Weekly Case Summaries: February 25, 2011

Texas Courts of Appeals

Carlson v. State – 1st COA

02/17/11 : Cite No. 01-09-01030-CR

Issue:

If a pedophile's videotapes are obtained by the victim's theft are they admissible under art. 38.23?

Holding:

Yes, if the conduct falls within that permitted in Jenschke v. State, 147 S.W.3d 398, 400 (Tex. Crim. App. 2004). Here, the victim filed a police report within 48 hours of relieving the pedophile of the tapes and, when requested, promptly made them available to the police, so they were admissible. Read Opinion.

Commentary:

This is a great opinion if you have a Jenschke situation. But the court upholds the victim's conduct for yet another reason that is quite interesting, but it might apply to only these types of cases. The court holds that the defendant had no legal right to possess the images because they were illegal, but that the victim did have a legal right to the images because she had an interest in protecting her own privacy.

Hughes v. State – 7th COA

02/17/11 : Cite No. 07-10-00096-CR

Issue:

Is an oath for a search-warrant affidavit sworn over the phone valid?

Holding:

It seems so, at least where the oath is administered by a notary public. Read Opinion.

Commentary:

This is a very important decision that must be reviewed by the Court of Criminal Appeals. If this practice is upheld, it should help in those jurisdiction where law enforcement seeks to execute search warrants for blood in rapidly developing situations, such as testing for intoxication. Keep your eyes on this case.

Lilly v. State – 11th COA

02/17/11 : Cite No. 11-09-00140-CR

Issue:

Did the prison's use of a chapel as a courtroom violate the Establishment Clause?

Holding:

Yes, but the error was harmless because it did not contribute to Lilly's decision to plead guilty and the trial court held the hearing on the motion to transfer venue in a public courthouse. Read Opinion.

Commentary:

You should fully expect the Court of Criminal Appeals to review this decision as well because of the Establishment Clause decision. But the court has also issued a significant holding concerning the denial of the defendant's right to a public trial.

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