Weekly Case Summaries: October 24, 2008

Texas Courts of Appeals

Prudholm v. State - 1st COA

10/17/08 : Cite No. 01-06-00749-CR : Enhancement Using Out-of-State Conviction

Issue

Was there a charge error when the trial court allowed a California felony conviction for sexual battery as an enhancement during the punishment phase in the appellant's trial for sexual assault of a child?

Holding

Yes. Penal Code §12.42(c)(2)(B)(v) requires that an out-of-state statute contain elements that are substantially similar to the elements of one of the listed Texas offenses when used for enhancement purposes. The California offense did not contain elements substantially similar to the Texas elements and carried a punishment that was significantly less severe.
Read opinion.

Dissent

Justice Keyes dissented, writing that there is no significant difference between the elements of sexual battery in California and aggravated kidnapping under Texas law, which is one of the offenses listed in §12.42(c)(2)(B). To exclude the appellant's conviction under an out-of-state law that parallels more than one Texas offense listed, rather than one and only one, is contrary to the statute's purpose.
Read dissent.

Commentary

It is clear that the Legislature intended essentially all sexually oriented offenses from other states to be used to enhance a Texas sex offender's punishment. This California offense--even though it does not have a Texas equivalent--certainly falls in the category of those offenses that the Legislature wished to be used to enhance a Texas sex offender's punishment. For that reason, it should be "substantially similar." Justice Keyes seems to have gotten the better of the argument in this case by noting that the defendant's California conviction was for an offense sufficiently similar to the specific type of aggravated kidnapping under Section 22.04(a)(4) of the Penal Code.

Thompson v. State - 4th COA

10/16/08 : Cite No. 04-07-00565-CR : Victim as Demonstrative Evidence

Issue

Did the trial court err when it allowed the victim's mother to hold the child to show his injuries while the mother testified against the defendant accused of injuring the child?

Holding

No. There was not a clear disparity between the degree of prejudice that the presence of the child victim may have created and the probative value to the jury. Where expert testimony indicated that the child's injuries prevented him from reaching a normal developmental stage, a visual depiction of the child properly allowed the jury to observe the child's current physical condition.
Read opinion.

Commentary

The defendant's claim in this is simply unbelievable. Is he really claiming that he received an unfair trial because the victim's mother showed the jury the injuries that had been inflicted upon the victim--injuries that the defendant himself caused. A criminal trial is about a crime, and oftentimes that crime has been inflicted upon a victim. Excuse us if we want to show the jury that crime, so that we support our burden of proof, the jury's guilty verdict, and the defendant's conviction. The defendant in this case caused severe head trauma to a five-month-old child, including skull fractures on the back and side of his head, bruising on his face and ear, severe bleeding in his brain, and retinal hemorrhages in both eyes. The defendant does not have the victim's mother to blame for that. The defendant does not have trial prosecutor in particular, or the State in general, for that. The defendant has only himself to blame for that. After doing that to this little boy, he should take his 80 years and go away quietly.

McClain v. State - 6th COA

10/17/08 : Cite No. 06-07-00057-CR : Theft of Trade Secrets

Issue

Was an employee guilty of theft of trade secrets when the employee created new documentation based on previously released material and then left to begin his own business, taking that material with him?

Holding

No. Although the employee may have obtained the information wrongfully, he was not guilty of theft of trade secrets. When information is placed in the public domain, it is no longer a trade secret and exclusive ownership rights evaporate. Without an express assignment of his rights or evidence that he was employed for the purpose of developing trade secrets, the employee owned any improvements he made to the materials, subject to any shop rights held by the employer.
Read opinion.

Commentary

Even though the State did not prevail, this is a well-written, and it appears to be a well-researched opinion, although I will admit to knowing little about intellectual property law or the offense of theft of trade secrets. Still, I would anticipate that the Court of Criminal Appeals may want to review this decision because of the unique nature of this area of the law. In the meantime, you should definitely look to this decision if you have a theft of trade secrets prosecution, especially in light of the fact that it is not an often-prosecuted crime.

Arredondo v. State - 11th COA

10/16/08 : Cite No. 11-07-00143-CR : Organized Criminal Activity

Issue

Is evidence of two sexual assaults committed with a co-defendant sufficient to establish the combination required by Penal Code §71.02 for organized criminal activity?

Holding

No. While a rational juror could consider the co-defendant's plea of guilt to sexual assault, that plea alone does not support the appellant's conviction for engaging in organized criminal activity. §71.01 requires three or more people to establish the combination.
Read opinion.

Commentary

Any attempt to prosecute the offense of engaging in organized criminal activity must begin with an understanding of Nguyen v. State, 1 S.W.3d 694 (Tex. Crim. App. 1999), and related cases. We must show in some way an intent to engage in continuous criminal activities. What happened to the victim in this case was horrible, and--thankfully--the defendant's aggravated sexual assault conviction was upheld.

Texas Attorney General Opinions

Attorney General Opinion GA-0671

10/17/08 : Opinion No. GA-0671 : Use of Company Owned by Commissioner

Issue

May a county employ a subcontracting company that is owned by a commissioner?

Holding

Yes. Local Gov't Code §81.002 prohibits a county judge or commissioner from being directly or indirectly interested in a contract with the county. However, Chapter 171 excludes a county judge's or county commissioner's interest in a business entity or real property. Such a contract is governed by Chapter 171 and is not prohibited by §81.002.
Read opinion.

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