October 25, 2019

Texas Court of Appeals

Torres v. State

No. 14-18-00502-CR         10/17/19

Issue:

Is a mistrial warranted where a prosecutor “argued a hypothetical” to the jury on the topic of parole eligibility by explaining the math process and by stating that the prosecutor was scared about the possibility of the defendant’s early release?

Holding:

No. The Court concluded that there was no prejudicial misconduct that would require a mistrial based on the prosecutor’s hypothetical argument. The prosecutor was allowed to explain how the rules on parole eligibility would apply toward sentences of varying lengths. The Court stated that even if they agreed that the prosecutor’s argument was improper, the trial court issued an instruction to the jury. Because it is presumed that the jury followed the instruction, that was sufficient to cure any unfair prejudice. Read Opinion.

Commentary:

In jury argument, it is probably a good idea to stay away from calculations of how long a defendant might spend in prison based upon the sentence that he receives and his parole eligibility. This case was saved by the trial court’s instruction to disregard the prosecutor’s remark.

Texas Attorney General

KP-0275                10/21/19

Issue:

Can probable cause affidavits that are likely to identify child victims be released to the public upon a request made to a justice of the peace?

Conclusion:

Code of Criminal Procedure Art. 15.26 makes probable cause affidavits public information, but a court could conclude that Subarticle 57.02(h) prohibits the disclosure of identifying information regarding a child sex offense victim from the affidavits by a justice of the peace without a court order. Whether a justice of the peace could issue such an order depends on the nature of the underlying offense. A court could conclude that the two statutes may be reconciled through redaction of the identifying information. Read Opinion.

Commentary:

The opinion notes that the public disclosure of arrest warrants and their affidavits is not controlled by the Public Information Act, but by Article 15.26 of the Code of Criminal Procedure. With regard to the ability to disclose sensitive information in such an affidavit, the opinion focuses upon justices of the peace and their jurisdiction over particular cases. That analysis would obviously change if a different type of judge or magistrate had issued the warrant. It is a good idea to get acquainted with Chapter 57 of the Code of Criminal Procedure and the chapters that follow it to see what information the Legislature has afforded protection.

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