Texas Court of Criminal Appeals
State v. West
No. PD-0236-20 10/27/21
Issue:
Is the statute of limitations tolled by the pendency of an initial indictment charging a completely different drug from the subsequent indictment and also charging not only possession but also attempted possession by all of the possible statutory manners and means?
Holding:
No. Merely switching out the names of drugs in a subsequent indictment doesn’t always mean the indictment still alleges the same conduct allowing for the statute of limitation to be tolled. Unlike in Hernandez v. State, 127 S.W.3d 768 (Tex. Crim. App. 2004), in which the Court held the statute of limitations could be tolled for a defendant who was initially indicted for possession of amphetamine then subsequently indicted for possession of methamphetamine, the Court distinguished this case because the subsequent indictment alleged various ways the defendant could have committed the offense. Both indictments broadly alleged not only possession but also attempted possession by misrepresentation, fraud, forgery, deception, or subterfuge. As such, the second indictment did not give the defendant adequate notice necessary to defend against the indictment for Oxycodone. Read opinion.
Dissent (Yeary, J.):
The Court should “implement the simple, straightforward language contained in Article 12.05(b) … that the statute of limitations is tolled during the pendency of any ‘indictment, information, or complaint’ against the defendant.” Read opinion.
Commentary:
The majority stated, “Possessing Tramadol after deceiving a doctor into writing a prescription for the drug [first indictment] describes completely different conduct, acts, or transactions from attempting to possess Oxycodone by forging a doctor’s prescription and presenting that forgery to a pharmacist [second indictment].” We can argue all that we want about whether possession and attempted possession are all that different, or whether deceiving a doctor and forging a doctor’s prescription are all that different. The bottom line is that is the law. If you want a prior indictment to toll the statute of limitations for your most recent indictment, you have to read this decision and Marks as well. Do not merely compare your facts to those of Hernandez. You must conduct the analysis required by Marks and West.
Diaz v. State
No. PD-0712-20 10/27/21
Issue:
Were misrepresentations in a warrant affidavit—about (1) a confidential informant (CI) characterized as an anonymous tipster, (2) the officer reaching out to the DEA instead of the DEA reaching out to the officer, and (3) the officer asking the DEA to check phone numbers when the DEA did this without the officer asking—considered material in violation of Franks v. Delaware?
Holding:
No. Omitting that an anonymous tipster was a CI in this case was not material because the credibility of CIs and anonymous sources is evaluated the same way in determining probable cause, and the affidavit included other corroborating and substantiating evidence. Additionally, the defendant failed to prove the implication that the officer’s training prompted him to contact the DEA, and any falsehood about who prompted the phone-number check was unnecessary for the probable cause finding. As a result, the Court held the disputed statements in the affidavit were not material. Read opinion.
Commentary:
As Franks cases go, this is pretty straightforward and easy for the Court to handle. The allegedly false statements and/or omissions were not material (or even false). Therefore, the Court did not even need to reach the step of determining if the untainted information in the affidavit was sufficient to establish probable cause. Another thing that can be taken from this decision is that the Court has still not squarely decided whether Franks applies to omissions, and not just outright false statements. But you should assume that Franks applies to omissions, as well as statements.
Ex parte Rion
No. PD-1096-19 10/27/21
Issue:
Does collateral estoppel bar a subsequent prosecution for reckless aggravated assault causing bodily injury to a driver of a vehicle after a jury found the defendant not guilty of manslaughter and found that he was not reckless in causing the collision which led to the death of the vehicle’s passenger?
Holding:
No. Because manslaughter and aggravated assault causing bodily injury are “result of conduct” offenses, “the results—death and bodily injury—are different and the culpable mental state of recklessness attaches to those results.” In the manslaughter trial, the defendant was found not reckless and “not aware of a risk of death as a result of his conduct.” However, the jury’s verdict did not determine whether the defendant “lacked awareness of a risk of bodily injury as a result of his conduct.” Therefore, collateral estoppel does not bar the subsequent prosecution for reckless aggravated assault causing bodily injury after the defendant was found not guilty of manslaughter. Read opinion.
Commentary:
If your defendant has relied upon collateral estoppel to prevent a subsequent prosecution after a previous acquittal, this is a good decision to read. And be careful. The State presented two reasons for rejecting the defendant’s collateral-estoppel claim, but the Court did not accept one of them—causation of death vs. causation of bodily injury. But the Court explains well how a decision on awareness of the risk of death does not necessarily mean that the jury has made a decision on awareness of the risk of bodily injury.
Texas Courts of Appeals
Ex parte Lowry
No. 01-20-00858-CR & -00859-CR 10/26/21
Issue:
Is Penal Code §43.262, the statute prohibiting the possession or promotion of child erotica images, unconstitutionally overbroad?
Holding:
Yes. This new statute is an invalid content-based restriction that attempts to regulate visual material that is inherently expressive and is protected by the First Amendment. Based on the legislative history, there is no evidence (and the State did not provide any) showing a causal link between child erotica images and the sexual abuse or exploitation of children, thus necessitating the prohibition. Holding that the statute also violates the First Amendment for being overbroad, the Court noted the statute could apply to a teenager who takes and publicly posts a “selfie,” thereby making the teenager a victim and an offender. Read opinion.
Commentary:
The court found that, despite its location in the section of the Penal Code that deals with obscenity, this statute does not actually deal with obscenity because it does not require all of the parts of the definition of “obscenity” from Miller v. California. The court also found that the statute does not deal with child pornography. There are statutes that already deal with child pornography, but this statute goes even further to encompass things that are not child pornography. Now you may not like it, but after the court of appeals made those two determinations, the First Amendment claim raised by the defendant was bound to succeed. Because the court of appeals has declared a Texas statute to be unconstitutional, expect a review by the Court of Criminal Appeals, but do not expect a different result. The constitutional analysis by the court of appeals is thorough and, frankly, excellent. We had warned that this might happen in the 2017 Legislative Update and in the Charging Manual, and so it has.
Griswold v. State
No. 05-19-01561-CR 10/26/21
Issue:
Is Penal Code §42.072(a) unconstitutionally overbroad and vague when the alleged stalking includes the type of repeated electronic communications that constitute an offense under §42.07(a)(7)?
Holding:
Yes. Agreeing with the courts of appeals in Ex parte Barton, 586 S.W.3d 573 (Tex. App.—Fort Worth 2019, pet. granted) (op. on reh’g) and State v. Chen, 615 S.W.3d 376, 384‒85 (Tex. App.—Houston [14th Dist.] 2020, pet. filed), the Court held the stalking statute is unconstitutionally overbroad and vague on its face. The statute prohibits or chills a substantial amount of protected speech in relation to the legitimate sweep of the statute, and the language in §42.07(a)(7) (“harass, annoy, alarm, abuse, torment, embarrass, or offend another”) leaves the subsection open to too many “uncertainties of meaning.” Read opinion.
Commentary:
This decision deals only with that portion of the stalking statute that involves harassment as the offending behavior. As acknowledged by the court of appeals, there is a significant split of authority among the courts of appeals regarding the constitutionality of the harassment statute. We are all now patiently [cough] waiting for the Court of Criminal Appeals to decide the issue. Based upon the number of cases that have been decided on the issue, it is quite clear that defendants are continuing to harass their significant others, and that prosecutors wish to prosecute that behavior, as it so often occurs in the context of domestic violence. Therefore, if the Court of Criminal Appeals does ultimately declare the harassment statute to be unconstitutional, read that upcoming decision closely to see how the statute might be amended to satisfy the court’s constitutional concerns. But that is not to say that the Court of Criminal Appeals will follow Barton, Chen, and Griswold. The Court may very well decide to follow its prior decision in Scott v. State, and uphold the constitutionality of the harassment statute, and arguably has signaled that it might in fact do so in Wagner v. State, 539 S.W.3d 298 (Tex. Crim. App. 2018). Stay tuned.