Weekly Case Summaries: December 24, 2010

Texas Courts of Appeals

Necessary v. State - 1st COA

12/16/10 : Cite No. 01-10-00734-CR

Issue:

Do double jeopardy protections bar a charge of assault after a protective order has been entered in the same matter?

Holding:

No, a protective order is not criminally punitive, so double jeopardy considerations are not implicated. Read Opinion.

Commentary:

This decision is in line with previous decisions on the same or similar issue. It should be helpful to show your defense lawyer if he is trying to think of ways to delay the start of your family violence trial.

 

In re Lowell Thompson - 3rd COA

12/21/10 : Cite No. 03-10-00689-CV

Issue:

When a party files a motion to recuse a trial judge, must the judge recuse himself or refer the motion to the administrative judge?

Holding:

Yes, in the face of a motion to recuse, a trial judge has only those two options. Read Opinion.

Dissent:

The appellate court lacks the jurisdiction to consider this application for a writ of mandamus because Judge Baird was not acting in a judicial capacity in conducting a court of inquiry. In fact, the trial judge was not holding a legitimate court of inquiry. Read Dissent.

Commentary:

This case involves the very unusual situation in which relatives of an executed capital murder defendant from Navarro County filed a request to convene a court of inquiry with a Travis County judge. The Navarro County District Attorney filed a motion to recuse that particular Travis County judge, but the judge refused to consider the motion to recuse, believing that the Navarro County District Attorney had no standing before the court of inquiry. Very touchy issues are involves in this case-opposition to the death penalty, actual innocence, exoneration. But it seems that there is a right way to do things and a wrong way to do things. And attacking a Navarro County conviction and death sentence in a Travis County court does not seem to be the right way. The bottom line of this decision is that, when a judge receives a motion to recuse, he generally has no choice but to grant the motion or refer the motion to the local administrative judge.

 

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.