Texas Court of Criminal Appeals
Delarosa v. State
No. PD-0197-22 9/4/23
Issue:
Was the evidence sufficient to convict the defendant of sexual assault of a child when the indictment charged the defendant with sexual assault via non-consensual sexual contact (Penal Code §22.011(a)(1)) and the application paragraph authorized conviction for sexual assault of a child (for which no consent is required under Penal Code §22.011(a)(2))?
Holding:
No. Because the State alleged that the defendant committed sexual assault without the victim’s consent, it was required to prove the victim’s lack of consent. Because it did not, the evidence was legally insufficient to support the defendant’s sexual assault convictions. Read opinion.
Dissent (Keller, P.J., joined by Hervey, J.):
“No one is, at this point, disputing that Appellant committed sexual assault of a child, and that is what the jury found him guilty of. If Appellant is acquitted here, the State will not be able to retry him for that offense, precisely because it is an alternative method of committing sexual assault. Acquittal—the “greatest form of relief in the criminal system”— is a harsh remedy for a defendant who has been found guilty of an offense that can be derived from the face of the indictment. Because the indictment, though defective, sufficiently alleged sexual assault of a child, the jury was authorized to return a verdict on that offense, and we should uphold the jury’s verdict against Appellant’s sufficiency challenge.” (footnotes omitted) Read dissent.
Dissent (Yeary, J.):
“[T]he indictment in this case was sufficient to authorize the jury to consider Appellant’s guilt for the three counts of sexual assault of a child.” Read dissent.
Commentary:
This is a tough holding to take. The sufficiency of the evidence in a criminal case in Texas is measured according to the statutory elements of the offense—as modified by the allegations in the indictment. In reaching the court’s holding, Judge Keel’s majority opinion relied upon the court’s prior holdings in cases like Curry v. State and Geick v. State. This decision underscores the extreme importance of getting to know the statutory language of the charged offense and making sure that the allegations in the indictment include all of the statutory allegations. The body of the indictment in this case did not identify the victim as a child. If it had, the evidence probably would have been sufficient, even if the State had still incorrectly (or unnecessarily) alleged that the sexual assault was committed without the victim’s consent.
Texas Courts of Appeals
Texas Dep’t of State Health Services v. Sky Marketing Corp., et al.
No. 03-21-00571-CV 9/28/23
Issue:
Did the trial court have jurisdiction to grant a request for temporary injunction, enjoining the Department of State Health Services (DSHS) from making delta-8 THC derived from hemp an illegal Schedule I controlled substance?
Holding:
Yes. The trial court correctly found that the sellers of delta-8 had standing to bring their claims against DSHS and have alleged arguments sufficient to invoke the court’s jurisdiction to decide whether the commissioner of DSHS exceeded her rule-making authority under Health & Safety Code §481.034. Read opinion.
Commentary:
There are two main places to look to determine whether a substance can be the subject of a drug prosecution in Texas—Penalty Groups and Schedules. Penalty Groups are easy to find in Chapter 481, Subchapter D of the Texas Health and Safety Code. Schedules are not quite as easy to find, but are most readily found on DSHS’s website at:
As noted by the holding above, this opinion did not decide whether DSHS exceeded its authority in making the change to the Schedules. By upholding the temporary injunction, the court of appeals held that the plaintiffs had stated sufficient facts to allow the trial judge to determine whether the Department had exceeded its authority. In the meantime, delta-8 THC derived from hemp cannot provide the basis for a prosecution because it is not listed in a Schedule (because of the temporary injunction and absent any intervening action by the Texas Legislature). The next step in this litigation will be to see if the Department and the Commissioner file a motion for rehearing with the court of appeals or a petition for review to the Texas Supreme Court. As a side note, starting September 1, 2024, legal disputes like this one involving state agencies will be decided by the newly created Fifteenth Court of Appeals.
Chumacero v. State
No. 13-22-00367-CR 9/28/23
Issue:
Did the trial court err by improperly refusing to rule on a motion to transfer venue until after voir dire?
Holding:
No. The trial court held a pre-trial hearing on the motion for transfer, as required by law. However, the court stated at the conclusion of the hearing that its “local custom and practice” is to never rule on a venue motion until after the parties have had the opportunity to select a jury, and only if “we can’t get a jury” would the court reconsider the motion. However, even if the refusal to rule on the transfer motion before voir dire was incorrect, the error would not be reversible because defense counsel unequivocally agreed to the trial court’s approach at the end of the pre-trial hearing. Read opinion.
Commentary:
Article 31.04 of the Code of Criminal Procedure can be read to require a ruling by the trial judge, as opposed to postponing a ruling until after voir dire. The court of appeals held that the judge’s action at the end of the pretrial hearing could be viewed as an implied ruling denying the motion for a change of venue. Even if the trial court did in fact refuse to rule, and even if that refusal to rule was erroneous, the error was harmless. Based upon the State’s controverting evidence and the passage of time, the defendant was not entitled to a change of venue. As a side note, effective January 1, 2025, Chapter 31 of the Code of Criminal Procedure will be placed in a new Chapter 31A (with more clear language and better organization).
Swanzy v. State
No. 09-22-00136-CR 09/27/23
Issue:
Can a 1979 DWI misdemeanor charge for which the defendant was placed on probation be used to enhance a later DWI charge?
Holding:
No. Under the law that applies to the defendant’s 1979 charge, former Code of Criminal Procedure Art. 42.13, a defendant’s guilty plea to a misdemeanor could be considered only for one purpose: whether the defendant should be placed on probation if he was convicted of another DWI. Because the State did not show evidence that the defendant’s 1979 DWI probation was revoked, his plea cannot be used for any purpose, including enhancing a later conviction to a higher-level offense. Read opinion.
Commentary:
This decision is correct in its result, but it is a little misleading. Do not read this decision to suggest that a DWI defendant’s old DWI case cannot be used to enhance his punishment if the defendant was placed on probation and that probation was never revoked. From January 1, 1984 on, a defendant’s DWI case can be used to enhance his punishment under §49.09 of the Penal Code, even if the defendant was placed on probation, and even if that probation was not revoked. See Ex parte Serrato, 3 S.W.3d 41 (Tex. Crim. App. 1999). The court of appeals correctly cited to the decision of the Court of Criminal Appeals in Wilson v. State, but Wilson relied upon its prior decision in Ex parte Serrato, not Article 42.13. The Court of Criminal Appeals has construed §49.09, which incorporates Article 6701l-1 of the Texas Revised Civil Statutes (where DWI was located prior to 1994), and Article 6701l-1 allowed the use of all prior DWIs (after January 1, 1984) to be used to enhance a DWI punishment, whether or not the defendant had been placed on probation in the prior case.