November 5, 2010

Court of Criminal Appeals

Ex Parte Sinegar

11/03/10 : Cite No. AP-76,340


Do the requirements of Rule 18a of the Rules of Civil Procedure, regarding the recusal of judges, apply in habeas proceedings conducted at the trial level?


Yes. When the defendant has complied with Rule 18a, the trial judge is required to either recuse himself or forward the matter to the presiding judge of the administrative judicial district for a recusal hearing before another judge. Read Opinion.


This is not a surprising outcome. And, a judge who is a fact witness in any case probably should voluntarily recuse himself. Hmm, wonder if this case could be used to support a motion to recuse a judge in a petition filed under the court of inquiry statute?

Pelache v. State

11/03/10 : Cite No. PD-1277-09


Did the defendant receive sufficient notice of the enhancements allowing the opportunity to prepare a defense to them when the State filed a motion to enhance punishment two days before the punishment phase of trial?


Yes. When the defendant rejected the State’s plea-bargain offer, he had actual notice that the State would seek to enhance his sentence with at least one prior conviction. Additionally, the applicable statutes also informed the defendant that he was subject to sentence enhancement with any other prior convictions under §12.35(c)(2)(A) and under §12.42(a)(3) in the event that he was convicted of the lesser-included, state-jail-felony offense of theft from a person. Read Opinion.


Please don’t take this case to mean that relying on statutory notice of potential enhancements is the best practice. The defendant only raised a constitutional claim, which looks at the minimum notice he should receive to satisfy due process. The better practice is to put potential alternative enhancements in the charging instrument, even considering lesser-included offenses. Does the defendant have an ineffective assistance of counsel claim if he rejected the pretrial offer on the state jail felony only because he thought he was guilty of that offense and would do no worse than 2 years in state jail?


Texas Courts of Appeals

Parks v. State – 4th COA

10/27/10 : Cite No. 04-09-00650-CR


Is the requirement of reasonable suspicion satisfied by four youths displaying blue rags and walking at night behind a strip mall?


No, the officer lacked reasonable suspicion and, by shining a spotlight on them and using an authoritative tone of voice to ask them to walk over and place their hands on the patrol vehicle, he engaged in more than mere encounter and unlawfully detained the youths. Read Opinion.


This kind of case must be very frustrating to law enforcement. Their experience and intuition plays a big part in their decision to check out a situation like this one. The outcome could be an officer or suspect is shot. Or the officer arrests someone after a foot-chase. In this case, the defendants all complied with the officer’s requests and followed the law. And that is why the case ends with suppression of the evidence. 

Bell v. State – 5th COA

10/26/10 : Cite No. 05-08-01472-CR

Issue 1:

Did the defendant "induce" a child to engage in sexual performance?

Issue 2:

Must the State prove that the defendant knew the complainant was under 18?

Holding 1:

Yes, Bell induced the child by telling her that he expected her to earn money and by becoming increasingly angry and mean toward her. Read Opinion.

Holding 2:

No. The State is not required to prove the defendant’s knowledge of the child’s age, just as the Court of Criminal Appeals has held in other cases involving children and sexual conduct. Read Opinion.


This case is worth reading to see the details of how a runaway child is turned into a sexual slave. As prosecutors begin to learn about trafficking and how vulnerable victims are used for money, we will see more and more of these kinds of cases in our courts. 

McCrary v. State – 6th COA

11/2/10 : Cite No. 06-09-00232-CR


Does the Double Jeopardy Clause prohibit convictions for aggravated assault with a deadly weapon, injury to an elderly person, and aggravated robbery-all for the same conduct?


No. Under Blockburger and the legislative intent, all three convictions can co-exist. Read Opinion.


This was a very thoughtful indictment, providing the jury with three different legal theories for the criminal conduct. The jury clearly gave the independent charges separate thought, as they assigned a different punishment to each of the convictions for aggravated assault, injury to an elderly individual and aggravated robbery. And, given that the sentences run concurrently, there really isn’t much of consequence to the defendant’s arguments.

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