Texas Courts of Appeals
Rosales v. State
Nos. 01-23-00876-CR & -00877-CR 7/31/25
Issue:
Did Dropbox (an online cloud storage site) act as a government agent when it provided a Cybertip to the National Center for Missing and Exploited Children (NCMEC) that the defendant had uploaded eight files that depicted suspected child pornography?
Holding:
No. The defendant failed to show that Dropbox was acting as a government agent by providing the Cybertip. The Court noted that one cooperative agreement between Dropbox and NCMEC stating that NCMEC would let Dropbox use its tools to analyze suspected child pornography explicitly disclaims an agency relationship. “As the State points out, none of these agreements requires Dropbox to search for child pornography and at least one is explicit that Dropbox is ‘authorized but not obliged’ to use the tools provided by NCMEC.” Read opinion.
Concurrence (Morgan, J.):
The concurring justice (who also wrote the majority opinion) noted that the trial court found that an officer, in the course of the investigation, made three false statements and did so “with reckless disregard for the truth.” The concurrence pointed out that these findings were not necessary to decide the issue before the trial court and yet will “follow [the officer] for the rest of his career. … Yet he was not represented by counsel here. He was not given opportunities to explain some of his statements. He has no way to appeal and clear his name, ever. … That’s why I take the unusual act of writing a concurring opinion to an opinion of the Court I authored: Things ought to be said that cannot come from the voice of the Court.” Read concurrence.
Commentary:
The majority opinion is a straightforward and relatively brief application of the law regarding private searches and whether private entities like Adobe or Dropbox can be law enforcement agents for the purposes of the Fourth Amendment. This majority opinion and the decision upon which it relies—Burwell v. State—should be helpful to prosecutors. What makes this particularly noteworthy is the concurring opinion—authored by the same justice who wrote the majority opinion. In that concurring opinion, the justice chastised the trial judge—by name—for unnecessarily harming a police officer’s reputation as part of a hearing under Franks v. Delaware. The statements that the trial judge found to be false were of minor importance, and the legal ruling itself was debatable.
Sanchez v. State
No. 08-24-00121-CR 7/31/25
Issue:
Was an officer justified by the warrantless automobile exception in searching a suspect’s backpack after he observed an open container with alcohol in a bottle holder affixed to the suspect’s bicycle?
Holding:
No. While the Court did not resolve the question of whether a bicycle is considered a motor vehicle for purposes of the open container law, it held the officer had no justification to search the suspect’s backpack without a warrant. In this case, the backpack was not part of the bicycle itself and was not attached to the bicycle. “We are not aware of any case in which the automobile exception was applied to the warrantless search of items, containers, or compartments that were not within or attached to the subject vehicle. … Thus, although the bicycle itself was subject to search, the backpack was not, and the police were not justified in searching it without a warrant under the automobile exception.” Read opinion.
Commentary:
In reaching this very narrow holding, the court relied upon decisions from other states in which a bicycle rider was carrying a backpack, but the bicycle itself was not carrying the backpack. The court did not reach the question of whether a bicycle can be a “motor vehicle” under the Penal Code, but the court did note that the Penal Code definition of “motor vehicle” is much broader than the Transportation Code definition—not requiring a motor or being self-propelled.
State v. Robles
No. 08-24-00322-CR 7/31/25
Issue:
Did officers honor a suspect’s right to remain silent and discontinue an interview?
Holding:
No. While “[c]ourts have grappled with the question of what constitutes an unambiguous invocation of the right to remain silent,” in this case, the Court agreed with the trial judge that the suspect made an unambiguous request to terminate the interview, which police did not scrupulously honor. In ruling that his statement should be suppressed, the trial court found: (1) the suspect suffered from severe psychological impairments that affected his cognitive functioning and decision-making; (2) his intellectual functioning was “extremely low to borderline range;” (3) during the interview, he exhibited signs of distress and confusion, suggesting he was not in a mental state capable of understanding or waiving Miranda rights voluntarily and knowingly; and (4) the suspect attempted to stop the interrogation three times, but his requests were not honored. Read opinion.
Commentary:
In this case, the defendant said, “I think I’m done with this interview.” After an intervening question about how the defendant felt earlier, an officer asked, “And you say you felt done with this interview?” and the defendant responded, “Yes. Um—” The court’s opinion is thorough and well-researched. The fact that this is a State’s appeal certainly makes this case more difficult for the State to prevail. If a prosecutor is faced with a similar invocation of a suspect’s right to remain silent during an interview, this opinion is a must-read.
Kirkwood v. State
No. 14-24-00042-CR 7/31/25
Issue:
Can a trial court opt to use a court recorder over a court reporter over a party’s objection?
Holding:
In this case, yes. “Although today we ultimately rest our holding on the absence of harm from the trial court’s ruling, we acknowledge the unsettled status of the law on the merits and the need for resolution of the issue to aid the bench and bar.” The Court noted that the Rules of Appellate Procedure (specifically Rules 13.1, 13.2, 34.6, and 38.5) “appear to grant trial judges an equal, unfettered, option to use either method.” However, Government Code §154.101, which refers to court reporters and recorders is less clear. The Court held that any error in this case was not structural and did not affect the defendant’s substantial rights, but concluded: “While the Galveston Court’s practice and local rules are our problem today, the issue raised is not merely local—it is a statewide concern that would be best resolved by the high courts of the state and our legislature.” Read opinion.
Commentary:
This is one of several decisions dealing with this particular trial court judge’s use of a court recorder, instead of a court reporter. The court’s opinion addresses the relevant rules and statutes but reaches no conclusion as to whether the trial court actually erred in using a court recorder, instead of a court reporter. Instead, the court finds any error on the part of the trial judge to be harmless. The court chose not to follow much older decisions that have suggested that this kind of error was not subject to a harm analysis. As suggested by the opinion, this issue may need to be clarified by the Legislature or by the Texas Supreme Court in its rule-making authority.