Weekly Case Summaries: August 19, 2016

Texas Courts of Appeals

Siller v. State (11th COA)

No. 11-15-00016-CR        8/11/16

Issue:

Must all evidence seized in a search warrant alleging the defendant has committed the offense of improper photography or visual recordings under former Penal Code §21.15(b)(1) be suppressed because that portion of the statute was found unconstitutional?

Holding:

Yes. Methamphetamine seized during a search for evidence of improper photography must be suppressed because “criminal statutes declared unconstitutional are void ab initio,” and there was no probable cause supporting the search warrant because the Penal Code section upon which it was based was later declared to be unconstitutional. Read opinion

Commentary: 

The holding in this case would have been different if the federal exclusionary rule applied, but the court makes clear that it is relying upon now-longstanding interpretation of the exclusionary rule under Texas state law. This is a thorough and well-reasoned decision. Even so, the Court of Criminal Appeals may still want to review the decision because of its importance.

State v. Keller (5th COA) (not for publication)

No. 05-15-00909-CR        8/11/16

Issue:

Does the Fourth Amendment prohibit a warrantless blood draw taken while the defendant was in a medically induced coma following a crash that she caused?

Holding:

No. In this case, a warrantless blood draw was justified by exigent circumstances, including: (1) the severity of the crash; (2) a shortage of available officers, leaving the on-scene officer, who was unfamiliar with DWI investigation and obtaining warrants, to process the scene alone; (3) the officer saw cell phone video depicting the defendant’s erratic driving before the crash, suggesting she was impaired by drugs or alcohol; (4) the unknown dissipation rate of the intoxicating substance in the defendant’s blood; (5) the possibility that any medication administered at the hospital could affect a blood sample; and (6) the fact that the defendant was in a medically induced coma made her unable to talk with officers. Read opinion

Commentary: 

The court of appeals relied heavily upon the recent decision of the Court of Criminal Appeals in Cole v. State, in which the court held that there were sufficient exigent circumstances to support a warrantless blood draw. And this decision appears to be an excellent and faithful application of Cole. However, this decision is not published. One hopes that it will gain greater precedential value, even if just for the fact that it would give the bench and bar better guidance as to what types of facts courts are looking for to find exigent circumstances in such cases.

Cox v. State (1st COA)

Nos. 01-15-220-CR through -222-CR         8/11/16

Issue:

Did the trial court improperly allow admission of 2,000 images and videos of child pornography in a case charging aggravated sexual assault of a child, failure to comply with sex offender registration requirements, and attempted solicitation of sexual performance by a child?

Holding:

No. Unlike in Pawlak v. State, 420 S.W.3d 807 (Tex. Crim. App. 2013), in which the judge allowed 10,000 images of pornography to rebut a tangential claim that the defendant was not interested in men or boys, in this case, the State was allowed to rebut the primary defense that the defendant was only joking when he sent texts to a 13-year-old girl asking her to send nude photos of herself. The Court also noted that the prosecution displayed only a few thumbnail images of the photos for the jury but did not show all of the images and did not play any of the videos. Read opinion

Concurrence (Keyes, J.):

“In my view, this is not a close case. The majority opinion is incorrect and misleading in suggesting that the more child pornography a defendant charged with sex crimes against minors has in his possession, the more ‘irrational’ and ‘unfairly prejudicial’ the effect of this evidence is to show his intent to engage in sexual activity with children and to solicit pornographic images from children—no matter what the crime with which he is charged, the facts of the case, the age of the victim, or the defenses offered by the defendant.” Read opinion

Commentary: 

If you feel it necessary to introduce a great wealth of photographic or video evidence against a defendant as extraneous offenses in a child sex abuse case, read both this decision and Pawlak and determine whether the facts of your case (as well as the defendant’s defense) fit more closely to one case or the other. But do not stop there. You must also read Justice Keyes’ concurring opinion because  she tells you how to properly argue the admissibility of that evidence. Always be cautious and incredibly prepared if you wish to introduce this much evidence by way of extraneous conduct on the part of the defendant. But Article 38.37 of the Code of Criminal Procedure does give you greater leeway to do so.

Patterson v. State (1st COA)

No. 01-15-167-CR             8/16/16

Issue:

Does the doctrine of in pari materia (which gives defendants a due process right to be prosecuted under a narrower, more specific statute) apply to the murder and organized crime statutes?

Holding:

No. Murder and organized crime statutes are not in pari materia. Even though the defendant’s trial for murder included some evidence that he was part of a gang, he was not entitled to be charged under §71.02 for engaging in organized crime rather than §19.02. Both statutes might apply to the same conduct in some situations, but this does not mean that the two statutes irreconcilably conflict. Read opinion

Commentary: 

This is a straightforward application of the in pari materia doctrine. As a practical matter, one wonders why the defendant sought to be prosecuted for engaging in organized criminal activity in the first place. He almost certainly would have received the same 50 years in prison that he got in this case.

Bonds v. State (14th COA)

No. 14-15-00688-CR        8/16/16

Issue:

Must a defendant be provided with a written bill of court costs under Code of Criminal Procedure Article 103.001?

Holding:

Yes, but the statute does not specify a particular way in which the information must be provided. The word “provide” means that “one must have that thing supplied to him or at least made available to him.” Because the defendant stated in his appellate brief that he had seen “a written bill containing the items of cost,” the State was not obligated to provide him a separate written bill containing court costs. Read opinion

Commentary:

This decision could be helpful because it construes a relatively recent amendment to Article 103.001 of the Code of Criminal Procedure. The defendant claimed that he had not been “provided” with a bill of cost, but because he complained about the document on appeal, he certainly learned about it somehow.

Attorney General Opinions

No. KP-0110       8/15/16

Issue:

Does Water Code §49.052 disqualify an employee of a county attorney’s office from serving as a member of the board of a water control and improvement district in the same county, when the county attorney also provides professional legal services to the water district?

Opinion:

Yes. A court would likely construe §49.052(a)(2) as disqualifying the employee of the county attorney’s office from serving under these circumstances. Read opinion

Commentary: 

This seems to be a pretty clear application of the statute, and the opinion is short and to the point.

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