Texas Court of Criminal Appeals
Ex Parte Moon
No. PD-0302-22 05/03/23
Issue:
Did the court of appeals have the authority to hear the defendant’s interlocutory appeal regarding a pretrial application of writ of habeas corpus challenging transfer of his case from juvenile court to district court?
Holding:
No. Under former Code of Criminal Procedure Article 44.47(b), a court of appeals lacks authority to entertain the defendant’s interlocutory appeal; therefore, a defendant is not authorized to appeal from an adverse ruling in a pretrial habeas case that challenges a juvenile court’s transfer order. The court reversed the court of appeals’ judgment and remanded the case for an order dismissing the defendant’s appeal as premature. Read opinion.
Commentary:
This iteration of the Moon saga (this case has bounced around among the trial court, lower appellate courts, and the CCA quite a bit), should serve as a reminder to always check the effective dates of statutes applicable to your case and recall that the law in effect at the time of the offense or relevant action (here, the pursuit of an interlocutory appeal of a juvenile transfer order) controls.
Also, in case anyone has forgotten, the Texas Constitution bestows upon the CCA “final appellate jurisdiction coextensive with the limits of the state” in all criminal matters.
Texas Courts of Appeals
Herrera v. State
No. 12-22-00047-CR 04/28/23
Issue:
Is evidence insufficient to convict the defendant of unlawful interception of electronic communications under Penal Code §16.02 when it showed that the defendant opened a gas pump door but did not link him to the credit card skimmer or gas pump through fingerprints or DNA evidence?
Holding:
No. The court held that the jury’s verdict was based on more than mere speculation that the defendant was attempting to access the skimmer. The jury could reasonably infer that the defendant was involved in skimming activity from evidence recovered from his phone and truck and that when the defendant opened a gas pump where a skimmer had been discovered four days prior, pulled out the credit card reader in dispenser (“CRIND”) board, and looked around inside the pump, he was trying to locate the skimmer in an effort to intercept electronic communications. Read opinion.
Commentary:
This case features quite a bit of circumstantial evidence that the defendant was involved in skimming activity, not least of which is the fact that, as the appellate court observed, awareness that a CRIND board can be pulled out of a gas pump is “highly specialized knowledge.” On appeal, the defendant attempted to isolate many of the established facts and condemned them as “speculative” because they did not, alone, establish skimming activity. The appellate court properly rejected the defendant’s analysis, considered the evidence as a whole, and distinguished an inference (a conclusion reached by considering facts and deducing a logical consequence from them) from speculation (mere theorizing or guessing about the possible meaning of facts and evidence).
Ex Parte Stafford
No. 05-22-00396-CR 05/01/23
Issue:
Does Election Code §255.004(b), which prohibits representing in a campaign communication that the communication comes from a source other than its true source, violate the First Amendment on its face?
Holding:
Yes. Election Code §255.004(b) is unconstitutional on its face because even though the State’s interest in promoting fair and honest elections by preventing false and misleading political speech is compelling, the restrictions on protected speech in the statute are not narrowly tailored. Read opinion.
Commentary:
Expect that the State will file a petition for discretionary review in the Texas Court of Criminal Appeals and that the CCA will likely be interested in weighing in on at least a couple of issues in this case, including: (1) whether, as the intermediate appellate court states, “the plain language of the statute clearly prohibits representations, not misrepresentations[,]” when the statute proscribes publication of political advertisements that “purport to emanate from a source other than [their] true source” and, thus, necessarily misrepresent their true source; and (2) whether Election Code §255.004(b) is sufficiently narrowly tailored to serve the State’s compelling interest in ensuring that political advertising is attributed to its true source, when a source is actually named. Stay tuned.
Reece v. State
No. 06-22-00026-CR 04/27/23
Issue:
Rather than using the state jail felony enhancement statute in Penal Code §12.425, can the State enhance a state jail felony under §12.50 for an offense committed in a disaster area, then further enhance under Penal Code §12.42 for repeat and habitual offenders?
Holding:
No. The court held that the State should have enhanced under §12.425(b), and, under that section, the defendant’s prior convictions increased his punishment range to that of a second-degree felony. Because the defendant received a 45-year sentence based on §§12.50 and 12.42, his sentence was illegal. The court affirmed the defendant’s conviction but remanded to the trial court for a new punishment hearing. Read opinion.
Commentary:
Applying the CCA precedent of State v. Webb, 12 S.W.3d 808 (Tex. Crim. App. 2000), the appellate court here determined that Penal Code §12.50 increases the punishment for applicable offenses, but does not increase the level of the offense. So, the State could not use § 12.50 to bump the defendant’s crime—non-aggravated, state jail felony theft—up a level, into a third-degree felony, and then use § 12.42(d) to enhance the applicable punishment range to 25-99 years in prison. Rather, upon the defendant’s conviction for non-aggravated, state jail felony theft, the State’s only options were to (1) use § 12.50 to enhance the defendant’s punishment to the third-degree-felony range; or (2) use § 12.425(b) to enhance the defendant’s punishment to the second-degree-felony range, in light of the defendant’s two prior felony convictions. The appellate court does not say so, but the effect of the court’s holding is that §12.50 creates an independent punishment enhancement that cannot be combined with another punishment-enhancement provision.