Texas Court of Criminal Appeals
Nos. PD-0323-16 to PD-0325-16 3/21/18
Is a defendant, who is charged with aggravated assault by threat with the use or exhibition of a motor vehicle as a deadly weapon, entitled to a lesser-included-offense instruction on deadly conduct?
Yes. “As a matter of law, deadly conduct is a lesser-included offense of aggravated assault alleged by the use or exhibition of a motor vehicle as a deadly weapon. Although the elements of deadly conduct are not phrased identically to the elements of the greater offense as alleged here, the elements satisfy the functional-equivalence test for the first step of the lesser-included-offense analysis.” Read opinion.
This case represents a reaffirmation and an extension of the court’s prior decision in Bell v. State, 693 S.W.2d 434 (Tex. Crim. App. 1985). But this decision also confirms that every judge on the Court of Criminal Appeals accepts the “functional equivalence” test for determining whether an offense is a lesser-included offense of the greater charged offense. The court held that engaging in conduct that places someone in imminent danger of serious bodily injury (deadly conduct) is functionally equivalent to threatening someone with imminent bodily injury while using or exhibiting a deadly weapon (aggravated assault). Prosecutors should be cautious about objecting to an instruction on a lesser offense merely because the elements of the two offenses do not line up exactly.
Texas Courts of Appeals
No. 14-16-00987-CR 3/20/18
Is a defendant entitled to a sua sponte jury instruction on temporary insanity due to voluntary intoxication?
No. Although temporary insanity caused by voluntary intoxication is a mitigation instruction, it is still considered a defensive issue. A trial judge has no duty to sua sponte instruct the jury on unrequested defensive issues because they are not part of the “law applicable to the case.” Read opinion.
The court additionally stated that the defendant would not be entitled to such an instruction even if he had requested it. The best that the evidence showed was that the defendant did not recall what had occurred, but that is not enough to show temporary insanity based upon voluntary intoxication.
No. 01-17-00218-CR 3/15/18
May a judge define “joint possession” in the jury instructions when the statutory definition of “possession” does not address “joint possession”?
Yes. Both “possession” and “joint possession” have established legal definitions that differ from everyday usage. It is proper to define statutorily undefined terms when their legal meaning differs from common usage to ensure that jurors do not apply personal definitions inconsistent with the legal meaning. Defining “joint possession” when it is an issue raised by the evidence is not an improper comment on the weight of the evidence. Read opinion.
Be cautious with this decision. There is caselaw that would allow a trial judge to define a non-statutorily defined term if it has acquired particular technical or legal meanings. See Celis v. State, 416 S.W.3d 419 (Tex. Crim. App. 2013); Navarro v. State, 469 S.W.3d 687 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d). But in crafting such a definition, be careful to select a definition that has acquired long-standing support in the caselaw. In this particular case, the court of appeals was further supported in its ultimate holding by the fact the current Texas Criminal Pattern Jury Charge includes a definition of “joint possession.”
Texas Attorney General Opinions
Opinion KP-0185 3/19/18
Which body-worn-camera recordings may an officer review, pursuant to Occupations Code §1701.655(b)(5), before making a statement about an officer-involved incident?
Occupations Code §1701.655(b)(5) requires a law enforcement agency that receives a grant for a body-worn-camera program or otherwise operates a body-worn-camera program to adopt a policy that entitles a peace officer to choose which recording or recordings of an incident involving the officer to access before the officer is required to make a statement about the incident. Read opinion.
This appears to be a straightforward application of rules regarding statutory construction. The decision—if applied—will have implications for how investigations of allegations of officer misconduct are handled. One might wish an officer to give his version of events without having his “memory refreshed” by his body-worn-camera recording, but this decision—and perhaps the Texas Legislature—would require that the officer be permitted to first review that recording.
Opinion KP-0186 3/19/18
Is a municipal law enforcement agency authorized or required to release audio or video recordings from a body-worn camera to members of the public, members of the governing body of the municipality, and civilian employees of the municipality?
Pursuant to Government Code §552.108(a)(l), upon receiving authorization from the Attorney General, a law enforcement agency may withhold the recording of a body-worn camera if releasing it to a member of the public would interfere with the detection, investigation, or prosecution of a crime. The exception to disclosure under §552.108 is discretionary, and a law enforcement agency may release information recorded by a body-worn camera to a member of the public after the agency redacts any information made confidential by law.
With narrow exceptions, §58.008 of the Family Code prohibits a law enforcement agency from releasing to a member of the public a body-worn camera recording that could be used as evidence in a juvenile court proceeding or depicts or otherwise relates to a child in a manner that would restrict access to the recording.
A municipal law enforcement agency may not withhold from a member of the municipal governing body a recording from a body-worn camera when the request is made in the member's official capacity. Whether civilian employees may access the recordings will depend on the authority given those employees by the municipal governing body and the internal policies and procedures of the municipality. Read opinion.
This opinion would give a law enforcement agency the freedom to support (or not support) an officer’s actions with hard evidence of what actually occurred at a scene. One might expect the public to demand consistency in the exercise of the agency’s discretion, so an agency will want to consider its policies carefully.
The Animal Law Section of the State Bar of Texas is holding its annual Animal Law Institute conference on Friday, April 27 in Austin. The conference is on animal cruelty and topics include the link between domestic violence and animal abuse, Texas animal cruelty laws 101, preparing and prosecuting animal cruelty cases, animal hoarding, dog fighting, ag gag laws, passing animal cruelty laws in Texas, and ethics. More information available here.