Texas Court of Criminal Appeals
In re State ex rel. Wice
No. WR-93,089-01 6/14/23
Issue:
Did a judge have constitutional and statutory authority to grant a change of venue to a non-adjacent county (Harris County) in April 2017?
Holding:
Yes. The judge’s order changing venue in State v. Paxton to Harris County is a valid one. Venue, unlike jurisdiction, may be waived. Here, the parties clearly waived any objections under Code of Criminal Procedure Art. 31.02 and consented to a non-adjacent county. Therefore, the judge had the discretion as a judge with constitutional and statutory authority to change venue to Harris County even though it is a non-adjacent county. The court conditionally granted the State’s petition for writ of mandamus. Read opinion.
Concurring (Slaughter, J.):
“I agree with and join the Court’s opinion. I write separately, however, to address Judge Yeary’s misguided but surely well-meaning dissenting opinion. Judge Yeary’s misunderstanding of the issues here leads him to argue that mandamus is inappropriate here because the State had an adequate remedy at law, namely, filing an additional venue transfer motion in Collin County. But how exactly does that fix the problem at issue here with respect to Judge Johnson improperly vacating as void a proper and legitimate order of another district judge who had jurisdiction? It doesn’t. A new venue transfer motion does not directly address, nor does it provide relief for, the true issue at hand.” Read concurrence.
Dissent (Keller, P.J.):
“Was Judge Gallagher nevertheless empowered to remain on this case under the theory that he was holding court for another judge pursuant to the Texas Constitution? Did the Texas Constitution authorize the presiding judge of the Collin County region to agree on behalf of the Collin County district judge who recused himself, to allow a district judge in a different region to hold court in Collin County? The Court answers those questions ‘yes,’ implying that the regional presiding judge stands in the shoes of the Collin County judge. But the Court cites no authority for that proposition and acknowledges that it is ‘harmonizing’ various sources of law. I would deny mandamus relief because mandamus does not lie in criminal cases to settle unsettled law.” Read dissent.
Dissent (Yeary, J):
“Under Article 31.02 of our Code of Criminal Procedure, Judge Gallagher lacked the authority to transfer this case to Harris County.” Art. 31.02 “recognizes no leeway, as do other statutes in Chapter 31, for improvisation with the indulgence of the parties.” Read dissent.
Commentary:
This is an extraordinary decision. This is a mandamus case. This is not a case in which the highest court in the state is asked to answer a particular legal question. It is a mandamus case, which means that to prevail, the moving party (“relator” in mandamus parlance) must have had a clear right to relief. In other words, it must be clear that a Tarrant County District Court Judge—who was assigned to this Collin County case—had the authority to transfer the Collin County case to Harris County. And it must be clear that a Harris County District Court Judge—who had been properly assigned to take over the case—did not have the authority to overturn the transfer to Harris County. That is precisely what the court has held in this case. After a case has been transferred to another county on a motion to change venue, another judge does not have the authority to overturn that transfer order, even if that other judge has been properly assigned the case. That other judge cannot merely disagree with the first judge’s ruling transferring the case to the other county. The court stated: “the Constitution requires more than mere disagreement to void the rulings of one of its judges acting within their discretion.” It appears that this case must now be tried in Harris County, and perhaps in the 185th District Court, which was the court to which the case was most recently assigned (although a new judge has since been elected to that bench).
Texas Courts of Appeals
Rodriguez v. State
No. 05-22-00273-CR 6/8/23
Issue:
May a court modify a judgment to include an affirmative finding that the victim was younger than 14 years of age at the time of the offense on a cross-point on appeal from the State?
Holding:
Yes. Because the judgment contained the victim’s age at the time of the offense (“10 years”) in the section that required the defendant to register as a sex offender under CCP Art. 42.01, §1(27), even though the “special findings” portion of the judgment did not include the victim’s age as required by Art. 42.015(b), the information in the judgment was sufficient to allow the appeals court to modify the trial court’s judgment to include an affirmative finding that the victim was younger than 14 at the time of the offense. Read Opinion.
Commentary:
This affirmative finding would prevent the defendant from being employed in certain types of jobs under Art. 62.063(b) of the Code of Criminal Procedure. As a matter of judgment-modification law, this issue is easy. The record clearly reflected the victim’s age, and the court of appeals, therefore, had the authority to modify the judgment to include the affirmative finding. That affirmative finding is mandatory under Art. 42.015(b) of the Code of Criminal Procedure. Great job by the State in raising this cross-point of error.
Gunter v. State
No. 13-22-00020-CR 6/8/23
Issue:
Do dual convictions for aggravated assault—one count causing serious bodily injury, and a second count for causing bodily injury while exhibiting a deadly weapon against a single victim—violate the double jeopardy?
Holding:
Yes. The court held that a single act that caused bodily injury to a single victim constitutes the same offense for purposes of double jeopardy, because the defendant could not simultaneously complete multiple assaults against a single individual during the same criminal transaction. Read Opinion.
Commentary:
This may be the clearest decision from a Texas appellate court, holding that multiple injuries inflicted upon a single victim during the same transaction cannot lead to multiple assault convictions. The court specifically rejected the idea that a defendant “could simultaneously complete multiple assaults against a single individual during the same criminal transaction,” or that “a knife wielding assailant could be convicted of aggravated assault for each stab wound he inflicted on his victim in a single, uninterrupted attack.” Domestic violence prosecutors in particular will want to take note of this decision. (This decision is not a domestic violence case). This is a significant holding. As such, one might expect that it will be reviewed by the Court of Criminal Appeals. In the meantime, all prosecutors should read this decision, particularly pages 7-10 of the court’s opinion.
Texas Attorney General Opinions
No. JS-0001 6/12/23
Issue:
What is the authority of a county commissioners court to contract for the collection of forfeited bail bonds under Code of Criminal Procedure Art. 103.0031(h)?
Conclusion:
Art. 103.0031 generally permits a county or a municipality to enter into a third-party collection contract to recover money owed on certain items in criminal cases, including forfeited bonds. The reference to a nonexistent “section” in Art. 103.0031(h), providing that “[t]his section does not apply to commercial bail bonds,” is a scrivener’s error that creates an absurdity, and a court would likely construe its exception to refer to Art. 103.0031.
A court would likely conclude that attorney sureties execute “commercial bail bonds” to the extent they sell their bonding services for a fee or commission. As such, article Art. 103.0031(h) prohibits a commissioners court from entering into a third-party contract for collection services on forfeited attorney surety bail bonds. Instead, forfeited attorney surety bonds would be collected by district and county attorneys, clerks of district and county courts, sheriffs, constables, and justices of the peace under Art. 103.003(a). Read opinion.
Requested by:
Luis V. Saenz, Cameron County District Attorney