Weekly Case Summaries: June 20, 2014

U.S. Supreme Court

Abramski v. United States

No. 12-1493          6/16/14

Issue:

Does a misrepresentation by a “straw purchaser” about being the actual intended owner of a gun violate federal firearms laws even if the third party could have bought the gun legally without the straw purchaser?

Holding:

Yes. Even if the third party could have bought the gun himself, the Court holds 5-4 that a misrepresentation by the applicant that he is the actual owner violates 18 U.S.C. §922(a)(6). Read opinion

Dissent (Scalia, J.):

“The Court makes it a federal crime for one lawful gun owner to buy a gun for another lawful gun owner. Whether or not that is a sensible result, the statutes Congress enacted do not support it—especially when, as is appropriate, we resolve ambiguity in those statutes in favor of the accused.”

Commentary:

This decision will not have any impact on our state court prosecutions under Chapter 46 of the Penal Code, but it is a good lesson about the tension between statutory construction (Justice Scalia’s dissent) and policy (Justice Kagan’s majority opinion). Based upon policy considerations and the current gun-control climate (nationally), it is not clear that Congress will amend this statute to prevent this type of prosecution.

Court of Criminal Appeals

Ex parte Navarijo

No. WR-79,286-01       6/18/14

Issue:

Is a recanting witness’s credibility the deciding factor in an actual innocence case?

Holding:

No. A recantation should be considered in light of all other evidence in deciding whether a defendant has established actual innocence. Read opinion

Concurrence (Price, J.):

“[W]hether the convicting court or this Court should find a complaining witness's recantation credible or incredible does not, by itself, dispose of the claim. Why? Because, ultimately, the Elizondo standard does not ask whether we find the new evidence of innocence to be credible, reliable, or true. Instead, we are called upon to evaluate what a reasonable juror would have believed about the credibility or reliability or truth of the newly discovered evidence.” Read opinion

Commentary:

This is a good decision to reference when a defendant bases a claim of actual innocence or newly discovered evidence upon the recantation of the complaining witness, whether in an application for a writ of habeas corpus or in a motion for new trial. The legal standards are different depending upon the situation. But the treatment of the facts in this case show why a recantation does not necessarily mean that a defendant’s conviction is jeopardized. The other evidence in the case needs to be considered, as well as the credibility of the recantation and the victim/witness’s original testimony.

Fleming v. State

No. PD-1250-12        6/18/14

Issue:

Is sexual assault based on the age of the victim under Penal Code §22.021(a) unconstitutional for failing to require the State to prove a defendant had a culpable mental state related to the victim’s age and for failing to recognize an affirmative defense based on the defendant’s reasonable belief that the victim was 17 years of age or older?

Holding:

No. Section 22.021 is not unconstitutional under 14th Amendment or the due course of law provision of the Texas Constitution for failing to require the State to prove that the defendant had a culpable mental state regarding the victim's age or for failing to recognize an affirmative defense based on a belief that the victim was 17 or older.  Read opinion

Concurrence (Cochran, J.):

For the reasons set out in Judge Cochran’s concurring opinions in Celis v. State,416 S.W.3d 419, 441-58 (Tex. Crim. App. 2013) and Farmer v. State, 411 S.W.3d 901, 908-18 (Tex. Crim. App. 2013), the concurrence contends that the Texas statutory mistake-of-fact defense already applies to the offense of consensual statutory rape. “Nonetheless, I recognize that this is not the current state of the law in Texas, and therefore I reluctantly join the majority opinion.” Read opinion

Concurrence (Alcala, J.):

The concurrence notes that the majority opinion is consistent with U.S. Supreme Court precedent and contends that reporting and prosecution of statutory rape would be negatively impacted by recognizing a mistake-of-fact defense. The concurrence would also find that the defendant’s mistake of fact claim in this case is unreasonable. Read opinion

Dissent (Keller, P.J.):

The dissent would hold that under Lawrence v. Texas, 539 U.S. 558 (2003), in limited sexual assault of a child cases, due process requires submission of an affirmative defense of reasonable mistake of age. Read opinion

Commentary:

The bottom line is that this decision reaffirms that aggravated sexual assault of a child (called “statutory rape” in other contexts and other jurisdictions) is a strict liability offense. If a defendant engages in the conduct, he is guilty of the offense, regardless of whether he was mistaken about the age of the victim. Presiding Judge Keller’s dissent is interesting, but it is doubtful that the United States Supreme Court will review whether the common holding about statutory rape has been changed by implication based upon Lawrence v. Texas.

Guerra v. State

No. PD-0318-13        6/18/14

Issue:

May a federal Immigration and Customs Enforcement (ICE) agent stop and temporarily detain a defendant suspected of being in the process of committing a felony?

Holding:

Yes. CCP art. 2.122 gives designated federal investigators—including those from ICE—the power of arrest, search, and seizure in regard to felonies. Read opinion

Commentary:

Article 2.122 has been changed slightly since the version that was applicable in this case, but this decision should have precedential value when faced with the legality of actions taken by a federal investigator. Keep in mind that, pursuant to Article 14.01 of the Code of Criminal Procedure, a designated federal investigator can take any action that a citizen can take for a defendant’s misconduct that constitutes a breach of the peace (even if it is a misdemeanor). But this is the decision to reference when confronted with the validity of a federal investigator’s actions in a non-breach-of-the-peace situation.

Johnson v. State

No. PD-0473-13        6/18/14

Issue:

Did a trial court’s limitation of a defendant’s cross-examination of two witnesses’ criminal history to exposing the fact that the witnesses had been accused of unspecified felonies violate the defendant’s right to effective cross-examination under the Confrontation Clause?

Holding:

No. Because the defendant failed to demonstrate the relevance of evidence of pending first-degree felony theft and first-degree felony robbery charges against the two witnesses, the trial court did not err in preventing the defendant from cross-examining the witnesses about the nature of their pending charges. Read opinion

Commentary:

In this case, the trial judge permitted the defense to cross-examine the State’s witnesses about the type of charges (felonies or misdemeanors) pending against the witnesses, but nothing more. This decision continues the work that the court did in Irby v. State, 327 S.W.3d 138 (Tex. Crim. App. 2010). If a witness has criminal charges (or a deferred adjudication) pending, read this decision, because it can still be applied to require the trial judge to allow for the cross-examination by the defense. The court held that the specific name of the offense was not subject to being asked on cross-examination, but the punishment range for the particular offense could be the appropriate subject of cross-examination in the appropriate case (just not this one).

Rodriguez v. State

No. PD-1189-13      6/18/14

Issue:

To prove felony murder via injury to a child, must the State prove that the injury was inflected by an affirmative act rather than an omission?

Holding:

Yes. While injury to a child can be based on an act or omission, felony murder requires an “act clearly dangerous to human life” to be the cause of the victim’s death. Read opinion

Dissent (Alcala, J.):

“In light of appellant’s claim that she fed the infant with bottles, a fact finder could reasonably determine that her act—repeatedly feeding the baby an inadequate amount—caused him to starve from malnutrition and dehydration.” Read opinion

Commentary:

This decision will make it more difficult to plead and prove felony murder when the predicate or underlying felony offense is injury to a child or any other offense that can be based upon an omission to act, as opposed to an affirmative act. A defendant performing an act that was insufficient for the child will not be enough. For felony murder, the State will need to allege and prove an actual affirmative act that was clearly dangerous to human life and that caused the victim’s death. Thankfully this decision also makes it clear that the defendant was guilty of injury to a child, so the case was remanded only for a new punishment hearing on that lesser charge.

Courts of Appeals

Jones v. State

No. 06-13-195-CR        6/17/14

Issue:

Does Texas’ due course of law provision provide greater protection than the federal due process clause regarding the State’s loss or destruction of evidence in a criminal prosecution?

Holding:

No. The Texarkana court joins eight other courts of appeals in ruling that there is no greater protection under the Texas Constitution and a defendant must show bad faith in failing to preserve the evidence. The court rejected the lone contrary ruling by the Waco court of appeals in Pena v. State, 226 S.W.3d 634, 653 (Tex. App. — Waco 2007), rev’d, 285 S.W.3d 459 (Tex. Crim. App. 2007) (due course of law issue not preserved) that courts should consider the degree of negligence, the importance of the lost evidence, and the sufficiency of other evidence to prove the case. Read opinion

Commentary:

This is clearly the prevailing view, and there is no indication that the Court of Criminal Appeals has any intention of changing it. To show a due course of law violation under the Texas Constitution, a defendant must still show bad faith on the part of the State or law enforcement in the loss or destruction of evidence.

Ex parte Graves

No. 06-14-043-CR       6/16/14

Issue:

Is an application to become a vehicle inspection station filed with DPS a government record under Penal Code chapter 37?

Holding:

No. The application does not become a government record until it is received by DPS, so any false entry made prior to that time does not constitute an offense under Penal Code §37.10. Read opinion

Commentary:

Hopefully, the Court of Criminal Appeals will grant discretionary review in this case because this is an issue that needs to be decided. Such a document should be a governmental record for the purposes of §37.10, even though it had not yet been filed. 

Office of the Attorney General

Request from the Palo Pinto County Auditor

RQ-1206-GA        6/12/14

Question:

Authority of a third party, pursuant to a contract under article 103.0031 of the Code Criminal Procedure, to make changes to a court’s docket, documents, or records. Read request

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