October 19, 2012

Texas Supreme Court

In the Interest of E.N.C., J.A.C., N.A.G., and C.G.L.

No. 11-0713      10/12/12


Is there legally sufficient evidence to support parental termination where an immigrant, before his children were born, violated his probated sentence for unlawful conduct with a minor in another state and, after their births, was deported? 


No. The Department failed to meet its burden of introducing evidence concerning the father’s offense and establishing that it was part of a voluntary course of conduct that endangered the children’s well-being. There is no evidence that the father’s actions created such uncertainty and instability for his children sufficient to establish endangerment or that he abandoned his parental responsibilities once he was forced to leave the country. Also, that foster parents have superior resources to those of a person living outside the country is an insufficient basis to find that termination is in the best interest of a child. Read opinion


The court does not appear to be issuing a bright-line rule that past criminal conduct and resulting deportation is not sufficient to support a finding of parental termination. Rather, there needed to be substantive evidence presented concerning the past criminal offense and the subsequent deportation that actually endangered the children. At the end of its opinion, the court appears to encourage the State to develop a plan whereby the parent could begin to take custody of his children, even though he is still deported and living in Mexico. It is unclear from these facts whether that is a viable option. What is clear is that the record needs to be more fully developed as to the proper course of action concerning these children.

Texas Courts of Appeals

Blackman v. State

No. 01-08-00138-CR      10/11/12


Did the State’s peremptory strike against a venireperson because of a “vibe” received while trying to make eye contact violate Batson?


Yes. The prosecutor’s reason was pretextual. Read opinion


In determining that the prosecutor’s reason was incredible, the majority failed to give proper deference to the trial court’s findings and improperly substituted itself for the fact-finder. Read dissent


In a previous appeal of this case, the court of appeals had reversed the defendant’s narcotics conviction by taking the now-well-disapproved approach of reviewing and rejecting each piece of the State’s evidence individually. The Court of Criminal Appeals reversed the court of appeals for taking this “divide and conquer” approach to a defendant’s challenge to the sufficiency of the evidence. Now the court of appeals has rejected all of the prosecutor’s race-neutral reasons for a peremptory challenge, once again in violation of controlling precedent from higher courts, as noted by the very well-written dissenting opinion. The Court of Criminal Appeals is going to be forced to reverse the court of appeals in this case—once again.

 Charleston v. Clint Allen, CDA Cass County

No. 06-12-00042-CV      10/15/12


Did the trial court improperly dismiss a lawsuit, alleging a violation of the due process and due course of law provisions, purportedly arising from the criminal district attorney’s (and his predecessor’s) failure to disclose exculpatory information?


No. The trial court correctly 1) dismissed the claim for monetary damages because the CDA was entitled to sovereign immunity and 2) granted summary judgment on the request for injunctive relief because, as the CDA did not possess the evidence at issue, the dispute was moot. Read opinion


This is a very well-written opinion that is very much in line with other legal authority on this issue, much of which has been developed in federal caselaw. But keep your eyes on the courts and the legislature for other attempts to hold prosecutors liable for claimed Brady violations.

Bridges v. State

No. 14-11-00669-CR      10/16/12


At a trial on a charge of aggravated assault by threat (knife), did the trial court wrongly deny a jury instruction on the lesser-included offense of misdemeanor assault by threat (words)?


Yes. Misdemeanor assault by threat is a lesser-included offense of aggravated assault, and there was direct evidence that the defendant did not use a weapon. Because the error was harmful, the court awarded the defendant a new trial. Read opinion


In this case, the State did not charge the defendant with threatening the victim WITH a knife. Rather, the State charged the defendant with threatening the victim AND also using and/or exhibiting a knife. So there was not necessarily a difference in the manner and means alleged in the charged offense and the requested lesser-included offense. The defendant stated that he never had a knife, and that allowed for the finding of harm because of the absence of the instruction.

Texas Attorney General

Request from the Fannin County Criminal District Attorney

RQ-1090-GA      10/9/12


Whether bond forfeitures are subject to commissions described by Government Code §41.005 and retained by the district attorney, whether such a commission would be subject to the approval of the commissioners’ court, and into which county fund must such a commission be deposited. Read request 


This is an interesting issue, and there is little reference to the statute in the caselaw.

Request from the Hunt County District Attorney

RQ-1089-GA      10/9/12


Whether a district judge may order the director of a community supervision and corrections department to personally conduct presentence investigations and prohibit the director from delegating any of the work involved in preparing the PSI report. Read request


Section 76.004 of the Government Code suggests that “officers and other employees” are the ones that conduct presentence investigations, not the director.  Article 42.12, §9 of the Code of Criminal Procedure contemplates a “supervision officer” being the person who would conduct a presentence investigation.  It would seem unworkable in most counties for the director to be the person responsible for conducting presentence investigations. 

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