Weekly Case Summaries: February 19, 2016

Texas Courts of Appeals

Minton v. State (7th COA)

No. 07-14-00113-CR        2/12/16

Issue:

Was the evidence sufficient to show proper venue in Lubbock County when the defendant had never been within 175 miles of Lubbock County?

Holding:

Yes. Venue is not an element of the crime and must be proved only by a preponderance of the evidence. In this case, the defendant was charged on the law of parties, that he and his co-defendants acted together to commit the offense of possession of a controlled substance with intent to deliver. While this defendant did not enter Lubbock County, he acted with a common purpose to provide his co-defendants with heroin that was transported to and intended to be sold in Lubbock County. Read.

Commentary:

The State did a great job in this case of showing the defendant’s guilt as a party to the possession with intent to deliver in Lubbock County. This is a very good decision on venue. It should definitely be referenced if a particular crime has occurred in a multi-county area. But make sure to marshal the necessary evidence to place the offense in the desired county.

Ex. parte Smith (6th COA)

No. 06-15-00218-CR        2/10/16

Issue:

Do Code of Criminal Procedure Article 17.15 bail factors apply when a defendant has applied for habeas corpus under Art. 17.151?

Holding:

No. This court relied on the holding from Ex parte Gill, 413 S.W.3d 425 (Tex. Crim. App. 2013), that the bail factors found in art. 17.15 do not apply at a hearing under art. 17.151 to release a defendant who has been held for 90 days if the State is not ready for trial. Additionally, while the 17.15 factors do apply to a motion to reconsider bond under art. 17.09, there is nothing to support using a 17.09 motion as a conduit to apply the 17.15 bail factors in a 17.151 hearing. Read.

Commentary:

The court left open the possibility that Article 17.09 could be used in the proper case but only if the State shows an intervening change in circumstances to allow for an application of Article 17.09. Otherwise, this is a faithful application of the recent decision from the Court of Criminal Appeals holding that Article 17.15 factors cannot be used when a defendant makes a claim under Article 17.151.

Strehl v. State (6th COA)

No. 06-15-00117-CR        2/5/16

Issue:

Was a defendant’s name alone on a previous judgment, although distinctive, enough to prove a prior conviction for enhancement purposes?

Holding:

No. The State presented a 2006 judgment as proof of enhancement, but it included no fingerprint, photograph, signature, or other identifying information. While the defendant’s name is distinctive, and the offense was committed in the same (relatively rural) county as a second prior conviction, it is not enough to prove beyond a reasonable doubt that the defendant was the person previously convicted. Read.

Commentary:

The Court of Criminal Appeals may wish to review this decision because of its unique facts and because the court has repeatedly made it clear that a prior conviction can be tied to a defendant in several different circumstantial ways. The cause number from the prior conviction was referenced by the police department in the incident report for the defendant’s current offense. That, coupled with the other unique facts, could be sufficient to tie the defendant to the prior conviction. Nevertheless, there is still no substitute for connecting a defendant to a prior conviction in one of the more traditional ways, such as with a distinctive fingerprint or photograph.

Vandyke v. State (9th COA)

No. 09-14-00137-CR        2/10/16

Issue:

Should the Legislative amendment to the previous §841.085 of the Health and Safety Code (now §841.082(3)) apply to pending convictions?

Holding:

No. Article IV, §11 of the Texas Constitution gives the Governor power, after conviction or successful completion of deferred adjudication community supervision, to grant reprieves and commutations, and in Ex parte Giles, 502 S.W.2d 774 (Tex. Crim. App. 1973), the Court of Criminal Appeals stated that commutation “means the change of punishment assessed to a less severe one.” Because the 2015 amendment to §841.085 applies to those previously convicted of violating their civil commitment requirements by failing to complete sex offender treatment, even though those convictions are pending appeal and not yet final, the Legislature has essentially pardoned these individuals. Thus, the Court concludes that the Legislature has usurped the Governor’s clemency power by applying amended §841.085 to pending criminal proceedings, and the application of amended §841.085 to pending convictions is unconstitutional. Read.

Commentary:

This is a very interesting decision, and the Court of Criminal Appeals may wish to review it because it invalidates a portion of a legislative enactment on constitutional grounds. But the argument should hold up, even if the precedent upon which the court of appeals has relied is a little dated.

Office of the Attorney General

Letter from the Brazoria County Criminal District Attorney

2/16/16                KP-0064

Question:

Under what circumstances may a truancy court refer a child to the juvenile probation department, and under what circumstance may a child be prosecuted for delinquent conduct?

Answer:

Under subsection 65.251(b) of the Family Code, a truancy court can refer a child to the juvenile probation department for either a failure to obey a truancy order or for direct contempt, but such referrals require two prior instances of contemptuous conduct. Under Family Code §65.252(d), a juvenile prosecutor maintains discretion to prosecute a child for delinquent conduct under §51.03(a)(2)(C), even if it is the child’s initial referral to juvenile court. Read.

Commentary:

This question deals with a limited aspect of the overall new legislative scheme to “decriminalize” truancy in the juvenile system. Prosecutors should be aware of all of the new changes before proceeding against a truant juvenile or his parent.

Letter from the Bosque County Attorney

2/16/16                KP-0067

Question:

What are a county’s responsibilities regarding interstate extradition?

Answer:

In general, an arrest warrant alone does not impose a duty on a Texas sheriff or other peace officer to travel out of state to take custody of the person named in the warrant. Instead, any duty imposed is governed by state and federal extradition law. Pursuant to articles 51.09 and 51.13 of the Code of Criminal Procedure, a person commissioned by the Governor in an extradition requisition to receive and return an out-of-state arrestee back to the county in which an offense was allegedly committed has the duty to carry out that responsibility. Expenses should be paid by the authority demanding extradition, according to article 51.10 or article 51.13, §24 of the Code of Criminal Procedure. Read.

Commentary:

This particular opinion may be of only limited value, as it is very limited in its scope. If you have an extradition issue, it may be better to look to Chapter 51 of the Code of Criminal Procedure and the cases under those statutes.

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected]
Recorded Interrogation Survey