Weekly Case Summaries: April 21, 2017

Texas Courts of Appeals

Hawkins v. State

No. 02-16-00104-CR     4/13/17

Issue:

Is the portion of the consolidated court cost in Local Government Code §133.102 directing part of the fund to “law enforcement officer standards and education” unconstitutional?

Holding:

No. The allocation to this fund under §133.102(e)(5) is a legitimate criminal justice purpose pertaining to administration of Texas’ criminal justice system. The court also noted that although the Court of Criminal Appeals recently found two other portions of the consolidated court cost unconstitutional in Salinas v. State, No. PD-0170-16 (Tex. Crim. App. March 8, 2017), its holding does not apply retroactively to allow modification of the trial court’s judgment in this case to delete the court cost dedicated to the “comprehensive rehabilitation account” and “abused children’s counseling account.” Read opinion.

Commentary:

This decision is interesting largely because of its retroactivity holding, which is entirely in line with what the Court of Criminal Appeals said about retroactivity in Salinas. One would presume that this defendant will now file a petition for discretionary review, and we will have to wait and see if the court will grant or simply rely upon its holding in Salinas.

Williams v. State

No. 14-16-00292-CR     4/13/17

Issue:

Is an officer required to ask a DWI suspect whether he had any recent head injuries or wears glasses before administering the HGN test?

Holding:

No. Although the officer is required to screen for potential causes of nystagmus other than alcohol ingestion, the officer can do this while conducting the HGN test. Read opinion.

Commentary:

This is a good decision, and it should be helpful for DWI prosecutors, but expect to see this issue more often. This particular defendant did not do a great deal to support his claim concerning the HGN test, essentially presenting only his own testimony, which the trial court was permitted to disbelieve. But keep watch over a case in which the defense attempts to present competing expert testimony before a trial judge who might be more willing to listen to the argument.

Ex parte Perez

No. 14-16-00332-CR     4/13/17

Issue:

Does manifest necessity allow a mistrial after a trial judge has sworn in a jury and placed it “on hold,” then recessed it to conduct a competency hearing or trial, called the jurors back four months later with only one day’s notice, and only five jurors actually showed up?

Holding:

No. The trial court had options other than placing the jurors on hold for that length of time, risking that not all would return. The judge could have proceeded with the underlying criminal case, then—under Code of Criminal Procedure Art. 46B.005(d)—gone forward with any competency proceedings after a guilty verdict. Consequently, double jeopardy bars retrial of the underlying theft case. Read opinion.

Commentary:

This is a very unusual fact situation, so it is doubtful that it will come up again, but this decision does emphasize the importance of not swearing in a jury until you are absolutely ready to go to trial.  After the jury is sworn, jeopardy has attached, and the absence of manifest necessity may prevent a re-trial if the trial judge subsequently feels compelled to grant a mistrial. So if a trial judge is given to, say, picking a jury on a Friday, swearing it in, and starting with the first witness on Monday, show the judge this decision. Life happens, and things can go wrong. This is a very thorough decision, and it cites to a great number of the decisions dealing with issues that have arisen with jurors during trial.

Pate v. State

No. 01-16-00569-CR     4/11/17

Issue:

Is using the 911 emergency system required to demonstrate the reliability of an anonymous tip?

Holding:

No. The reliability of a citizen-informant’s tip can be verified in a variety of ways, and calling 911 with that information is not required. A caller who provides a detailed description of a vehicle (including license plate number and location) tends to be more reliable, and as in this case, the officer verified the caller’s information when he found the defendant’s vehicle as described by the caller in the location indicated by the caller. Read opinion.

Commentary:

This is a good decision and a good application of the United States Supreme Court’s 2014 decision in Navarette v. California. If an informant has provided first-hand information while viewing it at the scene, do not give up merely because the informant is unknown (“anonymous”) to you. This decision (and Navarette) may help.

Texas Attorney General Opinions

Opinion No. KP-0138

4/17/17

Issue:

What effect does a conviction in another state (and a subsequent restoration of rights by the other state) have on an individual’s ability to run for or hold public office in Texas?

Conclusion:

Under the Full Faith and Credit Clause of the U.S. Constitution, the State of Texas must recognize an Arkansas court’s valid order dismissing a felony charge and releasing an individual from the penalties and disabilities of that charge in Arkansas. An individual for whom the penalties and disabilities have been removed by an Arkansas court is not prohibited by Election Code §141.001(a)(4) from holding public office in Texas. Read opinion.

Commentary:

Texas has a similar provision to the Arkansas provision in Article 42A.701(f) of the Texas Code of Criminal Procedure. This seems to be a faithful application of the controlling law.

Opinion No. KP-0139

4/17/17

Issue:

What type of bond is required for a county attorney who performs the functions of both a county and district attorney?

Conclusion:

Because a county attorney bond covers both the duties of a county attorney and a district attorney, a court would likely conclude that a separate district attorney bond is unnecessary. Thus, the Lee County Attorney must execute only a county attorney bond. Read opinion.

Commentary:

You will learn more than you wanted to know about bonds in this opinion. It even discusses how and whether assistant county attorneys and assistant district attorneys can be required to post a bond.

Opinion No. KP-0141

4/17/17

Issue:

Do statutory or constitutional county court judges with jurisdiction over mental illness matters have authority to appoint an associate judge under Health & Safety Code §574.0085?

Conclusion:

Yes. A court would likely conclude that the statutory or constitutional county court judge with jurisdiction over mental illness matters has authority to appoint an associate judge under §574.0085(a). Read opinion.

Commentary:

This opinion is a very thorough explanation of the different uses of the term “county judge” in Texas, referring to both a statutory county court judge and the constitutional county court judge who presides over a county’s commissioners court.

Opinion No. KP-0140

4/17/17

Issue:

Are Texas election judges required to take the oath of office in Tex. Const. Art. XVI, §1?

Conclusion:

A court is likely to conclude that election judges, alternate election judges, and early-voting clerks are public officers and must take the constitutional oath of office under Art. XVI, §1 of the Texas Constitution in addition to the statutory election officer’s oath. The fact that an election judge, alternate election judge, or early-voting clerk may not have taken the constitutional oath is unlikely to affect the validity of a prior election. Read opinion.

Commentary:

This opinion speaks to the difference between a statutory oath and the constitutional oath and why the former is not sufficient to satisfy the latter. But the decision is also very thorough in showing that the absence of a constitutional oath should not affect the validity of the election.

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