent contains no substantive analysis; Judge Yeary incorporates his dissent in Salinas v. State (decided six months earlier) by reference without elaborating on the legal issue. | bare dissent by reference, salinas incorporation, insufficient text |
| 2017-10-04 | Davis, Terrell Ladel, PD-1314-15 | dissent | Judge Yeary dissents based on principles regarding adverse inferences drawn from a defendant's silence during custodial interrogation, incorporating by reference his dissenting view expressed in Salinas v. State regarding Fifth Amendment protections and the use of silence as evidence. | fifth amendment, silence at interrogation, adverse inference, custodial interrogation |
| 2017-09-20 | Burnett, Burt Lee, PD-0576-16 | dissent | Although the specific type of intoxicating substance is not an element of DWI, the State must prove that some intoxicating substance was introduced into the defendant's system and caused the impairment, requiring jury instructions to be limited to only those intoxicants supported by the evidence rather than the full statutory definition. | dwi intoxication, jury instructions, burden of proof, proof requirements, substance introduction |
| 2017-06-28 | Prichard, Robert Monte, PD-0712-16 | dissent | Judge Yeary argues that the statutory definition of "deadly weapon" contains no ambiguity and does not implicitly require a human victim, contrary to the majority's conclusion that deadly weapon findings can only apply to crimes against persons rather than to animal victims. | statutory interpretation, plain language doctrine, deadly weapon definition, animal cruelty, criminal enhancement, texas penal code |
| 2017-03-08 | Salinas, Orlando, PD-0170-16 | dissent | Judge Yeary argues the majority improperly struck down statutory provisions on facial constitutional grounds by failing to apply the correct standard—that a facial challenge succeeds only when the challenger proves no possible constitutional application exists—and instead the majority speculated about hypothetical misuses and shifted the burden to the state to justify the statute. | facial constitutional challenges, burden of proof, standard of review, separation of powers, court fees, judicial restraint |
| 2017-03-08 | Zuniga, Mary, PD-1317-15 | concurrence | Judge Yeary contends that the court of appeals incorrectly focused only on whether the indictment identified the object of tampering while ignoring the trial court's actual basis for quashing—that the indictment failed to specify which particular acts (alter, destroy, or conceal) the defendant allegedly committed, a distinction essential to adequate notice. | indictment notice requirement, charging instrument adequacy, tampering charge elements, act versus object, disjunctive statutory language, adequate notice |
| 2017-02-08 | Lake, Rodney Dimitrius, PD-0196-16 | concurrence | Judge Yeary questions whether Rule 44.2(a)'s language should confine the court's authority to identify errors not subject to harmless error analysis to federal structural errors as defined by the U.S. Supreme Court under Cain, or whether it permits broader judicial authority to independently determine when constitutional errors—potentially including state constitutional violations—are immune from harmless error review. | harmless error analysis, structural error doctrine, appellate procedure rules, judicial authority, constitutional error doctrine |
| 2016-12-14 | Bullock, Henry Richard Jr. a/k/a Imari Abybakari, PD-1453-15 | concurrence | Vehicles constitute a special category of personal property requiring more than simple contact to establish "appropriation," and therefore when evidence allows reasonable disagreement about whether a defendant obtained full control of a vehicle, a jury should be instructed on the lesser included offense of attempted theft rather than having the instruction refused. | vehicle appropriation, attempted theft, special property doctrine, jury instructions, control requirement |
| 2016-11-09 | Thomas, Jeremy, PD-1086-15 | concurrence | Judge Yeary contends that appellate courts should not address error preservation issues when the judgment rests entirely on harmless error analysis, arguing that such discussion is gratuitous even though error preservation is ordinarily a systemic concern for intermediate courts of appeals. | error preservation, harmless error, judicial economy, appellate scope, systemic procedure |
| 2016-11-02 | Burks, Antwain Maurice, PD-0992-15 | dissent | Judge Yeary argues the majority improperly expanded discretionary review authority by remanding to address a sufficiency-of-evidence argument the appellant never raised in the court of appeals, contending the Volosen exception permitting subsidiary arguments applies only to appellees, not appellants raising new issues. | discretionary review scope, volosen exception, unraised issues, appellate jurisdiction, appellants and appellees |
| 2015-12-16 | Rendon, Michael Eric, PD-0013-15 | dissent | Whether the shared access areas leading to an individual apartment unit in a multi-unit residential complex constitute "curtilage" protected by the Fourth Amendment's prohibition on warrantless searches, as applied by Florida v. Jardines to dog sniffs conducted at apartment front doors. | fourth amendment, curtilage, apartment complexes, dog sniffs, jardines application, shared access areas |
| 2015-12-16 | Rendon, Michael Eric, PD-0015-15 | dissent | Judge Yeary dissents from applying Jardines' curtilage protection to apartment dwellings, arguing that a shared walkway and landing in a multi-unit complex, even if it leads only to one apartment door, does not constitute protected curtilage and therefore a warrantless dog sniff does not violate the Fourth Amendment. | curtilage doctrine, apartment complexes, fourth amendment, jardines application, dog sniff searches |
Took bench 2017-01-01 · 21 side opinions in the corpus
Across these opinions, the most prominent clusters involve jury instruction doctrine—particularly conflicting standards for when lesser-included offense instructions must be given—and statutory interpretation of specific criminal-procedure statutes and substantive-offense provisions. Secondary recurring themes include party/accomplice liability scope, the boundary between permissible inference and evidentiary speculation, procedural-rights forfeiture doctrine, and ineffective-assistance prejudice standards.
| Date | Case | Type | Summary | Tags |
|---|---|---|---|---|
| 2025-11-20 | Joe, Daryl, PD-0423-23 | dissent | Judge Keel contends the cargo-theft statute's plain language permits conviction for any named activity conducted with stolen cargo and does not require the activity to be distinct from the theft itself, and that applying the organized retail theft precedent from Lang v. State is improper because the two statutes differ materially in their focus, culpable mental states, and legislative intent. | statutory interpretation, plain language doctrine, cargo theft, organized retail theft, legislative history, precedent application |
| 2025-07-02 | Tates, Elijah, PD-0486-23 | dissent | Judge Keel argues that Article 33.03's statutory right to be personally present at trial is forfeitable and requires a defendant to object to preserve the issue, not a non-forfeitable right that trial courts must enforce sua sponte, because the right does not implicate the fundamental systemic concerns that justify non-forfeitability under the Marin framework and the statute itself contemplates forfeiture in discrete circumstances. | marin framework, right to presence, forfeiture doctrine, error preservation, fundamental rights |
| 2024-10-09 | Villarreal, David Asa, PD-0048-20 | concurrence | The judge argues the majority misinterprets Perry v. Leeke by failing to recognize that during overnight breaks in a defendant's testimony, the defendant has an unrestricted Sixth Amendment right to discuss his testimony with counsel—a right whose scope depends on the length of the recess, not on limiting the topics discussed. | sixth amendment, right to counsel, attorney consultation, witness testimony, recess duration, perry doctrine |
| 2024-10-09 | Aparicio, Ex Parte Luis Alfredo, PD-0461-23 | dissent | Judge Keel argues that "discriminatory purpose" in selective prosecution claims requires proof the prosecution decision was deliberately based on an arbitrary classification like race or gender, not that the prosecutor harbored hostility or bad faith, and that discriminatory conduct cannot be justified by pointing to additional discrimination against other class members. | discriminatory purpose, selective prosecution, equal protection, prosecutorial discretion, bad faith |
| 2024-06-12 | Heath, Dwayne Robert, PD-0156-22 | dissent | The judge dissents on whether "the state" in Article 39.14 of the Texas Code of Criminal Procedure includes law enforcement agencies, arguing it refers only to the prosecution and the State as a party, supported by the Legislature's explicit mention of "law enforcement" in other statutes, the redundancy that Article 2.1397 would create under the majority's reading, and internal contradictions that would arise if law enforcement were included. | statutory interpretation, discovery law, law enforcement scope, prosecution duties, criminal procedure |
| 2024-05-22 | Baltimore, Ijah Iwasey, PD-0436-22 | dissent | Judge Keel contends the majority wrongly treats lay witness testimony about a bar's control over an adjacent parking lot as unsupported opinion, when the jury could reasonably infer control from observable facts like proximity, management intervention, and parking lot design—and that the majority improperly conflates proper jury inference with impermissible speculation. | legal sufficiency, reasonable inference, lay witness testimony, premises, evidentiary foundation, opinion testimony |
| 2024-05-08 | Hart, Larry Jean, PD-0677-22 | dissent | Judge Keel dissents from the majority's categorical exclusion of rap lyrics as inherently prejudicial evidence, arguing the majority abandoned Rule 403's required case-by-case balancing of probative value against substantial unfair prejudice and incorrectly redefined what constitutes probative evidence under the "fact of consequence" standard. | rap lyrics evidence, rule 403, unfair prejudice, probative value, evidentiary standards, categorical exclusion |
| 2024-02-21 | McGuire, Sean Michael, PD-0984-19 | concurrence | Whether exigent circumstances are required to justify a warrantless arrest under Article 14.03(a)(1) of the Texas Code of Criminal Procedure. Judge Keel argues they are not—the statute and case law require only probable cause and location in a suspicious place, as exigency is neither textually mandated nor necessary when analyzing the totality of circumstances. | warrantless arrest, exigent circumstances, suspicious place, statutory interpretation, article 14.03(a)(1), texas criminal procedure |
| 2024-02-07 | Becerra, Joe Luis, PD-0280-22 | dissent | Judge Keel argues that an alternate juror's participation in jury deliberations violates neither Texas constitutional nor statutory law because alternates are themselves jurors under Article 33.011 and therefore not prohibited "outsiders," and that even if it were error, no harm occurred since additional fact-finders benefit the defense by making consensus harder to achieve. | alternate juror participation, jury composition rights, jury deliberations, statutory interpretation, harmless error analysis, juror status |
| 2023-08-23 | Shirley, Jr., Andrew, PD-0239-22 | concurrence | Judge Keel writes separately to establish that the Disaster Act authorizes the governor to suspend only civil regulatory statutes prescribing state agency procedures, not criminal statutes or substantive laws, and therefore vehicle registration statutes cannot be suspended under that authority. | disaster act scope, emergency executive power, separation of powers, criminal statutes, regulatory procedures, statutory interpretation |
| 2023-06-28 | Ransier, Charles Robert, PD-0289-20 | concurrence | Judge Keel concurs with the outcome but emphasizes that Texas criminal procedure law governing when judges must give lesser-included offense instructions upon defendant request remains unclear and muddled, calling for more definitive doctrinal guidance. | lesser-included offense instructions, jury instructions, defense requests, criminal procedure, doctrinal clarity |
| 2023-05-17 | Inman, Callie Renee, PD-0251-22 | dissent | Judge Keel argues that the court should have addressed the merits of whether the Confrontation Clause applies in post-conviction adjudication hearings, rather than dismissing the petition as improvidently granted, because there is a genuine split among the courts of appeals on this unresolved constitutional question. | confrontation clause, adjudication hearings, circuit split, sixth amendment, discretionary review |
| 2023-04-19 | Chavez, Jose Juan, PD-0759-21 | concurrence | Judge Keel identifies an irreconcilable doctrinal split in the court's jurisprudence between two competing tests for when lesser-included offense instructions must be given—the "possible-disbelief" test (which requires only that a jury might disbelieve evidence of the greater offense) versus the "factual-dispute" test (which requires actual evidence negating a distinguishing element of the greater offense). She advocates for abandoning the possible-disbelief approach and adopting the factual-dispute standard as the proper, more coherent application of the guilty-only principle. | lesser-included offenses, guilty-only test, jury instructions, evidentiary standards, doctrinal conflict |
| 2022-01-26 | Witcher, Cornell, PD-0034-21 | dissent | Equivocal testimony about when sexual abuse began—qualified by language like "around," "maybe," and "give or take"—forces jurors to speculate whether the statutory 30-day minimum for continuous sexual abuse was satisfied, but speculation cannot meet the reasonable-doubt standard of proof. | reasonable doubt, evidentiary sufficiency, continuous sexual abuse, statutory minimum duration, speculative testimony |
| 2021-03-31 | Flores, Juan Carlos, PD-0064-20 | dissent | Judge Keel argues that a jury could rationally infer the defendant's intent to cause serious bodily injury from his brandishing of a weapon-like object and making a conditional threat during robbery, and that the victim's submission without actual harm does not negate that intent or justify appellate reversal of the jury's verdict. | criminal intent, conditional threats, robbery, brandishing, jury verdict, appellate deference |
| 2020-04-01 | Metcalf, Lydia, PD-1246-18 | concurrence | Under the doctrine of transferred intent, a person can be held criminally responsible as a party to an offense even if she intended to promote or assist a different crime than the one her co-defendant actually committed, as long as the underlying statutory requirements for party liability are otherwise satisfied. | party liability, transferred intent, accomplice liability, intent specificity, sexual assault, criminal responsibility |
| 2019-10-30 | Curry, Steven, PD-0577-18 | dissent | Judge Keel contends that the mens rea requirement for failure to stop and render aid should apply only to the driver's knowledge of the accident itself, not to knowledge of resulting injury, arguing that the majority's broader approach renders meaningless the statute's requirement that drivers determine whether another person was involved in the accident. | mens rea, failure to stop and render aid, statutory interpretation, mistake of fact, objective versus subjective liability |
| 2018-09-12 | Sears, Armaud, PD-0264-17 | concurrence | A defendant cannot be liable as a party under Texas Penal Code Section 7.02(a)(2) based on after-the-fact knowledge. Party liability requires conscious objective to promote or assist an offense, which is impossible after the offense is completed. | party liability, intent requirement, temporal scope, after-the-fact conduct, wyatt doctrine |
| 2017-12-20 | Marcopoulos, Andreas, PD-0931-16 | dissent | Judge Keel argues that probable cause determinations must assess all relevant facts together under a totality-of-circumstances analysis rather than evaluating individual factors in isolation, and that the majority improperly rejected a cumulative finding of probable cause to search the vehicle. | probable cause, automobile search, totality of circumstances, fourth amendment, furtive gestures |
| 2017-11-15 | Burch, Dan Dale, PD-1137-16 | concurrence | The judge argues that when an attorney's deficient advice causes a defendant to waive a procedural right (here, jury punishment), the prejudice analysis should focus on whether the defendant would have exercised that right if correctly advised, not on the hypothetical outcome of the proceeding that was waived. | ineffective assistance of counsel, prejudice analysis, decisionmaking standard, procedural waiver, attorney advice |
| 2017-04-26 | Miller, Arthur Franklin Jr., PD-0891-15 | dissent | When counsel's deficient performance causes a defendant to waive jury trial through bad legal advice, the waiver itself constitutes structural error and prejudice; courts should not speculate about what a hypothetical jury would have done, since judicial proceedings that never occurred enjoy no presumption of reliability. | jury waiver, ineffective assistance, prejudice standard, structural error, counsel's advice, hypothetical outcomes |
Took bench 2017-01-01 · 46 side opinions in the corpus
Judge Walker's opinions concentrate on recurrent tensions in defining and applying exceptions to constitutional protections. A dominant cluster involves Fourth Amendment boundaries: the search-incident-to-arrest exception's scope when property is in exclusive police control, reasonable expectation of privacy in vehicles serving as residences, and warrant particularity requirements for investigative actions. A second cluster centers on Sixth Amendment issues—the necessity standard for remote confrontation of non-victim witnesses and the scope of trial-court authority to restrict attorney-client consultation during trial recesses. A third concerns harmless-error analysis: whether brief officer testimony opining on witness credibility qualifies as harmless, or whether courts must account for law enforcement's exceptional persuasive weight with jurors. Secondary themes include jury unanimity for alternate modes of committing a single crime and indictment-interpretation questions when statutory charging language diverges from caption or factual allegations.
| Date | Case | Type | Summary | Tags |
|---|---|---|---|---|
| 2025-11-06 | Parker, Taylor Rene, AP-77,110 | concurrence | The opinion highlights a critical distinction in Texas Penal Code definitions where "individual" includes unborn children for most crimes but explicitly excludes them under the kidnapping statute, meaning fetuses can be murder victims but cannot be kidnapping victims, creating an asymmetry in fetal protection across different offenses. | fetal personhood, penal code definitions, kidnapping statute, statutory interpretation, victim protection asymmetry |
| 2025-11-06 | Navarro, Jeremiah, PD-0222-22 | dissent | Judge Walker dissents on the ground that the Court improperly entertained and decided whether to overrule Bowen v. State based on an argument presented solely by amicus curiae, without granting the issue on its own motion or providing the parties an opportunity to brief it, thereby exceeding the proper scope of appellate review. | appellate scope of review, amicus curiae role, justiciability, appellate procedure, issue preservation |
| 2025-04-16 | Glover, Michael Donell, PD-0514-24 | concurrence | Judge Walker addresses the doctrinal question of how an ordinary object becomes a "deadly weapon" under Texas law based on the manner and circumstances of its use—specifically, whether cutting a bag strap in close proximity to the victim's hand, without intent to threaten, satisfies the requirement that the object be "capable of causing serious bodily injury." | deadly weapon doctrine, manner of use, aggravated robbery, proximity capability, texas penal code |
| 2025-03-26 | Crawford, Shawn Edward, PD-0243-23 | dissent | Judge Walker argues that an indictment's literal use of the statutory term "public servant" should control over its caption stating "peace officer" or factual descriptions identifying the victim as a deputy sheriff, following the Delarosa doctrine that the indictment's body dictates the charged offense regardless of caption or other document elements. The majority's approach of rewriting the indictment based on the factual description ("Deputy Sheriff") and assuming all deputies are peace officers violates both the text and the defendant's notice of the specific charge. | indictment interpretation, statutory language in charging, peace officer vs public servant, delarosa doctrine, criminal sentencing ranges |
| 2024-11-20 | Nixon, Brian Dale, PD-0556-23 | dissent | The dissent argues that holding a criminal trial in a building designed and labeled as a jail, rather than in a courthouse, is inherently prejudicial to the defendant's presumption of innocence because the jail setting improperly signals to jurors that the defendant is dangerous or guilty, particularly absent explanation or curative jury instructions. | presumption of innocence, trial venue, courtroom setting, inherent prejudice, jury perception, constitutional dignity |
| 2024-11-20 | Swenson, Aaron Caleb, PD-0589-22 | dissent | Judge Walker argues that the preparation-attempt distinction in attempted capital murder should be drawn at pulling the trigger, not at pointing a gun as Godsey v. State held; simply brandishing and aiming a firearm constitutes mere preparation that does not tend to cause death and should not constitute criminal attempt. | criminal attempt doctrine, preparation-attempt line, pointed firearm, attempted capital murder, godsey criticism, specific intent |
| 2024-11-13 | Floyd, James Earnest Jr., PD-0148-23 | dissent | Judge Walker argues that aggravated robbery by threat and aggravated bodily-injury robbery are separate offenses with different gravamina—one conduct-oriented, one result-oriented—requiring jury unanimity on which specific offense was committed, rather than treating them as mere alternate modes of committing a single crime. | jury unanimity, gravamen of offense, separate offenses, aggravated robbery, threat-based offense, result versus conduct |
| 2024-10-09 | Villarreal, David Asa, PD-0048-20 | dissent | Judge Walker dissents from the majority's approval of a 24-hour trial recess consultation ban, arguing that such an extended prohibition on attorney-client communication violates the Sixth Amendment and constitutes structural error, as the duration necessarily encompasses discussions beyond the defendant's ongoing testimony and therefore exceeds the narrow exception established in Perry v. Leeke. | sixth amendment, right to counsel, attorney-client consultation, trial recess restrictions, structural error |
| 2024-06-19 | McCumber, Jeffrey Merritt Jr., PD-0467-23 | dissent | Whether an adult non-victim witness's subjective and uncorroborated fear of retaliation, combined with a trial court's conclusory necessity finding, is sufficient to override the defendant's Sixth Amendment right to face-to-face confrontation; Judge Walker argues that Craig and Haggard require particularized, case-specific findings and that mere inconvenience or unsubstantiated fear cannot easily dispense with this core constitutional right. | confrontation clause, adult non-victim witnesses, remote testimony necessity, sixth amendment, credibility assessment, witness fear of retaliation |
| 2024-02-14 | Daniel, Bernard, PD-0037-22 | dissent | Judge Walker argues that binding appellate precedent interpreting a statute within a judicial circuit should preclude the Heien reasonable mistake of law defense, since the law's meaning was settled and not objectively uncertain in that jurisdiction. | reasonable mistake of law, heien, binding precedent, stare decisis, circuit split, traffic law |
| 2023-06-28 | King, Terry Wayne, II, PD-0330-22 | dissent | Judge Walker dissents from the majority's conclusion that a truck driver lacked Fourth Amendment standing to challenge a search of his employer's truck, arguing that arrest and temporary loss of access do not eliminate a reasonable expectation of privacy in a space serving as both home and workplace without affirmative evidence of actual eviction or loss of occupancy rights. | reasonable expectation of privacy, fourth amendment standing, vehicle as dwelling, temporary loss of access, employment property, occupancy vs ownership |
| 2023-04-12 | Compton, Dillion Gage, AP-77,087 | concurrence | In capital cases, improper prosecutor comments during voir dire suggesting the victim's family wants the death penalty implicate heightened Eighth Amendment concerns that cannot be adequately cured by jury instruction, distinguishing them from the non-capital impropriety addressed in Draughon and requiring different standards for preservation and remediation. | capital punishment, eighth amendment, curative instruction, victim impact, prosecutorial misconduct, death-is-different doctrine |
| 2023-04-12 | Mosley, Dameon Jamarc, AP-77,094 | concurrence | A revolver's mechanical design—requiring substantial trigger pressure and, in single-action versions, hammer manipulation to fire—makes accidental discharge claims virtually impossible and provides strong evidentiary support for inferring intent to kill, a principle both prosecutors and defense counsel must understand and apply. | revolver accident defense, evidence of intent, firearm mechanics, murder prosecution, trigger pressure |
| 2023-01-11 | Cook, Kennie Lewis Jr., PD-0850-21 | dissent | An officer's unequivocal statement that a child victim was not lying violates the rule against credibility opinions and constitutes reversible error despite its brevity, because officers' inherent authority and reliability cause jurors to give such testimony exceptional weight in credibility-driven cases, making harmlessness analysis that ignores this dynamic inadequate. | credibility testimony, expert opinion, law enforcement testimony, harmlessness analysis, evidentiary rules, witness credibility |
| 2023-01-11 | Cook, Kennie Lewis Jr., PD-0853-21 | dissent | An officer's explicit statement that a child victim is "not lying" is not harmless error merely because brief. Officer testimony carries exceptional weight with juries and risks causing them to abdicate their fact-finding role, especially when credibility is the case's central issue. | victim credibility, harmless error analysis, officer testimony weight, jury fact-finding, evidentiary error |
| 2023-01-11 | Cook, Kennie Lewis Jr., PD-0854-21 | dissent | Testimony by a police officer opining on a complainant's truthfulness is inadmissible under the rules of evidence. Courts evaluating harmlessness for such errors must account for the exceptional weight law enforcement testimony carries with jurors, which can lead them to inappropriately abdicate their fact-finding role. | harmlessness standard, police officer testimony, credibility opinion evidence, jury deference, evidentiary error |
| 2022-09-28 | Williams, April Loreace, PD-0504-20 | dissent | Judge Walker dissents on whether the trial court adequately satisfied the Sixth Amendment's public trial guarantee when it closed the courtroom to exclude the defendant's brother based solely on a prosecutor's bare assertion that a confidential informant would be intimidated, without making specific factual findings regarding the likelihood of actual intimidation by that particular family member. | sixth amendment, public trial right, courtroom closure, confidential informant, factual findings requirement, structural error |
| 2022-06-22 | Joe, Daryl, PD-0268-21 | dissent | Judge Walker argues that the majority incorrectly found the mattresses to constitute "cargo moving in commerce" under the cargo theft statute, because they had only been moved within the mattress company's own facilities (factory to shipping yard) and had not yet been picked up by a commercial carrier—so they were not yet at any point between an actual point of origin and final destination in the shipping sense. | cargo theft, point of origin, goods in commerce, shipping law, statutory interpretation |
| 2022-06-15 | Romo, Carlos Jr., PD-0456-21 | concurrence | Judge Walker argues the sixth Dost factor should focus on whether a depiction was objectively designed to elicit a sexual response, rather than whether it would elicit such a response in a hypothetical pedophile viewer, which he contends is an unworkable and dangerously broad standard unsupported by Dost itself. | sixth dost factor, lewd exhibition genitals, child pornography, objective design standard, pedophile viewer, intended effect test |
| 2022-05-11 | Stredic, Vincent Depaul, PD-1035-20 | dissent | Judge Walker argues that sending a written transcript to the jury room instead of having it read in open court constitutes structural error that defies harmless-error analysis, because the secrecy of jury deliberations makes it impossible to assess whether any improprieties occurred or what effect they had on the verdict. | structural error, harmless error doctrine, jury deliberations, jury procedure, error classification |
| 2022-01-26 | Pugh, Allen Bray, PD-1053-19 | concurrence | Judge Walker argues that indigent defendants should have a constitutional right under Ake v. Oklahoma to expert assistance in analyzing and rebutting computer-generated animations, which are exceptionally persuasive and inherently biased and therefore require specialized expert defense comparable to psychiatric and forensic experts, not jury consultants. | ake expert assistance, computer-generated animations, indigent defense, constitutional fairness, demonstrative evidence |
| 2021-09-29 | Do, Phi Van, PD-0556-20 | dissent | A trial court convicted the defendant of Class A DWI and imposed a one-year sentence despite the jury's guilty verdict on only the lesser-included Class B offense. Judge Walker argues that harmless error review must assess whether the trial court's judgment of conviction and sentence on a Class B verdict caused harm from the defendant-appellant's perspective, not from the State's perspective, and that such analysis cannot ignore the constitutional injury of convicting a defendant on elements never submitted to the jury. | harmless error analysis, perspective of appealing party, jury verdict, lesser-included offense, constitutional error framework, jury fact-finding |
| 2021-06-30 | Wexler, Suzanne Elizabeth, PD-0241-20 | dissent | Whether placing a suspect in a police vehicle during a warrant execution and interrogating her about suspected drugs constitutes custody requiring Miranda warnings, or whether such detention is analogous to a routine traffic stop lacking such protections. | custody determination, miranda rights, police vehicle detention, warrant execution, dowthitt test, interrogation coercion |
| 2021-06-30 | Anderson, Andrew, PD-0279-20 | dissent | Judge Walker argues that the mailbox rule's "proper clerk" requirement should be satisfied when a notice of appeal reaches the correct courthouse office where the clerk is located, even if not explicitly addressed to the "clerk," and that appellate filing rules should be construed liberally rather than strictly against pro se prisoners. He also contends that timeliness is measured by when prison authorities received the mailed notice, not when the clerk filed it. | appellate procedure, mailbox rule, pro se appeals, proper clerk, filing requirements, liberal construction |
| 2021-06-23 | Mata, Ricardo, PD-0810-19 | concurrence | Judge Walker argues that the Quarles public safety exception to Miranda should not be applied categorically based on crime type or presence of a weapon, but rather only when the Miranda warnings themselves would create an imminent threat to public safety by enabling the suspect's silence to prevent discovery of urgent information necessary to prevent harm. | quarles exception, miranda warnings, categorical vs. contextual interpretation, imminent threat standard, fact-specific application |
| 2021-06-09 | Pugh, Kedreen Marque, PD-0546-20 | concurrence | Judge Walker argues the court of appeals failed to recognize that the defendant's initial voluntary statement created independent probable cause for the search, separate from the officer's subsequent unlawful interrogation, and therefore the independent source doctrine applies to permit admission of the discovered contraband. | independent source doctrine, probable cause, harmless error, miranda violation, automobile exception |
| 2021-05-12 | Johnson, Jacob Matthew, PD-0561-20 | dissent | Judge Walker argues that the majority improperly applied the totality-of-circumstances test for reasonable suspicion by selectively crediting certain facts while ignoring others, and by inferring criminal activity from the suspect's failure to engage in expected innocent conduct and from stereotypical assumptions about darkness suggesting hidden criminal behavior, rather than from actual evidence of criminal activity. | reasonable suspicion, totality of circumstances, negative inferences, investigative detention, stereotype-based suspicion |
| 2020-09-23 | Price, Braden Daniel, PD-0722-19 | dissent | The judge argues that the search incident to arrest exception to the warrant requirement does not justify searching luggage once law enforcement has reduced it to their exclusive control and the arrestee is handcuffed and separated from it, because the exception's purposes—officer safety and evidence preservation—no longer apply and the property is no longer in the arrestee's immediate control. | search incident to arrest, warrant requirement exception, immediate control, fourth amendment, luggage searches |
| 2020-09-16 | Crider, Robert Lee Jr., PD-1070-19 | dissent | Judge Walker argues that the Fourth Amendment's particularity requirement mandates that a warrant's operative language explicitly authorize investigative actions, and that probable cause shown in an attached affidavit cannot implicitly authorize actions the warrant does not explicitly describe. | fourth amendment particularity, implicit warrant authorization, search warrant scope, blood testing, dwi searches |
| 2019-10-30 | International Fidelity Insurance Co., Agent Glenn Strickland d/b/a A-1 Bonding Company, PD-0642-18 | dissent | Judge Walker argues that "reporter's notes and records" under Texas Rule of Appellate Procedure 34.6(f) encompasses stenographic notes and audio recordings themselves, not merely the final transcribed product, and that the record here demonstrates such intermediate recordings were made and lost rather than never created. | appellate procedure, reporter's record, recording preservation, trial court discretion, stenographic notes |
| 2019-10-30 | International Fidelity Insurance Co., Agent Glenn Strickland d/b/a A-1 Bonding Company, PD-0643-18 | dissent | Judge Walker argues that Texas Rule of Appellate Procedure 34.6(f) protects appellants when court reporter stenographic or audio recordings are lost or destroyed, not merely when final transcripts are never created, and that the record's evidence of the reporter appearing to record and exchanging contact information compels a finding that a recording existed and was lost. | rule 34.6(f) interpretation, court reporter recordings, stenographic recording definition, new trial entitlement, reporter's notes vs transcription, lost recording standard |
| 2019-10-30 | International Fidelity Insurance Co., Agent Glenn Strickland d/b/a A-1 Bonding Company, PD-0644-18 | dissent | Judge Walker argues that Rule 34.6(f)'s protection for lost or destroyed "court reporter's notes and records" should encompass preliminary stenographic or audio recordings, even if never transcribed into a final record; the evidence overwhelmingly shows a recording was made and subsequently lost. | rule 34.6(f), preliminary recordings, lost court reporter records, appellate procedure scope, new trial entitlement |
| 2019-10-09 | Williams, Andrew Lee, PD-1199-17 | dissent | Judge Walker argues that a certificate of analysis cannot substantially comply with Article 38.41 when it omits mandatory requirements, especially information specifically about the testing analyst rather than a reviewing analyst, and that such non-compliance prevents the statute from triggering a timeline that would otherwise force defendants to forfeit constitutional rights through pre-trial silence. | substantial compliance, statutory interpretation, testing analyst requirement, certificate of analysis, forfeiture of rights, forensic evidence |
| 2019-09-11 | Fraser, Marian, PD-0711-17 | concurrence | Judge Walker argues that the underlying felony in a felony murder charge must be legally and factually distinct from the conduct causing death. He contends that the majority's interpretation permitting the same act to serve both roles violates statutory logic and enables prosecutorial overreach in cases involving vulnerable victims. | felony murder, merger doctrine, statutory interpretation, separate act requirement, texas penal code |
| 2019-09-11 | Piper, Maurice Lamar, PD-0712-18 | concurrence | A defendant is entitled to jury instructions on a defensive theory when the evidence raises that theory, regardless of how weak, contradicted, or physically implausible the evidence is, since entitlement depends only on whether evidence raises the issue. Counsel's failure to object to an erroneous jury instruction does not constitute ineffective assistance when the error actually benefits the defendant. | jury instructions, defensive theories, weak evidence, effective assistance, beneficial error, involuntary conduct |
| 2019-05-15 | Ross, Dai'Vonte E'Shaun Titus, PD-1066-17 | dissent | Judge Walker argues that when statutory language is ambiguous and subject to multiple reasonable interpretations—as "calculated" and "alarm" are here—a charging instrument that merely tracks that language fails to provide adequate constitutional notice of what specific conduct is charged, requiring more particular pleading instead. | adequate notice doctrine, ambiguous statutory language, charging instrument specificity, vagueness, due process, criminal pleading |
| 2019-03-27 | Jones, Dedric D'Shawn, PD-1289-17 | dissent | Judge Walker argues that the majority improperly applied harmless error analysis to a Confrontation Clause violation by allowing the strength of the prosecution's case and the defendant's own testimony to overcome an error that prevented cross-examination of the sole eyewitness for bias. | confrontation clause, cross-examination, harmless error, witness bias, credibility impeachment, constitutional error |
| 2019-01-30 | Rhomer, William Joe, PD-0448-17 | concurrence | Judge Walker contends that accident reconstruction expert opinions should be evaluated under the stricter Kelly standard for hard sciences rather than the looser Nenno standard for soft sciences, since accident reconstruction involves precise measurement, calculation, and prediction. | accident reconstruction, expert testimony reliability, kelly standard, nenno standard, hard science |
| 2018-11-07 | Johnson, Dondre, PD-0197-17 | concurrence | Whether a person can appropriate money in a theft case by possessing and depositing a check payable to a third-party business entity, or whether the accused must personally negotiate the check to establish appropriation of the underlying funds. | theft appropriation, check negotiation, money instruments, sufficient evidence, primary actor liability |
| 2018-05-02 | O'Brien, Kelvin Lynn, PD-0061-16 | dissent | Judge Walker contends that Section 71.02 should be classified as a "nature of conduct" offense requiring jury unanimity on the predicate offense, contrary to the majority's "circumstances-surrounding-the-conduct" classification. He argues that non-unanimous verdicts on dissimilar predicates would violate due process because the statute creates an impermissible "umbrella crime" encompassing vastly different offenses. | jury unanimity, section 71.02, predicate offenses, nature of conduct, due process, umbrella crimes |
| 2018-05-02 | Bush, Lanny Marvin, PD-1012-16 | dissent | Judge Walker argues that kidnapping requires proving the victim was alive during the restraint, and that phone location evidence alone cannot create a reasonable inference of the victim's presence and livelihood—any such inference would constitute impermissible speculation rather than a supported factual finding. | kidnapping, victim alive requirement, reasonable inference versus speculation, circumstantial evidence, sufficiency of evidence, evidentiary standard |
| 2017-11-08 | Hallmark, Jamie, PD-1118-16 | dissent | A trial judge improperly injects itself into plea negotiations by imposing a condition that a defendant appear for sentencing, then later uses that condition to abandon the agreed sentence and impose a harsher one; a defendant retains the right to withdraw a guilty plea when the trial court refuses to honor the plea agreement due to breach of such judicially-imposed conditions, and this error is preserved by objection at sentencing despite no objection to the judge's initial participation in the negotiation process. | trial judge role in plea negotiations, judicial conditions on plea agreements, plea withdrawal rights, article 26.13 compliance, judicial sentencing authority |
| 2017-11-01 | Owings, Richard Charles Jr., PD-1184-16 | concurrence | Judge Walker concurs but writes to clarify the harmless error framework for election violations, explaining how the four statutory purposes address distinct harms and noting that jury credibility assessments need not be all-or-nothing determinations about which incidents occurred. | election rule, harmless error analysis, multiple offenses, jury unanimity, credibility assessment, extraneous evidence |
| 2017-09-20 | Ford, Kimberly, PD-1299-16 | dissent | Judge Walker argues that the Court of Appeals violated the proper deferential standard of appellate review by failing to credit the trial court's explicit credibility determination that the hearsay information from the store employee was unreliable, thereby incorrectly finding reasonable suspicion existed for the initial stop. | appellate deference, credibility, reasonable suspicion, standard of review, suppression motions |
| 2017-06-07 | Moore, Harold Michael, PD-1056-16 | dissent | Judge Walker argues that the majority improperly found a deadly weapon based on speculation about hypothetical cross-traffic dangers unsupported by any evidence in the record, thereby shifting the burden to the defendant to disprove danger rather than requiring the State to affirmatively prove it through admissible evidence. | deadly weapon element, evidentiary standard, burden of proof, dwi, speculation, inference |
| 2017-02-15 | Crawford, Milton Ray, PD-1283-15 | dissent | Judge Walker argues that the specific enhancement provision for repeat sex offender registration failures (article 62.102(c)) should exclusively govern cases involving multiple prior failures, rather than allowing application of the general habitual offender enhancement, because specific statutes prevail over general ones and article 62.102(c) can accommodate multiple prior convictions by stepping up the felony degree incrementally for each prior offense. | statutory construction, specific versus general statutes, sex offender registration, enhancement provisions, prior convictions, habitual offender |
Took bench 2021-01-01 · 3 side opinions in the corpus
Judge McClure has flagged structural doctrinal tensions in criminal law, most notably between statutory elements that require jury fact-finding on legal questions (reasonable suspicion for arrest) and constitutional principles reserving such determinations to judges; and between the scope of Penal Code liability and fair notice when criminal conduct is defined by reference to duties created outside the Penal Code. A secondary cluster involves Fourth Amendment privacy expectations and whether property-law authority permits third parties to unilaterally strip such protections.
| Date | Case | Type | Summary | Tags |
|---|---|---|---|---|
| 2025-12-19 | Hernandez, Israel Garcia, PD-0176-25 | concurrence | Judge McClure identifies a structural doctrinal problem in Texas Penal Code § 38.04: by making arrest or detention lawfulness an element of the evading offense, the statute forces juries to determine reasonable suspicion—fundamentally a legal question—contrary to the constitutional principle that juries find facts while judges apply law. | reasonable suspicion, jury fact-finding, legal determinations, evading arrest, criminal procedure, constitutional jury trial |
| 2025-08-20 | Cockrell, Ray Lee, PD-0760-24 | concurrence | Criminal liability should not arise from duties imported from other statutory codes into the Penal Code without clear legislative statement that such conduct is punishable, as inadequate notice and clarity risk arbitrary prosecution and violate rule of law principles. | fair notice, criminal law clarity, rule of law, imported duties, legislative precision |
| 2021-06-23 | Tilghman, Michael Joseph, PD-0676-19 | concurrence | Judge McClure agrees the hotel lawfully evicted the guest but expresses concern that the majority's holding allows a hotel to instantly extinguish Fourth Amendment privacy expectations without the guest's knowledge, creating a potential loophole for warrantless police searches that contradicts the principle established in Stoner v. California that a guest's constitutional rights cannot be left to a hotel employee's unfettered discretion. | fourth amendment privacy expectations, hotel eviction, warrantless search, notice requirement, police entry authority |
Took bench 2025-01-01 · 10 side opinions in the corpus
Most flagged issues involve appellate review standards, particularly the appropriate deference courts should afford to trial-court decisions and jury factual findings in reasonable-suspicion cases, prosecutorial-vindictiveness determinations, and race-related trial arguments. A secondary cluster concerns Fourth Amendment doctrine, including the good-faith exception's scope in warrant-service contexts, reasonable-suspicion standards in border-interdiction cases, and dog-sniff analysis. Article 38.23 interpretation recurs as a tension between the court's precedential construction and plain-language statutory meaning.
| Date | Case | Type | Summary | Tags |
|---|---|---|---|---|
| 2026-04-16 | Barber, Grady Jack, PD-0510-25 | dissent | Judge Schenck argues that the exclusionary rule's good-faith exception and the principle that statutory violations unrelated to the exclusionary rule's purpose do not warrant suppression should prevent exclusion of evidence obtained through a valid warrant, even if procedural violations occurred in its inter-county delivery. | good faith exception to exclusionary rule, warrant service authority, texas exclusionary rule, statutory violations unrelated to fourth amendment, exclusion doctrine, intoxication manslaughter |
| 2026-01-29 | Coleman, Christopher Tye, PD-0093-25 | concurrence | The judge concurs with the majority but advocates that the Court should reconsider its precedential interpretation of Article 38.23, which he believes conflicts with the statute's plain language. | statutory interpretation, article 38.23, plain language, precedent, criminal procedure |
| 2026-01-29 | Coleman, Christopher Tye, PD-0094-25 | concurrence | Judge Schenck concurs with the majority but agrees with the dissent that the court should reconsider its precedential interpretation of Article 38.23 in a future case, as the current construction appears inconsistent with the statute's plain language. | statutory interpretation, precedent reconsideration, article 38.23, plain language doctrine, criminal procedure |
| 2025-12-19 | Hernandez, Israel Garcia, PD-0176-25 | dissent | Judge Schenck argues that reasonable suspicion for an investigatory stop can be established through a totality of circumstances analysis that includes a 911 report of a slow-moving vehicle, the vehicle's isolated presence in a sparsely populated border area, and the officer's knowledge of smuggling activity in the region. He further contends that appellate courts must defer to rational jury factual findings on the question of reasonable suspicion. | reasonable suspicion, fourth amendment, totality of circumstances, border policing, investigatory stop, appellate review |
| 2025-12-19 | Jackson, Larry Dewitt Jr., PD-0451-24 | concurrence | Judge Schenck argues that ineffective assistance of counsel claims should proceed in postconviction habeas proceedings rather than direct appeal because habeas courts possess factfinding authority to develop the record necessary to overcome the Strickland presumption of reasonableness in counsel's conduct, which appellate courts cannot exercise. | ineffective assistance of counsel, strickland standard, appellate jurisdiction, postconviction habeas, factfinding authority |
| 2025-11-20 | Smith, Champagne, PD-0230-24 | dissent | Demeanor observation is a distinct and non-essential element of the Confrontation Clause separate from physical presence, and obstruction of demeanor alone (through mask requirements) does not violate the Clause because only deprivation of physical presence triggers the Craig test's heightened constitutional scrutiny. | confrontation clause, demeanor observation, physical presence element, craig framework, sixth amendment |
| 2025-10-30 | Organ, Courtney James-varnell, PD-0841-24 | dissent | Judge Schenck argues that the Fourth Amendment's requirement of reasonableness applies to all intrusions, not just privacy violations, and that a dog's instinctive actions lacking law enforcement direction cannot violate the Fourth Amendment even if they technically constitute common-law trespass. | fourth amendment trespass doctrine, dog sniff search, property versus privacy, reasonableness requirement, human agency fourth amendment, common law property rights |
| 2025-09-03 | Gabaldon, Ivan, PD-0149-23 | concurrence | Judge Schenck argues that factual findings of prosecutorial vindictiveness should be reviewed for clear error rather than abuse of discretion, and that appellate courts must develop a fuller range of remedies for prosecutorial abuse—including disqualification of the district attorney's office—rather than treating dismissal as the only available option to remedy unconstitutional prosecution. | prosecutorial vindictiveness, clear error standard, prosecutorial disqualification, remedial options, appellate review standards |
| 2025-09-03 | Kitchens, William Travis, PD-0541-24 | dissent | Judge Schenck argues that trial judges retain discretion to assess whether a defendant's defense has placed the victim's race in issue and to permit prosecutorial statements addressing that issue, and that the abuse of discretion standard requires appellate courts to defer substantially to such real-time trial management decisions unless they fall clearly outside the zone of reasonable disagreement. | abuse of discretion standard, appellate deference, trial court discretion, race at trial, real-time trial decisions, prosecutorial statements |
| 2025-06-04 | Estevez, Ex Parte Amarillyz, PD-0581-24 | dissent | When a defendant violates a bond condition by committing any crime and is held in contempt, the contempt conviction does not bar prosecution for that specific crime unless the contempt judgment necessarily required proof of all elements of that specific offense under the Blockburger test, distinguishing between the general act of arrest or criminal conduct and the particular offense charged. | double jeopardy, contempt conviction, blockburger test, bond conditions, scope of jeopardy attachment |
Took bench 2025-01-01 · 7 side opinions in the corpus
Flagged issues concentrate in two primary areas: jury-charge doctrine (lesser-included-offense instructions, application-paragraph completeness) and Fourth Amendment law (reasonable suspicion for vehicle stops, canine intrusions). Secondary issues emerge in statutory construction (retail-theft scope, voluntary absence) and postconviction appellate timing.
| Date | Case | Type | Summary | Tags |
|---|---|---|---|---|
| 2026-01-29 | Lennox, Bobby Carl Aka Bobby Carl Leanox, PD-0284-25 | concurrence | Jury-charge error omitting lesser-included offenses should be recognized as evidentiary insufficiency when the evidence supports only the omitted lesser offense, enabling reformation to that offense rather than requiring a new guilt trial. | jury-charge error, lesser-included offenses, evidentiary sufficiency, conviction reformation, remedy doctrine |
| 2025-12-19 | Hernandez, Israel Garcia, PD-0176-25 | dissent | Judge Parker's dissent argues that an officer had reasonable suspicion to stop appellant's vehicle based on the totality of circumstances, including a 911 report of a suspicious pickup truck, the vehicle's proximity to the caller's residence in a rural area with documented human smuggling activity, late-night timing, sparse population density, and inferences an experienced patrol sergeant could draw from these combined factors, despite discrepancies in the vehicle's specific make and model and the 30-minute delay between the report and police arrival. | reasonable suspicion standard, investigative detention, vehicle description discrepancies, totality of circumstances, fourth amendment detention, warrantless stops |
| 2025-11-20 | Joe, Daryl, PD-0423-23 | concurrence | Judge Parker (joined by Finley) clarifies that Lang v. State does not preclude retail-theft convictions for lone shoplifters who engage in conduct beyond ordinary theft, such as advertising stolen merchandise for resale. | retail theft statute, statutory interpretation, shoplifter liability, conduct requirement |
| 2025-10-30 | Organ, Courtney James-varnell, PD-0841-24 | concurrence | Judge Finley argues that a dog's intrusion into a vehicle triggers Fourth Amendment protections only when the handler can fairly be held responsible for the intrusion, not merely by virtue of any intrusion occurring; a single unexpected intrusion may not implicate the Fourth Amendment, whereas multiple intrusions in the same encounter demonstrate handler responsibility and therefore constitute a search. | fourth amendment search, canine intrusion, handler responsibility, repeated intrusions, dog agency, vehicle search |
| 2025-09-03 | Griffin, Ex Parte Gary, PD-0611-24 | dissent | The judge argues that due process in habeas proceedings entitles an applicant to no more than the standard appellate timeline—45 days from notice of the order—to pursue an appeal, and that an applicant who waits 93 days without explanation or extenuating circumstances has not shown a due process violation, since constitutional protections diminish after the first appeal of right. | due process in habeas, postconviction appellate rights, procedural timing in habeas, appellate notice periods, diminished protections postconviction, equitable limits in habeas relief |
| 2025-07-02 | Tates, Elijah, PD-0486-23 | concurrence | Judge Finley addresses what "voluntarily absents himself" means under Article 33.03, arguing that a defendant physically excluded from trial by court order or prevented from attending due to incarceration has not truly absented himself voluntarily, as mere submission to judicial authority cannot constitute voluntary absence. | voluntary absence, right to presence, statutory waiver, court-ordered exclusion, custody status |
| 2025-05-07 | Alkayyali, Tareq, PD-0290-23 | dissent | Judge Parker argues that omitting an element from an application paragraph, when the element is clearly stated in the abstract instruction, does not constitute egregious harm because a jury reading the entire charge as a whole would necessarily understand the element was required. | jury charge error, egregious harm, unpreserved error, application paragraph, charge as a whole |
Took bench 2025-01-01 · 11 side opinions in the corpus
Judge Finley's side opinions flag issues concentrated in Fourth Amendment doctrine (plain view standards and location data privacy), statutory interpretation of substantive criminal law (felony murder merger; omission liability duty requirements), and procedural/constitutional frameworks (jury charge harmless error; ineffective assistance standards; jurisdiction classification; trial court remedial authority; appellate scope constraints). The opinions recurrently involve questions about the proper threshold or standard within existing doctrinal frameworks rather than entirely novel legal areas.
| Date | Case | Type | Summary | Tags |
|---|---|---|---|---|
| 2026-04-16 | Barber, Grady Jack, PD-0510-25 | concurrence | Judge Parker articulates the principle of party presentation, emphasizing that in an adversarial system, courts serve as neutral arbiters confined to the issues the parties frame for decision, rather than sua sponte addressing additional potentially relevant issues even if they might serve judicial economy. | party presentation, neutral arbitership, appellate procedure, adversarial system, judicial restraint |
| 2025-12-19 | Jackson, Larry Dewitt Jr., PD-0451-24 | dissent | The dissent argues this is a Cronic case where counsel's complete abandonment of advocacy during the punishment phase constitutes a constructive denial of the right to counsel, such that prejudice is presumed as a matter of law, rather than requiring the Strickland showing of actual prejudice. | cronic violation, presumed prejudice, ineffective assistance, punishment phase, adversarial testing, abandonment of counsel |
| 2025-09-03 | Gabaldon, Ivan, PD-0149-23 | dissent | Whether a trial court has discretion to dismiss an indictment with prejudice as the remedy for prosecutorial vindictiveness, or whether such dismissal without prosecutorial consent constitutes an abuse of discretion that exceeds the trial court's remedial authority. | prosecutorial vindictiveness, dismissal with prejudice, remedy for misconduct, trial court discretion, due process violation, retaliation for trial rights |
| 2025-09-03 | Fraser, Marian, PD-0964-24 | concurrence | Judge Finley argues that Texas's current felony murder jurisprudence improperly allows a single act to serve as both the underlying predicate felony and the required "act clearly dangerous to human life," which contradicts the statute's plain text and the merger limitation previously established in Garrett v. State, and she urges reconsideration of the doctrine at the earliest opportunity. | felony murder statute, merger doctrine, statutory interpretation, predicate felony requirement, plain text analysis |
| 2025-08-20 | Cockrell, Ray Lee, PD-0760-24 | dissent | The judge dissents on whether "legal or statutory duty to act" under Texas Penal Code Section 22.04(b)(1) must be specific to the particular victim or whether general public duties suffice, arguing the former based on Billingslea v. State and declining to endorse the State's "novel extension" of the statute. | victim-specific duty, omission liability, section 22.04, injury to child, statutory interpretation, duty to act |
| 2025-06-04 | Estevez, Ex Parte Amarillyz, PD-0581-24 | dissent | Judge Parker disputes the majority's finding that the contempt judgment is void due to notice defects, arguing instead that notice defects affect only personal jurisdiction (which is waivable) rather than subject-matter jurisdiction; consequently, the valid contempt conviction should not automatically bar the double jeopardy claim against successive prosecution for the underlying DWI offense. | personal jurisdiction, subject-matter jurisdiction, notice defects, waiver, double jeopardy, contempt proceedings |
| 2025-05-14 | Rodriguez, Erik, PD-0377-24 | concurrence | Whether the "immediately apparent" prong of the plain view doctrine requires absolute certainty that a seized item is the specific object associated with criminal activity, or whether probable cause based on reasonable inference that an item in the suspect's possession likely contains evidence is sufficient. | plain view doctrine, probable cause, immediately apparent requirement, cell phone seizure, standard of review for mixed questions of law and fact |
| 2025-05-14 | Rodriguez, Erik, PD-0378-24 | concurrence | Judge Finley concurs in the reversal but disagrees with the majority's plain view analysis, arguing that the proper inquiry is whether the incriminating nature of the cell phone was immediately apparent to the officer at the time of seizure, rather than whether probable cause existed to associate it with criminal activity. | plain view doctrine, immediately apparent, cell phone seizure, fourth amendment, probable cause |
| 2025-05-07 | Bluntson, Demond Depree, AP-77,067 | concurrence | The judge clarifies the constitutional framework for denying self-representation in mental competency cases, arguing that a trial court's refusal to permit self-representation under Indiana v. Edwards (based on lack of mental capacity) should not be characterized as an invalid waiver of counsel, but rather as the state's separate authority to limit self-representation when a defendant cannot competently represent himself. | self-representation right, mental competency, indiana v. edwards, constitutional waiver, sixth amendment |
| 2025-05-07 | Alkayyali, Tareq, PD-0290-23 | dissent | Judge Finley argues that omitting the causation element from the jury charge does not constitute egregious harm when causation was not actually disputed at trial; the omitted element must be a contested factual issue to trigger egregious harm under the Almanza standard. | jury charge error, egregious harm, causation element, almanza test, contested issues, unobjected-to error |
| 2025-04-02 | Wells, Aaron Rayshan, PD-0669-23 | concurrence | Judge Parker argues that the government did not conduct an unreasonable Fourth Amendment search because the appellant voluntarily enabled Google's location history services and thus lacked a reasonable expectation of privacy in the data shared with Google, distinguishing this case from cell-site location information protected under Carpenter. | third-party doctrine, location history data, voluntary disclosure, expectation of privacy, geofence warrant |