Weekly Case Summaries: September 16, 2016

Fifth Circuit Court of Appeals

US v. Castillo-Rivera

No. 15-0615        9/2/16

Issue:

Does a conviction under Texas Penal Code §46.04 prohibiting possession of a weapon by a felon qualify as an aggravated felony under 8 U.S.C. §1101(a)(43)?

Holding:

Yes. Existing precedent, Nieto Hernandez v. Holder, 592 F.3d 681 (5th Cir. 2009), has concluded that §46.04 fits within the definition of an “aggravated felony” under 8 U.S.C. §1101(a)(43)(E)(ii). Read.

Concurrence (Dennis, J.):

Judge Dennis agrees that existing precedent requires §46.04 to be considered an aggravated felony; however, he urges an en banc rehearing to change the existing precedent based on his belief that 46.04 criminalizes more conduct than is described in 8 U.S.C. §1101(a)(43) and thus should not automatically be considered an aggravated felony. Read.

Commentary:

This decision is of more interest to the defense because of the immigration consequences attached to aggravated felonies.

Court of Criminal Appeals

Byrd v. State

No. PD-0213-15                 9/14/16

Issue:

If a defendant commits a second offense while on parole for a first offense, can a trial court stack the second sentence on top of the first sentence, even if parole on the first sentence has not yet been revoked?

Holding:

No. The timing of the parole revocation is key—if parole has already been revoked at the time of sentencing, as in Ex parte Wrigley, the trial court may stack the second sentence on top of the original sentence. However, if, as in this case, parole for the first offense has not yet been revoked, a cumulation order from the trial court is invalid because a defendant in that scenario has “made parole” and his sentence has “ceased to operate” under Code of Criminal Procedure Art. 42.08. Read.

Commentary:

This decision points out one of the problems with the general tendency that parole is never revoked prior to disposition of new charges—defendants who have earned consecutive sentences based upon repeat criminal convictions rendered ineligible for consecutive sentences because of bureaucratic delay. Indeed, where the prison system has capacity issues, there may even be an incentive to delay parole revocation so as to limit the number of stacking orders.

Sanchez v. State

No. PD-0372-15                 9/14/16

Issue:

Can a defendant be convicted of a third-degree felony for assaulting his spouse, based solely on their past dating relationship?

Holding:

Yes. In this case, the defendant and victim were common-law spouses at the time of the assault, but the defendant was charged with the third-degree felony of “impeding the breathing or circulation of [victim], someone with whom he ‘has or has had’ a dating relationship.” The court found that the plain meaning of “has had” in the statute would encompass all previous dating relationships, regardless of whether they ended by dissolution or marriage. Read.

Commentary:

Texas prosecutors would be well-advised to invest in a good guide on grammar. The court rejects a number of textual challenges to this application of the statute. Perhaps law schools, too, should invest time in reviewing law students on the differences between present perfect tense and past perfect tense.

Williams v. State

No. PD-1124-15                 9/14/16

Issue:

Does imprecise language in an oral statement at the plea hearing require the State to dismiss the murder case against this defendant?

Holding:

No. At the plea hearing, the defense made a statement that as part of the plea agreement, the State would “refuse prosecution of any other case in which the State has notice.” The defendant sought to rely on this language to dismiss an unrelated murder case against him, of which he argued the State had notice at the time of the plea. Because the court found these oral terms to be ambiguous, it applied a limited construction of the plea term—that the State agreed not to file any other related cases of which it had notice. Because the murder case was unrelated to these cases, it was not included in the terms of the plea agreement. Read.

Commentary:

This litigation—and litigation related to voluntariness of the plea in the underlying cases—could have been avoided had the parties referenced the related cases in a better fashion. For instance, reference to the nature of the other offenses (burglary, injury to a child, murder), the dates of the other offenses, or even the police service numbers of the other offenses would have nipped this case in the bud and prevented the litigation the Court foreshadowed in its final footnote. While the ambiguous nature of the oral statement was clarified in favor of the State this time, the parties very often will not agree on just what the “related” offenses were.

State v. Sutton

No. PD-1051-15                 9/14/16

Issue:

Did the defendant, a police officer employed by a school district police department, work for or at a specific high school for purposes of Penal Code §21.12?

Holding:

No. In this case, the defendant was employed by the Conroe ISD police department but did not specifically work for or at Caney Creek High School or in the CCHS feeder system. The plain language of Penal Code §21.12(a) does not encompass the defendant in his position as a school district employee, and there is not sufficient evidence to show he worked for or at CCHS. Read.

Commentary:

This case would also stand for the proposition that officers assigned to a school by a local police department are not covered by §21.12. It would seem to cover officers employed by an ISD police department who are assigned to the school the victim attends.

Texas Courts of Appeals

Nelson v. State (11th COA)

No. 11-14-00276-CR         9/8/16

Issue:

Does the State have to prove a defendant lost both mental and physical faculties to prove intoxication?

Holding:

No. If the State can prove the loss of mental or physical faculties, a jury is entitled to find a defendant intoxicated. In this case, a jury found the defendant guilty after an officer testified that he believed the defendant had normal use of his mental faculties; however there was ample evidence of the loss of physical faculties. Read.

Commentary:

A straightforward decision consistent with existing precedent. This argument stems from testimony by one of the officers that the defendant lacked the normal use of his physical faculties but not his mental faculties.

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