October 4, 2019

Texas Court of Appeals

Mendoza v. State            

No. 01-18-01140-CR         9/26/19               


Can a court refuse to allow a defendant to withdraw his guilty plea and instead instruct the jury to find the defendant guilty in conformity with his guilty plea?


No. When a defendant seeks to withdraw a guilty plea before the jury retires, a defendant’s right to withdraw that plea is unqualified, and the trial court has no discretion to deny the request. Here, the jury had not retired to deliberate when the defendant asked to withdraw his guilty plea; therefore, the defendant had an absolute right to withdraw his plea. The Court stated, “In refusing to allow the defendant to withdraw his guilty plea and instead instructing the jury to find him guilty as to the one count, the trial court short-circuited the factfinding process.” Read Opinion.

Dissent (Keyes, J.):

“The majority correctly holds that the trial court’s refusal to withdraw Mendoza’s guilty plea to Count Eleven was constitutional error. But it refuses to find the error harmless. Instead, it reverses and remands for a new trial on Count Eleven. I would not. I believe that the error was harmless under the standard for constitutional error and that the majority raises the standard, setting bad precedent for this Court.” Read Opinion.


The whole issue on appeal was whether the defendant was harmed by the trial court’s error in refusing to permit the defendant to withdraw his guilty plea in light of the fact that the jury had not yet started deliberating when the withdrawal request was made.  The dissenting opinion is much more thorough regarding a harm analysis, and the majority opinion does not attempt to distinguish or even mention the dissenting opinion’s analysis.  Withdrawal of a guilty plea during a jury trial is rare, but the published dissenting opinion should encourage the Court of Criminal Appeals to review this decision.

Ross v. State

No. 07-18-00034-CR         9/24/19


When giving a presumption instruction in Penal Code §32.51(b-1)(1) for the offense of fraudulent use of possession of identifying information, must a court also instruct the jury pursuant to Penal Code §2.05(a) regarding the treatment of a statutory presumption?


Yes. Without the required instructions from §2.05(a), the presumption in §32.51(b-1)(1) is an unconstitutional, mandatory presumption. Mandatory presumptions are unconstitutional because they relieve the State of the burden to prove every element of the offense beyond a reasonable doubt. Thus, the information contained in §2.05(a)(2) is necessary to permit the presumption. Read Opinion.


This decision is a good reminder when the jury has been charged regarding a presumption—the jury must also be charged as required by Section 2.05(a) of the Penal Code.  It is a mistake that is often made because jurors are so rarely charged on presumptions.  Unfortunately, it is also a mistake that is all too often found to be harmful on appeal.  If your trial judge has charged the jury on a presumption, you need to read this decision.

Texas Attorney General

KP-0272                09/24/19


Does subsection 1704.3004(c) of the Occupation Code—the statutory prohibition against bail bond sureties soliciting business inside a jail—prohibit a third-party contractor from installing and maintaining a signboard providing bail bond information inside a jail facility?  

Does subsection 1704.3004(c) impose an affirmative duty on public officials to provide a forum for advertising inside their detention?


A court would likely conclude that subsection 1704.304(c) does not prohibit a county from allowing a third-party contractor to install a signboard inside a jail facility with information about available bail bond services. Both Chapter 1704 and prior opinions from the Attorney General recognize a distinction between advertising and solicitation. Here, the general description of the signboards suggest that they are advertisements only and do not involve any personal petition to a specific detainee that would give rise to a solicitation.

No. The First Amendment does not impose any duty on a public official with control over a detention facility to provide a public forum for third-party contractors to install and maintain an informational signboard in the facility. The Supreme Court in Heffron v. Int’l Soc’y for Krishna Consciousness, Inc. recognized that the First Amendment “does not guarantee the right to communicate one’s views at all times and places” or in any manner. Finally, the Supreme Court has stated in Jones v. N C. Prisoners’ Labor Union that a prison is not a public forum. Read Opinion.


The key distinction here is whether a sign is informational or whether it is soliciting business.  The latter is prohibited, and the former is not.  The opinion is brief, but the First Amendment analysis also appears to be supported by what case law exists on this limited area.

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