Texas Courts of Appeals
State v. Nassour and Chody
Nos. 03-24-00535-CR & -00536-CR 6/13/25
Issue:
Can the State appeal a judge’s written order constructively quashing parts of the State’s indictment as being protected by the federal Privacy Protection Act?
Holding:
Yes. Despite the trial court framing its order as a non-final, contingent ruling in limine, the Court concluded that an order is not a ruling in limine “when it makes a definitive, final ruling on the permissible scope of questioning or the admissibility of evidence.” The Court pointed out that the State can appeal orders that dismiss only a portion of an indictment, as in this case. The Court also found the trial judge incorrectly ruled that video footage at issue in the tampering with evidence and conspiracy cases against the defendants fell under the Privacy Protection Act. “There is no textual support for an implied preemption of the enforcement of state criminal statutes involving criminal tampering or conspiracy to tamper even when the evidence allegedly tampered with is the type of documentary material protected by the PPA and even when the defendants are government officers or employees. … A high threshold must be met if a state law is to be preempted for conflicting with the purposes of a federal Act. That threshold is not met in this case.” Read opinion.
Dissent (Byrne, C.J.):
The dissent would dismiss the appeal for lack of jurisdiction. “The district court’s only written order on the PPA issue appealed here disclaims preemption. … Significantly, the State’s notice of appeal challenges a purported preemption ruling on August 14, 2024, not found in any written order. The State shoehorns its appeal into Article 44.01(a)(1), which is limited to ‘an order of a court in a criminal case if the order dismisses an indictment, information, or complaint or any portion of an indictment, information, or complaint.’ … In the absence of a written order ruling that the PPA preempts Nassour’s prosecution, we lack jurisdiction over this attempted appeal. Accordingly, I dissent.” Read dissent.
Commentary:
This is a very unusual case, in which the State has made some novel arguments—arguments that have been adopted by the majority of the court of appeals. It is not certain that the legal principles involved—(1) whether the State can appeal, and (2) whether federal pre-emption applies—will arise in other cases in the same way. In this case, the State alleges that the defendants—a sheriff and an assistant county attorney—tampered with evidence and conspired to tamper with evidence by releasing video evidence to a “cop show” that airs on the A&E Network, knowing that the video evidence depicted an in-custody death and intending to impair the availability of the evidence in the death investigation. With regard to the State’s ability to appeal, the State attempted to bring an appeal from a dismissal of a portion of an indictment based upon the trial court ruling that the video evidence was not admissible. The appeals court provides legitimate back-up for this aspect of its holding, but it is nonetheless an unusual application of prior case law, giving the State the right to appeal.
As to the second issue on the merits (federal pre-emption), the dissenting opinion is correct that the trial judge expressly disavowed any reliance upon pre-emption in its ruling. However, the majority noted that the trial court’s ruling was based upon pre-emption because the trial court ruled that the video evidence was covered by the federal statute, thus preventing at least a portion of the State’s prosecution. The majority got around the pre-emption question by noting that the video evidence was in possession of law enforcement when the defendants released the video to the “cop show.” At that time, there was, therefore, nothing for the federal statute to pre-empt. This is the second significant pre-emption decision issued in the last few months, after the Corpus Christi Court of Appeals declared a portion the smuggling statute to be unconstitutional in Gutierrez v. State in December. Prosecutors may want to wait until the Court of Criminal Appeals has been given a chance to review these two holdings before relying upon either of the intermediate appeals court holdings on pre-emption as precedent. In the meantime, read this decision slowly (and maybe more than once) because it includes the application of complex legal principles to some unusual facts.
State v. Hardridge
No. 05-24-00545-CR 6/16/25
Issue:
Does the sworn oath requirement for search warrant affidavits require an affiant to recite a verbal oath?
Holding:
Yes. Merely signing an affidavit that includes oath language is insufficient to satisfy the sworn-oath requirements for affidavits. “Having failed to take an oath and swear to the facts of his probable-cause affidavit before a qualified officer, the officer in this case failed to meet the essential oath requirement.” The Court also rejected the State’s argument that the good-faith exception should apply to avoid excluding the evidence because the officer executed the search warrant believing that his affidavit had been sworn, and the warrant itself states it was supported by a sworn affidavit. “We conclude that the State has not shown that the officer acted in “objective good faith reliance” because the officer’s subjective beliefs are irrelevant, and because he could not in objective good faith rely on the warrant when an objectively reasonable officer would have personal knowledge it was not supported by a sworn affidavit.” Read opinion.
Commentary:
An affidavit for a warrant still requires an oath. An officer cannot merely swear to himself and then send the affidavit to a judge to be signed. Keep this decision close if an officer questions how an oath for an affidavit should be made.
State v. Uhl
No. 03-23-00496-CR 6/11/25
Issue:
Is the State required to test all potential DNA evidence in its possession, and if so, does any delay resulting from the testing weigh against the State in a speedy-trial analysis?
Holding:
No. “To assign delay resulting from DNA testing requested by the defense to the State would effectively permit a defendant to create a speedy-trial violation by moving to test all available DNA evidence in a sexual-misconduct case and place the inevitable delay at the State’s feet.” The Court concluded that the trial court erred in granting the defendant’s motion to set aside the indictment and dismiss the case with prejudice based on the defendant’s speedy-trial complaint. Read opinion.
Commentary:
The delay in this case was six years—quite a long time. But in addition to the need for DNA testing, the delay was based in large part on the pandemic and the fact that the defendant himself moved for many continuances during that time period. The defendant also could not show that he was actually prejudiced by the delay. Especially since this is a decision in a State’s appeal, this is an extremely thorough and well-reasoned application of the factors from Barker v. Wingo. Prosecutors faced with a defendant’s speedy-trial motion should definitely read this decision.
Tristan v. State
No. 10-23-00373-CR 6/12/25
Issue:
Does driving fall within the meaning of the term “trafficking” under Penal Code §20A.02?
Holding:
Yes. “Driving falls within the plain meaning of the term transport. … Based on the plain text of the statute, it is possible that the legislature intended to classify [the defendant’s] conduct as trafficking.” The Court rejected the defendant’s argument that he did not transport the two victims for the purpose of engaging in sexual contact. “The applicable statute does not require a showing that the defendant trafficked a child with the intent to commit the offense of indecency with a child. The plain language of the statute places a person of ordinary intelligence on notice that transporting, including by driving, a child to another location where he then commits the offense of indecency with a child constitutes the offense of trafficking.” Read opinion.
Commentary:
This decision should be very helpful for prosecutors in trafficking cases. The court includes a thorough analysis regarding the constitutionality of the relevant statute and the admissibility of extraneous offenses. The most important part of this decision, however, is the holding that the trafficking statute does not require proof that the defendant trafficked a person for a particular sexual purpose. (The defendant was one of the drivers for a group of girls to various softball games.) Rather, the State must prove that the defendant transported the child and caused the child to be the victim of a sexual crime.