Texas Courts of Appeals
No. 04-17-00187-CR 7/18/18
Is evidence that a defendant failed to report to jail as ordered after his bail was revoked sufficient to support a conviction under Penal Code §38.10 (Bail Jumping and Failure to Appear)?
Yes. Penal Code §38.10 requires that a defendant be “released” from custody and later fail to “appear” as ordered. Here, the defendant’s presence was required during the hearing, and he was not permitted to leave the courtroom. After his bail was revoked, the defendant was free to leave only when the judge permitted him to accompany his elderly mother back home on the condition that he report to the county jail afterward. The defendant was “released” under the plain meaning of the word. The term “appear” is construed according to the specific terms of the defendant’s release from custody. This could include an “appearance” at a judicial proceeding, but also any other place the defendant may be required to report as a condition of his release. Here, the defendant failed to appear when he did not report to the county jail as ordered. Read opinion.
The Court engaged in a lengthy statutory analysis to arrive at its conclusion. But what the defendant did really fits within the plain language, and the equities were all on the side of backing up a merciful trial judge.
No. 04-17-00509-CR 7/18/18
Does Double Jeopardy prevent the State from seeking the death penalty again after a defendant’s first death sentence was overturned based on perjured testimony in the punishment phase?
No. A defendant is entitled to a new punishment hearing when the verdict during the punishment phase of trial relied on perjured testimony presented by the State. Double Jeopardy does not bar a new punishment hearing because the sentence was set aside based on procedural error, not for lack of evidence. This is distinct from a case where a prosecutor’s Brady violation goads a mistrial, barring retrial, because this case was tried to conclusion and the perjured testimony was not discovered until after conviction. Read opinion.
This is a very interesting case. The defendant will likely raise this claim again post-conviction if he is sentenced to death again, which seems likely based on the horrific facts of his murders. Prudent prosecutors trying an important case and using a former officer as a witness should review the officer’s history with his agency if there is anything that doesn’t seem right about him.