July 21, 2017

Texas Courts of Appeals

Almanza v. State

No. 10-16-00224-CR        7/12/17


Does a trial court have jurisdiction over a juror who appears for jury duty although not actually summoned for jury service?


Yes. The juror’s appearance and presentation for jury duty places her within and under the jurisdiction of the trial court for the purpose of serving as a member of the jury. Although she may not be the person actually summoned for jury service, this alone does not disqualify her from being a member of the jury. Read opinion.


An interesting decision. It was ultimately decided with little supporting authority, but the result seems correct.

State v. Martinez

No. 13-15-00592-CR        7/13/17


May the State, without a search warrant, independently test a blood sample drawn from a defendant by a medical professional in the course of treatment?


No. There are three separate stages in which a defendant’s 4th Amendment protections may be implicated with regard to blood alcohol tests: 1) drawing the blood sample, 2) testing the blood sample, and 3) obtaining the test results. Although the State may use a grand jury subpoena to receive medical records, including test results, or to seize a blood sample that has already been drawn, a search warrant is required before the State itself may conduct any tests. Read opinion.


This is an interesting decision where the court maneuvers through a gap in Hardy and Huse. If law enforcement ever has a question whether they can lawfully obtain evidence with a grand jury subpoena, they should resolve that question in favor of obtaining a warrant. But the State should be able to obtain a warrant to re-test the blood in this case because it is the test of the blood, not its seizure, that violated the 4th Amendment.

Ex Parte Eribarne

No. 09-17-00036-CR        7/19/17


Is the retaliation statute (Penal Code §36.06) overbroad on its face in violation of the 1st Amendment?


No. Penal Code §36.06(a)(1)(A) provides that “a person commits an offense if the person intentionally or knowingly harms or threatens to harm another by an unlawful act … in retaliation for or on account of the service or status of another as a … public servant.” This statute does not implicate 1st Amendment protections because it punishes conduct—making threats—not the content of speech alone. The strict scrutiny standard for assessing constitutionality therefore does not apply, and the relationship to the State’s legitimate interest in protecting public servants from harm meets the rational basis test. Read Opinion.


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