Weekly Case Summaries: March 2, 2012

Court of Criminal Appeals

Avery v. State

No. PD-0864-11 : 02/28/12

Issue:

Was the defendant entitled to an acquittal for attempting to obtain a controlled substance "through use of a fraudulent prescription form" in violation of Health & Safety Code §481.129(a)(5)(B)?

Holding:

Yes. The State charged the appellant with attempting to obtain a controlled substance "through use of a fraudulent prescription form," but presented evidence that the defendant fraudulently altered information that was handwritten on a legitimate prescription form. A "prescription form" refers to the pre-printed form a doctor completes by writing the prescription information on it. The written prescription information is not part of the form.
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Commentary:

This case is a good lesson in how prosecutors need to make sure they read the fine print in the Penal Code. The CCA's opinion is logical and draws a clear line between a fake prescription form and a real prescription form that has forged information written onto it. And, given double jeopardy concerns, that sort of research should be done carefully before trial.

Texas Court of Appeals

Brown v. State – 1st COA

No. 01-10-00431-CR : 2/23/12

Issue:

Did the trial court wrongly deny a continuance when the defendant shot himself before the defense rested its case at guilt/innocence?

Holding:

Yes, under CCP art. 46B.003(a), because the defendant was in intensive care and the record contained no evidence that he had either (1) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or (2) a rational as well as factual understanding of the proceedings against him. The trial court was required to stay all proceedings in the case pending a competency examination and incompetency trial.
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Commentary:

There is a tension here between the law allowing a trial to continue if the defendant voluntary absents himself and the need to determine midtrial whether a defendant has lost his competency to stand trial. The State was right to concede that a competency hearing must take place before sentencing, but it is not so clear that the trial itself had to stop for such a hearing when the defendant was the one who caused the interruption. Look for a PDR on whether there must be a new trial or whether it is enough for the trial judge merely to hold a competency hearing before resentencing. Doesn't sound like the defendant will live long enough to find out the answer to that question.

Jackson v. State – 7th COA

No. 07-10-00488-CR : 2/23/12

Issue:

After the trial court entered a judgment revoking community supervision with an order to withdraw funds, did it improperly enter an amended order to withdraw funds 50 days later?

Holding:

Yes, absent the filing of a post-trial motion or evidence of the trial court entering an order nunc pro tunc. The trial court lost authority to amend the judgment 30 days after it imposed sentence in open court.
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Commentary:

There has been a lot of litigation over the last few years over orders withdrawing money from inmate accounts to pay off fines and restitution. Here, the order was improper simply because it was entered on a judgment well outside the 30-day period of time for amending judgments. The court still might be able to impose the order following notice and a separate civil hearing.

Flores v. State – 14th COA

No.14-11-00097-CR : 2/28/12

Issue:

Under the 4th Amendment and CCP art. 15.03(a)(2), does a magistrate (rather than an assistant district attorney) have to administer the oath before an officer swears to the facts in a complaint (affidavit)?

Holding:

The 4th Amendment does not require a magistrate to administer the oath, but maybe CCP art. 15.03(a)(2) does. Nevertheless, the custodial statement was admissible under the "good faith" exception to CCP art. 38.23(b). The warrant was issued on probable cause, it is presumed that the "magistrate" is neutral, and the officer acted in objective good-faith reliance upon the warrant when he arrested the defendant, particularly because (1) the officer testified he followed standard procedure in attesting to his complaint and obtaining the warrant and (2) the warrant contained language indicating that the complaint was made under oath.
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Commentary:

No court has held in Texas that state law means an officer must actually swear to the complaint through an oath administered by a magistrate ("shall make an oath before the magistrate"). Indeed, millions of warrants have been sworn before persons other than magistrates (peace officers, clerks, prosecutors, etc.) and then delivered to the magistrate. Seems like the court of appeals shouldn't keep dodging this issue by citing the good faith exception.

Texas Attorney General

Opinion for Erath County Attorney

Opinion No. GA-0913 : 02/27/12

Issue:

Is an eight-liner machine that dispenses tickets for prizes redeemable only at the bingo hall in which the machine is located a "gambling device" within the meaning PC §47.01(4)?

Opinion:

Yes. The machines issue tickets redeemable for items that are not noncash merchandise prizes, toys, or novelties. If an eight-liner machine is designed, made, or adapted as anything other than a pure amusement device, the machine cannot meet the gambling device exception in PC §47.01(4)(B) and is therefore illegal.
Read Opinion 

Commentary:

How many times must a court or AG opinion repeat this to the gaming industry? As Juliet said, "What's in a name? That which we call a rose by any other name would smell as sweet." Or, perhaps more appropriately, "You can put lipstick on a pig, but it's still a pig." 

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