Texas Courts of Appeals
Nos. 05-13-00421-CR to 05-13-00425-CR 8/15/18
Are facts including undue influence by a civil litigant upon the district attorney and presentation of the indictment to the grand jury with impure motives sufficient to warrant dismissal with prejudice for prosecutorial misconduct?
“The trial court had discretion to determine that [the defendant] not only overcame the presumption of regularity, but [also] presented clear evidence he was indicted in retaliation for the civil litigation involving his father and/or his former attorney. In addition, for these same reasons, the court could have determined that [the defendant] was denied his right to a disinterested prosecutor because [the district attorney] was under the influence of [the defendant]’s father and/or [the defendant]’s former attorney and that this influence conflicted with [the district attorney]’s duty to seek justice. … The facts of this case are egregious and amount to the kind of extraordinary circumstances that warrant the drastic measure of dismissal with prejudice. …To ensure that the State’s decision to prosecute [the defendant] would not be tainted by [the district attorney]’s involvement, the trial judge acted within her discretion in dismissing the indictments with prejudice. Given the prosecutorial misconduct in this case, such a drastic measure was appropriate.” Read opinion.
This decision is on remand from the Court of Criminal Appeals after the state’s high court held that a defendant can be entitled to an evidentiary hearing on a motion to quash or dismiss an indictment, at least if that motion was based upon prosecutorial vindictiveness or selective prosecution. The facts of this case are complex and messy, so it seems clear that this decision is bound by its unique facts and should not pose problems in defending against more typical claims of prosecutorial vindictiveness or selective prosecution that are based on little or no evidence. The “with prejudice” element of the court’s decision presents more problems, however. The necessity of a dismissal “with prejudice” does not seem required by these facts, and it is supposed to be an uncommonly rare occurrence in criminal cases in Texas. Yet the court deals with the “with prejudice” part of the trial court’s ruling in only one paragraph at the end of the opinion. We shall see if the Court of Criminal Appeals wishes to review these cases one more time.
No. 13-17-00383-CR 8/23/18
Does the charge of attempted sexual assault of a child require evidence that the minor actually exists?
No. Attempted sexual assault of a child does not require evidence that the defendant actually communicated with the minor. The existence of the minor is not an element of the charge and a fictitious minor, such as an identity used during a sting operation conducted by police, does not render the evidence insufficient. Read opinion.
The court of appeals suggests that the offense of online solicitation of a minor (compared with the charged offense of attempted sexual assault) requires the existence of a minor. It does not. It requires only the existence of a person that the defendant believes to be under age 17. Nevertheless, prosecutors wanting to charge a case with this particular fact situation as attempted sexual assault of a child should read this decision, as well as the unpublished decision from the Beaumont Court of Appeals cited in this opinion. Cases with facts similar to these should be able to proceed under either attempted sexual assault of a child or online solicitation of a minor.
Office of the Attorney General
Opinion KP-0212 8/28/18
Do Penal Code §§46.02–46.03 apply to presiding election judges licensed to carry a handgun under Government Code Chapter 411?
Penal Code §46.03, which creates an offense for carrying firearms at multiple locations, including a polling place, does not apply to presiding election judges licensed under Chapter 411 of the Government Code when performing their duties under Election Code §32.075(a).
Penal Code §46.035(a-l), (a-2), and (a-3) prohibit a presiding election judge from openly carrying a handgun on any institution of higher education campus and from carrying a concealed handgun in a location on campus where the institution prohibits carrying a handgun by rule.
Penal Code §§30.06 and 30.07 could prohibit a presiding election judge from carrying a handgun to a polling location on private property if proper notice was given under those sections. Read opinion.
This opinion gives a good analysis of the various provisions that might apply to an election judge who wants to carry a handgun on election day (or an early voting day).
Who’s coming to Galveston?
If you haven’t already registered for our Annual Criminal and Civil Law Update in Galveston, now is the time! This year’s conference will be held September 19–21 at the Moody Gardens Convention Center. Further details—including hotel information—and instructions for registering online are available here, so don’t delay: Reserve your spot today!
New TV documentary looking for Texas cases
The producers of a new TV documentary called "Murder for Hire" are seeking cases to potentially be featured on the show. It’s being co-produced by Dick Wolf (creator of the Law and Order series) and Shed Media, and the same folks produce "Criminal Confessions." More information is available here.