Weekly Case Summaries: November 13, 2015

Texas Courts of Appeals

Collins v. State (11th COA)

No. 11-14-00312-CR        11/5/15

Issue:

Is Penal Code §21.12(a)(3) unconstitutionally broad insofar as it incorporates §33.021(c)?

Holding (per curiam):

No. §21.12(a)(3) is unconstitutionally broad when it incorporates §33.021(b), which has been previously found unconstitutionally broad; however, §33.021(c) regulates the conduct of soliciting a student, rather than the speech that is used. Thus is it not arbitrary or overbroad. Read.

Commentary:

A straightforward application of Ex parte Lo to a statute that incorporated the version of the statute partially invalidated by that case. Unfortunately for this defendant, one of the acts charged was sufficient to meet the part of the statute untouched by Lo, so she obtains only partial relief.

Ex parte Flores (14th COA)

No. 14-14-00663-CR        11/10/15

Issue:

Is the offense of unlawfully carrying a handgun while a member of a criminal street gang, Penal Code §§46.02(a-1)(2)(C) and 71.01(d), unconstitutional?

Holding:

No. Penal Code §46.02(a-1)(2)(C) is subject to intermediate scrutiny only because neither the content of the identifying signs nor the freedom of association is directly implicated by the statute. Additionally, the statute is neither overbroad nor vague. Read.

Commentary:

There have been many First Amendment challenges to criminal statutes in the last few years, and this one goes the State’s way. This decision will be useful in defendants’ challenges to other gang-related statutes such as engaging in organized criminal activity.

Hall v. State (10th COA)

No. 10-14-00205-CR        10/29/15

Issue:

At the time of a revocation hearing, does the State have any burden to prove how much of a fine the defendant has or has not paid?

Holding:

No. Failure to pay a fine was not a reason for revocation, so the State had no burden to present evidence on how much of the fine had been paid. To avoid reforming the judgment, the Court should impose the original amount of the fine. Any previous payments are an accounting issue to be considered by the county clerk and should not be “adjustments” to the fine at the time of revocation. Read.

Commentary:

Decisions like this may be uninteresting to most prosecutors, but disputes over paperwork related to probations, revocations, and adjudications can drive our judges, clerks, and defendants crazy. There are 254 counties in Texas, and probably 254 variations on how these papers are handled. Reasonable minds could differ whether the revocation judgment should show the balance of the fine or the original fine. Chief Justice Gray sets out the reasons why he believes the latter is a sound method.

McClintock v. State (1st COA)

No. 01-11-00572-CR        11/5/15

Issue:

Does the federal good-faith exception to the exclusionary rule apply to the Texas exclusionary rule and procedures?

Holding:

No. The federal exclusionary rule was judicially created while the Texas rule was enacted by the Legislature, and as such, the Texas rule is more protective for defendants. Existing precedent holds that illegally obtained evidence cannot be used as probable cause for a warrant. Read.

Dissent (Keyes, J.):

Judge Keyes disagreed with the majority and would rule in accordance with Davis v. United States; that a ruling that a search is illegal should not apply retroactively to render evidence inadmissible when it was obtained in good faith according to precedent at the time. Read.

Commentary:

Keep an eye on this case. The warrant was based in part on a dog sniff that was improper under Florida v. Jardines. The Court of Criminal Appeals remanded this case to the court of appeals to consider the State’s “good faith” argument. Texas has a much narrower “good faith” rule codified in Art. 38.23(b). The court of appeals declines to apply the broader federal “good faith” rule in the face of Texas’s narrower statute. This case presents an excellent factual basis to show why the Texas statute is too narrow—assuming the Court of Criminal Appeals affirms, the Legislature should be receptive to legislation that ensures that criminal cases are not impaired due to officers complying with law that later changes.

Williams v. State (14th COA)

No. 14-14-00700-CR        10/29/15

Issue:

Is evidence that the defendant possessed a trace amount of a controlled substance, a quantity so small it could not be seen, weighed, or measured, sufficient to show he knowingly possessed the substance?

Holding:

No. When the quantity of a controlled substance is so small that it cannot be measured, there must be additional evidence to show the defendant knowingly possessed the substance. Visible residue, signs of intoxication, or recent use of the substance are all methods by which the State can show knowing possession, but none were presented here. Read.

Commentary:

A rare appellate reversal on the sufficiency of the evidence. Arguably, the defendant’s state of semi-undress and physical symptoms were consistent with the consumption of the controlled substance detected by the lab in the crack pipe. Prosecutors trying these cases need to make sure they explicity present such evidence. Police could shore up such a case via a DRE examination or opinion testimony.

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