Weekly Case Summaries: October 2, 2009

Texas Court of Criminal Appeals

Tapps v. State

09/30/09 : Cite No. PD-0946-08

Issue :

Is a state jail felony a felony for enhancement purposes under Section 46.04(a).

Holding:

Yes. A state jail felony can be a predicate felony conviction under Section 46.04(a). Read Opinion.

Commentary 

This decision helps to reaffirm that, when you see the word "felony" in a statute, the reference will include state jail felonies. The exception to that is when the Legislature has apparently created a distinction between state jail felonies and other felonies, such as in Section 12.42(a) of the Penal Code, in which case the court has previously held that a state jail felony is not a "felony."

 

Court of Criminal Appeals

Hardy v. State - 6th COA

09/23/09 : Cite No. 06-08-00213-CR

Issue:

Can a trial judge grant early discharge from a deferred adjudication and relieve a defendant from reporting as a sex offender?

Holding:

No. The judge may dismiss the proceedings and discharge a defendant, other than a defendant charged with an offense requiring the defendant to register as a sex offender under Chapter 62. The judge may not dismiss the proceedings and discharge a defendant charged with an offense requiring the defendant to register under Chapter 62. Read Opinion.

Commentary

This case emphasizes the importance of knowing the statutes that control your particular case. Article 42.12, Section 5(c) of the Code of Criminal Procedure makes it clear that a trial judge cannot "early terminate" a defendant's probation if that defendant had committed an offense that required him to register as a sex offender. Courts do not have the power to grant such amnesty to a defendant in direct violation of the provisions passed by the Legislature.  

Delapaz v. State - 11th COA


09/24/09 : Cite No. 11-07-00329-CR

Issue:

Can the defendant cross examine the victim of sexual assault about prior sexual assaults during the punishment phase in order to show less harm?

Holding:

No. Unless there is an exception under Rule 412 all evidence in a criminal case pertaining to the victim's sexual history is excluded. Read Opinion.

Commentary

The court did not address whether the door could have been opened to the admissibility of the victim's prior sexual history. It is at least theoretically possible that the problems in her life that the victim attributed to her father's assault were in fact caused by pre-existing sexual history. I do not think so, however. The importance of this decision should be the steadfast refusal of Rule 412 to permit such evidence being presented to a jury. 

 

Scillitani v. State - 14th COA

Issue:

If a defendant is intoxicated when the officer arrives at the scene of an accident, is that sufficient evidence to show he was intoxicated at the time of the accident?

Holding:

No. Specific facts need be shown to demonstrate the defendant was intoxicated at the time of the accident and not just when the officer arrived. Read Opinion and Concurring Opinion.

Commentary

If you have a DWI case in which an officer has happened upon a one-car accident, you should definitely keep this decision in mind. The court relied upon previous case law that requires either proof of how recently the vehicle was driven or how much time had elapsed between the accident and the arrival of the officer. This steadfast rule prevents the State from being able to circumstantially prove that the defendant was driving by other means of proof. I hope that the Court of Criminal Appeals considers Judge Hudson's well-reasoned concurring opinion and takes another look at this case. 

Office of the Attorney General

Request for Opinion

9/19/09 : Request from Randall County

Issue:

Does Section 43.24 of the Penal Code provide a defense for parents who show pornographic material to their children?