Weekly Case Summaries: February 3, 2012

Texas Court of Appeals

State v. Boudreaux – 5th COA

No. 05-11-01091-CR : 01/25/12 (not published)

Issue:

Did the trial court wrongly enter a "not guilty" verdict in a misdemeanor case after the case was set for a jury trial, the State neither waived its right to a jury nor consented to a jury waiver, and the State's witnesses were unavailable?

Holding:

Yes. The trial court lacked authority to act as fact-finder absent the State's waiver, or consent to a waiver, of a jury trial, and it improperly terminated the prosecution without the State's consent.
Read Opinion 

Commentary:

Congratulations to this trial prosecutor for refusing to be intimidated by the trial judge. She refused to approve the waiver of a jury trial, and the trial judge was thereafter powerless to force a resolution to this case without calling for a jury to be selected. This oftentimes happens in misdemeanor court where trial judges attempt to intimidate what are usually less-experienced prosecutors. Wonderful job by the State and the court of appeals.

In the Interest of J.M. – 7th COA

No. 07-11-00339-CV : 01/30/12

Issue:

In a parental termination case, did the trial court reversibly err in failing to consider whether to appoint counsel ad litem to an unrepresented parent who appeared in opposition to the termination but did not request counsel?

Holding:

Yes, under Texas Family Code §107.013(a), an unrepresented indigent parent in opposition to termination does not also have to request counsel.
Read Opinion 

Commentary:

The bottom line of this case is that a trial court should be very cautious about going forward with a parent who is not represented by counsel. Some determination should first be made that the parent is aware of her rights and has voluntarily waived those rights. 

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