Court of Criminal Appeals
No. PD-0847-15 & PD-0848-15 11/16/16
Does Penal Code §3.03(b) allow stacking sentences for compelling prostitution and sexual assault, arising out of the same criminal episode?
No. The Court determined that §3.03(b) is clear and unambiguous and the plain language of the statute does not allow stacking sentences for any combination of offenses listed in subsection (b), only for offenses listed together in each individual subsection under (b). In this case, the sentence for compelling prostitution, found in (b)(5)(A), may not be stacked with the sentence for sexual assault, found in (b)(2). Read.
Dissent (Keller, P.J.):
Presiding Judge Keller dissented; in her view the statute is ambiguous and legislative history supports the idea that offenses listed in separate paragraphs of §3.03(b) can be stacked together in cumulative sentences. Read.
A throw-down between grammar-police champions. This decision should not change much because joint trials that were otherwise eligible for stacking usually involve offenses under the same exception.
Texas Courts of Appeals
Timmons v. State (8th COA)
No. 08-13-00306-CR 10/26/16
Can judicial notice regarding the defendant’s competency to stand trial serve as a “judicial determination” under Code of Criminal Procedure art. 46B.084(a) and (d)?
Yes. The defendant had previously been determined to be incompetent, so a judicial determination of competency was required before criminal proceedings were allowed to resume. The judge did not file a specific order of competency but did indicate that he found the defendant competent after taking judicial notice of the state hospital’s report, his observations of the defendant, and defense counsel’s representation that the defendant was competent. This qualifies as a judicial determination, and the trial judge was allowed to continue with the plea hearing. Read.
Courts and parties simply must do a better job of prioritizing and handling cases involving claims of incompetency. Here, the court of appeals upholds what happened below, but all too often these defendants decompensate because they linger too long in county jails after their return from treatment. Moreover, the facts indicate that trial courts are not keeping up with changes in the statutory regime. What if defense counsel had not mentioned the doctor’s report during the plea colloquy? What if the trial court had not made a general inquiry about competency?
State v. Bernard (14th COA)
No. 14-15-00822-CR 11/8/16
Did law enforcement have reasonable suspicion to stop the defendant for violations of Transportation Code §545.060?
No. The court declined to apply the Court of Criminal Appeals’ plurality decision in Leming v. State from January that stated it was “an independent offense to fail to remain entirely within a marked lane of traffic, regardless of whether the deviation from the marked lane is, under the particular circumstances, unsafe.” The Court instead applied the Hernandez analysis regarding Transportation Code §545.060, that there is only a violation when the State can prove BOTH that the defendant failed to maintain a single lane, and in an unsafe manner. Because the State was unable to do so, there was not reasonable suspicion to stop the defendant and the court properly granted his motion to suppress. Read.
This case bears watching. The court treats Leming as a plurality, but the concurring judges in that case agreed with the plurality’s analysis of the failure-to-maintain-a-lane statute. This case should go up so that this issue is finally resolved by the CCA.
Knight v. State (2nd COA)
No. 02-15-00447-CR 10/27/16
Was felony deadly conduct a lesser-included offense of aggravated assault in this case?
No. Felony deadly conduct requires the discharge of a weapon, while aggravated assault requires that the defendant “intentionally or knowingly threaten another, including his spouse, with bodily injury and use or exhibit a deadly weapon during the commission of the assault.” Felony deadly conduct might be a lesser-included offense, however that will depend upon how the offense is charged. In this case, the defendant was charged with “us[ing] or exhibit[ing] a deadly weapon during the commission of the assault,” so the State was only required to prove he exhibited the weapon, not that he actually discharged it. Because one element of felony deadly conduct—discharging a weapon—was not required, it is not a lesser-included offense of aggravated assault in this case. Read.
The Court does an excellent job of analyzing the lesser-included issue in this case. Deadly conduct is not an easy fit in the Hall cognate pleadings analysis. As noted by the court, the language used in a particular indictment can change the answer, so if you are faced with this situation, this case will get you to the right answer, but it might not be the same as the result in this case.