Texas Court of Criminal Appeals
No. PD-0251-16 1/25/17
Can a deadly weapon finding be appropriate in an arson case when the fire does not actually seriously harm or kill anyone?
Yes. A deadly weapon finding is appropriate in an arson case when evidence shows that someone ignited combustible material to intentionally burn down a house in a residential neighborhood. The Court distinguished this case from those in which it held that a car can be classified as a deadly weapon only when its manner of use places another person in actual danger of harm. See Brister v. State, 449 S.W.3d 490 (Tex. Crim. App. 2014). “[A]rson cases are not entirely analogous to the vehicle-as-a-deadly-weapon cases. … Fire is inherently dangerous in a way that cars are not and it is capable of inflicting serious bodily harm, especially when it is intentionally started in a residential neighborhood.” Read opinion.
A court of appeals second guessing whether something is a deadly weapon often ends badly for the court of appeals. This case is no exception. Opposing counsel (and sometimes courts) often reflexively believe that “no one got hurt” means no deadly weapon was used. It is a much more complicated analysis than that.
No. PD-1480-15 1/25/17
Is a community caretaking stop justified when an officer: 1) sees a passenger in a car hunched over and motionless, 2) smells the odor of alcohol wafting out of an SUV that is stopped at a traffic light in a bar district, 3) notes that the driver does not appear to be helping the passenger, and 4) while stopped at the traffic light, neither the driver nor passenger responds to the officer’s question about whether the passenger is OK?
Yes. Evaluating the officer’s stop of the car under the factors used for community caretaking stops in Wright v. State, 7 S.W.3d 148 (Tex. Crim. App. 1999), the Court concluded that the officer could reasonably have believed that the passenger might have been suffering from alcohol poisoning and needed medical attention. This justified his stop of the car, which later led to the driver’s conviction for DWI. The Court also noted that when an officer has a reasonable belief to pull over a vehicle under the community caretaking exception, the officer does not also need reasonable suspicion of criminal activity to pull over the driver. Read opinion.
This case is educational for two reasons. First, it illustrates the importance of trial courts as the determiners of credibility and the deference the intermediate courts must give to that. The trial court could have believed the officer’s testimony was a ruse to conduct a DWI investigation. But, the court believed the officer’s testimony that he was concerned for the well-being of the passed-out female passenger, and the court of appeals cannot undo that implicit finding. Second, the Court highlighted an unresolved issue that may be useful to prosecutors—the Supreme Court’s move away from 4th Amendment analyses based on officer intent. Cady v. Dombrowski comes from a time when the Supreme Court was more interested in the subjective motivations of officers, but since then, the justices have steadily moved away from subjective tests. Sometimes, the same set of facts might be subject to multiple interpretations, i.e. the person is either sick—community caretaking—or drunk—reasonable suspicion of criminal activity. Some authorities have indicated that a community caretaking argument forecloses a reasonable suspicion fall-back argument. The Court’s dicta in this case shows that you can argue both, at least until the CCA or Supreme Court clearly decide otherwise.
Texas Courts of Appeals
Collins v. State (8th COA)
No. 08-15-00103-CR 1/18/17
May a district attorney seek recusal in a case due to a heavy caseload?
Yes. An elected prosecutor can be excused from representing the State in a criminal case in two different ways: 1) disqualification, such as when a conflict of interest exists, or 2) recusal for “good cause” under Code of Criminal Procedure Art. 2.07(b-1). There is no limitation in Art. 2.07 as to what qualifies as good cause for recusal, and a trial judge has some discretion in evaluating a recusal request. In this case, involving a complicated murder, the judge properly granted a recusal based on the large number of cases already set for jury trial and the district attorney’s current caseload. Read opinion.
This opinion gives some framework to what constitutes “good cause” for a district attorney to recuse himself. The court gives that language a broad construction that should be helpful for offices that face less-traditional situations that they nonetheless believe require recusal.
Trevino v. State (8th COA)
No. 08-14-00216-CR 1/20/17
Does the term “investigation” in the impeding investigation statute (Penal Code §38.15) refer only to an investigation of a crime or Penal Code violation?
No. The Penal Code does not provide a specific definition for “investigation,” and therefore, courts may look to the word’s broader meaning, which includes inquiring into virtually any legitimate matter. Law enforcement officers’ duties require them to investigate more than just crimes and Penal Code violations. In this case, officers were carrying out duties under Chapter 573 of the Health & Safety Code to investigate a potential suicide, and there was sufficient evidence that the defendant interfered with an officer’s attempts to investigate another family member’s mental health and safety after the officer had been called to the scene. Read opinion.
A good, officer friendly opinion. Let the police do their job, people.
Robinson v. State (1st COA)
Nos. 01-15-00808-CR & -809-CR 1/19/17
When a trial court has erroneously assessed multiple court costs in a single action with convictions for more than one offense, is the appropriate remedy to apply the rule of lenity and vacate court costs for the case with the highest amount of court cost?
No. Under Code of Criminal Procedure Art. 102.07, the trial court may assess court costs only once per proceeding, but when costs and fees for more than one offense in the same proceeding have been assessed, the appropriate remedy is to delete the duplicate costs only. Read opinion.
The war over court costs continue. The partial victory here goes to the accountants.
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.