Texas Court of Criminal Appeals
No. PD-0848-20 10/5/22
Does a defendant convicted of multiple offenses stemming from the same criminal episode in a single proceeding face a fine for each offense, or should only one of the judgments include a fine to ensure that the defendant pays only once?
Each judgment must include the fine actually imposed. When a fine is part of a lawfully-assessed punishment, it must be included in the written judgment, and a court cannot delete such punishment absent some illegality. Read opinion.
“I join the Court’s opinion, with the understanding that the continuing viability of the plurality opinion in State v. Crook, 248 S.W.3d 172 (Tex. Crim. App. 2008) … remains an open question.” Read concurrence.
The issue in this case is not whether fines can be concurrent. One should assume that fines can be concurrent unless the court revisits its holding in Crook. The only issue in this case is whether the court of appeals could delete one of the fines to ensure that the defendant did not pay consecutive or “stacked” fines. In that respect, this decision may be of little interest beyond appellate prosecutors. But this decision could be useful to show trial judges who do not want to put concurrent fines in their judgments.
Texas Courts of Appeals
No. 01-22-00157-CR 10/4/22
Can the State appeal an order requiring the return of a seized cell phone to the defendant on the basis that requiring its return is essentially suppressing evidence under Code of Criminal Procedure Article 44.01(a)(5)?
No. The judge’s order required return of property, not exclusion of evidence, and therefore the State cannot challenge the order through direct appeal. However, in the State’s mandamus petition challenging the same subject matter, the Court concluded that the trial judge, acting as magistrate, did not have the power in an unindicted case to order the return of seized property, and therefore the order is void. Read opinion.
The State’s appeal portion of this opinion is pretty straightforward. The State can appeal only a limited number of orders, as set forth in Article 44.01 of the Code of Criminal Procedure. An order of return of property is not one of them. The mandamus portion of the opinion is only a little more complicated and is based upon: 1) the jurisdiction of a district court not occurring until an indictment or information is filed, and 2) the authority of a magistrate—what a district court is considered until an indictment or information is filed—to order the return of property. The mandamus portion of the opinion follows relatively well-settled law. Keep in mind that the facts in this case could have arisen differently for those who live in counties where a magistrate may be given more authority.
No. 14-21-00576-CR 10/4/22
Does Penal Code §43.25, which prohibits sexual performance by a child, violate the free speech clauses of the United States and Texas Constitutions?
No. The defendant argued that §43.25 impermissibly punished the employment, authorization, or inducement of consensual expressive conduct for people under the age of 18, when the age of sexual consent is 17 years in Texas. The 14th Court agreed with the 5th Court of Appeals and saw no reason why the age of consent to sexual relations need be the same as the threshold age for prosecutions of conduct violating public order and decency. The 14th Court agreed with the 5th Court that §43.25(b) is not overbroad under the U.S. Constitution. The 14th Court also rejected the defendant’s challenge of overbreadth under the Texas Constitution, finding that the Texas Constitution does not offer additional protection from the U.S. Constitution. Read opinion.
“The majority opinion discusses whether the State’s conduct in this case is substantially unconstitutional, thus implying that there is a permissible category of unconstitutional restrictions because they do not constitute a ‘substantial’ violation. Because I believe that all unconstitutional restrictions should have a remedy but that the State’s actions are not unconstitutional in this case, I concur.” Read concurrence.
This is a very thorough and very well-reasoned decision, and it should hold up on further review by the Court of Criminal Appeals (and even the United States Supreme Court). All prosecutors who handle sexual-performance-of-a-child cases should read this decision, as should all prosecutors interested in good constitutional analysis.