Court of Criminal Appeals
No. PD-1637-12 7/3/13
Could the defendant raise for the first time on appeal the trial court’s assessment of more than $3,000 in costs for a court-appointed attorney pro tem and investigative fees?
Yes. The defendant had no opportunity to object because the written judgment did not indicate the costs were to be imposed, and the itemized bill of costs did not issue until six days after the judgment. The defendant was not required to raise the issue in a motion for new trial, because that would have allowed the trial court to essentially shorten the statutory time allowed for filing the motion.
This issue would not have been appropriately raised in a motion for new trial.
This opinion is consistent with other recent opinions from the court excusing defendants from the requirement that they object to complain on appeal about events that occurred in the “back office” where they could not otherwise make a timely and specific objection. Problems like this are more likely to occur as judgments become more complicated and the judgment preparation process becomes further removed from the courtroom.
Texas Supreme Court
No. 12-0718 6/28/13 (per curiam)
Is an 8-liner machine that electronically awards only non-immediate right of replay a “gambling device” under PC §47.01?
Yes. This machine does not fit within the statutory exception in PC §47.01(4)(B) because a right of replay is not a “novelty” for purposes of the statute. The legislature intended “novelty” to mean other types of tangible articles similar to “noncash merchandise prizes” and “toys.”
Those who oppose 8-liners will view this as a victory—it prohibits parlors from keeping people playing by awarding them future game credits. “Fuzzy animals” just don’t stimulate the same parts of the brain as additional cash, chips, or credits.
Texas Courts of Appeals
No. 04-12-00278-CR 6/26/13
Did the trial court properly deny the defendant’s motion to suppress autopsy results because the medical examiner had not taken the constitutional oath of office prior to performing the autopsy?
Yes. Medical examiners are governed by CCP art. 49.25, which does not require an oath. An ME is not a public officer because determining the manner and cause of death is not a sovereign function, and the ME is subject to the “direct supervision” and removal by the county commissioners court.
Did the trial court’s entry of two consecutive life sentences for the defendant’s aggravated sexual assault convictions violate the 8th Amendment prohibition on cruel and unusual punishment and contravene the intent of the Legislature in PC §12.31?
No. Even if the sentence amounts to a de facto sentence of life without parole, nothing in the law, including Miller v. Alabama, prohibits a discretionary sentence of LWOP for juvenile offenders who, like the defendant, have committed both homicide and non-homicide offenses in a particularly heinous manner.
This case will be a useful tool unless the Supreme Court continues tinkering with the imposition of life sentences for juvenile offenders. The opinion carefully analyzes Graham and Miller and explains how the defendant’s collection of crimes differs from the narrow issues in those cases. The defendant was convicted of four crimes so heinous the court of appeals declined to describe them in the opinion.
No. 07-11-00392-CR 6/27/13
Does the punishment for continuous sexual abuse of a child violate the 8th Amendment because there is no opportunity for parole, unlike with other, more egregious offenses such as murder?
No. After balancing factors including 1) the national consensus on punishment for this type of crime, 2) the moral culpability of those who commit the crime, 3) the severity of the punishment at issue, and 4) the legitimate penological interests served, the court determined the punishment is not per se cruel and unusual. Additionally the court found that the defendant’s argument that life without parole is a categorically unfair sentence for those defendants with a history of abuse in their own childhoods did not present a justiciable issue.
This defendant sexually assaulted his daughter from age 10 to age 13 “too many times to keep count.” He threatened to kill her, held a knife to her throat, and threated to kill everyone in the house while they slept if she ever reported the abuse. The court coldly, objectively, and seriously rejects his argument that a sentence of years without possibility of parole (not necessarily life without parole) is “cruel and unusual.” Our ancestors are convulsing in their graves over the seriousness with which we treat such nonsensical arguments. And some day, a court of old men and women who have been totally sheltered from the realities of criminal law, criminal litigation, criminal defendants, and victims of criminals, will probably bite off on this argument.
No. 06-12-00187-CR 6/28/13
Are costs associated with a court-appointed investigator the type of legislatively mandated costs and fees that may be assessed and withdrawn from an inmate’s account, regardless of an earlier finding of indigency?
No. The cost of a court-appointed investigator is related to a defendant’s constitutionally mandated defense, like the fees of a court-appointed expert or attorney. In the absence of a legislative mandate, an investigator’s costs may not be assessed without a finding that the defendant has sufficient resources to pay.
This opinion is consistent with other recent opinions regarding assessment of costs of appointed counsel. You may have noticed quite a few opinions in the last couple of years dealing with claims of this kind. Briefs challenging errors in judgments and assessments of costs seem to have replaced the Anders brief.
Texas Attorney General
Is the Kleberg County Commissioners Court authorized to create and fund a separate, full-time bailiff to serve Kleberg County in 105th District Court when Government Code §53.001 provides for a bailiff for the district?