U.S. Court of Appeals, 5th Circuit
No. 21-40091 7/13/2022
Issue:
Were officers authorized to stop and detain the defendant during a gang-related warrant round-up because he met the description of a “Hispanic male” riding a “bicycle with large handlebars” in the same area where a wanted gang member had previously run from officers?
Holding:
No. “Reasonable suspicion to stop someone suspected of criminal activity is a low threshold, but not this low.” Information relied upon to detain the subject of an outstanding warrant “must satisfy a higher level of specificity than if [the officers] were responding to a report of ongoing or very recent criminal activity.” The majority found that the generalized description relied upon by these officers applied to too large a number of people to justify the defendant’s seizure (and eventual arrest on other charges) during this warrant round-up. Read opinion.
Dissent (Jones, J.):
The majority too narrowly focuses on the suspect’s allegedly insufficient physical description while disregarding additional factors—such as the defendant’s location, his evasive behavior, and the dangerous nature of gang round-ups—that, taken as a whole, satisfy reasonable suspicion.
Commentary:
Generally, a physical description of a suspect that the police believe is engaged in criminal activity must be sufficiently specific and particularized to justify initiating an investigative detention of a person who fits that description. That is, a physical description must not be so broad and generic that it plainly applies to a vast quantity of presumably innocent persons. A less specific description may still support reasonable suspicion when there are other factors that contribute to the police’s reasonable suspicion, such as temporal and geographic proximity to recent criminal activity. However, if the police are relying primarily on a physical description to justify a stop or detention, the description should be as detailed as possible (e.g., describe age, height, weight, build, ethnicity, clothing and accessories, hairstyle, tattoos or markings, vehicle make and model, vehicle color and appearance, etc.) to survive judicial scrutiny.
Texas Courts of Appeals
No. 11-19-00399-CR 7/14/22
Issue:
Does a trial judge’s erroneous inclusion in a jury charge of repealed language on the effect of “good conduct time” on parole eligibility result in egregious harm?
Holding:
No. The 11th Court of Appeals agreed with similar holdings from six other courts of appeals and ruled that including repealed language on good conduct time does not necessarily require reversal. In this case, the Court noted that the facts of the case (the defendant murdered her ill, elderly mother by smothering her) and that neither the prosecutor nor defense counsel mentioned good conduct time in their arguments weighed against reversal. Read opinion.
Commentary:
Trial courts are required to submit a jury charge which contains the law applicable to the case and instructions which adhere verbatim to the language set out in the controlling statutes, without deviation. Because the Legislature can (and often does) amend or repeal statutes, trial courts (and the parties) must double-check the effective date of statutory changes or additions, as well as the offense date of the charged crime, to ensure that the correct language from the applicable version of a statute is incorporated into the jury charge. Not all jury charge errors will result in reversal (as here), but such errors can be avoided by not blindly relying on instructions from a “charge bank” or prior template.
No. 09-21-00275-CR 7/8/22
Issue:
Is Health & Safety Code §481.133(a) (Falsification of Drug Test Results) unconstitutionally vague and overbroad on its face?
Holding:
No. The Court rejected the defendant’s argument that “the only thing that makes the conduct illegal is the intent of the actor,” and his assertion that the statute was a content-based regulation prohibited by the First Amendment. Noting that §481.133 focuses on conduct—specifically, using or possessing substances or devices with the intent to falsify a drug test—the Court concluded that the statute “regulates noncommunicative conduct and does not implicate the First Amendment’s protections.” Read opinion.
Commentary:
If you ever need a case for the proposition that intentionally or knowingly possessing a bottle of urine (or some other substance) with the intent of falsifying a drug test is not the sort of expressive conduct that warrants First Amendment protection, this is it.
No. 09-21-00256-CR 7/13/22
Issue:
Does the 90-day time limit the State has to prepare for trial and announce ready under Code of Criminal Procedure Art. 17.151 begin when a felony defendant is detained or when the defendant files an appropriate motion?
Holding:
When a defendant is detained, based on the plain language of Art. 17.151. “The fact there was a COVID-19 pandemic does not alter the result.” The Court also noted that although the Governor declared a state of disaster based on the pandemic, his Executive Order GA-13 suspended Art. 17.151 “only to the extent that it calls for releasing defendants on personal bond. It does not suspend Art. 17.151’s release of defendants on bonds they can afford.” Read opinion.
Commentary:
Practically speaking, a trial court likely will not be aware of an Art. 17.151, 90-day-timeline issue until the defendant brings it to the court’s attention in some way, such as through a motion or other objection. However, this opinion makes clear that the provisions of Art. 17.151 are mandatory and not dependent upon (or triggered by) a defense motion. So, if the conditions of Art. 17.151 are met and no exception applies, the defendant is entitled to release on personal bond or a reduced bond regardless of when or how the trial court becomes aware that the 90-day timeline lapsed before the State announced ready for trial.
No. 04-21-00175-CR 7/13/22
Issue:
Must a defendant whose probation revocation hearing is being held by YouTube live-stream object at that hearing to preserve an argument that he was deprived of his right to a public trial under Code of Criminal Procedure Art. 1.24?
Holding:
Yes. “Because we hold Martinez did not preserve the issue, we do not determine whether holding the revocation hearing via live-stream on YouTube complied with Art. 1.24’s requirement of a public trial.” Read opinion.
Commentary:
This case pertains to only the statutory right to a public trial, per Art. 1.24, not the right to a public trial guaranteed by both the United States and Texas Constitutions. Notably, though, the right to a public trial (both statutory and constitutional) is subject to forfeiture (Marin category three), such that if a defendant does not make a timely, specific objection, he waives error regarding any supposed violation of that right.