Weekly Case Summaries: August 13, 2010

Texas Courts of Appeals

Fleming v. State - 2nd COA

08/05/10 :Cite No. 02-09-00215-CR

Issue:

Is Penal Code §22.021 (aggravated sexual assault of a child) unconstitutional under due process/due course of law because it fails to: (1) allege a culpable mental state relating to the victim's age and (2) recognize an affirmative defense based on a reasonable belief that the victim was older than 17?

Holding:

No. The claims are substantive rather than procedural, and there is no fundamental right entitling defendants to a culpable mental state or a mistake-of-age defense in a statutory rape scheme. Moreover, §22.021 serves a legitimate state purpose. Read Opinion.

Commentary:

You might think that such a claim by a defendant is ridiculous, and you would be right. But the court points out that a significant minority of states permit a mistake of age defense in statutory rape cases. This is a very well researched opinion that will give you all of the ammunition that you need in the rare instance in which you might be confronted with such a claim. And thankfully, the court follows the majority of those courts that have decided the issue-that the absence of a mistake of age defense does not violate a defendant's constitutional rights.

Travis County District Attorney v. M.M - 3rd COA

06/06/10 : Cite No. 03-08-00241-CV

Issue:

Did the trial court properly grant M.M.'s expunction petition for two offenses-DWI and assault of a police officer-resulting from a single arrest for three offenses-DWI, resisting arrest, and assault of a police officer?

Holding:

Yes (on the DWI) and no (on the assault). The DWI charge had been dismissed by the State as part of the plea bargaining process but the assault charge, which had been taken into consideration for sentencing on the resisting arrest charge under §12.45, had not been dismissed. Read Opinion.

Commentary:

The court construes Article 55.01(a)(2)(B) to mean that the records relating to a misdemeanor charge are expungible when that charge has been dismissed, but another misdemeanor charge arising from the same arrest results in a final conviction. The Legislature almost certainly did not mean this, but if this decision stands, the statute will need to be amended. Such a decision will discourage "charge bargaining," which may not even be in a defendant's best interests.

Travis v. State - 6th COA

08/05/10 : Cite No. 06-09-00238-CR

Issue:

Was an officer engaged in community caretaking when he stopped a driver after the driver's brother had advised that the driver had assaulted him (but did not want to pursue charges) and left the scene intoxicated?

Holding:

No, the narrow exception cannot be satisfied by law enforcement action: although the driver was alone on a country road, he was not in distress, and the officer had no reason to assume the driver was a danger to himself or others. Read Opinion.

Commentary:

The trial court concluded that the officer did not have reasonable suspicion to stop the defendant for driving while intoxicated, even though a named individual-the defendant's brother-told the officer that the defendant was driving while intoxicated. That does not make much sense. The use of the community caretaking doctrine as a justification for a traffic stop cannot be used if it appears that a law enforcement purpose was the actual justification for the stop. Thus, it is often difficult to use this doctrine.

Geick v. State

08/05/10 : Cite No. 14-09-00187-CR

Issue:

When an indictment alleges theft (consent induced by deception) but the charge alleges theft (consent induced by deception and consent given by a person the actor knew was not legally authorized to act for the owner) and the State fails to prove deception, is the evidence legally sufficient for a conviction?

Holding:

No, the State failed to prove the offense alleged in the indictment so the evidence is legally insufficient. Read Opinion.

Commentary:

This decision stings. And it stresses the importance of alleging all of the possible means by which an offense was committed, even taking into account possible defenses that the defendant might raise. If it turns out that, after all of the evidence has been heard, some of those means do not need to be placed in the jury charge, they can always be abandoned. But you cannot add to a charge against a defendant by adding new means in the trial court's charge to the jury.

 

 

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