Texas Court of Criminal Appeals
No. PD-0314-18 6/26/19
Is a peace officer working as private security discharging an official duty when acting under Alcoholic Beverage Code §101.07?
Yes. Section 101.07 requires peace officers to enforce provisions of the Alcoholic Beverage Code. A peace officer working private security who enforces one of those provisions is lawfully discharging an official duty, even if the officer was also enforcing a house rule of the private employer. Here, the defendant was continually removing alcoholic beverages from the premises, in violation of both a house rule and Alcoholic Beverage Code §28.10(b). After several warnings by staff, the defendant was informed by an officer working private security that he was no longer welcome on the premises due to rule violations. Although violation of §28.10(b) has no criminal liability and the defendant was not subject to arrest at that time, he nonetheless assaulted a public servant by jumping on and knocking down the officer. Read opinion.
This is a very fact-specific case that may be of little help in future cases. There are much more helpful previous decisions dealing with what constitutes the lawful discharge of an official duty, and that can include an off-duty police officer and an officer whose shift has ended. This decision deals with an application of the Alcoholic Beverage Code, so it will be helpful only in those limited situations.
No. PD-0771-17 6/26/19
Can a person commit a crime by falsifying a governmental record the government is not required by law to keep?
Yes. “A record kept by the government for information is still a governmental record even if the government was not required to keep it.” The records at issue in this case, firearm proficiency exams for reserve peace officers, were “received by” and “kept by” the government, and they are governmental records even if TCOLE could not require the police department to keep them. Nor must a document be kept for a governmental purpose to be a governmental record. The purpose of the record is not an element of the offense of tampering, it is relevant only to the statutory defense. Read opinion.
Dissent (Slaughter, J., joined by Yeary, J.):
“I agree with the Court that the evidence is insufficient to support the intent-to-defraud-or-harm element. I also agree with the Court that the court of appeals failed to address the issue raised on appeal of whether the evidence was sufficient to overcome the statutory defense. I disagree, however, with remanding the case and would instead render a judgment of acquittal for [the defendant] because I find that the evidence is insufficient on the element of ‘governmental record.’” Read opinion.
On the issue of whether these documents were governmental records, this decision should be monumentally helpful in future prosecutions. The majority recognizes that the Legislature’s definition of “governmental record” is quite broad. Less helpful is the majority’s determination that the defendant did not act with the intent to defraud because the records at issue were not required by law to be kept by the government and, therefore, the government could not be defrauded because it had no right to keep the records in the first place. However, the statute does not require that the government (or anyone) actually be defrauded. The statute requires only that the defendant act with the intent to defraud. In this case, TCOLE found what it believed to be deficiencies in the police department’s records, and the defendant ordered his subordinate to falsify the records. It certainly seems that he was acting with the intent to defraud.
No. WR-87,190-02 6/26/19
Is a plea for possession of a controlled substance, entered before the substance has been tested, voluntary if testing later reveals that the substance is not the one alleged?
Holding (Per curiam):
No. The defendant’s plea in this case was not voluntary and intelligent given that laboratory testing revealed the substance he possessed was methylethcathinone (a Penalty Group 2 substance), rather than methamphetamine (a Penalty Group 1 substance). Read opinion.
Concurrence (Keaser, J., joined by Hervey, Yeary, JJ.):
“Because Mable was poorly reasoned and because it established what I consider to be an unworkable standard, I would take this opportunity to overrule it. I would hold that if a person pleads guilty knowing that a certain fact is as-yet unknown, then in the absence of any fraud, coercion, misconduct, or ineffective assistance of counsel, he may still render a knowing and voluntary guilty plea—even if subsequent factual developments ultimately show that the plea was inaccurate or untrue. … I would deny [the defendant’s] claim that his guilty plea was involuntary. Instead, I would hold that [the defendant] is entitled to relief because he has established, by clear and convincing evidence, that no rational juror would have found him guilty of possession of methamphetamine in light of this newly available lab report. Finally, although I would allow [the defendant] to withdraw his plea as inconsistent with due process, I would not declare him actually innocent.” Read opinion.
Concurrence (Hervey, J., joined by Keasler, J.):
“I wholeheartedly agree with Judge Keasler that Mable has proven itself poorly reasoned over time and that it should be overruled. I also agree with the new analytical framework that he proposes. I write separately, however, to point out that the moral of this long-running story is that defense attorneys and prosecutors should not allow a defendant to plead guilty until the laboratory report comes back. Defense attorneys might be subject to ineffective-assistance-of-counsel claims, and the State might have to re-prosecute defendants.” Read opinion.
Concurrence (Newell, J., joined by Richardson, Walker, Slaughter, JJ.):
“In this case, the State and [the defendant] agree that relief is warranted under Mable. The trial court agrees and recommends that we grant relief. Rather than overrule Mable and apply a due-process framework that will nevertheless invariably lead to the same results as Mable, I would hold that the identity of the controlled substance at issue is a material or ‘crucial’ fact underlying the plea bargain and give the parties what they ask for. In light of this understanding, I believe [the defendant’s] plea was involuntary because both parties in this case were mistaken at the time of the plea about a material fact—the identity of the controlled substance possessed.” Read opinion.
Dissent (Keller, P.J., joined by Keel, J.):
“[The defendant] knowingly possessed a controlled substance. He knew at the time of his plea that the substance had not yet been tested. But the State was giving him a great deal—six years’ deferred adjudication—so he pled guilty. Testing on the substance was complete less than two months after the plea, but for almost three years, [the defendant] did nothing to challenge his conviction. Now that his guilt has been adjudicated and he has been sentenced to 10 years, [the defendant] wants a do-over, and the Court gives him one. There are three reasons this is a mistake. First, under Ex parte Broussard, [the defendant] has not shown that his guilty plea was involuntary. … Second, [the defendant] has not shown harm. … Finally, [the defendant] should be estopped from challenging his plea because he waited to do so until his guilt was adjudicated.” Read opinion.
A majority of the court agrees about the remedy to which the defendant is entitled; they disagree only about how to get there. No particular approach is quite satisfying, and it seems certain that the court will address this issue again before reaching a consensus. After reading the dissenting opinion, one wonders whether the State could attempt a laches (delay) argument in a similar case. The defendant waited three years to raise his challenge and then raised it only after his guilt had been adjudicated. Offices handling marijuana cases after the recent changes in hemp and marijuana law should pay close attention to Judge Hervey’s warning about the dangers of pleading drug cases without lab reports.
Texas Courts of Appeals
No. 01-18-00609-CR 6/20/19
Does Transportation Code §550.025 require a driver to report and provide information after a collision causing damage to a private residence?
Yes. Under §550.025, drivers who are involved in wrecks that damage “structures” adjacent to the road are required to take reasonable steps to locate and notify the owner of the property and provide the owner with the driver’s information. The term “structure” as used in the statute includes buildings on private property, such as a house. Read opinion.
This fact situation is probably less common than the typical FSGI (failure to stop and give information) case. It appears that only one previous published decision has construed this statute. The decision is very helpful, and its statutory construction should hold up if the defendant attempts a review by the Court of Criminal Appeals.
Prosecutor Trial Skills Course July 2019
Registration is open for our Prosecutor Trial Skills Course this July in Austin. It’s a full week of intensive training that prepares newly hired prosecutors for their work both in the courtroom and out. Seasoned faculty advisors are assigned to small groups of attendees to answer questions and direct discussions at each table, and two aspects of trial—jury selection and opening statement—are demonstrated by veteran prosecutors. Other elements of trial are covered, from opening statements to closing arguments, as are DWI and domestic violence prosecution (two of the most common offenses new prosecutors handle), plea bargains, probation revocation hearings, and motions to suppress. There’s even an optional forum on Class C misdemeanors for those prosecutors who practice in JP or municipal courts. New prosecutors won’t want to miss this intensive, high-quality training customized especially for them!
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Legislative Update Seminars
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