Texas Court of Criminal Appeals
No. PD-1326-13 9/24/14
When a registered sex offender told an officer he had changed addresses without notifying the local police department a week in advance, was that testimony alone sufficient to convict the defendant for failure to register?
Yes. That testimony, if believed, was sufficient to allow the jury to determine that the defendant intended to change his residence and was required to notify law enforcement. However, the jury charge in this case included an instruction that was not supported by the indictment, and the case was remanded for a harm analysis. Read the opinion.
Dissent (Cochran, J.):
The State actually pled and proved different things in the case. The State pled that the defendant had failed to notify law enforcement seven days before moving, but the State then proved the defendant failed to notify law enforcement seven days after moving. Read the dissent.
What stands out about this case is lack of attention to the jury charge—the offense in a jury charge needs to match up to the offense alleged in the indictment. In reviewing a jury charge, prosecutors will always be well-served to take it off to a quiet place with a copy of the indictment and TDCAA’s Criminal Laws of Texas book and go through it paragraph by paragraph, definition by definition, to make sure the charge is right. Thirty minutes spent on a jury charge may save a case, while 30 minutes spent thinking about a jury argument probably will not. The dissent misses the point that the same facts basically prove both manners and means of an address-change-notification failure to register as a sex offender. The dissent is correct, though, that the State should probably indict both manners and means every time.
No. PD-0153-14 9/24/14
Was the defendant entitled to a new trial on the basis of newly discovered evidence after the appeals court analyzed only two of the four prongs of the Keeter test and found for the defendant?
No. Rule 47.1 of the Texas Rules of Appellate Procedure requires the court of appeals to hand down a written opinion “that addresses every issue raised and necessary to the final disposition of the appeal.” The State argued against all four of the prongs of the test, and the appeals court was bound to address all of the State’s argument. Read the opinion.
This is a good win for appellate prosecutors. We often must make multiple related arguments in support of a conviction. Here, the CCA indicates that it will enforce the rules and make the courts of appeals at least address our arguments. It will be interesting to see whether the court of appeals changes course on remand.
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