Posted on
July 22, 2025 in
There have probably been times when one lawyer has had a string of habeas wins on a specific issue (we got 11.07 relief for several people after winning Ex parte Lo in 2013) but no defense appellate or postconviction lawyer has, I suspect, won six cases on different topics in the Court of Criminal Appeals in a year.
Until now.
From June 19, 2024 to June 4, 2025, Bennett & Bennett won seven cases in the Texas Court of Criminal Appeals; six were on different topics:
- Ex parte Estevez
- Ex parte McGee and Ex parte Eugene
- State v. Cuarenta
- Owens v. State
- Alkayyali v. State
- Ex parte Cook
Estevez and Owens are the most recent, and probably the most interesting.
Estevez: Double Jeopardy
Estevez is a double-jeopardy issue. Judge Darrell Jordan of Harris County Criminal Court at Law 16 was holding people in contempt for violating bail conditions; the State tried to prosecute Estevez for the DWI that resulted in her being held in contempt. I got to argue this one.
Owens: Free Speech
Owens is part of my ongoing fight against the Texas harassment statute. I helped trial counsel preserve some issues. I lost in the intermediate court of appeals. I filed a petition for discretionary review (PDR) asking every question but the object-level “was the statute applied unconstitutionally to Owens?” (It was, but I would rather get answers to the derivative questions such as “should the jury have been instructed on categories of unprotected speech?”) The CCA was interested only in the object-level question, so they refused my PDR and granted review sua sponte on the question, “was the statute applied unconstitutionally to Owens?” They held in a 5–4 opinion that it was.
Judge Yeary’s Owens dissent is interesting, because he realizes that “the statute was unconstitutionally applied here” is inconsistent with the Court’s Barton and Sanders holding that the statute “does not implicate the First Amendment.” He suggests that stare decisis should have answered the question; I think instead that the Owens opinion shows how Barton and Sanders are unworkable (and therefore not binding under principles of stare decisis).
McGee and Eugene: A Sloppy Court of Appeals
McGee and Eugene, like Estevez, are Court 16 cases. The COA dismissed the appeals, and the CCA quickly (six weeks?) vacated and ordered the COA to do its dang work. Not particularly interesting, and I group them together because the intermediate court’s error was the same in both, but it was fun to swat the First Court a couple of times with a rolled-up newspaper.
Cuarenta: When the State Can Appeal
Cuarenta is about whether the State can appeal an order of deferred adjudication in a traffic-ticket (or other Class C misdemeanor) case. Nope. The State Prosecuting Attorney thought mandamus was the appropriate remedy. The interesting thing is what happened next—the State sought mandamus in the Tenth Court of Appeals, in Waco; we filed a response that the case was not ripe for mandamus because the State had not asked the trial court for the relief they sought in the Tenth; and the Tenth Court dismissed the mandamus.
Mandamus is the appropriate remedy, but only if you know what you’re doing.
Alkayyali: Jury Charge
Alkayyali was a murder case. The application paragraph of the jury charge (the part of the jury instructions saying “if you find beyond a reasonable doubt X Y and Z, then you will find the defendant guilty”) didn’t require the jury to find that the defendant caused the death of the decedent. I got to argue this one too. The interesting thing is how the opinions refer to 19.02(b)(1) and (b)(2)—not as “manners or means” (which is the conventional wisdom, and wrong) but as “theories of murder.” The Court didn’t have to decide it in Alkayyali, but whether (b)(1) and (b)(2), and now (b)(4), are distinct offenses for unanimity purposes is in play.
A Broader Issue
I’ve been pressing the idea that intermediate courts are confused about elements (which make a distinct offense for unanimity purposes) and manners or means (which don’t). I am making some headway there. See Judge Yeary’s concurrence in Floyd, a case that I wasn’t on (I volunteered to help, but the lawyer on the case was content losing without me) until the motion for rehearing, but that some of my arguments showed up in.
Cook: Actual Innocence
Cook is Kerry Max Cook. This one got me mentioned in John Grisham’s Framed. I had jumped in at the last minute to conduct the habeas hearing in the trial court in Smith County, but then the case languished for years in the CCA till Austin Lawyer Keith Hampton joined in and brought it home.
That was our big year in the Court of Criminal Appeals. It probably never has happened before, and I doubt it’ll happen again.