Texas Court of Appeals
Nos. 03-11-00013/16-CR : 12/23/11
Did the trial court improperly grant a motion for new trial on grounds that a juror was biased against the defendant as a result of the juror observing the defendant react when physically attacked by a witness in the courtroom?
Yes, the trial court wrongly held that it had no discretion to do otherwise. In fact, after a jury is seated, actual bias is no longer grounds for automatic excusal. The matter is within a trial court’s discretion and, in light of its express findings that the juror was qualified to deliberate, the trial court improperly granted the motion.
This is a very rare successful appeal by the State from a granted motion for new trial. The key to the State’s win is the specific findings of fact and conclusions of law entered by the trial judge. Not so long ago, the Rules of Appellate Procedure prohibited such findings/conclusions, permitting only a general grant or denial without comment. The State should be congratulated for seeking the findings/conclusions.
No. 10-11-00162-CR : 12/21/11
Did the trial court have jurisdiction to enter an order of judicial clemency more than three years after discharging the defendant from successfully completed community supervision?
No. The defendant’s failure to file a brief—despite the court’s instructions—constituted a confession of error, although such a confession is not conclusive. Nevertheless, an independent examination of the merits of the claim reveals that the trial court had already made its election under Tex. Code Crim. Proc. art. 42.12, §20 (permitting discharge or judicial clemency after community supervision) and lacked the jurisdiction to revisit that election years later.
This issue comes up every now and then and often catches the State by surprise. This is a good case to share with your judges to prevent delayed clemency. A recent thread on the TDCAA User Forum points out some of the other issues.
Nos. 14-10-00393/394-CR : 12/29/11
Can the value of the software installed on computers be included in calculating the value of the stolen computers?
Yes, no law prohibits the inclusion of installed software in calculating the value of computers for purposes of the theft statute so long as the software was part of the computers at the time and place of the offense.
Is the offense of witness tampering restricted to tampering with State witnesses and prospective witnesses?
No, the offense also applies to defense witnesses and prospective witnesses and may apply beyond witnesses in criminal trials. Moreover, a prospective witness does not have to testify for commission of the offense.
This may be the first case to establish that a “computer” for the purpose of establishing value includes both the hardware and software that is installed. That extra software value is what got this defendant out of state jail felony range. Well done.
Texas Attorney General
Request for Opinion
RQ-1030-GA : 12/11/11
Whether a mental health professional is required by chapter 261, Family Code, to report abuse or neglect that occurred during the childhood of a now-adult patient.