Court of Criminal Appeals
Nos. PD-0674 / 0675 / 0676-11 : 03/28/12
Did the search warrant affidavit that was imprecise as to the timing of the events it described sufficiently support the issuance of the search warrant?
Yes. The controlled buy, combined with the previous information from at least two informants that drugs were being sold from the address, was sufficient to establish probable cause that a continuing drug business was being operated from the residence.
Concurrence (Price, J.):
Although the court rightly deferred to the magistrate’s determination, a reviewing court would not have needed to meticulously parse the language of the search warrant affidavit if the officer had included the exact date of the controlled buy.
Dissent (Meyers, J.):
The affidavit did not specifically state the time that narcotics were observed at the home; thus, the magistrate could not have determined that probable cause existed and that evidence would be found on the premises. If warrants are to be issued under the concept of a continuing criminal operation, the affiant should be required to present evidence of the operation.
People, please remember that details, especially dates and times, can make the difference between a good and a bad search warrant. Don’t make the appellate court work this hard. On the other hand, the defendant probably didn’t help himself with the purple prose disparaging precedent: “Gates, Schmidt, Davis and their progeny have sucked the life out of Sutton like a deer tick on a border collie.” Reading between the lines, the Presiding Judge didn’t like the tone of that legal argument.
No. PD-0779-11 : 03/28/12
Did the trial court incorrectly deny the defendant’s request to question members of the jury panel about the difference between reasonable doubt and the other lesser standards of proof?
Yes. An inquiry into a prospective juror’s understanding of what proof beyond a reasonable doubt means constituted a proper question. The inquiry did not attempt to assign a precise meaning of reasonable doubt, but rather foster a selection of jurors who would not impose a standard of proof upon the State that was either too lenient or too burdensome.
The defense lawyer’s request was appropriate and, frankly, a very common type of question asked during voir dire. The question didn’t seek to define reasonable doubt. It only sought to get reassurance that the potential jurors understood the relative range of certainty for various types of litigation. Many prosecutors cover the same subject in their voir dire. A shame the prosecutor didn’t signal to the judge that the request was appropriate. Fortunately, likely to be found harmless on remand.
Texas Court of Appeals
No. 05-10-01008-CR : 3/27/12 (not design. for pub.)
Can filing a frivolous lawsuit constitute the “unlawful” act—one that is criminal or tortious—required for the offense of retaliation?
No, filing frivolous pleadings and motions is sanctionable but does not constitute a tortious act, and the criminality of the act was not raised. Thus, filing a frivolous lawsuit is not unlawful, the trial court’s judgment is reversed, and a judgment of acquittal is entered.
Many have wondered what would constitute a “tortious” act that could be prosecuted within the retaliation statute. Well, it ain’t a frivolous lawsuit, apparently. This opinion should have been published, although publishing it might well increase the number of frivolous lawsuits by alerting the nut jobs. Expect a PDR as this actually is a darn interesting question. Might result in some legislative tinkering if judges want clearer penal law protection against vexatious litigation.
No. 08-10-00365-CR : 3/21/12 (not design. for pub.)
Did the trial court properly apply a subjective standard—as reflected by its findings of fact—in ruling that an officer’s stop of a vehicle was not supported by reasonable suspicion?
No, the proper standard disregards the subjective intent or motive of the officer and limits the inquiry to the objective justification for the detention. A DVD recording provided an objective justification for the stop.
The State wins on appeal because (1) there were specific findings of fact, (2) an objective recording contradicting those underlying facts and (3) the court of appeals relied on an objective rather than subjective standard. Well done. It is a rare feat for the State to get a reversal of an order granting a motion to suppress after the trial court has seemingly sided with the defendant on the facts. Next time, the State should object to the irrelevant testimony of a private investigator pretending to be an expert on traffic stops. (Does anyone notice that the opinion never even mentions what the State is prosecuting the defendant for? POCS, murder, what?)
No. 10-09-00355-CR : 3/21/12
Can a judge properly administer an oath over the telephone to the affiant seeking to obtain a blood search warrant when the affiant, after making the oath, signs the affidavit and faxes it to the judge?
Holding (Gray, C.J.,):
Yes is the answer to this “extraordinarily important issue of first impression”—at least, on the particular facts here. Accordingly, the court disagrees with the opinion of the Twelfth Court of Appeals. See Aylor v. State, No. 12-09-00460-CR, 2011 Tex. App. LEXIS 3274 (Tex. App.—Tyler April 29, 2011, pet. ref’d) (not design. for pub.).
Concurring (Davis, J.,):
The majority reaches too far. The trial court’s ruling should stand anyway because the trooper acted in good faith reliance on the warrant when he obtained the blood-test evidence.
Finally, a court addresses this issue head on. Using a very conversational tone, the author writes wonderfully about allowing the flexibility of the language of the statute to accommodate changes in technology. Chief Justice Gray writes a magnificent opinion that should put to rest the question of whether an officer may swear to the facts over the phone. (Of course, it would be just as easy to swear in writing to those facts before another officer acting as a notary, as the law permits.) PDR might well happen, but I can’t imagine the CCA writing a better opinion.