Today's Opinions - 1/27/10

Today, the CCA handed down a few unpublished opinions and a few published ones in the following cases:

PD-0197-09, Sam Wesley Dudley v. State: The CCA remanded this case for reconsideration in light of Murray v. State and Evans v. State. The State had tried the defendant for aggravated sexual assault, but ended up requesting a lesser-included of indecency with a child to which Dudley plead no contest. The two cases held that the Hall test for lesser-included offense instructions applies, but that indecency with a child may be a lesser-included offense of aggravated sexual assault of a child. Here's a link to the court of appeals case information. Here's a link to the court of appeals opinion.

PD-0737-09, Anthony Wasylina v. State: Here, the State tried Wasylina for manslaughter, but requested an instruction on the lesser-included offense of criminally negligent homicide. The court of appeals held there was no evidence to negate the greater offense, so the instruction should not have been submitted. The CCA remanded the case for reconsideration in light of Grey v. State, which holds a trial court can instruct the jury on a lesser-included offense requested by the State even though there's no evidence to negate the greater offense. Here's a link to the court of appeals case information. Here's a link to the published court of appeals opinion.

PD-1494-08, Melanie Denise McFatridge v. State: The CCA held that the trial court did not abuse its discretion in finding that the defendant could afford to pay for the record rather than get a free one. The trial court's rejection of the indigence claim was founded in the record, even though McFatridge failed to present additional evidence of indigence on appeal (such as a child-support lien on a second property). The CCA held that the appeal was not the place for this new evidence and upheld the trial court's decision. Judge Meyers concurred to note that indigency is a question of law and should not be evaluated under an abuse of discretion standard. Judge Cochran dissented without an opinion. Here's a link to the court of appeals case information. Here's a link to the court of appeals order.

PD-0261-09, Delvetra Lasherl Jennings v. State: The CCA held that a defendant's failure to object to the lack of a verdict form for a lesser-included offense does not waive error because an included verdict form is part of the jury charge subject to an Almanza harm analysis. Presiding Judge Keller dissented noting that the issue was not clear-cut as the majority made it sound because the precedent cases came out at a time when jurors were responsible for their own verdict forms. Here's a link to the court of appeals case information. Here's a link to the published court of appeals opinion.