United States District Court for the Western District of Texas
NPPA, et al. v. McCraw
1:19-CV-946-RP 3/28/22
Issue:
Do Texas’s “Surveillance Provisions” (Gov’t Code §§423.002, 423.003, 423.004, and 423.006) and “No-Fly Provisions” (Gov’t Code §§423.0045 and 423.0046) violate the First and Fourteenth Amendments?
Holding:
Yes. The use of drones to document the news by journalists is protected expression under the First Amendment, and both the Surveillance and the No-Fly Provisions “effectively outlaw[] the use of UAVs [unmanned aerial vehicles] for newsgathering on private property—constituting 95 percent of the state.” Having determined both provisions are content-based restrictions and that the Surveillance Provision discriminates based on who is taking the images, the court analyzed the provisions under a strict scrutiny standard. Applying this standard, the Court determined the provisions were not actually necessary or narrowly tailored to achieve the government’s interest in privacy and safety. In addition, the Court found the terms “surveillance” and “commercial purposes” were unconstitutionally vague. Read opinion.
Commentary:
The one thing to remember when a trial-level court (such as the federal district court in this case) declares a statute to be unconstitutional on its face is that this is definitely not the last word on the matter. These holdings will be appealed, and it is not at all certain that the Fifth Circuit Court of Appeals will reach the merits, as there are threshold issues regarding standing and ripeness that have to be decided before getting to the merits. As to the merits, the district court held that the use of drones to document the news by journalists is protected expression under the First Amendment. In support of that proposition, the court cited no cases directly on point. That may not be surprising, as this is obviously a developing area of the law. As a part of his decision, the federal judge issued an injunction against the enforcement of the various relevant statutes. Law enforcement and prosecutors should be alert to whether the Fifth Circuit Court of Appeals issues a stay and allows the statutes to remain in effect while the case is on appeal. This will take some time, so be patient.
Texas Court of Criminal Appeals
Gutierrez v. State
No. AP-77,102 3/30/22
Issue:
Has a state trial court lost its statutory jurisdiction to determine whether a defendant is entitled to post-conviction DNA testing under CCP Art. 64.03(a)(2)(A) (authorizing testing only if a defendant shows he would not have been convicted) after a federal district judge rules that the statute is unconstitutional?
Holding:
No. State courts are not bound by decisions of lower federal courts. Both state and federal courts are “of parallel importance.” Therefore, the trial court in this case maintained jurisdiction to determine whether to grant the defendant’s motion for post-conviction DNA testing. Read opinion.
Commentary:
The sole question answered by this decision is whether the trial court had jurisdiction. The Court did not address the constitutionality of the relevant portion of Chapter 64 of the Code of Criminal Procedure or the alleged irreconcilability between Chapter 64 and Article 11.071, §5(a)(3)—the statutory source of the so-called “innocence of the death penalty” claim brought by the defendant. This case now returns to the trial court to address the merits of the defendant’s claim. The federal district court decision that declared the portion of Chapter 64 to be unconstitutional is being appealed.
Alcoser v. State
No. PD-0166-20 3/30/22
Issue:
Did the court of appeals correctly analyze and reverse all of a defendant’s convictions (Child Endangerment, Interference with an Emergency Request for Assistance, and Assault–Family Violence) based on the cumulative effect of a variety of jury charge errors?
Holding:
No. Because the only conviction in dispute was the one for Assault–Family Violence, the Court limited its review of the jury charge errors to this conviction and held the defendant was not egregiously harmed. Although the trial court incorrectly defined “knowing,” omitted the definition of “reasonable belief,” and omitted the instruction that the jury must acquit the defendant if they found he acted in self-defense, the Court concluded these errors were harmless. At trial, the defendant admitted to intentionally assaulting the victim in self-defense, negating the incorrect “knowing” definition’s potential harm. And, even though the court omitted the instruction that the jury must acquit the defendant if they found he acted in self-defense, defense counsel argued this point, and the charge included instructions on the presumption of innocence and the State’s burden of disproving self-defense beyond a reasonable doubt. Read opinion.
Concurrence (Yeary, J. joined by Slaughter, J.):
In this case, there was a “confusing cross-pollination of issues” that resulted in the court of appeals reversing all three of the defendant’s convictions. Instead, courts of appeals should “illustrate the impact of a defendant’s claimed jury-charge errors on each discrete offense of conviction … [to] make it clear how the specific jury-charge errors … impacted the jury’s ability (if it did) to properly determine his guilt or innocence for each individual offense.” Read opinion.
Commentary:
This decision deals only with whether the defendant was harmed by the trial court’s charge to the jury as to one of the offenses charged against the defendant. Nevertheless, the decision underscores the great importance of reading the jury charge carefully: (1) to make sure that nothing has been omitted, and (2) most importantly, to make sure the jury charge makes sense.
Patterson v. State
No. PD-0322-21 3/22/22
Issue:
Does a warrant describing a fraternity house but not an individual room as the place to be searched satisfy the Fourth Amendment’s particularity requirement if the incorporated affidavit includes a description of both the house and the suspect’s room?
Holding:
Yes. “When a search warrant affidavit is incorporated into a search warrant, it becomes a part of, and can be used to aid the description in, the search warrant.” As long as the incorporated affidavit is sufficiently specific to inform the officers where to search, the particularity requirement is satisfied. Read opinion.
Commentary:
This is a brief and straightforward decision, but it is very important. Obviously, a search warrant should describe a place to be searched with particularity, and this opinion should not be read to provide an excuse for failing to do that. But if a search warrant incorporates the affidavit, the affidavit can be considered to aid in determining whether the particularity requirement has been satisfied.
Valadez v. State
No. PD-0574-19 3/30/22
Issue:
Was extraneous drug evidence that a defendant had a conviction for possession of marihuana and was “connected with” six marihuana cases and a possession of cocaine case in Travis County admissible under the doctrine of chances or under T.R.Evid. 404(b) and 403?
Holding:
No. Because the extraneous incidents were not highly unusual or exactly the same as the charged offense (third-degree possession of marihuana), the evidence was not admissible under the doctrine of chances. In addition, although Rule 404(b) could have justified the admission of extraneous drug incidents, Rule 403 required their exclusion because the incidents were unsupported by competent evidence when 1) the possession of marihuana conviction “judgment” was not sponsored by a witness who could authenticate it, 2) the officer testifying to the defendant’s six connections to marihuana had no personal knowledge of those connections, and 3) the cocaine arrest occurred after the charged offense. As a result, any probative value was substantially outweighed by the danger of unfair prejudice and misleading the jury. Read opinion.
Dissent (Yeary, J. joined by Slaughter, J.):
Because the trial court’s ruling that the extraneous misconduct evidence in this case was admissible and fell within the “zone of reasonable disagreement,” the Court should defer to the trial court’s ruling. Instead, the Court “substitute[s] its own subjective view” in this case. Here, the extraneous evidence was used to rebut the defendant’s defensive theory that he was “just along for the ride” and show that he would have been familiar with the smell of marihuana. In addition, the later offense involving both marijuana and cocaine was still relevant for the purposes of demonstrating a “heightened level of sophistication with illegal drugs.” Read opinion.
Commentary:
As conceded by the majority, the State did not rely upon the “doctrine of chances” in support of the admissibility of the extraneous offenses, and the court of appeals did not expressly rely upon the doctrine of chances either. Nevertheless, this is a decision concerning the doctrine of chances, and it is an important addition to that portion of the court’s decision regarding the admissibility of extraneous offenses, especially in drug cases. A prosecutor should definitely read this decision carefully before introducing extraneous offense evidence to rebut a defendant’s claim that he was unaware of the illegal narcotics. Any prosecutor should make sure that extraneous offenses are sufficiently similar and unique in relation to the charged offense to admit them under the doctrine of chances.
Texas Courts of Appeals
Ex Parte Herrington
No. 12-21-00168-CR 3/23/22
Issue:
Does “manifest necessity” (the exception to the general rule that premature termination of a criminal prosecution through declaration of a mistrial, if it is against the defendant’s wishes, bars further prosecution for the same offense) exist when the State announces it is ready but then discovers a key witness is unavailable for trial after the jury has been empaneled and sworn?
Holding:
No. Although the State’s witness (a DPS trooper who had been deployed to the border without the State’s knowledge) previously said he would be available and present, the double jeopardy inquiry focuses on the State’s knowledge at the time the jury is empaneled and sworn. The absence of a material witness does not create a manifest necessity. Here, “[o]nce the court swore the jury, the State’s predicament shifted from the need for a continuance to a failure of proof.” As a result, the defendant’s second trial was barred by double jeopardy. Read opinion.
Commentary:
The court of appeals appears to give great weight to the fact that the State did not subpoena the missing witness and the State announced ready at the beginning of trial. When a defendant does not request or consent to a mistrial, as was the situation in this case, there must be no alternative but to grant a mistrial by the trial judge.
Texas Attorney General Opinion
KP-0402 3/30/22
Issue:
Does Code of Criminal Procedure Art. 55.01(a)(1)(C), which provides for the expunction of all records and files relating to the arrest of a person convicted of unlawfully carrying certain weapons, include expunction of the conviction itself?
Conclusion:
The Firearm Carry Act passed by the 87th Legislature decriminalized specified offenses and amended CCP Article 55.01 concerning expunction of certain records. Article 55.01(a)(1)(C) provides for the expunction of all records and files relating to the arrest of a person convicted of an offense committed before September 1, 2021, under PC §46.02(a) as it existed before that date. A court could conclude that an order of expunction under Article 55.01(a)(1)(C) may include the judgment of conviction for such an offense. Read opinion.
Commentary:
This opinion is a pretty thorough examination of the relevant statutory provisions and case law. The particular statute is also pretty clear. The opinion’s conclusion is almost certainly in line with the Legislature’s intent.
Texas Attorney General Opinion Request
RQ-0451-KP 3/24/22
Issues:
- Can a commissioners court grant a blanket pay raise to every sheriff’s office employee in the absence of an emergency during the middle of the budget year?
- Does high turnover and subsequent low staffing levels due to low wages constitute an emergency?
- Can a county use Care Act funds for the proposed blanket pay raise?
Requested By:
Robert H. Trapp, San Jacinto County District Attorney
Hinton Memorial Scholarship Reminder
Want to go to the 2022 TDCAA Annual Criminal and Civil Law Conference but don’t have the funds? Just a reminder that the Foundation, through generous gifts in memory of Mike Hinton, can provide you with a scholarship! All you need to do is fill out the application HERE and send it in. Questions? Just call Rob at 512/971-8425. But hurry, applications are due April 30.