March 27, 2020

Texas Courts of Appeals

Mason v. State

No. 02-18-00138-CR              3/19/20


Is the Texas’s illegal-voting statute preempted by the Help America Vote Act (HAVA)?


No. The Court concluded that Congress did not, either explicitly or implicitly, intend for HAVA’s mandated provisional-ballot procedure to preempt state laws that allow illegal-voting prosecutions of persons who are ineligible under state law. Nor did Congress, in enacting HAVA, intend to place the burden to determine a voter’s state law eligibility to vote solely on the state officials later charged with counting provisional ballots. Read Opinion.


Reading this opinion will kill an afternoon while you shelter-in-place. There are other useful nuggets in the opinion if you have the task of prosecuting an illegal voter.

In re State

No. 08-19-00183-CR              3/13/20


Does a trial court have statutory, constitutional, or inherent authority to order a complaining witness—though a subpoena duces tecum issued by the defense— to provide defense counsel with her cell phone so that an expert from the Public Defender’s Office could conduct a phone extraction and gather information that could be used both in the pending case and in a related sexual assault case?


No. The Court concluded that the trial court lacked the statutory, constitutional, or inherent authority to order the complaining witness in this case to turn her cell phone over to the El Paso County Public Defender’s Office for inspection and copying of limited data as pretrial discovery. The Court stated that the trial court did not have the statutory authority under the Texas Code of Criminal Procedure’s subpoena and deposition provisions to order the data dump of the phone in question. Read Opinion.

Concurring (Alley, C.J.):

“I join in the majority opinion, and its disposition of the case. That opinion leaves no doubt that a subpoena not issued in connection with any hearing, and not under the procedure set out in Tex. Code Crim. Proc. Art. 24.03, cannot require a citizen to produce their cell phone for a lawyer’s review outside the doors of a courtroom. Because this discovery dispute begins with that action, it was derailed from the start. And no action, particularly a later in camera inspection wherein one party, but not the other, assisted the court in reviewing the phone’s contents, could put the train back on its tracks. Everything here began with the subpoena. The State moved to quash that subpoena, and in my opinion the trial court erred in failing to grant that motion.” Read Opinion.


The Eighth Court of Appeals firmly swats down an instance of subpoena abuse. While here the State was complaining of a subpoena improperly issued for the victim’s phone the day prior to required compliance in the absence of a hearing, defense lawyers lately have challenged the State’s use of similar subpoenas, as reported by noted criminal defense attorney Rusty Hardin at the 2019 State Bar Advanced Criminal Law Course. Expect to see more disputes like this one because cell phones are where the evidence is. Prosecutors should be on the lookout for this defense tactic, and be prepared to use this case to protect your victim.

Sullivan v. State

No. 10-18-00231-CR              3/18/20


Must a trial court grant a defendant’s motion to quash a jury panel when the defendant was not provided access to the juror questionnaires and information until the morning of trial shortly before voir dire when the State had been given access to the list the day prior?


No. The appropriate remedy is not to quash the jury panel. Granting a continuance, if it had been requested, would have been more than adequate to ameliorate any potential harm. Read Opinion.


This is an efficient opinion that may be useful in other appeals where the defense asks for relief that is disproportionate to the issue at hand. It also contains a nice example of non-verbal consent to search.

In re Leger

No. 14-20-99128-CR              3/24/20


Does the trial court have a ministerial duty to dismiss the underlying charges against a defendant upon completion of his deferred adjudication community supervision?


Yes. Under Tex. Code Crim. Proc. Art. 42A.111(a), the trial court has no discretion but to dismiss underlying criminal charges against a defendant upon completion of his deferred adjudication community supervision. Read Opinion.


This is one of those decisions that makes you ask: “I wonder what was really going on?”

Texas Attorney General Request for Opinion

RQ-0341-KP               Request Received 3/24/20


Does Local Government Code §229.001 prohibit municipal or county officials from restricting the sale of firearms through an emergency declaration?