Court of Criminal Appeals
Sandoval v. State
No. AP-77,081 12/7/22
Issue:
Does a jury need to be unanimous in rejecting a greater offense before returning a guilty verdict on a lesser offense?
Holding:
Yes, the Court held the plain meaning of Art. 37.08 of Criminal Code of Procedure to mean a jury must be unanimous because “a conviction on a lesser included offense would necessarily be a verdict of acquittal on the greater offense, not simply a situation where the jury could not agree on the greater offense.” Read opinion.
Commentary:
The main holding of the court is to reject dicta from Barrios v. State that a trial judge could charge the jurors on “failure to agree,” “unable to agree,” or “reasonable effort” with regard to transitioning to considering a lesser-included offense. While the court also held that a jury must be unanimous in acquitting a defendant of a greater, charged offense before finding a defendant guilty of a lesser-included offense, the court did not make a holding that the jury should so be instructed. Nevertheless, the court did speak favorably of an “acquittal first” instruction. The court also spoke favorably of a “modified acquittal first” instruction that would allow the jury to deliberate in the order that it saw fit, but would require the jury to acquit the defendant of the greater offense before returning a verdict on the lesser-included offense. The court also spoke favorably of a “benefit of the doubt” instruction that would require the jurors to resolve in the defendant’s favor any doubt regarding the choice between the greater or lesser-included offense, and thereby find the defendant guilty of the lesser-included offense.
Texas Court of Appeals
State v. Zuniga
No. 14-21-00757-CR & -00758-CR 12/13/22
Issue:
Is §545.157 of the Texas Transportation Code, otherwise known as the Move Over Act, impermissibly vague on its face because it does not define the term “approaching”?
Held:
No. Section 545.157 is valid on its face because a person of ordinary intelligence would know what is required: move over or slow down before passing a stationary emergency vehicle. A specific distance measurement is not necessary or helpful because an ordinary driver does not have the tools to safely measure the distance in front of him while driving at highway speeds. Read opinion.
Commentary:
This is a very thorough decision and should be read by prosecutors who are facing a non-First-Amendment challenge to the vagueness of a statute. It is possible that the Court of Criminal Appeals might want to review this decision because its analysis reveals that there is a split of authority regarding the defendant’s burden when he is not making a First Amendment challenge to the vagueness of a statute. Nevertheless, the overall analysis of the court of appeals in this case should survive scrutiny the Court of Criminal Appeals.
Texas Attorney General Opinion Requests
RQ-0489 12/9/22
Issue:
What is the effect of a municipal ordinance enacted in San Marcos purporting to eliminate the enforcement of certain drug laws within the municipality? Read opinion request.
Requested by:
Wes Mau, Hays County Criminal District Attorney
RQ-0490-KP 12/14/22
Issue:
Does a county commissioners court have authority to contract for the collection of forfeited commercial bail bonds under Code of Criminal Procedure Article 103.0031(h)? Read opinion request.
Requested by:
Luis V. Saenz, Cameron County District Attorney