Weekly Case Summaries: August 7, 2015

Texas Courts of Appeals

McCay v. State (5th COA)

No. 05-12-01199-CR        7/31/15

Issue:

Can filing a false will be prosecuted as attempted theft?

Holding:

Yes. Even though the indictment in this case did not allege an illegal act (it alleged that defendant caused a person to execute a will and filed that will), it did allege that such action was done “with specific intent to commit the offense of theft.” An indictment for attempt does not have to allege the elements of the offense attempted. A person commits theft if he unlawfully appropriates property with intent to deprive the owner of that property. A person commits attempt of an offense if, with specific intent to commit such an offense, he does an act amounting to more than mere preparation that tends, but fails, to affect the commission of the offense. Additionally, the State did not have to prove a lack of “testamentary capacity” for the person whose will was in question or “undue influence” on the part of the defendant; these are strictly civil terms relevant to probate proceedings. Read opinion.

Commentary:

It is not clear whether the State prosecuted the defendant—or decided not to—for the offenses of securing execution of a document by deception or exploitation of an elderly or disabled individual. But as an attempted theft prosecution, this was a wonderful job. Not only did the State allege that the defendant acted with the intent to commit theft, but it also alleged that the defendant acted with the intent to deprive property from anyone who had a greater right to possession of the property. This decision should be very helpful in cases in which defendants have acted against elderly or disabled victims with regard to those victims’ property—crimes that will surely be on the increase as our population ages. Even so, prosecution of such cases can be quite challenging. If you have such a case, read the facts of this case carefully to see the evidence that the State marshaled to prove its case. Truly a remarkable job, both at trial and on appeal. Because of the uniqueness of this case, both legally and factually, expect the Court of Criminal Appeals to review it.

Ansari v. State (4th COA)

No. 04-14-00728-CR        8/5/15

Issue:

When the State charged defendant with one count of assault, but presented three instances of assaultive behavior at trial, was defendant entitled to an incident-unanimity instruction?

Holding:

Yes. The jury unanimity requirement ensures the jurors agree on the factual element underlying the charged offense, not that jurors merely agree a statute was violated. Because the State presented three different scenarios under which the jury would have been able to convict the defendant, the trial court erred in denying the incident-unanimity charge. Read opinion.

Commentary:

Unfortunately, this is a pretty straightforward case. If the State has presented multiple acts on the part of the defendant that could fall within the language of the indictment, it must elect upon which act it is relying to support a guilty verdict (assuming that the State is seeking only one conviction), or the trial court must charge the jury that it must be unanimous with regard to one specific act i to find the defendant guilty.

Bravo v. State (1st COA)

No. 01-14-00326-CR        7/30/15

Issue:

Does the theory of transferred intent apply when a defendant’s conduct injures the original target, as well as another person?

Holding:

Yes. The defendant in this case was found guilty of injury to a child, when he intended only to injure the father. Injury to a child is a result-oriented offense, meaning that the State is required to prove the defendant caused the result with the proper criminal intent. It did not matter whether defendant knew the child was in the car at the time of the injury, because the State could prove he knowingly or intentionally caused an accident “reasonably certain” to cause injury to others, regardless of whom the others were. Read opinion.

Commentary:

This should be a very helpful decision on transferred intent. The fact situation—akin to intentional road rage—may not come up that often in transferred intent cases. But the law with regard to transferred intent is presented and explained well in this case.

Stanley v. State (5th COA)

No. 05-14-00354-CR        7/30/15

Issue:

Does double jeopardy preclude convicting a defendant of both felony murder and aggravated assault with a deadly weapon when both crimes arose from the same conduct?

Holding:

Yes. Because both offenses share the same punishment range, have a similar focus that indicates a single instance of conduct, and share the same culpable mental state, they are the same for purposes of double-jeopardy under Ervin. Read opinion.

Commentary:

This is a tough case, especially since it involves the death of a police officer and dangerous drunk driving on the part of the defendant. The double jeopardy analysis may hold up on review by the Court of Criminal Appeals. In any event, the defendant’s felony murder conviction stands, as does his very well deserved 99-year sentence.

Trevino v. State (14th COA)

No. 14-14-00262-CR        7/23/15

Issue:

Is an amendment to an indictment on the day of trial, but before jury selection, considered void?

Holding:

No. An indictment amended on the day of trial is voidable, however.  A trial court generally should not allow an amendment to the indictment on the day of trial, but a defendant must object to the error at trial, or he will waive his objection. Read opinion.

Commentary:

The word “void” should be reserved for only the most significant errors in the criminal justice system, such as jurisdictional errors or failing to state an offense. The Code of Criminal Procedure makes it clear that a defendant must object to an untimely amendment of a charging instrument. His acquiescence to that amendment, or his failure to object, certainly does not render the charging instrument void.

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