Weekly Case Summaries: September 10, 2010

Texas Courts of Appeals

Lackey v. State, - 6th COA

09/01/10 : Cite No. 06-10-00035-CR

Issue:

Did the county court judge, physically incapacitated by pneumonia, improperly appoint an attorney to preside in her absence?

Holding:

Yes. For a general appointment-rather than an appointment for a particular matter-only a retired judge or a county constitutional judge from another county can preside. The attorney's actions while on the bench were void. Read Opinion.

Commentary:

Texas has an unusual history of allowing a non-lawyer to serve as county judge for the purpose of heading up the commissioners court, which is not really a court, and as the judge for the county court hearing a misdemeanor criminal case. So, it would seem the defendant got a break by having an actual lawyer who had experience as a municipal judge to hear his motion to suppress. Nonetheless, in the absence of clear acceptance of that lawyer as the judge, the State has a hard time arguing that the defendant waived any objection to the requirement that the replacement judge be a retired judge. And, though it is a murky area of the law, the court of appeals seems to believe that this is one of those areas where the order is void and not just voidable. On rehearing, can the State just offer into evidence a transcript of the previous hearing?

Baines v. State - 6th COA

09/01/10 : Cite No. 06-10-00069-CR

Issue:

Is the State required to file a notice of appeal for a cross-appeal?

Holding:

Yes. Texarkana joins Austin, Beaumont, Dallas, and Fort Worth courts against the lone voice of the Fourteenth Court of Appeals. Read Opinion.

Commentary:

Defendant was convicted for fleeing in his vehicle at 15-20 miles per hour around a single city block. Perhaps out of sympathy for the speed and length of the flight, the judge declined to make a finding after defendant pleaded true to habitual enhancement paragraphs and sentenced him to 180 days in the county jail under section 12.44(a), PC. Relying on the defendant's direct appeal, the State argued that the sentence was illegal, and likely it was, because the punishment range should have been 2-20 years in prison. But, alas, the State did not file its own notice of cross-appeal. This may finally be the case accepted for PDR by the CCA for resolution of this issue of notice of appeal vs. cross-appeal.

Chavez v. State - 11th COA

09/02/10 : Cite No. 11-09-00178-CR

Issue:

Was a prosecutor's question to a Child Advocacy Center director as to "how often children recant their accusations" asking for an improper opinion on whether the child was telling the truth or not?

Holding:

No. The witness testified only as to the behavioral characteristics of children whose mothers do not support their outcries of sexual abuse. She did not give a direct opinion that the victim was truthful or that she belonged to a class of persons that was truthful. Read Opinion.

Commentary:

Expert testimony on the issue of why children recant truthful outcries of sexual abuse is a necessary part of educating a jury about the reality of how testimony from abused children may change. The prosecutor properly stayed within the relevant role of such testimony, limiting it to a description of the behavioral characteristics.

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