Fifth Circuit Court of Appeals
No. 13-5075 4/6/15
When a DPS officer pulled over the defendant for failing to signal a turn within 100 feet, but expert testimony determined the defendant had actually signaled his turn 200 feet in advance, was the officer’s mistake of fact and his mistake of law that a lane-change also required 100 feet advance signaling sufficient to preserve the stop and the drug evidence seized as a result?
No. The officer’s mistake of law was not reasonable because a lane change has no 100 foot requirement, and his mistake of fact was not reasonable. Read the opinion.
Expect to see this decision cited by the defense on a regular basis, especially in cases where a video supports the defendant’s version of the events. The trial court found that the defense expert lacked credibility, but the court of appeals found that the video showed that the expert witness was correct and the trial judge erred in finding that the defense expert lacked credibility. Videos are going to start showing up more and more often in our cases, and we need to be ready to explain what they do and do not show.
Texas Courts of Appeals
No. 04-13-00891-CR 4/8/15
When an officer testified that it would have been impossible for him to obtain a warrant in the middle of the night because there were no procedures in place for doing so, did that fact constitute “exigent circumstances” and justify a warrantless blood draw?
No. The fact that normal operating procedure does not involve seeking a warrant is not an exigent circumstance, especially when an officer did not even try to obtain a warrant. Read the opinion.
Would it were that easy to establish exigent circumstances. These warrantless blood draw cases continue to get issued by the courts of appeals, and all have been decided pretty much the same way. We are all waiting to see how the newly constituted Court of Criminal Appeals will handle this issue.
No. 09-14-00472-CR 4/1/15
Was the State required to specify in its indictment for online solicitation of a minor the manner by which it intended to prove whether the “minor” was a person younger than 17 or a person the defendant believed to be younger than 17?
No. When a term is defined in a statute it need not be defined in the indictment. It is an evidentiary matter and a charging instrument does not need to allege evidentiary facts. Read the opinion.
In this case, the State argued (correctly) that the trial court did not have the authority to change its mind after it had granted the defendant's motion to quash. The State's only recourse was then to refile or take this State’s appeal. The definition of “minor” is a potential sticking point in these cases because often the “minor” is in fact an undercover police officer. Thankfully, prosecutors will not have to allege how the “minor” was in fact a “minor.” And by the way, this was a prosecution under §33.021(c) of the Penal Code, which has not been declared unconstitutional and is still in full force and effect.