August 26, 2016

Texas Courts of Appeals

Ex parte Bradshaw (5th COA)

No. 05-16-00570-CR        8/23/16


Is the online impersonation statute (Penal Code §33.07(a)) facially unconstitutionally because of overbreadth or vagueness, and does it violate the Dormant Commerce Clause?


No. The Court concluded that §33.07(a) is not ambiguous, is facially content-neutral, and the purpose and justification for the statute are not content-based. The Court also found that impersonation is a nature-of-conduct offense. “Critically, the only conduct regulated by §33.07(a) is the act of assuming another person’s identity, without that person’s consent, with the intent to harm, defraud, intimidate, or threaten any person by creating a web page or posting or sending a message. Any subsequent ‘speech’ related to that conduct is integral to criminal conduct and may be prevented and punished without violating the First Amendment.” Read opinion

The Court reached the same conclusion on a similar case decided the same day, Ex parte Backus, No. 05-16-00517-CR. Read opinion


The same defense lawyer is raising this issue across the state. With these two decisions, and with the decision of the Fourteenth Court of Appeals issued earlier this month in State v. Stubbs, it should be much easier to defeat any other challenges to this statute.

McLemore v. State (2nd COA)

No. 02-15-00229-CR (not for pub.)            8/18/16


Must evidence “definitely show” who accessed data on a cell phone to authenticate evidence found on the phone?


No. Evidence may be authenticated in a number of ways, including by circumstantial evidence. In this case, during a warrant-based search of the defendant’s home, police recovered a cell phone that matched the description of a phone containing pornography described by the victim. A DPS special agent unlocked the phone (set to unlock only through facial recognition) by holding up the defendant’s driver’s license photo to the phone. A search of the phone showed it had been used to search the Internet for topics such as “preteen Lolita,” “homemade incest videos,” and “incest daughter.” The phone also contained pictures of preteen females. The Court rejected the defendant’s argument that because of the portable nature of cell phones, the Court should adopt a standard for authenticating the contents of a cell phone by requiring the State to show who accessed a certain website or performed an internet search. Read opinion


This is a unique case, so it is not clear whether it will apply to others. But this decision is now part of a long-standing line of cases that permits authentication by circumstantial evidence. Great job by the State in developing the necessary evidence in this case.

Texas Attorney General Open Records Decision

OR 2016-16486  7/21/16


Does a defendant’s statutory right of access to DWI video recordings under CCP Art. 2.139 prevail over general Open Records exceptions to public disclosure found in Government Code §552.108?


Yes. CCP Art. 2.139, passed by the legislature in 2015, requires the University of North Texas Police Department to turn over a copy of any video footage dealing with the defendant’s intoxication-related police stop despite the general exceptions to public disclosure under the Open Records Act. “Because §552.108 is a general exception under the Act, the requestors’ rights of statutory access under Art. 2.139 prevail and the department may not withhold the submitted video recordings under §552.108 of the Government Code.” Read opinion


This does not mean that Art. 2.139 controls over §552.018 in all cases. It just means that Art. 2.139 controls if the person making the request for the video recording is the person stopped or arrested for the intoxication-related offense or is asking on behalf of that person (such as the person’s criminal defense attorney).

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