Weekly Case Summaries: September 4, 2015

Texas Courts of Appeals

Aviles-Barroso v. State (14th COA)

No. 14-14-01-00142-CR  8/27/15

Issue:

Was the pretrial identification in this case—a voice identification—impermissibly suggestive?

Holding:

No. The court held the voice identification to the same standards as are used in a photo ID. After considering all the reliability factors, the court decided that even the 20-year time lapse between the crime and the voice identification was not “sufficient to demonstrate the substantial likelihood of irreparable misidentification.” Read opinion.

Concurrence (Frost, C.J.):

Chief Judge Frost concurred, acknowledging that while the Biggers’ reliability factors support the reliability of the identification in this case, it is possible that the factors themselves should be reconsidered in light of new scientific evidence. Read.

Commentary:

This is a fascinating opinion. A victim identifies the defendant’s voice from a recording 20 years after her child was kidnapped and murdered (and she was sexually assaulted). The opinion indicates the issue was thoroughly litigated in the trial court through the testimony of multiple expert witnesses. The opinion also shows the value of corroborative police work—the historical identification tied the defendant to his codefendants, as did an admission when the investigators finally caught up with him. Read the opinion to see how dogged police work and a compelling witness led to justice.

Mitchell v. State (8th COA)

No. 08-13-00241-CR        8-31-15

Issue:

Did the Legislature eliminate the ability to prosecute and convict a sexually violent criminal, subject to civil commitment under Chapter 841 of the Health and Safety Code, for failure to participate in and comply with a civil treatment program?

Holding:

Yes. In enacting the 2015 amendment to §841.085, the Legislature used “clear and unambiguous” language to the effect that a violation of the treatment program requirements found in §841.082(3) of the Code, as it was renumbered by the 2015 Act, is no longer a criminal offense. The court also found that because the defendant’s case was not “final” due to a pending appeal, the legislative changes should apply retroactively to his case, resulting in a dismissal of the indictment. Read opinion.

Commentary:

A thorough discussion of a legislative change to civil commitment of sexual predators that amounts to a win for this defendant. The Court’s conclusion that violating the civil commitment treatment plan is no longer a crime is consistent with the view expressed in the 2015-2017 Legislative Update by Shannon Edmonds (TDCAA 2015).

Benson v. State (3rd COA)

No. 03-15-00121-CR        8/31/15

Issue:

Does Code of Criminal Procedure art. 22.13(a)(5), read in conjunction with art. 22.13(b), require the principal be returned to the county of prosecution for the defendant and surety to be exonerated from liability upon the forfeited bond?

Holding:

No. The court found in the plain language of the statute that the requirements of subsection (b) are not elements under art. 22.13(a). Rather than adding a requirement to exoneration under art. 22.13(a)(5), art. 22.13(b) assumes that exoneration has already occurred but adds these amounts as further obligations of the surety. Read opinion.

Commentary:

Those hulking, chain smoking shapes shuffling about in the darkness near the courthouse are the bondsmen dancing in the streets over this opinion.

Lebo v. State (4th COA)

No. 04-14-00383-CR        8/26/15

Issue:

Is Penal Code sec. 42.07(a)(7), outlawing harassment by electronic communications, unconstitutional on its face?

Holding:

No. The court found the statute did not prohibit a substantial amount of free speech and applied the same ruling from Scott v. State, 332 S.W.3d 662 (Tex. Crim. App. 2010), which upheld the telephone harassment portion of 42.07. Read opinion.

Commentary:

A seemingly rare opinion upholding a Texas statute against a First Amendment challenge. Let’s hope for the sake of detectives everywhere that this decision holds up.

Meiburg  v. State (1st COA)

No. 01-14-00197-CR        8/27/15

Issue:

Was the detaining officer allowed to search the defendant prior to arrest if he did not have a warrant for arrest or actually arrest defendant at that time?

Holding:

Yes. When an officer has probable cause to believe a felony was committed and he does not have sufficient time to procure a warrant for arrest because the suspect may escape, he may pursue and arrest the suspect. Additionally, it does not matter if a search incident to arrest took place before or after the arrest, so long as there was probable cause to support an arrest at the time of the search. Read opinion.

Commentary:

This is a good example of the flexibility of constitutional criminal procedure and the rigidity of the Legislature’s attempts to codify criminal procedure. Luckily, the court is able to reconcile a common-sense warrantless arrest and search incident to arrest with the somewhat unhelpful language of Article 14.04.

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to Ashley.Martin@tdcaa.com.