Weekly Case Summaries: May 24, 2013

Court of Criminal Appeals

Ex parte Denton

Nos. AP-76,801 & 76,802        5/22/13

Issue:

Did the defendant’s convictions for both aggravated robbery and aggravated assault against two victims constitute a double jeopardy violation?

Holding:

Yes. Although the allowable unit of prosecution for robbery is each victim and the two aggravated robbery convictions should be allowed to stand, the aggravated assault convictions must be set aside because as pled, they were lesser-included offenses of aggravated robbery. Multiple punishments for aggravated robbery and aggravated assault violate double jeopardy prohibitions.
Read opinion

Concurrence (Keller, P.J.):

The majority did not fully address all aspects of the double jeopardy analysis.
Read concurrence

Dissent (Meyers, J.):

The court failed to conduct a harm analysis, despite its January 9, 2013, decision in Ex parte Parrott, No. AP-76,647 requiring harm to be shown in a habeas application premised on an illegal-sentence claim. The defendant cannot show harm because the aggravated assault sentences are running concurrently with the aggravated robbery sentences.
Read dissent

Commentary:

The State took a neutral position in this application for a post-conviction writ of habeas corpus, and it appears that the court reached the right result. Nevertheless, Judge Keller’s concurring opinion does appear to be the more complete analysis. The bottom line is that since robbery is an assaultive offense, the State should not be permitted to gain a conviction for both robbery and assault if the assault is exactly the same conduct for both offenses.

Davison v. State

No. PD-1236-12        5/22/13

Issue:

Did the trial court’s failure to fully admonish the defendant as to the applicable range of punishment under CCP art. 26.13 necessarily amount to a due process violation, rendering the defendant’s guilty plea involuntary?

Holding:

No. Violation of the statute does not necessarily constitute a due process violation, so long as the entirety of the record reflects the defendant was actually aware of the range of punishment. And although neither the statutory claim nor the constitutional claim was forfeited when the defendant failed to object, the defendant failed to show harm under TRAP 44.2(a) for his constitutional claim or 44.2(b) for his statutory claim.
Read opinion

Concurrence (Johnson, J.):

The court should adopt a new name for the process of “harmless error analysis”, as this label is confusing and leads to improper application by the lower courts of appeal.
Read concurrence

Commentary:

Of course, the best practice is to admonish a defendant as to the full range of punishment. Absent that, you can never be absolutely sure that the record will sufficiently show that the defendant was actually aware of the range of punishment. If—after the plea of guilty—you realize that a trial judge has failed to fully admonish your defendant as to the full range of punishment, it would be a good idea to get on the record that the defendant was still actually aware of the full range of punishment. The other nuances of this decision will have interest only to appellate lawyers.

Texas Courts of Appeal

Youkers v. State

No. 05-11-01407-CR        5/15/13

Issue:

Did the trial judge’s Facebook communications, initiated by the victim’s father, constitute an ex parte communication demonstrating impartiality and bias?

Holding:

No. 1) The trial judge’s actual relationship with the victim’s father was limited, and 2) his prompt and clear measures on Facebook, to the parties’ counsel, in the court’s file, and to the judicial conduct committee ameliorated any problem.
Read opinion

Commentary:

This decision is remarkable, both for the thorough steps that the trial judge took to remedy any possible taint that could have been caused by the Facebook communication, and for the thorough explanation of the various duties that judges have with regard to social media. If a similar claim of bias is leveled at a trial judge, he could do himself a great favor by following the extensive steps that the trial judge in this case took.  You should expect this decision to be referenced frequently in the future in judicial ethics speeches, especially in light of the extent to which social media has permeated our society.

Morsman v. State

No. 06-12-00199-CR        5/21/13 (not desig. for pub.) 

Issue:

Was a trial judge disqualified for representing the defendant during a prior conviction used for enhancement?

Holding:

No. The trial judge’s service as the defendant’s counsel did not come within the meaning of “counsel in the case” as used in the Texas Constitution, CCP art. 30.01, or Texas courts.
Read opinion

Commentary:

The odds of this fact situation occurring in your case are remote to be sure. But this decision does a good job of bringing the case law on the subject together. Keep this decision in mind, especially if you serve in a jurisdiction in which the trial judge did extensive work as a criminal defense lawyer before taking the bench.

United States Golf Association

Rule 14-1b

Issue:

May a golfer anchor his or her putter or forearm against the body when making a putt?

Holding:

No. Both the United States Golf Association and the Royal & Ancient adopted Rule 14-1b, which provides: “In making a stroke, the player must not anchor the club, either ‘directly’ or by use of an ‘anchor point.’” Explanatory notes to the new rule define “direct anchoring” and “anchor point.”
Read rule

Commentary:

Despite opposition from many professionals on the PGA Tour, the USGA and R&A got this ruling exactly right.  Anchoring the putter in golf is the equivalent of leading your witness on direct examination—it is a crutch for the unprepared or unqualified.  The only negative things to say about the ruling are that it is 40 years too late and it should be implemented sooner than Jan. 1, 2016.  Now, if only the American League would get rid of that designated hitter abomination, all would be right with the world.

TDCAA is pleased to offer our members unique case summaries from the U.S. Supreme Court, the 5th Circuit Court of Appeals, the Texas Court of Criminal Appeals, Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The information contained in this email message may be privileged, confidential, and protected from disclosure. Any unauthorized use, printing, copying, disclosure, dissemination of or reliance upon this communication by persons other than the intended recipient may be subject to legal restriction or sanction. Please email comments, problems, or questions to casesummary@tdcaa.com. In addition, if you would like to discuss the summaries with fellow prosecutors, look for the thread in our criminal forum.