Weekly Case Summaries: December 2, 2011

Court of Criminal Appeals

Randolph v. State

No. PD-0404-10 : 11/23/11

Issue:

After the defendant testified to an alibi defense during the guilt/innocence phase, was the prosecutor's comment during the punishment phase that the defendant "has not taken responsibility for this crime" an improper comment on the defendant's failure to testify at punishment?

Holding:

No. By testifying that he was not the person who committed the aggravated robbery, the defendant expressly denied responsibility for the crime. A prosecutor can comment on a defendant's failure to take responsibility during closing argument at either the guilt or punishment phase when the prosecutor's remarks are supported by evidence in the record.
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Commentary:

The court makes a distinction between "remorse" and "responsibility." So I would still stay away from arguments that the defendant failed to show remorse, unless the evidence actually shows that he failed to show remorse. Otherwise, it could be construed as a comment on his failure to testify. But keep in mind that, if a defendant testifies at the guilt stage of trial, he still has a right not to testify at the punishment stage.

Texas Court of Appeals

Weaver v. State -7th COA

No. 07-10-0400/0401-CR : 11/28/11

Issue:

Did the trial court improperly deny multiple challenges for cause when the defense asked venirepersons if they could "give" probation and they responded negatively?

Holding:

No, the question was an improper attempt to commit, or contract with, the venirepersons. In contrast, the question whether venirepersons could "consider the full range of punishment" was proper.
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Commentary:

Keep a watch on this case to see if the Court of Criminal Appeals takes up the issue on petition for discretionary review. It is a short decision, but it should help if you have defense counsel attempting to commit prospective jurors on probation during voir dire.

Lane v. State – 14th COA

No. 14-10-00925-CR : 11/29/11

Issue:

Does a jury charge on continuous sexual abuse of a young child (CSA) require the inclusion of a culpable mental state in addition to that required for the underlying offenses?

Holding:

No. The actus reus of CSA is merely the repeated commission of acts already requiring culpable mental states. Therefore, no additional culpable mental state is required.
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Commentary:

This is yet another helpful decision upholding the practice of prosecuting repeat child sex offenders for the offense of continuous sexual abuse of a child. The courts have so far followed the Legislature's intent in support of these prosecutions. If you know that you are going to be introducing multiple instances of child molestation in your case-in-chief, you really need to consider going forward with this particular charge. It is proving to be very helpful.

Texas Attorney General

Request from the Webb County Attorney

RQ-1018-GA : 11/21/11

Re: Authority of a county treasurer with regard to the reconciliation of accounts of elected officials. 
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