Texas Courts of Appeals
No. 01-15-00979-CR 8/3/17
Is the erroneous omission of a jury instruction on voluntariness reversible error?
Yes. A jury instruction is required when some evidence regarding the voluntariness of a defendant’s statement is presented, even if the judge correctly denied a motion to suppress the statement. The evidence presented must merely be sufficient for a jury to reasonably find that the statement was involuntary. If the defense does not object to exclusion of the instruction on voluntariness, the defense must show egregious harm for reversal. The defendant in this case suffered egregious harm because his statement to police was a key part of the State’s case and was emphasized heavily during closing arguments. Read opinion.
It is rare that a conviction is overturned because of jury charge error when the defendant did not object to the jury charge. This case should encourage prosecutors to think about the trial court’s charge to the jury when the defendant’s statement to the police has been introduced into evidence. Even though the defense raised no objection to the absence of an instruction on voluntariness, he is entitled to it if any evidence raises the issue of voluntariness. The court’s opinion also emphasizes that Article 38.22 of the Code of Criminal Procedure provides broader protection to a defendant than the United States Constitution.
No. 04-16-00199-CR 8/9/17
Is the provision of alcohol along with a receipt sufficient to prove that a “sale” of alcohol has occurred?
Yes. Under Texas Alcoholic Beverage Code §101.63(a), a person sells an alcoholic beverage by providing another person with an alcoholic beverage in exchange for consideration. A “receipt” is a writing marking a bill as paid. A trier of fact could reasonably infer that the defendant sold alcoholic beverages to an intoxicated person when the defendant took an order from an intoxicated woman, delivered the drinks to her table, and handed the woman a receipt. Read opinion.
This is a helpful and thorough decision on what constitutes a “sale” of an alcoholic beverage. This particular offense may be prosecuted rarely, but this decision should also help in construing the evidence in other similar prosecutions. Good job by the State in fighting the trial court’s ruling in this State’s appeal.
Texas Attorney General Opinions
No. KP-0157 8/3/17
May relatives of a public official perform uncompensated work for the official’s office without violating nepotism laws if the relatives receive reimbursement of actual expenses or a per diem expense payment?
Yes. Section 573.041 of the Government Code prohibits a public official from appointing certain relatives to positions compensated with public funds. The reimbursement of expenses, however, is not compensation. Thus, a public official may appoint a close relative to a volunteer position that provides reimbursement for incurred expenses but no compensation. Read opinion.
This opinion is consistent with previous treatment of this issue—that reimbursement for expenses does not constitute compensation, even indirectly. In a footnote, the opinion does suggest that paying a per diem rate for expected expenses could be problematic because it might be viewed as compensation, as opposed to reimbursement.
No. KP-0158 8/8/17
May the State obtain a waiver of a defendant’s right to seek expunction of the arrest record for the offense for which it places the defendant in pretrial diversion?
Yes. Article 1.14 of the Code of Criminal Procedure allows a person to waive the right to seek expunction of arrest records and files as a condition in a pretrial diversion agreement, provided the waiver is voluntarily, knowingly, and intelligently made. Read opinion.
This is a brief opinion, short and to the point. This should help offices in administering a pre-trial diversion (or intervention) program, which is becoming a more common part of the criminal justice system (as is expunction).
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