January 20, 2016

Texas Courts of Appeals

Senn v. State (2nd COA)

No. 02-15-00201-CR         1/12/17


Is the State required to show that a defendant was in a bigamous relationship with a sexual assault victim as defined by Penal Code §25.01 to prosecute him under the sexual assault enhancement found in Penal Code §22.011(f)?


No. Under a plain reading of the statute and looking to other provisions in the statutory scheme, the Court concluded that the phrase “prohibited from marrying” in §22.011(f) is not tied to the phrase “under Section 25.01.” The State is not required to show that a defendant was engaged in a bigamous relationship with the victim under §25.01 to trigger the enhancement provision of §22.011(f). A jury charge in this situation does not need to include any instructions on bigamy or a reference to §25.01. Read opinion.


This odd statute continues to generate case law. Grammar police will appreciate the court’s construction of the statue. The court’s holding that the statute applies beyond a bigamy situations bears watching.

Texas Attorney General Opinions

No. KP-0130        1/18/17


Is a county attorney who is appointed by the district attorney to serve as a special prosecutor eligible to be paid additional compensation?


No. A county attorney is not entitled to receive extra compensation for representing the State in a criminal matter in the county’s district court at the request of the district attorney. Read opinion.


This opinion should not be a surprise. It is a good reminder that if you as a prosecutor are going to be doing work in another court or jurisdiction on a regular basis, any additional compensation for that work needs to be settled on by the interested commissioners courts and made part of your regular county salary.

No. KP-0127        1/18/17


The presiding officer of the Texas Forensic Science Commission asked the Attorney General a series of questions involving admissibility of forensic analyses in Texas courts, statutory authority of the Texas Forensic Science Commission, and reporting requirements for some crime laboratories.


Although the Attorney General’s Office declined to answer directly a question relating to the admissibility of expert testimony on forensic analysis, it noted that Code of Criminal Procedure Art. 38.35(d)(1) likely prevails over Rule of Evidence 702 in regard to admissibility of expert opinion on forensic analysis of physical evidence. The opinion further concluded that a “forensic analysis” is inadmissible under Art. 38.35(d)(1) if it comes from a crime laboratory that is neither accredited by the Texas Forensic Science Commission nor exempt from accreditation by statute or administrative rule. The AG also determined that the Commission has discretion to deny a lab an exemption from accreditation under CCP Art. 38.01, §4-d(c). Finally, the opinion concluded that under CCP Art. 38.01, §4(a)(2), a crime laboratory must report to the Commission any professional negligence or professional misconduct that relates to forensic analyses in all disciplines, not just those that are accredited. Read opinion.


The AG is almost certainly right—the Rules of Evidence aren’t going to allow admission of evidence that is inadmissible under Article 38.35. Make sure that you and your agencies are using accredited labs for everything.

Mandatory Brady Training

Every lawyer in a prosecutor office prosecuting criminal cases above Class C misdemeanors must complete a mandatory one hour training on Brady and the duty to disclose exculpatory evidence within 180 days of beginning work as a prosecutor. See Tex. Gov’t Code §41.111. TDCAA offers a court-approved class online that is free.  You can find it on the TDCAA web site here. Once you complete the course, TDCAA will report your compliance to the Court of Criminal Appeals. If you have any questions, call Rob Kepple at 512-474-2436.

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the 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 commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected]