Court of Criminal Appeals
PD-1709-08 : 12/07/11
What offense was the defendant tried for when the indictment and jury charge failed to allege specific essential elements of Health and Safety Code §481.115 (Possession of Substance in PG1) or §481.118 (PG4)?
Possession of Penalty Group 1 (codeine) under §481.115. The court looks at the entire trial record to identify the particular offense for which the defendant was tried. The elements alleged in the indictment and jury charge describe a comprehensive set of codeine compositions that more closely aligns with the general subset of codeine compositions classified in Penalty Group 1 rather than the quite specific mitigating factor or exception classified in Penalty Group 4.
Was the evidence presented sufficient to support a conviction for possession under §481.115?
No. The State must prove the essential element of §481.115 that the codeine does not fall in Penalty Groups 3 or 4. Although evidence showed that the codeine was mixed with promethazine, there was no testimony supporting a finding that the promethazine was in recognized therapeutic amounts or in sufficient proportion to confer on the compound valuable medicinal qualities other than those possessed by the codeine alone.
Judge Cochran differentiates between the three different penalty groups for possession of codeine and what the State must plead and prove for each different offense.
Presiding Judge Keller writes that the sufficiency of the evidence cannot be measured for an offense under §481.115 because the indictment did not authorize a conviction for a PG 1 offense.
This is a function of knowing what to plead and knowing what to prove. If you have a possession of codeine case, make sure that you read the majority opinion, and Judge Cochran’s concurring opinion as well. You will need to plead correctly, including all of the elements of the correct statute, depending upon how much and what purity of codeine that has been recovered. During trial, you will also need to draw from your expert witness testimony concerning the purity and the type and amount of other substances (such as promethazine) with the codeine. So this is clearly more complex than your typical cocaine case, or oftentimes even the typical methamphetamine case. Judge Keller’s dissent is well taken, but it simply did not carry the day in this case. Bad facts always make bad law.
PD-0796-10 : 12/07/11
Is the “grooming” of children for sexual molestation a legitimate subject of expert testimony?
Yes. The legitimacy of “grooming” as a subject of expert testimony is established sufficiently to be judicially noticed. Grooming is a subject matter that falls in the study of the behavior of offenders who sexually victimize children, a legitimate field of expertise. Although social awareness of child sexual abuse has increased, expert testimony on grooming is still useful to the jury because not all jurors are aware of the concept or have the depth of understanding to resolve the issues before them.
Judge Cochran elaborates on the court taking judicial notice of the legitimacy of grooming as a behavioral phenomenon.
Judge Price disagrees with the court’s decision to take judicial notice of an adjudicative fact for the first time on discretionary review.
Do not let the “judicial notice” aspects of this decision scare you. The majority opinion cities to a huge number of decisions across the United States that have previously dealt with “grooming.” It is not a difficult concept. As Judge Cochran puts it, it is not rocket science. This opinion makes clear what a review of the huge amount of case law makes clear. “Grooming” is an appropriate area of testimony for an expert witness with the proper training and experience in a child sex abuse case. This decision is now the seminal decision on “grooming” in Texas, so read it if you have a child sex abuse case and see if you can take advantage of this very helpful expert testimony.
PD-0064-11 & PD-0065-11 : 12/07/11
Must a trial court make an inquiry into the reasonableness of a defense witness’s assertion of the privilege against self-incrimination before refusing to compel testimony from the witness?
Yes. A trial court is required to inquire into the source and reasonableness of a witness’s fear of prosecution before denying the defendant’s request to compel testimony. The court’s earlier opinion in Ross v. State (486 S.W.2d 327) is overruled.
The inquiry does not have to be exhaustive. Just enough to show that the witness has a legitimate apprehension of some type of criminal prosecution. If you need an example, the trial judge made an inquiry in this case that was more than sufficient.
Texas Court of Appeals
No. 14-11-00017-CR : 12/1/11
Did an administrative judge abuse his discretion by denying a motion to recuse a trial judge where, as a policy decision, the trial judge refused to agree to any plea bargain agreement in which a first-time DWI offender was admitted to the District Attorney’s Direct Intervention Using Voluntary Education Restitution and Treatment (DIVERT) Program?
No, because the DIVERT program is not part of the legislative range of punishment options for the offense and a trial judge can always refuse to accept a plea bargain agreement—even to an entire class of cases—without regard to the merits.
The case law has always provided that a trial judge is not required to approve a plea bargain. This decision is just an extension of that well-settled case law. And it is always very, very difficult to get a trial judge recused in most cases.
Texas Attorney General
Request for Opinion
RQ-1024-GA : 12/05/11
Re: Authority of a constable with regard to payment of outstanding warrants issued by a justice court.