Opinions Released April 6, 2017

In this weekly blog, the Law Offices of Brandy Wingate Voss, PLLC will summarize recent decisions from the Thirteenth Court of Appeals and provide links to decisions on the court’s website.

State v. Maldonado, No. 13-16-00317-CR (Opinion by Justice Longoria; Panel Members: Justices Contreras and Benavides)

In this appeal from a trial court’s order dismissing an indictment based on double jeopardy, the Thirteenth Court of Appeals addressed a matter of first impression: the relevant unit of prosecution for an offense under Texas Penal Code section 25.072.

Christopher Ray Maldonado was charged with a crime related to family violence in June 2015, and Maldonado’s bond conditions forbade him from contacting the victim or going near her residence. In August, the State indicted Maldonado for violating the terms of his bond 2 or more times in twelve months or less. Specifically, the indictment claimed that on or about July 7, 2015, Maldonado contacted the victim on the phone and in person on June 7, 2015.

After reading the indictment aloud to a sworn and empaneled jury, the State moved to amend the indictment to reflect the date of the violations as July 7, 2015. The State explained that the reference to June 7 was a mistake, but the trial court denied the amendment. The State then dismissed the indictment and re-indicted Maldonado under a different cause number. This time, the State included three alleged violations and charged Maldonado not only with contacting the victim by phone and in person, but also with going near her home. The new indictment inexplicably included two dates—July 7, 2015 and April 14, 2015—although all three incidents alleged occurred on July 7, 2015.

Maldonado filed for a writ of habeas corpus, claiming that the re-prosecution was a violation of his freedom from double jeopardy. The trial court agreed and dismissed the indictment. The State appealed.

Held: The State’s attempt to re-prosecute Maldonado was barred by double jeopardy because the relevant unit of prosecution applicable to Texas Penal Code section 25.072—on which the State relied—encompassed all of Maldonado’s 2 or more violations of the bond conditions in a period of 12 months or less. The trial court’s judgment was affirmed.

The Thirteenth Court began by reiterating the rule that the Fifth Amendment to the United States Constitution prohibits the State from prosecuting a defendant for a crime a second time if the trial court dismisses the indictment after jeopardy has attached. Jeopardy attaches when a jury is empaneled and sworn. Thus, the State acknowledged that it could not re-prosecute Maldonado for the crime alleged in the initial indictment. The State further acknowledged that the offenses in the two indictments relied on the same law: Texas Penal Code sections 25.07 and 25.072. However, the State argued that the facts underlying the second indictment were different and that it alleged a distinct offense by Maldonado. Essentially, the parties disagreed about the relevant unit of prosecution. Maldonado argued that the unit of prosecution encompassed all violations of 25.07 in 12 months or less, including those violations which were not but could have been included the State’s indictment.

The unit of prosecution for a given statute depends on what constitutes a distinguishable, discrete, separate violation of the statute at issue. This is a matter of statutory construction. The Thirteenth Court thus examined section 25.072(a) of the Texas Penal Code, which prohibits a person from (a) 2 or more times; (b) in 12 months or less; (c) violating section 25.07, i.e., violating a condition of a bond set in a family violence case and related to the safety of the victim. The court noted that a neighboring provision in section 25.072(d) prohibits the State from charging a defendant with multiple counts under 25.072(a)—whether in the same indictment or subsequent indictments—if all of the alleged violations are in defiance of the same court order. The Thirteenth Court thus agreed with Maldonado, holding that the relevant unit of prosecution for section 25.072 covered all violations of section 25.07 within 12 months or less in violation of the same court order.

Moreover, the Texas Court of Criminal Appeals came to a similar conclusion in Soliz v. State, 353 S.W.3d 850 (Tex. Crim. App. 2011), when it interpreted a parallel provision—Texas Penal Code section 21.02—regarding 2 or more instances of sexual assault in 30 or more days. The Fourteenth Court of Appeals relied on Soliz to interpret yet another parallel Penal Code provision—section 25.11—regarding 2 or more assault family violence offenses in a period of 12 months or less. In Ellison v. State, 425 S.W.3d 637 (Tex. App.—Houston [14th Dist.] 2014, no pet.), the Fourteenth Court held that, even if a defendant committed ten instances of assault family violence in 12 months or less, the State could charge him with only one unit of prosecution under section 25.11. These parallel interpretations from the Court of Criminal Appeals and the Fourteenth Court of Appeals further solidified the Thirteenth Court’s holding.

The Thirteenth Court then proceeded to determine how many units of prosecution were involved in Maldonado’s indictments. The State emphasized that the dates alleged in the indictments were different and did not overlap. The Thirteenth Court rejected this argument, noting that the record clearly revealed that the State intended to prosecute Maldonado for his July 7 violations in both instances. Although the State added a third violation to its second indictment, this alleged violation also occurred on July 7, 2015.

The Thirteenth Court thus held, as a matter of first impression, that Maldonado could not be re-prosecuted under the State’s second indictment because the allowable unit of prosecution for an offense under section 25.072(a) encompassed all violations of section 25.07 in 12 months or less violating the same court order. The court thus affirmed the trial court’s judgment.

Read the Full Opinion Here

American Surgical Assistants, Inc. v. Villegas, No. 13-16-00162-CV (Memorandum Opinion by Justice Longoria; Panel Members: Justices Contreras and Benavides)

In this direct appeal from a take-nothing judgment refusing to enforce a company’s non-compete covenants, the Thirteenth Court of Appeals dismissed the appeal as moot.

American Surgical Assistants sued five former employees to enforce non-compete covenants. Although the trial court initially granted American temporary restraining orders against the employees, the court then dissolved the TROs, refused to grant a temporary injunction, and—after a bench trial—entered a take-nothing judgment against American. American appealed. The employees responded by filing a motion to dismiss the appeal, claiming that the issue was moot because the covenants not to compete had expired since the trial court’s judgment was rendered.

Held: Since the covenants not to compete expired while the appeal was pending, the appeal was moot. The Thirteenth Court of Appeals dismissed the appeal for want of jurisdiction.

The Thirteenth Court first reiterated the rule that a case becomes moot—whether during trial or on appeal—if the justiciable controversy that initially existed later ceases due to subsequent events. Texas courts cannot rule on moot controversies, as such a ruling would constitute an advisory opinion which exceeds the jurisdiction granted under the Texas Constitution.

The Texas Supreme Court has held that issues regarding covenants not to compete become moot when the relevant covenants expire. In such a case, the proper remedy is to dismiss the case for want of jurisdiction. Thus, the Thirteenth Court held that the appeal was moot and dismissed the appeal for want of jurisdiction.

Read the Full Opinion Here