Texas Court of Criminal Appeals
Owens v. State
No. PD-0075-24 6/4/25
Issue:
Is Texas Penal Code §42.07(a)(7) unconstitutional as applied to the defendant?
Holding:
Yes. The Court noted that §42.07(a)(7) has two parts: intent and repeated communications sent in a certain manner. The defendant in this case sent repeated insults, accusations, and threats to the defendant’s therapist through text and email. While the court acknowledged the therapist’s “right to be free from unwelcome ideas invading her substantial privacy rights in an essentially intolerable manner,” it found that First Amendment right to communicate “must be delicately balanced with [the therapist’s] privacy right, and the scale is tipped in [the defendant’s] favor in this case. …” The Court concluded that “[b]ecause [the defendant] was prosecuted for the content of his messages, the statute’s application is presumptively unconstitutional and may be justified only if the government proves its application was narrowly tailored to serve compelling state interests. The State makes no such showing here.” Read opinion.
Concurrence and dissent (Parker, J., joined by Schenck, P.J.):
“Although they come to opposite conclusions, both Appellant and the State view the First Amendment issue as an all or nothing inquiry. I see a middle ground between these extremes because I think the focus of our inquiry should be different. The question we should ask is: What would a reasonable jury think it could do?” Read concurrence.
Dissent (Yeary, J.):
In Ex parte Barton, 662 S.W.3d 876 (Tex. Crim. App. 2022), the Court declined to conduct a First Amendment “overbreadth” analysis to determine the constitutionality of §42.07(a)(7) because the statute does not regulate speech. “Today the Court declares that the same statute was applied in such a way that it infringed upon Appellant’s First Amendment free-speech guarantee. Why? Because elements of speech were, in fact, employed to commit the offense. It seems to me that many, if not most, instances in which the statutory provision will have been violated will employ some elements of speech. After all, the statute proscribes repeated harassing electronic communications, and most electronic communications will involve an element of speech.” Read dissent.
Commentary:
Prosecutors almost certainly believed that harassment prosecutions were completely justified after the decisions of the court in Barton and Sanders. This decision could upset that. This defendant repeatedly contacted the victim, noting that he had heavily researched her personal life on social media. The defendant accused the victim of being a prostitute, and he repeatedly accused the victim of raping him. The majority opinion viewed these comments as being protected by the First Amendment. The majority focused upon the fact that the emails and texts were sent to the victim’s professional contacts, and not her personal ones. The majority also focused on the fact that the victim could have blocked the defendant, but chose not to. The majority did not believe that the defendant’s 34 messages to the victim invaded her privacy in an intolerable manner. After this decision, prosecutors should be careful in pursuing these charges and should make sure that they are primarily prosecuting the defendant’s conduct, and not what he was saying to the victim.
Ex parte Estevez
No. PD-0581-24 5/4/25
Issue:
Did a three-day jail sentence for contempt after a defendant violated her bond conditions by committing a second DWI preclude later prosecution for the second DWI?
Holding:
Yes. The Double Jeopardy Clause bars both the imposition of multiple punishments for the same offense and an attempt to impose multiple punishments. The Court concluded that the defendant was punished for the second DWI through the contempt sentence. “Accordingly, any effort to punish her a second time for the second DWI is prohibited by the constitutional bar against double jeopardy.” Read opinion.
Dissent (Schenck, P.J.):
“Whatever might be said of the fractured holding in United States v. Dixon, or our subsequent construction of it, I do not believe that Appellant has carried her burden of showing that the contempt proceeding resulted in an adjudication—at least in any sense captured by the Double Jeopardy Clause—of her second offense or a punishment for the same offense at issue in this proceeding. Because Appellant has not shown that the hearing in her first case necessarily reached and resolved the same merits questions presented in this proceeding (i.e., her guilt in this proceeding), she has not carried her burden under Blockburger v. United States.” Read dissent.
Dissent (Finley, J.):
“The trial court had both subject-matter jurisdiction over the proceeding and personal jurisdiction over Appellant. Consequently, Appellant’s contempt judgment was not void. I would remand the case to the court of appeals to evaluate Appellant’s successive prosecution claim in the first instance.” Read dissent.
Commentary:
Prosecutors should be very careful not to attempt to impose a contempt sanction upon a defendant for engaging in criminal conduct. Instead of revoking the defendant’s bond for committing a new law violation, in this case the trial judge sought to hold the defendant in contempt. In this situation, the elements of the two criminal sanctions were the same — the defendant’s commission of the offense of DWI. Prosecutors should avoid (and suggest that the judge also avoid) this means of enforcing a defendant’s bond conditions.
U.S. District Court, Western District
Fund Texas Choice, et al. v. Deski, et al.
No. 1:22-CV-859-RP 5/23/25
Issue:
Are Texas prosecutors entitled to summary judgment based on sovereign immunity in a lawsuit filed by Texas abortion advocacy groups seeking a declaratory judgment to enjoin state prosecutors from enforcing pre-Senate Bill 8 cases criminalizing abortion, including through laws passed before Roe v. Wade?
Holding:
Yes. Under Ex parte Young, 209 U.S. 123 (1908) and Mi Familia Vota v. Ogg, 105 F.4th 313, 330 (5th Cir. 2024), sovereign immunity applies when: 1) the state official has more than a general duty to see that the laws of the state are implemented; 2) the state official has a demonstrated willingness to exercise that duty; and 3) the state official, through his or her conduct, compels or constrains people to obey the challenged law. The Court disagreed with the plaintiffs’ contention that prosecutors do not have “complete discretion” to decide whether to enforce violations of the pre-Roe laws because Local Gov’t Code §87.011(3)(B) provides that any “adoption or enforcement of a policy of refusing to prosecute a class or type of criminal offense” is official misconduct. Under the first immunity factor, the Court concluded that §87.011 “does not mandate that district attorneys prosecute every case under every criminal statute no matter the specific facts” and also cited Code of Criminal Procedure Art. 2A.101, which provides that the primary duty of a prosecutor “is not to convict but to see that justice is done.” Under the second factor, the Court found that the prosecutor defendants have taken no affirmative action to enforce or threaten to enforce the pre-Roe laws. The Court declined to interpret the prosecutors’ “failure to disavow enforcement as willingness to enforce. … That is, [the] refusal to answer whether the laws would apply to Plaintiffs’ conduct make sense in light of the laws’ uncertain legal status and the lack of legal decisions interpreting those laws. And [prosecutors’] willingness to enforce abortion bans generally says little about [their] willingness to enforce the pre-Roe laws.” The Court concluded that while the more recent Ogg case makes the sovereign immunity requirements in Young“easily avoidable and severely limits plaintiffs’ ability to seek pre-enforcement review of constitutional violations, the Court is bound by the opinion.” Read opinion.
Commentary:
The court felt constrained to follow the Fifth Circuit’s decision in Ogg. Prosecutors should watch this decision to see if it is reviewed further on appeal. But this decision should not be viewed as one determining what laws prosecutors must enforce. Rather, this is fundamentally a decision about sovereign immunity, and it should not be construed beyond that.
Texas Courts of Appeals
State of Texas ex rel. Newell
No. 03-25-00096-CV 4/25/25
Issue:
Did the trial court correctly deny the State’s request for an instruction on the law of parties because the State had alleged that the defendant had acted as a party “with an unknown individual”?
Holding:
No. The State was entitled to the law of parties instruction in the murder case. The Court pointed out in its decision that the trial judge based its conclusions on the due-diligence rule, a rule for reviewing the sufficiency of the evidence in cases where the State has alleged an “unknown” matter. “However, the due-diligence rule is no longer good law, as explained by the Court of Criminal Appeals in Sanchez v. State, 376 S.W.3d 767 (Tex. Crim. App. 2012) (op. on reh’g).” Instead, the trial court should have evaluated the sufficiency of the evidence against a hypothetically correct jury charge. The Court concluded that in a murder prosecution, the identity of a party is not the focus or gravamen of the offense. Therefore, any variance between the pleading and the proof was not material, the defendant was not entitled to a directed verdict on party liability, and the State was entitled to an instruction on the law of parties, which was supported by the evidence. Read opinion.
Commentary:
In addition to the decision of the court of criminal appeals in In re State ex rel. Weeks, this decision is another excellent example of a prosecutor using mandamus relief to force a trial judge to correctly instruct the jurors on the law of parties. Mid-trial mandamus actions should be rare. However, prosecutors can now rely upon this decision to support such an extraordinary remedy.