Court of Criminal Appeals
Philmon v. State
No. PD-0645-19 10/21/20
Issue:
Did convictions and sentences for both aggravated assault with a deadly weapon and family-violence assault violate the defendant’s double jeopardy rights?
Holding:
No. The separate convictions and punishments did not violate the defendant’s double jeopardy rights because each offense required proof of an element the other offense did not, and the Legislature did not clearly intend only one punishment for these two offenses. Read Opinion.
Concurring (Keasler, J.):
“I agree that the court of appeals’ judgment should be affirmed. Nevertheless, I am more than a little skeptical of the Court’s claim that, in some circumstances, the hand or arm a person uses to impede someone’s breathing needn’t be considered a deadly weapon.” Read Opinion.
Commentary:
Always be cautious about prosecuting a defendant for two offenses in the same trial. I am not saying it is never appropriate. But always keep the defendant’s right against double jeopardy in mind. The rules can get confusing. When dealing with assault, two convictions can be appropriate if one of the assaults is an assault by threat and the other assault is for causing bodily injury. That was the situation in this case. Learning the law regarding double jeopardy can be quite challenging. Reading this decision helps, but you should also read the decisions that the majority opinion cites to gain a better grasp.
Texas Courts of Appeals
Enns v. State
No. 01-19-00234-CR 10/15/20
Issue:
Did an officer have reasonable suspicion to conduct a traffic stop of the defendant based on a tip from a confidential informant received by the narcotics task force?
Holding:
Yes. The Court concluded that the activities observed by the narcotics task force sufficiently corroborated the information provided by the informant and provided the officer with reasonable suspicion to stop the defendant’s car to investigate possible narcotics trafficking. In addition, the officer did not stop the defendant’s car solely based on the informant’s tip. The informant told members of the narcotics task force that the residence in question was a narcotic distribution house. The informant’s information was verified when, as a result of that information, the task force (consisting of officers from various agencies) set up surveillance of the residence, which continued for several hours. The information from the confidential informant was thus independently corroborated by firsthand surveillance of the defendant’s activities by law enforcement. The officer who conducted the traffic stop was not required to personally observe the suspected car or the defendant’s activity at the residence during the surveillance to justify the stop. Read Opinion.
Concurring (Goodman, J.):
“The majority reaches the correct result, but plainly errs in its analysis of whether peace officers reasonably suspected [the defendant] committed a traffic offense. I therefore decline to join the majority’s analysis of this issue. I agree with the remainder of the majority’s opinion and concur in the judgment to affirm.” Read Opinion.
Commentary:
This is a great decision on the corroboration of anonymous tips and traffic stops. The majority emphasizes that an officer only needs reasonable suspicion to stop or detain; he does not need probable cause or an assurance that an actual violation has occurred. The majority also emphasizes that the detaining officer can rely upon the observations of other officers in order to justify the stop. The majority’s opinion is very helpful.
Cisneros v. State
No. 13-18-00652-CR 10/15/20
Issue:
Did the defendant’s convictions for two counts of continuous sexual abuse and three counts of aggravated sexual assault convictions violate Penal Code §21.02(e)?
Holding:
Yes. Penal Code §21.02(e) demonstrates a clear legislative intent “to disallow dual convictions for the offense of continuous sexual abuse and for offenses enumerated as ‘acts of sexual abuse’ when based on conduct against the same child during the same period of time,” regardless of whether the separately-charged individual acts of sexual abuse are also alleged to be predicate offenses for continuous sexual abuse. Section 21.02(e) forbids dual convictions even when, as here, the §21.02 charge alleges specific conduct that is separate from the conduct alleged in the separate individual charges. Here, the victims of the aggravated sexual assault offenses were the same as the victims of the continuous sexual abuse offenses; the aggravated sexual assault charges were not presented as alternatives or as lesser-included offenses of continuous sexual abuse; and the aggravated sexual assault charges were based on conduct that occurred within the same time period alleged in the continuous sexual abuse charges. Therefore, the dual convictions in this case violated Penal Code §21.02(e) and the defendant’s constitutional rights. Read Opinion.
Commentary:
Keep this decision (and §21.02(e)) in mind when prosecuting a defendant for continuous sexual abuse of a child. The 13th Court follows other decisions that have construed the subsection. The court of appeals also rejected the defendant’s double jeopardy challenge to two separate convictions for continuous sexual abuse of a child (based upon separate victims).
Texas Attorney General
KP-0335 10/20/20
Issue:
Is a search warrant and “warrant return” subject to disclosure under the Public Information Act, or any other law or regulation of the State of Texas, when there is an ongoing criminal investigation?
Conclusion:
The Public Information Act does not apply to a district clerk holding a search warrant, warrant return, and property inventory on behalf of the judiciary. Instead, the Code of Criminal Procedure governs public access to such documents. Based on language in Code of Criminal Procedure Art. 18.011(d)(1) that a court order temporarily sealing a search warrant affidavit “may not . . . prohibit the disclosure of information relating to the contents of a search warrant, the return of a search warrant, or the inventory of property taken pursuant to a search warrant,” a court would likely conclude that such documents are subject to public disclosure by a district clerk. Read Opinion.
Commentary:
This relatively brief opinion is a straightforward application of rules of statutory construction (and maybe a little policy as well). You may be able to take advantage of the sealing provision. But the sealing provisions in the Code of Criminal Procedure are not as comprehensive as some in other jurisdictions.