Case of the Week Archive
The title of the investigation and the evidence destroyed did not need to match in an indictment alleging tampering with or fabricating physical evidence under Penal Code §37.09(a)(1)? As long as the offender destroyed something with intent to impair its availability as evidence in an investigation that he knew was in progress, the elements of the offense were satisfied. Williams v. State - PD-0470-07.
The trial court commited a jury-charge error when it singled out evidence of the defendant's refusal to take a breath test in the charge. A court is allowed to admit evidence that a defendant refused to take a breath test, but there is no statutory language directing a jury to attach any special weight or significance to that evidence. Texas law does not establish any presumption in a DWI case stemming from a defendant's refusal to take a breath test. With no presumption, the trial court committed error in instructing the jury on inferences that it could or could not have drawn from the evidence presented to ultimate or elemental facts. Bartlett v. State -PD-1461-07.
The evidence was not factually sufficient to support the defendant's conviction for three counts of possession of a controlled substance with intent to deliver. Nothing in the record reflected that the defendant was arrested in a high crime or high drug area, that the drugs found on him were packaged as to suggest that he was a drug dealer, that he possessed any drug paraphernalia, or that he possessed a large amount of cash. Guyton v. State - 10-07-00070-CR.
In a civil lawsuit where plaintiffs alleged that the State's failure to provide adequate treatment to persons who have been found incompetent to stand trial was unconstitutional, the trial court did not improperly deny the Department of State Health Services' plea to the jurisdiction based on sovereign immunity. Without an express waiver of sovereign immunity, the State, its agencies and its officials are generally immune from suit. However, sovereign immunity does not shield a governmental body from a suit for equitable relief for a violation of constitutional rights. Lakey v. Taylor - 03-07-00700-CV.
The State's pretrial proffer of evidence that appellant had access to the murder weapon near the time of the murder did not satisfy the burden of proof beyond a reasonable doubt for an extraneous offense. However, the court found that it was not legally significant that the State's pretrial proffer did not satisfy this burden so long as the evidence presented by the end of trial did meet it. Fischer v. State, PD-1613-07
The evidence was not legally sufficient to convict the defendant of one count of deadly conduct in addition to one count of misdemeanor assault when he discharged a firearm inside a building. In the charging instrument, committing deadly conduct was expressed as "knowingly discharging a firearm at or in the direction of a habitation, building, or vehicle." Because the evidence showed that the defendant was inside his home when he discharged the firearm, the evidence was insufficient to sustain the deadly-conduct conviction as charged. Reed v. State, PD-366-07
Evidence of two sexual assaults committed with a co-defendant is not sufficient to establish the combination required by Penal Code §71.02 for organized criminal activity. While a rational juror could consider the co-defendant's plea of guilt to sexual assault, that plea alone does not support the appellant's conviction for engaging in organized criminal activity. §71.01 requires three or more people to establish the combination. Arredondo v. State - 11-07-00143-CR
The trial court did not err when it allowed the victim's mother to hold the child to show his injuries while the mother testified against the defendant accused of injuring the child. There was not a clear disparity between the degree of prejudice that the presence of the child victim may have created and the probative value to the jury. Where expert testimony indicated that the child's injuries prevented him from reaching a normal developmental stage, a visual depiction of the child properly allowed the jury to observe the child's current physical condition. Thompson v. State - 04-07-00565-CR.
It was erroneous for the trial court to allow a California felony
conviction for sexual battery as an enhancement during the punishment phase in
the appellant's trial for sexual assault of a child. Penal Code §12.42(c)(2)(B)(v) requires that an out-of-state
statute contain elements that are substantially similar to the elements of one
of the listed Texas offenses when used for enhancement purposes. The California
offense did not contain elements substantially similar to the Texas elements and
carried a punishment that was significantly less severe. Prudholm v. State - 01-06-00759-CR.
A parolee who has never been convicted of a reportable offense may be nonetheless required to comply with sex offender conditions of early release. Government Code Ch. 508 authorizes the parole board generally to impose sex offender conditions and specifically a child safety zone condition. Ex parte Campbell - AP-75,838.
The State is allowed to prosecute for each victim kidnapped and not for the number of aggravating factors that may be present in the case. Aggravated kidnapping is a result-oriented offense and the allowable unit of prosecution for the offense of aggravated kidnapping relates to the abduction of a victim. The jury may be instructed that it can consider all of the aggravating factors alleged by the State and return a general verdict of guilty for the single criminal count of aggravated kidnapping. Gonzales v. State - 07-07-0302-CR.
When two statutes cover different situations and were apparently not meant to be considered together, the doctrine of in pari materia does not apply. In this case involving an abandoned child, TPC §22.041(b) could cover an unlimited set of facts where it is shown that a child has been abandoned and mandates that the abandonment be under circumstances in which no reasonable, similarly situated adult would leave a child. In contrast, TPC §22.10 applies only to leaving a child in a vehicle and may be violated in a few short minutes. Fernandez v. State - 06-08-00007-CR.
The trial court did not commit error when, during the punishment phase of the trial, it admitted the defendant’s custodial confession to an officer about dealing drugs. CCP art. 37.07 does not require the State to provide, nor the trial court to first hear, additional corroborating evidence in order to make the extrajudicial confession to these extraneous offenses admissible. McClure v. State - 06-08-00024-CR.
The trial court properly submitted a jury charge which required the jury unanimously to agree that the defendant either intentionally and knowingly caused bodily injury while using a deadly weapon or recklessly caused serious bodily injury. The essence of the offense is "causing bodily injury." The jury did not have to be unanimous on the aggravating factors of whether it was a serious bodily injury or whether the appellant used a deadly weapon. Landrian v. State - PD-1561-07.
The sentences must run consecutively when the defendant was convicted of both possessing a controlled substance in a drug-free zone and engaging in organized criminal activity. While there was one criminal episode which resulted in joint prosecutions and convictions in the same trial, two conflicting sentencing statutes were implicated. The specific must trump the general and because the possession in a drug free zone (Health and Safety Code §481.134(h)) is the more specific offense based on the circumstances in the case, it's mandatory stacking requirement controls over the general rule found in Penal Code §3.03 and the sentences must run consecutively. Newman v. State -07-07-0276-CR.
Tthe trial court was in error when during a pre-trial suppression hearing it admitted and considered a police report which was unaccompanied by any form of affidavit or sponsoring testimony. The trial court is permitted to make a pre-trial ruling based on the motion itself, upon competing affidavits and/or based on live testimony. Here, the sole basis to deny the motion was unsworn and unsupported evidence, and that was error. Ford v.State - 6-08-00046-CR.
Under Rule of Evidence 803(24) an entire conversation between a defendant and co-defendant is not admissible as a statement against interest. Only the self-incriminating and "blame-sharing" statements are admissible under Rule 803(24). Self-exculpatory statements which shift the blame to another must be excluded. Walter v. State - PD-1929-06.
Charging the jury in the disjunctive with respect to various statutory methods of committing the offense of failure to stop and render aid does not result in a violation of the constitutional requirement of a unanimous jury verdict. The various statutory methods for committing the offense do not create separate offenses. Failing to stop, failing to return, and failing to remain are merely alternative methods of committing the same offense. Huffman v. State - PD-1539-07.
The appellate court erred when it determined that evidence adduced at the appellant's trial was factually insufficient to support his conviction for capital murder under the law of parties. The jury could have convicted the appellant under TPC §7.02(a)(2) or §7.02(b) even though the erroneous charge only applied the law of parties under §702(a)(2). Vega v. State - PD-615-06.
Tthe court of appeals erred in reversing the trial court for admitting the child complainant's prior out-of-court statements to two outcry witnesses under Rule of Evidence 801(e)(1)(B) when the complainant gave conflicting trial testimony about her father's abuse. The rule allows a party to rehabilitate a witness who, on cross-examination, has been accused of recently fabricating or changing her testimony for some improper reason. Klein v. State - PD-502-06.
The defendant successfully preserved a Brady/Giglio claim when, although he did not explicitly raise it in a written motion for new trial, he did make the argument at a hearing on his motion. A claim that the trial court erred in denying a motion for new trial is preserved for appellate review if the nature of the ground allegedly warranting a new trial is raised and litigated, without objection, at some point during the motion-for-new-trial proceedings. Because the defendant only "enlarge[d]" his claim at the hearing and the State did not object, the trial court had authority to consider and rule on the defendant's Brady claim even though it was not explicitly set out in the original motion for new trial. Clarke v. State -PD-1454-07.
A criminal defendant may not subpoena the prosecutors who dismissed his previous indictment to provide testimony in the defendant's present effort to quash his re-indictment. Under the Texas Constitution, criminal defendants have the right to compulsory process for obtaining witnesses. However, the right is not absolute. Ortegon v.State - 07-07-0159-CR.
The municipal court was correct when it determined that it did not have jurisdiction over violations of a fine-only offense related to sexually oriented businesses. The ordinance contained an enforcement provision that directly conflicted with the enforcement provision of a state statute. The city's enforcement provision was preempted and therefore unenforceable under Local Government Code §243.010(b). State v. Chacon - 04-07-0069-CR.