August 14, 2015

Texas Courts of Appeals

Bundage v. State (1st COA)

No. 01-14-00522-CR        7/30/15


Were statements from the defendant claiming “it was an accident” enough to entitle him to a jury charge on the defense of voluntary conduct?


No. A defendant is entitled to an instruction on every defensive issue raised by the evidence, regardless of whether the evidence is strong or weak. A “voluntariness” instruction under Penal Code §6.01(a) is “necessary only if the accused admits committing the act or acts charged and seeks to absolve himself of criminal responsibility for engaging in the conduct.” A defendant’s bare statement that his conduct was an accident, however, does not entitle him to a jury instruction on voluntariness. Read opinion.


This decision is a good survey of the case dealing with voluntary conduct and “accident,” which has long since been abolished as a defense in Texas. This was no accident.  The defendant admitted to pointing and aiming a rifle at the victim when they were 10 to 12 feet from one another. By way of a recording of a 911 call that the victim made, the victim can be heard pleading with the defendant, “Don’t do it.” The defendant’s isolated statement that it was an accident does not give him the right to be exonerated for murder.

Lampkin v. State (6th COA)

No. 06-14-00024-CR        8/11/15


In proving ineffective assistance of counsel, can a defendant rely on prejudice during sentencing phase of trial?


Yes. To be successful on an ineffective assistance of counsel claim, a defendant must show: (1) that counsel’s performance fell below an objective standard of reasonableness, and (2) but for counsel’s error, there is a reasonable probability the result of the proceeding would have been different. Establishing that prejudice occurred during the sentencing phase of a non-capital case where the sentencing authority has broad discretion is a field of law with little guiding precedent. Factors to be considered include: (1) the fact that the defendant received a maximum sentence; (2) the disparity between the sentence imposed and the sentence(s) requested by the parties; (3) the nature of the offense and strength of the evidence presented; (4) the egregiousness of the attorney error; and (5) the defendant’s criminal history. Where an allegedly deficient performance arises out of a failure to investigate mitigating evidence, additional factors to consider are: (1) whether any evidence was available and admissible; (2) the nature and degree of other mitigating evidence presented to the jury; (3) the nature and degree of aggravating evidence presented by the State; (4) whether and to what extent the jury may have been influenced; (5) to what extent the proposed evidence tends to explain defendant’s actions; and (6) whether the proposed evidence serves to assist the jury in determining the defendant’s blameworthiness. Read opinion.


In this decision, on page 64 of a VERY lengthy opinion, the court of appeals has developed several factors to be considered in determining whether a defendant has suffered harm at the punishment stage as the result of ineffective assistance of counsel, particularly the failure to investigate mitigating evidence, such as, in this case, the defendant’s mental health history. This is problematic because the factors are developed from a survey of several previous appellate court decisions, but the factors have not been developed by the Court of Criminal Appeals or the United States Supreme Court in one of their prior decisions. When a court starts applying “factors” arrived at from a survey of past decisions, it runs dangerously close to allowing those factors to control the ultimate outcome, rather than the test of Strickland v. Washington. As a result, the Court of Criminal Appeals may wish to review this decision.  One would think that a 99-year sentence would be entirely appropriate for a felony DWI defendant with an EXTENSIVE criminal record. Nevertheless, the decision may ultimately hold up because—at over 70 pages in length—it is exhaustive.

State v. Munoz (8th COA)

No. 08-13-00164-CR        7/31/15


Can the State rely on Transportation Code §724.012(b)(3)(B) for a warrantless blood draw?


No. While §724.012(b)(3)(B) as written allows the State to get a blood draw without a warrant for any suspect with two or more previous DWI convictions, after Missouri v. McNeely, this statute no longer authorizes warrantless blood draws. Additionally, McNeely was ruled to apply retroactively, and there is no good faith reliance exception. Read opinion.


This is another decision by a court of appeals that follows the November 26, 2014, decision of the Court of Criminal Appeals in State v. Villarreal. The only problem with that is that the Court of Criminal Appeals has granted rehearing in Villarreal, and the make-up of the court has changed significantly since November 26. That does not mean that the court is going to change the result in Villarreal.  But is it too much trouble to wait and actually see what the court is going to do in Villarreal?


Office of the Attorney General

Letter from the Washington County Attorney

KP-0030                8/10/15


May a county attorney with criminal jurisdiction, pursuant to Government Code §41.005, retain a commission on bond forfeiture collection?


Yes. A county attorney with criminal jurisdiction who represents the State in related bond forfeiture proceedings may retain a portion of bond forfeiture collections as a commission without the approval of the commissioners court. Read.


As Attorney General opinions go, this is very short and to the point. The opinion construes the controlling statute on the matter, and it applies a prior Attorney General opinion dealing with district attorneys, providing the same reasoning in support of county attorneys with criminal jurisdiction.

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