Texas Courts of Appeals

Davis v. State

No. 01-19-00756-CR              7/30/20

Issue:

Does a search warrant requiring the seizure of a defendant’s blood permit the testing and analysis of the defendant’s blood, and was the testing and analysis of the blood permissible if it was not performed until after the warrant had expired?

Holding:

Yes. The warrant was specific enough to protect the defendant’s Fourth Amendment rights because it identified the specific offense committed, indicated that a search of the defendant’s person would yield blood evidence, and authorized the search of the defendant’s person to obtain that blood evidence. The Court distinguished this case from State v. Martinez, 570 S.W.3d 278 (Tex. Crim. App. 2019) because the defendant’s blood in this case was not collected for medical purposes and later tested without a warrant; instead, her blood was obtained by the State pursuant to a warrant permitting collection of blood samples as evidence in her DWI prosecution. In addition, the Court rejected the defendant’s argument that the warrant had expired before the analysis was performed because the record established that the defendant’s blood sample was obtained the same day that the warrant was issued. The State thus took control of the blood sample for purposes of obtaining blood evidence relevant to the defendant’s DWI charge at that time and, therefore, it was executed within the timeframe allowable under Code of Criminal Procedure Art. 18.07. Read Opinion.

Commentary:

We have expected defendants to make the argument that, based upon the recent decision of the Court of Criminal Appeals in State v. Martinez, the State should be required to get two search warrants—one for the drawing of the defendant’s blood, and the other for the analysis of the defendant’s blood.  This decision by the court of appeals is yet another decision that rejects that argument.  The Court of Criminal Appeals is currently reviewing that argument in Crider v. State and other cases.  The court of appeals in this case also rejected another defense argument that arguably flows from Martinez—that because the analysis of blood is also a search, the analysis must be done within the time for the execution of a warrant set forth in Articles 18.06 and 18.07.  Until the Court of Criminal Appeals issues its decision, this will be another helpful ruling in opposition to defense arguments that rely upon Martinez.

Gonzalez v. State

No. 04-19-00226-CR              7/29/20

Issue:

Were a defendant’s Fourth Amendment rights violated when law enforcement officers viewed videos from a defendant’s iPad without a warrant after a private party (in this case the defendant’s wife) took the defendant’s iPad to the police station and showed the previously discovered illicit videos to law enforcement officers?

Holding:

No. When a private party discovers digital contraband files in another individual’s computer and shows those files to police, the Fourth Amendment is not implicated. The defendant’s wife acted as a private party when she accessed the defendant’s iPad and discovered contraband videos on it. At that time, the defendant’s expectation of privacy in his iPad had already been frustrated by a private party, and there is no evidence that officers exceeded the scope of the wife’s discovery before obtaining a warrant. In addition, the defendant’s wife had apparent authority to permit police to view the iPad videos because she brought the iPad from her family’s home and entered the iPad’s passcode to present the defendant’s videos to the police. Moreover, police obtained a warrant to forensically download the defendant’s iPad based solely on information provided by the defendant’s wife. The warrant effectively attenuated any possible taint from the investigation. Read Opinion.

Commentary:

This is a great decision that follows prior case law regarding searches by private individuals, who then turn the results of their search over to the police.  Read this decision if you need to rely upon a private party search, especially regarding electronic devices, or if you need to rely upon a person’s apparent authority to consent.

Texas Attorney General Opinions

KP-0321                      8/3/20

Issue:

In misdemeanor cases, does the trial court have the authority to issue a capias on the filing of an information or complaint under Code of Criminal Procedure Art. 23.04 even when the accused has not been arrested or posted bail?

Conclusion:

A capias is a writ from a criminal court directed to any peace officer commanding the officer to arrest a person accused of an offense and bring the arrested person before that court. Chapter 23 generally applies to post-bail and post-commitment settings. Construed within the context of Chapter 23, Arts. 23.01 and 23.04 identify the court that may issue a capias after commitment or the posting of bail. Thus, the judge of a court that obtains jurisdiction of a misdemeanor case upon the filing of an information or complaint may issue a capias after commitment or bail and before trial. Read Opinion.

Commentary:

We always get in trouble when we try to engage in statutory construction of statutes that have remained unchanged and unreviewed for years, if not decades.  This opinion can be read to conclude that a misdemeanor judge cannot issue a capias—even if a complaint or information has been filed—unless the defendant has already been committed to jail (arrested) or bonded out of jail (released on bail).  You might ask yourself why a judge would want to issue a capias for a defendant who is in jail or has already been considered for and released on bail.  As the opinion seems to acknowledge, a county or misdemeanor court obtains jurisdiction over a case when the complaint and information are filed.  See Tex. Const. art. V, s 17; Tex. Code Crim. Proc. art. 4.07.  We are advised that the Nueces County District Attorney—who sought this opinion—is currently conferring with the Attorney General regarding the opinion. Meanwhile, you might want to proceed cautiously in relying upon this opinion.  It should be kept in mind that a capias is little more than an arrest warrant.  Both have to be based upon probable cause, and in this context, the probable cause would be the facts supporting the belief that the defendant has committed the charged misdemeanor offense.  If your judge will not issue a capias, perhaps you might want to seek an arrest warrant.

KP-0322                      8/3/20

Issue:

Does a county have the authority to require facial coverings in courtrooms, courthouses, and county buildings?

Conclusion:

Yes. Pursuant to Local Government Code §291.001(3), a commissioners court may require any person entering a courthouse or other county-owned or -controlled building to wear a facial covering. In addition, judges possess broad inherent authority to control orderly proceedings in their courtrooms, and pursuant to that authority they could require individuals in the courtroom to wear facial coverings if necessary to maintain order and safety. Further, a county judge operating under a local disaster order could require a person to wear a facial covering when occupying a courthouse or other county-owned or -controlled building. Read Opinion.

Commentary:

This very thorough opinion was issued in response to a request made by the Harris County Attorney, but its application extends beyond large metropolitan areas.  In addition to referencing the Governor’s executive order regarding facial coverings, it references the guidance implemented by the Office of Court Administration (for commissioners courts) and Chapter 418 of the Government Code (for county judges).  The opinion also states that while individuals not obeying the face-covering rules are not subject to detention or arrest, they are subject to a fine.

KP-0323                      8/3/20

Issue:

May the Metropolitan Transit Authority of Harris County prohibit service and access to its transit authority system to a person who refuses to comply with a rule requiring facial coverings?

Conclusion:

Yes. Transportation Code §451.107(a) authorizes the board of a metropolitan transit authority to adopt rules for the safe and efficient operation and maintenance of the transit authority system. If wearing a facial covering in a transit authority vehicle or facility is necessary for the safe and efficient operation of the Metropolitan Transit Authority of Harris County during the COVID-19 pandemic, the Authority may require any person medically capable of doing so to wear a facial covering when entering its vehicles or facilities. It may also refuse service to or have removed individuals who refuse to comply with a rule that requires facial coverings. Read Opinion.

Commentary:

This short opinion is basically an application of the Governor’s executive order regarding facial coverings and the enforcement of criminal trespass laws.