Texas Courts of Appeals
Bell v. State (1st COA)
No. 01-15-00510-CR 12/15/16
Did a juvenile court abuse its discretion in waiving jurisdiction in this case?
Yes. In the juvenile court order waiving jurisdiction, the court relied only on the seriousness of the offense to justify the transfer to district court. Family Code §54.02(a)(3) permits the juvenile court to rely on the background of the child or the seriousness of the offense—or both, but when it relies only on the seriousness of the offense, case-specific findings in the order are necessary to justify the transfer of the case. The court in this case made only one finding, that the offense was against another person, which was not enough to justify the juvenile court waiving its jurisdiction. Read opinion.
This decision would appear to be controlled by the decision of the Court of Criminal Appeals in Moon v. State, as the juvenile transfer hearing was held before the juvenile trial judges began changing their orders to comply with Moon. Nevertheless, there is a slim possibility that the Court of Criminal Appeals might want to review this decision, but any change in result would require the court at least to clarify what it had held in Moon. There has been a significant change in the membership of the court since Moon was decided, so that is a slim possibility.
Coulter v. State (1st COA)
No. 01-15-00018-CR 12/15/16
Is a video recording of closed-circuit testimony required under Code of Criminal Procedure Art. 38.371?
No. There is no requirement in the statute or case law to support a requirement that closed-circuit testimony be videotaped. Under subsection (b) of the statute, it is within the court’s discretion to video-record the testimony if it is “just and appropriate,” but there is no requirement to do so—the assumption is the testimony will be recorded stenographically by the court reporter. Additionally, the defendant may request a videotape of the testimony, but it is not ineffective assistance of counsel for the defendant’s attorney not to do so. Read opinion.
This decision deals with a missing-record complaint and, therefore, is based upon a construction of Rule 34.6(f) of the Rules of Appellate Procedure. There is no discussion of any compliance with the defendant’s right of confrontation. If you choose this particular procedure in a case, by all means rely upon this decision in support. But also look to those decisions that set forth the findings a trial judge will need to make to satisfy the defendant’s right of confrontation. That was apparently satisfied in this case, as it was not raised on appeal.
King v. State (2nd COA)
No. 02-15-00472-CR 12/8/15
Was a traffic stop improperly extended prior to the pat-down of the defendant?
No. A traffic stop “ends when the police have no further need to control the scene.” Here, officers still had need to control the scene when the suspect gave consent to a pat-down. Namely, the officers were waiting for a tow truck to impound the stopped vehicle. Also, impounding the vehicle was a task tied to the traffic infraction, and there is no argument that the task should have reasonably been completed prior to the pat-down. Read opinion.
Any time a traffic stop has been extended past the initial reason for the stop, expect that defense counsel will claim the detention took too long. This is a good decision upon which you can rely in support of the extension of the detention so that an officer can validly request consent to search.
Office of the Attorney General
No. KP-0123 12/20/16
Would adoption of the American Bar Association’s Model Rule of Professional Conduct 8.4(g) constitute a violation of an attorney’s constitutional rights?
Yes. The Attorney General believes the adoption of Model Rule 8.4(g), regarding discriminatory conduct by attorneys, would be unconstitutionally overbroad, as well as violate the First Amendment rights of free speech, freedom of religion, and freedom of association. Additionally, the Attorney General believes the current version of Rule 8.4(g) that applies in Texas is sufficient to address attorney discrimination. Read opinion.
The ABA’s Model Rule was adopted in September 2016 amid some opposition. This opinion spends a great deal of time and research to explain why the adoption of such a rule in Texas might be ruled unconstitutional. The opinion points the reader to the more restrictive Texas Rule 5.08 that is considered to be not in violation of the First Amendment.
No. KP-0124 12/20/16
Is a doctor of osteopathy authorized to issue certificates of medical examination under Chapter 574 of the Health and Safety Code?
Yes. Health & Safety Code Chapter 574 requires an individual to have a license to practice medicine in the State of Texas, but there is no distinction between a doctorate degree in medicine or osteopathy. Either may issue a certificate of medical examination for mental illness as provided by Health & Safety Code §574.009. Read opinion.
This opinion was requested by a state senator, so you might expect to see some legislation detailing who can issue such certificates. The opinion only addresses Chapter 574 of the Health and Safety Code, but one wonders whether—left unchecked by the Legislature this Session—it might also be applied to Chapters 46B and/or 46C of the Code of Criminal Procedure.