Texas Courts of Appeals
No. 10-16-00081-CR 4/26/17
Is a portion of the online harassment statute (Penal Code §33.07(a)(1)) that prohibits using another person’s name or persona to create an account on a social-network site with the intent to harm the victim unconstitutionally overbroad or vague?
No. Section 33.07(a)(1) is not ambiguous, and speech restricted by §33.07 is not protected by the 1st Amendment. The Court also concluded the trial court did not have the authority to declare the entire statute unconstitutional because the defendant was indicted only under subsection (a)(1). Read opinion.
Dissent (Gray, C.J.):
The dissent disagreed that §33.07(a)(1) is content-neutral. “The statute sweeps clearly protected political and expressive speech within its prohibition. But you have to look at what is said and how it is said to determine if it is prohibited by the statute. That makes it a content based impairment of speech. Content based impairment of speech is presumed invalid and thus must withstand strict scrutiny.” Read opinion.
The Waco court of appeals joins the Dallas and Houston (14th) courts of appeals in upholding the online impersonation statute. See Ex parte Bradshaw, 501 S.W.3d 665 (Tex. App.—Dallas 2015, pet. ref’d); State v. Stubbs, 502 S.W.3d 218 (Tex. App.—Houston [14th Dist.] 2016 pet. ref’d). The existence of a dissent in this case makes it slightly more likely to be granted review at the CCA, but the fact that they have refused two prior petitions indicates the issue is probably dead.
Nos. 14-15-00064-CR, 14-15-00065-CR, and 14-15-00066-CR
Is a trial court’s violation of Code of Criminal Procedure Art. 28.10(c) (Amendment of Indictment or Information) subject to a harm analysis under Cain v. State?
Yes. The Court rejected the State’s argument that because Occupations Code Chapter 1702 provided a general criminal penalty in a single statute (§1702.388) for violations of a variety of statutes in the chapter, amending the indictment to allege violation of a different section of Chapter 1702 than originally charged did not amount to a “different offense.” Using a non-constitutional harm analysis, the Court found harm and reversed the trial court’s decision allowing the State to amend the indictment over the defendant’s objection because the amended indictment charged the defendant with new and different offenses. Read opinion.
There are two important holdings here. First, when the offense is based upon a combination of statutory provision, a change in the makeup of those statutory provisions is a “different offense” even though the penalty for the offense comes from the same section. So, if Subsection (a) provides a penalty for violating (b) or (c), indictments charging (a) + (b) or (a) + (c) are different offenses, even if they provide the same penalty. Because they are different offenses, you cannot amend an indictment or information from charging (a) + (b) to charging (a) + (c) over the defendant’s objection. Second, even though allowing this amendment over objection was error, it can be harmless. Here, the court finds the error harmful because, by the time the indictments were amended to allege the different offenses, the statute of limitations had run as to those offenses and they were not tolled by the offenses originally charged in the indictments.
No. 08-16-00106-CR 4/26/17
May a trial judge order a prosecutor’s office to provide the defense with a copy of a recorded forensic interview of a child victim of sexual abuse if it finds the defense did not have “ample opportunity” to view the recordings?
No. A trial judge is prohibited from allowing copies of recordings of forensic interviews of child victims in sexual abuse cases by Code of Criminal Procedure Art. 39.15. In addition, in this case, the defense had ample opportunity to view the recordings at entities controlled by the prosecutor’s office or the trial court. The defense’s argument that viewing the recordings in the presence of a prosecutor office employee would chill the effectiveness of defense counsel’s representation is insufficient to overcome the clear directives of Art. 39.15. Read opinion.
Disputes about copying forensic videos happen every day. Keep this opinion in your discovery notebook in the event your court goes off the rails regarding these sensitive and intrusive recordings of child victims.
TDCAA Cybercrime Seminar
Registration is now open for TDCAA’s Cybercrime Seminar. The course will run from June 7th to the 9th in lovely San Antonio. Topics will cover the collection and use of electronically stored evidence as well as those offenses commonly committed with the assistance of computers. Don’t forget to book your hotel room now: The TDCAA rate expires 5/16/17! For more information, see the “training” tab on the TDCAA website at tdcaa.com/training/