The following is a summary of selected criminal opinions issued by the Third Court of Appeals from April 2025. The summary is an overview; please review the entire opinions. The subsequent history is current as of October 6, 2025.
SENTENCING: Sufficiency of evidence and recusal of trial judge: Sufficient evidence supported trial court’s sentencing decision and trial counsel was not ineffective in failing to file a motion to recuse the trial judge.
Jaquez v. State, 712 S.W.3d 217 (Tex. App.—Austin 2025, no pet.).
Jaquez pleaded guilty to murder and the trial court sentenced him to 25 years’ imprisonment. On appeal, Jaquez asserted that (1) the trial court’s finding that he was ineligible for community supervision was based on legally insufficient evidence, and (2) counsel provided ineffective assistance when she failed to pursue a motion to recuse or disqualify the presiding trial judge after learning the judge had presided over a different case in which Jaquez’s uncle was the deceased victim. Regarding the punishment assessed, article 42A.102(b)(4) of the Code of Criminal Procedure provides that a person convicted of murder is ineligible for placement on community supervision “except that the judge may grant deferred adjudication community supervision on determining that the defendant did not cause the death of the deceased, did not intend to kill the deceased or another, and did not anticipate that a human life would be taken.” Jaquez argued that the plain language of that provision “requires the trial court to first correctly determine the three factors that would allow a consideration of deferred adjudication community supervision and then gives the trial court discretion to impose any sentence within the statutory range.” In his view, “there was no evidence presented that he anticipated there would be a loss of life,” and the sentence should be reversed for that reason. The appellate court disagreed, concluding that “nothing in the statute requires the trial court to grant deferred adjudication community supervision even if the three factual prerequisites exist” and that there was nothing in the record to suggest that the trial court abused its discretion by sentencing Jaquez to 25 years’ imprisonment, which was within the statutory range of punishment.
Regarding ineffective assistance, Jaquez contended that counsel should have filed a motion to recuse the trial judge under Texas Rule of Civil Procedure 18b, which requires that a judge shall recuse herself in any proceeding in which her impartiality might reasonably be questioned or she has a personal bias or prejudice concerning the subject matter or a party. Jaquez argued that the judge had heard prejudicial information involving Jaquez’s family during sentencing in a prior case and that she should have recused herself for that reason. However, the appellate court concluded that there was no evidence to overcome the presumption that the judge’s sentencing decision was based on the facts developed during Jaquez’s case, and it was unable to conclude that the trial judge was required to recuse herself or that she would have granted a motion to recuse had trial counsel filed it.
SEARCH AND SEIZURE: Cell phone search-warrant affidavits: Officer’s affidavit provided magistrate with a substantial basis for finding that probable cause existed to believe that searching defendant’s cell phone was likely to produce evidence in the investigation of offense.
Llanas v. State, 711 S.W.3d 766 (Tex. App.—Austin 2025, no pet.).
Llanas was charged with murder, specifically by shooting the victim during a drive-by attack. During the investigation into the offense, officers seized Llanas’s cell phone pursuant to a warrant. Llanas moved to suppress all evidence obtained from a search of the phone, arguing that the officer who prepared the affidavit provided no evidence that the cell phone had been used to plan, discuss, commit, or conceal a crime. The trial court denied the motion, and Llanas pleaded guilty. The appellate court affirmed, explaining that a judge may issue a cell-phone warrant only on a peace officer’s application, which must state the facts and circumstances that provide the applicant with probable cause to believe that: (1) criminal activity has been, is, or will be committed and (2) searching the telephone or device is likely to produce evidence in the investigation of the criminal activity described. In this case, the officer’s affidavit alleged facts tying both Llanas and his cell phone to a series of drive-by shootings, including the one in which the victim was killed. The court summarized that evidence in detail and concluded that the magistrate could have reasonably inferred from the facts alleged in the affidavit that the officer had probable cause to believe that the phone belonged to Llanas and that searching the phone was likely to produce evidence in the investigation of the drive-by shootings and the victim’s death.