Weekly Case Summaries: December 12, 2014

Texas Court of Criminal Appeals

Taylor v. State

No. PD-0051-14         12/10/14

Issue:

When a contractor accepted money but never completed the tasks he was obligated to perform, did the State prove the requisite intent to convict the contractor of theft?

Holding:

Yes. The defendant asked for payment at a point where he at least knew he would have to renege on his contract, which is sufficient to prove the deception necessary to establish the unlawfulness of the appropriation. Read the opinion.

Dissent (Johnson, J.):

There is no disagreement that the defendant is so monumentally inept at running his business that he is unable to perform the tasks he agreed to perform. But that is not a crime. It is a civil dispute. 

Commentary:

In this case, the court builds upon its prior precedent in Wirth v. State, 361 S.W.3d 694 (Tex. Crim. App. 2012), and provides valuable guidance as to how the State can prove a defendant’s commission of the offense of theft when the transaction is based upon an otherwise valid contract or business dealing.  Along with Wirth, this case is now the leading decision on that matter.  It will be indispensable to read this case and follow it.  Great job by the State in presenting and arguing all of the inferences that showed deception on the defendant’s part.

Saenz v. State

No. PD-0253-14         12/10/14

Issue:

Must a jury charge on capital murder under Penal Code §19.03(a)(7) (murder of more than one person in same transaction or pursuant to same scheme) require jurors to agree as to the identities and the number of victims?

Holding:

Yes. The jury charge must require the jury to agree on the identity of a predicate murder, and then the identity of at least one additional murder victim. Read the opinion.

Commentary:

It is possible that this case can be saved on remand in the court of appeals by way of a harm analysis.  But the bottom line is that, in a “multiple murder” form of capital murder, you probably should allege all of the victims that you intend to prove and prove all of the victims that you have alleged.  In the alternative, if you want to attempt to do what the State did in this case, the jury must be charged that they have to be unanimous as to one particular victim—what the court termed to be the “predicate murder.”  You will not find the need of a “predicate murder” within the wording of Section 19.03(a)(7).  But do not forget that a capital murder under Section 19.03—any capital murder—is first “predicated” on a murder committed under Section 19.02(b)(1).

Hudson v. State

No. PD-1699-13         12/10/14

Issue:

When the defendant was convicted of capital murder for tying up her son and beating him to death as punishment, was she entitled to a lesser-included instruction on manslaughter on the theory that she did not intentionally kill her son, but rather recklessly killed him by inadvertently beating him too much?

Holding:

No. The evidence relied upon to prove the lesser included would not prove manslaughter, but it would prove felony murder via the predicate offense of felonious injury to a child. Read the opinion.

Dissent (Meyers, J.):

The majority’s opinion would be correct if the jury charge had included an element of recklessness. Because the charge mentioned only the intentional or knowing killing of the child, there was no vehicle to find for a crime that included recklessness. Read the dissent.

Commentary:

Be careful with this decision.  This defendant was defeated because she did not request a charge on the lesser-included offense of felony murder.  But—as noted by the court—she would have been entitled to such an instruction.  Furthermore, this decision should not be read too far to apply to other fact situations.  Read how the court distinguishes Sweed v. State, 351 S.W.3d 63 (Tex. Crim. App. 2011), in which the court issued an arguably different result.

Moon v. State

No. PD-1215-13         12/11/14

Issue:

What is the appropriate standard of review for an appellate court to use when reviewing a decision by a juvenile court to waive its jurisdiction and transfer the juvenile to the adult system?

Holding:

An appellate court should first review the juvenile court’s specific findings of fact regarding the statutorily mandated factors considered in a transfer under a traditional sufficiency of the evidence review, then review the juvenile court’s ultimate waiver decision under an abuse of discretion standard. The appellate court must limit its sufficiency review to the facts that the juvenile court expressly relied upon, which are required to be explicitly set out in the juvenile transfer order by statute. Read the opinion.

Dissent (Keller, P.J.):

The court should have stuck with the conventional path followed by most of the courts of appeals, which is to hold that a juvenile transfer order need not specify in detail the facts supporting the order. Read the dissent.

Commentary:

This decision certainly provides some valuable guidance as to how to properly review the sufficiency of the evidence to support a juvenile transfer order—just probably not the guidance that we were hoping for.  In order to support the certification of a juvenile offender into adult court, you must carefully review the factors set forth Section 54.02(f) of the Penal Code and make sure that you have evidence that speaks to each of those factors.  Section 54.02(h) also requires the juvenile trial judge to be specific in his fact findings with regard to those factors.  There is one silver lining in the court’s opinion in this case.  It leaves open the possibility for a new transfer hearing if the evidence is found to be insufficient to support the findings from the first transfer hearing.  If that happens to you, as has happened to the State in this case, read footnote 90 and see if you can comply with that which is set forth there to earn yourself a second transfer hearing.

Brister v. State

No. PD-1545-13         12/10/14

Issue:

Was the evidence sufficient to support a deadly-weapon finding in a felony DWI when the defendant crossed over the dividing line briefly when no other cars were on the road before he was stopped without crashing or injuring anyone?

Holding:

No. The mere potential for a car to hypothetically injure someone by virtue of the driver’s intoxicated state is not sufficient to support a deadly weapon finding. Read the opinion.

Commentary:

The majority clearly stands opposed to a holding that would entitle the State to a deadly weapon finding in essentially every felony DWI case.  And that holding may stand.  But one cannot help but notice that there were three dissents in this case (without a single opinion from them).  So it is not entirely clear how long this decision will stand in a newly constituted court.

 

Office of the Attorney General

Opinion for the Palo Pinto County Auditor

GA-1093         12/8/14

Question:

May a third-party collections vendor or private law firm make informative, but non-substantive, notes, such as status codes, to the court's records or docket, and may such third-party collectors make substantive changes to the court's original documents, docket, records, or original electronic records?

Opinion:

Section 37 .10 of the Penal Code prohibits tampering with governmental records, which include court records. To the extent, that information in an official court docket is being changed without the court's knowledge or involvement, such activity would likely be prohibited by §37.10. Allowing private attorneys or vendors with whom the county has contracted for collections services to make notations about the status of collections efforts on court documents would likely fall within a court's broad discretion in managing the docket.