Texas Court of Criminal Appeals
Edwards v. State
No. PD-0585-21 2/15/2023
Issue:
Can a mother who repeatedly used cocaine while breastfeeding her baby be found guilty of reckless injury to a child for causing serious mental deficiency, impairment, or injury when the baby becomes addicted to cocaine and suffers withdrawals?
Holding:
Yes. Although the Court held in this instance, there was insufficient evidence to support a conviction, as the evidence did not establish that the child suffered a “serious mental deficiency, impairment, or injury” as required by the statute. The Court noted that it was theoretically possible that the conviction could be reformed to a lesser-included offense, and it remanded the case for further proceedings on that issue. Read opinion.
Commentary:
This will probably be the leading case for prosecutors to read if the State seeks to show that the defendant caused serious mental deficiency, impairment, or injury to a young child, especially a newborn child. If this particular element is based upon the baby’s ingestion of narcotics, the State will have to present much more concrete evidence than that presented in this case. That may be difficult to do when the victim is a newborn child, where little evidence can yet be developed as to the effect that the narcotic has had on the baby’s system. The Court noted that the State only presented possibilities about what might happen to the child and did not present evidence regarding drug addiction as a chronic condition with long-lasting changes in the brain. This case was remanded to the court of appeals to determine if the judgment might be reformed to show the defendant’s conviction of a lesser-included offense.
Texas Courts of Appeals
Roe v. State
No. 11-21-00157-CR 2/9/2023
Issue:
Does the statutory definition of sexual contact include contact occurring by the use of an object?
Holding:
Yes. The focus of the definition of sexual contact is “where the touching occurred” rather than “how the touching was effectuated. How the touching was effectuated is not an essential element of the offense.” Read opinion.
Commentary:
This should be very helpful in prosecutions for indecency with a child. It is not clear whether the decision’s construction of “sexual contact” could be applied to other cases where the State is required to prove “sexual contact.” “Sexual contact” has its own unique definition in the indecency-with-a-child statute (§21.11). But the use of an object could potentially subject a defendant to prosecution for the offenses of improper relationship between educator and student (§21.12) or indecent assault (§22.012), even though those statutes use a slightly different definition of “sexual contact.”
State v. Gabaldon
No. 08-21-00216-CR 2/7/2023
Issue:
Did the trial abuse its discretion in granting the defendant’s motion to dismiss with prejudice for prosecutorial vindictiveness?
Holding:
No. The court held that there was sufficient evidence to show proof of actual vindictiveness in the State violating the defendant’s due process rights when it sought the reindictment of a murder case for capital murder as retribution for the defendant’s insistence on proceeding to trial when the State did not appear ready. Although the State had sufficient facts to seek a capital murder indictment and the death penalty, the trial court had evidence to conclude the State did so because the defendant insisted on his right to a speedy trial. “Further, while dismissing an indictment is a drastic measure, we cannot picture a more extraordinary circumstance than the State abusing its power to seek an execution as a penalty for a defendant insisting on a constitutionally guaranteed right.” Read opinion.
Concurrence: (Soto, J.):
“I write separately to acknowledge that on the other side of the constitutional violation over which we affirm Gabaldon’s freedom lies the life of another man. Regrettably, the State’s misconduct has robbed the community, most especially Mr. Flores’s loved ones, of the process of determining the truth about what happened on February 22, 2021.” The concurrence also wrote that the “ruling has broad implications on promoting the integrity of the justice system itself. The primary duty of a prosecutor, as an arm of law enforcement, is ‘not to convict, but to see that justice is done.’ If we were to allow the State’s misconduct here, what would keep other prosecutors from using the same tactics to force lengthy continuances by similarly violating individuals’ constitutional rights when the State finds itself unprepared and unwilling to move forward?” Read concurrence.
Commentary:
This is a State’s appeal, so any credibility determinations or factual disputes would be decided in the defendant’s favor. Nevertheless, it was still the defendant’s burden to proof actual vindictiveness on the part of the prosecutor. (This is a case in which both sides agreed that there was no presumption of vindictiveness). Actual vindictiveness means that the prosecutor’s new charging decision was based solely on the defendant’s assertion or exercise of his rights. A new prosecutor took over this case and rather quickly came to the conclusion that what was charged as a murder was in fact a capital murder because it was committed during a robbery and was also a hate crime because of the victim’s sexual orientation. This change in charging decision occurred in the midst of the defendant’s demand for a speedy trial. This case underscores the need for prosecutors to quickly evaluate their cases to determine the appropriate charge(s). Still, because of the harshness of the remedy, it is possible that the Court of Criminal Appeals will want to review this decision. In the meantime, prosecutors should be aware of this decision and those that it cites if a defendant makes a claim of prosecutorial vindictiveness.
Hernandez-Faced v. State
No. 14-21-00658-CR 2/14/2023
Issue:
Did the trial court err by failing to conduct a hearing to inquire into the defendant’s ability to pay his ordered $10,000 fine and court costs?
Held:
No. Although the current version of Code of Criminal Procedure Art. 42.15(a-1) directs trial judges to inquire on the record whether the defendant has sufficient resources or income to pay fines and costs, that requirement took effect on Sept. 1, 2021. The Court rejected the defendant’s argument that the effective language for SB 1373, which amended Art. 42.15(a-1), “retroactively rendered void the trial court’s off-the-record assessment of his ability to pay the fine and costs assessed against him.” The Court concluded the changes to Art. 42.15(a-1) retroactively apply to fines, fees, and costs, but not the hearing requirement. “Accepting [the defendant’s] interpretation would lead to the absurd result that all prior judgments of conviction imposing fines, costs, or fees on a defendant without a hearing on the record would be subject to being declared invalid.” Read opinion.
Commentary:
Even though it was not effective in this particular case, this decision should put prosecutors on notice (or remind them) that Art. 42.15(a-1) now requires the trial judge to make an inquiry into a defendant’s “immediate” ability to pay fines or court costs.
Texas Attorney General Opinions
KP-0430 2/10/23
Issue:
What is the required mental state under Local Gov’t Code §111.012, which creates a criminal offense for an officer, employee, or official of county government who refuses to comply with applicable budget preparation requirements?
Conclusion:
“[A]n officer, employee, or official of a county government who refuses to comply with the budget preparation duties in Subchapter A of Chapter 111 commits an offense. Section 111.012 does not prescribe the culpable mental state but neither does it plainly dispense with any mental element. Accordingly, Penal Code Subsection 6.02(c) provides that ‘intent, knowledge, or recklessness’ suffice to establish criminal responsibility.” Read opinion.
Requested by:
Micheal E. Jimerson, Rusk County & District Attorney