Texas Court of Criminal Appeals
No. PD-0027-21 5/11/22
Is boilerplate language about criminals commonly using cell phones when committing crimes sufficient to establish probable cause in an affidavit to search a suspect’s cell phone?
No. The affidavit for a search of a cell phone must also include “other facts and reasonable inferences that establish a nexus between the device and the offense” to support a finding of probable cause. Here, the Court concluded there was no nexus between the criminal activity (capital murder) and the cell phone where the language in the affidavit stated only that “[i]t is common for suspects to communicate about their plans via text messaging, phone calls, or through other communication applications.” Read opinion.
Agreeing with the majority’s direction that “so-called” boilerplate language must be “coupled with other facts and reasonable inferences to establish a nexus between the device and the offense,” the dissent would hold that the affidavit in this case sufficiently established probable cause. In addition to including what is known about how cell phones are used by criminals when committing crimes, the affidavit included particularized facts that established the nexus between the phone and offense where the defendant’s car was linked to the crime and the cell phone was found in that car. Read opinion.
The Court in its majority opinion does not answer the grounds the review was granted for (whether the court of appeals used the correct standard of review). Rather, it answers a completely different question and creates an “overly categorical rule that focuses too acutely on whether a warrant relies on so-called boilerplate language.” Read opinion.
This opinion does not really break new ground in ruling that, while a search warrant affiant may use general, boilerplate language like that used in this case, the search warrant affidavit must also contain sufficient particularized details which, when added to the boilerplate language and any reasonable inferences that may be drawn from the facts asserted, establish probable cause to connect the object to be searched with the crime at hand. However, this opinion makes clear that the more explicitly a search warrant affidavit can recite these particularized details, the better, so that it is less likely that the justices or judges of a reviewing court will disagree as to whether the boilerplate language, asserted facts, and reasonable inferences sufficiently connect the object to be searched with the suspect and crime committed. Regarding cell phones, specifically, perhaps including details about the defendant’s cell phone usage, the frequency and modes by which the defendant communicates with any co-defendants, the location of the cell phone in relation to the crime, etc., would help connect the phone to the crime and, thus, help establish probable cause to search the phone.
No. PD-0307-21 5/11/22
In a tampering with evidence case, was evidence that a defendant was in a bathroom where officers later found marijuana in a toilet mixed with water and fecal matter legally sufficient to show that he altered the marijuana?
Yes. To prove “alteration,” the State does not need to prove a change in chemical composition. It was sufficient for the jury to infer the marijuana was altered when it was combined with the toilet water and fecal matter. Additionally, whether the marijuana was permanently altered in this case was not significant, because the plain language of the statute requires only that a defendant alter a thing with the requisite knowledge and intent. Evidence was also sufficient to prove the defendant altered the marijuana when he did not comply with officers’ demands to exit the restroom, was heard moving around in the restroom, did not answer officers’ questions, and marijuana was found still burning in the toilet. Read opinion.
If prosecuting a defendant for tampering with evidence by “altering” it (as opposed to destroying or concealing it), keep this opinion in mind and be aware that alteration can occur in any number of ways (including when the defendant’s actions combine or mix the evidence with feces) without the need to establish a change in the chemical makeup of the evidence. In other words, don’t flush your tampering-by-alteration case or get down in the dumps if you can’t prove that an alteration fundamentally changed the nature of the evidence; this case establishes that you don’t need to offer such proof.
No. PD-0881-20 5/11/22
- Is the State required to prove only that the defendant knew of a condition that made her ineligible to vote under the illegal voting statute (Election Code §64.012)?
- Did SB 1’s retroactive “good faith mistake” change to the Election Code nullify a defendant’s conviction for illegal voting where she signed a provisional ballot affidavit?
- For purposes of the illegal voting offense, has a defendant “voted in an election” when she casts a provisional ballot as opposed to a regular vote that was never counted in the final tally?
- No. Looking to the plain language of the statute, the legislative intent, and its prior decision in Delay v. State, 465 S.W.3d 232 (Tex. Crim. App 2014), the Court held actual knowledge of one’s ineligibility to vote is a required element that the State must prove.
- No. The “good faith mistake” change—that signing an affidavit is not alone sufficient evidence to obtain a conviction for illegal voting—did not decriminalize the defendant’s conduct in this case because the record included other evidence sufficient to show the defendant knew she was ineligible to vote when she submitted her provisional ballot.
- Yes. The Legislature has not made a distinction between a “regular vote” and a “provisional vote” nor is the term “vote” defined in the Election Code. In addition, the Court noted that the statute does not include a defense to prosecution if election officials discover a defendant’s ineligibility to vote before counting her ballot. Therefore, the statute does not require the State to prove a defendant’s provisional ballot was included in the final vote tally to convict for illegal voting. Read opinion.
Although the Court notes the illegal voting statute is unambiguous, it proceeds to decide the “proper interpretation” of the statute’s mens rea—that the actor knew she was ineligible to vote. The Court should, instead, apply the plain language of the statute, thereby avoiding misapplication and misinterpretation in future cases. And, in the name of judicial economy, instead of remanding the case to the court of appeals for review, the dissent would hold that the evidence is sufficient based on the record.
The Court concludes that casting a provisional ballot is “voting” under Election Code §64.012(a)(1); however, “a provisional ballot is … well, provisional.” Instead of supporting a prosecution for illegal voting, the dissent offers that if defendant submits a provisional ballot a prosecution for “attempted illegal voting” might be more the more appropriate offense. Read opinion.
This opinion makes clear that illegal voting is not a strict liability crime; that is, to secure a conviction for that offense, the State must prove that the defendant not only knew of the circumstances that make the defendant ineligible to vote (e.g., that the defendant has a final felony conviction), but also that the defendant subjectively knew that, because of those circumstances, the defendant is actually ineligible to vote. Prosecutors and investigators should always pay attention to legal sufficiency cases such as this, particularly when the crime at issue is somewhat less common, because the jurisprudence will guide them as to what evidence the State should search for and proffer at trial.
No. PD-1035-20 5/11/22
Does Code of Criminal Procedure Article 36.28 prohibit the submission of a transcript of testimony presented at trial to the jury?
Yes. Although not specifically stated in the language, restrictions outlined in Article 36.28 indicate the “exclusive procedure for repeating earlier testimony to the jury.” In addition, supplying a transcript can potentially constitute an impermissible comment on the weight of the evidence by drawing too much attention to that particular evidence. Here, the Court agreed with the court of appeals that providing a copy of the transcript constituted error, but this likely did not have a substantial effect on the jury. Therefore, the error was harmless. Read opinion.
“Because the transcript was both accurate and responsive to the jury’s certified dispute, and because the jury expressly requested the transcript, I cannot conclude that it was a comment on the weight of the evidence at all, much less an impermissible comment on the trial court’s part.” Read opinion.
Sending a copy of the transcript into the jury room was error, but because the error is a structural error, it is reversible without regard to harm. There is no way to appropriately assess the harm to the defendant because “[t]he reading of the transcript occurs behind closed doors … and there will not be any record for appeal showing any differences between the reading of the transcript and the original that the jury disagreed about.” Read opinion.
The Court of Criminal Appeals explains that, if jurors have a dispute about certain testimony, Code of Criminal Procedure Article 36.28 provides the exclusive procedure for how a trial court may repeat the disputed testimony to them. In reaching this conclusion, the Court rejected the State’s contention that the trial court should be permitted to repeat disputed testimony via alternative methods because no statute prohibits those other practices. The State’s argument in this regard may be viable in other circumstances, though, where there is no statute at all concerning the trial court’s conduct, or where an applicable statute is written more broadly or permissively than Article 36.28.
No. PD-1234-20 5/11/22
Is a court of appeals obligated to hand down written opinions addressing every issue raised and necessary to final disposition of the appeal?
Yes. Although the State did not clearly raise the issue of estoppel in the court of appeals, it did establish both at the trial court and court of appeals that the defendant in the case should not be permitted to reap a benefit then use that benefit to later shield himself against his revocation. In addition, as the prevailing party in the trial court, the State may raise claims in support of the trial court’s ruling for the first time in a petition for discretionary review before the Court of Criminal Appeals. Read opinion.
This case serves as a reminder that, because a reviewing court must uphold a trial court’s ruling when the decision is founded in the record and is correct under any theory of law applicable to the case, the prevailing party (here, the State) may raise an argument in support of the trial court’s ruling for the first time on appeal when the opposing party was able to develop a complete factual record with respect to the particular theory. By contrast, the losing party typically must preserve error in the trial court regarding his or her legal objections or theories before an appellate court may reverse the trial court’s ruling on one of those bases. Though the State is more often the appellee, the State can also be the appealing party, so it’s important to know these error-preservation rules so that you can raise all pertinent issues at the appropriate time, to the appropriate court.
Texas Courts of Appeals
No. 14-20-00751-CR 5/10/22
Did a trial court correctly grant a motion to suppress where the defendant was found asleep in a parked vehicle on a public roadway in a moving lane of traffic?
Yes. Because there was no evidence that the defendant actually operated or drove the vehicle and no testimony suggested the defendant’s intent to drive or operate the vehicle, the State did not sufficiently establish a temporal link between the defendant’s intoxication and her driving. Read opinion.
“A prudent person could believe that [the defendant] committed the offense of driving her vehicle while intoxicated. The ‘temporal link’ between [the] appellee’s driving and intoxication that a prudent person could have believed existed is supported by the facts and circumstances known to [the officer] at the time he arrested her.” Read opinion.
Expect the State to seek discretionary review by the Court of Criminal Appeals in this case, and the Court will likely grant the State’s petition. Probable cause is a far lower threshold than beyond a reasonable doubt and certainly seems to have been established by the information that the officer had at the time he arrested the defendant for DWI.
Attorney General Opinion Request
Is a county attorney authorized, permitted, and not precluded from continuing to serve as legal counsel to the county’s appraisal district?
Rene P. Montalvo, Starr County Attorney