Texas Courts of Appeals
No. 03-19-00885-CR 7/15/20
Is Penal Code §33.021—online solicitation of a minor—unconstitutionally vague in violation of the Due Process Clause for failing to define the term “believes”?
No. Due process does not demand that a statute provide “perfect clarity and precise guidance” but only fair notice of what is prohibited. A defendant’s belief as to a person’s age is a clear question of fact that requires a true or false determination. Such a determination may be made by considering all the facts and circumstances in the case, including but not limited to the defendant’s words and conduct. To the extent that there may be “close cases” in which it is difficult to determine the defendant’s belief, these cases are addressed by the due-process requirement that the State prove its case beyond a reasonable doubt. Read Opinion.
A straightforward opinion rejecting the defendant’s argument.
No. 05-19-00889-CR 7/17/20
Are Penal Code §§20A.02(a)(5) and 20A.02(a)(6) —the predicate offenses for the continuous trafficking charges—unconstitutionally overbroad and vague on their face?
No. The Court determined the overbreadth doctrine is inapplicable in this case because the statute criminalizes conduct that is not protected under the First Amendment. The Court also concluded the statute was not unconstitutionally vague because a person of ordinary intelligence could readily understand the concepts of “trafficking” and “forced labor or services” and understand that they may assign their children to perform household chores or to work reasonable hours in the family business without being charged with trafficking the children for forced labor or services. Read Opinion.
This case involves an unusual application of the human trafficking statute: The defendants were indicted for trafficking their adopted children through forced labor in a puppy mill. Kids and dogs normally make any judicial opinion easier to read, but trafficking and First Amendment law are tough—set aside extra time if you read this one.
No. 09-18-00368-CR 7/15/20
Does allowing a lab supervisor to testify about her interpretation of the results of a gas chromatograph test performed by another scientist who worked in the same lab considered testimonial statements in violation of the Confrontation Clause?
No. Unlike testimonial statements in reports, courts do not characterize the raw data generated by machines (such as those used in labs) as the equivalent of a testimonial statement by the individual who used the machine. The difference is logical because the machine did not create the results in anticipation of testifying in a trial. In addition, courts also do not consider data to be the equivalent of hearsay. Thus, a trial court may allow an expert to testify to the opinion the expert formed from his or her independent review of the raw data produced in a lab, even when the data are generated by equipment used by someone other than the expert who did the test. Read Opinion.
Here, the Court correctly extends Paredes v. State, 462 S.W.3d 510 (Tex. Crim. App. 2015), where the court upheld a DNA expert’s reliance on test data generated by another scientist, to blood-alcohol testing. This will be a very useful case.
No. 14-17-00685-CR 7/16/20
Does a misrepresentation in a search warrant affidavit as to the nature of the informant (incorrectly characterizing the DEA confidential informant as an “anonymous” source) constitute a violation under Franks v. Delaware, 438 U.S. 154 (1978)?
No. The failure to identify the anonymous source as a confidential informant was not a Franks violation. In reaching this decision, the Court relied on the Court of Criminal Appeals’s decision in Janecka v. State, 937 S.W.2d 456, 462 (Tex. Crim. App. 1996) (“As we understand Franks, a fabrication intended solely to obscure the identity of an informant for his or her protection is not the type of misrepresentation which offends the Fourth Amendment”). The Court found the agent’s explanation credible as to why the confidential informant reported the information anonymously—i.e., to receive compensation otherwise unavailable. Moreover, whether attributed to a confidential informant or to an anonymous source, the crucial information identifying the defendant and the defendant’s involvement in the home invasion was essentially true and independently corroborated. Read Opinion.
Dissenting (Spain, J.):
“‘Citizen informants are considered inherently reliable; confidential informants are not.’” State v. Duarte, 389 S.W.3d 349, 357 (Tex. Crim. App. 2012). Yet the majority fails to properly address this distinction, and in so doing misapplies Franks v. Delaware, 438 U.S. 154, 155–56 (1978). I conclude that the evidence discovered via the warrant was required to be suppressed under Franks. I would further hold that failure to suppress this evidence was not harmless, and accordingly, I respectfully dissent.” Read Opinion.
If you assist officers with warrants, keep in mind that citizen sources, confidential informants, and anonymous informants are different types of sources with distinct methods of use in a warrant affidavit. See Diane Beckham, W. Clay Abbott, Justin Johnson, and Eric Kugler, Warrants Manual 16-21 (TDCAA © 2018). Many officers do not understand the differences in protecting citizen sources and confidential informants and, thus misuse the concept of the anonymous source when drafting affidavits. Given the messy facts and the dissenting opinion, this case could easily see further review in the Court of Criminal Appeals.