Texas Courts of Appeals
No. 08-15-00266-CR 8/16/17
Can statements made by a non-testifying co-defendant, secretly recorded by a witness cooperating with the police by wearing “a wire,” be considered testimonial under the Confrontation Clause?
Yes. When the actions of the cooperating witness and the co-defendant and the circumstances of their interaction objectively indicate that the primary purpose of the conversation was to record incriminating statements about a past event, the non-testifying co-defendant’s statements are testimonial and may not be admitted. Read opinion.
This is a pretty thorough treatment of the issue, but the Court of Criminal Appeals may still wish to review the decision because this particular application of Crawford v. Washington has not been made very often. If a prosecutor wishes to introduce a co-defendant’s statements made to a cooperating witness, the witness will be considered a law enforcement agent in this type of scenario. Read this decision to be aware of the applicable law.
No. 08-16-00039-CR 8/18/17
Is a defendant arrested under a fugitive warrant entitled to appointed counsel prior to the issuance of a Governor’s warrant?
No. Defendants have a right to appointed counsel during extradition proceedings. However, a defendant is not entitled to be heard by the Governor before the Governor’s warrant is issued, and is therefore not entitled to have an attorney appointed until after the warrant is issued. Issuance of the Governor’s warrant also renders moot any complaint regarding confinement based on the fugitive warrant. Read opinion.
The defendant claimed that he wanted counsel at this particular stage so that an attorney could assist him in setting bail. The court of appeals noted that the setting of bail under such circumstances is permissive, rather than mandatory. The trial judge in fact issued a bond order, and the Governor’s warrant was issued in this case. The primary portion of this decision deals with whether the defendant’s claim was moot, so this case has a very limited application. But if you have a defendant request counsel under these particular circumstances, this decision will be helpful.
Nos. 05-17-00634-CV to -00636-CV 8/21/17
Does a provision allowing a judge to disregard the fee schedule for appointed attorneys on an individual basis violate Code of Criminal Procedure Art. 26.05?
Yes. Art. 26.05 requires judges of criminal courts within a county to adopt a fee schedule that sets fixed rates or reasonable minimum or maximum hourly rates for payment of all appointed attorneys within the county. Judges may consider the possibility of unusual circumstances when setting the range of reasonable fees in the schedule but may not adopt an “opt out” provision that allows a fee outside the fee schedule at an individual judge’s discretion. Read Opinion.
The trial judge had authorized a payment of attorney’s fees at the rate of $300 per hour, well in excess of the fee schedule adopted by the criminal district court judges. The controlling statute places the discretion for setting a fee with the collective criminal district court judges, rather than with a particular criminal district court judge in a particular case. This opinion involves the payment of attorney’s fees to the attorneys pro tem who are prosecuting Attorney General Ken Paxton, so it is likely we have not heard the last of this controversy. The typical remedy for having mandamus relief granted by a court of appeals is for the aggrieved party to file a brand-new petition for a writ of mandamus in the Court of Criminal Appeals. Stay tuned.
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