Weekly Case Summaries: December 23, 2011

Fifth Circuit Court of Appeals

United States v. Moreland

No. 09-60516 : 12/14/11

Issue:

Is the evidence insufficient to support a jury finding that the defendant, rather another person, knowingly possessed the 100-plus child porn images found on the two computers?

Holding:

Yes, because (1) the shared computers were accessed by multiple household members and (2) the evidence is insufficient to demonstrate that the defendant had knowledge that the images were on the computers or that the defendant had the requisite knowledge and ability to access them and to exercise dominion or control over them.
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Dissent:

The majority simply substitutes their views with those of the jurors.

Commentary:

This case will be most important for federal prosecutors in child pornography cases. The defendant was prosecuted for child pornography images on a computer to which he had access, but which his deceased father had used much more often. If you are a state prosecutor of child pornography cases, you are (or should be) already aware of the investigative techniques and some of the law presented in this opinion. The search and seizure of modern technology is becoming more and more important to law enforcement in general, not just to specialized officers.

United States v. Ashley

No.10-50717 : 12/12/11

Issue:

Did the State improperly present evidence of the defendant's pre-arrest, pre-Miranda silence?

Holding:

While the circuit courts that have addressed the issue are split on whether such evidence is admissible (3 for versus 4 against permitting admission), the court need not decide the matter because other similar evidence rendered any error harmless.
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Commentary:

This is a significant issue and one that you should expect the Court of Criminal Appeals to resolve in the near future, as it has granted a petition for discretionary review on this issue in Salinas v. State, ___ S.W.3d ___, No. 14-09-395-CR (Tex. App.—Houston [14th Dist.], Mar. 17, 2011).

Texas Court of Appeals

State v. Rosseau – 4th COA

No. 04-10-00866-CR : 12/14/11

Issue:

Did the trial court improperly quash that portion of an indictment alleging PC §22.011(f) (bigamous conduct), which elevated sexual assault to a first degree felony?

Holding:

Yes. The appellate court had jurisdiction to decide the State's appeal because the trial court dismissed part of the indictment, and the dismissed allegation is an element—not an enhancement—of the first-degree offense. Further, the "as applied"—as opposed to a facial—constitutional challenge cannot be resolved in a pre-trial proceeding.
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Commentary:

This is a well-written and thorough decision, and it explains quite well why the State should be able to appeal a trial court's order that dismisses this type of "enhancement" allegation. The State has previously been prevented from appealing a trial judge's order dismissing paragraphs that allege prior convictions as an enhancement of the defendant's punishment. See State v. Richardson, ___ S.W.3d ___, No. 2-10-58-CR (Tex. App.—Fort Worth, Nov. 10, 2011). You should expect the Court of Criminal Appeals to review this issue in the near future, if not in these cases. 

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