Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of November 18, 2013

NOTE: Summaries are prepared by the court's staff attorneys and law clerks for public information only and reflect his or her interpretation alone of the facts and legal issues. The summaries are not part of the court's opinion in the case and should not be cited to, quoted, or relied upon as the opinion of the court.

Links to full text of opinions (PDF version) can be accessed by clicking the cause number.

Lewis v. State, Nos. 02-12-00088-CR , 02-12-00089-CR (Nov. 21, 2013) (Gardner, J., joined by McCoy and Meier, JJ.).

Held:  After the trial court revoked the appellant's deferred-adjudication probation and adjudicated his guilt for aggravated assault and burglary, the trial court's judgments improperly assessed fines that had not been pronounced in open court and assessed attorney fees without a finding that the indigent appellant could afford to pay them. A challenge to the ordered repayment of attorney fees incurred at the revocation hearing was properly before the court but the appellant forfeited his complaint as to repayment of attorney fees assessed at the time he was placed on deferred. The court of appeals extensively modified the judgments adjudicating guilt to delete fines and to reflect proper amounts owed as reparations. The court affirmed the judgments as modified.

McCain v. State, No. 02-13-00459-CR (Nov. 21, 2013) (Gabriel, J., joined by Livingston, C.J.; Dauphinot, J., concurs with opinion).

Concurrence:  Habeas relief is not available from the denial of postconviction DNA testing. The remedy available to a pro se inmate who has lost the right of appealing the denial of DNA testing through no fault of his own would be to file a subsequent motion for DNA testing.

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