Texas Courts of Appeals
Lakey v. Taylor – 3rd COA
11/06/08 : Cite No. 03-07-00700-CV : Sovereign Immunity
In a civil lawsuit where plaintiffs alleged that the state’s failure to provide adequate treatment to persons who have been found incompetent to stand trial is unconstitutional, did the trial court improperly deny the Department of State Health Services’ plea to the jurisdiction based on sovereign immunity?
No. Without an express waiver of sovereign immunity, the State, its agencies and its officials are generally immune from suit. However, sovereign immunity does not shield a governmental body from a suit for equitable relief for a violation of constitutional rights.
About 20 years ago, the counties successfully sued the state on the theory that the state had a duty to move inmates from county jails to prison within a reasonable period of time. That lawsuit was settled with legislation that established the state’s duty to accept an inmate within 45 days of being "paper ready" or pay the county for each day the inmate remained in county jail. That settlement and legislation solved a big problem in backlogged jails. Although this lawsuit is a long way from reaching that same conclusion, some might see similarities in the litigation. And one would think that incompetent inmates awaiting treatment would make for more sympathetic plaintiffs than convicted criminals.
Lancon v. State – 4th COA
11/12/08 : Cite No. 04-05-00164-CR : Factual Sufficiency Review
Was the evidence in this homicide case factually sufficient to uphold the conviction where the evidence was contradictory and largely based on the jury’s determination of the credibility of the witnesses?
Yes. This appellate court’s previous finding of factual insufficiency was rejected by the Court of Criminal Appeals, so on remand the evidence was re-evaluated by looking through a neutral lens and giving almost complete deference to the jury’s determination of credibility. Using that standard, the court found that it was the jury’s province to resolve the evidentiary conflicts based on the credibility of the witnesses.
Justice Speedlin concurred with the result reached by the majority, but expressed concern over the opinion of the Court of Criminal Appeals. She wrote that by effectively imposing a duty on appellate courts to give complete or total deference to jury determinations of credibility, the court blurred the line between the review of legal and factual sufficiency and moved a step closer to merging those two standards into one.
The first sentence to the commentary to this case when it was vacated and remanded from the CCA read, "Once again, we see the silliness of a factual sufficiency review." The concurring opinion by Judge Speedlin on remand reflects that thought by wondering whether factual sufficiency and legal sufficiency have been merged into the same standard of review. Well, maybe the Clewis opinion has been overruled after all and we just didn’t realize it. There really is more than one way to skin a cat.
Johnson v. State – 9th COA
11/05/08 : Cite No. 09-06-510 CR : Self-defense Instruction
Did the trial court commit error when it denied the defendant’s request for a self-defense instruction?
Yes. Because others had witnessed violence between the victim and the defendant, the victim had previously physically and verbally assaulted the defendant over a long period of time, the victim had made motions toward hitting the defendant in the seconds before the defendant stabbed the victim, and the defendant was afraid of the victim, a rational jury could have found that the defendant acted in self-defense and should have received such an instruction.
In close cases, GIVE THE DEFENSIVE INSTRUCTION
Guyton v. State – 10th COA
11/05/08 : Cite No. 10-07-00070-CR : Factual Sufficiency
Was the evidence factually sufficient to support the defendant’s conviction for three counts of possession of a controlled substance with intent to deliver?
No. Nothing in the record reflects that the defendant was arrested in a high crime or high drug area, that the drugs found on him were packaged as to suggest that he was a drug dealer, that he possessed any drug paraphernalia, or that he possessed a large amount of cash.
Chief Justice Gray delivers another potent dissent. Apparently, two thirds of the Waco Court of Appeals does not agree with Lancon (see above). Prediction: PDR granted.
Ex parte Graves – 10th COA
11/05/08 : Cite No. 10-08-00189-CR : Speedy Trial Claim
May a defendant bring a speedy trial claim through an appeal after denial of his pretrial habeas application? In addition, is there double jeopardy protection when the first conviction was reversed on the basis of Brady for intentional prosecutorial misconduct?
No. The appropriate remedy for the defendant’s speedy trial claim is a pretrial motion to set aside the charging instrument. Double jeopardy does not prohibit the State from retrying a defendant who has succeeded in getting his first conviction set aside because of some error in the proceedings which led to his conviction.
Justice Vance dissented, citing Oregon v. Kennedy for a narrow exception to the general rule that there is no jeopardy bar to a retrial after a defense-requested mistrial. He believes that a similar exception should apply in those extremely rare cases where the State intentionally withholds Brady evidence and intentionally elicits false testimony relevant to that evidence with the intent to avoid the possibility of an acquittal, and the conviction is later reversed or set aside for that Brady violation. He believes that the Double Jeopardy Clause bars retrial under the established facts of this case.
A rare dissent from Justice Vance (who normally attracts the vote of Justice Reyna).
Texas Attorney General Opinions
Attorney General Opinion GA-0680
11/06/08 : Opinion No. GA-0680 : Criminal History Record Info
May the Texas Department of Insurance access criminal history record information that is subject to a nondisclosure order under Government Code §411.081(d)?
For the purposes of Government Code §411.081(d), the Texas Department of Insurance is not a criminal justice agency. Therefore, the department may not access criminal history record information that is subject to a nondisclosure court order because the department is not listed in subsection (i) among the entities to which such information may be disclosed.
Requests for Attorney General Opinions
Opinion Request from Cameron County: RQ-0754-GA
Can an assistant county and district attorney legally and ethically practice as a criminal defense attorney in state courts in a neighboring county? Can an assistant county and district attorney legally and ethically practice as a criminal defense attorney in federal courts?
Opinion Request from Johnson County: RQ-0756-GA
Can the Commissioners Court of Johnson County lease county-owned office space to a private non-profit organization for less than fair market value and remain in compliance with the competitive bidding procedures of §263.007 of the Texas Local Government Code when no statutory exception to §263.007 exists?
Anyone with input on these issues may contact the Attorney General’s Office.
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