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November 15, 2013

Texas Courts of Appeals

Hudson v. State

No. 06-11-00028-CR     11/13/13


Was a capital murder defendant entitled to a manslaughter instruction when the evidence she relied upon was sufficient to establish a lesser-included that was more severe than manslaughter but less severe than capital murder?


No. If a possible intermediate offense was established by the same evidence the defendant relied upon to argue a manslaughter instruction, then the defendant would be disqualified from the manslaughter instruction. Read opinion.


The court of appeals affirms on remand from the Court of Criminal Appeals, holding that a manslaughter instruction was not required where the same evidence would support a charge for felony murder in the course of committing injury to a child. The court of appeals did not address the other reason for remand, whether the trial’s ruling on the manslaughter charge was harmless. The concurring opinion poses an interesting question: Does the rule on which the Court of Criminal Appeals remanded the case mean a defendant may receive only one lesser-included offense instruction? By deciding the case without conducting an alternative harm analysis, the case may see additional review at the Court of Criminal Appeals. Stay tuned.

Owens v. State

01-12-00075-CR  11/7/13


Did the State violate a hospitalized DWI defendant’s expectation of privacy by subpoenaing the results of a hospital-initiated blood test?  


No. Because the hospital independently decided to draw the blood to diagnose a medical condition, there was no State action in the blood draw. Simply requesting the results of the test that had already been performed did not violate an expectation of privacy. Read opinion.


We regularly see physician-ordered blood draws challenged by the defense. Here is a new arrow with which to pop that balloon. Yay us!

Roys v. State

No. 07-11-00452-CR       11/8/13


Does disposing of murder weapons make someone an accomplice witness and necessitate an accomplice witness instruction?


No. The witness must be susceptible to prosecution for the murder itself by having affirmatively assisted in committing the offense, not just tampering with evidence after the fact. Read opinion

Commentary: This is a fairly straightforward application of the holdings in Druery and Nelson—assisting in a cover-up does not make one an accomplice as a matter of law to the crime that is the subject of the cover-up. But could the same facts be used to argue for an instruction on accomplice as a matter of fact?

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