April 12, 2019

Texas Court of Criminal Appeals

Delafuente v. State

No. PD-0710-18                4/10/19

Issue:

Does an order granting shock probation moot an earlier filing of notice for appeal on the original judgment?

Holding:

No. Shock probation is imposed pursuant to an order, not a judgment. An order granting shock probation is independent of the original judgment, each of which has its own appeal and appellate timetable. A timely notice of appeal from the original judgment of conviction is not affected by an order granting shock probation. Read opinion.

Commentary:

This unanimous opinion is very short, and the State agreed with the defendant’s position that his subsequently granted shock probation did not prevent him from appealing from the original judgment. The bottom line is that a defendant is always entitled to appeal from an appealable order, assuming that he has timely filed a notice of appeal and that nothing else has happened that would render the appeal moot.

Texas Courts of Appeals

Taylor v. State

No. 14-17-00303-CR        4/09/19

Issue:

Is the corpus delicti rule satisfied by evidence that the defendant in a DWI case was the only person observed standing by the car, had the smell of alcohol on his breath, twice failed an HGN test, and blew .169 and .170 on breath tests?

Holding:

Yes. The corpus delicti of a DWI charge is “operating a motor vehicle in a public place while intoxicated.” Here, the defendant’s extrajudicial confession was sufficiently corroborated by evidence that he was seen standing by the driver side door of the vehicle stalled on the highway, the officer smelled alcohol on the defendant’s breath, the defendant’s speech was slow and deliberate, the defendant showed six out of six signs of intoxication in two separate HGN tests, and the defendant blew .169 and .170 on breath tests taken about three hours after his car stalled. Read opinion.

Commentary:

This decision has a very short corpus delicti analysis. But as noted by decisions cited in a footnote, it is not at all unusual for a defendant to be convicted of DWI even though no one has actually seen him driving.

Texas Attorney General Opinions

RQ-0280-KP

Request:

Does Texas state law permit the sale, distribution, or possession of CBD products including CBD oil? Read request.

Commentary:

This opinion request centers on the purported discrepancy between the recent federal permission to possess hemp that contains less than 0.3 percent of tetrahydrocannabinol (THC) and the state prohibition of the possession of cannabidiol (CBD), except for certain medical purposes. The actual legal issue may not be easy for the Attorney General to resolve. The same may go for the factual issue because it is not certain that the Legislature views THC and CBD similarly.

Announcements:

TCDLA and State Bar CLE

The Texas Criminal Defense Lawyers Association (TCDLA), with co-sponsorship by the State Bar’s Criminal Justice Section, is hosting a CLE called “What You Need to Know About Sex Offender Registration” on Friday, April 26 in Austin. Registration for prosecutors and staff is free before April 15 and $50 after that. See the flyer here for more information, and register online at www.tcdla.com.

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the 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 commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected]