Weekly Case Summaries: June 19, 2015

Court of Criminal Appeals

Cortez v. State

No. PD-0501-14                 6/17/15

Issue:

Does the term “item” in Penal Code 32.51(b)(1) mean each individual piece of identifying information, so that a single check could contain multiple “items” of information including name, date of birth, and bank account number?

Holding:

Yes. The court held that while the statute was ambiguous, its interpretation is that each individual piece of identifying information can be counted as an “item” under the statute, affecting the charging level of the offense. Read opinion.

Concurrence (Richardson, J.):

Judge Richardson wrote to note his disagreement with jury charge issues that were not material to this case but could result in errors in the future. Read.

Commentary:

This is a good decision, noting that the individual pieces of identifying information is how a defendant commits identity theft, not the defendant’s possession of a check, credit card, or other tangible document or object.  Nevertheless, the decision in fact may not go quite far enough in that it appears to hold that the examples in each subsection in Section 32.51(a)(1) are meant to express an entire “item” of identifying information.  The court notes that the check possessed by the defendant in this case contained the victim’s name, driver’s license number, address, phone number, bank account number, and bank routing number.  Instead of stating that the check contained potentially six “items” of identifying information, the court stated that the defendant possessed only two:  (1) the victim’s name and driver’s license number; and (2) the victim’s bank account number and bank routing number.  To be sure, this is better than what the defendant wanted the court to hold—that the defendant possessed only one “item,” the check.

Ex parte Rodriguez

No. WR-58,474-02            6/17/15

Issue:

Can a juvenile waive a defect in the summons for his transfer hearing to district court?

Holding:

Yes. Family Code §51.09 allows a juvenile to waive any rights granted under the code or in any juvenile proceeding, so long as certain requirements are met, unless “contrary intent clearly appears elsewhere.” Section 53.06(e) explicitly provides that a juvenile cannot waive service of the summons, but there is no language regarding waiver of a defect in the language of the summons or the time of service, leading the court to find such defects are waivable under the statute. Additionally, the defendant could not affirmatively show that the juvenile court that transferred his case lacked jurisdiction at the time of transfer, a requirement for a collateral attack on the transfer decision. Read opinion.

Commentary:

This should be a very helpful decision in juvenile cases.  Juvenile defendants often argue that the juvenile court (and subsequently the adult district court) did not have jurisdiction because of mere defects in service.  But keep in mind that this decision was issued on an application for a post-conviction writ of habeas corpus, and the defendant’s burden was much higher.  In the typical case, the State would have to satisfy each of the requirements under Section 51.09 of the Family Code before the court would make a finding of the waiver of a right by the juvenile defendant.

Ex parte De La Cruz

No. WR-76,781-01            6/17/15

Issue:

Can new evidence introduced in a habeas hearing adequately establish the falsity of trial testimony when the essence of that evidence was heard and rejected by the jury at the trial?

Holding:

Not necessarily. In this case there was inconsistent testimony at trial from multiple sources; the new testimony presented at the habeas proceeding was mostly redundant of testimony admitted at trial from a different expert. While the habeas evidence was found to be properly credible, newly discovered evidence, it was insignificant because the jury had already heard this theory of the case at trial and returned a guilty verdict. Read opinion.

Commentary:

This decision will be of great interest to prosecutors who handle applications for a post-conviction writ of habeas corpus.  If you have a claim of newly discovered false evidence presented by one of the State’s witnesses at trial, you will need to read this decision, along with the relatively recent decisions issued by the court in this rapidly evolving area of habeas corpus law.

Courts of Appeal

Dansby v. State (5th COA)

No. 05-10-00866-CR        6/15/15

Issue:

Can the State revoke community supervision when the only failure to comply was based on the defendant’s Fifth Amendment right not to be a witness against himself?

Holding:

No. The legitimate exercise of Fifth Amendment privilege against self-incrimination cannot be the reason for revocation of community supervision. In a case that has been heard and remanded from the CCA twice (here and here), the court of appeals found that the State’s motion to revoke was based only on the defendant’s legitimate invocation of the Fifth Amendment; thus community supervision should not have been revoked. Read opinion.

Commentary:

The ultimate holding in this case essentially repeats what the Court of Criminal Appeals had already previously held in this case.  The State made arguments centered around estoppel and the legitimacy of the defendant’s assertion of his Fifth Amendment privilege, but those arguments were rejected.  The bottom line is that—at best—you are on very shaky ground in attempting to revoke a defendant’s community supervision based upon a ground for which the defendant could assert his Fifth Amendment privilege.

State Bar of Texas

Commission for Lawyer Discipline v. Sebesta

No. 201400539                   6/12/15

Issue:

Judgment of Disbarment for Charles Sebesta, former Burleson County District Attorney

Holding:

The evidentiary panel found that respondent violated §§3.03(a)(1), 3.03(a)(5), 3.09(d), 8.04(a)(1), and 8.04(a)(3) of the Texas Disciplinary Rules of Professional Conduct by making false assertions of fact at trial; by knowingly presenting false evidence; by not disclosing exculpatory information to the defense; and by engaging in dishonesty, fraud, and misrepresentation in the trial of Anthony Graves. As a result, the respondent was disbarred by the panel but has the ability to appeal the judgment. Read opinion.

Commentary:

By now, all prosecutors should be familiar with the facts surrounding the Anthony Graves case, as well as the Michael Morton case.  But if not, this decision gives a very brief breakdown of what misconduct occurred on the way to giving Mr. Graves an invalid conviction for capital murder and improperly placing him on death row for a significant portion of his life.  A very sobering moment for prosecutors in particular and the criminal justice system in general.

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