Weekly Case Summaries: December 4, 2015

Texas Courts of Appeals

State v. Cortez (7th COA)

No. 07-15-00196-CR        11/18/15

Issue:

Was driving on or near the white “fog line” of a highway enough for an officer to initiate a warrantless stop?

Holding:

No. The trial court did not abuse its discretion when it suppressed evidence of a traffic stop for driving on an improved shoulder (Transportation Code §545.058(a)). There was no evidence other than that the one of the vehicle’s tires may have touched the white line on the right side of the highway, and this is not enough to initiate a stop for driving on the shoulder. Read.

Commentary:

This decision appears to follow other similar decisions dealing with purported traffic violations for improperly driving upon an improved shoulder. Where it may leave you confused, however, is on page 10 where the court attempts to suggest that an improved shoulder is part of a highway. If that is the case, one wonders why we even need the traffic violation for driving on an improved shoulder. The bottom line of this decision is that, in order to constitute the traffic violation, a tire of the suspect’s vehicle must cross completely over the fog line onto the improved shoulder.

Holland v. State (11th COA)

No. 11-13-00361-CR        11/30/15

Issue:

If requested and there is evidence to support, is a defendant entitled to a jury instruction on defense of a third person for an unborn child? 

Holding:

Yes. The instruction regarding a pregnant mother does not necessarily include the unborn child; thus, a defendant is entitled to two separate instructions for defense of a third person, one for the mother and one for the child. Read.

Commentary:

This case involves an application of the so-called “multiple assailants” charge that is often given in self-defense cases where the defendant claims that he was challenged or attacked, not just by the victim, but also by other individuals acting with the victim.  In this case, the defendant believed two assailants were attacking a pregnant woman and her unborn baby. Even though the mother and unborn child that the defendant allegedly sought to protect were kicked by the female assailant, the defendant attacked the male assailant with a knife, resulting in this charge of aggravated assault with a deadly weapon.

Horhn v. State (1st COA)

No. 01-14-00738-CR, 01-14-00739-CR       11/19/15

Issue:

Is Penal Code §32.51 facially unconstitutional?

Holding:

No. Penal Code §32.51 is not unconstitutionally overbroad because it does not implicate the First Amendment. The conduct at issue is the possession, transfer, or use of identifying information, conduct that is essentially noncommunicative; thus, the statute does not affect constitutionally protected conduct. Read.

Commentary:

This is yet another attempt to capitalize upon the success other defendants have had in challenging the constitutionality of statutes under the First Amendment. This one clearly fails because, by no stretch of the imagination, does the offense of fraudulent use of identifying information involve expression. This decision should be very helpful if a defendant seeks to raise such a First Amendment challenge.

Ex parte Lovings (14th COA)

No. 14-15-00425-CR        11/24/15

Issue:

Does Code of Criminal Procedure Art. 12.01(1)(C)(i) require an investigation to be active or require any “reasonable diligence” on the State’s part?

Holding:

No. CCP Art. 12.01(1)(C)(i) extends the statute of limitations when DNA is collected in a sexual assault case. There is no requirement that the “investigation” referenced in the statute is required to be “open,” “active,” or “ongoing” for this extension to apply. Additionally, “ascertained” in the statute does not mean “ascertainable,” and there is no diligence requirement on the part of the State in seeking out a DNA match. Read.

Commentary:

This should be a very helpful decision for sexual assault cases in which DNA evidence was collected but no suspect was identified from the evidence. If the previous statute of limitations that applied to a sexual assault case had not expired by the time of this “no limitation” provision—2001—then prosecutors can utilize this new “no limitation” provision to prosecute a sexual assault case. The court uses very good statutory construction to reject any defense argument that there must be some diligence on the State’s part before a prosecutor may take advantage of this provision.

Ritz v. State (3rd COA)

No. 03-14-00304-CR        11/24/15

Issue:

Can a defendant be found guilty of continuous trafficking of persons when he drove a minor to his home to have a sexual relationship with her?

Holding:

Yes. While this is not ordinarily considered “human trafficking,” under the language of the statute and when viewed in the light most favorable to the verdict, the defendant’s driving an underage girl to his home multiple times for the purpose of engaging in sexual relations with her does meet the statutory requirements for the continuous trafficking of persons. As this is not necessarily an absurd result or one that the legislature did not intend, the verdict should be upheld. Read.

Commentary:

While it is true that the Legislature almost certainly did not envision this defendant’s conduct when it enacted the human trafficking provisions, this defendant’s conduct does fall within the broad statutory language. It will be interesting to see if the Court of Criminal Appeals will review this decision to give statewide impact to this ruling.

Thomas v. State (11th COA)

No. 11-13-00332-CR        11/30/15

Issue:

Did an officer need a warrant to search the defendant’s expelled bodily fluids at the hospital?

Holding:

No. The defendant was unable to show a subjective expectation of privacy in his expelled fluids; thus, the officer’s search of them was not subject to the Fourth Amendment. The defendant consented to medical treatment that resulted in the expulsion of bodily fluids and made no effort to conceal them from hospital personnel; therefore, they were also not protected from police use under the Fourth Amendment. Read.

Commentary:

Do not read this decision before getting ready to eat. Better yet, just take my word for it. A defendant does not have a reasonable expectation of privacy in expelled bodily fluids, as long as the expelling is the product of voluntary medical treatment (in this case, treatment for a drug overdose after the defendant intentionally swallowed the illegal narcotics).  And feel very sorry for the nurse who had to sift through the defendant’s fluids to find the illegal narcotics.

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