February 11. 2011

Court of Criminal Appeals

Cada v. State

02/09/11 : Cite No. PD-0754-10


Was it a material difference when the defendant was charged with retaliation against a "witness" and the State showed that the victim was a "potential witness" or an "informant?"


Yes. While there is some overlap between the various portions of the retaliation statute( Section 36.06(a)(1)(A)), due process requires that the State must prove every element it has alleged. Read Opinion.


Since the court has now clearly identified the various types of victims listed in the retaliation statute as separate and distinct elements of the offense of retaliation, one wonders if the State can now charge and prosecute and convict the defendant again of the offense of retaliation alleging the correct type of victim in the indictment-without violating the defendant’s right against double jeopardy. You don ‘t think so? Well let me ask this then. Is this really the type of case that Jackson v. Virginia would demand to be an acquittal for purposes of a defendant’s right against double jeopardy? The law is probably not on my side, but it seems unfair and even a little wrong that this defendant gets a complete acquittal because the State failed to allege the word "prospective" in the indictment. There is a lesson here for prosecutors-Make sure that your indictments and informations are correct. But I am not sure that this defendant has learned and helpful lessons.

Texas Courts of Appeals

Beechum v. State

02/02/11 : Cite No. 04-10-00276-CR


Did two juvenile probation officers lawfully seize marijuana from an occupant of a parked car?


Yes, their approach was merely an encounter: While conducting a probation check on a residence, the officers parked behind a car with three occupants, saw smoke, smelled marijuana, and saw the drugs in plain view. When asked about the drugs, the defendant simply handed them over. Read Opinion.


This is a good, straight-forward decision that emphasizes that anyone (officer, probation officer, anyone) can approach a defendant without subjecting that defendant to any kind of detention.

Texas Attorney General

Request for Opinion from Presiding Officer of the Texas Forensic Science Commission

01/31/11 : Request No. RQ-0943-GA


How do three phrases in the act which created the Forensic Science Commission(Effective Date, Accredited Laboratory, and Forensic Analysis) impact the authority and scope of the FSC? Read Request.

TDCAA is pleased to offer our members unique case summaries from the U.S. Supreme Court, the 5th Circuit Court of Appeals, the Texas Court of Criminal Appeals, Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The information contained in this email message may be privileged, confidential, and protected from disclosure. Any unauthorized use, printing, copying, disclosure, dissemination of or reliance upon this communication by persons other than the intended recipient may be subject to legal restriction or sanction. Please email comments, problems, or questions to [email protected]. In addition, if you would like to discuss the summaries with fellow prosecutors, look for the thread in our criminal forum.