April 15, 2016

Court of Criminal Appeals

Leming v. State

No. PD-0072-05                 4/13/16


Does failure to maintain a single lane of traffic while driving need to be considered “unsafe” before it can constitute an offense under §545.060(a) of the Transportation Code?


Maybe not. A plurality of the court agreed that a driver does not have to both fail to maintain a single lane of traffic AND attempt to move from that lane in an unsafe manner before it can be considered an offense. Either of these actions is enough to support a police officer’s stop and temporary detention. Additionally, the majority of the court found there was reasonable suspicion to justify the stop. Read.

Concurrence (Richardson, J.):

Judge Richardson agreed fully with the majority opinion and the interpretation of Transportation Code §545.060. He also would have found justification for the stop in the officer’s community caretaking function. Read.

Dissent (Keasler, J.):

Judge Keasler disagreed with the majority’s construction of Transportation Code §545.060 and instead would require a driver to both fail to stay within a single lane and be unsafe in moving toward another lane to be a violation. He also would not find independent reasonable suspicion for a stop. Read.

Dissent (Newell, J.):

Judge Newell agreed with Judge Keasler on the interpretation of §545.060(a) but would order the case remanded to the court of appeals for consideration of whether there was a separate reasonable suspicion to stop the vehicle. Read.


This may be one of the more significant traffic stop decisions that the court has issued. Failure to drive within a single lane of traffic is a very common reason for stopping motorists, especially in driving while intoxicated (DWI) cases. This decision expressly disagrees with two prior court of appeals decisions and will be very helpful for law enforcement. The court re-emphasizes (if it still needed emphasis) that an officer does not need probable cause, but only reasonable suspicion, to conduct a traffic stop. The court also upheld the officer’s actions based upon reasonable suspicion to investigate for DWI. All prosecutors need to read this decision.

State v. Huse

No. PD-0433-14                 4/13/16


Does HIPAA affect the Hardy rule that a defendant does not have an expectation of privacy in the BAC results of blood taken and tested by a hospital?


No. In State v. Hardy, 963 S.W.2d 516 (Tex. Crim. App. 1997), the court determined that the Fourth Amendment prohibition against unreasonable search or seizure does not apply to searches caused by a private party acting on its own initiative, like a hospital taking and testing blood. The passage of HIPAA does not change this but actually strengthens that holding by creating specific exceptions for certain medical data. Additionally, it is not a violation of Code of Criminal Procedure Art. 38.23 for the prosecutor to obtain medical records through a grand jury subpoena, even when that subpoena was not signed by the grand jury foreman, and the information not directed to be returned to the grand jury. Read.


If you issue grand jury subpoenas for a defendant’s medical records in intoxication-related cases, read this decision. It will now be the standard decision to be cited, instead of Hardy, especially because it deals directly with HIPAA. The court also deals with common attacks upon Texas prosecutors’ common uses of grand jury subpoenas, so it may be the standard decision to cite when the defense challenges the grand jury subpoena process. The court notes that it will probably not approve grand jury subpoenas being used after a defendant has been charged or as a subterfuge to interview a defendant at a prosecutor’s office when he has previously refused to be interviewed.

Texas Courts of Appeals

The Austin Bulldog v. Lee Leffingwell, Mayor, et. al. (3rd COA)

No. 03-13-00604-CV        4/8/16


Does the Public Information Act protect the personal email address of an elected official if the official uses that personal email to conduct official government business?


No. The Public Information Act’s exception to disclosure for “an email address of a member of the public” under Government Code §552.137 does not apply to elected officials because they are not “members of the public” under the Act. The Act requires that the public have “complete information about the affairs of government and the official acts of public officials and employees,” even if that information is conducted using private email addresses. Read.


As a current presidential candidate has found, you probably should not conduct government business on your personal email account. The better practice is to keep a government email address and/or cell phone number to conduct government business , as opposed to doing business on your personal device or email account. This is an extremely thorough decision, and if it is appealed to the Texas Supreme Court, expect it to be upheld.

Baiza v. State (11th COA)

No. 11-14-00067-CR        3/31/16


What is the proper standard of review for an appellate court when there are factual disputes regarding the contents of an audio recording?


The trial court’s findings are awarded almost total deference; however, when there is conclusive evidence, such as the actual recording, an appellate court may disregard any trial court findings that are inconsistent with that conclusive evidence. In this case the audio recording of a defendant’s statement showed the arresting officer did not fully comply with the requirements of Code of Criminal Procedure Art. 38.22, as one of his warnings was unintelligible; thus, this court was not required to affirm the trial court’s ruling allowing the statement into evidence. Read.


This decision is fraught with danger, and it needs to be reviewed by the Texas Court of Criminal Appeals. What if a recording device is poor or an image is not well-defined? How can that “conclusive” evidence override other evidence presented to the court? Having said that, if an officer talks really fast, as this officer does, tell him to slow down, especially if he is being recorded.

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected].