December 4, 2009

Texas Court of Criminal Appeals

Murray v State

11/25/09 : Cite No. PD-1055-08 : Plea Bargains


Was the defendant entitled to withdraw his plea to forgery when it was not a lesser-included offense to the indicted charge of making a false statement to obtain credit?


Yes. The test adopted in Hall v. State applies to both jury trials and to pleas. Under the cognate-pleadings test adopted in Hall v. State the court’s judgment would be void if it accepted the plea. Read Opinion.


It is good that the court has definitively answered the question of whether a defendant can be permitted to plead guilty to a lesser offense that is not a lesser included offense. But if a defendant has not made any objection at the plea proceedings in such a situation, make sure that you claim that a defendant is estopped from challenging that lesser conviction in the future. The State’s estoppel argument in this case did not work because the defendant had filed a motion to withdraw his plea of guilty.


Texas Courts of Criminal Appeals

Ex Parte Craft – 2nd COA

11/24/09 : Cite Nos. 02-09-244-CR and 02-09-245-CR : Timely Filing


Did the State satisfy the requirements of CCP article 17.151 when it filed felony informations but did not obtain indictments from the grand jury?


No. The Texas Constitution requires that, unless waived by the defendant, the State must obtain a grand jury indictment in a felony case. Without that the trial court does not have jurisdiction to try the case. Read Opinion.


If the trial court did not have jurisdiction, the State could not have been ready to go to trial, which is required to prevent the application of Article 17.151. Watch out for this decision, or it can catch you by surprise. The moral of the story is not to delay too long in getting a case indicted.


State v Froid – 2nd COA

11/25/09 : Cite No. 02-08-340-CR : Motion to Suppress


Did the State properly preserve its appeal when the judge filed findings of fact and conclusions of law, but the State was dissatisfied with those filings?


No. The State gave no opportunity to the trial court to address the concern and clarify the findings of fact and conclusions of law. The State waived its complaint. Read Opinion.


The State cannot complain about the insufficient findings for the first time in its appeal. So if the trial court has made insufficient findings, you can object and demand more sufficient findings. The decision of the Court of Criminal Appeals in State v. Cullen, upon which this decision is based, requires the trial court to make findings that are sufficient to provide an appellate court with a basis upon which to review the trial court’s application of the law to the facts.


Chavarria v State – 4th COA

11/25/09 : Cite No. 04-08-00447-CR : Expert Witness


Did the trial court properly allow the expert testimony in the area of child sexual abuse when the expert did not testify about the rate of error of his methodology and his methodology had not been submitted for peer review?


Yes. While fact-specific, here the court properly applied the test from Nenno v. State for soft sciences rather than Kelly v. State. Read Opinion.


This is a good opinion to have handy if defense counsel is claiming that the "hard science" decision of Kelly v. State applies to your "soft science" expert testimony, which is controlled instead by Nenno v. State. If you have such a case, make sure that read all of this decision, but pay particular attention to the final application-the first paragraph of the final Section B of the opinion.


Butler v State – 6th COA

11/12/09 : Cite No. 06-08-00194-CR – Recording Statements


Did the interviewing detective violate the defendant’s constitutional rights by secretly recording his confession to the sexual assault?


No. Deceiving the defendant into thinking he was not being recorded was not coercive nor could it have overborne the appellantss will. Read Opinion.


After 1989, Article 38.22, §3 no longer requires a suspect to be informed that a recorded interview is in fact being recorded. Make sure that your judge and your paperwork does not contain any suggestion that this old requirement is still the law, especially if your officers feel the need to conduct a surreptitious recording. This decision also makes a good application of the law involving traffic stops. The State is not required to prove that a traffic violation was actually committed; it must only prove that the officer had reasonable suspicion and/or probable cause for the stop.


Sepeda v. State – 7th COA 

11/17/09 : Cite No. 07-08-0190-CR : Motion for DNA Testing


Did the State’s failure to file a response to the defendant’s motion for DNA testing entitle the defendant to testing?


No. The defendant was still required to show that he was entitled to the testing as a matter of law. Read Opinion.


It is probably not a good idea to make a habit of not responding to a defendant’s request for post-conviction DNA testing. But this decision is at least helpful in emphasizing that the burden is on a defendant to prove up his need for post-conviction testing.

Texas Attorney General Opinions

Opinion No. GA-0744

Question from Potter County:

May a county auditor require the county treasurer to obtain prior approval for a transfer of county funds from one account in the county depository to another, or from one investment to another?


A county auditor may adopt regulations and procedures for transferring county funds from one account in the county depository to another that include the auditor’s preapproval. The county auditor may adopt procedures for transferring county funds between county investments to the extent that it does not usurp or unreasonably interfere with the county treasurer’s investment authority. Read Opinion.


Opinion No. GA-0745

Question from Grimes County

May a justice of the peace defer the adjudication of a charge of violating the Parks and Wildlife Code and impose a special expense without assessing a fine and, if so, must any portion of the special expense be remitted to the Parks and Wildlife Department?


A justice of the peace may defer the adjudication of a charge of violating the Parks and Wildlife Code and impose a special expense fee without assessing a fine. A special expense fee imposed under CCP article 45.051 is not a fine under Parks & Wildlife Code §12.107 that must be sent to the Parks and Wildlife Department. Read Opinion.


Request for Opinion


Aransas County has asked the Attorney General to address the use and management of a county jail commissary fund under §351.0415, Local Government Code. Any elected prosecutors with input on this issue should contact the Attorney General’s Office. Read Request.


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