Texas Court of Criminal Appeals
No. PD-0582-21 11/23/22
Did a consensual encounter evolve into a detention when an officer ordered the suspect to stop emptying his pockets and put his hands out in front of him where officers could see them, while a second officer’s hand was on the suspect’s back?
Yes. Even though the interaction began as a consensual encounter, it became an investigative detention with the officers’ actions. A reasonable person in the suspect’s shoes would not have felt free to leave under the circumstances, the 5-4 Court concluded. Read opinion.
This case is very fact-intensive; therefore, a slight change in facts could lead to a different result. While the court was closely divided on the issue, it does not appear that the majority has issued an opinion that is a great deal different from prior decisions. No new ground is really broken here. All prosecutors should read this opinion to get keep up with the jurisprudence on what does and does not constitute a detention. In Section III(A) of the opinion, the majority presents some very helpful language regarding what does not constitute a detention. Prosecutors can (and should) rely upon this language in future opinions.
Texas Courts of Appeals
No. 02-21-00098-CR 11/23/22
Was a defendant charged with violating a protective order entitled to a jury instruction regarding a clerk’s duty under Family Code §85.042(b) to deliver a copy of a protective order to a child-care facility named in the order?
No. Proof that the clerk delivered a copy of a protective order to a named child-care facility is not an element of the offense under Penal Code §25.07(a)(3)(B). Even though the clerk did not deliver the order to the facility named in the protective order, the requested instruction “had no place in this [jury] charge; it was not applicable to the case here because it would not have assisted the jury in identifying the elements of the offense that the State was required to prove, nor would it have identified a defense, an affirmative defense, or a justification for the jury to consider.” Read opinion.
There does not appear to be any dispute that the defendant was aware of the protective order. The requested jury instruction regarding whether the child care facility was officially provided with a copy of the order would have been irrelevant to the State’s burden of proof. Prosecutors who regularly handle violation of a protective order offenses should read this decision; there is also a very fact-specific challenge to the sufficiency of the evidence that depends heavily upon statutory construction. These orders and the controlling statutes can get quite complicated, so read this decision carefully.
No. 07-20-00238-CR 11/22/22
Does the language of Penal Code §33.07(a)(1) prohibiting the “use” of another person’s name to create a webpage regulate speech or conduct, making the statute unconstitutional?
No. The court held the “use” of another’s name does not necessarily involve the expression of ideas, opinions, or information necessary to implicate the First Amendment, and even if the statute plausibly touches some speech, the court agreed with other Texas courts that §33.07(a), at most, is content-neutral. Read opinion.
The constitutionality of this statute has been upheld by several other courts of appeals in the past. Rather, than follow those decisions directly, the court of appeals in this case followed the more recent decisions of the Court of Criminal Appeals in Ex parte Barton and Ex parte Sanders (dealing with the constitutionality of the harassment statute) to hold that the conduct prohibited by the statute is not even “speech” in the first place. The court of appeals also alternatively followed those prior decisions that have upheld the constitutionality of the statute on the basis that it is content-neutral.