Weekly Case Summaries: May 3, 2013

Texas Courts of Appeals

Burd v. State

No. 01-11-00368-CR        4/26/13

Issue:

In a trial on the offense of aggravated assault with a deadly weapon where the defendant was instead convicted of the lesser-included offense of deadly conduct, did the court, which had submitted a self-defense instruction for the primary charge, wrongly fail to apply the instruction to the lesser-included offense?

Holding:

Yes. The language in the abstract instruction on self-defense, “as set above,” did not reach deadly conduct. Even though the defendant failed to object to the charge, the error was harmful and a new trial is required.
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Commentary:

This is a rather complex case, both legally and factually.  The court of appeals essentially agreed with the defendant’s argument that the jury must have acquitted the defendant of aggravated assault based upon self-defense and that they likely would have done so for the offense of deadly conduct if they had been clearly instructed that self-defense applied to deadly conduct.  Let’s hope that the Court of Criminal Appeals will review this decision, but the analysis of the court of appeals in this case is thorough.  It may be difficult to get the decision overturned.

Alvarez v. State

No. 08-11-00160-CR        4/24/13 (not design. for pub.)

Issue:

Was the chief operating officer (a former criminal district judge) of the company manufacturing the SCRAM device—used to monitor transdermal alcohol levels 24 hours a day—qualified to testify as an expert?

Holding:

Yes. Although the witness lacked formal training as a scientist, he had obtained knowledge through study, training, and experience. He demonstrated an understanding of the scientific theories involved with SCRAM, how those theories are applied through operation of the device, and proper interpretation of the data collected by the device.
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Commentary:

The odds of having a former judge attempting to testify as an expert witness are probably pretty low.  But the analysis in this decision could be applied to the testimony of an officer, social worker, or any witness who gains his expertise based upon long training and experience.  This opinion should also be helpful with a witness testifying about how a SCRAM device works.

Texas Attorney General

Opinion for Tarrant County Criminal District Attorney

Opinion No. GA-1002        4/29/13

Issue:

Does a county auditor have the right to access inmate property in a county jail to compare it with inmate property receipts?

Opinion:

Yes. Local Government Code §§112.006 and 115.001 allow a county auditor to access inmate property stored by a sheriff at the county jail, subject to the sheriff’s reasonable conditions on that access.
Read opinion

Commentary:

If this issue comes up, read this opinion carefully, as well as the previous Attorney General Opinions that are cited in the opinion.  The opinion makes clear that auditors do not have unlimited authority in this regard, so review the various opinions to see how a particular controversy is affected.

Opinion for Chair of the Senate Committee on Education

Opinion No. GA-1003        4/29/13

Issue:

Does art. I, §32 of the Texas Constitution preclude local political subdivisions from recognizing domestic partnerships by granting benefits to their employees that were previously only available to married couples?

Opinion:

Yes. The political subdivisions at issue had not simply provided health benefits to the partners of their employees. Instead, they had created the legal status of “domestic partnership” that is similar to marriage. This violates the clear and unambiguous language of art. I, §32.
Read opinion

Commentary:

If the United States Supreme Court’s decisions in Windsor v. United States and/or Hollingsworth v. Perry are decided on the merits, you will want to read the language in those decisions to determine what effect, if any, they have upon the validity of Article I, §32.  But as it stands right now, this opinion was a rather straightforward reading of the text of, and legislative background behind, that constitutional amendment.  As is often the case on issues like this, however, the United States Supreme Court may have the last word.

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