October 21, 2016

Court of Criminal Appeals

Metts v. State

No. PD-1054-15 & PD-1055-15    10/19/16


Does appearing at a status hearing and signing a jury waiver form make a prosecutor “counsel for the State”—so that the prosecutor would later be disqualified from hearing the case as a judge?


Yes. Because the now-judge did appear as a prosecutor in the case, however briefly, and did sign the jury waiver form, she should be considered to have participated in the case and should be disqualified from presiding over the case now as a judge. This case does raise the issue of whether judicial disqualification is subject to procedural default—the case is remanded for the court of appeals to address that issue. Read.


If you are in a county where prosecutors often run for or are appointed to your local judicial courts, you may want to pour over the documents in your cases to make sure that a prosecutor-turned-judge has not served, even for a limited time, as a prosecutor on the case. In this case, the prosecutor-turned-judge had served only once, at a status hearing during which the defendant waived his right to a jury trial. And that prosecutor-turned-judge was apparently only standing in for another prosecutor. So be careful. You will probably see this case when the preservation issue is decided because the Court of Criminal Appeals will almost certainly want to review that issue as well. For you appellate prosecutors out there, read footnote 12 and gain some insight into the current court’s thinking on preservation and the need for cross-petitions for discretionary review.

Moore v. State

No. PD-1634-14                 10/19/16


Does Family Code §54.02(j)(4)(A) require that the court consider the factors for oppressive delay before dismissing a case with prejudice?


No. §54.02(j)(4)(A) deals the jurisdiction of juvenile courts, not speedy trial claims. The State is required to present a reason beyond its control for failing to proceed in juvenile court before the appellant’s 18th birthday. Because it could not, the court was right to dismiss the claims without considering the additional factors involved in a speedy trial claim. Read.


There is really no way around this. We must file our juvenile petitions on time, and the need for that must be communicated to law enforcement and anyone else in your county that might be considered part of “the State.”

Courts of Appeals

Wilson v. State (9th COA)

No. 09-15-00412-CR         10/19/16


Must a city have a written building-use policy to restrict someone from city property or to uphold a trespass conviction?


No. Any complaints about a building-use policy or lack thereof are a civil matter. The trespass statute, Penal Code §30.05, requires only that the State prove that the defendant was warned by someone with the authority to do so that he could no longer enter the owner’s property. Read.

Dissent (McKeithen, C.J.):

Justice McKeithen dissented because he believed the unwritten policy of the city violates due process by being unconstitutionally vague and permitting selective enforcement of the laws. Read.


It is possible that the Court of Criminal Appeals might want to review this decision because it appears to disagree with the holding in another case decided by the Texarkana Court of Appeals. But this decision is undoubtedly decided correctly. As long as a defendant is not excluded from a government building for an unconstitutional reason (such as his race) or an invalid reason under statute (such as the fact that he was a handgun license holder lawfully carrying a handgun), the government should be able to exclude him. This defendant had been repeatedly harassing the female employees at a community center, and he often slept on the benches in the community center (which was not allowed).

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