Court of Criminal Appeals
No. PD-0870-18 6/24/20
If a defendant timely files a motion for new trial and, while the motion for new trial is pending, the trial court enters a nunc pro tunc order, must a defendant seeking to challenge the nunc pro tunc order file notice of appeal within 30 days after the nunc pro tunc order?
No. Because the defendant timely filed a motion for new trial, under Rule 26.2(a)(2), the 30-day deadline for filing notice of appeal was extended to 90 days. Under Rule of Appellate Procedure 26.2(a), if a defendant timely files a motion for new trial and, while the motion for new trial is pending, the trial court enters an appealable order, the defendant must file notice of appeal by the later of the date that is 90 days after sentence is imposed or suspended in open court, or the date that is 30 days after the date the trial court entered the appealable order. Read Opinion.
This decision says almost nothing about nunc pro tunc orders (which the court had already held were appealable orders). This is really a decision about what a defendant can appeal if he files a motion for new trial. Such a defendant can appeal from any appealable order (as well as the conviction and sentence) as long as it occurred within the 90-day time period after the date that the sentence was imposed or probated.
Texas Courts of Appeals
No. 08-18-00145-CR 6/18/20
After having shown a violation of Texas Transportation Code §545.060(a)(1)—that the defendant failed to maintain a single lane—must the State also show a violation of §545.060(a)(2)—that the defendant’s movement from a single lane was unsafe?
No. The Court concluded that a violation of either the requirement to maintain a single lane or the independent prohibition against changing lanes when conditions are not safe to do so constitute separately actionable offenses. Although the Court of Criminal Appeals has also reached this conclusion, the El Paso court noted that the CCA’s opinion in Leming v. State, 493 S.W.3d 552 (Tex. Crim. App. 2016) was a plurality opinion. The 8th Court, after performing an independent analysis of the statute in this case, agreed that the two subsections of §545.060(a) are independent methods for violating the statute. Read Opinion.
You should fully expect the Court of Criminal Appeals to review this decision, and we will see if a majority of that court will now decide as the court of appeals has in this case. A decision from the CCA could certainly clear up the law in these cases. As the plurality did in Leming, the court of appeals here makes a convincing argument in support of its ultimate construction of §545.060(a). Unlike what occurred in Leming, the State did not rely upon driving while intoxicated as an alternate basis for the traffic stop in this case. So the issue is squarely presented. Stay tuned.
No. 03-19-00652-CR 6/19/20
Is the offense of harassment under Penal Code §42.07(a)(7) unconstitutionally overbroad and vague under the First Amendment?
No. The Court concluded that §42.07(a)(7) gives a person of ordinary intelligence a reasonable opportunity to know the prohibited conduct and establishes definite guidelines for law enforcement to follow when determining whether a person has violated this statute. Read Opinion.
Concurring (Kelly, J.):
“I concur only in the Court’s judgment because I have concerns about the Court’s analysis and our decision holding Penal Code §42.07(a)(7) constitutional in Blanchard v. State, No. 03-16-00014-CR, 2016 WL 3144142 (Tex. App. — Austin June 2, 2016, pet. ref’d) (mem. op., not designated for publication).” Read Opinion.
The analysis by the court of appeals in this case is excellent. But the Court of Criminal Appeals already has this issue before it, and those cases may get decided before the CCA has a chance to decide whether to accept review of this decision. Keep watch for decisions from the Court of Criminal Appeals in Ex parte Barton (cited in the majority opinion), Ex parte Sanders (also cited in the majority opinion), and Ex parte Nuncio, 579 S.W.3d 448 (Tex. App. — San Antionio 2019, pet. granted) (construing a similar provision in the same statute).
Texas Attorney General Request for Opinion
RQ-0356-KP Request Received 6/12/20
May a county judge or commissioners court require any person entering a courthouse or other county-owned or controlled building in the county to wear a facial covering in those county buildings during the COVID-19 disaster? Read Request.
RQ-0357-KP Request Received
Does a peace officer have a duty to intervene to prevent another peace officer from violating the rights of a citizen? Read Request.