Texas Courts of Appeals
Medina v. State
No. 14-12-00383-CR 8/8/13
Issue:
Was the evidence at trial sufficient to show that the defendant’s truck, which had been modified with extra fuel tanks and a remotely operated fuel pump, was a criminal instrument intended for use in the theft of diesel fuel?
Holding:
Yes. Although the defendant argued the truck could be used for lawful purposes as well, the adaptations were conducive to the criminal purpose of stealing diesel fuel and made use of the truck for legitimate trucking activities illegal and unsafe. Intent to commit theft could be reasonably inferred from the fact that the defendant had parked the truck directly over a diesel tank at a convenience store and pried open the tank lid.
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Commentary:
If you have occasion to prosecute a “criminal instrument” case, you will definitely want to read this decision. The typical “criminal instrument” case deals with an item that can really only be used for illegal purposes. But Medina makes clear that should not necessarily be the case. Here, the Fourteenth Court of Appeals relied heavily upon one of its prior decisions in which a computer was deemed to be a “criminal instrument” because of its use in possessing child pornography. The Legislature has not amended the statute materially since then, so it appears this decision might hold up if it is reviewed by the Court of Criminal Appeals. To verify that the item in your case is really a “criminal instrument,” read this case and those it cites, as well as the controlling statute.
Chiarini v. State
No. 05-12-01245-CR 8/12/13
Issue:
In a prosecution for UCW under PC §46.02(a)(1), must the State prove, as an element of the offense, that the defendant was not carrying the weapon on his own premises?
Holding:
Yes. The conduct forbidden by PC §46.02(a)(1) is not merely carrying a handgun or other weapon, but carrying in a certain geographic location: not on the person’s own premises. In this case, the evidence was insufficient because the defendant was arrested in the common area of his condominium complex, and the condominium declaration stated such areas are owned in common by all owners of individual units.
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Commentary:
This decision seems to reflect a somewhat strained interpretation of one’s “own premises or premises under his control.” It seems doubtful that the Texas Legislature intended for an unlicensed gunman to “patrol” or “roam” around a condominium complex, whether he lived there or not. If I were another resident or manager of the condominium complex, I certainly would not be comfortable. Let’s hope the Court of Criminal Appeals will review this decision and conduct a more thorough statutory interpretation.
Leyba v. State
No. 14-12-00388-CR 8/13/13
Issue:
Did the trial court err by allowing the prosecution to impeach the defendant with convictions more than 10 years old?
Holding:
Yes. Under TRE 609(b), the burden was on the prosecution to show that the probative value of the convictions substantially outweighed the prejudicial effect. Because the prosecution submitted evidence of only the date and offense of conviction but did not explain how the convictions had any probative value, they should have been excluded. However, the defendant was not harmed in light the strength of the case against him.
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Commentary:
The importance of this decision is that it refuses to abide by the so-called “tacking doctrine” that would allow the prosecution to impeach a defendant or defense witness with a remote prior conviction if intervening convictions could be “tacked” onto the prior conviction to render the prior conviction’s remoteness less of a problem. The analysis by the majority opinion is thorough and well-reasoned. You could very well expect the Court of Criminal Appeals to adopt such reasoning. That does not mean you cannot argue that an intervening conviction should be used to allow impeachment with an otherwise remote prior conviction. It just means the intervening conviction is merely a factor to be considered among many others in the normal analysis conducted pursuant to Theus v. State. And here the court of appeals held that the State had not met its burden in showing a remote prior conviction was admissible for impeachment purposes—this murder conviction and life sentence were saved by a harm analysis. But we may be looking at a leading decision on the permissibility of impeaching a defendant or defense witness with a remote prior conviction under Rule 609.
Texas Attorney General
Opinion for Brazoria County Criminal District Attorney
No. GA-1017 8/13/13
Issue:
May the custodian of physical records and files in a juvenile case destroy the original paper records (“hard copies”) and files at any time if that information has been duplicated and stored in a computer or other electronic storage media under Family Code §58.071?
Opinion:
Yes. Under Family Code §58.071(b), the custodian of records may destroy paper records and files so long as the information has been electronically duplicated and stored. By contrast, §58.071(c) allows for the permanent destruction of the entire juvenile record, paper-based and electronic, only if: 1) the custodian is a juvenile board, law enforcement agency, or prosecuting attorney; 2) the record pertains to a closed case; and 3) the restrictions of §58.071(d) and (e) are met.
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Commentary:
This opinion was sought to resolve a possible conflict between Subsection (b) and Subsections (d) and (e). The analysis is brief but appears to be sound. Rely upon it if this issue comes up in your county.
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