May 13, 2016

United States Supreme Court

Ocasio v. United States

No. 14-361          5/2/16


Must a conspirator be able to commit the underlying offense to be convicted of conspiracy? And must a conspirator take property from someone outside the conspiracy to be guilty of conspiring to violate the Hobbs Act—taking property from another under color of official right?


No and no. Under the principles of conspiracy law, a defendant can be found guilty so long as the conspirators agreed that the underlying crime be committed. In this case, even though two of the conspirators were incapable of acting “under color of official right” under the Hobbs Act, they were still able to conspire with others who did act “under color of official right” that the offense be committed. Additionally, the fact that the defendant only obtained money from other members of the conspiracy is not dispositive because the members of the conspiracy all agreed on the basic criminal objective at issue. Read.

Dissent (Thomas, J.):

Justice Thomas dissented because he believed the decision distorts the meaning of “extortion” in the Hobbs Act and allows a court to find that a person committing extortion can be convicted of conspiracy along with his victim. Read.

Dissent (Sotomayor, J.):

Justice Sotomayor dissented because in her view, transferring money or property between members of a conspiracy should not constitute taking property “from another” under the Hobbs Act. Read.


The Court’s discussion of conspiracy law is consistent with the plain language of the conspiracy statute in the Texas Penal Code. What may be of more interest is the broad ability federal authorities will have to use the Hobbs Act to prosecute corruption by government officials.

Courts of Appeals

Ex parte Poe (9th COA)

No. 09-15-00373-CR        4/20/16


Is Penal Code §42.01(a)(8) unconstitutionally vague or overbroad?


No. §42.01(a)(8) prohibits disorderly conduct by displaying a firearm or other deadly weapon in a public place in a manner calculated to alarm others. The court found that that statute punishes conduct, not speech, and is rationally related to the State’s interests in protecting citizens from harm. Additionally, while certain terms of the statute are undefined, all have a plain meaning so that ordinary people can understand what is prohibited. Read.

Concurrence (Johnson, J.):

Judge Johnson wrote separately to address more specifically how the defendant failed to meet the heavy burden of proving the statute was facially unconstitutional. Read.


An interesting case that bears watching. The defendant was openly carrying an AR-15 rifle and claims this provision of the disorderly conduct statute is unconstitutionally overbroad and violates the Second Amendment. In light of several recent CCA cases on overbreadth, as well as recent Supreme Court cases on the Second Amendment, this case may be reviewed in higher courts.

State v. Nelson (10th COA)

No. 10-14-00120-CR        4/21/16


Must an information for soliciting prostitution specify the type of “sexual conduct” at issue?


Yes. Because there are multiple definitions and methods of “sexual conduct” in Penal Code §43.01(3), an indictment or information alleging prostitution must specify what method of sexual conduct is at issue to give the defendant proper notice. Read.

Dissent (Davis, J.):

Justice Davis dissented based on State v. Barbernell, 257 S.W.3d 248 (Tex. Crim. App. 2008). Under Barbernell, Justice Davis contended the State would not be required to allege “sexual conduct” with any greater specificity because it is an evidentiary matter, not the actual gravamen of the crime, which is solicitation. Because “sexual conduct” does not go towards an act or omission of the defendant, an indictment should not be subject to a motion to quash for failing to specify the type of sexual conduct. Read.


The majority feels constrained by binding precedent, but the dissent points out how that precedent may not be binding. This case is well-situated for review by the CCA, but, should the State ultimately prevail, prostitution charging instruments will be far more mundane reading.

Hopper v. State (14th COA)

No. 14-15-00371-CR        5/10/16


Does a detainer absolve the State of its duty to timely prosecute cases?


No. The fact that Texas placed a detainer on a defendant incarcerated in Nebraska did not absolve the State of its duty to give the defendant a speedy trial. However, after considering all the factors found in Barker v. Wingo, 407 U.S. 514 (1972), particularly the fact that the defendant waited over 18 years to assert his right to a speedy trial, the court found that the State did not violate the defendant’s right to a speedy trial. Read.


The lesson here is that the State cannot allow a pending criminal case to languish simply because the defendant is incarcerated in another state. The trial court’s ruling denying the speedy trial claim is upheld, but a different presentation of similar facts might have led to a different result.

Office of the Attorney General

Letter from the Presiding Officer of the Texas Funeral Services Commission

KP-0083                5/9/16


Is a county responsible for costs incurred by transporting a body from an autopsy to its final destination?


If a body is not otherwise claimed for burial or is required to be buried by the county at public expense, then a commissioners court is authorized to pay for the cost of transferring the body from the autopsy to the burial or cremation. Otherwise, the cost of transferring the body to its final destination is the responsibility of the person with the legal duty to inter the deceased. Read.


Another unfunded mandate from Austin?

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