U.S. Supreme Court
Denezpi v. United States
No. 20-7622 6/13/22
Issue:
Does the Double Jeopardy Clause prohibit successive prosecutions of distinct offenses arising from a single act if a single governmental entity prosecutes both cases?
Holding:
No. The Double Jeopardy Clause does not bar successive prosecutions of distinct offenses (in this case, offenses under the Code of the Ute Mountain Ute Tribe and the federal Major Crimes Act), even if a single governmental entity prosecutes them. The Court rejected the defendant’s argument that the dual-sovereignty doctrine requires that the offenses be both enacted and enforced by separate governmental entities. Read opinion.
Dissent (Gorsuch, J., joined by Sotomayor and Kagan, JJ.):
“Federal prosecutors tried Merle Denezpi twice for the same crime. First, they charged him with violating a federal regulation. Then, they charged him with violating an overlapping federal statute. Same defendant, same crime, same prosecuting authority. Yet according to the Court, the Double Jeopardy Clause has nothing to say about this case. How can that be? To justify its conclusion, the Court invokes the dual-sovereignty doctrine. For reasons I have offered previously, I believe that doctrine is at odds with the text and original meaning of the Constitution.”
Commentary:
It is doubtful that this case will apply to local, state prosecutors. But here goes. In this case, the defendant was prosecuted for both assault and battery (in tribal court, also known as CFR court) and aggravated sexual abuse (in federal court). The offenses arose out of the same conduct—the sexual assault of the victim. The defendant essentially conceded that the offenses were distinct (not the same). That should have ended the double-jeopardy inquiry. But the defendant also claimed that, under the dual-sovereignty doctrine, the offenses were prosecuted by the same “sovereign”—the United States. The Court reaffirmed that the Double Jeopardy Clause prohibits prosecution of a defendant more than once for the “same offense.” The Clause does not speak to the “same sovereign.” Previous case law has held that CFR or tribal prosecutions are from a different sovereign from that of the United States. In this case, under this analysis, whether there was different sovereigns did not matter.
Texas Court of Criminal Appeals
Romo v. State
No. PD-0456-21 6/15/22
Issue:
Can a video that contains no sexual acts but contains a lewd exhibition of child genitalia be considered child pornography under Penal Code §43.26?
Holding:
Yes. Because the Texas Legislature has not defined “lewd exhibition of the genitals” by statute, the Court looked to a six-factor analysis used in U.S. v. Dost, 636 F.Supp. 828 (S.D. Cal. 1986) to determine whether depictions of naked children are “lewd.” The Court concluded that lewdness must be decided on a case-by-case basis, looking at the overall content of the visual depiction and considering the minor’s age. “The focus is on whether the depiction — not the minor — brings forth the genitals or pubic area to excite or stimulate.” Read opinion.
Concurrence (Walker, J.):
“I believe the majority’s analysis under the sixth Dost factor creates a standard that would have reviewing courts examine alleged child pornography through the lens of the “pedophile viewer” in determining whether material constitutes a “lewd exhibition of genitals.” This standard is unnecessarily difficult to apply, too broad, and unnecessary to resolve the sufficiency question we are being asked to determine.” Read concurrence.
Commentary:
As did the court of appeals, the court here applied the (non-binding) factors from Dost. The key difference appears to be in the application of the sixth factor. In that respect, the court held that the video’s exhibition of naked girls was designed to elicit a sexual response in a viewer who is specifically looking for videos featuring young, naked girls—in other words, a pedophile. This is not the typical child pornography case, so it should be applied carefully to future cases. This defendant was also convicted of continuous sexual abuse of a young child and indecency with a child.
Texas Supreme Court
Paxton, et al. v. Longoria, et al.
No. 22-0224 6/10/22
Issue:
What is the scope of the provision in newly enacted Election Code §276.016(a)(1), making it an offense for named officials to solicit the submission of applications to vote by mail from people who have not requested an application?
Holding:
The scope of “solicits” is not limited to a demand for submission of an application for a mail-in ballot. Answering a certified question from the 5th Circuit, the Court concluded that “the statute’s definition of ‘solicits’ is not so narrowly limited as to cover only seeking applications for violative mail-in ballots, nor is it so broad as to cover speech that merely informs listeners that they may apply.” Read opinion.
Commentary:
This is a decision in which the federal appellate court has “certified” a question to the Texas Supreme Court. That means that, rather than construe a state statute themselves, the federal appellate court would prefer that the state’s highest court do that. This construction will then presumably be binding on the federal court as it deals with the lawsuit before it. Even though local district attorneys are involved in the lawsuit, it is a civil lawsuit, so the questions were not asked of (“certified to”) the Court of Criminal Appeals. It is not clear whether the Texas Supreme Court’s broader construction of the term “solicits” will aid the plaintiffs in their First Amendment lawsuit against the Texas Attorney General and local district attorneys. It is not even clear whether the plaintiffs’ intended “solicitation” will be considered “solicitation” by the Attorney General or the local prosecutors. There is a great deal more litigation regarding standing and sovereign immunity before a federal court might even get to the merits of the plaintiffs’ claims.
Texas Courts of Appeals
Martinez v. State
No. 01-20-00760-CR 6/14/22
Issue:
Can two curb strikes, combined with other circumstances surrounding a suspect’s driving, give an officer reasonable suspicion that the suspect might be drunk, even if dashcam footage is ambiguous?
Holding:
Yes. The Court noted that two courts of appeals in unpublished opinions have found curb strikes to be sufficient reasonable suspicion to support a drunk driving stop, and another court of appeals has concluded that a driver’s near miss of a curb may give rise to a reasonable suspicion that a driver may be intoxicated. The Court also concluded that the “dashcam footage is not the kind of indisputable visual evidence that would allow us to disregard [the officer’s] testimony that he saw Martinez strike the curb twice. Admittedly, the footage does not show that Martinez struck the curb. But the footage also does not refute that he did so.” Read opinion.
Commentary:
This is a decision that could be helpful to prosecutors in traffic-stop cases, especially where a curb strike is involved or when a prosecutor is confronted with non-conclusive video evidence that allegedly is different from an officer’s testimony. Since the dash-cam video footage in this case did not clearly refute the officer’s testimony, the trial judge was free to find in favor of the officer’s testimony, and the court of appeals was free to defer to the trial judge’s determination.
State v. Lausch
No. 14-21-00133-CR 6/9/22
Issue:
In an indecency with a child case, where a video-recorded interview potentially favorable to the defense had been destroyed, did the trial judge correctly grant a motion for new trial after the judge inadvertently attached to the jury charge an excerpt from an appellate case discussing the spoliation doctrine?
Holding:
Yes. When the State fails to exercise reasonable care to preserve relevant and material evidence, the defendant may be entitled to a spoliation instruction, which states that the jury may infer the missing evidence is unfavorable to the State. In this case, the jury charge contained “exactly what the Court of Criminal Appeals … concluded should not be included in a jury charge: an excerpt from a judicial opinion indicating that ‘proof of “X” fact fulfills ‘Y’ legal requirement—in this case, an excerpt wherein an appellate court has held that the negligent loss of evidence fails to rise to the level of a due process violation.” The Court concluded that the trial judge correctly decided to grant the defendant a new trial. Read opinion.
Concurrence (Jewell, J.):
“[L]anguage in a jury charge that alludes to a specific fact, even in a non-specific way, such as the absence of a videotape recording, may constitute an impermissible comment on the weight of the evidence because it is an indirect reference to the fact and might be construed as judicial endorsement or imprimatur. I agree that the trial court’s inadvertent attachment of this particular case law excerpt constituted error under the present circumstances.” Read concurrence.
Commentary:
In this case, the defense requested a spoliation instruction, and the trial judge denied the instruction because the evidence showed nothing more than mere negligence on the part of law enforcement in losing some evidence. Consequently, the issue of spoliation was not an issue to be decided by the jurors. Nevertheless, the court of appeals found that the defendant was harmed by the case-law excerpt that dealt with whether a spoliation instruction should have been given in that other case. It will be interesting to see if the Court of Criminal Appeals wishes to review this very unusual case.
Attorney General Opinions
No. KP-0408
6/6/2022
Issue:
Must a county community supervision and corrections department (CSCD) remit locally generated funds to the State as unexpended balances at the end of a biennium?
Conclusion:
No. Chapter 509 of the Government Code defines “state aid” as funds appropriated by the legislature to the Community Justice Assistance Division of the Texas Department of Criminal Justice (TDCJ) to provide assistance to local CSCD departments. Because the term does not include funds locally collected and maintained by a department, TDCJ may not require a CSCD to remit locally generated funds to the State’s general revenue. Read opinion.
Commentary:
This opinion is a straightforward exercise in statutory construction. As such, it seems to be a valid resolution of the issue.
Attorney General Opinion Requests
RQ-0464-KP
6/13/22
Issue:
Is the F-5 “Separation of Licensee” form propounded by the Texas Commission on Law Enforcement an “official government document” such that an intentional and knowing false entry on the form would subject a person to criminal prosecution for tampering with a governmental record under Penal Code §37.10? Read request.
Requested by:
Brian Middleton, Fort Bend County District Attorney