November 1, 2019

Court of Criminal Appeals

Curry v. State

No. PD-0577-18                 10/30/19


  1. Does any “accident” trigger the duties imposed by the failure to stop and render aid statute, Transportation Code §550.021, in light of the 2013 amendment?
  2. Is a defendant charged with failure to stop and render aid entitled to a mistake-of-fact instruction when the defendant adduced evidence he did not believe that he had hit a bicyclist?

Holdings (Hervey, J.):

  1. No. The Court concluded that, in light of the 2013 amendment, the duties imposed by the failure to stop and render aid statute are not triggered by any “accident.” The former versions of Transportation Code §550.021 drew a black and white line: Either the driver knew that he was involved in an accident and someone was injured or killed, or he did not. But in adding the “reasonably likely” theory, the legislature introduced probabilities into the statute where there previously were none. Thus, now a driver must stop and render aid not only if the driver knows that he was involved in an accident and another person was injured or killed, but also if the driver knows he was involved in an accident that was reasonably likely to result in injury to or the death of a person.
  2. Yes. The Court concluded that the defendant was entitled to a mistake-of-fact instruction because the defendant’s testimony was sufficient to raise a mistake-of-fact issue. The Court stated that the question is not whether the defendant knew that he was involved in some kind of accident (the defendant admitted that he was); it is whether he made a reasonable mistake in thinking that no one involved in the accident was injured or killed or in thinking that the accident was not reasonably likely to have injured or killed another person. Moreover, the jury did not have to believe that the defendant was reasonably mistaken, but the issue should have been submitted for its consideration because it was raised by the evidence. Read Opinion.

Concurring (Yeary, J.):

“Because a mistake of fact instruction should be given whenever, among other things, that mistake of fact ‘negated the kind of culpability required for commission of the offense,’ Penal Code §8.02(a), a driver who introduced evidence to show he was reasonably mistaken to believe that an accident had not occurred would be entitled to a mistake of fact instruction.”  Read Opinion.

Dissenting (Keel, J.):

“I disagree with the majority opinion’s interpretation of Transportation Code §550.021. The statute prohibits a driver’s knowing failure to stop at the scene of an accident. But in my view, that prohibition does not depend on the driver also knowing that the accident resulted or was reasonably likely to result in injury or death; it depends instead on whether—objectively—the accident did so result or was reasonably likely to so result. Under this reading, [the defendant’s] mistake about the nature of his accident would not negate the kind of culpability required for failure to stop and render aid and would not raise the defense of mistake of fact, so I would affirm the lower court’s judgment.”  Read Opinion.


Always remember that a court must charge the jury on a defense if there is any evidence—be it weak, impeached, contradicted, or unbelievable—that supports submission of the defense. The evidence is viewed in the light most favorable to the defendant.

International Fidelity Insurance Co. v. State

Nos. PD-0642-18, 0643-18, and 0644-18                 10/30/19


Does Texas Rule of Appellate Procedure 34.6(f) entitle a defendant to a new trial when no record was created, through no fault of the defendant?

Holding (Richardson, J.):

No. Texas Rule of Appellate Procedure 34.6(f) offers a remedy when a record was created and later lost or destroyed but no remedy when a record was never created in the first place. Rule 34.6(f) does not contemplate a situation in which a record was never created. When the complaining party cannot show that the court reporter ever recorded the missing proceedings, he is not entitled to a new trial. Here, the defendant failed to show that the hearing was recorded and thus did not prove that the trial court abused its discretion in denying the defendant’s motion for a new trial under Rule 34.6(f).  Read Opinion.

Dissenting (Walker, J.):

“Today, this Court holds that it was not an abuse of discretion for a trial judge to find that a hearing ‘was not stenographically or otherwise recorded’ and therefore was ‘neither lost nor destroyed,’ even though the court reporter was called into the hearing, took her position, appeared to record the proceedings, and received the contact information from both parties after the hearing. I do not believe that a reasonable view of the record can support the trial court’s ruling. Accordingly, I respectfully dissent.”  Read Opinion.


Appellate courts have become gun-shy of saying that trial courts abused their discretion. But trial courts are also protective of their court reporters. Here, the court reporter denied losing her notes, but she did not deny that it was possible. All other evidence adduced was consistent with an on the record hearing. Judge Walker’s dissent is persuasive. The Court’s directive to its Rules Committee is worrisome because it is common that hearings fail to make it on the record. Any new rule that would make a new trial automatic under these facts would have a broad impact.

Texas Court of Appeals

Mitchell v. State               

No. 01-18-00586-CR         10/22/19


Did the trial court properly exempt a State’s witness from “the Rule” based on the State’s assertion that the witness’s presence was essential to the presentation of its case?


Yes. The Court concluded that the trial court properly exempted the State’s witness from the Rule because the case did not involve a mere conclusory allegation that the witness was necessary to its presentation or simply labeling him as a “case agent.” Here, the trial court held a bench conference, outside the presence of the jury, that occupied 10 pages of the reporter’s records. The hearing included argument by both parties’ counsel, as well as voir dire examination of the witness. Because the State presented more than “mere conclusions” to the trial court, the trial court properly exempted the State’s witness from the Rule. Read Opinion.


Remember, here the State proved up its need to have this investigator in court during trial. There is no general detective or “Ranger” exception. Most cases don’t need a detective in the courtroom. Use this exception with caution.

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