Donald P. Morehart, Attorney

Representative Published Appellate Matters

Third Court of Appeals of Texas, Austin.
Chandell ALLEN, Appellant, v. The STATE of Texas, Appellee.
249 S.W.3d 680, No. 03?04?00557?CR., March 7, 2008. Rehearing Overruled March 25, 2008.
 
Background: Following a jury trial, defendant was convicted in the District Court, 147th Judicial District, Travis County, Fred A. Moore, J., of possession of cocaine in an amount of more than 200 grams but less than 400 grams. Defendant appealed. Mr. Morehart handled appeal for other trial court.

Holding: The Court of Appeals, John F. Onion, Jr., P.J. (Retired), held that evidence was legally insufficient to sustain defendant's conviction.

Reversed and acquittal rendered.

Allen v. State

Court of Appeals of Texas, Austin.

Andre CARROLL, Appellant, v. The STATE of Texas, Appellee.
990 S.W.2d 761, Nos. 03?97?00524?CR, 03?97?00753?CR., Feb. 11, 1999.

Background: Defendant was convicted in the 299th Judicial District Court, Travis County, Jon N. Wisser, J., of two counts of aggravated robbery, and Defendant appealed. Mr. Morehart handled appeal for other trial counsel.

Holding: The Court of Appeals, Davis, J. (Retired), held that new trial was required due to jury's receipt during deliberations of apparent “mug shots” of defendant that exhibited date prior to any presently charged conduct.

Reversed and remanded for new trial.

Carroll v. State 

Court of Appeals of Texas, Austin.

Richard GALVEZ, Appellant, v. The STATE of Texas, Appellee.
962 S.W.2d 203, No. 03?96?00560?CR., Jan. 23, 1998.

Background: Defendant was convicted in the District Court, Travis County, 331St Judicial District, No. 0962277, Bob Perkins, J., of aggravated robbery. Defendant appealed. Mr. Morehart was trial counsel and appellate counsel.

Holding: The Court of Appeals, Bea Ann Smith, J., held that erroneous admission of evidence concerning defendant's gang membership, over defense counsel’s objections, required reversal.

Reversed and remanded for new trial.

Galvez v. State 

Court of Appeals of Texas, Austin.

Willie James SMITH, Appellant, v. The STATE of Texas, Appellee.
936 S.W.2d 434, No. 03?95?00548?CR., Dec. 12, 1996.

Background: Defendant appealed from order of the District Court of Travis County, 299th Judicial District, Jon Wisser, J., which imposed sentence after finding probation violation based on recommendation of magistrate. Mr. Morehart handled appeal for other trial counsel.

Holding: The Court of Appeals, Powers, J., held that: (1) by authorizing magistrates to receive evidence and make findings of fact based thereon, legislature necessarily vested in magistrates the power to make credibility judgments; (2) magistrate's conduct of hearing and his resulting recommendations to district court based on credibility determinations did not amount to the magistrate's presiding “over a contested trial on the merits” as prohibited by the Government Code; and (3) constitutional restriction of judicial power to specified courts is preserved by statutory limitations placed upon magistrates.

Affirmed [this was a matter of first impression at the court of appeals].

Smith v. State 

Court of Appeals of Texas, Austin.
James R. HUNTER, Appellant, v. The STATE of Texas, Appellee.
820 S.W.2d 5, No. 3?90?199?CR., July 3, 1991.

Background: Defendant pled guilty to forgery and was assessed a ten?year probationary term. Subsequently, motion to revoke defendant's probation was filed and warrant for his arrest issued. More than ten years later, defendant was arrested and the 167th Judicial District Court, Travis County, Bob Jones, J., revoked defendant's probation. Defendant appealed. Mr. Morehart was trial counsel and appellate counsel.

Holding: The Court of Appeals, Davis, J. (Retired), held that: (1) trial court may hold a hearing on a motion to revoke probation, even after probationer's term has expired, as long as the motion to revoke was filed and a Capias or arrest warrant issued before the expiration of the probationary term; (2) in probation revocation proceedings, once probationer raises the issue of whether the State has exercised due diligence in its efforts to apprehend him, the State has the burden of showing that it made diligent effort to apprehend probationer after arrest warrant was issued; and (3) State failed to discharge its burden to demonstrate diligent effort to apprehend defendant.

Reversed and remanded [for proceedings in accordance with this opinion, i.e. discharge from probation as sought by trial counsel].

Hunter v. State