Court of Criminal Appeals
No. PD-0758-15 9/28/16
Can a defendant be prosecuted for burglary of a habitation that he lives in with the victim?
In this case, yes. The Penal Code definition clearly states that the owner of property is a person who has “a greater right to possession of the property than the actor.” Even though the defendant was living with the victim, she had greater right to possession of the property because it was in her name, she paid the rent, and she invited the defendant to live there. Additionally, the victim closing the door and locking the deadbolt so the defendant could not use his key to enter was an effective revocation of consent for him to enter into the habitation. Read.
This was a creative use of the burglary statute to fight family violence. And the CCA affirms that it was a proper use of the burglary statute.
No. PD-1238-15 9/28/16
Did the State properly toll the statute of limitations in its prosecution of the defendant for official oppression?
Yes. The state filed a document that met the requirements for both a complaint and an information before the statute of limitations expired. Because of this, the statute of limitations was properly tolled and the case may move forward. Read.
This opinion may not affect our business very much. Here, the State filed a complaint charging the defendant with a misdemeanor involving official misconduct. Because the complaint also met the requirements of an information, it was sufficient to toll limitations. But the CCA’s opinion indicates that the Code notes that complaints and informations should be separate documents. The CCA did not reach the State’s argument that a complaint alone tolls limitations in a felony case.
Texas Courts of Appeals
Fields v. State (1st COA)
No. 01-15-00772-CR 9/27/16
Is testimony regarding a defendant’s possible Alzheimer’s disease or dementia relevant to his state of mind?
No. The defendant did not produce any evidence of his mental capacity beyond unsupported speculation: There was no testimony regarding a medical diagnosis, special treatment, or other details about the defendant’s cognitive abilities. Without more, this testimony was not enough to negate mens rea and thus was not relevant. Read.
Here, the defense offered only the defendant’s wife’s impression that he might have Alzheimer’s disease. The court’s opinion seems to conflate relevance and preservation as well, so prosecutors should not read this case as holding that evidence of Alzheimer’s disease is never admissible at guilt.
Ganung v. State (9TH COA)
No. 09-16-00018-CR 9/21/16
Does Penal Code §33.021, which outlaws solicitation of a minor, violate the Fourteenth Amendment because it does not include a mens rea element?
No. Section 33.021(d) does not remove the mens rea element of §33.021(c) because §33.021(c) requires specific intent at the time of the solicitation, not after the fact. Read.
Here the court of appeals upholds the constitutionality of the portion of §33.021 that was not struck down in Ex parte Lo. The defendant’s specific attack was that by defining a minor to include persons representing themselves as under 17—read: undercover officers—the Legislature eliminated the intent requirement. The current version of the statute uses a different definition, so this decision is mostly of interest in post-conviction proceedings or older cases awaiting trial.
Office of the Attorney General
Whether grand jury reports prepared as part of an investigation into official misconduct under Code of Criminal Procedure Art. 2.03 may be filed with the district clerk, and whether upon filing, the report should become public record, requested by the Victoria County Criminal District Attorney, Stephen Tyler. Read.