Texas Supreme Court
In the Interest of C.L.E.E.G.
Issue:
Did a court of appeals correctly reverse a decision to terminate a father’s parental rights when he was incarcerated but was given the possibility of parole?
Holding:
No. Tex. Fam. Code §161.001(b)(1)(Q) permits a trial court to terminate parental rights when a parent is engaged in criminal conduct, convicted of an offense, and imprisoned and unable to care for the child for not less than two years. Here, the father’s testimony that he could “get an answer” within four months on his parole decision and that he might be released due to the COVID-19 pandemic was too speculative. In addition, the Court held that the Department of Family and Protective Services’ burden under the law was not to show that the father had “zero chance of parole.” Read opinion.
Commentary:
If and when an incarcerated person will be released early on parole is a guessing game for everyone involved, and evidence related to parole decisions will always involve speculation. Although this opinion closely resembles the Court’s previous decision in In re H.R.M., 209 S.W.3d 105 (Tex. 2006), this case should be useful to practitioners as a more recent demonstration of what evidence will not suffice to defeat a factfinder’s determination that an incarcerated parent will remain incarcerated for at least two years. In particular, given the ongoing state of the COVID-19 pandemic, it is notable that the Court held that the incarcerated father’s mere testimony that Texas prisons are a “hotspot” for the disease and, thus, the father was more likely to be released early was insufficient and “barely more than conjecture[,]” which the factfinder was free to believe or disbelieve as it saw fit. Regardless of which side of a parental-rights-termination proceeding a prosecutor is on, this opinion will be especially relevant if a parent seeks to make a similar assertion.
Texas Court of Criminal Appeals
Pham v. State
No. PD -0287-20 2/9/22
Issue:
Was a defendant entitled to a PC §9.04 (threat of deadly force) instruction after he shot a victim and claimed it was in self-defense?
Holding:
No. Section 9.04’s application is limited to cases in which the actor is only creating an apprehension that he will use deadly force, if necessary. As the Court noted in its previous decision, Gamino v. State, 537 S.W.3d 507 (Tex. Crim. App. 2017), §9.04 applies only when deadly force is not used. Here, the defendant didn’t just create an apprehension, he also intended to shoot the victim and actually used deadly force by shooting the victim twice. Read opinion.
Concurrence (Yeary, J.):
Although the Court did not address the defendant’s argument about his inability to defend against the State’s “provoking the difficulty” theory (whereby the defendant forfeits his right of self-defense by provoking the victim), the concurrence explains that the defendant did not require the §9.04 instruction to make an argument that he was not the first aggressor in the encounter. Read opinion.
Concurrence (Slaughter, J., joined by Richardson and Walker, JJ.):
Agreeing that the trial court’s refusal to instruct the jury on §9.04 in this case was not harmful, the concurrence concludes, however, that Texas law protects a person’s right to draw a weapon as a threat in self-defense to discourage a deadly conflict. Therefore, the defendant was entitled to a §9.04 jury instruction. Read opinion.
Commentary:
The Court specifically noted that it was not addressing whether conduct short of actually causing serious bodily injury or death—such as firing a gun in the air or in the direction of a person—would go beyond §9.04’s expressly limited application to scenarios in which the actor’s purpose was only to “creat[e] an apprehension that he will use deadly force if necessary.” Nevertheless, this opinion creates a clear outer boundary for the application of §9.04, making it inapplicable when the defendant intended to cause (and actually did cause) serious bodily injury or death and, thus, plainly went beyond merely threatening to cause those results.
Texas Courts of Appeals
Matew v. State
No. 13-20-00062-CR 2/3/22
Issue:
If a defendant is granted judicial clemency for a conviction while subsequent charges (felon in possession of a firearm and body armor) are pending, can the initial conviction be used as a predicate for the subsequent felony weapons convictions?
Holding:
Yes. Citing Ex parte Jimenez, 361 S.W.3d 679,682 (Tex. Crim. App. 2012), the court concluded that the State must prove a defendant’s felony status when he possessed the firearm to obtain a valid conviction. Here, the defendant had a felony conviction at the time he was arrested for the felon in possession charges. In addition, although the term “convicted” is not defined in PC §§1.07 or 46.04 to include convictions dismissed through judicial clemency, the court noted to conclude otherwise would lead to absurd consequences in which defendants would rush to courthouses to seek judicial clemency for prior felony convictions to escape pending felon in possession charges. Read opinion.
Commentary:
Though the opinion is succinct, the appellate court thoroughly addresses the issues, accurately applies Jiminez by analogy, and logically distinguishes the cases cited by the defendant. Notably, the court’s distinction of Cuellar v. State, 70 S.W.3d 815 (Tex. Crim. App. 2002), reiterates that the timing of a grant of judicial clemency is the key consideration for whether an accused had the status of a convicted felon at the time of arrest for a new “felon-in-possession” offense—regardless of the type of offense—not the clemency, itself. The Court of Criminal Appeals has similarly distinguished Cuellar in Bohannan v. State, 546 S.W.3d 166, 174-75 (Tex. Crim. App. 2017), so this opinion faithfully applies precedent and should withstand further judicial scrutiny.
Hinton Memorial Scholarship Reminder
Want to go to the 2022 TDCAA Annual Criminal and Civil Law Conference but don’t have the funds? Just a reminder that the Foundation, through generous gifts in memory of Mike Hinton, can scholarship you! All you need to do is fill out the application HERE and send it in! Questions? Just call Rob at 512-971-8425. But hurry, applications are due April 30th!