Weekly Case Summaries: March 20, 2009

Texas Court of Criminal Appeals

Kirkpatrick v. State

3/18/09 : Cite Nos. PD-0873-07 and PD-0874-07 : Trial Court Jurisdiction

Issue

Did the district court have subject-matter jurisdiction of forgery-related offenses when the offenses were charged as misdemeanors?

Holding

Yes. Although the indictment properly charged a misdemeanor and lacked an element necessary to charge a felony, the felony offense did exist, and the indictment's return in a felony court put the defendant on notice that charging the felony was intended. The defense made did not object to the charging instrument before the trial and first complained of the missing elements in a motion for instructed verdict. The court of appeals incorrectly concluded that these indictments failed to satisfy the constitutional requirement of subject-matter jurisdiction and did not vest the district court with jurisdiction. The Court of Criminal Appeals withdrew its previous opinion and has substituted this one. (See Case Summaries - December 19, 2008).
Read opinion.

Commentary

Although the State won this case, it is worth recalling what Judge Womack once said about the "pernicious doctrine" of fundamental charging error: "I believe that if this Court were abolished, its chambers demolished, the ground plowed up, and the site paved over, one day a crack would appear in the concrete, and through that crack a black-robed arm would thrust an opinion that says, 'We hold that the indictment in this case was not an indictment.'" Duron v. State, 956 S.W.2d 547, 555 (Womack, J., concurring). Prosecutors must be vigilant to keep that from happening.

Texas Courts of Appeals

Golden v. State - 1st COA

3/10/09 : Cite Nos. 01-08-00575-CR and 00576-CR : Bond Reduction

Issue

Was the defendant entitled to a bond reduction in his two drug possession cases, one for possession of less than one gram and the other for one to four grams and both enhanced with previous felony drug convictions, where bond was set at $200,000 for each offense?

Holding

Yes. The defendant introduced evidence that he was a businessman, living with his wife in the area. Prior to his arrest, he attended drug and alcohol abuse counseling in the same community. He produced evidence that, if released on bond, he would have assistance with employment, could resume his counseling, and would have support from a church and the community. Both his wife and a business associate testified that the defendant would appear at trial. Comparing the bail amount for similar cases where the defendant's indictment is enhanced, but the offense was non-violent, the court found this bail amount excessive.
Read opinion.

Concurrence

Justice Sharp concurred with the court. However, he points out the directive nature of Code of Criminal Procedure art. 17.15(4), which requires the trial court to consider and evaluate the defendant's ability to make bail. In the absence of direct proof offered by the defendant, the statute requires the trial court, sitting in the capacity of magistrate, to elicit testimony on the defendant's ability to make bail. Here, while there was testimony that a bondsman was willing to post a $5,000 bond, that was evidence only of what the bondsman was willing to risk, not evidence of the defendant's ability to make bond. Without regard for the defendant's ability to make bail, the trial court set bail at $200,000 in each case. In doing so, the trial court failed to perform the duty imposed by article 17.15(4).
Read concurrence.

Commentary

The court of appeals places little if any weight on the fact that the defendant committed two drug crimes while on parole and faces a punishment range of 25-99 years or life in prison. This bail setting business is mysterious. One doubts, though, that the defendant can make the bail set by the court of appeals. And all may soon be moot if the Parole Board issues a blue warrant

Grissam v. State - 2nd COA

3/12/09 : Cite No. 2-05-422-CR : Jury Charge

Issue

In the defendant's conviction and 12-year sentence for burglary, was the jury properly charged when the abstract paragraph of the jury charge contained only an instruction on "intent to commit theft," but the application paragraph contained only an instruction on "committed or attempted to commit theft?"

Holding

Yes. The defendant and his accomplice entered the home through the back door without permission. They wiped their fingerprints from the outer, metal screen door. Despite it being midday, one carried a flashlight. The defendant instructed the women waiting in their car to honk if anyone drove up. The car was parked in the carport where it was concealed from traffic on the road. When the resident confronted the defendant and his accomplice, the men gave conflicting reasons for being in the house. A rational jury could find the essential elements of burglary, including intent to commit theft, as alleged in the indictment.
Read opinion.

Dissent

Justice Dauphinot wrote that minimal constitutional due process protections require a jury not to find the abstract elements of the offense, but the actual acts alleged in indictment. When the State abandons an allegation, then it is no longer available to be reclaimed; if the State's abandonment of the wrong allegation does not render the proof insufficient, then here it must at least constitute charge error because the offense described in the definition section of the jury charge was not the offense submitted in the application paragraph.

Commentary

Practice point: prepare your own jury charge and read it out loud to yourself before trial. You will be amazed at how much you learn and how many mistakes you avoid. Meanwhile, Judge Dauphinot, in dissent, tries to school the CCA on sufficiency of the evidence theories.

Alexander v. State - 6th COA

3/11/09 : Cite No. 06-08-00176-CR : Exercise of Religion

Issue

Was the defendant improperly denied his constitutional right to exercise his religion when the trial court required him to keep a Bible, that he wanted to display on the defense counsel's table, in a less prominent position?

Holding

No. There is nothing to indicate that the defendant's religious practices or beliefs required him to prominently display his Bible during the trial. There is no evidence that he had it for reference or even for comfort. The trial court did not deny the defendant access to his Bible any time he wanted to use it in a conventional way. His actions suggested only that he wanted the jury to see it sitting in front of him.
Read opinion.

Commentary

This case should be kept handy for when the prosecutor sees the defendant has decided to wear a large cross hanging from a chain around his neck as his defense to the charged crime. But, what if the defendant takes the Bible to the witness stand with him?

Perez v. State - 7th COA

3/11/09 : Cite No. 07-08-0327-CR : Attorney's Fees

Issue

Upon the defendant's guilty plea and conviction for delivery of a controlled substance, did the trial court improperly assess attorney's fees of $1,250 in addition to his sentence of 25 years, when he had previously completed a form to secure a court-appointed attorney and indicated that he was unemployed and living with a relative?

Holding

Yes. There is nothing to show how the trial court arrived at the amount for attorney's fees, nor is there any evidence to show that the defendant could pay that amount. There was no itemized statement from defense counsel illustrating the number of hours worked or what sum would constitute a reasonable fee under the circumstances.
Read opinion.

Commentary

How was anyone going to enforce the order for the defendant to pay the attorney fees while serving a 25 year prison sentence? Note, though, that nothing prevents the judge from rehearing the matter and reinstating the order should evidence of ability to pay be forthcoming. Some jurisdictions are collecting such money from prison commissary accounts.

Texas Attorney General

Opinion Request from the 79th Judicial District

3/9/09 : RQ-0786-GA : Bail Bond Board Administrative Fee

Issue

Does Texas Occupations Code §1704.101 allow the county bail bond board to collect an amount of money (designated as an administrative fee) from bonding companies or bondsmen to provide for the cost of the bail bond administrator? Could such a fee be collected either at the time the county bail bond board licenses the companies or bondsmen or collected each time the bonding company or bondsmen post bond for arrestees?
Read request.

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