Weekly Case Summaries: September 6, 2013

Texas Courts of Appeals

Taylor v. State

No. 07-12-00415-CR        8/28/13

Issue:

In light of United States v. Jones, 132 S.Ct. 945 (2012), should the trial court have granted a motion to suppress information gathered from the attachment of a GPS tracking device to the defendant’s vehicle pursuant to a court order based on reasonable suspicion, not probable cause?

Holding:

No. At the time the GPS device was installed, officers reasonably relied on federal precedent from a majority of circuits, including the 5th Circuit, and complied with the requirements of CCP art. 18.21, §14.
Read opinion

Commentary:

Be careful about over-reliance on this case. The court of appeals did not specifically identify the nature of the defendant’s arguments regarding suppression. The good faith exception in Article 38.23 is predicated upon the existence of a warrant based on probable cause—this is narrower than the federal good faith exception relied upon by the court of appeals.

Shah v. State

No. 01-11-00865-CR        8/29/13

Issue:

For purposes of the continuous family violence statute, was the defendant living with the victim as a member of a household despite the fact the defendant did not have a legal right to be there?

Holding:

Yes. What it means to “live together” is not defined in the Penal Code, so ordinary meanings apply. Nothing in the statute requires a legal right for the defendant to be in the home. Although the defendant was not named in the victim’s lease and did not have a key to the home at all times, evidence shows he left his belongings there and stayed there continuously for six months.
Read opinion

Commentary:

The opinion recounts an interesting set of facts—the defendant just “moved in” and started acting like a bad boyfriend even though it seems a romantic or dating relationship never got off the ground. “Living together” used to mean so much more.

Agbogwe v. State

Nos. 01-12-00207 & 00208        8/29/13

Issue:

Can the trial court enter a family violence finding regarding a victim who is not a member of the defendant’s family or household under a “same criminal transaction” or transferred intent theory?

Holding:

No. The defendant assaulted two women, one who was a family member and one who was not but was attempting to intervene. Each assault was a separate and distinct offense and subjected the defendant to separate punishments.
Read opinion

Commentary:

The State made some interesting arguments in support of the trial court’s finding. “A” for effort.

Ex parte Thompson

No. 04-13-00127-CR        8/30/13

Issue:

Is PC §21.15(b)(1), which prohibits the recording, broadcasting, or transmitting of visual images of another in a location that is not a bathroom or private dressing room without the other person’s consent and with intent to arouse or gratify the sexual desire of any person, facially unconstitutional?

Holding:

Yes. The statute unconstitutionally regulates a person’s rights to photograph and to have certain thoughts. Unlike similar statutes that have been upheld, it does not require intent to invade another’s personal privacy, and it impermissibly reaches a substantial amount of lawful, protected expressive conduct.
Read opinion

Commentary: 

Is taking a photograph speech, or is the photograph itself speech? Expect this case to go up because a number of states enacted statutes in response to problems with “upskirt” photography a decade ago and Texas courts of appeals have split on the issue. In the meantime, ladies, get your pantsuits on!

Texas Attorney General

Request from Representative Harold Dutton

No. RQ-1148-GA        8/27/13

Issue:

Are justice courts authorized to charge a fee for filing an application for an occupational license under newly enacted HB 438?
Read request

TDCAA is pleased to offer our members unique case summaries from the U.S. Supreme Court, the 5th Circuit Court of Appeals, the Texas Court of Criminal Appeals, 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 information contained in this email message may be privileged, confidential, and protected from disclosure. Any unauthorized use, printing, copying, disclosure, dissemination of or reliance upon this communication by persons other than the intended recipient may be subject to legal restriction or sanction. Please email comments, problems, or questions to casesummary@tdcaa.com. In addition, if you would like to discuss the summaries with fellow prosecutors, look for the thread in our criminal forum.