February 13, 2015



Texas Courts of Appeals

State v. Moseley

No. 09-14-00279-CR              2/4/15


When the State chose not to identify XLR-11 by its scientific name in the indictment but instead used the “synthetic chemical compound” language found in Texas Health and Safety Code §481.1031, was the indictment subject to a motion to quash for being impermissibly vague?


No. The State does not have to name a Penalty Group 2-A substance specifically because the statute’s list of substances contained within the group is non-exhaustive. Read the opinion.


Wow. This is a wonderful decision. Great job by the State in pleading this charge and appealing the trial court’s ruling. Keep a watch over this case, as it may very well reach the Court of Criminal Appeals. And if the Legislature fails to properly amend the Penalty Group 2-A statute this session, then this decision provides the roadmap for the State to plead, prosecute, and (if necessary) take an appeal in synthetic marijuana cases. The statutory analysis is good, so it should hold up before the Court of Criminal Appeals.

Kane v. State

No. 04-14-00004-CR              2/11/15


When a coworker found a lost flash drive, searched it to see to whom it belonged, and found child pornography on it, was the evidence from the drive subject to suppression on a theory that the coworker’s search was illegal under Texas Penal Code §33.02 (knowingly accessing a computer system without effective consent)?


No. By examining an unmarked and unlocked flash drive left in a common-use computer facility, the coworker did not violate §33.02 because the drive’s lack of security amounted to the defendant’s effective consent. Read the opinion.


This is a well-reasoned decision that applies the relevant caselaw very well. It should hold up if it reaches the Court of Criminal Appeals. The court held that the defendant effectively consented because the coworker viewed the flash drive to return it to its owner (the defendant). The court also held that the coworker properly took the flash drive because it was his ultimate intent to give it to law enforcement. That holding is a correct application of the decision of the Court of Criminal Appeals in Jenschke v. State, 147 S.W.3d 398 (Tex. Crim. App. 2004). Great job by the State and the court in this important case.

Padilla v. State

No. 01-13-00969-CR              2/3/15


1) When a known confidential informant told police a passenger in a car intended to buy drugs from him and had money in the vehicle, did that provide reasonable suspicion for the police to stop the car?

2) Did the defendant, as a passenger in the car, have standing to challenge the search of the vehicle?


1) Yes. Passengers in an automobile are subject to temporary investigative detentions in the same manner as pedestrians, and the information from a reliable CI provided enough reasonable suspicion to stop the car even without a traffic violation being committed. Read the opinion.

2) No. Even if the search of the car and the defendant’s arrest were illegal, a passenger has standing to seek to suppress evidence only if the evidence was obtained through the exploitation of the illegalities suffered by the passenger. On the facts of this case, even presuming anything illegal occurred to the defendant, those illegalities did not factor into the search of the vehicle. Read the opinion.


This case is a good example of why it is so important that the State not respond to a defendant’s legal claims on the defendant’s own terms, especially in the case of suppression issues. If a defendant claims that officers did not have probable cause to arrest, prosecutors are not required to join in on the probable cause argument if all that the officers needed to take action was reasonable suspicion. And if a defendant claims that his arrest was illegal, prosecutors are not required to litigate that issue if the evidence sought to be suppressed was obtained before the defendant was in fact ever arrested.

Office of the Texas Attorney General

Request From the Dallas County Criminal District Attorney

RQ-005-KP                 01/15/15


Does a county have a duty to defend a county official or employee in a disciplinary proceeding arising from an alleged ethical violation committed in the performance of public duties? Read the request.


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