Texas Courts of Appeals
Bleimeyer v. State
No. 14-18-01082-CR 1/7/21
Issue:
Was the evidence legally sufficient to convict a stepmother of injury to a child by depriving the child of food and adequate medical treatment over the husband’s statement that he alone was responsible for the child’s care?
Holding:
Yes. A jury could have concluded that the stepmother assumed care, custody, or control of the child and knowingly withheld food and medical care through testimony from the child and other children in the house that the stepmother was the driving force in punishment of the child, which included withholding food. Withholding food and medical care led to serious bodily injury by causing the beginning of liver failure and the risk of kidney failure and heart arrhythmia, as well as causing the child’s height to be permanently stunted by about three inches. Read opinion.
Commentary:
The sad truth you will learn from this opinion is that Texas has an entire body of caselaw regarding starvation of children.
Weatherly v. State
No. 02-19-00394-CR 1/7/21
Issue:
In an appeal from a nunc pro tunc order, can a defendant challenge the constitutionality of Chapter 62 as applied to him because the order added a requirement that he register as a sex offender for committing unlawful restraint of a child, which he alleged is not a sex offense?
Holding:
No. Review of a nunc pro tunc order does not extend to the underlying conviction or other ancillary matters relating to the conviction. The order requiring sex offender registration was appropriate, because even though unlawful restraint of a child is not considered a “sex offense,” it is a reportable conviction that requires registration under Chapter 62. Read opinion.
Concurrence (Sudderth, C.J.):
“Although I join the majority opinion and agree that it correctly reflects the current status of the law, I write separately to urge the Court of Criminal Appeals to reconsider its characterization of ‘judicial error’ in the context of judgments nunc pro tunc. In my mind, the substantive change made to the judgment here should be considered a ‘judicial error,’ notwithstanding that the change was made to comply with the law.” Read opinion.
Dissent (Wallach, J.):
“We are authorized to address the merits of Weatherly’s appellate issue because he is directly attacking the validity of the nunc pro tunc order itself, not his underlying conviction and sentence. Additionally, and based on my review of the sex-offender registration program (SORP), I would disagree with the trial court and would hold that the application of the SORP to Weatherly’s nonsexual offense violated his due-process rights because its application is not rationally related to the government’s interest in the SORP—the need for heightened public awareness of and protection from sexual offenders.” Read opinion.
Commentary:
All of these unpublished opinions would have been avoided had the judgment been correct in the first place. Instead, the judgment in this case has required correction by nunc pro tunc four times. Many judges and lawyers think that judgments are meaningless paperwork prepared by some anonymous staffer in a windowless office in the courthouse. Years ago, when Texas’s punishment scheme had far fewer findings, grades of offenses, enhancements, and other orders, judgments were fairly easy to produce. Now, judgments are complicated, multi-page documents with many secondary effects on sentences and the post-sentence life of the convicted. It might be a wise investment of your time to review the judgments in 3g and sex offender cases to ensure the judgments are correct—it could save you years of litigation and heartbreak.
Texas Attorney General Opinions
KP-347 1/11/21
Issue:
What are the limits to public access to the Texas Capitol and whether members of the legislature may vote on legislation from a location other than their respective chambers?
Conclusion:
Article III, §16 of the Texas Constitution requires that sessions of each House be open, except when the Senate is in executive session. Thus, when the Legislature meets for session in the Capitol, it must be open and accessible to the public.
The First Amendment of the U.S. Constitution prohibits laws that abridge the freedom of speech or the right of the people to petition the government for a redress of grievances. However, to the extent that the Capitol is a limited public forum, the Legislature may impose reasonable content-neutral conditions for the time, place, and manner of access.
Article III, §10 establishes a quorum of two-thirds of each House to do business, and it ties quorum to “attendance.” A court could construe this term and others in the Texas Constitution to require physical presence in the chamber in order to attend and be counted for purposes of a quorum.
Article III, §11 of the Texas Constitution provides that each “House may determine the rules of its own proceedings.” However, the House and Senate must determine procedures consistent with the Texas and U.S. Constitutions for providing public access, conducting public testimony, debate, and voting on legislation during the legislative session. The rules set by the House and Senate have historically conformed to constitutional restraints requiring voting and debate to occur in person. Read opinion.
Commentary:
Balancing open government and pandemic defense will be a challenge. Fasten your seatbelt and make sure you have plenty of popcorn.
Opinion Request 0395-KP 1/12/21
Issue:
How do Local Gov’t Code Chapter 171 and Gov’t Code Chapter 573 apply regarding conflicts of interest and nepotism for a county attorney whose father-in-law is a partner at a law firm that contracts with Harris County? Read request.
Free training from the National Computer Forensics Institute
The National Computer Forensics Institute (NCFI) will be offering free on-line training for state and local prosecutors, with 1.5 hour sessions offered on Jan. 27, Feb. 3, Feb. 10, Feb. 17, and Feb. 24.
The NCFI, operating since 2008, is a federally funded training facility located in Hoover, Alabama, and operated in a partnership between the Alabama District Attorney’s and the United States Secret Service. The NCFI provides training in digital evidence/computer forensics to state and local prosecutors, judges, and law enforcement for the entire country and U.S. territories.
The normal training offerings for prosecutors are our Digital Evidence for Prosecutors (DEP) and Advanced Digital Evidence for Prosecutors (ADEP) classes. Both are a 5-day, in-person training in Alabama. However, because of the COVID-19 travel restrictions we have had to cancel in-person trainings since March of 2020. Until we are able to return to classroom training, the NCFI will offer a series of 1-2 hour training blocks on a WebEx platform. Training includes sessions on search warrants for digital evidence, encryption in criminal prosecutions, and mobile device investigations for prosecutors.
Chris Kelly, a longtime NCFI legal instructor, will instruct the trainings. Chris is a former prosecutor, and now the director of the Digital Evidence Laboratory of the Massachusetts Attorney General’s Office.
The only way to participate in the trainings is to register with us and view the class live as it is offered via Webex Training Center. All sessions will be live, and each session will last approximately 1.5 hours.
To register for the class you must be an active state or local prosecutor within the United States or U.S. Territories. You will need to log in to the session 5-10 minutes prior to the start time. You will be unable to enter the session once it has begun.
Please contact Barry Page ([email protected]), Alicia Holcombe ([email protected]) or Kori Holcombe ([email protected]) with questions. For more information, see https://www.tdcaa.com/free-training-from-the-national-computer-forensics-institute/.