Weekly Case Summaries: August 1, 2014

Texas Courts of Appeals

Moore v. State

No. 01-13-00663-CR    07/24/2014

Issue:

Was the passage of time caused by the investigating detective’s heavy workload and mistake as to the defendant’s age a reason “beyond the State’s control” to justify a transfer of a juvenile’s sexual assault case to district court after his 18th birthday under Family Code §54.02(j)(4)(A)?

Holding:

No. To transfer a case to district court after a person’s 18th birthday, the State must show that the delay in prosecution happened for reasons outside the State’s control. The court rejected the State’s argument that because the detective did not forward the case to the DA’s office until after the defendant’s 18th birthday, the delay was investigative rather than prosecutorial. In this situation, “the State” includes law enforcement, and these reasons did not justify the transfer. Read opinion

Commentary:

Just like when facts like these result in a speedy trial violation, this decision stings quite a bit. There is not a lot that we can learn from this decision, except that we (and law enforcement) must make sure that juvenile cases are presented quickly, especially if the offense is serious enough to merit transfer to adult court. 

Lee v. State

No. 04-12-00316-CR   07/30/2014

Issue:

Did the trial judge properly exclude the unsworn statement of an unavailable witness under T.R.Evid. 804(b)?

Holding:

Yes. To be considered unavailable under Rule 804(b)(1), the witness must be prepared to offer the type of testimony contemplated by Rule 804(b)(1). Because the witness’s statement would be considered hearsay, the trial judge properly excluded it. Read opinion

Commentary:

As a matter for the application of the rules of evidence, this decision is not at all difficult. But when you receive a claim like this—when a piece of defensive evidence has been excluded—be prepared to rebut the defendant’s claim that his constitutional right to present a defense has been thwarted. Such a claim should not change the result, but be prepared to respond to it.

Simon v. State

No. 04-13-00292-CR    07/20/2014

Issue:

Does a trial court have jurisdiction to revoke a defendant’s community supervision for failure to follow conditions the court imposed by amending the conditions after sentencing, but before the mandate had issued from the court of appeals?

Holding:

No. Although a trial court generally can modify the conditions of community supervision at any time under CCP art. 42.12, §11, the court must have jurisdiction to do so. Because the mandate had not yet issued from the court of appeals, the trial court had no jurisdiction to make the modification. Read opinion

Commentary:

In the past, there may have been some doubt about whether a defendant could be required to serve his probation while he has taken an appeal from the trial court’s ruling placing him on that probation. But after the June 25decision of the Court of Criminal Appeals in Lundgren v. State, it is clear that is not the case. This case also teaches us that an appeal is not over until the trial court receives the mandate from the court of appeals. So keep this decision (as well as Lundgren) in mind when a defendant has been placed on probation and he wishes to appeal.

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