Texas Court of Criminal Appeals
Ex parte Hicks
No. WR-93,188-01 2/16/22
Issue:
Should relief be granted to a defendant who pled guilty to attempted forgery of a government instrument via a plea agreement when it was later determined the instrument ($100 bill) was genuine?
Holding:
Yes. Although the defendant did not prove he is actually innocent of attempted forgery, the record shows the defendant’s plea was unknowing and involuntary. Applying Ex parte Mable, 443 S.W.3d 129 (Tex. Crim App. 2014), the Court held that the defendant must be aware of the “relevant circumstances” when voluntarily agreeing to a plea arrangement and waiving his constitutional rights. Here, all the parties believed the $100 bill was fake, so the defendant was unable to make an informed choice when pleading guilty. Read opinion.
Dissent (Yeary, J., joined by Keller, P.J. as to Part II):
The Court should not sua sponte raise the issue that the defendant’s guilty plea to a lesser offense was involuntary when the defendant did not raise this issue himself. As the Court notes, the defendant has not satisfied his burden to obtain relief based on actual innocence, therefore “[t]hat should be the end of it.” Read opinion.
Commentary:
This case serves as an important reminder for trial lawyers and post-conviction practitioners that factual impossibility is not a defense, even in criminal attempt cases, because it does not excuse the defendant’s conscious, illicit objective or intent. However, even if circumstances that create a factual impossibility (e.g., “drugs” that end up not being illegal, or, as here, a “forged” $100-bill that ends up being genuine) would not result in actual innocence of an attempt offense, they will impact the voluntariness of any plea that the defendant enters. So, the safest practice would be to test the drugs, verify the forged instruments, etc., before proceeding to a plea, regardless of whether the offense involved a completed actus reus or only criminal attempt.
Texas Courts of Appeals
Walker v. State
No. 09-20-00011-CR 2/9/22
Issue:
Is PC §32.16 (securing execution of a document by deception) unconstitutionally vague because it does not define “pecuniary interest”? And did the trial court’s failure to include the definition of “value” in the jury instruction constitute jury charge error?
Holding:
No. Although §32.46 does not define the term “pecuniary interest,” the court concluded it must use its plain and ordinary meaning, which Black’s Law Dictionary defines as being “a direct interest related to money in an action or case.” Here, the trial record indicated the pecuniary interest was proven by evidence that the school district had a financial stake in the amount of money it paid to the defendant for his work at the schools and that he submitted fraudulent documents to the school district. Additionally, the court held the trial court’s failure to define the term “value” in its jury charge was harmless because nothing in the record indicated that the absence of the definition prevented the jury from determining the pecuniary interest the school district lost was because of the defendant’s fraud. Read opinion.
Commentary:
The appellate court’s opinion recites that the defendant argued §32.46 is unconstitutionally vague because it does not define “pecuniary interest” and thus, “it was impossible for the jury to accurately determine whether the value of the pecuniary interest was $200,000 or more.” That complaint does not match up with the typical unconstitutionally-vague challenge because the typical complaint generally asserts that a statute is not specific enough to give a person of ordinary intelligence—namely, the accused—a reasonable opportunity to know that his or her conduct is prohibited by the statute. Nevertheless, although the appellate court applies the law to a novel factual scenario, the underlying principle that a statute is not unconstitutionally vague simply because it contains words or terms that are not specifically defined is well-established by the Court of Criminal Appeals and other intermediate appellate courts.
State v. Moreno
No. 01-19-00861-CR 2/15/22
Issue:
Did the trial court correctly grant a defendant’s motion to set aside the indictment when it determined a defendant’s speedy trial rights had been violated?
Holding:
Yes. The court analyzed the defendant’s speedy trial claim by looking to the Barker v. Wingo, 407 U.S. 514 (1972) factors. Although the defendant did not assert his speedy trial right timely, because 1) the delay in his case was more than seven years; 2) the State offered no explanation for not prosecuting the assault charge when it prosecuted only the defendant’s possession charge; and 3) the defendant showed he was prejudiced because he suffered severe anxiety because of the delay based on his “long history of acute mental infirmities” the court held the Barker factors weighed in favor of the defendant. Read opinion.
Commentary:
This case involved two offenses that were apparently unrelated but were indicted on the same day. The State proceeded to trial on one case (a drug charge) and offered some evidence of the second case (an aggravated assault charge) in the punishment phase of that trial. However, once the defendant was convicted and sent to prison for the drug charge, the State did not pursue trial or do anything else with the aggravated assault charge for many years. Although surely the State had its reasons for not trying the two cases together, this serves as a poignant reminder to not let a defendant’s companion cases slip through the cracks once a conviction is secured in one case.
Texas Attorney General Opinion Request
RQ-0446-KP 2/11/22
Issue:
Does paying the same stipend that all full-time employees received from American Rescue Plan Act (ARPA) funds to elected and appointed officials violate Loc. Gov’t. Code §152.013? And, if it is a violation, what is the remedy?
Requested by:
Jackie Skinner, Tyler County Auditor