Court of Criminal Appeals
NO. PD-0592-10 : 11/16/11
After the defendant was arrested for DWI, was a search warrant for blood issued without probable cause because the affidavit did not contain the time the defendant was stopped or arrested?
Yes. The affidavit in this case stated the defendant showed signs of intoxication on June 6, but the search warrant was issued June 7, leaving the possibility of a 25 hour gap between the time the officer first stopped the defendant and the time he obtained a search warrant for blood. Distinguishing this case from State v. Jordan, there were no facts within the four corners of the affidavit to establish probable cause that evidence of intoxication would be found in appellant’s blood at the time the search warrant was issued.
Judge Womack would affirm the conviction because the affidavit provided the magistrate with a substantial basis for concluding that there was a fair probability that evidence of intoxication would be found in the appellant’s blood.
A terrible opinion. In dissent, Judge Womack gets it right. Although the timeline could have been better, a fair reading of the affidavit establishes probable cause to believe evidence will be found in the blood. That is all that is needed to justify obtaining evidence. The CCA gets sidetracked and wrongly focuses on support for a particular blood alcohol level. But, it’s the law now, so put more time-based details in your warrant affidavit.
Texas Court of Appeals
No. 01-11-00020-CR : 11/10/11
Did the trial court properly hold that Penal Code §33.021(b) (online solicitation of a minor) is facially valid and not in violation of the Dormant Commerce Clause?
Yes, the statute is not overbroad or vague. The conduct that the statute seeks to control surpasses any potential unlawful applications, the statute is clear enough to give adequate notice of what conduct constitutes a criminal offense, and it is tough to envisage any legitimate commerce burdened by the statute’s provisions.
When this penal law was passed, the leading concern was the potential for a First Amendment unconstitutionality claim. This opinion does an excellent job covering the constitutional field. It provides a good discussion of the scope of the law and how the mental state requirement narrows its application to real criminals. The commerce clause argument was creative, even if a nonstarter.
No. 06-11-00045-CR : 11/15/11
Is a home-rule municipal police force’s jurisdiction for the execution of a valid search warrant countywide?
Yes, following $27,877.00 Current Money of United States v. State, 331 S.W.3d 110, 117 (Tex. App.—Fort Worth 2010, pet. denied), “at least countywide.”
Only an appellate lawyer could appreciate the serious law geek discussion of whether a municipal peace officer has city-wide or county-wide jurisdiction to execute a search warrant.
No. 10-10-307-CR : 11/9/11
In the face of Rule 411, as well as Rule 401 and Rule 403 objections, did the trial court wrongly admit evidence of a determination of liability by a defendant’s insurance carrier?
No, not on the specific facts of this case. The evidence was relevant and the probative value was not substantially outweighed by the danger of unfair prejudice. But the court does “not mean to say that a determination of liability by a defendant’s insurance carrier will always be admissible in the face of a Rule 403 objection.”
Do NOT take this opinion to suggest that offering evidence of a finding of liability by an insurance carrier is a good idea. The Rules of Evidence pretty clearly disfavor such evidence. The court of appeals simply found a very narrow basis for sidestepping those rules in this case. A PDR might be forthcoming.
Texas Attorney General
Request for Attorney General Opinion
Request No. RQ-1014-GA : 10/24/11
RE: Whether the failure to display two license plates on a motor vehicle constitutes a Class C misdemeanor.
Officers doing traffic enforcement will be looking closely at this request for an AG opinion. Many traffic stops are initiated for license plate violations.