5th Circuit Court of Appeals
The Woodlands Pride, et al. v. Paxton, et al.
No. 23-20480 11/6/25
Issue:
Should a permanent injunction prohibiting prosecutors and the Attorney General from enforcing Penal Code §43.28—which regulates sexually oriented performances on public property and in the presence of minors—stand because the statute violates the First Amendment on its face?
Holding:
No. The Fifth Circuit vacated the federal district court’s injunction, finding that the parties had not conducted a required analysis of the potential First Amendment issues as required by the U.S. Supreme Court’s recent opinion in Moody v. NetChoice, 603 U.S. 707, 723 (2024). On remand, the federal district court was instructed by the Fifth Circuit to: (1) dismiss claims by the plaintiffs (a drag performer and others in the drag industry) against two state prosecutors, two counties, and the city of Abilene; and (2) reconsider the plaintiffs’ facial unconstitutionality challenge to SB 12 (which enacted §43.28 in 2023) under the Moodyframework. Read opinion.
Concurrence and Dissent (Dennis, C.J.):
“Drag—a costumed, choreographed, and frequently parodic performance that speaks in the idiom of gender—plainly participates in [the First Amendment] protected tradition. … The majority’s effort to collapse an entire art form into a few salacious acts turns these principles on their head.”
Commentary:
With the federal district court’s injunction vacated, Texas prosecutors can now enforce Penal Code § 43.28, also known as the “drag ban” law. This is not the end of the litigation concerning the viability of the law, however, since the Fifth Circuit remanded the case to the federal district court to reconsider the plaintiffs’ facial unconstitutionality challenge in light of Moody, and any decision by the federal district court will likely be appealed again.
Texas Courts of Appeals
Frazier v. State
Nos. 01-24-00662-CR & -00663-CR 11/6/24
Issue:
Was a search warrant affidavit sufficient to justify a search of cell-site location data connecting the defendant to an aggravated robbery?
Holding:
Yes. The affidavit showed a fair probability that two days’ worth of cell-site location data associated with the defendant’s cell phone would confirm that the defendant was in the vicinity of the crime when it occurred, as well as contained sufficient facts showing a connection between the defendant, the phone owner, and the crime. The Court rejected the defendant’s argument that State v. Baldwin required the State to establish a connection between the crime and the cell phone itself, such as its use during the crime. “Baldwin involved the search of a cell phone itself, not cell-site location information maintained by a wireless service provider. And the Court of Criminal Appeals has since clarified that evidence of the use of a cell phone before, during, or after a crime is not even always required to support a warrant to search the contents of the phone.” Read opinion.
Commentary:
Remember that cell-site location information (“CSLI”) differs from information obtained from an actual cellphone because CSLI is considered less personal or intimate, although it still warrants Fourth Amendment protection. Thus, while you need a search warrant supported by probable cause to obtain a person’s CSLI, per Carpenter and Holder, the search warrant affidavit for CSLI does not have to specifically establish a connection between the crime and the cellphone itself. This is important because Baldwin and the cases that follow it essentially require the State to connect a cellphone to the crime to search the cellphone’s contents. (Note: Even if the Baldwin line of opinions say this is not required, the practical effect of their holdings is that it is required.) With this in mind, use a stair-step approach to obtain the evidence you want. That is, you can: (1) seek a search warrant for CSLI, which does not require a specific connection to the target cellphone, so long as other probable cause still substantiates the search/obtaining the CSLI; and (2) if the CSLI places the target cellphone at or near the crime scene, you can use that information to connect the cellphone to the crime and obtain a search warrant for the contents of the target cellphone, which should withstand Baldwin scrutiny.
Pokhrel v. State
No. 02-25-00123-CR 11/625
Issue:
Is the revenge porn statute (Penal Code §21.16(c)) unconstitutional because it fails to require proof of a culpable mental state?
Holding:
No. Noting that the Court of Criminal Appeals has addressed the same implied mens rea issue in discussing the constitutionality of a different subsection—§21.16(b)—in Ex parte Jones, No. PD-0552-18 (Tex. Crim. App. May 26, 2021), “we will imply the same mens rea to prevent Subsection (c) from becoming an unconstitutional strict-liability crime.” The Court also pointed out that the defendant’s texts to the victim showed that he knew his conduct was not innocent, including a message that if she tried to break up with him, he would publish intimate photos of her on a pornographic website and send the photos to her parents if she did not continue to date him. Read opinion.
Commentary:
Though the defendant may seek discretionary review of this holding by the Court of Criminal Appeals, this opinion is thorough, well-reasoned, and rationally relies on the CCA’s analysis in Ex parte Jones as to Subsection (b) of the same offense, which contains a comparable lack-of-consent element. Accordingly, even if the CCA opts to review this decision, it is likely that the CCA will affirm it. Meanwhile, if you prosecute “revenge porn” crimes or other offenses where an implied mens rea may be at issue, keep this opinion in mind and be prepared to reference it as at least persuasive authority if you face a similar challenge that the applicable prohibition operates as an “unconstitutional strict-liability crime.”