Weekly Case Summaries: April 26, 2013

Court of Criminal Appeals

Ex parte Enyong

Nos. PD-0649-12, 0650-12        4/24/13

Issue:

Was the defendant entitled to habeas relief for ineffective assistance of counsel under Padilla v. Kentucky when his conviction was final at the time the Padilla opinion was issued?

Holding:

No. The Padilla holding is not retroactive, and the court adopted the reasoning of Chaidez v. United States, 133 S.Ct. 1103 (2013) in Ex parte De Los Reyes, No. PD-1457-11 (March 20, 2013).
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Commentary:

I’m not sure why they published this. (See case summaries from March 22 and March 28, 2013.)

Texas Courts of Appeal

State v. Sawyer

No. 04-12-00621-CR        4/17/13 (not desig. for pub.)

Issue:

Can the State appeal from a trial court’s order rejecting a plea-bargain agreement and signing a judgment finding the defendant not guilty?

Holding:

No, the trial court’s ruling reached the merits of the case and constituted an acquittal. The State cannot appeal from an acquittal, and the judgment did not constitute a dismissal of an indictment.
Read opinion

Commentary:

This is an interesting case. Both the CCA and the Supreme Court of the United States have held that an acquittal is an acquittal, no matter how wrong the trial court was in reaching its decision. But this case may be different because the defendant pleaded guilty rather than not guilty. See Ex parte Martin, 747 S.W.2d 789, 792 (Tex. Crim. App. 1988) (noting that federal double jeopardy does not apply in situations where the defendant pleaded guilty). Thus, the State could simply set the case for trial. Or perhaps file a mandamus if the trial court refuses to proceed to a legal disposition.

Pierson v. State

No. 06-11-00621-CR        4/19/13

Issue:

Was a defendant’s retrial, after a mistrial had been granted due to defense counsel’s improper cross-examination of a child sex victim, a violation of double jeopardy?

Holding:

No. Although the defendant did not consent to the mistrial, the evidentiary ruling was not shown to be incorrect and the finding of manifest necessity was not an abuse of discretion. Manifest necessity exists when: 1) the particular circumstances giving rise to the declaration render it impossible to arrive at a fair verdict before the initial tribunal, 2) it is simply impossible to continue with trial, or 3) when any verdict that the original tribunal might return would automatically be subject to reversal on appeal because of trial error. The trial court exercised sound discretion in granting the parties an opportunity to argue their positions on declaration of a mistrial, considering alternatives to a mistrial, and using its discretion to conclude the defense lacked a legitimate basis for the question.
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Commentary:

Prosecutors should be cautious about asking for a mistrial. This was an interesting read.

Texas Attorney General

Opinion for 173rd Judicial District Attorney

Opinion No. GA-1000        4/22/13

Issue:

Does CCP art. 42.12, §15(h), authorizing judges to award diligent participation credit to defendants confined in state jail facilities, violate the Texas Constitution?

Opinion:

A court would likely hold that CCP art. 42.12, §15(h) does not conflict with the separation of powers provision of art. II, §1 or the reprieve and commutation provisions of art. IV, §11.
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Commentary:

This is not a surprising opinion. I wonder when we will start litigating whether a defendant was diligent or not?

Opinion for Caldwell County Criminal District Attorney

Opinion No. GA-1001        4/22/13

Issue:

May a commissioners court change the designated day of the week it convenes during the current fiscal year under Local Government Code §81.005?

Opinion:

Yes. Under the plain language of LGC §81.005(h), the commissioners court may “designate a day of the week on which the court shall convene in a regular term each month other than the day of the week designated under subsection (a).”
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Commentary:

One of the great things about being a prosecutor in Texas is the wide variety of legal documents you get to read.

Request from Houston County Attorney

No. RQ-1121-GA        4/17/13

Issue:

Which court or magistrate has jurisdiction before an indictment is returned or a complaint and information are filed for the purposes of filing an affidavit for release of surety to surrender a bond principal pursuant to CCP arts. 17.16 and 17.19?
Read request

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