May 24, 2019

Texas Courts of Appeals

Martin v. State

No. 02-18-00333-CR        5/16/19

Issue:

May an officer enter a private residence and observe or seize contraband following a lawful intrusion by a firefighter who has already observed the contraband in plain view?

Holding:

Yes. The exigent circumstances of a burning building extend beyond the time it takes for firefighters to put out the fire. Fire officials may remain for a reasonable time after to ensure the fire will not restart and investigate its cause. Under the plain view doctrine, firefighters may seize evidence of criminal activity discovered while carrying out their duties. An officer may be allowed to “step into the shoes” of the firefighters to seize the evidence while the firefighters continue their work. Here, the officer’s search did not extend beyond that of emergency personnel already on scene. He did not conduct a general search of the residence—only seized the evidence in plain sight—and the search did not extend beyond the time necessary for the firefighters to complete their duties. Read opinion.

Commentary:

This appears to be a case of first impression in Texas. The court of appeals follows the majority of other jurisdictions that have allowed the warrantless seizure of contraband found in plain view during a fire department response. The firefighters in this case had safety concerns that led them to request the entry of officers, so the facts of this case are particularly sympathetic to the State. Note, too, that the police obtained a warrant, even though it may not have been necessary. The warrant was a factor that helped make them look reasonable here. Finally, if firefighters on a call see evidence of crime or contraband in a house, they can simply pass the information on to police for use in a search warrant. Ultimately, this opinion paints a picture of good work by public agencies working together.

Webb v. State

No. 10-17-00149-CR        5/15/19

Issue:

Does asking multiple questions during voir dire about the possibility of children lying and cross-examining witnesses about the opportunity for complainants to fabricate stories open the door to the introduction of extraneous offenses?

Holding:

Yes. One permissible purpose for extraneous-offense evidence is to rebut the defensive theory of fabrication. Here, the defense put fabrication at issue by questioning prospective jurors about their assumptions of children telling the truth and the possibility of children changing their stories or lying about serious incidents. Additionally, the cross-examination of the complainant and investigating officer went beyond pointing out inconsistencies in testimony and questioned the opportunity for witnesses to fabricate stories. Read opinion.

Dissent (Gray, C.J.):

The defense attorney did not cross the line from basic advocacy to “opening the door” to extraneous-offense evidence. Any attack on the victim’s truthfulness should not be sufficient to raise the defensive theory of fabrication. The defense attorney did not open the door by merely revealing inconsistencies in the victim’s testimony and statements to police. Read opinion.

Commentary:

How many questions may a defense attorney ask before the State is allowed to bring in extraneous offenses? This case gives a good discussion of a fairly limited defense that nonetheless permitted the State to adduce extraneous offenses in response. The Court did not discuss the broader basis for admission under Code of Criminal Procedure art. 38.37, §2.

Moon v. State

No. 06-18-00128-CR        5/15/19

Issue:

Does the Confrontation Clause require prior testimony from an unavailable witness to have been given in the same case?

Holding:

No. The Confrontation Clause prohibits “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had a prior opportunity for cross-examination.” There is no requirement that the testimonial statements be from the same case. Here, the defendant was previously convicted of aggravated assault of a police officer. During the punishment phase of that trial, a witness testified that the defendant had attempted to flee the State to avoid arrest. The defendant was later indicted for bail jumping and failure to appear, but the witness died before the start of the new trial. The State was allowed to admit the witness’s testimony from the aggravated assault trial because the witness was “unavailable” (dead) and the defendant had had the opportunity to cross-examine her during the original proceeding. Read opinion.

Commentary:

This is a fairly straightforward application of confrontation principles.

Burwell v. State

Nos. 01-18-00300-CR to 01-18-00303-CR               5/21/19

Issue:

Is a review of user-stored data on company servers by a private company a search violating the Fourth Amendment?

Holding:

No. Fourth Amendment protections do not extend to the actions of private parties unless the party is acting as an agent of the government. Whether a private party is acting as an agent is determined by: 1) whether the government knew of, and acquiesced to, the intrusive conduct, and 2) whether the party intended to assist law enforcement efforts or, instead, to further his own ends. In this case, the initial search was done by Adobe, a private company not associated with law enforcement. An employee reported child pornography found on the defendant’s photo storage account to the National Center for Missing and Exploited Children, which then sent the tip to the Houston Police Department. There was no evidence that law enforcement was aware of Adobe’s search or that Adobe performed the search solely to aid law enforcement. Read opinion.

Commentary:

Keep an eye on this case. Cloud service providers are important allies in the fight against child pornography. The court’s opinion gives the issue—whether a service provider can be considered a state agent—a very thorough treatment, but further review is probable given the volatile state of the law.

Texas Attorney General Opinions

KP-0251                                5/22/19

Issue:

Are individuals convicted of a felony eligible to run for office in Texas after completing their sentence and having their voting rights restored?

Holding:

No. Election Code §141.001(a)(4) provides that to be eligible as a candidate for public office a person must “have not been finally convicted of a felony from which the person has not been pardoned or otherwise released from the resulting disabilities.” The restoration of a convicted felon’s qualification to vote under Election Code §11.002(a)(4)(A) after fully discharging a sentence does not restore his or her eligibility to hold public office. Read opinion.

KP-0249                               5/22/19

Issue:

Does a local law enforcement agency’s “no-chase” policy limit a peace officer’s duty to prevent and suppress crime or exposes the peace officer to civil liability for later harm caused by the offender the peace officer failed to chase?

Holding:

No. While Code of Criminal Procedure art. 2.13 imposes a duty on peace officers to prevent and suppress crime, policies that encourage officers to seek alternative methods of pursuit in an attempt to ensure the safety of the public and law enforcement officers generally do not conflict with this duty. An officer observing a governmental employer’s no-chase policy is unlikely to incur personal liability for harm caused by a fleeing offender. In instances when an officer exercises discretion under a no-chase policy, the officer will likely qualify for official immunity. In circumstances where official immunity does not apply, an officer will have other defenses, as courts have generally held that an officer has no legal duty to arrest a suspect to prevent third-party injury. Further, Tort Claims Act §101.106(f) entitles a governmental employee to dismissal if a suit is based on conduct within the scope of their employment and could have been brought under the Act against the governmental unit. Read opinion.

Announcements:

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TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected]