Texas Courts of Appeals
Root v. State
No. 14-19-00075-CR 1/21/21
Issue:
In a failure to register as a sex offender case under CCP Art. 62.051(f), when the indictment alleged that the defendant failed to provide law enforcement his email address within seven days after his release from prison, but the evidence showed that the defendant had not established that email address until after the seven-day period, is the evidence sufficient for conviction?
Holding:
No. Art. 62.051(f) provides two ways of failing to report an “online identifier,” such as an email address: (1) failing to provide the information within seven days of release from prison, or (2) failing to provide it the first day a local law enforcement authority allowed him to verify his sex offender registration. The defendant created a Gmail account more than seven days after he was released from prison but several months before he first met with local law enforcement. By pleading only the “within seven days of release” option, the State could not expand the timeframe to the date the defendant reported to local law enforcement. Read opinion.
Commentary:
Appellate reversals for sufficiency of the evidence are very rare and almost exclusively occur where the State alleged the wrong part of the statute in the indictment, as in this case.
Ex parte Ordonez
No. 14-19-01005-CR 1/26/21
Issue:
Does Penal Code §42.07(a)(7), which prohibits harassment via electronic communication, violate the 1st Amendment?
Holding:
Yes. The 14th Court of Appeals again holds that §42.07(a)(7) is unconstitutional on its face because of overbreadth. The Court noted that this question has divided Texas’ courts of appeals, and those courts who have upheld the statute’s constitutionality have relied on Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010), which found the similarly worded telephone-harassment statute constitutional. The Court found Scott is distinguishable because the unwanted telephone calls “invade[d] the privacy of the home.” The Court of Criminal Appeals is considering the overbreadth question for §42.07(a)(7) in Ex parte Barton, No. PD-1123-19 (submitted March 18, 2020). Read opinion.
Commentary:
The Court distinguishes harassing electronic communications like text messages from harassing telephone calls, but that distinction is weak. All should be resolved when the Court decides Barton.
Texas Attorney General Opinions
KP-0351 1/26/21
Issue:
Do a yard sign and a social media post qualify as an “announcement” for candidacy for another office, thereby triggering the automatic resignation provision of Article XI, §11 of the Texas Constitution?
Conclusion:
To qualify as an announcement under these provisions, the person’s statement must be made in a public setting and be clear and unequivocal. Whether any given statement satisfies these requirements will involve questions of fact, but to the extent a person posts campaign signs on public property, visible to the general public, urging his or her election, a court would likely conclude that such acts constitute an announcement for purposes of Article XVI, §65. A city councilmember may not rescind an announcement for candidacy to avoid application of the automatic resignation provision. Read opinion.