Texas Courts of Appeals

Ex parte Lee

No. 10-22-00281-CR                   7/19/23

Issue:

Did the defendant adequately brief his issue regarding excessive bail in his application for a pretrial writ of habeas corpus?

Holding:

No. The defendant argued that a trial court must provide an explanation for its decisions, and the court abuses its discretion when it fails to do, citing only three published cases in support of his argument. The Court concluded, however, that “none of those cases exist …” “Each citation provides the reader a jump-cite into the body of a different case that has nothing to do with the propositions cited by Lee. Two of the citations take the reader to cases from Missouri.” In a footnote, the Court concluded that based upon a recent Texas Bar continuing education program, “it appears that at least the ‘Argument’ portion of the brief may have been prepared by artificial intelligence (AI).” Read opinion.

Commentary:

Texas Rule of Appellate Procedure 38.1(i) requires the appellant to make a clear and concise argument regarding his claims on appeal, and to include appropriate citations to the record and pertinent legal authorities.  Although appellate courts generally construe the briefing rules liberally, an utter failure to follow TRAP 38.1(i) will be considered “inadequate briefing” and, if not corrected before the appellate court issues its opinion, may result in dismissal of the appellant’s claims and end the defendant’s ability to use the direct-appeal process.  Here, the State did a great job of showing that the defendant’s briefing was inadequate (and possibly AI-generated—note, don’t do that), tracing the few cited authorities to their origins to illustrate their total inapplicability.

Stephenson v. State

No. 02-22-00101–00106-CR    7/20/23

Issue:

What is the allowable unit of prosecution for continuous sexual abuse?

Holding:

The allowable unit of prosecution is “victim-specific,” based in part on §21.02(f), which prohibits the State from charging a defendant with more than one count of continuous sexual abuse if all the specific alleged acts of sexual abuse are alleged to have been committed against a single victim. Because the defendant’s two convictions for continuous sexual abuse of a child involved different victims and different time frames, his convictions do not violate the Double Jeopardy Clause. Read opinion.

Commentary:

The Second Court of Appeals joins the Thirteenth Court of Appeals in reaching this holding, and does so in a very thorough and well-reasoned manner.  Although the defendant in the case before the Thirteenth Court of Appeals did not seek discretionary review in the Court of Criminal Appeals, it is likely that the defendant in this case will and, given the novelty of the issue, the CCA may want to weigh in.  If not, though, this case should be persuasive in other jurisdictions, such that a piecemeal statewide application can be achieved.  If you prosecute sexual offenses against children, or if you’re interested in statutory interpretation, this case is a must-read.

Ex parte Ordonez

No. 14-19-01005-CR                   7/25/23

Issue:

In a case on remand from the Court of Criminal Appeals, is the electronic harassment statute (Penal Code §42.07(a)(7)) unconstitutional on its face in violation of the First Amendment?

Holding:

No. The Court of Criminal Appeals previously held that gravamen of the 2013 version of §42.07(a)(7) is sending repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another, but this conduct is “noncommunicative” and therefore not subject to First Amendment scrutiny. While 2017 amendments to the statute broadened the type of electronic communications that can be used to commit the offense, the gravamen of the offense itself did not change. “Accordingly, we conclude that the 2017 version of the electronic harassment statute does not implicate the First Amendment.” Read opinion.

Commentary:

The Texas Legislature often amends or adds to Section 42.07, the harassment statute.  However, as this case illustrates, if future amendments to Section 42.07(a)(7) and Section 42.07(b)(1) (defining “electronic communication”) do not change the gravamen of the offense proscribed in Section 42.07(a)(7)—i.e., the conduct of sending the repeated electronic communications, regardless of the fact that their content might contain speech—then even an amended statute should survive similar First Amendment attacks.  This case is also noteworthy for the fact that the appellate court rejected the defendant’s attempt to use the recent SCOTUS case Counterman v. Colorado to argue that repeated communications barred by Section 42.07(a)(7) constitute speech and, thus, are not “noncommunicative” conduct that is beyond the scope of the First Amendment.  While Counterman could impact the manner in which courts interpret Section 42.07(a)(2) (prohibiting harassment by making threats), cite this opinion if you encounter a situation in which a defendant charged under Section 42.07(a)(7) attempts to use Counterman in defense of his conduct.

Ochoa v. State

No. 02-21-00174–00176-CR                   7/20/23

Issue:

Does a magistrate’s addition of extra language to the warnings given to a juvenile under Family Code §51.095 render the otherwise accurate warnings insufficient and therefore the juvenile’s statements given after the warnings involuntary?

Holding:

No. Although misleading statements by a magistrate might make a juvenile’s statement involuntary, “[h]ere, the magistrate did not give Ochoa unnecessary, incorrect information about his possible punishment or the consequences of making a statement.” Read opinion.

Commentary:

The law sometimes requires a magistrate or judge to provide specific warnings or admonitions to the accused.  For example, a magistrate must give a juvenile Miranda-esque warnings before the juvenile makes a recorded custodial statement, per Family Code Section51.0959(c), as in this case.  Also, Texas Code of Criminal Procedure Article 26.13(a) requires a judge to provide particular admonishments to a defendant prior to accepting the defendant’s guilty or no-contest plea.  Although best practice would be for magistrates and judges to “stick to the script” and provide the warnings or admonitions accurately and precisely as they are written in their respective statutes, deviations from the so-called script in the form of additional explanations or context should not result in reversal on appeal as long as the extra information is not wrong.

Texas Attorney General Opinion Requests

No. RA-0001-AC           7/24/23

Issue:

Under Gov’t Code Chapter 74, may a judge of a multi-county district appoint different court coordinators for each county in the district? Read opinion request.

Requested by:

John K. Greenwood, Lampasas County Attorney