Weekly Case Summaries: October 5, 2012

Court of Criminal Appeals

Vasquez v. State

No. PD-0321-11      10/3/12

Issue:

Did the failure to include a definition of the law of parties in the application paragraph of the jury charge cause per se harm to the defendant in an aggravated robbery case?

Holding:

No. The court must conduct an Almanza analysis to determine whether errors in the jury charge amount to reversible harm. The abstract portion of the jury charge included three paragraphs on the law of parties, and the application paragraph referenced that definition; the evidence at trial supported the theory that the defendant was guilty only as a party; and the arguments of counsel explained the law of parties and its application to the case. Nothing in the record indicated the jury was misled by the court’s charge. Read opinion

Concurrence (Price, J.): 

The facts of the case were sufficiently distinguishable from those in Johnson v. State, 686 S.W.2d 157 (Tex. Crim. App. 1987). It was unnecessary for the Court to overrule it. Read concurrence

Commentary:

This decision is consistent with the court’s more recent jurisprudence concerning the law of parties in the jury charge. Typically the error will be harmless because of the nature of the State’s evidence and the nature of the State’s argument. It is important that the court overruled the older Johnson decision to reaffirm that a harm analysis does, in fact, apply. The bottom line is that this is a decision of most interest to appellate lawyers. If you are relying on the law of parties at trial, in part or otherwise, make sure that the law of parties is in the application paragraph, as well as the definition or abstract portion of the jury charge.

Texas Courts of Appeals

Rabb v. State

No. 07-11-00078-CR      9/28/12

Issue:

In a tampering with physical evidence case, was the evidence sufficient to show that the defendant, knowing an investigation was in progress, destroyed an item?

Holding:

No. The evidence showed the defendant concealed—but did not destroy—the baggie of drugs by swallowing them. Read opinion

Commentary:

Do we need to present evidence of the human body’s digestive system to show that something that is swallowed is thereby destroyed? At least for the purposes of this statute? I hope that the Court of Criminal Appeals reviews this decision, but that is not a guarantee that the decision will be overturned. This decision speaks about the “overlap” among the various ways to commit this particular offense. The court has previously addressed a statute with alleged “overlap” issues, and the court did not issue a State’s-oriented decision. See Avery v. State, 359 S.W.3d 230 (Tex. Crim. App. 2012). If you want to make sure that you avoid the issue raised by this case, it might be possible to plead all of the possible ways in which the offense was committed.

Rivera v. State

No. 09-11-00267-CR      9/26/12

Issue:

Did a trial court deny a capital murder defendant’s federal and state rights of confrontation by permitting an overseas, active-duty soldier to testify by live video conference (Skype)?

Holding:

No, not where the defendant failed to request a continuance or a recess to await the soldier’s return. The preference for having witnesses testify in the courtroom must give way to the practical considerations involving a witness’s military obligation that made his physical presence impractical. Read opinion

Commentary:

This is an interesting decision, but there is not a lot of analysis. I would imagine that the Court of Criminal Appeals may want to review this decision. If you want to decide whether a Texas criminal defendant’s face-to-face Confrontation rights are going to be protected during a particular procedure, you must start with Coronado v. State, 351 S.W.3d 315 (Tex. Crim. App. 2011), which is not mentioned in this decision.

Newsome v. State

No. 11-09-00222-CR      09/27/12

Issue:

In a multi-count, multi-paragraph aggravated sexual assault case, did the jury charge fail to require a unanimous verdict?

Holding:

Yes. Absent a unanimity instruction under each count, the State’s election was insufficient to ensure jurors were unanimous on a particular paragraph under each count. Read opinion

Commentary:

This is an unfortunate decision. It is situations like this that caused the Texas Legislature to create the continuous-sexual-abuse-of-a-child offense, under which there would be no unanimity issue.

Texas Attorney General

Request from 49th Judicial District Attorney

 RQ-1083-GA    :    9/13/12

Issue:

Whether under the Texas Open Meetings Act a member of a city council may leave a public meeting and confer privately with city employees in the absence of a quorum. Read request

Commentary:

This appears to be directed at a very specific issue in a very specific case. I do not see the resulting opinion having much wide application.

Request from Pete Gallego, Chair, House Committee on Criminal Jurisprudence

RQ -1085-GA    :    10/2/12

Issue:

Whether a magistrate has a mandatory duty to admonish an arrested person as required by CCP art. 15.17, irrespective of the arrested person’s wishes. Read request

Commentary:

This is directed at a practice that is apparently occurring in Travis County, known as the “Hobby Rule.” After Lt. Governor Bill Hobby was arrested for DWI in the 1960s, a judge ruled that retained attorneys could waive magistration under art. 15.17 on behalf of their clients, allowing them to be released from jail with the promise they will return the next day to post bond. It will be interesting to see how the Attorney General answers this. And it will be interesting to see what legislation is introduced this upcoming session to confront this issue.

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