August 9, 2019

Texas Courts of Appeals

Lindsey v. State

No. 14-18-00054-CR     8/6/19


Did the State’s late disclosure of material rebuttal evidence related to a doctor who had previously treated the defendant for a sexually transmitted disease violate Code of Criminal Procedure Art. 39.14 or Brady?


No. Medical records and a doctor’s testimony that she previously had treated the defendant (convicted of sexual assault) for chlamydia—and a later negative test for chlamydia would have resulted because the defendant had been treated—were adequately disclosed to the defense. The defendant never filed a written discovery request, and the trial court’s standard discovery order only called for the State to turn over evidence “as soon as practicable.” The court also found that under Brady, the evidence was not material, because the outcome of the trial would not have been different if the disclosure had happened before trial, and the defendant also was aware that he had been treated for chlamydia. Read opinion.


Parts of this decision are bound by its particular facts. But the decision reinforces that the main portion of Article 39.14 (the Michael Morton Act) is triggered only by a request, which the defendant did not make in this case. That meant that the defendant could only rely upon Brady, which requires turning over evidence even without a request, but the evidence must be exculpatory and in the State’s possession. This evidence was not in the State’s possession because the defendant sprung the “I-don’t-have-chlamydia” defense late in the game. The State then turned over its rebuttal evidence to the defense as soon as it gained possession of it. The defendant’s claim that the rebuttal evidence was exculpatory because it destroyed his defense was certainly novel, but also certainly wrong. Furthermore, by its very nature, the defendant himself was aware of the rebuttal evidence. The non-disclosure in this case was not committed by the State, but it was committed by the defendant—against his defense counsel.

Harber v. State

No. 04-17-00595-CR     8/7/19


Is evidence sufficient to support a conviction for criminally negligent homicide when the defendant’s commercial driver’s license was suspended on the day he crashed into a tow truck driver, causing his death, and the defendant admits to taking his eyes off the road for a moment before the crash?


No. “In the context of a fatal traffic accident, proof of driving errors that may violate traffic laws or constitute ordinary civil negligence may be insufficient to meet the State’s burden” of proof for criminally negligent homicide. The court also concluded that while “every driver’s goal should be to keep his eyes on the road at all times … it is unreasonable to expect any driver can or will be 100% attentive, and we decline to hold that the failure to maintain 100% attention, alone, is a gross deviation from the ordinary care standard.” Read opinion.


This is a tough decision. The Court of Criminal Appeals may review it because, in its sufficiency analysis, the court of appeals considers—and then rejects—each alleged act of criminal negligence individually. The court of appeals arguably did not look at all of the acts of criminal negligence and the rest of the evidence as a whole. Nevertheless, this decision does underscore how difficult it can be to prove criminal negligence and how very different it is from civil negligence.

Texas Attorney General

KP-0263     8/5/19


May a prosecutor spend pretrial intervention program funds collected under Code of Criminal Procedure Art. 102.0121 to supplement the salary of an attorney or staff member who assists in administering the program?


Under Art. 102.0121, a commissioners court—not the prosecuting attorney—ultimately determines the authorized uses of the county pretrial intervention program fund. Art. 102.0121 authorizes the commissioners court to use the fund for an employee’s salary, salary supplement, or a benefit only to the extent that use of the fund is solely for administration of the pretrial intervention program. Read opinion.


The statute pretty clearly places the responsibility of spending the funds with the commissioners court. The statute less clearly allows for the funds to spend on salaries, so—although the statute may allow for the expenditure—a commissioners court may not agree.


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More Information on Hemp

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