Texas Courts of Appeals
Privette v. State
No. 06-19-00162-CR 11/26/19
Issue:
Does Penal Code §3.03(a), which limits the trial court’s general statutory authority to impose consecutive or cumulative sentences, apply to a deferred adjudication order?
Holding:
No. Penal Code §3.03(a) does not apply to an order of deferred adjudication. For it to apply, §3.03(a) requires that 1) an accused be found guilty of more than one offense, 2) the offenses arose out of the same criminal episode, and 3) the offenses were prosecuted in a single criminal action. Because the trial court deferred the adjudication of the defendant’s guilt, it made no finding of guilt on the second offense. As a result, the defendant has not been found guilty of more than one offense arising out of the same criminal episode. Read Opinion.
Commentary:
This is an interesting remedy chosen by the trial judge—sentencing the defendant on one charge (prison time) and resetting the other case until after that sentence had been served, after which the trial court placed the defendant on deferred adjudication community supervision. It looked like a cumulation of sentences to the defendant, but the court of appeals used statutory construction to hold that no cumulation or “stacking” actually occurred—just a resetting. The Court of Criminal Appeals may wish to review this decision, because it is a novel approach.
Hyland v. State
No. 13-16-00596-CR 11/21/19
Issue:
Is the State required to obtain a second search warrant to re-test a defendant’s blood when the initial blood draw was done pursuant to a valid warrant and lawfully in the possession of the State?
Holding:
No. The State was not required to get a second search warrant to re-test the defendant’s blood because it had a valid search warrant. Additionally, the blood was not drawn by hospital staff for “medical purposes,” but rather pursuant to a valid warrant being executed by law enforcement. The blood evidence obtained via the warrant was then maintained as evidence by law enforcement and the State. Read Opinion.
Commentary:
This is a decision that all should watch closely. It may be reviewed by the Court of Criminal Appeals. In the meantime, it is important authority to cite that a second search warrant need not be obtained to test a defendant’s blood after—as in the typical situation—the defendant’s blood had already been obtained by a valid warrant. This decision distinguished the previous decision issued in Martinez, which the court cites in its opinion.
Perez-Mancha v. State
No. 14-18-00713-CR 11/21/19
Issue:
Was a jury charge erroneous when it authorized the jury to convict the defendant based on acts of sexual abuse before September 1, 2007, the effective date of the continuous sexual abuse of a child statute?
Holding:
Yes. The jury charge failed to include an instruction that jurors were permitted to convict the defendant of continuous sexual abuse of a child based only on acts of sexual abuse that were committed on or after September 1, 2007. Because the charge presented the jury with a “broader chronological perimeter” than the statute permits, it was erroneous. Read Opinion.
Commentary:
This is an important decision if you are prosecuting a continuing offense. Keep in mind when the continuing offense statute took effect. Conduct that occurred before that date cannot be made part of the offense. That would violate the effective date language that the Legislature typically imposes in creating or amending statutes—that the elements of the offense must occur on or after the effective date. It might also constitute an ex post facto violation to include conduct that occurred before the effective date of the continuing offense statute.
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