Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:While traveling on a rain-slicked road during early morning hours in Tarrant County, Lonnie Lee Garrett came upon an accident scene, where police and firefighters were placing flares and cones on the road. Garrett was not traveling over the speed limit, but he was traveling much faster than other drivers who had come upon the accident scene. Garrett’s car slammed into the cones and hit a firefighter, who was wearing a reflective vest with “Arlington Fire Rescue” embossed on it. The firefighter suffered a broken leg, torn tendons, and knee and head injuries. Garrett failed field sobriety tests at the scene but passed the tests when administered to him an hour later. He refused to take a breath-alcohol test. Although charged with other and greater offenses, a petit jury convicted Garrett of aggravated assault of a public servant causing serious bodily injury. On appeal, Garrett argued that an unobjected-to error in the jury charge violated both federal and state law. Before issuing an opinion, the 2nd Court of Appeals issued two orders requesting supplemental briefing regarding the sufficiency of the evidence to convict, focusing on what evidence would demonstrate that Garrett committed the offense with a reckless mental state. The parties submitted supplemental briefs as requested, but the 2nd Court did not address the factual sufficiency of the evidence in its written opinion. Garrett complained to the CCA that the 2nd Court was required to do so. Garrett also complained that the 2nd Court did not adequately address why the federal due process error in the charge was harmless. HOLDING:Affirmed. Rule 47.1 of the Texas Rules of Appellate Procedure, the court stated, requires that an appellate court hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal. In addition, Rule 38.1 requires that an appellant designate all issues for review in the original brief. Indeed, Rule 38.1 allows an appellant to present whatever issues for review he or she desires, with very few limitations. Thus, an appellant is the master of his or her own destiny with respect to what issues the court of appeals is required to address within its written opinion. The CCA stated that because Garrett failed to raise the issue of evidentiary sufficiency in his original brief and the 2nd Court did not explicitly grant the supplemental issue for review when it requested supplemental briefing, the 2nd Court, pursuant to Rule 47.1, was not required to address the issue concerning factual sufficiency of the evidence in its written opinion. Nonetheless, the CCA found that the charge contained an unconstitutional mandatory presumption in its instruction to the jury that an “actor is presumed to have known the person assaulted was a public servant if the person was wearing a distinctive uniform or badge indicating the person’s employment as a public servant.” Such presumptions, the CCA stated, are unconstitutional because they relieve the state of the burden of proving every element of an offense beyond a reasonable doubt. Nonetheless, after reviewing the evidence the CCA held that the error in the charge did not cause Garrett egregious harm or play any role in the jury’s verdict. OPINION:Holcomb, J., delivered the opinion of the court, in which Keller, P.J., and Meyers, Price, Womack, Keasler, Hervey and Cochran, J.J, joined. CONCURRENCE:Johnson, J., concurred.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.