Weekly Case Summaries: March 6, 2009

Texas Courts of Appeals 

Fernandez v. State - 4th COA

2/25/09 : Cite No. 04-07-00461-CR : Pro se Representation

Issue

Did the trial court insufficiently admonish the defendant of his right to counsel and of the dangers of representing himself during his trial for evading arrest?

Holding

Yes. The court repeatedly and incorrectly used the term "pro bono" instead of "court appointed." The defendant stated to the court that he believed a "free" attorney would not zealously defend him because that attorney would not be paid and the court made no effort to clear up that misconception in the defendant's mind. There was no inquiry into the defendant's indigency when he informed the court that he could not afford to hire an attorney. Because he was not correctly admonished on his right to appointed counsel, his waiver of that right was invalid.
Read opinion.

Commentary

Pardon me while I scream. This entire reversal is based on the rather specious premise that a pro se defendant had an education in Latin phrases. The court of appeals put great stock in the trial court's misuse of the word "pro bono" and the defendant's supposed interpretation that his lawyer, if appointed, would be working for free. In reality, this guy wanted to represent himself and got to do it. Even so, he got probation, a presumably free appeal and, now, a new trial with, one guesses, a WELL-PAID court-appointed lawyer on retrial. What a waste of time.

Bowley v. State - 7th COA

3/2/09 : Cite No. 07-08-0210-CR : Jury Instruction

Issue

In the defendant's trial for felony DWI, should the trial court have instructed the jury to disregard the State's reference to previous plea negotiations and granted a mistrial?

Holding

Yes. The defendant admitted committing the acts underlying his previous convictions but denied committing the charged offense, stating that was why he had not pled guilty to it. On cross-examination, the prosecutor asked whether the real motivation for not pleading guilty to felony DWI was because there had been no agreement on a plea bargain. From this statement, a reasonable jury could have determined that plea negotiations had occurred, that offers had been made and rejected, and that the defendant's wishes were the major obstacle to reaching a bargain. It also was conceivable that mentioning plea negotiations could mistakenly lead a juror to conclude that the defendant believed himself guilty.
Read opinion.

Commentary

On first glance, it might seem shocking to see that a prosecutor referred to plea bargaining while cross-examining a defendant. And, in addressing such an issue, one might think the court of appeals would simply refer to Texas Rule of Evidence 410 (prohibiting such evidence) and be done with it. Yet, that rule is not once cited. On second glance, the prosecutor may well have had a good reason for referring to plea negotiations: the defendant's testimony informed the jury that he had only admitted guilt in his two prior DWI's because he was guilty and for no other reason (such as finding the plea bargain attractive). That statement was designed to get the jury to believe that he was only pleading not guilty in his third DWI case and going to trial because he was an honest, principled sort of guy who would never try to fool the jury about his guilt. And it may have arguably been admissible as an exception to Rule 410 ("However, such a statement is admissible in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it.") Still, it was an unnecessary part of cross-examination and could have been cured by the trial court simply granting the request for an instruction to disregard after sustaining the objection.

Texas Attorney General Opinions and Requests for Opinions

Opinion Issued to the Fort Bend County Attorney

2/26/09 : Opinion No. GA-0694 : Judicial Salaries

Issue

Must a county consider the longevity pay prescribed in Government Code §659.0445 ($20 per month for each year of service, payable after 16 years of service) when determining the salary for a statutory county court judge under §25.0005(a), providing that a statutory county court judge who does not engage in private practice shall be paid a total annual salary not less than $1,000 less than the total annual salary received by a district judge in the county?

Holding

A county may, but is not required to, consider the amount of longevity pay received by some, but not all district judges, in the county when determining the salary for a statutory county court judge under Government Code §25.0005(a).
Read opinion.

Opinion Issued to the Cameron County District Attorney

2/27/09 : Opinion No. GA-0696 : Court Interpreters

Issue

Is the court interpreter responsible for translating foreign language materials for the district attorney in preparation for a criminal proceeding? Is such work for the district attorney subject to the compensation provisions of Code of Criminal Procedure art. 38.30(b) and (c)?

Holding

No. Foreign language interpreters appointed under Code of Criminal Procedure art. 38.30 in a criminal proceeding are required to interpret for a witness or the defendant. They are not required to perform translation work for the district attorney in preparation for a criminal proceeding, and their compensation does not cover such work. The commissioners court has the authority to prepare the county budget, but it can be enjoined from adopting a budget that fails to provide essential funding for a prosecuting attorney's office.
Read opinion.

Request from the Jefferson County District Attorney

2/11/09 : Opinion Request No. RQ-0784GA : Calculation of Abatement Term

Issue

What is the proper calculation of the maximum term of abatement allowed in a proposed agreement authorized by Tax Code 312.204(a)? May the 10-year maximum term of abatement begin at the date of "substantial completion of the project" or does the 10-year term begin as of the date of execution of the agreement providing for the abatement?
Read request.

Holding

Members with input on this issue may contact the Attorney General's office.


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