Weekly Case Summaries: April 17, 2009

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Texas Courts of Appeals

Ford v. State - 3rd COA

04/10/09 : Cite No. 03-06-00663-CR : Identity Theft

Issue

Did the trial court correctly charge the jury in the defendant's conviction of three counts of engaging in organized criminal activity under Penal Code §32.51 (in essence, identity theft) where one count alleged that the he used the identifying information of "Lambrique King" with the intent to harm or defraud "King" while another count alleged that he used the identifying information of "Kelvin Carr" with the intent to harm or defraud "Carr?"

Holding

No. The defendant was not shown to have obtained, possessed, transferred, or used the identifying information of any living human being. "King" and "Carr" were fictitious identities created by the defendant for his criminal purposes. The names, dates of birth, identification numbers, and account numbers on the counterfeit checks and false identity cards possessed and used were not connected to any real individuals and were a fiction created for the defendant's fraud.
Read opinion.

Commentary

The court of appeals does uphold the defendant's conviction for engaging in organized criminal activity where the predicate offense was forgery, essentially holding that a forged writing could be the writing of a fictitious person. The court based that portion of its holding upon the proposition that the forgery statute is ambiguous about whether it requires the "victim" to be a living human being or merely someone that is represented to be a living human being. The court did not see any such ambiguity in the predicate offense of fraudulent use of identifying information (identity theft). So make sure that your charges of that latter offense include the name of a person that you can prove is a real living human being. Otherwise, you will have to rely upon forgery as the charged offense. I am not at all certain that the Legislature intended to exonerate defendants from the commission of the offense of identity theft, merely because they used a fake name to defraud someone. Perhaps that statute can be changed to prevent such exoneration.

State v. Stewart - 3rd COA

4/15/09 : Cite No. 03-07-00735-CR : Plenary Power of Trial Judge

Issue

Where the judge decided after sentencing that his assessment of punishment was disproportionate to previous sentences, e-mailed the defendant's attorney of his decision, and then made lengthy remarks from the bench about his error in calculating the sentence, did he also have the authority to grant an entire new trial to the defendant rather than a new trial only on punishment?

Holding

Yes. The defendant was entitled to rely on the trial judge's memory of how he had erred in assessing the defendant's punishment to establish that claim. The trial judge did not grant the new trial out of sympathy or under the belief that the defendant received a raw deal before his court. The judge granted the new trial only after concluding that he, the judge, had made a specific, identifiable, and quantifiable error in calculating the defendant's punishment.
Read opinion.

Commentary

Thankfully, the court of appeals did not hold that a trial judge could grant a defendant an entirely new trial when the error found by the trial judge affected only the defendant's punishment. The court of appeals also made clear that a trial judge does not have the authority to grant a defendant a new trial (on punishment or otherwise) merely because the trial judge has had second thoughts about the punishment that he assessed, or merely because the trial judge believes that the jury's punishment decision was harsher than his would have been. A trial judge does not have the authority to grant such a new trial out of mere sympathy or in the mere belief that the defendant "received a raw deal." A trial judge CAN grant a new trial after concluding that he, the judge, had made a specific, identifiable, and quantifiable error in calculating the defendant's punishment. How are we--who cannot read a judge's mind--supposed to know the difference? How is his decision reviewable?

Caballero v. State - 4th COA

04/08/09 : Cite No. 04-08-00278-CR : Double Jeopardy

Issue

Were the defendant's double jeopardy rights violated when he was convicted of two counts of burglary of a habitation, one with intent to commit theft and one with intent to commit sexual assault?

Holding

Yes. Even though the evidence proved that he committed both offenses, the two counts of burglary were based on a single unlawful entry into the victim's home. The conviction for the most serious offense (the intent to commit sexual assault) should be retained and the other conviction set aside.
Read opinion.

Commentary

The "allowable unit of prosecution" for the offense of burglary is the individual entry. If the defendant had entered the residence on more than one occasion with the intent to commit one of the underlying felonies, he would have committed more than one offense. But since he entered the residence only once, he committed only one burglary.

Triana v. State - 4th COA

04/15/09 : Cite No. 04-08-00619-CR : Unlawful Search

Issue

After the defendant was arrested and jailed for driving while license suspended and possession of marihuana, were police permitted to make a warrantless search of his motel room, then occupied by his girlfriend, to search for further evidence of drug dealing alleged by a confidential informant?

Holding

No. An investigator testified that when they visited the motel, they did not have probable cause to search the room and were hoping to gather more information so they could get a search warrant. While suspicions centered on the defendant, investigators knew that he was in custody when they went to his motel room and they had no specific information regarding his girlfriend's possession of drugs that would have given them probable cause to enter the room and conduct a search.
Read opinion.

Commentary

If you are wondering why the officers did not ask the defendant's girlfriend for consent to search the room, she probably would not give it. When she viewed the officers approaching the room, she stopped her conversation and entered the room, and the officers heard the sound of a flushing toilet. When you gotta go, you gotta go, I guess. Nevertheless, let this be a lesson to you. The sound of a flushing toilet does not give you probable cause.

Texas Attorney General Opinions

Attorney General Opinion for the Johnson County Attorney

04/08/09 : Opinion No. GA-0706 : Competitive Bidding Procedures

Issue

May a county lease county-owned office space to a private non-profit organization for less than fair market value and remain in compliance with the competitive bidding procedures of Local Government Code §263.007?

Holding

Yes. A commissioners court's lease of county property for an amount less than fair market value does not violate the express terms of §263.007.
Read opinion.

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