Fifth Circuit Court of Appeals
No. 14-11-293 10/8/15
Is a defendant convicted of attempted transfer of obscene material to a minor required to register as a sex offender according to the Sex Offender Registration and Notification Act (SORNA)?
Yes. Although not a specific “sex offense” under SORNA, the defendant’s crime falls under “a criminal offense that is a specified offense against a minor.” Additionally, the Act is not vague because Congress intended to expand the universe of offenses constituting sex offenses, and including an ordinary term, “sex offense,” to capture offenses not otherwise specified is consistent with that intent. Read.
This is a pretty straightforward decision, and the offense involved here clearly falls within the language of the federal statute. The definition of “a criminal offense that is a specified offense against a minor” includes “any conduct that by its nature is a sex offense against a minor.” The offense here would also probably be a “reportable conviction” under Chapter 62 of the Code of Criminal Procedure because its elements are similar to online solicitation of a minor or displaying harmful material to a minor.
Texas Court of Criminal Appeals
No. PD-1076-14 10/14/15
Was the defendant entitled to a jury instruction on sudden passion in his murder trial?
Yes. The law of parties does not apply to a consideration of sudden passion. During the punishment phase of the trial the jury must consider the defendant’s conduct during the crime and whether it was taken under sudden passion, regardless of whether the defendant was a principle or a party. Additionally, the court must look at the evidence supporting sudden passion, and if there is some evidence, even if impeached or refuted, the defendant is entitled to the charge. Read.
This is a rather complicated decision involving the application of the sudden passion mitigation issue when the law of parties is involved. There needs to be only minimal evidence for a defendant to be entitled to a sudden passion instruction. After the court answered the question of how the sudden passion instruction applies when the law of parties is involved (focusing upon the defendant’s state of mind and conduct, not that of the co-defendant), it was easier for the court to decide in the defendant’s favor. It is not often that a defendant prevails on a sudden passion claim, so prosecutors might want to keep this decision handy to see what type of evidence a court might be looking for to justify a sudden passion instruction.
No. PD-0857-14 10/14/15
Is an isolated statement that a blood draw was conducted without a warrant enough to preserve the complaint for appeal?
No. Although it may be true that there were no exigent circumstances to allow the warrantless blood draw, the issue was not properly preserved. An isolated statement that a blood draw was conducted without a warrant is not a specific enough objection to alert the court that it must consider whether there were exigent circumstances to permit the search. Read.
Dissent (Meyers, J.):
Judge Meyers dissents based on the fact that once a defendant shows a search was conducted without a warrant, it becomes the State’s burden to show the search was reasonable. Read.
The court will have other opportunities to decide what exigent circumstances are sufficient to permit law enforcement to conduct a warrantless blood draw of a DWI defendant. This is not that case. This is also not the case to decide the validity of Texas’ implied consent law and mandatory warrantless blood draws under the Fourth Amendment. Those issues will apparently be decided by the court’s decision in State v. Villarreal, which has been pending on rehearing for many, many months.
Texas Courts of Appeals
Baez v. State (4th COA)
No. 04-14-00374-CR 10/14/15
Does CCP art. 38.27, §2(b) violate the ex post facto provision of the U.S. Constitution?
No. CCP 38.37, §2(b) is not an ex post facto law because it does not create a new crime from action that was innocent when it occurred. Nor does it alter the legal rules of evidence to allow less testimony to convict the defendant or change the State’s burden of proof; it merely removes previous restrictions on prior child victim testimony. Read.
There is now a growing body of caselaw upholding the validity of Article 38.37. If a defendant challenges that statute, refer the judge to this decision. Based upon two convictions for continuous sexual abuse of a child, this defendant received two life sentences that were “stacked.” Needless to say, the evidence against him was quite strong.
Wheeler v. State (1st COA)
No. 01-14-00868-CR 9/29/15
Is Penal Code §33.021(c) facially unconstitutional?
No. §33.021(c) is presumed valid because it prohibits conduct, not merely speech. The defendant was unable to show overbreadth, in contrast to the plainly legitimate sweep of the statute, and the statute is not unconstitutionally vague. Additionally, the statute does not implicate the Dormant Commerce Clause because it regulates even-handedly between interstate and local commerce to effectuate a legitimate public interest, and its effects on interstate commerce are only incidental. Read.
There are other decisions upholding the constitutionality of §33.021(c), but this is important because it is recent and occurs well after the old version of §33.021(b) had been declared unconstitutional and after §33.021(b) has been amended to (let’s hope) bring it in line with the First Amendment. Those who prosecute the more serious version of online solicitation of a minor will want to read this decision because the odds are pretty good that the defendant will raise some sort of constitutional challenge to the prosecution.