May 17, 2019

Court of Criminal Appeals of Texas

State v. Ross

No. PD-1066-17                 5/15/19

Issue:

Does an information tracking the language of Penal Code §42.01(a)(8) provide sufficient notice to a defendant?

Holding:

Yes. The information notified the defendant that he was accused of intentionally and knowingly displaying a firearm in a public place in a manner he knew was objectively likely to frighten an ordinary reasonable person. This states all the elements that must be proved and gives the defendant notice of the particular offense charged. The information is not required to detail how the State intends to prove that the defendant’s display was “calculated to alarm.” The phrase “calculated to alarm” is not constitutionally vague and is measured against the objectively reasonable person standard. Read opinion.

Concurrence (Yeary, J.):

“I join all of the Court’s opinion today except for Part III-B. I am not inclined to agree with the construction of Section 46.035(a) of the Penal Code that is embodied within that portion of the opinion. … We are not called upon to definitively interpret this provision in the instant case, and, in any event, I see no need to. I am nevertheless compelled to share an alternative construction of the statute that I am inclined to regard as more likely.” Read opinion.

Dissent (Newell, J.):

“I agree with the Court’s thorough statutory analysis. But given the broader definitions of ‘calculate’ and ‘alarm’ at play in the statute, I believe it points to the opposite conclusion than the one drawn by the Court. I’d require the State to allege some facts in the charging instrument about the manner in which the firearm was displayed. I’d leave the question of how this statute is supposed to exist alongside a different statutory offense for when that question is more properly before us.” Read opinion.

Dissent (Walker, Slaughter, JJ.):

“The allegation that [the defendant’s] display was ‘calculated to alarm’ is subject to at least two reasonable interpretations. Today, the majority of the Court chooses one interpretation. Judge Slaughter’s dissenting opinion argues that another interpretation is correct. Whichever interpretation is correct is an issue of first impression at this Court. [The defendant] could not have had adequate notice of what an allegation that he displayed a firearm in a manner ‘calculated to alarm’ charges him with doing, when the Court’s decision about what that language means comes years after [the defendant] was charged.” Read opinion.

Dissent (Slaughter, J.):

“The limited question in this case is whether the trial judge erred by granting [the defendant’s] motion to quash, which resulted in dismissal of the information charging [the defendant] with disorderly conduct due to lack of adequate notice. As correctly identified by the trial court, the court of appeals, and Judge Walker, the disorderly-conduct statute contains ambiguous terms that, when viewed collectively, are so lacking in clarity that an information tracking those terms fails to provide adequate notice to the accused. Those ambiguous terms, as they pertain to the disorderly-conduct statute, have never before today been clarified by this Court. Thus, at the time [the defendant] was charged with disorderly conduct, he did not have the benefit of a clarification from this Court of the ambiguous terms, and the State needed to plead the information with more specificity to ensure that he had adequate notice to prepare a defense.” Read opinion.

Commentary:

This case would not have triggered this many opinions had it not involved the intersection of a citizen’s right to carry firearms with society’s right to be free of disruptive conduct. The case is interesting because it is a fairly rare investigation beyond the plain words of the statute to resolve its meaning.

Texas Courts of Appeals

Coleman v. State

No. 02-17-00123-CR        5/9/19

Issue:

May the State argue in closing that the defendant “committed another third-degree felony by lying to the jury”?

Holding:

No. This statement is not a summation of the evidence, a reasonable deduction from the evidence, nor a response to the defense’s argument. It is improper to invite the jury to speculate whether the defendant has committed other crimes not in evidence or to state matter-of-factly that the defendant is a liar. The State had not submitted any evidence that the defendant had committed perjury and could not imply that. Read opinion.

Commentary:

When a defense witness lies during testimony, what can the prosecution argue? This opinion, and the opinion it relies upon, contain no analysis in support of their holding that calling “a lie a lie” is prosecutorial misconduct. Hopefully, the Court of Criminal Appeals will review this decision and clarify the law in this area. This opinion may be valuable, however, for its analysis of the informant privilege in Rule 508 in light of the Michael Morton Act. The court affirms the trial court’s ruling that the informant’s identity was privileged where the informant was only a source of information and not a witness to the offense.

Attorney General Opinions

Request RQ-0288-KP

Issue:

May probable cause affidavits that identify child victims be released to the public upon a request made to the justice of the peace? Read request.

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