Weekly Case Summaries: February 11. 2011

Court of Criminal Appeals

Cada v. State

02/09/11 : Cite No. PD-0754-10

Issue:

Was it a material difference when the defendant was charged with retaliation against a "witness" and the State showed that the victim was a "potential witness" or an "informant?"

Holding:

Yes. While there is some overlap between the various portions of the retaliation statute( Section 36.06(a)(1)(A)), due process requires that the State must prove every element it has alleged. Read Opinion.

Commentary:

Since the court has now clearly identified the various types of victims listed in the retaliation statute as separate and distinct elements of the offense of retaliation, one wonders if the State can now charge and prosecute and convict the defendant again of the offense of retaliation alleging the correct type of victim in the indictment-without violating the defendant's right against double jeopardy. You don ‘t think so? Well let me ask this then. Is this really the type of case that Jackson v. Virginia would demand to be an acquittal for purposes of a defendant's right against double jeopardy? The law is probably not on my side, but it seems unfair and even a little wrong that this defendant gets a complete acquittal because the State failed to allege the word "prospective" in the indictment. There is a lesson here for prosecutors-Make sure that your indictments and informations are correct. But I am not sure that this defendant has learned and helpful lessons.

Texas Courts of Appeals

Beechum v. State

02/02/11 : Cite No. 04-10-00276-CR

Issue:

Did two juvenile probation officers lawfully seize marijuana from an occupant of a parked car?

Holding:

Yes, their approach was merely an encounter: While conducting a probation check on a residence, the officers parked behind a car with three occupants, saw smoke, smelled marijuana, and saw the drugs in plain view. When asked about the drugs, the defendant simply handed them over. Read Opinion.

Commentary:

This is a good, straight-forward decision that emphasizes that anyone (officer, probation officer, anyone) can approach a defendant without subjecting that defendant to any kind of detention.

Texas Attorney General

Request for Opinion from Presiding Officer of the Texas Forensic Science Commission

01/31/11 : Request No. RQ-0943-GA

Issue:

How do three phrases in the act which created the Forensic Science Commission(Effective Date, Accredited Laboratory, and Forensic Analysis) impact the authority and scope of the FSC? Read Request.

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