December 24, 2010

Texas Courts of Appeals

Necessary v. State – 1st COA

12/16/10 : Cite No. 01-10-00734-CR


Do double jeopardy protections bar a charge of assault after a protective order has been entered in the same matter?


No, a protective order is not criminally punitive, so double jeopardy considerations are not implicated. Read Opinion.


This decision is in line with previous decisions on the same or similar issue. It should be helpful to show your defense lawyer if he is trying to think of ways to delay the start of your family violence trial.


In re Lowell Thompson – 3rd COA

12/21/10 : Cite No. 03-10-00689-CV


When a party files a motion to recuse a trial judge, must the judge recuse himself or refer the motion to the administrative judge?


Yes, in the face of a motion to recuse, a trial judge has only those two options. Read Opinion.


The appellate court lacks the jurisdiction to consider this application for a writ of mandamus because Judge Baird was not acting in a judicial capacity in conducting a court of inquiry. In fact, the trial judge was not holding a legitimate court of inquiry. Read Dissent.


This case involves the very unusual situation in which relatives of an executed capital murder defendant from Navarro County filed a request to convene a court of inquiry with a Travis County judge. The Navarro County District Attorney filed a motion to recuse that particular Travis County judge, but the judge refused to consider the motion to recuse, believing that the Navarro County District Attorney had no standing before the court of inquiry. Very touchy issues are involves in this case-opposition to the death penalty, actual innocence, exoneration. But it seems that there is a right way to do things and a wrong way to do things. And attacking a Navarro County conviction and death sentence in a Travis County court does not seem to be the right way. The bottom line of this decision is that, when a judge receives a motion to recuse, he generally has no choice but to grant the motion or refer the motion to the local administrative judge.


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