May 10, 2019

Texas Court of Criminal Appeals

Colone v. State

No. AP-77,073   5/8/19

Issue:

May the original court reconsider a venue transfer when the order granting the motion to change venue did not name a transferee court?

Holding:

Yes. A trial court may rescind an order changing venue when no steps have been taken to carry out or to comply with the order changing venue. Here, the order granting a change in venue stated that a transferee county would be chosen at a later date. Although emails indicate the judge spoke with another county about transferring venue, no order confirming the transfer to another county was ever entered. An order without a named transferee county cannot effectively transfer venue. Read opinion.

Commentary:

This is the second major case in recent years where the Court conflates jurisdiction and venue. Jurisdiction is the power of a court over a defendant and a crime. Venue is the location of the trial. The Court’s holding that an exemption may apply to jurors after they are accepted in a death penalty case is useful. Finally, the Court extends the concept of forfeiture by wrongdoing to the hearsay rule, an area not addressed by the 2013 addition of Article 38.49.

Texas Courts of Appeals

Lasker v. State

No. 01-18-00046-CR        5/7/19

Issue:

May a continuance compliant with the Interstate Agreement on Detainers Act (IADA) be implied from a silent record at a hearing to arrange counsel for the defendant in a capital case?

Holding:

No. Under the IADA, a defendant who submits a request for final disposition must be brought to trial within 180 days of receipt of the request unless a continuance is granted. The IADA has five requirements to obtain a continuance: 1) the court must have competent jurisdiction, 2) the continuance must be granted in open court, 3) the defendant and/or his attorney must be present, 4) there must be good cause demonstrated for the continuance, and 5) the length of the continuance must be reasonable or necessary. Here, the defendant appeared in court once within the time limit and was appointed counsel. Neither party requested a continuance, nor did the court order one. While it might have been reasonable to grant a continuance for defense counsel to prepare for trial, the requirements of the IADA were not met. Read opinion.

Commentary:

Two murder convictions erased forever. Every prosecutor’s office ought to evaluate their IADA procedures regularly to prevent mishaps like this. It is the harshest of statutes with highly unrealistic deadlines.

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