June 10, 2011

Fifth Circuit Court of Appeals

McKinley v. Abbott

06/08/11 : Cite No. 10-50568


Do §§38.12(d)(2)(A) and 38.12(d)(2)(C) of the Penal Code, which limit attorneys, chiropractors, and other professionals from solicitation of employment during the first 30 days following an accident, violate the free speech portions of the Texas and United States Constitutions?


No. The State has a substantial interest in protecting the privacy of accident victims. Secondly, the 30-day period addresses a real harm and does so in a manner which materially alleviates the harm. Lastly, the 30-day period is both reasonable and in proportion to the interests served. Read Opinion.


This decision should be important for those of you who prosecute barratry cases because it upholds that constitutionality of the statute after the 2009 amendments, which included within its scope solicitations by telephone or in-person, and not just in writing. The court leaves open the slimmest of hopes that a defendant could raise an as-applied challenge to the statute. But based upon this analysis, such an attack would probably fail just as this facial challenge to the statute has failed.

Court of Criminal Appeals

Archie v. State

06/08/11 : Cite No. PD-0189-10


Were the State’s rhetorical questions during final argument improper comments on the defendant’s failure to testify?


Yes; however, the trial court did not abuse its discretion in denying the defendant’s motion for mistrial. Read Opinion.


The State prevailed here, but you need to read this decision and make sure that you do not cross the line that was crossed here. The court held that the prosecutor was properly permitted to comment upon what the defendant said in a letter that he had written. But that proper comment then strayed into commenting on the defendant’s failure to testify and was improper. It certainly did not help that the prosecutor pointed at the defendant and took a couple of steps toward him while making the comments.

Davis v. State

06/08/11 : Cite No. PD-0845-10


Did the State fail to bring the defendant to trial within the time limits prescribed by the Interstate Agreement on Detainers Act when it received a continuance to amend the original indictment?


Possibly, but the record is insufficient to show if the trial court abused its discretion when it found the reason for the continuance to be necessary or reasonable. Read Opinion.


Judge Johnson states that the burden of making the record which allows the comparison of the two indictments is on the defendant opposing the continuance. Read Concurrence.


This opinion is a classic example of why it can be so difficult for the appealing party (in most cases, the defendant) to prevail on appeal. The moral of the story for the State in this case is to make sure that the record always reflects the reasons that support the action that you are taking. If you handle a case controlled by the IADA, you need to read this decision and become comfortable with the requirements for a speedy trial under the Act.

Texas Courts of Appeals

Montgomery v. State – 14th COA

06/02/11 : Cite No. 14-09-00887-CR


Was the evidence sufficient to support a conviction for criminally negligent homicide where the indictment alleged an unsafe lane change, a failure to keep a proper lookout, and use of a motor vehicle as a deadly weapon?


No, because the State offered no evidence to show (1) an increased risk of traffic deaths due to cell phone usage, and (2) that such risk, if any, is generally known and disapproved of in the community. Read Opinion.


“Contrary to the majority’s assertion, the State had no burden to show that driving while using a cell phone is always distracting, commonly dangerous, generally risky, or causes increased traffic deaths. The State had only to show that in this case, under these circumstances, appellant’s use of a cell phone was distracting, dangerous, and risky because it prevented her from maintaining a proper lookout.” Read Dissent.


This is a stunning decision and should be overturned by the Court of Criminal Appeals. The majority focused so much upon the defendant’s cell phone usage just prior to the offense that they completely missed addressing the acts of negligence that were actually alleged. The defendant realized that she had missed a freeway entrance ramp, so she abruptly crossed two lanes of traffic to get to the entrance ramp and pulled in front of a vehicle in the process. That vehicle could not miss the defendant, so it struck her vehicle, and her vehicle then proceeded to strike another vehicle that was properly traveling on the entrance ramp. The third vehicle overturned as a result of the impact from the defendant’s vehicle, and a passenger in the third vehicle fell out of the vehicle and died. 


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