April 1, 2016

Texas Courts of Appeals

Edwards v. State (11th COA)

No. 11-13-00364-CR        3/17/16


Did the defendant attempt to possess a controlled substance by “misrepresentation, fraud, forgery, deception and subterfuge” when, while pretending to work for a doctor’s office, she called a pharmacy and requested a prescription for herself?


Yes. The act of posing as a medical assistant and phoning a pharmacy for medication is an act that goes beyond “mere preparation,” and that conduct is sufficient to find the defendant guilty of attempt. Additionally, the elements of criminal attempt found in Penal Code §15.01 are not applicable to Health and Safety Code §481.129(a)(5)(A), which was the basis for this charge. Read.


This is a great decision upon which to rely if a defendant attempts to force the court to apply §15.01 language and principles to a prosecution for attempt under §481.129(a)(5)(A). The decision is well-reasoned and thorough, and it even goes so far as to reject the defendant’s claim that the trial court should have charged the jury on §15.01.

Estes v. State (2nd COA)

No. 02-14-00460-CR        3/24/16


Was Penal Code §22.011(f) unconstitutional as applied to this defendant?


Yes. Section 22.011(f) raises the level of sexual assault from a second-degree felony to a first-degree felony when “the victim was a person whom the actor was prohibited from marrying or purporting to marry.” The application of §22.011(f) in this case violated the Equal Protection Clause because it resulted in a harsher punishment for the defendant simply because he was married, and as such, prohibited from also marrying the victim in the case. There is no rational basis for the Legislature to treat married and unmarried defendants differently in this regard; thus, the defendant’s convictions for sexual assault should be second-degree felonies and remanded for a new punishment hearing. Read.


The defendant had sexual intercourse with a 15-year-old girl over several months. On some occasions, the defendant would tie the victim’s body to a futon or to himself. He would also use a paddle on her. This certainly seems like a first-degree felony. But because the Legislature has avoided any attempt to continue to proscribe adultery, subsection (f) is probably not the way to get to a first-degree felony. It will be interesting to see if the Court of Criminal Appeals wishes to review this decision on petition for discretionary review.

Haas v. State (14th COA)

No. 14-15-00445-CR        3/24/16


Does a copy of a defendant’s criminal record, used to prove an enhancement, need to be an original certified copy or have original seals?


No. A certified document number on each page of a document, along with a seal on the last page, is enough to authenticate the document, even if the seal is not original. Additionally, the State’s use of circumstantial evidence—in this case, 1) a judgment of a prior conviction in cause number 1283640 listing the name of the defendant; 2) an order removing ignition interlock restrictions in the prior conviction listing the defendant’s name, birthdate, and driver’s license number; and 3) a bail bond in this case listing the defendant’s name and the same birthdate and driver’s license number—was enough to prove the prior conviction for enhancement purposes. Read.


This is a great decision to look to if you need to get creative to tie a defendant to a prior conviction. It is unconventional, but it works.


Rodriguez v. State (4th COA)

No. 04-15-00204-CR        3/23/16


Is a defendant who is subject to a transferred-intent jury instruction also entitled to a mistake-of-fact instruction if he so requests?


Yes. When a court includes an instruction on transferred intent, it must also include an instruction on mistake-of-fact if the defendant requests it. Without the mistake-of-fact instruction, a defendant may be harmed if he is not able to present a defense that he lacked the requisite mens rea for the offense. Read.


The decision in this case appears to be required by the decision of the Court of Criminal Appeals in Louis v. State, 393 S.W.3d 346 (Tex. Crim. App. 2012), a 6-3 decision upon which the court of appeals relied heavily. The bottom line is that, in a transferred-intent case, if the defendant requests a mistake-of-fact instruction, he should probably get it.

Office of the Attorney General

Letter from the Executive Director of the Texas Juvenile Justice Department

KP-0073                3/28/16


Would an expunction order issued to a juvenile probation department under Code of Criminal Procedure Art. 45.0541 apply to documents in the department’s possession?


Likely yes. Documents in the possession of a juvenile probation department as a result of a referral to the juvenile court for delinquent conduct as defined by §51.03(a)(2) of the Family Code would be subject to an expunction order under art. 45.0541 as “record[s] relating to the conviction or complaint.” Read.


It is clear that the Legislature wishes for juvenile authorities to treat truancy differently from how it had been treated in the past. This opinion is entirely in line with this new approach. The expunction intended here is clearly broader than the general idea of expunction set forth in Chapter 55 of the Code of Criminal Procedure.

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