Weekly Case Summaries: February 24, 2017

Texas Courts of Appeals

Ex parte Rodriguez (4th 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 (9th 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 (8th 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 (2nd 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.

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