Texas Court of Criminal Appeals
State v. Chen
Nos. PD-0096-21 and -0097-21 8/24/22
Issue:
Does the Court’s decision upholding the constitutionality of the 2001 and 2013 versions of the harassment by electronic communication statute (Penal Code §42.07(a)(7)) also apply to the 2017 version of §42.07(a)(7)?
Holding:
Yes. The statute is constitutional on its face and does not implicate the First Amendment because the conduct it prohibits is not speech. Read opinion.
Dissent (Keller, P.J., joined by Keel and McClure, JJ.):
The dissent noted that the 2017 amendments to §42.07(a)(7) added new language defining “electronic communications” that made the statute more obviously directed at speech. “[W]ith its additions, the 2017 statute clearly applies beyond communications that are targeted and directed specifically at an individual. Now, it seems indisputable that annoying posts about an individual on social media, a message board, a blog, or the online comment section of a newspaper can be an offense. Nothing in the statutory language of the 2017 provision suggests that the social media account, message board, blog, or other internet site must belong to the person who reasonably finds the communications annoying.” Read dissent.
Commentary:
This is a per curiam opinion, so there is no real analysis in the majority opinion. A majority of the court apparently believes, however, that the analysis in Ex parte Barton and Ex parte Sanders applies to the 2017 version of the statute that criminalizes certain electronic communications. Close attention should be paid to Presiding Judge Keller’s dissenting opinion. Any attempt to prosecute communications that are not directed at a particular individual will almost certainly be subject to an as-applied challenge to the constitutionality of the statute. As we have noted before, prosecution under this statute should be reserved for specifically targeted harassing communications that substantially invade a specific individual’s privacy interests.
Lang v. State
No. PD-1124-19 8/24/22
Issue:
Is theft a lesser-included offense or organized retail theft?
Holding:
Yes. Because the existence of an owner is a statutory element of theft, but the identity of the owner is not, theft can be a lesser-included offense of organized retail theft. Read opinion.
Dissent (Yeary, J.):
“Even assuming that theft is a lesser-included offense, as the Court holds today … the jury’s verdict in this case did not necessarily embrace every constituent element of the lesser theft offense. That being so, the court of appeals was not authorized … to reform the trial court’s judgment to reflect a conviction for the lesser offense.” Read dissent.
Commentary:
The issue in this case is whether the defendant’s judgment of conviction for the offense of organized retail theft could be reformed to show a conviction for the offense of theft, and that issue requires a determination as to whether theft is a lesser-included offense of organized retail theft. The analysis in this case will be helpful to prosecutors in determining what constitutes a lesser-included offense, as well as whether a judgment can be reformed on appeal. The question of whether an offense is a lesser-included offense can be quite complicated. The question is not merely an exercise in looking at the elements for each offense and seeing if they match up. Whether the identity of the owner is an element of the offense of theft was not the sole sticking point. The court also decided that unlawful appropriation and intent to deprive were also part of the offense of organized retail theft, even though not specifically set forth within that statute. Understanding that will require a careful reading of the court’s analysis in this case and, frankly, a careful reading of the cases that make up the court’s lesser-included-offense jurisprudence.
Ex Parte Richardson
No. PD-0284-21 8/24/22
Issue:
Does collateral estoppel preclude the State from prosecuting a defendant for aggravated assault against the second victim after a jury acquitted him of capital murder, murder, and aggravated robbery of a first victim, when the incident (gun fight), spanned two locations and had a lapse of time between shootouts?
Holding:
No. The Court distinguished this case from Ashe v. Swenson because the two separate shootings occurred at two separate locations, all involving the same four individuals. The defendant’s acquittal for both capital murder during the course of a robbery and aggravated robbery of the first victim at the first location does not create a collateral estoppel bar for the later aggravated assault of the second victim at the second location. Read opinion.
Commentary:
This case involves a complex fact situation, and, therefore, a complex collateral-estoppel analysis. For that reason, it seems doubtful that the court’s analysis will have application beyond the particular facts of this case. Even so, this is a great analysis of Ashe v. Swenson and the collateral-estoppel doctrine. Prosecutors should definitely read this decision if attempting to prosecute a defendant for an offense after he has already been found not guilty of a related offense.
Texas Courts of Appeals
Waller County, et al. v. Paxton
No. 07-22-00034-CV 8/17/22
Issue:
Did the Attorney General plead facts sufficient to defeat Waller County’s governmental immunity to the AG’s claim that in 2016, the county improperly barred the carrying of handguns in its courthouse in violation of Gov’t Code §411.209 (as that statute existed then)?
Holding:
No. To invoke §411.209’s waiver of immunity, the Attorney General had to plead facts sufficient to support his claim that the county violated that statute’s prohibition against a political subdivision providing specific types of notice that a license-to-carry holder could not possess a handgun in the county courthouse. By failing to properly allege a violation of that statutory prohibition (as it existed in 2016), the statute’s waiver of immunity provision was not invoked. The Court remanded the case to allow the Attorney General 30 days to amend his pleadings to demonstrate the existence of jurisdiction. Otherwise, the Court ordered the trial court to dismiss the case for want of jurisdiction. Read opinion.
Commentary:
After losing this civil interlocutory appeal, the Attorney General has the opportunity to amend his pleadings to show that §411.209 has been violated. However, based upon the court’s analysis, and the manner in which §411.209(a) is worded, it does not appear that the Attorney General will be able to successfully comply with that opportunity. To violate that version of the statute, the governmental entity must (1) make a communication described by §30.06 of the Penal Code, (2) display a sign referring to §30.06, or (3) display a sign referring to concealed handgun licenses. The notice in this case did not do any of those.
Ex parte Vieira
No. 01-21-00464-CR 8/16/22
Issue:
Does the two-year statute of limitations for aggravated assault by a public servant begin on the date of the offense?
Holding:
No.In calculating the end date for the statute of limitations period, Code of Criminal Procedure Article 12.04 provides that the day on which the offense was committed and the day on which the indictment or information is presented are excluded from the computation of time. The court calculated that the statute of limitations therefore ends two years and two days from the date of offense. Read opinion.
Commentary:
There are precious few decisions that construe the computation of a statute-of-limitations period in a criminal case. This is a great, well-analyzed decision.
Thomson v. State
No. 01-20-00434-CR 8/18/22
Issues:
- Does a defendant’s consent to allow an officer to use the defendant’s phone to call someone, include inadvertent navigation by the officer that revealed incriminating evidence?
- Is evidence discovered after trial that the officer who handled the defendant’s phone accessed unauthorized material on a law enforcement database on multiple occasions material, admissible, and favorable to the defendant to require a new trial?
Holdings:
- Yes. The court concluded that the defendant’s consent was broad enough to authorize inadvertent navigation and, as such, the Fourth Amendment was not implicated. By granting consent for the deputy to navigate the phone, the defendant also consented to the officer’s observance of anything that came within his plain view under that consent, including the pornographic images that appeared on the screen through inadvertent navigation.
- Yes. The court held that the evidence discovered after trial that the officer had searched the government database for information on his birth father, divorcing spouse, and new love interest without authorization multiple times reduced the officer’s credibility that his mis-navigation of the defendant’s phone to discover pornography was inadvertent. “With Deputy Payne’s credibility playing such a critical role in the jury’s determination of whether the evidence from the phone could be relied on for conviction, we are persuaded that this new evidence of confessed, unauthorized access of technology on multiple occasions would have impacted the jury’s credibility determination unfavorably to probably trigger Article 38.23 exclusion.” The court remanded the case for a new trial. Read opinion.
Commentary:
The first issue seems more to be a plain-view issue, rather than a scope-of-consent issue. Regardless, it seems likely that the Court of Criminal Appeals would want to review this issue because of the very little authority that exists on an officer making a mistake while engaging in search based upon a defendant’s limited consent. The second issue seems even more problematic for the court. The court did not address the fact that specific instances of conduct on the part of a witness are not admissible to impeach the witness’s credibility, according to Rule 608(b) of the Rules of Evidence. That rule was relied upon by the State in its brief. Expect this decision to be reviewed by the Court of Criminal Appeals.
Attorney General Opinion Requests
No. 0471-KP 8/15/22
Issue:
What is the required mental state under Local Gov’t Code §111.012, which creates a criminal offense for an officer, employee, or official of a county government who refuses to comply with budget preparation requirements? Read opinion request.
Requested by:
Micheal E. Jimerson, Rusk County & District Attorney