Snippets
Co-Editor Judge Carey Walker, County Criminal Court No. 2
Civil and Criminal
by Judge Bob McCoy
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County Criminal Court No. 3
ASK JUDGE BOB
Judge Bob, can the prevailing party be awarded attorney’s fees in a trespass-to-try-title claims? No. Trespass-to-try-title claims are exclusively governed by statute, and that statutory scheme does not generally include a provision for the award of attorney’s fees. Eggemeyer v. Huges, 621 S.W.3d 883, 893 (Tex.App.—El Paso 2021.
ASK JUDGE BOB, MOSES, AND NOAH
Judge Bob, Moses, and Noah, now that the legislature has adjourned from its regular session, are there any laws involving animals that are noteworthy? Yes. SB 48, an animal possession ban bill, amends current law relating to conditions of community supervision for defendants convicted of certain animal cruelty crimes. The law will give judges the discretion to prevent persons from possessing an animal if they are sentenced to community supervision for attacking an assistance animal, cruelty to non-livestock animals, dog fighting, or cockfighting. The law also permits judges to require psychological counseling as a condition of such sentences.
MOSES’ AND NOAH’S MONTHLY PARAPROSDAKIAN Moses
(a figure of speech in which the latter part of a sentence or phrase is surprising or unexpected; frequently humorous) Laughter is the best medicine, if you don’t have insurance.
DANES’ QUOTE OF THE MONTH Noah
Don’t accept your dog’s admiration as conclusive evidence that you are wonderful. —Ann Landers
CRIMINAL ITEMS OF INTEREST 1. Rule of Optional Completeness
Admission of evidence under the rule of optional completeness is “not invoked by the mere reference to a document, 24 www.tarrantbar.org JANUARY–MARCH 2022
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statement, or act.” Rather, for evidence to be admissible under this rule, “the omitted portion of the statement must be ‘on the same subject’ and must be ‘necessary to make it fully understood.’” Prince v. State, 574 S.W.3d 561 (Tex.App.—Houston [1st Dist.] 2019).
2. Assault of Public Servant
Assault of a public servant requires proof of misdemeanor assault and that (1) the complainant was a public servant; (2) the actor knew that the complainant was a public servant; (3) the complainant was discharging an official duty when he was assaulted; and (4) the official duty was being discharged lawfully. Cuevas v. State, 576 S.W.3d 398 (Tex.Crim.App. 2019).
3. Excited Utterance
For the excited utterance hearsay exception to apply, three requirements must be shown: (1) the statement must be the product of a startling occurrence that produces a state of nervous excitement in the declarant and renders the utterance spontaneous, (2) the state of excitement must still so dominate the declarant’s mind that there is no time or opportunity to contrive or misrepresent, and (3) the statement must relate to the circumstances of the occurrence preceding it. Villanueva v. State, 576 S.W.3d 400 (Tex.App.—Houston [1st Dist.] 2019).
4. Plain-view Doctrine
“In certain circumstances a warrantless seizure by police of an item that comes within plain view during their lawful presence in a private area may be reasonable under the Fourth Amendment.” “For a plain-view seizure to be lawful, the officer must have had lawful authority to be in the location from which he viewed the item, and the incriminating nature of the item must be immediately apparent.” Tilghman v. State, 576 S.W.3d 449 (Tex.App.—Austin 2019).
5. Jury Charge
When a defendant does not object to an erroneous charge, reversal is required only if the error results in egregious harm. Egregious harm is established when the erroneous jury instructions affected “the very basis of the case,” “deprived the defendant of a valuable right,” or “vitally affected a defensive theory.” The analysis takes into account four factors: (1) the entire jury charge; (2) the state of the evidence, including contested issues and the weight of the probative evidence; (3)
