Texas Court of Criminal Appeals
No. PD-0001-17 3/28/18
Does a charge of official oppression require the State to prove beyond a reasonable doubt that the defendant knew her conduct was unlawful?
Yes. Under Penal Code §1.07, unlawful is defined as “criminal or tortious or both and includes what would be criminal or tortious but for a defense not amounting to justification or privilege.” Here, the defendant was a Child Protective Services (“CPS”) investigator accused of official oppression by exceeding the scope of a search in the complainant’s home during an investigation by searching the kitchen cabinets and drawers. Evidence of training the defendant received on the Fourth Amendment and testimony that the defendant stated she was searching for evidence of drug use, rather than the missing child, was insufficient to prove that the defendant knew her actions were unlawful. The unique facts of this case included a blood-stained mattress and walls, prior history of drug use, CPS reports by the mother of the missing child, and lack of medical care for a child recently born in the home. A search of the kitchen for evidence of abuse or neglect was reasonably within the scope of the order in aid of investigation issued by a district court judge. Read opinion.
This decision should not be read to indicate that the defendant/investigator’s actions were in fact lawful. The decision only answers the question of whether the defendant knew that her conduct was unlawful. The decision is very fact-intensive, so it may have little application to other cases, such as one involving a law enforcement officer as a defendant who may have received more training on the Fourth Amendment.
No. PD-1452-16 3/28/18
Is evidence that the defendant, a CPS investigator, confiscated and searched the phone of a minor in emergency custody of the CPS department sufficient to prove that the defendant knew her conduct was unlawful?
No. Evidence was presented that the defendant received training on the Fourth Amendment, the minor did not give anyone permission to seize or search the phone, and the defendant intended to search the phone for evidence of drug use. However, this was insufficient to prove the defendant knew her conduct was unlawful because the training never covered the specific fact situation and the defendant could have reasonably believed she had the authority to confiscate the phone because the minor was in the emergency custody of CPS. Read opinion.
Once again, this decision should not be read to say that the defendant/investigator’s conduct was lawful. This decision, as well as Ross above, reveals just how difficult it can be for the State to prove that the defendant knew her conduct was unlawful.
Texas Courts of Appeals
No. 07-16-00252-CR 3/27/18
Must a jury unanimously agree on the aggravating circumstance for capital murder to convict?
No. In a charge for capital murder, the State is required to allege a predicate murder and at least one of nine possible aggravating circumstances. The aggravating circumstances, which are alternate methods of committing capital murder, may be charged in the disjunctive. Only the victim alleged for the predicate murder must remain the same. A jury may convict as long as all jurors find that one of the aggravating circumstances was met; unanimity on which aggravating circumstance was met is not required. Read opinion.
This decision is a good, basic reminder that unanimity in capital murder cases, as with other result-oriented offenses, is treated differently from unanimity in sexual assault and other conduct-oriented cases. The defendant attempted to apply caselaw involving sexual assault to his case, but the court of appeals relied upon the significant amount of authority showing that a jury does not have to be unanimous as to the different ways of committing capital murder, as long as the jury is unanimous as to the predicate murder.
Texas Attorney General Opinions
Request RQ-0215-KP 3/22/18
What are the obligations of a criminal district attorney under Code of Criminal Procedure Article 39.14 to disclose to a criminal defendant information obtained by the criminal district attorney during the performance of certain civil duties? Read request.
The Attorney General’s response to this request will be important to those offices that handle protective orders, parental rights terminations, and other similar cases that may have related criminal cases attached to them. Note that Article 39.14 is restricted in its application by §264.408 of the Family Code. By its terms, Article 39.14 also does not apply to privileged information. Article 39.14 has been construed not to apply prior to the time that a criminal defendant has been indicted. This request for an opinion only speaks to the application of Article 39.14 and does not reference a prosecutor’s responsibility under Brady v. Maryland or the applicable ethical rules.
The Animal Law Section of the State Bar of Texas is holding its annual Animal Law Institute conference on Friday, April 27 in Austin. The conference is on animal cruelty and topics include the link between domestic violence and animal abuse, Texas animal cruelty laws 101, preparing and prosecuting animal cruelty cases, animal hoarding, dog fighting, ag gag laws, passing animal cruelty laws in Texas, and ethics. More information available here.