Weekly Case Summaries: July 31, 2009

Texas Courts of Appeals

Shipp v. State - 6th COA

07/23/09 : Cite No. 06-08-00122-CR : Sentencing

Issue

Should the trial court have ordered the defendant's sentences for possession of a controlled substance in a drug-free zone (60 years' imprisonment), forgery of a government instrument (25 years), and forgery of a commercial instrument (20 years and a $10,000 fine) to run concurrently?

Holding

Yes. The original sentencing was based on Health and Safety Code §481.134(h). Because the court of appeals found that the evidence was legally insufficient to sustain the jury's verdict that the defendant possessed an illegal substance within 1,000 feet of a school zone, the statute's prohibition against concurrent sentences does not apply.
Read opinion.

Commentary

An interesting analysis of the sufficiency claim, interpreting whether the co-defendant's statement that she was putting a "green thing" back in the car was enough to make the defendant aware he was a joint possessor of methamphetamine. Turns out it was sufficient for the possession but not for the drug-free zone finding.

Shipp v. State - 6th COA (Companion Case)

07/23/09 : Cite No. 06-08-00124-CR : Forgery of Commercial Instrument

Issue

Does a falsified receipt given to the defendant by his wife that the defendant showed to a store employee as he attempted to leave the store with merchandise qualify as a "commercial instrument?"

Holding

No. The forged receipt did not fall into the category of a "commercial instrument" because the receipt only memorialized only a past transaction, rather than being tangible for a future transaction.
Read opinion.

Commentary

A very thoughtful discussion of the meaning of "commercial instrument." The Legislature should add a definition to the Penal Code. In the meantime, the court of appeals provides a rational approach to deciding what is and is not a commercial instrument. Nonetheless, the prosecutor did some very creative charging and presentation of evidence in this case. The effort is to be commended. In evaluating the factual sufficiency, the court of appeals did make one troubling statement: "In this case, we do not entertain the high level of skepticism about the jury's verdict which would be necessary before we can say that there is a factual insufficiency here." That statement implies that the court of appeals has the discretion to use their own skepticism, not the judgment exercised by the jury, to evaluate the weight of evidence. No, no, no.

Texas Attorney General Opinions and Requests for Opinions

Opinion for the 25th Judicial District Attorney

07/22/09 : Opinion No. GA-0730 : Conflict of Interest

Issue

Is it a conflict of interest for a district attorney to occupy office space leased by the county from the district attorney's spouse?

Opinion

No. A district attorney's occupation of office space leased by the county commissioners court from that district attorney's spouse does not constitute a conflict of interest under Local Government Code Ch. 171 (Regulation of Conflicts of Interest of Officers of Municipalities, Counties, and Certain Other Local Governments).
Read opinion.

Opinion for the Kerr County Attorney

07/23/09 : Opinion No. GA-0731 : Recording DWI Interrogation

Issue

Is a sheriff required to maintain a room in the jail dedicated to recording the interrogation of a person arrested for driving while intoxicated?

Opinion

Counties with a population of 25,000 or more are required to purchase and maintain electronic devices to make visual recordings of persons arrested within the county for DWI. However, a county is not required to maintain a room dedicated to videotaping the arrested persons, nor is the location where the equipment is to be used specified. (See Act of May 27, 1983, 68th Leg., R.S., ch. 303, § 24, 1983 Tex. Gen. Laws 1568, 1605.)
Read opinion.

Opinion Request from the Executive Director of the Texas Department of Transportation

07/15/09 : Request No. RQ-0811-GA : Issuance of Motor Vehicle Title

Issue

May a magistrate issue a certificate of title to a motor vehicle under Code of Criminal Procedure art. 47.02 (Disposition of Stolen Property - Restored on Trial)?
Read opinion request.


TDCAA is pleased to offer our members unique case summaries from the U.S. Supreme Court, the 5th Circuit Court of Appeals, the Texas Court of Criminal Appeals, Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The information contained in this email message may be privileged, confidential, and protected from disclosure. Any unauthorized use, printing, copying, disclosure, dissemination of or reliance upon this communication by persons other than the intended recipient may be subject to legal restriction or sanction. Please email comments, problems, or questions to casesummary@tdcaa.com. In addition, if you would like to discuss the summaries with fellow prosecutors, look for the thread in our criminal forum.