Snippets
Co-Editor Judge Carey Walker, County Criminal Court No. 2
Civil and Criminal
by Judge Bob McCoy g County Criminal Court No. 3
ASK JUDGE BOB
Judge Bob, if I prove breach of contract, do I also have to prove damages in order to be eligible for attorney’s fees? Yes. “To recover fees under section 38.001, (1) a party must prevail on a cause of action for which attorney’s fees are recoverable, and (2) recover damages.” Boucher v. Thacker, 609 S.W.3d 206, 217 (Tex. App.—Texarkana 2020).
MOSES’ AND NOAH’S MONTHLY PARAPROSDAKIAN
(a figure of speech in which the latter part of a sentence or phrase is surprising or unexpected; frequently humorous)
Moses
Noah
The difference between fiction and reality is that fiction has to make sense.
DANES’ QUOTE OF THE MONTH
The dog has seldom been successful in pulling man up to its level of sagacity, but man has frequently dragged the dog down to his. —James Thurber
CRIMINAL ITEMS OF INTEREST 1. Bail
The primary purpose of setting bail, both pretrial and postappeal, “is to secure the presence of the accused.” Foreman v. State, 565 S.W.3d 371 (Tex. App.—Houston [14th Dist.] 2018).
2. Jury Argument
The purpose of closing argument is to facilitate the jury in properly analyzing the evidence presented at trial so that it may “arrive at a just and reasonable conclusion based on the evidence alone, and not on any fact not admitted in evidence.” Proper jury argument generally falls within one of four areas: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to an argument of opposing counsel, and (4) plea for law enforcement. Milton v. State, 572 S.W.3d 234 (Tex. Crim. App. 2019).
3. Jury Selection
To preserve a complaint about the trial court’s denial of 14 www.tarrantbar.org OCTOBER 2021
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a challenge for cause, a party must show that he: (1) used all of his peremptory strikes; (2) asked for and was refused additional peremptory strikes; and (3) was then forced to take an identified, objectionable juror whom the party would not have otherwise accepted had the trial court granted his challenge for cause (or had the trial court granted him an additional peremptory challenge to strike the juror). Harris v. State, 572 S.W.3d 325 (Tex. App.—Austin 2019).
4. Victim Impact Evidence
When considering the admissibility of victim-impact evidence, the trial court must consider these factors: “(1) how probative is the evidence; (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent’s need for the evidence.” Gilbert v. State, 575 S.W.3d 848 (Tex. App.—Texarkana 2019).
5. Confrontation Clause
The right to confrontation under the Sixth Amendment does not apply during revocation proceedings. By its own terms, the Confrontation Clause applies only to criminal prosecutions, and a probation revocation, whether it follows “regular” probation or deferred adjudication probation, is not a stage of criminal prosecutions. Olabode v. State, 575 S.W.3d 878 (Tex. App.—Dallas 2019).
6. Expert Witness
Qualifying a witness as an expert normally implicates a twostep procedure. First, it must be shown that the witness has a sufficient background in a particular field, which background encompasses the matter on which the witness is to give an opinion. The second step gauges the relationship between the subject matter at issue and the expert’s familiarity with it; that is, it must be shown that the expert’s background is “tailored to the specific area of expertise in which the expert desires to testify.” Carter v. State, 575 S.W.3d 892 (Tex. App.—Amarillo 2019).
7. Extraneous Offenses
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Webb v. State, 575 S.W.3d 905 (Tex. App.—Waco 2019).
