May 12, 2017

Texas Courts of Appeals

Davy v. State

Nos. 07-16-00262-CR and -00263-CR    5/5/17

Issue:

Is the State required under the Michael Morton Act (CCP Art. 39.14) to turn over a defendant’s pen packet without the defendant’s specific discovery request for it?

Holding:

No. The disclosure requirements in Art. 39.14(a) are triggered only after a timely request from the defendant. The Court concluded that in its 2013 amendments creating the Michael Morton Act, “the Legislature retained in article 39.14(a) the concept that discovery applies to items ‘designated.’” Read opinion.

Commentary:

This is an interesting opinion. The defendant neglected to make his discovery request part of the appellate record. The court holds that the absence of a request asking for the particular document he complains about on appeal was fatal to his claim that the State did not provide discovery of his prior convictions. If specificity is the key, get ready for discovery motions copying the list of items in Art. 39.14 or using incredibly broad language that encompasses every non-privileged item in the State’s file. Of course, if defense counsel doesn’t ask for everything, the defendant will probably file an ineffective assistance writ if he figures out the State used an item not provided in discovery. “He didn’t ask for it” may not be a very good reason to forego providing a copy.

State v. Haworth

No. 13-15-00519-CR     5/4/17

Issue:

To be disqualified for basing a ruling on personal knowledge of contested facts, must a trial judge actually observe the act in question?

Holding:

No. A judge is also disqualified from hearing a matter in which he has obtained personal knowledge about contested facts. In this case, after viewing a dash-cam video of a DWI stop, the judge went to the street and “inspect[ed] the location” where the defendant made a U-turn at a red light. The judge then granted the defendant’s motion to suppress based on his personal conclusion that the officer could not have seen the red light from his vantage point. “We hold that the trial judge was disqualified from acting on the ground that he sua sponte obtained personal knowledge about contested facts and used that personal knowledge in a ruling on a motion to suppress.” Read opinion.

Commentary:

Just when you thought all reversible errors had been discovered, someone flips over a rock and finds a new one—the trial judge cannot perform a scene visit when hearing a motion to suppress. We are all a little bit smarter today.

Chambers v. State

No. 13-16-00079-CR     5/4/17

Issue:

Are firearms qualifications forms kept by a police department considered “governmental records” under Penal Code §37.10 (Tampering with Governmental Record)?

Holding:

Yes. The State is not required to prove that a document is “required by law to be kept.” It must prove only that the records belonged to, were received by, or were kept by the governmental agency (in this case, a city police department) “for information.” Read opinion.

Commentary:

This could be a very useful opinion. Government agencies keep many different records, not all of them particularly required by a statute or rule, but nevertheless important to governmental operation. Tampering with those records can hamper or harm the government or individuals just as much as records specifically decreed by statute. This opinion helps ensure the offense of tampering with a governmental record remains an effective tool for fighting corruption and malfeasance.

Ex parte Moy

No. 14-16-00420-CR     5/9/17

Issue:

Is Penal Code §33.021(c) an unconstitutional content-based regulation?

Holding:

No. The 14th Court of Appeals joins the 1st Court of Appeals in finding that §33.021(c) regulates conduct and speech that is not protected under the 1st Amendment. See Ex parte Wheeler, 478 S.W.3d 89 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d). The Court also rejected the defendant’s challenges to the statute based on overbreadth, vagueness, and violation of the Dormant Commerce Clause. Read opinion.

Commentary:

With the two Houston courts of appeals expanding on language from the CCA’s decision in Ex parte Lo, it is likely that this issue is settled in Texas.

Texas Attorney General Opinions

No. KP-0146     5/8/17

Issue:

Does a county commissioners court that establishes a veterans’ treatment court program under Government Code Chapter 124 have the authority to direct and control administrative details such as hiring and supervising grant-funded personnel?

Conclusion:

No. Chapter 124 authorizes the veterans’ treatment court judge—not the commissioners court—to select and supervise staff of the court program. Read opinion.

Commentary:

That angry shout you just heard was the commissioners of various counties learning of yet another position that will be politically difficult for them not to create but for which they cannot dictate who is hired.

TDCAA Cybercrime Seminar

Registration is now open for TDCAA’s Cybercrime Seminar. The course will run from June 7 to the 9 in lovely San Antonio. Topics will cover the collection and use of electronically stored evidence as well as those offenses commonly committed with the assistance of computers. Don’t forget to book your hotel room now: The TDCAA rate expires 5/16/17! For more information, see the TDCAA website at: http://www.tdcaa.com/training/cybercrime

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