No. 03-18-00569-CR 2/14/20
Does a jury instruction stating that a police officer is a public servant under Penal Code §1.07(a)(41) constitute error?
Yes. The Court concluded that the jury instruction was given in error because the question of whether the defendant was a public servant was a question of fact to be resolved by the jury. Additionally, the instruction improperly focused the jury on the type of evidence that would support a finding that the defendant was a public servant. However, the Court also held the error was harmless because the undisputed testimony and other evidence overwhelmingly established that the defendant was a public servant, meaning that any harm that the defendant suffered was theoretical and not actual. Read Opinion.
Concurring and Dissenting (Kelly, J.):
“While I join most of the Court’s opinion, I cannot agree that this trial court’s erroneous instruction, over objection, relieving the State of proving one element of the offense, is harmless under Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g). I respectfully dissent as to issue three and would reverse and remand for that reason.” Read Opinion.
The defendant did not challenge, and the court of appeals did not prohibit, the abstract definition of “government” and “public servant” from §§1.07(a)(24) and 1.07(a)(41) of the Penal Code. What the opinion dealt with was the following definition: “A Police Officer employed by the City of Llano, Texas is a public servant.” But the fact that the defendant was a public servant was not contested at trial. So he clearly was not harmed. The lesson from this case is that a judge should generally not state something as a settled fact or as a matter of law if it is not set forth within a statute or other law (or perhaps a stipulation).
No. 08-18-00190-CR 2/14/20
Does an original indictment that charges three counts of possession or attempted possession of a controlled substance—to-wit: tramadol, by misrepresentation, fraud, forgery, deception, or subterfuge—on three separate dates allege for tolling purposes “the same conduct, act, or transaction” as a subsequent indictment that charges the same conduct in the same manner except for naming oxycodone rather than tramadol as the controlled substance?
Yes. The Court concluded the prior and subsequent indictments alleged the same conduct because the allegations shared the same factual basis and thereby “fairly alerted” the defendant to the need to preserve any essential defensive facts where 1) the prior indictment alleged three counts of knowingly possessing or attempting to possess a controlled substance, to-wit: tramadol, by misrepresentation, fraud, forgery, deception, or subterfuge, on or about the three separate dates; and 2) the subsequent indictment charged the same conduct but merely changed the controlled substance from tramadol to oxycodone. Thus, based on the Court’s holding, the statute of limitations was tolled. Read Opinion.
This is a very helpful decision, as it follows the 2004 decision of the Court of Criminal Appeals in Hernandez, and discusses the 2018 decision of the Court of Criminal Appeals in Marks, that appeared to have undermined Hernandez to some degree. Read all three of these decisions if you are attempting to toll the statute of limitations with a prior charge that is not exactly the same as the new charge.