July 18, 2014



Texas Courts of Criminal Appeals

Klemisch v. State

No. 07-12-00398-CR              7/11/14


When the defendant was indicted a month after his arrest for felony marijuana possession in a school zone, and the prosecution dismissed that indictment two years later and charged him with misdemeanor possession when it became apparent there was a problem with the school-zone allegation, was the misdemeanor charge barred by limitations?


No. The statute of limitations was tolled by the indictment, and the information contained a paragraph correctly stating that fact. Read the opinion.


The other side might think it unfair that the statute of limitations is tolled by an alleged offense the State cannot prove. But if a prosecutor actually did such an act on purpose, the defendant simply has a different remedy. A quirky case.

Fuelberg v. State

No. 03-11-00317-CR 7/16/14


Was the judge disqualified from hearing a theft/misapplication of fiduciary property case involving the Pedernales Electric Cooperative when the judge was a PEC customer and therefore also a member of the cooperative, making him an injured party in the case under Art. 30.01 of the Code of Criminal Procedure?


No. The test for whether a judge is an injured party is whether the judge’s involvement as a party was such that a reasonable person would doubt the judge’s impartiality. In this case, the judge’s involvement with PEC did not go much deeper than any other regular customer, and a reasonable person could conclude he could remain impartial. Read the opinion.


This case bears watching. The trial judge had been a civil plaintiff against the defendant in related litigation and stood to receive some portion of any restitution paid in the case. While the monetary amounts in question are nominal—less than $25 total— and while the defense offered evidence and arguments (including polling data) to establish that this amount effected the neutrality of the judge, the court gives us no insight as to when the amount of money received by a judge in the criminal matter (and related litigation) triggers disqualification or recusal. Is it $50? Is it $500? $5,000? 


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