Weekly Case Summaries: November 11, 2011

Court of Criminal Appeals

Lucio v. State

No. PD-0659-10 : 11/09/11

Issue:

Did the trial court improperly comment on the weight of the evidence when, in response to jury questions during deliberations, the court instructed the jury that the law does not prohibit a family member from testifying on the defendant's behalf during punishment?

Holding:

No. In Judge Alcala's first published majority opinion, she writes that the general rule prohibiting the court from singling out a particular piece of evidence in its instructions to the jury given prior to jury deliberations does not necessarily apply when the court merely responds to the jury's question concerning a subject identified by the jury alone. The trial court provided a correct statement of law without expressing any opinion as to the weight of the evidence.
Read Opinion 

Dissent:

Judge Meyers believes that the trial court's instruction improperly commented on the weight of a matter outside the scope of the evidence and that the difficulty of measuring the harm of the response should require a new punishment hearing.
Read Dissent

Commentary:

Most judges answer such jury questions by saying, "You already have all the relevant law in the instructions submitted by the court. Please continue deliberating." That Yoda-like answer has saved many a judge from making any mistake. This case may encourage more answers to jury questions, but at what cost?

Harris v. State

No. PD-0945-10 : 11/09/11

Issue:

Was the defendant's right against double jeopardy violated when he was convicted of three counts of indecency with a child by exposure that resulted from a single act of exposure?

Holding:

Yes. The clear language of PC §21.11(a)(2)(A) (indecency with a child by exposure) indicates that the exposure, not the number of children present, constitutes the unit of prosecution. The child victim's name is not a necessary element of proof, and the defendant committed only one offense when he exposed himself to three children.
Read Opinion 

Dissent:

Presiding Judge Keller writes that the allowable unit of prosecution in an indecency with a child case should be "each child, each exposure." Because the existence of an actual child victim is an element of the offense, an indictment for indecency with a child by exposure must allege the name of the child victim, just as the name of a victim must be alleged in an indictment for any other offense that requires a victim.
Read Dissent 

Commentary:

Guess this case answers the question whether a defendant who exposes himself to a stadium filled with children has committed more than one crime. If the Legislature is bothered by the CCA's answer, it can always add language to make it clear that the number of crimes for indecency with a child by exposure is defined by the number of child victims. By comparison, each separate image of child pornography is a separate crime.

Morales v. State

No. PD-1155-10 : 11/09/11

Issue:

Did the trial court correctly include a provision regarding a general duty to retreat in a defense-of-others jury instruction?

Holding:

No. PC §9.32 was amended by the legislature in 2007, and no language in the current self-defense statutes calls for determining, as a general matter, whether a duty to retreat exists. Though the matter might still be a relevant evidentiary issue in the prosecution, the unauthorized inclusion of the instruction constitutes a comment on the weight of the evidence.
Read Opinion 

Commentary:

This is the first CCA case on the relatively new "castle" self-defense law. As expected, writing a self-defense charge has gotten more complicated, particularly in the area of "duty to retreat." Anyone trying a case with a potential self-defense issue should read this case very carefully.

Barron v. State

No. PD-1770-10 : 11/09/11

Issue:

In a DWI case where the trial court included an improper "synergistic effect" instruction in the jury charge, did the court of appeals use correct harm analysis under Almanza?

Holding:

No. Although the court of appeals found some harm because the synergistic effect instruction was not raised by the evidence, the court's harm analysis merely repeats its error analysis. Proper analysis requires assaying the degree of harm in light of the entire jury charge and record as a whole. Nonetheless, the error was harmful because the instruction emphasized a particular theory of intoxication not supported by the evidence.
Read Opinion

Dissent:

Presiding Judge Keller would remand the case for harm analysis to determine if error even occurred in light of the recent Ouellette case.
Read Dissent 

Commentary:

Presiding Judge Keller's dissent raises an obvious issue that should have been addressed. Why isn't this case just like Ouellette, which allowed the issue of a drug-based intoxication to be raised and decided by circumstantial evidence? Unfortunately, the CCA only granted PDR on the issue of harmless error. Still, the CCA could have granted review on the merits on their own motion and remanded the case for reconsideration in light of Ouellette.

Goad v. State

No. PD-0435-11 : 11/09/11

Issue:

In a burglary of a habitation case, did the trial court correctly deny the defendant's request for a lesser-included offense instruction on criminal trespass?

Holding:

No. Testimony from the victim that the defendant had told her he was looking for his dog and argued with her that she was being unreasonable 15 minutes before he entered the home is affirmative evidence germane to whether the defendant lacked the intent to commit theft. Direct evidence of the defendant's lack of intent to commit theft is not necessary to support a criminal trespass instruction.
Read Opinion

Commentary:

Ah, the old I'm-looking-for-my-dog alibi barks again. The lesson, once again: be generous in granting requests for inclusion of lesser-included offenses in the jury charge.

Zuliani v. State

No. PD-0884-11 & PD-0885-11 : 11/02/11

Issue:

Did the court of appeals fail to consider legislative intent in its double jeopardy analysis when the defendant was convicted of both reckless driving and deadly conduct?

Holding:

Yes. Impermissible multiple punishment occurs when the same criminal act is punished twice under two distinct statutory provisions and the Legislature intended the conduct be punished only once. The case is remanded to the court of appeals to consider legislative intent.
Read Opinion 

Commentary:

This guy has had more written about his criminal exploits than Billy the Kid. You may recall that Zuliani was prosecuted years ago for the causing the death of a young boy. He eventually was convicted of manslaughter after a successful appeal of a conviction for injury to a child. Much discussion of double jeopardy in those appeals.

Texas Attorney General

Request from Brazoria County Criminal District Attorney

RQ-1012-GA : 11/08/11

Issue:

Regarding the detention of an adult-certified juvenile under CCP art. 4.19.
Read Request 

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 [email protected] In addition, if you would like to discuss the summaries with fellow prosecutors, look for the thread in our criminal forum.