Supreme Court of Texas
No. 14-0797 5/13/16
Who determines the amount of compensation due to wrongfully convicted defendants for unpaid child support?
The comptroller has the authority to determine compensation for unpaid child support under the Texas Civil Practice & Remedies Code §103.001. The total amount of child support, however, is determined by a trial court in an enforcement action, and the comptroller is not required to grant compensation for the full amount of child support imposed. Read.
Kudos to the Legislature for ensuring that children deprived of support due to the wrongful conviction of a parent are compensated. This decision clarifies that the amount of compensation is determined by the Comptroller, not a court with jurisdiction over child support matters.
Court of Criminal Appeals
No. PD-0480-15 5/18/16
Can a defendant raise an as-applied challenge to provisions of Code of Criminal Procedure Art. 102.011 (imposing mandatory court costs) for the first time on appeal?
Yes. A defendant may challenge mandatory court costs for the first time on appeal when those costs were not imposed in open court and the judgment did not contain an itemized list of the court costs imposed, as there was not a previous opportunity to raise the objection. Additionally, a formal bill of exception is not necessary when no additional factual development is necessary for the court to resolve the case. Read.
Appellant prosecutors will hate that the CCA allows a claim to be made for the first time on appeal. But, the Court’s comments on the burden to provide a record to support a claim on appeal will be useful in the future. Other than that, the tilting at the court cost windmill continues. Sancho, bring me my helmet and lance!
Courts of Appeals
Cox v. State (2nd COA)
No. 02-14-00399-CR 5/12/16
Does Texas have jurisdiction over a sexual assault of a child committed in Juarez, Mexico?
In this case, yes. The court found jurisdiction under Texas Penal Code §3.01, because the sexual assault was part of a larger criminal episode that began in Texas. Additionally, Code of Criminal Procedure Art. 13.075 clearly expresses the Legislature’s intent to exercise extraterritorial jurisdiction over criminal conduct involving sexual assault of a child and to otherwise “fill gaps” in statutes regarding crimes against children. The Court also held that the issue of jurisdiction is not a defense or affirmative defense that needs to be presented to the jury. Read.
Concurrence (Dauphinot, J.):
Justice Dauphinot wrote to express her belief that Penal Code §3.01 clearly solves the jurisdiction issue, and there should have been no difficulty proving aggravated kidnapping under Penal Code §20.01(1)(B)(ii) because the victim was 14 and was moved more than 120 miles without parental consent. Read.
Exercise extreme caution in relying on this opinion. The court relies on statutes related to venue—dealing with where a trial should be held—and joinder—dealing with what offenses may be tried together—to hold that the State could prosecute an offense that occurred entirely within Mexico in Tarrant County, Texas. There are limits to what offenses we may prosecute, and those limits are contained within Section 1.04 of the Penal Code.
Pena v. State (8th COA)
No. 08-14-00038-CR 4/27/16
Can the State revoke a defendant’s probation based on the invocation of his Fifth Amendment right in mandated sex offender treatment and counseling?
No. Because the State did not grant the defendant full-use immunity for any statements that could be used against him in potential future cases, the defendant cannot be compelled to make self-incriminating statements in his mandatory treatment program. Because the evidence shows that the defendant was dismissed from treatment for his refusal to make such admissions, the State cannot use his dismissal from the treatment program as the basis for revoking his probation. Read.
The CCA’s decisions undermining use of polygraphs for treatment of sex offenders drive this decision. But there seems to be tension between the court’s holding that the defendant was not granted “full use immunity” and the plea bargain’s term that he would not be charged for other offenses against his daughter. Denial undermines any form of therapy, most especially sex offender therapy. Perhaps what this defendant needed was a trial instead of treatment.
Torres v. State (4th COA)
No. 14-15-00331-CR 5/18/16
Does the trial court have jurisdiction to grant a defendant permission to appeal after the 75-day deadline to grant a new trial has passed?
Yes. While a trial court does not have authority to modify a sentence or grant a new trial after 75 days, Rule of Appellate Procedure 25.2(f) states that a court may amend a defendant’s certification of the right to appeal to correct “a defect or omission” in a previously filed certification “at any time before the appealing party’s brief is filed.” The trial court in this case had the authority to amend the original certification denying the right to appeal, even though 75 days had passed since the judgment in the case. Read.
The certification of right of appeal seems to serve no meaningful purpose and the courts are constantly wrangling with incorrect or missing certifications. Perhaps it is time to do away with that document? More importantly, though, the court is treating the certification as if it is the permission for the defendant to appeal. Essentially, the certification is just a document that reflects other events in the case. Perhaps the better argument is not that the certification needed to be amended within 75 days of assessment of punishment, but rather that the trial court needed to grant permission to appeal within 75 days of assessment of punishment.