Texas Court of Criminal Appeals

Salinas v. State

No. PD-0170-16      3/6/17

Issue:

Are court costs collected for “abused children’s counseling” and “comprehensive rehabilitation” under the consolidated fee statute in Local Government Code §133.102 facially unconstitutional?

Holding:

Yes. Collection and allocation of funds for these two accounts violate the separation of powers provision. The “comprehensive rehabilitation” fees go to the Health & Human Services Commission, and they are not spent exclusively on victims of crime. The “abused children’s counseling” account does not currently have a designated program and therefore is sent to the state’s General Revenue Fund. The invalidity of these two provisions does not make the entire statute unconstitutional, however. The Court concluded that any fee assessed for these two accounts under the consolidated fee statute “must be reduced pro rata to eliminate the percentage of the fee associated with these two accounts.” Read opinion.

Dissent (Yeary, J.):

“In this case the Majority decides that one of two subsections of a Texas statute is facially unconstitutional, not because the language of the subsection itself irreconcilably conflicts with the language of the Texas Constitution, but because of information the Majority observed on a website. It then declares a second subsection of the statute to be facially unconstitutional because, after monies are collected pursuant to the language of the statute, another, different statute directs those monies to be allocated to an agency that might possibly be capable of using some of those allocated funds for a non-criminal justice purpose (although Appellant has offered this Court no concrete examples of that occurring). In neither instance does the Majority demonstrate that the language of the statutory subsections are in actual conflict with the Constitution.” Read opinion.

Dissent (Newell, J.):

The dissent disagreed with the majority’s facial unconstitutionality analysis. The dissent noted that the two funds could be used for a legitimate criminal justice purpose. “That is why I do not agree with the Court that the failure of a statute to further specifically direct that the funds deposited in general revenue be used for a criminal justice purpose—aside from the limitations provided by the description of the fee itself and other interrelated statutes—means the legislature drafted a facially unconstitutional court-cost statute.” Read opinion.

Commentary:

The Court flexes its muscles under the Texas constitution and knocks out these two costs. Watch for additional challenges to other costs now that this decision has mapped out how to do it. It also bears watching because these costs are things that budget writers count on to balance the state budget during legislative season.

State v. Zuniga

No. PD-1317-15     3/8/17

Issue:

In a tampering with physical evidence case, is the specific identity of the evidence an essential element of the offense?

Holding:

No. The identity of the physical evidence is not an element of the offense, but the Court remanded the case for the court of appeals to address whether the indictment (which alleged the defendant tampered with “an unknown substance”) provided adequate notice of the charged conduct. Read opinion.

Concurrence (Yeary, J.):

The concurrence urged the court of appeals to address the additional question of whether the indictment was sufficient to inform the defendant of the acts—as opposed to the substance—the State will prosecute. Read opinion.

Dissent (Keller, J.):

The dissent argued that the defendant did not adequately raise both a defect of form and defect of substance claim. Therefore, the dissent would find the court of appeals’ judgment adequately addressed the defendant’s element-of-offense claim and her notice claim. Read opinion.

Commentary:

An interesting decision that preserves the utility of the tampering with evidence statute. It may very well be that the State simply cannot know what a defendant tampered with because the tampering was so effective. The notice claim would seem to be easily addressed by alleging that the defendant tampered with the unknown substance by swallowing it and putting it in her mouth.

Petetan v. State

No. AP-77,038      3/8/17

Issue:

In a death penalty case involving a defense claim of mental retardation, may Texas courts determine the issue of mental retardation pretrial? Should Texas courts abandon the factors set out in Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004) in favor of clinical standards discussed in the U.S. Supreme Court’s decision in Hall v. Florida, 134 S.Ct. 1986 (2014)?

Holding:

No and No. Mental retardation claims cannot be determined pretrial. The Court previously declined to answer this question in a mandamus proceeding, In re Allen, 462 S.W.3d 47 (Tex. Crim. App. 2015). In a direct appeal, however, the Court can make new law. The Court also declined to revisit or revise Briseno. While opinions of mental-health experts are relevant to a factual determination of mental retardation, “they do not determine whether an individual is exempt from execution under Atkins.” The Court concluded that the evidence was sufficient to support a negative finding of mental retardation on both the general intellectual functioning and adaptive functioning prongs of Briseno. Read opinion.

Dissent (Alcala, J.):

The dissent would defer resolution of this appeal until the U.S. Supreme Court decides whether Texas’ legal standards for determining intellectual disability violate the 8th Amendment in Moore v. Texas, No. 15-797 (argued 11/29/16). Read opinion.

Commentary: 

The Court’s holding regarding the determination of mental retardation claims is very important in prosecuting death penalty cases. The rejection of pretrial determinations of mental retardation will allow prosecutors to get these cases to trial. Resolving the “when” question may lead to more death penalty trials in the state. Furthermore, it might be a catalyst in the legislative stalemate that has existed in Texas since the Atkins decision. This holding should survive even if the Supreme Court rejects or modifies the Briseno factors.

Texas Courts of Appeals

Shalouei v. State (14^th COA)

No. 14-15-01055-CR      3/7/17

Issue:

Do the sentencing statutes mandating that juveniles convicted of capital murder receive a life sentence with the possibility of parole after 40 years violate the 8^th Amendment prohibition against cruel and unusual punishment?

Holding:

No. Penal Code §12.31(a)(1) and Government Code §508.145(b) & (d)(1) are not unconstitutional. The statutory requirement of serving 40 years before parole eligibility does not equate to a sentence of life without parole for a juvenile offender. Read opinion.

Commentary:

The Court applies existing CCA precedent in reaching the result.

Hayes v. State (1^st COA)

No. 01-15-00982-CR     3/7/17

Issue:

Is a defense attorney required to object to the defendant’s absence from a relevant hearing at which the co-defendant is present to preserve error under the Confrontation Clause?

Holding:

No. When a trial judge sees that a defendant is not present in court for his trial, without a waiver by the defendant, the judge has an independent duty to secure the defendant’s presence in the courtroom even if the defense attorney does not request it. In this case, however, the court found the error harmless because it concluded the defendant’s presence at the hearing would not have furthered his defense. Read opinion.

Commentary:

This is a confusing case that may see further review at the Court of Criminal Appeals. From a practical standpoint, it is just one more thing for prosecutors to watch for: is there a judge, is there a defense lawyer, is the judge awake, is the defense lawyer awake, is there a court reporter, is there a defendant… The complicating factor here was that two defendant’s cases were being heard together.

Texas Attorney General Opinions

No. KP-0135      3/8/17

Issue:

Should time spent as a county employee be considered in determining county longevity pay when the employee becomes an elected officer?

Conclusion:

Provided any longevity pay is earned after a county’s adoption of a longevity policy, a court would likely conclude that a county’s longevity pay policy for county officials may include the prior service of the individual as a county employee. Read opinion.

TDCAA Training: Prosecuting Violent Crimes

TDCAA will present a Prosecuting Violent Crimes seminar for prosecutors and investigators April 11-14 at the Omni Houston Hotel at Westside. The course will cover handling victims and witnesses, prosecuting multiple defendants, self-defense claims, eyewitness identification, DNA issues, weapons, and punishment. One day of the course will be dedicated to specialized tracks on sexual assault, child victims, and domestic violence, so attendees can choose which subject(s) they need to know most.  

     In addition, TDCAA will offer an extra 1.75 hours of MCLE for a separate, free presentation on domestic violence through a CJD grant from the Governor’s Office. Those who attend this additional training will receive a complimentary copy of TDCAA’s Protective Orders manual and a two-sided laminated sheet on POs.

     For more information or to register, click here.

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected].

5^th U.S. Circuit Court of Appeals

Cruz v. Abbott

No. 16-50519     2/23/17

Issue:

Do the anti-harboring provisions of Penal Code §20.05(a)(2) (as passed in 2015 by HB 11) impermissibly target illegal alien shelters and expose the landlords who rent to them to criminal liability?

Holding:

No. The Court concluded that the plaintiffs have not demonstrated imminent harm and therefore did not have standing. “Because there is no reasonable interpretation by which merely renting housing or providing social services to an illegal alien constitutes ‘harboring … that person from detection,’ we reverse” an injunction on enforcing that portion of the statute earlier imposed by a federal district court. Read opinion.

Commentary:

This opinion will make you wish you paid better attention in grammar class. The opinion notes that, while DPS says it won’t enforce the statute in question against landlords who merely rent to illegal immigrants, that same statement is not binding on local district and county attorneys and local police. If law enforcement in your area chooses a different manner of enforcing, they should get ready to spend some time as defendants in a new federal lawsuit.

Texas Court of Criminal Appeals

State v. Jarreau

No. PD-0840-16      3/1/17

Issue:

Must a charging instrument alleging delivery of a named dangerous drug specify whether it is a device or drug?

Holding:

No. Although the State is required to specify which method of delivery it intends to prove under Health & Safety Code §483.042, the definition of “dangerous drug” does not concern the act of delivery and does not have to be specified in the indictment. Read opinion.

Commentary:

This is a natural extension of the CCA’s decision in State v. Babernell, which held that a charging instrument did not need to specify which definition of intoxication the State would rely upon at trial.

Baumgart v. State

No. PD-1358-15      3/1/17

Issue:

Under the Private Security Act (Occupations Code Chapter 1702), are the provisions that say the Act “does not apply” to law enforcement personnel considered exceptions (that must be negated by the State in its charging instrument) or defenses (that must be raised by the defendant)?

Holding:

Defenses that the defendant must raise. The Court concluded that if a defensive matter does not use the exact wording for exceptions outlined in Penal Code §2.02, it is not an exception or affirmative defense but instead a defense that is governed by Penal Code §2.03. The State has no burden to negate defenses governed by §2.03 in the charging instrument. Even though the heading in Subchapter N of the Private Security Act is titled “Exceptions,” the heading does not limit or expand the meaning of the statute itself. Furthermore, the Court specifically addressed how §§2.02 and 2.03 apply to offenses outside the Penal Code. Read opinion.

Commentary:

Most importantly, the Court holds, consistent with several lower courts, that the statutory language “does not apply” means a defense rather than an exception. A holding to the contrary might have blown up thousands of cases around the State because there are many defenses in Texas statutes labeled “does not apply” rather than “it is a defense.” The holding that §§2.02 and 2.03 can apply to offenses outside the Penal Code is good but less important.

Curry v. State

No. AP-77,033     3/1/17

Issue:

In a capital murder case, must a judge instruct a jury that the term “society” in the future dangerousness special issue means life in prison without the possibility of parole?

Holding:

No. The legislature did not define the term “society” in Code of Criminal Procedure Art. 37.071, and the terms and phrases used in Art. 37.071 do not require any special definitions. After the jury asked a question about the meaning of “society,” the trial judge answered: “There is no special definition in the law regarding the term ‘society.’ With that understanding, the jury cannot put a legal limitation on that term.” The Court held that the judge’s answer correctly stated the law and did not violate the defendant’s constitutional rights. Read opinion.

Dissent (Alcala, J.):

The dissent would find that the trial court’s answer to the jury’s question permitted jurors jury to consider the probability of the defendant’s future dangerousness in the “freeworld society and thereby incorrectly led it to believe that appellant might be released from prison prior to the end of his natural life if he was not sentenced to death.” Read opinion.

Commentary: 

This opinion is also useful in its treatment of challenges to the photographic lineups used in the case. The dissent overlooks recent history in Texas and other states—just because a defendant is sentenced to prison does not mean he cannot escape and commit other violent crimes or solicit or direct violent crimes outside prison from within his cell.

Texas Courts of Appeals

State v. Garcia

No. 08-15-00264-CR      2/24/17

Issue:

Is a warrantless blood draw on an intoxication manslaughter suspect justified by exigent circumstances when hospital personnel are about to set up an IV that would introduce saline and narcotics into the suspect’s bloodstream, and the county does not have an expedited warrant process?

Holding:

Yes. Comparing this case to Cole v. State, 490 S.W.3d 918 (Tex. Crim. App. 2016), the court concluded that because the medication and saline would likely compromise the blood sample by impeding the ability to determine the rate of dissipation, the warrantless blood draw was justified. Read opinion.

Commentary:

A very interesting read. All parties and the courts obviously worked hard on this case to develop the record and arguments. The case is unpublished, but still valuable as an authority and a template for other cases.

Rubio v. State

No. 13-15-00087-CR     2/24/17

Issue:

Has the State committed a Brady violation when it has failed to turn over a 911 tape until the time of trial, but the prosecutor agrees at trial that the tape contains inadmissible hearsay and does not attempt to admit it?

Holding:

No. Evidence must be admissible in court before a prosecutor has a duty to disclose it under Brady. Read opinion.

Commentary:

Don’t bet your Bar card on the notion that evidence isn’t subject to Brady just because it is not in admissible form. Some lawyers might be able to figure out how to make it admissible.

Texas Attorney General Opinions

Opinion No. KP-0134      2/27/17

Issue:

What people or agencies may have access to and may view criminal history record information subject to an order of nondisclosure under Chapter 411 of the Texas Government Code?

Conclusion:

Under §411.076 of the Government Code, a court may disclose criminal history record information subject to an order of nondisclosure only to: 1) criminal justice agencies for criminal justice or regulatory licensing purposes, 2) to the person who is the subject of the order, or 3) to an agency or entity listed in §411.0765(b) of the Government Code. This criminal history record information may not be disclosed to employees of a district or county clerk except as necessary for statutorily authorized purposes. The adequacy of measures necessary to seal criminal history record information involves questions of fact that cannot be determined in an attorney general opinion. Read opinion.

Commentary:

This opinion is consistent with the nondisclosure statute but may present compliance difficulties for agencies, like clerks, who possess records subject to the orders.

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected].

Texas Courts of Appeals

Ex parte Rodriguez (4^th COA)

No. 04-16-00337-CR      2/15/17

Issue:

Does a conviction in municipal court for loitering for the purpose of prostitution preclude later prosecution for prostitution under Penal Code §43.02(a)(1) for the same events under double jeopardy?

Holding:

No. In applying the same-elements test, the court concluded that the municipal ordinance and prostitution statute each require proof of a fact that the other does not. The ordinance requires the offense to occur in a public place while the defendant was loitering; prostitution under the Penal Code requires an offer or agreement to engage in sexual conduct. Read opinion.

Commentary:

This decision contains a good analysis of the controlling double jeopardy law. While some might view the loitering offense as nothing more than an attempt to commit the main offense, the elements are clearly different. This decision should hold up on further review.

State v. Kolander (9^th COA)

Nos. 09-16-00294-CR & -00295-CR    2/22/17

Issue:

Is a trial court required to make findings of fact and conclusions of law regarding its ruling on a motion to quash an indictment?

Holding:

No. While it is good practice for judges to specifically overrule grounds raised in a motion to quash that are not granted, there is no requirement that a judge make findings of fact and conclusions of law. The court also concluded that an indictment for tampering with a governmental record under §37.10(a)(5) must include the false statement the State intends to rely on for conviction. [Note that the court reached the same decision in a companion case decided the same day, State v. Smith, Nos. 09-16-00296-CR & -00297-CR.] Read opinion.

Commentary:

The ruling on a motion to quash or dismiss an indictment or information should necessarily be a purely legal one (at least in Texas). So findings of fact, logically, would not be necessary. But the court does not really address that and merely rejects the necessity of findings of fact on the basis that the theory upon which the trial court granted the defendant’s motion should have been clear from the context. As to that issue, it is always a good idea (even if it were not legally required) to allege the specific false statement that provides the basis for the tampering charge. 

Blanco v. State (8^th COA)

No. 08-15-00082-CR      2/15/17

Issue:

Has a defense attorney rendered ineffective assistance by failing to file a discovery request under CCP Art. 39.14?

Holding:

No. A discovery request from the defense only implicates the State’s obligations to disclose information under Art. 39.14(a) & (b). The State is still required to disclose exculpatory, impeachment, or mitigating information under Art. 39.14(h) regardless of whether the defense makes a request. The court also noted that although Art. 39.14 provides for discovery generally, it does not allow a trial court to order the State to disclose all its witnesses—Art. 39.14 requires disclosure of expert witnesses only when ordered by the trial court. Read opinion.

Commentary:

This decision should not be read as a holding under the Michael Morton Act. It is purely a decision on ineffective assistance of counsel, and in that regard, there is precious little analysis as to whether a reasonable attorney in this case would have requested the disclosure of the State’s witnesses or whether that failure harmed the defendant. Do not rely too heavily upon this decision.

Morris v. State (2^nd COA)

No. 02-16-00196-CR      2/16/17

Issue:

Must a citizen directly observe a suspect committing a crime to make a lawful citizen’s arrest?

Holding:

No. The citizen need only observe enough to establish probable cause that a crime is being committed. Read opinion.

Commentary:

The court’s decision focuses upon the existence of probable cause in this case, which really was not an issue. Probable cause clearly existed. The real issue is the additional requirement under Texas statutory law (Article 14.01(b) of the Code of Criminal Procedure) of whether the offense was committed with the citizen’s “presence” or “view.” While the offense in this case arguably may not have been committed within the citizen/victim’s “view,” it clearly was committed within the citizen’s “presence.” This decision would also apply to peace officers’ probable cause determinations under the same statute. It should be very helpful, and it will be interesting to see if the Court of Criminal Appeals wishes to review this decision.

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected].

Texas Court of Criminal Appeals

Wolfe v. State

No. PD-0292-15    2/15/17

Issue:

Can expert testimony on the subject of abusive head trauma be reliable?

Holding:

Yes. Experts’ testimony of abusive head trauma based solely on a constellation of symptoms can be reliable. After reviewing the three-part test for reliability set out in Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992), the Court concluded that testimony from the State’s three experts in this case was reliable. Read opinion.

Commentary:

This opinion is very thorough. If you have a case that deals with brain injury to a child/victim, you should definitely read this decision, and your expert witness should read it as well. The opinion is a painstaking analysis of the Kelly factors, which were clearly fully litigated very well by the parties both at trial and on appeal. Do not read this opinion, however, to exclude expert testimony that differs from the conclusions of the State’s expert witnesses in this case. Here, the defendant presented his own expert testimony that differed from the State’s expert testimony. There is no suggestion that the defense expert testimony was unreliable. And just because expert witnesses reach differing conclusions does not mean that one side or the other is unreliable.

Crawford v. State

No. PD-1283-15    2/15/17

Issue:

May failure to register as a sex offender be enhanced with two prior felony convictions under Penal Code §12.42(d) to subject a defendant to punishment of 25–99 years or life, or do the more specific enhancement provisions of CCP Art. 62.102 control?

Holding:

Enhancement under §12.42(d) is permissible. Enhancement of sex offender registration offenses is not limited by the provision in Art. 62.102(c), which provides that if a sex-offender-registration offender has been previously convicted of a sex-offender registration offense, his punishment is increased to the next highest degree of felony. “Article 62.102(c) only addresses how to enhance a subsequent sex-offender registration offense with a single prior sex-offender registration felony offense. … It does not expressly say how a sex-offender registration defendant may be enhanced in the event that he should have incurred multiple prior sex-offender-registration offenses.” Read opinion.

Concurrence (Richardson, J.):

The concurrence agreed that §12.42(d) applies when a defendant has more than one prior failure-to-register conviction. “By failing to include a provision regarding enhancement of a sentence for a person with multiple prior failure-to-register convictions, a person under such circumstances must be, by default, punished under” §12.42(d). Read concurrence.

Dissent (Walker, J.):

The dissent would hold that the more specific enhancement provisions of Art. 62.102(c) should apply. “Article 62.102(c) can be reasonably construed to apply to multiple failure to register enhancement convictions.” Read dissent.

Commentary:

The court has rarely addressed whether the general enhancement statute (§12.42) should apply, as opposed to a more specific enhancement provision. Much of that caselaw is now quite old. This opinion may now become the new standard on how to address such issues, especially with the majority’s use of the Code Construction Act found in §311.026 of the Government Code, which requires a court to construe statutes harmoniously if possible. This may prove quite helpful in other similar enhancement disputes.

White v. State

No. PD-1596-15    2/15/17

Issue:

Must the State prove that a defendant who delivered drugs knew his transaction happened in a drug-free zone?

Holding:

No. Because §481.134(d) does not expressly mention an additional knowledge requirement for any of the drug-free zones it identifies, there is no legislative intent that the statute requires any greater culpable mental state than that required for the underlying offense of selling or delivering drugs. “We think that, in leaving out an additional culpable mental state, the Legislature has evinced its intent that an offender who is engaging in the already censurable conduct of selling dangerous substances in this amount should have to bear the risk that he has committed his offense in a location where the substance may fall into the hands, however inadvertently, of children—regardless of whether the offender was aware of that risk.” Read opinion.

Commentary:

This opinion should be helpful to this and other situations in which an enhancement provision does not include a culpable mental state. The court refused to expand the application of §6.02 of the Penal Code to such statutes and restricted §6.02’s application only to statutes that define offenses—not enhancement provisions. And that is what §6.02 says, in any event.

Johnson a/k/a Kimp v. State

No. PD-0699-16    2/15/17

Issue:

May a butter knife be considered a deadly weapon when brandished aggressively during a convenience store robbery?

Holding:

Yes. The defendant’s words and actions are significant, along with the size, shape, and sharpness of the weapon, in determining whether it can be considered a deadly weapon. Read opinion.

Commentary:

Do not read this decision to say that all butter knives should be considered deadly weapons in assault or robbery cases. But this should nevertheless be a decision that is quite helpful to prosecutors. The court is quite deferential to the jury’s deadly weapon finding. If you have a case in which the defendant brandished a knife, make sure to read footnotes 5 and 6 of this opinion.

Deen v. State

No. PD-1484-15    2/15/17

Issue:

May a prior conviction whose sentence was illegally lenient be used to enhance a later conviction?

Holding:

Yes. Estoppel by judgment (in which a person accepted a benefit) bars this kind of collateral attack. A defendant “may not reap the benefit of an illegally lenient sentence and then, once he has discharged that sentence, invoke the illegal lenity in an attempt to prohibit the use of that conviction to enhance the sentence for a subsequent offense.” Read opinion.

Dissent (Alcala, J.):

“I agree with the court of appeals that, under the facts of this case, the doctrine of estoppel is an improper basis for denying appellant’s complaint.” Read dissent.

Commentary:

As noted in the opinion, estoppel by judgment has happened rarely. The opinion discusses this type of estoppel, as well as estoppel by contract, which is more common. The opinion does not discuss other types of estoppel, so it should not be read too expansively. This decision should be restricted to the particular situation in this case—if the defendant has accepted and received a benefit from his judgment and sentence that is too lenient under the controlling law, he cannot later challenge that conviction as an illegal sentence on that basis.

Shimko v. State

No. PD-1639-15    2/15/17

Issue:

Does every gesture to stop a moving vehicle by a uniformed officer constitute a seizure?

Holding:

No. In this case, an officer was helping a man (who had just left a bar and appeared intoxicated) flag down the driver he had called to come pick him up. The officer waved down the defendant’s car after the intoxicated man indicated that was his ride. Once the defendant pulled over, the officer noticed signs of intoxication and ultimately arrested him for DWI. The Court agreed that the trial court should have denied the defendant’s motion to suppress because there was no unlawful detention under these facts. “[O]ur holding is not meant to suggest that a police officer can simply stand in a parking lot and wave someone down who is driving by and then call that a consensual encounter. … The facts and circumstances of this case are unique. …” Read opinion.

Dissent (Keller, P.J.):

The dissent would find that the stop was a detention because a reasonable person in the defendant’s position would not have felt free to leave the scene or decline the officer’s request to stop. “To hold that a stop did not occur because there was reason to believe that the officer’s direction to stop might have been a request would allow a person to ignore a police directive when the person does not have a full understanding of the circumstances. Such a rule potentially endangers police officers and others whom an officer’s directive might be designed to protect.” Read dissent.

Commentary:

Be very careful with this decision. The 5-4 court is divided on this issue, and students of the court will note that the two opposing opinions in this case have not been rendered according to the typical ideological or philosophical lines that one would expect. If you try to rely on this decision in arguing that an officer did not initiate any kind of detention, read the facts of this case very closely, as well as the facts of Garcia-Cantu referenced in the majority opinion. And if the facts support it, have a back-up argument that relies upon community caretaking, reasonable suspicion, and/or probable cause.

Roy v. State

No. PD-1455-15    2/15/17

Issue:

Is a defendant charged with murder entitled to an instruction on the lesser-included offense of manslaughter if he testified that he knew the risks associated with drinking alcohol, smoking marihuana, and smoking PCP dip cigarettes while driving?

Holding:

Yes, in this case. Distinguishing these facts from those in Schroeder v. State, 123 S.W.3d 398 (Tex. Crim. App. 2003), in which a defendant was not entitled to a lesser-included instruction on manslaughter, the defendant in this case presented evidence that he was aware of a risk of causing death but disregarded it. Read opinion.

Commentary:

This decision does not make any sense, and it is all the more disturbing that it drew only one dissenting opinion. The court’s attempt to distinguish Schroeder v. State is difficult to fathom. The bottom line is that, if a defendant claims that he does not remember the offense, be very careful in urging to court to deny an instruction on a lesser offense that involves a lesser culpable mental state. The majority acknowledged that, to be entitled to a jury instruction on manslaughter, the defendant “must have presented affirmative evidence that he recklessly caused the death of [the victim], specifically that he was aware of, but consciously disregarded, a substantial and unjustifiable risk that the result—a death—would occur.” However, as noted on pages 7 and 8 of the majority opinion, the defendant acknowledged only a general awareness of the “risks” of driving while intoxicated, not an affirmative awareness and conscious disregard of the particular risk of death.

Texas Courts of Appeals

State v. Mutei (8th COA)

No. 08-15-00056-CR         2/10/17

Issue:

Can the testimony of a State’s witness who has provoked a mistrial be imputed to the State, even after prosecutors have cautioned the witness not to violate an order in limine?

Holding:

Yes. Because “there does not appear to be a bright line rule that would prohibit a trial court from imputing the wrongful conduct of a State’s witness to the prosecution … this issue is best addressed” in analyzing the factors for mistrial discussed in Ex parte Wheeler, 203 S.W.3d 317 (Tex. Crim. App. 2006). In this case, however, because all six of the Wheeler factors weighed in the State’s favor, the court concluded that there was insufficient evidence to find that the State intentionally provoked a mistrial to avoid acquittal. Read opinion.

Commentary:

It will be interesting to see if the Court of Criminal Appeals will want to review this decision. It is not clear whether or to what degree the testifying officer violated the court’s order in limine. The resolution of this issue may have been easier than the court of appeals made it out to be. The 8^th Court dutifully applies the factors set forth in Ex parte Wheeler, but it is not clear whether those factors still apply after the Court of Criminal Appeals has refused to follow Bauder v. State and now follows only Oregon v. Kennedy in determining whether a defendant is entitled to double jeopardy relief after a mistrial was granted based on prosecutorial misconduct.

Ex parte Bleimeyer (1st COA)

No. 01-16-00838-CR         2/14/17

Issue:

For a defendant charged with injury to a child and endangering a child whose parental rights have been terminated for six of her seven children, may a trial judge impose a condition of release on bail that the defendant inform the court if she becomes pregnant?

Holding:

Yes. Under these circumstances, this condition is not unreasonable and overbroad in violation of her right to privacy under the 14th Amendment. Although the bail condition requires notification, it does not limit the defendant’s right to make decisions regarding procreation. Read opinion.

Commentary:

This opinion is narrowly written to focus on the requirement of notification (as opposed to outright prohibition). It may rarely come up, but you can make note of this decision when relevant.

Knott v. State (8^th COA)

No. 08-14-00235-CR         2/10/17

Issue:

Is a field identification (in which officers took the robbery victim to a location where a suspect was being detained) unduly suggestive to the extent that it taints the victim’s positive identification of the defendant as the assailant?

Holding:

No. Although one-person “infield showups” are generally not used because they tend to be suggestive, an identification made in a one-person showup does not automatically violate the defendant’s due process rights. In this case, several factors support a finding that the showup was not improperly suggestive, including: (1) the victim saw the defendant at least twice on the night he was robbed, and because a video recording of the encounter shows that the offense happened in a relatively well-lit area and the suspects were clearly visible in the recording; (2) nothing in the record suggested that the victim’s attention was diverted or he was unable to focus on the defendant during the robbery; (3) the victim’s verbal and written descriptions of the perpetrator prior to the showup were specific and matched the defendant; (4) the victim said he was certain the defendant was the perpetrator; and (5) there was only half an hour between the crime and the showup. Read opinion.

Commentary:

One-on-one show-ps should no longer happen as a matter of course, but they may still happen in cases in which the defendant/suspect has fled the scene of a recently committed offense. This is a good decision (among others) to support a pre-trial identification based upon a one-on-one show-up. Make sure your local law enforcement agencies have a policy on one-on-one show-ups. But such a pre-trial identification can still be admissible if there is no policy or even if the policy was technically violated.

Busbee v. State (13^th COA)

No. 13-16-00555-CR         2/9/17

Issue:

Does the Due Process Clause give a defendant the right to allocution to humanize his situation by personally addressing the court when the defendant faces the possibility of a lengthy or stacked sentence?

Holding:

No. Code of Criminal Procedure Art. 42.07 provides for limited allocution by a defendant. “We choose not to expand article 42.07 to allow a defendant to bring to the court’s attention unsworn facts that may not be of record because the trial court might impose the upper limit of a sentence range or because it might stack sentences.” The Court concluded there is no constitutional right of allocution even in cases with high sentencing exposure. Read opinion.

Commentary:

Even though judges may often use the term or permit the practice, allocution is a concept that is not well-established in Texas criminal law. Show your judge this decision if a defendant demands his right to allocution before being sentenced—but do not go crazy. If a defendant wants to briefly address the court about any mitigating circumstances before being sentenced, it should not hurt to let him.

Powers v. State (12^th COA)

No. 12-15-00237-CR         2/8/17

Issue:

Must the State prove the defendant caused a lack of assistance to an injured person under the failing to stop and render aid statute (Transportation Code §550.021)?

Holding:

No. Nothing in §§550.021 or 550.023 or Penal Code §6.04 requires that a defendant’s conduct cause a particular result. Failure to stop and render aid is a circumstances-of-conduct offense rather than a result-of-conduct offense. Read opinion.

Commentary:

This decision is consistent with how courts have treated this offense in the past. The defendant in this case left the scene of the accident to avoid being arrested on an outstanding warrant. The statute does not permit her to do that, regardless of how helpful or unhelpful other persons are being.

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected].

TDCAA Website Issues

TDCAA’s website has been down this week because of problems at our website host. We are working through the problems and hope to have the site back in business soon. Thank you for your patience in the meantime.

Texas Supreme Court

Paxton, Attorney General of Texas  v. City of Dallas

No. 15-0073        2/3/17

Issue:

Does the Public Information Act (PIA) mandate public dissemination of otherwise confidential attorney-client communications solely because a governmental body missed a statutory deadline?

Holding:

No. Without some form of waiver, the interests protected by the attorney-client privilege are sufficiently compelling to rebut the public-disclosure presumption that arises upon expiration of the 10-day deadline under the PIA for filing a request for Attorney General opinion. “The Legislature’s choice to exempt information protected by the attorney-client privilege embodies the fundamental understanding that, in the public sector, maintaining candid attorney-client communication directly and significantly serves the public interest by facilitating access to legal advice vital to formulation and implementation of governmental policy.” Read opinion.

Dissent (Boyd, J.):

The dissent contended that the majority has treated the attorney-client privilege as “unique and special even though the Act does not. … Under the Court’s holding, establishing the exception will always constitute a compelling reason, so the Act’s compelling-reason requirement is meaningless when applied to attorney-client communications. This holding obliterates the sole method by which the Act compels the government to timely and properly assert the attorney-client privilege.” Read opinion.

Commentary:

The issue in this case appears to be quite simple. There is no dispute that the attorney/client privilege is a basis upon which to exempt otherwise public information from an open records request. There is also no dispute that the attorney/client privilege applied in the two situations involved in this case. The only issue in this case is whether the attorney/client privilege is so important that it should essentially excuse the city’s failure to timely seek a public information decision from the attorney general (which it was required to do). If you read this decision, you will learn a great deal about the Public Information Act and the manner in which a majority of the Texas Supreme Court views the attorney/client privilege. In general, if you wish to have an item of public information protected from disclosure by one of the statutory exceptions, you must timely seek a decision from the attorney general, unless it is a very unusual case (as in this situation).

Texas Court of Criminal Appeals

Lake v. State

No. PD-0196-16          2/8/17

Issue:

Is denial of a closing argument at a community-supervision revocation proceeding structural error that requires automatic reversal?

Holding:

No. This type of error has not been labeled by the U.S. Supreme Court as structural error, and therefore, it may be reviewed under a harm analysis. Read opinion.

Concurrence (Yeary, J.):

Judge Yeary agreed that the error was not structural but wrote separately to disagree with the majority opinion’s continued reliance on Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997), which Judge Yeary believed did not survive enactment of T.R.App.P. 44.2(a) in 1997. Read opinion.

Dissent (Alcala, J.):

Judge Alcala wrote that denial of the right to give a closing argument at the revocation hearing was constitutional error, and the case should be remanded for a new revocation hearing. Read opinion.

Commentary: 

This is yet another in a long line of decisions that stand in opposition to treating an error as subject to automatic reversal. If the error has not been identified by the United States Supreme Court as “structural,” it is subject to a harm analysis.

Moore v. State

No. PD-1634-14           2/8/17

Issue:

Does Family Code §54.02(j)(4)(A) require that the court consider the factors for oppressive delay before dismissing a case with prejudice?

Holding:

On rehearing, the per curiam opinion again held that a trial court need not consider the factors for oppressive delay before dismissing a case with prejudice. The term “the State” in Family Code §54.02(j)(4)(A) includes both prosecution and law enforcement, so a delay in the investigation will not be considered a reason beyond the control of the prosecution. Read opinion.

Commentary:

The court withdrew its previous decision issued back in October, but this new decision does not appear to be significantly different. The bottom line is that, in seeking to prosecute a juvenile who has reached the age of an adult, the State must pursue the case expeditiously. And that includes law enforcement.

Texas Courts of Appeals

State v. Cortez (7th COA)

No. 07-15-00196-CR        2/3/17

Issue:

Must a driver cross completely over the fog line into the improved shoulder to constitute an offense under Transportation Code §545.060 (driving on an improved shoulder)?

Holding:

Yes. Looking at both the wording of the statute and other opinions, the court concluded on remand that the statute requires a driver to cross over the fog line; merely driving on the fog line without crossing over is not an offense. The court also concluded that it could not uphold the stop based on an objectively reasonable mistake of law by the officer as to what §545.060 required. Read opinion.

Concurrence (Pirtle, J.):

Justice Pirtle wrote to expand on the majority opinion as to why the objectively reasonable error of law holding from Heien v. North Carolina, 135 S.Ct. 530 (2014) does not apply to this case. In Heien, the officer’s reasonable (but mistaken) interpretation of one of North Carolina’s brake-light laws was sufficient for reasonable suspicion to uphold the traffic stop. Here, however, Justice Pirtle wrote that it was not reasonable for the officer to suspect the driver’s conduct reasonably fit within the driving on improved shoulder statute. Read opinion.

Commentary:

The majority opinion in this case is very thorough and consistent with other decisions that have dealt with drivers crossing over a “fog line” on a highway. It is possible that the Court of Criminal Appeals may want to review this decision because of the manner in which the court construed Heien v. North Carolina. But be cautious about opposing a motion to suppress if the only evidence in support of the officer’s traffic stop is the fact the driver’s tire merely touched the fog line.

Pickron v. State (14^th COA)

No. 14-16-00080-CR        1/31/17

Issue:

May statements about a startling event made before the crime occurred be admissible under the excited utterance exception to the hearsay rule?

Holding:

Yes. Statements a murder victim made on the phone to her sister about her fear of the defendant and the fact that he was “trashing” her house while she spoke could be considered excited utterances, even though the car crash that the defendant caused that killed the victim happened the next day. Read opinion.

Commentary:

This is a great decision and should be especially helpful in domestic violence cases. The opinion underscores the fact that an excited utterance need not relate to the charged offense. Assuming that it is relevant, if the statement meets the requirements for an excited utterance, it should be admitted into evidence.

Carson v. State (6^th COA)

No. 06-15-00170-CR        1/31/17

Issue:

At a sentencing hearing before the judge, may a trial judge consider the defendant’s criminal history as reflected in the State’s Rule 404(b) notice of extraneous offenses if the State fails to introduce evidence at the hearing to support the allegations in the notice but provided the notice to the defendant before trial?

Holding:

No. Providing 404(b) notice to a defendant and filing the notice with the court and arguing that criminal history at sentencing without objection is insufficient to allow the judge to consider those extraneous offenses without additional evidence presented at the sentencing hearing. Read opinion.

Dissent (Burgess, J.):

“I believe that on the record presented in this case and because the trial court specifically limited its consideration of the Rule 404(b) notice to only the adjudicated offenses listed in that notice, it did not violate Carson’s right to due process. …” The dissent would find, however, that the trial court’s consideration of the Rule 404(b) notice violated Code of Criminal Procedure Art. 37.07, §3(a) because the judgments for the extraneous offenses were not admitted into evidence.

Commentary:

If you wish the trial judge to consider extraneous offenses in sentencing the defendant, a prosecutor should present evidence on those extraneous offenses or have the defendant stipulate to them.

Texas Attorney General

Opinion No. KP-0132      2/6/17

Issue:

May a reserve deputy sheriff act as surety on a bail bond?

Conclusion:

Assuming a surety satisfies the requirements for sureties on bail bonds under Chapter 17 of the Code of Criminal Procedure, no authority appears to prohibit a reserve deputy sheriff from acting as a surety on a bail bond or prohibit a sheriff from accepting such a bond. Read opinion.

Commentary:

While the opinion suggests that there is no problem with such an officer acting as a surety on a bail bond, the opinion did go on to note that, if a defendant failed to appear for a particular court date and the bond was forfeited, the officer could run afoul if the law if he attempted to re-arrest the defendant because of the forfeited bond. The conflict-of-interest concerns should encourage such an officer to proceed cautiously.

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected].

Texas Courts of Appeals

Bradford v. State (14^th COA)

No. 14-15-00707-CR        1/26/17

Issue:

Does the corpus delicti rule apply only to confessions where the defendant has admitted every fact necessary to prove guilt?

Holding:

No. Under the rule of corpus delicti, a defendant’s extrajudicial confession is not legally sufficient evidence of guilt without some independent evidence. This rule requires corroboration of two elements: 1) an injury or loss and 2) a criminal agent. Although the term “confession” is used in most cases, the corpus delicti rule also applies to “admissions of incriminating facts that do not amount to a full confession of guilt.” Read opinion.

Commentary:

This is a tough case.  The court’s opinion is very thorough with regard to whether the corpus delicti rule applies to mere admissions, as opposed to full confessions. But it is definitely very challenging for the State when faced with the task of presenting corroborating evidence of a crime of omission, essentially proving a negative. If you are faced with such a case, you will definitely need to read this decision.

Gonzalez v. State (8^th COA)

No. 08-14-00293-CR        1/25/17

Issue:

Can evidence of extraneous drug use be entered into evidence as relevant to a claim of self-defense?

Holding:

Maybe. The type of intoxicant and the time period between ingestion and the events at issue will dictate how much predicate is necessary for drug use to be considered relevant. For common intoxicants, such as alcohol and marijuana, a jury’s common experience can guide its evaluation of the effects and longevity of the drug. However, with less common drugs or longer durations between drug use and a criminal act, direct testimony about the specific effects of the drug, the dose taken, and the half-life of the drug may all be required to prove relevancy. Even if relevancy is shown, a long delay between ingestion of the drug and the crime (in this case, the time between taking ecstasy and a confrontation that led to capital murder was six hours) can lower the probative value of the drug use evidence below that required to pass the prejudice balancing test under Tex.R.Evid. 403. Read opinion.

Commentary:

This case emphasizes the importance of presenting evidence of the effect of a particular drug if you are relying upon the defendant’s taking of the drug as evidence to support the defendant’s guilt of a non-drug-related offense. The court’s opinion addresses that issue pretty well. Where the court gets it wrong in this case, however, is in its harm analysis. The defense is this case was self-defense, or perhaps guilt of a lesser offense based upon a lesser culpable mental state. If evidence of the defendant’s drug use was not admissible with regard to those issues on the merits, then how could that evidence harm the defendant? The court also says that the defendant was harmed because his credibility in testifying was crucial to his case., but the court does not state how the defendant’s credibility at the time that he testified was adversely impacted by drug use several hours before the commission of the offense.

Fowler v. State (6^th COA)

No. 06-16-00038-CR        1/27/17

Issue:

Can a recording made on a camera issued by a police department taken of surveillance video made by a store be admissible?

Holding:

Only if adequately authenticated. In this case, the officer adequately demonstrated that the recording he made of the store’s surveillance monitor was a duplicate copy of the relevant portion of the original surveillance recording. However, the State presented no evidence to show that the store’s surveillance video was an accurate recording or rendition of events in that particular store on a certain day at a specific time. The court concluded that the date and time stamp on the lower center part of the screen of the officer’s recording of the store recording was insufficient to show the surveillance system was working properly on the purported date and time. Read opinion.

Commentary:

Without saying so, the court appears to be of the opinion that the State was required to present a witness from the store concerning the video recording device. In support of its decision, the court relied upon a 1994 decision of the Court of Criminal Appeals, but that case also involved a video recording that had a time and date stamp on it. The high court should review this decision because the time and date stamp on the recording and the surrounding circumstances appear to show that the recording was working properly and that it depicted what it claimed to depict.

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected].

Texas Court of Criminal Appeals

Pruett v. State

No. PD-0251-16    1/25/17

Issue:

Can a deadly weapon finding be appropriate in an arson case when the fire does not actually seriously harm or kill anyone?

Holding:

Yes. A deadly weapon finding is appropriate in an arson case when evidence shows that someone ignited combustible material to intentionally burn down a house in a residential neighborhood. The Court distinguished this case from those in which it held that a car can be classified as a deadly weapon only when its manner of use places another person in actual danger of harm. See Brister v. State, 449 S.W.3d 490 (Tex. Crim. App. 2014). “[A]rson cases are not entirely analogous to the vehicle-as-a-deadly-weapon cases. … Fire is inherently dangerous in a way that cars are not and it is capable of inflicting serious bodily harm, especially when it is intentionally started in a residential neighborhood.” Read opinion.

Commentary:

A court of appeals second guessing whether something is a deadly weapon often ends badly for the court of appeals. This case is no exception. Opposing counsel (and sometimes courts) often reflexively believe that “no one got hurt” means no deadly weapon was used. It is a much more complicated analysis than that.

Byram v. State

No. PD-1480-15     1/25/17

Issue:

Is a community caretaking stop justified when an officer: 1) sees a passenger in a car hunched over and motionless, 2) smells the odor of alcohol wafting out of an SUV that is stopped at a traffic light in a bar district, 3) notes that the driver does not appear to be helping the passenger, and 4) while stopped at the traffic light, neither the driver nor passenger responds to the officer’s question about whether the passenger is OK?

Holding:

Yes. Evaluating the officer’s stop of the car under the factors used for community caretaking stops in Wright v. State, 7 S.W.3d 148 (Tex. Crim. App. 1999), the Court concluded that the officer could reasonably have believed that the passenger might have been suffering from alcohol poisoning and needed medical attention. This justified his stop of the car, which later led to the driver’s conviction for DWI. The Court also noted that when an officer has a reasonable belief to pull over a vehicle under the community caretaking exception, the officer does not also need reasonable suspicion of criminal activity to pull over the driver. Read opinion.

Commentary:

This case is educational for two reasons. First, it illustrates the importance of trial courts as the determiners of credibility and the deference the intermediate courts must give to that. The trial court could have believed the officer’s testimony was a ruse to conduct a DWI investigation. But, the court believed the officer’s testimony that he was concerned for the well-being of the passed-out female passenger, and the court of appeals cannot undo that implicit finding. Second, the Court highlighted an unresolved issue that may be useful to prosecutors—the Supreme Court’s move away from 4th Amendment analyses based on officer intent. Cady v. Dombrowski comes from a time when the Supreme Court was more interested in the subjective motivations of officers, but since then, the justices have steadily moved away from subjective tests. Sometimes, the same set of facts might be subject to multiple interpretations, i.e. the person is either sick—community caretaking—or drunk—reasonable suspicion of criminal activity. Some authorities have indicated that a community caretaking argument forecloses a reasonable suspicion fall-back argument. The Court’s dicta in this case shows that you can argue both, at least until the CCA or Supreme Court clearly decide otherwise.

Texas Courts of Appeals

Collins v. State (8^th COA)

No. 08-15-00103-CR         1/18/17

Issue:

May a district attorney seek recusal in a case due to a heavy caseload?

Holding:

Yes. An elected prosecutor can be excused from representing the State in a criminal case in two different ways: 1) disqualification, such as when a conflict of interest exists, or 2) recusal for “good cause” under Code of Criminal Procedure Art. 2.07(b-1). There is no limitation in Art. 2.07 as to what qualifies as good cause for recusal, and a trial judge has some discretion in evaluating a recusal request. In this case, involving a complicated murder, the judge properly granted a recusal based on the large number of cases already set for jury trial and the district attorney’s current caseload. Read opinion.

Commentary:

This opinion gives some framework to what constitutes “good cause” for a district attorney to recuse himself. The court gives that language a broad construction that should be helpful for offices that face less-traditional situations that they nonetheless believe require recusal.

Trevino v. State (8^th COA)

No. 08-14-00216-CR        1/20/17

Issue:

Does the term “investigation” in the impeding investigation statute (Penal Code §38.15) refer only to an investigation of a crime or Penal Code violation?

Holding:

No. The Penal Code does not provide a specific definition for “investigation,” and therefore, courts may look to the word’s broader meaning, which includes inquiring into virtually any legitimate matter. Law enforcement officers’ duties require them to investigate more than just crimes and Penal Code violations. In this case, officers were carrying out duties under Chapter 573 of the Health & Safety Code to investigate a potential suicide, and there was sufficient evidence that the defendant interfered with an officer’s attempts to investigate another family member’s mental health and safety after the officer had been called to the scene. Read opinion.

Commentary:

A good, officer friendly opinion. Let the police do their job, people.

Robinson v. State (1^st COA)

Nos. 01-15-00808-CR & -809-CR      1/19/17

Issue:

When a trial court has erroneously assessed multiple court costs in a single action with convictions for more than one offense, is the appropriate remedy to apply the rule of lenity and vacate court costs for the case with the highest amount of court cost?

Holding:

No. Under Code of Criminal Procedure Art. 102.07, the trial court may assess court costs only once per proceeding, but when costs and fees for more than one offense in the same proceeding have been assessed, the appropriate remedy is to delete the duplicate costs only. Read opinion.

Commentary:

The war over court costs continue. The partial victory here goes to the accountants.

Mandatory Brady Training

Every lawyer in a prosecutor office prosecuting criminal cases above Class C misdemeanors must complete a mandatory one hour training on Brady and the duty to disclose exculpatory evidence within 180 days of beginning work as a prosecutor. See Tex. Gov’t Code §41.111. TDCAA offers a court-approved class online that is free.  You can find it on the TDCAA web site here. Once you complete the course, TDCAA will report your compliance to the Court of Criminal Appeals. If you have any questions, call Rob Kepple at 512-474-2436.

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected].