August 27, 2010

Texas Courts of Appeals

Hartsock v. State – 2nd COA

08/19/10 : Cite No. 02-09-305-CR


Did the trial court improperly admit, for demonstrative purposes, a DVD that showed an individual’s eyes with and without HGN, because the State failed to establish the scientific reliability of the portrayed test?


No. The DVD was not used as a scientific method to prove Hartsock was intoxicated but to assist the jury in understanding HGN. The State did not need to prove the scientific reliability of the demonstrative test. Read Opinion.


It certainly appears that the attorneys and the judge did everything to prevent unfair prejudice that might result from the showing of such a DVD. The DVD was merely a training tool used by the District Attorney’s Office to show police officers how a person’s eyes would look with and without HGN, and the officer testified that the DVD would assist him in his testimony. The trial court also instructed the jurors that the DVD (1) did not show the defendant’s eyes, (2) did not show a level of alcohol consumption, and (3) was only being shown to aid the jurors regarding the officer’s testimony.

The videos are available on TDCAA’s website under our DWI resources.

Without HGN click here.

With HGN click here.

Hill v. State – 7th COA

08/19/10 : Cite No. 07-09-00323-CR


As a result of the punishment evidence admitted, did the trial court have a duty to stop the punishment stage on its own motion and order Hill examined for purposes of an insanity defense?


No. The requisite notice of the insanity defense was not given before trial and the procedure for the defense is not the same as that for competence to stand trial. Read Opinion.


There is not even anything in the court’s opinion which suggests that the trial judge should have conducted an inquiry into the defendant’s competency, much less his sanity. But the court of appeals is right to point out that there is no analogy between the two types of inquiries. They may be next to each other in Chapters 46B and 46C of the Code of Criminal Procedure, but the procedures are very different.


Texas Attorney General


Opinion for Aransas County Attorney

08/23/10 : Opinion No. GA-0791


Who has control to manage and invest funds and interest generated by the county jail’s commissary?


Local Government Code section 351.0415 grants the sheriff exclusive control of funds generated by the operation of a jail commissary, requires the sheriff to maintain commissary accounts, and provides that commissary proceeds may be used only to benefit inmates of the county jail. Commissary proceeds are not funds "belonging to the county" under Local Government Code section 113.021(a).

Texas courts follow the common-law rule that interest follows principal unless lawfully separated from the principal. Section 113.021 separates interest from funds "belonging to the county" and allocates it to the county general fund. Because the commissary fund is not a fund "belonging to the county," interest remains with the commissary fund.  Read Opinion.

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