Weekly Case Summaries: April 3, 2009

Texas Court of Criminal Appeals

Ex parte Baker

4/1/09 : Cite No. AP-76,031 : Time Credit

Issue

Was the defendant illegally confined when he was rearrested in 2007 after he was sentenced to a two-year state jail term in 2001 and then being incorrectly released from custody only one month into that sentence?

Holding

Yes. The defendant was entitled to credit toward the expiration of his original sentence for the time that he was out of custody following his erroneous release. The correct crediting of his sentence discharged his sentence in 2003.
Read opinion.

Dissent

Presiding Judge Keller wrote that because the defendant purposefully left the country and therefore went beyond the reach of authorities while his sentence was pending, he should be entitled to credit for only the 10 months before he left and not for the remaining 13 months of the two-year sentence while he was abroad and unreachable.
Read dissent.

Commentary

This is just the latest in a series of cases in which the court has held that a defendant is entitled to credit for jail time during a time period in which he definitely was not in jail. Am I the only one who has a problem with this? Okay, so he was incorrectly released. I get that. And maybe he does not have any responsibility to tell the authorities that he was being incorrectly released. Maybe. But does that mean that he gets jail time credit when he was not even incarcerated?

Rey v. State

4/1/09 : Cite No. PD-1687-07 : Child Abandonment

Issue

In overturning the defendant's conviction for child abandonment of his stepson, did the court of appeals misconstrue the statutory meaning of "care, custody, or control" in Penal Code §22.04 (Injury to a Child, Elderly Individual or Disabled Individual) to apply to §22.041(b) (Abandoning or Endangering a Child)?

Holding

Yes. The purpose of both §22.04 and §22.041 is to protect vulnerable individuals and the unambiguous language defining "care, custody, and control" in one is applicable to the other. However, the defendant's status as the child's step-parent alone did not obligate him to care for the child. The State must show that the defendant accepted responsibility to protect, shelter, feed, and care for the stepson.
Read opinion.

Concurrence

Presiding Judge Keller agrees with the decision but disagrees with the Court's analysis of the statute's construction. She writes that the language in §22.04(d) only applies to §22.04, not to other statues in Chapter 22. Without some express language relating §22.04(d) to prosecutions under §22.041, one cannot reasonably say that §22.04(d) unambiguously applies. It is not enough that the statutes are next to each other in the Penal Code and that their sequence numbers are only one digit off. Although both statutes use the same words, the words appear in a different order.
Read concurrence.

Commentary

Presiding Judge Keller's concurring opinion is technically correct. But this is still a much better result than had been reached by the court of appeals. That court had held that the defendant had to be in loco parentis with the child before he could be held to be in "care, custody, and control" of the child. That is WAY too restrictive. This decision will help to clarify that. The Legislature could help even more by making it clear that the definition in Section 22.04(d) also applies to Section 22.041(b).

Sierra v. State

4/1/09 : Cite No. PD-0018-08 : Deadly Weapon Finding

Issue

In the defendant's felony DWI trial, did the trial court correctly find that he used his SUV as a deadly weapon in the commission of the offense?

Holding

Yes. The defendant did not try to brake before he hit the victim's car, despite his own admission that he was almost 250 feet from the car when he first spotted it. Crash reconstruction data indicated that he was traveling at a speed between public roadway speeds (35 miles per hour) and highway speeds, allowing a jury to reasonably find that he had been speeding and failed to maintain control of his SUV. The other driver sustained injuries severe enough to require hospitalization for one month following the crash.
Read opinion.

Dissent

Judge Meyers dissented to say that the defendant was not the cause of this crash, his driving did not cause this crash, his intoxication did not cause this crash and that nothing he did caused serious bodily injury. In Meyers' view, the defendant simply had the misfortune of being involved in a collision with a careless driver who was injured.
Read dissent.

Commentary

This should be a very helpful decision when trying a felony driving while intoxicated case, which could just as easily have been tried as an intoxication assault case or worse. Right after the collision, the defendant jumped out of his vehicle and started yelling at the victim. She could not respond, however. She was pinned inside her vehicle by the defendant's vehicle. She was bleeding, and she could hardly breathe. She spent a month in the hospital. Back at the scene of the offense, the victim's boyfriend in the passenger seat had asked the defendant to call for help for the victim, and then he promptly lost consciousness. I am sure that the defendant got right on that call for help.

Trejo v. State

4/1/09 : Cite No. PD-0276-08 : Lesser-Included Offense and Jurisdiction

Issue

Where the defendant's indictment charged aggravated sexual assault and he did not object to the jury charge authorizing a conviction for that offense or any of three lesser-included offenses (sexual assault, aggravated assault, or assault), did the trial court have jurisdiction to convict him of the lesser offense when aggravated assault was incorrectly included?

Holding

Yes. The jurisdiction of the district court attaches by the return of an indictment charging a felony, even when the actual conviction may be on a misdemeanor. The district court retains jurisdiction of the case to its final determination.
Read opinion.

Concurrence

Judge Johnson wrote that once again a party confused jurisdiction with authority. The trial court had both subject-matter jurisdiction over the offense and personal jurisdiction over the defendant. While the trial court may have erred in its charge to the jury, if the alleged error was including the lesser offense of aggravated assault in the jury charge, then the question should be whether the indictment authorized the instruction and whether the evidence supported giving the instruction, not whether the district court has jurisdiction over a felony.
Read concurrence.

Concurrence

Presiding Judge Keller wrote that she would hold that submission to the jury of the aggravated assault offense and the subsequent conviction for that offense did not constitute a jurisdictional defect.
Read concurrence.

Commentary

It is not entirely clear what validity still exists--if any--in a judgment that reflects a finding of guilty of a lesser offense that is not a lesser included offense of the charged offense. The trial court clearly has jurisdiction, based upon this opinion. But is the judgment otherwise rendered void?

Steadman v. State

4/1/09 : Cite No. PD-1311-08 : Deference to the Jury

Issue

In the defendant's appeal of one of his convictions for aggravated sexual assault, did the appellate court properly review the case and conform to the established requirements of deference to the jury's verdict?

Holding

No. The court of appeals made inferences in the defendant's favor rather than reviewing the record in a neutral light. The court further recited facts favorable to the defendant's position while overlooking other evidence and seems to have discounted the jury's ability to disbelieve the defendant's explanation of how the child victim might have contracted gonorrhea. Finally, the court of appeals may have employed an incorrect understanding of the term "penetration" in its analysis.
Read opinion.

Commentary

If you prosecute child sex abuse cases, you will want to keep this opinion close, especially for those judges and defense lawyers that do not understand what constitutes "penetration." This is a very helpful case.

Texas Attorney General Opinions

Attorney General Opinion for the Honorable Pete Gallego

3/27/09 : Opinion No. GA-0701 : Jurisdiction in Truancy Cases

Issue

May a justice of the peace hear truancy cases involving students who are enrolled in a district located outside the precinct boundaries?

Holding

Yes. Failure to attend school under Education Code §25.094(a) may be prosecuted in a justice court of any precinct in the county in which the alleged truant resides or in which his school is located.
Read opinion.

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