September 18, 2009

Texas Court of Criminal Appeals

Ex parte Harbin

09/16/09 : Cite Nos. AP-76,092 and AP-76,093


Is the California offense of "annoy or molest a child" substantially similar to a Texas offense requiring defendants to register as sex offenders?


No. The Department of Public Safety has responsibility for making the determination for substantial similarity between Texas and out-of-state offenses. DPS does not list California Penal Code §647.6 as a reportable conviction that meets this standard. Read Opinions here and here.


Through an amazing series of bills, savings clauses, interpretations and legal analysis, we find that this Defendant did not, as a matter of law, commit the crime, as alleged in the indictment, of failing to register. Ironically, upon his release, he will immediately have a duty to register as a sex offender. Here is hoping that his Mom takes him in again and helps him register. Frankly, though, he should consider moving back to California.

Ex parte Hood

09/16/09 : Cite No. WR-41,168-11


Was the defendant denied a fair trial because of a romantic relationship between the trial judge and the prosecutor?


The court did not rule on the merits of the case instead finding that the subsequent filling did not meet the statutory requirements. The CCA dismissed as an abuse of writ. Read Opinion.


The applicant has satisfied the requirements of Article 11.071, § 5(a) and would remand the application to the habeas court to make further factual findings and recommendations concerning the merits of the claim. Read Dissent.


At the time of trial, witnesses said it was commonly believed that there had been an intimate relationship between the judge and prosecutor. Regardless, that relationship ended three years before Hood’s trial. And, since 1999, the defense has had a vehicle by which they could have developed additional evidence of the relationship but waited until now to use it. Those undeniable facts clearly support the CCA’s decision to reject the subsequent writ on the ground that the defense failed to diligently pursue the matter until weeks before an execution date. But, note that the CCA still has a remaining issue (involving a punishment jury charge) to resolve. Regardless of the outcome on that issue, this case is likely to be revisited in federal court, where we will find out whether deference to state court findings will prevail.

Office of the Attorney General

Request for Opinion for the Harris County Attorney

Question asked

Is a district clerk authorized to accept an assignment of the defendant’s cash bail bond refund in payment of the defendant’s fines and costs? Read Request.

Texas Court of Appeals

Spence v. State – 7th COA

09/10/09 : Cite No. 07-08-0335-CR


Can a license plate be placed in the windshield of a car and still meet the requirements for displaying plates found in TEX. TRANSP. CODE §502.404(a)?


No, unless the windshield is at the point where the car begins (the foremost portion of the car). The test is not whether the plate can be easily seen by officers. Read Opinion.


Umm, in conducting a legal analysis of the word "front" — to determine if a license plate placed on the dashboard satisfied the legal requirement for a "front" license plate — the court of appeals actually said, "And, who can forget those scenes from ‘Hogan’s Heroes’ where Colonel Klink was repeatedly threatened with and fearful of being sent to the ‘Russian front’; that threat would not have had the same impact if ‘front’ actually meant something other than the beginning of the battlefield whereat the two sides are actually engaging in war." Wow.

Griffith v. State – 7th COA

09/11/09 : Cite No. 07-09-0152-CR and 07-09-0152-CR


Does one visit by the defendant to an "area where children congregate" violate a probation term preventing the defendant from "frequent[ing] areas where children congregate"?


No. Frequenting requires more than one event or more than a single occurrence. Here the State proved only one occurrence, and the judgment was reversed. Read Opinions here and here.


Now we know that one must visit an establishment more than once before one can be accused of "frequenting" it. Not an unreasonable interpretation. Of course, many sex offenders are now prohibited from having any contact with a child. That avoids the need to prove the frequency of the visit. 

Castellon v. State – 7th COA

09/14/09 : Cite No. 07-08-0461-CR


Does a trial court have the responsibility to sua sponte charge lesser-included offenses when there is no objection to the jury charge and no request for such a charge to be included?


No. The judge has a duty to sua sponte prepare a charge that accurately sets out law applicable to the specific offense charged. For other issues, there must be a request or an objection. Read Opinion.


Judges should be relieved to know that they may wait for the State or Defendant to request a lesser-included charge before considering whether to place it in the instructions. 


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