Texas Court of Criminal Appeals
Roland v. State
No. PD-0035-21 9/29/21
Issue:
Do any county courts have jurisdiction over official-misconduct misdemeanors?
Holding:
Yes. In November 1985 the wording in Art. V, §8 of the Texas Constitution was changed to remove the specific language granting exclusive jurisdiction to district courts over official-misconduct misdemeanors. Those changes, read in conjunction with Arts. 4.05 and 4.07 of the Code of Criminal Procedure and Gov’t Code §25.0003, allow for county courts at law to have jurisdiction. However, varying statutes in the Gov’t Code also specifically exclude some counties from having jurisdiction over official-misconduct misdemeanors. Read opinion.
Commentary:
This is a big change in the law regarding misdemeanors involving official misconduct, allowing these offenses to be brought in most county courts. Even if you rarely prosecute these types of offenses (or they rarely arise), read the opinion to see if your county is one of those where it is permitted. Even with this decision, however, there may be good reasons why these offenses should be prosecuted in a district court after indictment by a grand jury, such as if you wish to have the official removed from office or if you want a neutral body (such as a grand jury) to make the initial determination of whether a prosecution is proper.
Hernandez v. State
No. PD-0790-20 9/29/21
Issue:
Was a defendant entitled to a jury instruction on indecency with a child by contact as a lesser-included offense of aggravated sexual assault when he was not prosecuted for the contact offenses?
Holding:
No. “[A] separate offense—even if it is a lesser offense—is not an included offense.” Because sex offenses are narrowly focused, the proposed lesser-included offenses in this case were separate offenses. The defendant could have been charged with three different crimes because the evidence showed that three different body parts of the victim were penetrated or touched. Read opinion.
Commentary:
This decision is pretty straightforward and is a good reminder (to both prosecutors and defense counsel) that the jury cannot be instructed on just any lesser offense. It must be a lesser-included offense. This concept is now very well established in sex offenses, where a good deal of case law has developed over what is a separate offense in sexual molestation cases and whether a lesser offense can be “subsumed” into a greater, charged offense. In this case, the issue was easily decided because the various “lesser” acts were completely different from the specific allegation of the greater, charged offense of aggravated sexual assault.
Do v. State
No. PD-0556-20 9/29/21
Issue:
If the State does not read the 0.15 allegation in a DWI case at the guilt stage of trial but does so at the punishment stage and included it in the charging instrument, has the State failed to join the element and abandoned the allegation?
Holding:
No. The defendant was on notice of the 0.15 allegation when the State read the charging instrument. Additionally, the State made no “affirmative action” to abandon the allegation. Although the Court did not decide whether the 0.15 allegation was an element of the offense, because the parties agreed that it was, the Court determined there was jury charge error but uncontroverted evidence at trial made the error harmless. Read opinion.
Concurrence (Richardson, J. joined by Hervey and Newell, JJ.):
“Perhaps it is time we rip the band aid off and just say it”: The Court should definitively decide whether the 0.15 allegation in a DWI is an enhancement or an element of the offense to provide clarity to judges, defense lawyers, and prosecutors. Read opinion.
Concurrence (Newell, J. joined by Hervey, Richardson, and McClure, JJ.):
If the 0.15 allegation is an element, the concurrence agrees that failure to have the jury decide this element was harmless. Read opinion.
Dissent (Yeary, J. joined by Slaughter, J.):
Instead of addressing the defendant’s issue on appeal—that the State failed to require the jury to find an essential element of a greater-inclusive offense—the Court focuses on the State’s jury-charge error and the lack of harm to the defendant. However, the State failed to raise the issue in a timely manner. Read opinion.
Dissent (Walker, J. joined by Yeary, J.):
This case involved two separate harms from two separate errors: inadvertent submission of the lesser-included offense of Class B DWI and the trial court’s judgment of conviction and one-year sentence for Class A DWI. Here, the majority “focuses on the wrong error and evaluates harm from the wrong party.” Read opinion.
Commentary:
This case is about whether the defendant was harmed. That is it. Do not take the decision as answering any other question in this area of the law. The Court does not answer the question of whether the 0.15 allegation is an element or an enhancement. If you want to explore the answer to that question, read Navarro v. State, 469 S.W.3d 687 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d) and Apprendi v. New Jersey, 530 U.S. 466 (2000), which would hold that such an allegation is an element. See also Ramjattansingh v. State, 548 S.W.3d 540, 548 (Tex. Crim. App. 2018) (suggesting in dicta that the allegation is an element). So, to the harm analysis: The majority viewed the error that was alleged in this case to be jury-charge error, but the majority did not perform an Almanza analysis. Instead, the Court applied the constitutional-error harm analysis that the United States Supreme Court has required when an “element” of an offense has been omitted from the jury charge. The Court did not hold that this harm analysis necessarily applied in this case. Rather, the Court only held that, if that most strenuous of all of the harm analyses was applied, the defendant was not harmed. A little perplexed? I certainly am. And perhaps some of the members of the Court were as well, in light of the numerous concurring and dissenting opinions.
Texas Courts of Appeals
McCall v. State
No. 03-19-00027-CR 9/22/21
Issue:
May simple bodily-injury assault be included as a lesser-included offense of occlusion assault?
Holding:
No. After issuance of the Court of Criminal Appeals’ decision in Ortiz v. State, 623 S.W.3d 804 (Tex. Crim. App. 2021) and a rehearing, the court of appeals reversed the trial court’s conviction of misdemeanor simple bodily-injury assault and rendition of an acquittal for occlusion assault. However, the court of appeals concluded the evidence was sufficient for the simple bodily-injury assault, and because there is no double-jeopardy bar, the defendant could be retried for that unindicted offense. Read opinion.
Concurrence (Baker, J.):
Agreeing that the Court of Criminal Appeals’ holding in Ortiz compels the outcome in this case, the concurrence alerted the Legislature to take note of the impact on the State’s policy in protecting family-violence victims. Read opinion.
Commentary:
This is the logical result of the decision of the Court of Criminal Appeals in Ortiz. If you are a domestic violence prosecutor, be aware of this decision and Ortiz in plea bargaining, as well as in jury charges.