Texas Courts of Appeals
No. 04-13-00081-CR 7/2/14
When the indictment charged multiple counts of aggravated sexual assault and indecency with a child all occurring “on or about” the same date, was it a double jeopardy violation to convict the defendant of all of the counts even though two of the counts would likely be lesser included offenses if they all actually occurred on the same date?
No. The “on or about” language allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statute of limitations. The testimony at trial showed that the criminal events all took place at different times, even though the indictment alleged them to occur “on or about” the same day. Read the opinion.
This case offers a template for how to fight claims that multiple sex offenses are really just the same offense. The court does a detailed analysis of times, places, and events in rejecting the double jeopardy claims. If you are facing such a claim, consider using a table to lay out the allegations in the indictment and the pertinent facts of the incidents developed in testimony to show that you are prosecuting separate acts rather than “one act subject to two different interpretations.”
Is it a Confrontation Clause violation to admit the results of a blood draw in a DWI case when the nurse, who performed only the blood draw and nothing else, is not available to testify?
No. The Confrontation Clause is violated if the analyst who tested the blood and signed for the report that certified the results were above the legal limit is not available to testify, but not the nurse who merely performed the blood draw. Read the opinion.
This is a useful case. Nurses are often difficult to track down because they often are not employees of the facility where the blood is drawn, they work odd hours, and they often change jobs. Just because the nurse is not there to testify does not mean the blood is inadmissible under the Confrontation Clause.
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