The following is a summary of selected criminal opinions issued by the Third Court of Appeals from December 2024. The summary is an overview; please review the entire opinions. The subsequent history is current as of May 6, 2025.
DEFINITION OF “ARREST”: community-supervision revocation. Evidence was sufficient to prove that probationer who “self-surrendered” to authorities failed to report his arrest within 48 hours.
Caballero v. State, 706 S.W.3d 562 (Tex. App.—Austin 2024, no pet.). Caballero pleaded guilty to the offense of criminal mischief and was placed on deferred-adjudication community supervision. The conditions of community supervision included that Caballero “[c]ommit no offense against the laws of this state or any state or the United States or any other country” and “shall notify the Community Supervision Officer (“the Officer”) in charge of the case within 48 hours of being arrested or charged with a criminal offense.” The State later filed a motion to adjudicate guilt, alleging that Caballero violated the conditions of his community supervision by committing a new offense in Travis County and by failing to report an arrest or charge against him within 48 hours. At the hearing on the motion to adjudicate, the State presented evidence that Caballero was charged with the offense of assault family violence, that an arrest warrant was issued for him, that he self-surrendered on the warrant, and that he did not notify his community-supervision officer within 48 hours of his surrender. At the conclusion of the hearing, the trial court found that the State had failed to prove by a preponderance of the evidence that Caballero had committed a new offense but had proved that Caballero failed to report an arrest to his Community Supervision Officer. The trial court adjudicated Caballero guilty of the underlying offense and sentenced him to 30 days’ incarceration. On appeal, Caballero argued that the State failed to present sufficient evidence that he was arrested. According to Caballero, his performing a “walk-through” at the county courthouse to secure bond on his outstanding arrest warrant did not constitute an arrest. The appellate court disagreed. It explained that an arrest is completed whenever a person’s liberty of movement is restricted or restrained and that this can occur through physical contact or force or by “submission to authority.” The court cited to cases holding that when a defendant with an active arrest warrant surrenders himself to authorities, that constitutes an arrest. Thus, the evidence was sufficient to prove that Caballero was arrested and failed to report that arrest to his community-supervision officer within 48 hours. The court concluded in the alternative that there was sufficient evidence to show that appellant failed to report a “charge” against him within 48 hours. The court explained, “Regardless of the reasons given by the trial court for revoking community supervision, if evidence supports the court’s decision it will not be disturbed on appeal.”
TAMPERING WITH PHYSICAL EVIDENCE: possession and concealment. Evidence was sufficient to prove that defendant possessed and concealed marijuana.
Ramirez-Torres v. State, No. 03-23-00138-CR (Tex. App.—Austin Dec. 12, 2024, no pet.) (mem. op., not designated for publication). A police officer responding to a report of marijuana use approached Ramirez-Torres, who was sitting near a river, and saw “a green leafy substance” that “smelled like marijuana.” The officer asked Ramirez-Torres what he was doing, and Ramirez-Torres said he was “rolling a joint.” When Ramirez-Torres saw that he was talking to a police officer, he threw the substance “in the direction of the nearby river.” The officer never found the marijuana, and Ramirez-Torres was charged with and convicted of tampering with physical evidence.
On appeal, Ramirez-Torres argued that the evidence was insufficient “because the evidence showed he either moved the marijuana into plain sight or never possessed it in the first place.” The court rejected both contentions. Regarding possession, the court explained that a jury is entitled to rely on an officer’s lay opinion that he smelled or saw marijuana as evidence of possession. Here, the officer’s opinion “as to the identity of the substance he smelled and saw was rationally based on his firsthand sensory experience, probative to possession, and consistent with” other evidence that Ramirez-Torres possessed the marijuana, including his statement that he was “rolling a joint.” Regarding concealment, Ramirez-Torres argued that his moving of the evidence did not alter or conceal it because it should have been in plain sight of the officer. However, when viewed in the light most favorable to the verdict, the evidence showed that Ramirez-Torres dispersed the evidence into an environment that either camouflaged it in rocks and grass or absorbed it into the river. The court concluded, “The marijuana was not moved into plain view, quite the opposite.”