5^th Circuit Court of Appeals

Evans v. Garza

No. 23-50541                   12/9/25

Issue:

Is the plaintiff entitled to a preliminary injunction prohibiting the district attorney from prosecuting her under Penal Code §21.15(b)(2)–(3) because the statute is unconstitutional on its face and as applied to her social media post?

Holding:

No. The plaintiff did not meet her burden of showing the statute was unconstitutional, and the district court did not abuse its discretion in denying the preliminary injunction. The plaintiff posted on social media a photograph of a transgender (biological male) politician washing their hands after using the women’s restroom at the state capitol. Following her post on Twitter (now “X”), the Department of Public Safety launched an investigation at the request of the local district attorney into whether the plaintiff had violated the 2023 version of §21.15(b), which criminalizes transmitting “a visual image of another in a bathroom or changing room” without consent and with intent to invade the person’s privacy. The plaintiff sought a temporary restraining order and preliminary injunction in federal district court prohibiting the DA from investigating or prosecuting her. The plaintiff has not been prosecuted to date, and the federal district court denied her petition. The 5^th Circuit concluded that the plaintiff had not met her burden for the injunction on the constitutional issues. “It is … far from clear that there is a First Amendment right to capture and distribute an image, without their permission, of a fully clothed adult while in a public bathroom. … Is there a constitutional right to follow and photograph [a] person in a restroom when they are seeking privacy? Is any citizen, celebrity or not, fair game for photos or videos while in a restroom? Does the fact that a person is an elected official change that equation? The law is certainly not clear that politicians may be pursued, even in a public restroom, for the purpose of obtaining and publicizing their image.” Read opinion.

Dissent (Oldham, C.J.):

“With free speech in a tenuous balance, courts do the agora no good by playing fast and loose with Fed Courts doctrines. The least we could do is remand Evans’s case for the district court to weigh the preliminary injunction factors in the first instance. Because the majority instead denies relief and leaves Ms. Evans at the mercy of the Travis County District Attorney, I respectfully dissent.”

Commentary:

In this case, the prospective defendant challenged the statute as applied to her, and in rejecting that challenge, the majority relied heavily upon the decision of the Court of Criminal Appeals in Ex parte Metzger. The majority also stated that it was highly unlikely that this particular part of §21.15 was facially unconstitutional. This decision is not binding upon Texas state courts, but it should be good, persuasive authority for prosecutors when faced with a challenge to this particular version of the statute. It is not clear whether any more will be written about this case in the federal courts. The court denied the preliminary injunction that the prospective defendant sought. It is also not clear if the prospective defendant is actually going to be charged with the offense.

Texas Courts of Appeals

Pitts-Marshall v. State

No. 14-24-00307-CR                   12/11/25

Issue:

In a prosecution for aggravated assault of a public servant, is an ICE agent considered a public servant under Texas law?

Holding:

Yes. Code of Criminal Procedure Art. 2A.002 “authorizes ICE officer to exercise the state police powers of arrest, search, and seizure—not just the power of arrest as in Art. 14.01.” The Court  concluded that the evidence was legally sufficient to support the conviction for aggravated assault of a public servant. The Court also rejected the State’s argument that the defendant was estopped from challenging the sufficiency of the evidence to show that an ICE agent could be considered a public servant because the prosecution told the venire panel that a “public servant is a person employed or otherwise designated as an officer, employee, or agent of the government,”  and the defense failed to object to this statement. The Court noted that the “prosecution cites to no authority for such a remarkable proposition, and we reject any suggestion that counsel’s failure to object to a proper statement resulted in estoppel.” Read opinion.

Commentary:

As noted by pages 6 to 10 of this decision, it is important to note that a federal officer is not a peace officer for the purposes of the offense of aggravated assault of a public servant.  The ICE agent in this case was rendered a public servant because he was lawfully attempting to arrest the defendant at the time of the offense, as noted by pages 10 to 13 of the opinion. This will be a good decision for prosecutors when deciding whether a federal officer can be the subject of a prosecution of assault of a public servant.

Salazar v. State

No. 13-24-00024-CR                   12/11/25

Issue:

Did alternate jurors’ participation in deliberations and a verdict violate the defendant’s constitutional right to a 12-person jury and constitute an “outside influence” that violated Code of Criminal Procedure Art. 36.22?

Holding:

No. While participation of alternates violated Art. 36.22, the defendant did not show how the procedural error affected his substantive rights. Twelve sitting jurors and two alternates were selected for the defendant’s trial for aggravated sexual assault and continuous sexual abuse of a child. However, the jurors were not informed which of them were alternates. A different district court judge proceeded over the rest of the trial. When the jury retired to deliberate, the two sitting jurors were “mixed up” with the two alternates and were excused. The two alternates then deliberated with the remaining jurors. The Court concluded that the trial judge erred by replacing the regular jurors with alternate jurors without making a finding that the regular jurors were disqualified or unable to perform their duties as required by Code of the Criminal Procedure Art. 33.011. However, the Court found that the error did not violate the defendant’s constitutional right to a 12-person juror and otherwise was not harmful. “While the ‘mix-up’ of the jurors violated Article 33.011, [the defendant] was not harmed by the error because the record indicates that the alternate jurors were qualified and treated the same as regular jurors.” Read opinion.

Commentary:

In this decision, the State was saved by the harm analysis, and the court importantly treated the error that occurred in this case as a statutory error—not a constitutional error. This is a good reminder to be watchful over how the trial judge and court staff are treating alternate jurors when it is time for jury deliberations. 

Online Legislative Update Deadline

Access to TDCAA’s 2025 Online Legislative Update will close on December 31, 2025. Registration for the course can be found here. All participants—including those who already registered for the course but have not completed it—must complete the video in its entirety by December 31, 2025, to receive credit. No refunds will be issued.

While we can’t think of a better way to spend New Year’s Eve than diving into the newest Texas laws and statutes before the clock strikes midnight, we encourage our viewers to not wait to the last minute to complete this important course!

Last Case Summaries of 2025

This is the final edition of case summaries for the year. TDCAA Weekly Case Summaries will return on January 8, 2026. TDCAA wishes you and your loved ones a wonderful holiday season!