Texas Courts of Appeals
No. 14-13-00390-CR 8/12/14
Is improper sexual activity with a person in custody a “nature of conduct” crime, requiring the jury to agree about which acts were committed by the defendant, or a “circumstances surrounding the conduct” crime, meaning the jury is not required to be unanimous on which of several statutorily defined manner and means the defendant committed?
Improper sexual activity with a person in custody is a “nature of conduct” crime requiring unanimity as to the manner and means by which the offense was committed. Read the opinion.
This is a VERY technical decision, and it is well-researched and well-reasoned. Nevertheless, because it is an issue of first impression, it seems that the court decided the issue incorrectly on the merits. The significant reason why this offense exists is not because of the specific sexual conduct in which the defendant engages but rather because of the nature or the circumstances of the relationship between the defendant and the victim. This decision may hold up on petition for discretionary review, especially because the courts may want to maintain consistency with the jurisprudence regarding other sexual offenses. In the meantime, be cautious about how to plead and charge other similar offenses, such as improper relationship with a student. Thankfully, in this particular case, the State was saved by the application of a harm analysis.
No. 04-13-00414-CR 8/13/14
When an officer made a traffic stop for a seatbelt violation, saw a fake sword on the floorboard that was believed to be real, cuffed and searched the suspect, then found brass knuckles in the suspect’s glove compartment, was the trial court correct in suppressing the brass knuckles in the resulting prosecution for possession of a prohibited weapon?
Yes. The State argued that the search was justified as a Terry search for dangerous weapons, but such a search is prohibited once the defendant poses no reasonable threat to the officer’s safety. Read the opinion.
This decision does not make any sense. The court holds that the officers could not conduct a search of the defendant’s vehicle for weapons pursuant to Michigan v. Long because the defendant had been handcuffed. But that is not the proper analysis. The court should have analyzed whether the defendant could have gained access to a weapon after he was returned to his vehicle—and that is precisely what occurred in this case. The officers did not arrest the defendant. He was cited for the traffic violation that got him stopped in the first place, and he was released. He was charged with the weapons violation later. This decision should be overturned by the Court of Criminal Appeals on petition for discretionary review.
No. 04-13-00433-CR 8/13/14
When the defendant ran at the sight of a police cruiser in a high-crime neighborhood and was chased down and arrested by police only because his flight seemed conspicuous, did the fact that police later discovered the defendant had active warrants provide attenuating circumstances that justified the otherwise illegal search incident to arrest that turned up drugs?
No. Generally, the discovery of outstanding warrants has to occur between the time an illegal arrest occurs and a subsequent search for the attenuation doctrine to make the search constitutional. Read the opinion.
An officer generally has to observe more than just flight in a high-crime area to justify a detention of a suspect. Any other single observation of suspicious conduct on the defendant’s part might have justified the officer’s actions in this case. Nevertheless, the State still might get this decision reviewed by the Court of Criminal Appeals because of the unique attenuation-of-the-taint analysis.
No. 04-13-00701-CR 8/13/14
Did an anonymous tip provide reasonable suspicion to stop a car when the tipster said he had witnessed the occupants selling merchandise out of the car in a city where an ordinance prohibits selling merchandise without a permit?
No. An anonymous tip has to provide officers with reports of not just unusual activity, but unusual activity that is connected to a crime. In this case, the tipster did not provide any information that indicated the occupants did not actually have a permit, so there was no connection between the car and criminal activity. Read the opinion.
Dissent (Barnard, J):
Reasonable suspicion considers the totality of the circumstances and includes reasonable inferences made from articulable facts. The fact that the defendants had packed up and moved along when the tipster confronted them for selling in a parking lot provided a reasonable basis to conclude they did not have a permit, which made the stop legal. Read the dissent.
The result of this decision appears to turn on whether the defendants’ actions in packing up and moving on when confronted by the citizen/tipster was sufficient to show a guilty conscience on the part of the defendants—at least sufficient to give an officer reasonable suspicion to stop the defendants. Because there is a dissenting opinion in this case, there is a better chance that the Court of Criminal Appeals might review it, but prosecutors should always be cautious in attempting to justify an officer’s actions based solely on an anonymous tip.