Texas Court of Criminal Appeals
Biggers v. State
No. PD-0309-20 9/22/21
Issue:
When evidence at trial fails to prove the proportion of a codeine mixture possessed by the defendant, as required in the lowest tier of the codeine and codeine-derivative statute (Penalty Group 4), should the defendant be 1) acquitted or 2) convicted of the greater offense (Penalty Group 1)?
Holding:
The defendant should be acquitted. Agreeing the evidence did not prove the defendant possessed Penalty Group 4 codeine, the Court held the State must “negate the possibility that the mixture was a Penalty Group 3 or 4 substance,” which it did not do. As a result, the Court held the defendant could not be convicted of the greater offense of possession of a Penalty Group 1 substance, either. Read opinion.
Dissent (Keller, P.J.):
When the record shows that codeine is mixed with another medicine, but it does not show whether or not the other medicine is present in a sufficient proportion to confer valuable medicinal qualities, the conviction for the charged offense, possession of codeine in Penalty Group 4, should be affirmed. Read opinion.
Dissent (Slaughter, J. joined by Keller, P.J., Yeary, and Keel, JJ.):
“[W]e have never required a chemist to explicitly recite the relevant statutory language or use magic words to support finding that the ‘valuable medicinal quality’ element was satisfied.” Therefore, the evidence is sufficient to support the defendant’s conviction for possession of Penalty Group 4 codeine. Read opinion.
Commentary:
As the majority opinion points out, Judge Cochran once said that the codeine statutes are not user-friendly. Judge Cochran was being nice. The statutes are the legal equivalent of the spinning dancer gif, and the opinions in this case can’t decide whether they’re spinning left or right. But the majority opinion gets the better of it, for one simple reason: the State failed to prove an element. The State’s failure to prove an element should never—ever—mean that a defendant is “guiltier than the State alleged.”
(Practice note: the PDR in this case was about the appropriate remedy when the State fails to prove all the elements of Penalty Group 4 codeine. If you prosecute these types of cases and need a primer on what those elements are, take 10 minutes and read the lower court’s opinion.)
Sanchez v. State
No. PD-0593-20 9/22/21
Issue:
Is a defendant entitled to withdraw his waiver of a jury trial that was executed in anticipation of a negotiated plea that was never finalized?
Holding:
Yes. Although the defendant made no formal request to withdraw his jury-trial waiver during his plea hearing, he had “effectively” requested a withdrawal through his actions, which the trial judge noted on the record. As a result, the Court assessed the Hobbs factors (Hobbs v. State, 298 S.W.3d 193 (Tex. Crim. App. 2009)) and determined that his request did not interfere with court business, delay proceedings, inconvenience witnesses, or prejudice the State. Read opinion.
Commentary:
The takeaway from this case is that the defendant doesn’t have to make an express or formal request to withdraw his jury-trial waiver, so long as the record shows the judge understood what he wanted. That matters because the relevant date for looking at the Hobbs factors is the date of the withdrawal, not the date of trial—which in this case was over a month later.
Texas Courts of Appeals
Ex parte Trevino
No. 04-20-00544-CR 9/15/21
Issue:
Can an arrest warrant, after the defendant objects to it, be introduced as evidence in a bond revocation hearing?
Holding:
No. An arrest warrant affidavit constitutes hearsay that should be excluded per Rule 802 of the Texas Rules of Evidence. Here, this was the only piece of evidence, which was not enough to establish a violation by a preponderance of the evidence required for a court to remand the defendant without bond pending trial. Additionally, the court is not permitted to take judicial notice of a defendant’s arrest because Art. I, §11b of the Texas Constitution requires a hearing to deny bond to an accused pending trial. Read opinion.
Commentary:
The trial court did three things here: 1) it revoked the defendant’s bond without a hearing; 2) it denied his motion to set bond after a hearing at which it considered hearsay evidence; and 3) it denied his pretrial application for a writ of habeas corpus, which also asked the court to set bail, after a hearing at which it considered the same hearsay evidence. Only the third was appealable, but the first is what tainted the whole process. Revoking the defendant’s bail without a hearing violated Art. 17.40 of the Code of Criminal Procedure, and that revocation is what triggered the next two hearings.
Because the defendant’s bail had been revoked in a family-violence case, the next two hearings became hearings to “deny” bail under Art. 1, §11b, which means the rules of evidence apply, the State has the burden of proof, and the court may not deny bail unless it finds the required conditions by a preponderance of the evidence. So, take this point to the bank: if the State is either moving to revoke bail or asking the court to deny bail, then 1) there needs to be a hearing, and 2) the State has to introduce admissible evidence.
Texas Attorney General Opinion
KP-0386 9/17/21
Issue:
Does Executive Order GA-38 create a right, privilege, power, or immunity for individuals to be free from a requirement or mandate to wear a face covering?
Conclusion:
Executive Order GA-38 generally prohibits a governmental entity, including a county, city, school district, or public health authority, from requiring any person to wear a face covering or to mandate that another person wear a face covering. Section 39.03 of the Penal Code makes it an offense for a “public servant acting under color of his office or employment” to intentionally deny or impede “another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful.” GA-38 creates immunity for Texans to be free from enforcement of most local governmental mandates that require face coverings. A court could find under certain facts that a governmental official intentionally denying that immunity to an individual by enforcing an unlawful face covering mandate is in violation of §39.03. Read opinion.
Donate to Hurricane Relief 2021!
In the wake of Hurricane Ida, Louisiana has once again been dealt a hard hand. To help support Louisiana prosecutors and their families who have been adversely affected, our good neighbors at the Louisiana District Attorneys Association are partnering with their training foundation (LDATF) to raise funds for their benefit. Anyone interested in helping can CLICK HERE to donate. Any contribution—no matter the amount—will make a difference and is greatly appreciated. All donations are TAX DEDUCTIBLE under existing IRS rules.