Weekly Case Summaries: August 24, 2018

Texas Courts of Appeals

Young v. State

No. 01-17-00039-CR                         8/16/18

Issues:

Is an officer permitted to remove and search a pill bottle from a defendant’s pocket while conducting a Terry frisk?

Holding:

No. Under the plain-feel doctrine, an officer conducting a lawful pat-down may seize a non-weapon object “whose contour or mass makes its identity immediately apparent as contraband.” An officer must have probable cause to believe the item is contraband before seizing it, without the necessity of any further search. The plain-feel doctrine does not justify an officer’s removal and search of a pill bottle. An officer could not have probable cause based on feel alone that a pill bottle, a common object with plenty of legitimate uses, contained contraband. Read opinion.

Commentary:

This decision represents a good expression of the plain-feel doctrine. The opinion cites to all of the relevant cases and presents the theory behind the doctrine. Prosecutors with a plainfeel case should definitely read this decision, especially if the item that the officer felt was a pill bottle or some other container that would not necessarily contain contraband.

Marson v. State

No. 11-16-00209-CR                         8/16/18

Issues:

Does Double Jeopardy bar prosecution for aggravated assault of a public servant when the defendant has already been convicted of the same offense in an adjacent county?

Holding:

Yes. Whether a charge is barred by Double Jeopardy depends on the allowable unit of prosecution. The allowable unit of prosecution for an assaultive offense is one unit per victim. Here, the defendant shot at two officers during a pursuit spanning both counties. The defendant may be convicted of only two counts of aggravated assault of a public servant, one for each officer at whom he fired. Because he was convicted for aggravated assault on both officers, further prosecution by the adjacent county is barred by Double Jeopardy. Read opinion.

Commentary:

This decision is a correct expression of current law regarding assault. But an argument certainly could be made that if you point a gun at a victim and thereby threaten the victim, you have committed one offense, and that if you point that gun at that same victim a short time later, you have committed another offense. That is not the current state of the law. Prosecutors with an assault case thinking about pursuing more than one conviction should carefully read this decision and the decisions upon which it relies. The law is not in their favor.

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