U.S. Supreme Court

Packingham v. North Carolina

No. 15-1194                        6/19/17

Issue:

May a state categorically prohibit registered sex offenders from accessing websites where children are permitted to become members or create personal web pages, including social media websites?

Holding:

No. Although a state may enact specific, narrowly tailored laws that prohibit sex offenders from engaging in certain conduct, such as contacting a minor, foreclosing access to social media altogether prevents them from engaging in legitimate First Amendment activity. Read opinion.

Concurrence (Alito, J.):

The exceptionally wide breadth of the North Carolina statute makes it unconstitutional. However, the Court goes too far when it compares the internet to public streets or parks. This comparison could restrict a state’s ability to enact laws narrowly tailored to achieving the legitimate government interest of protecting children.

Commentary:

Texas does not have a statute that criminalizes a sex offender’s access to social media websites, b ut Texas does have statutes that permit orders prohibiting a sex offenders’ access to social networking sites, both as a condition of parole (§508.1861(b)(1)(B) of the Government Code) and as a condition of probation (Art. 42A.454(b)(2) of the Code of Criminal Procedure). Based upon the broad language of this decision, it seems likely that a wholesale prohibition of access to Facebook or Twitter or Instagram would be unconstitutional. A more directed condition, prohibiting communication with minors or prohibiting access to chat rooms or dating websites, would seem to be permissible, even under this decision. But it is certainly going to create new litigation. This decision should have no impact on the validity of §33.021 of the Penal Code, which has created the offense of online solicitation of a minor.

Texas Courts of Appeals

Kulow v. State

No. 14-15-00858-CR        6/15/17

Issue:

When is disclosing favorable evidence in an untimely manner a violation of Brady?

Holding:

Only when the defendant can show the delay resulted in prejudice. There is no prejudice if the defendant is still able to make effective use of the information at trial. Read opinion.

Commentary:

This is a good reminder regarding delayed or late disclosure of allegedly exculpatory evidence. If the defendant was given the evidence in sufficient time to use it, there is no Brady violation. Obviously, this should not become a regular practice, however. A trial judge could still hold a delayed disclosure against the State if it violates a discovery order or if the defendant has requested such evidence under the Michael Morton Act.

Murray v. State

No. 04-16-00227-CR        6/21/17

Issue:

Does Rule of Evidence 901 require the State to conclusively establish authorship to admit a Facebook page into evidence?

Holding:

No. The State is required to present only prima facie evidence such that a reasonable jury could find the defendant created the content of the Facebook page. Circumstantial evidence identifying photographs and messages can be sufficient to show the defendant created and maintained the account. Read opinion.

Commentary:

This is a good, thorough decision, and it is in line with others concerning the authentication of social networking web pages. There is also a good discussion of the validity of the warrant that was used to obtain the Facebook page. This decision will be a good resource if that issue comes up in a case.

Omoruyi v. State

No. 06-17-00020-CR         6/21/17

Issue:

Must a jury charge for committing credit/debit card abuse by possessing incomplete cards include the statutory definition of “incomplete”?

Holding:

Yes. The statutory definition of “incomplete” bears on an essential element of the offense because the State is required to prove, beyond a reasonable doubt, that the cards were incomplete. Where the only issue in contention during trial was whether the cards were “incomplete,” leaving out the statutory definition caused egregious harm. Read opinion.

Dissent (Moseley, J.):

Omission of the statutory definition was egregiously harmful, and furthermore the State offered no evidence to show the cards were incomplete under the statutory definition. The defendant should be entitled to an acquittal because the evidence was legally insufficient to support the conviction.

Commentary:

At no place in the court’s opinion does the court actually explain the purported definition of “incomplete.” The statute provides, “For purposes of this subdivision, a card is incomplete if part of the matter that an issuer requires to appear on the card before it can be used, other than the signature of the cardholder, has not yet been stamped, embossed, imprinted, or written on it.” It is not clear whether this language is meant to be the exclusive definition of the word “incomplete” or just an explanation of what might constitute an “incomplete” card. Because the defendant did not object, the trial court was not given the opportunity to explore that question, and the court of appeals certainly has not done so in its opinion (although the State appears to have argued that). The Court of Criminal Appeals may want to review this decision. In the meantime, be aware of it, especially if you practice in the Texarkana Court of Appeals’ District.

Lambeth v. State

Nos. 09-15-00297-CR & 09-15-00298-CR                 6/21/17

Issue:

May a service dog, provided by the district attorney’s office to soothe and relax child victims, be used as a comfort item under Code of Criminal Procedure Art. 38.074 during the testimony of a child?

Holding:

Yes. Provided that the judge has made the necessary findings under Code of Criminal Procedure Art. 38.074 §3(b), the dog’s presence is not prejudicial or harmful to the defendant. Read opinion.

Commentary:

What a wonderful decision and a great job by the trial judge and the State in justifying the use of this service dog during trial. This statute does not apply just to trial, and it is does not apply just to child victims.  Section 2 of the statute makes it clear that the statute “applies to the testimony of a child in any hearing or proceeding in the prosecution of any offense. …” (emphasis added). In any event, be aware of this decision and this statute if you wish to have a service dog (or something else) present with a complaining witness while she testifies.

Sanders v. State

No. 09-16-0004-CR          6/21/17

Issue:

May the State offer evidence of a prior out-of-court identification of the defendant even when the defendant does not challenge the witness’s identification during trial?

Holding:

Yes. Rule of Evidence 801(e)(1)(C) expressly allows a party to elicit testimony from a witness regarding a prior identification as long as the witness testifies and is subject to cross examination about it. Where the defendant could have cross-examined the witness, even if he did not, the prior identification is admissible. Read opinion.

Commentary:

This is yet another decision distancing Texas criminal jurisprudence from the “bolstering” objection. As long as the requirements of the rule are met (the witness being “subject” to cross-examination), the testimony should be admissible.

Announcements

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TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected].

Texas Court of Criminal Appeals

Queeman v. State

No. PD-0215-16                6/14/17

Issue:

Does the failure to control speed and the failure to maintain a proper distance between vehicles prove a gross deviation from the standard of care that an ordinary person would exercise under the circumstances?

Holding:

No. Although the evidence was sufficient to prove that the defendant was speeding, it was not sufficient to prove that he was excessively speeding, and the State presented no evidence about the reason or length of time for which he was inattentive. There is no evidence of a failure to perceive a substantial and unjustifiable risk caused by the defendant’s actions, and no reasonable jury could have found that his actions constituted a gross deviation from the standard of care of an ordinary person under the circumstances. Read opinion.

Commentary:

This decision was unanimous, and it is now one of the leading decisions from the Court on the sufficiency of the evidence to support criminally negligent homicide in a vehicular accident. The Court discusses at length two of its more recent decisions where the evidence was found to be sufficient—Montgomery v. State and Tello v. State. If you are planning on pursuing a criminally negligent homicide prosecution, study the facts of this case very carefully to determine if you can succeed.

Ritz v. State

No. PD-1661-15                6/14/17

Issue:

Can a conviction for continuous trafficking of a person be based on actions that do not involve “organized crime, prostitution, or forced labor”?

Holding:

The Court dismissed the petition for discretionary review as improvidently granted, and the Third Court of Appeals’ opinion upholding the conviction stands. Read opinion.

Concurrence (Newell, J.):

Although purporting to challenge the sufficiency of the evidence, the defendant’s appeal is actually an overbreadth or vagueness challenge in disguise. If the Court would like to address these issues, it should wait until a petition is made that properly challenges the constitutionality of the statute. Read opinion.

Dissent (Keller, P.J.):

The defendant’s conviction was based on his actions of driving the underage victim to his home where they engaged in sexual conduct. Judge Keller would overrule the lower court and hold that this variant of the offense of trafficking of persons occurs only when the person who trafficks the child is a different person from the one who commits a sexual offense against the child. Read opinion.

Commentary:

The evidence in this case met the language of the statute: On numerous occasions occurring for more than 30 days, the defendant drove the victim 20 to 25 miles to his home so he could have sex with her. As the defendant has claimed, the Legislature may not have intended this fact situation to constitute the offense of continuous trafficking, and the Legislature may not have intended this defendant to get life in prison (which he got), but over the past few years, the Legislature has been very focused on the problem of human trafficking. It is doubtful a case like this will cause the Legislature to make any changes to the statute. At least in the Austin Court of Appeals district, if not beyond, this case provides a tool for prosecutors to obtain a significant punishment for a series of these offenses. It is not clear among this division of the current judges on the Court of Criminal Appeals if there are enough votes to construe the statute differently.

Texas Courts of Appeals

Hillman v. Nueces County

No. 13-16-00012-CV        6/8/17

Issue:

May a prosecutor be fired for disclosing Brady/Michael Morton material against the wishes of his supervisor?

Holding:

Yes. The cause of action for wrongful termination available under Sabine Pilot v. Hauck, 687 S.W.2d 733 (Tex. 1985), does not apply to government employers. Sovereign immunity can be waived only by “clear and unambiguous” statutory language, so a governmental entity retains its sovereign immunity even if an employee claims he was fired for failure to commit an illegal act. Read opinion.

Commentary:

Wow. This decision appears to be a completely correct application of sovereign immunity law. But it presents a prosecutor with a devastating choice: Turn over exculpatory evidence against the wishes of your supervisor and be fired, or do not turn over exculpatory evidence and be subject to the suspension of your license to practice law (under Schultz v. Commission for Lawyer Discipline, decided by the Board of Disciplinary Appeals in December 2015). Now there is certainly more to the facts of this particular case than is apparent from this opinion, but the legal dispute is quite important. The Legislature might want to consider amending the Michael Morton Act to allow a suit for wrongful termination under these circumstances. In the meantime, we will see if the Texas Supreme Court wishes to review this decision.

In re Bell

No. 01-17-00373-CR        6/13/17

Issue:

Does a trial court have jurisdiction to issue an alias capias and set no bail after the reinstatement of a conviction by the Court of Criminal Appeals?

Holding:

Yes. Under Code of Criminal Procedure Art. 44.04, the trial court may alter bail while an appeal is pending. Furthermore, a defendant who is appealing a conviction for felony aggravated robbery may not be released on bail pending appeal. The trial court was therefore required to place the defendant into custody immediately after the Court of Criminal Appeals reinstated the conviction. Read opinion.

Commentary:

This should be a very helpful decision for appellate prosecutors. If you win a case before the Court of Criminal Appeals after the defendant has been released on bail pursuant to a reversal by the court of appeals, the defendant can again by taken into custody—assuming the facts of a particular case support that.

Gonzalez v. State

No. 08-14-00175-CR        6/7/17

Issue:

Does a law enforcement officer’s authority to investigate car crashes provide an independent basis to support an investigative detention?

Holding:

Yes. Peace officers have a duty to investigate the scene of a crash to determine whether anyone was injured and the extent of property damage. This duty provides an independent basis to support the legality of an investigative detention without reasonable suspicion. Additional information obtained during the course of the investigation may authorize further detention. Read opinion.

See also Gonzalez v. State, No. 08-14-00203, issued by the court on the same day with the same holding. Read opinion.

Commentary:

This is a wonderful decision. The court initially finds that the officer had reasonable suspicion to believe the defendant was driving, even though the officer did not actually see the defendant driving—and that is certainly helpful. But then the court also holds there was an independent basis for the officer’s detention of the defendant—his duty to investigate a car crash. The decision also includes a good application of the “suspicious place” exception, allowing a warrantless arrest for an offense under Art. 14.03(a)(1) of the Code of Criminal Procedure. If you are prosecuting this type of DWI case, show this decision to the trial judge.

Fraser v. State

No. 07-15-00267-CR        6/9/17

Issue:

Can reckless or criminally negligent injury to a child or child endangerment serve as the qualifying precedent felony for a felony-murder conviction?

Holding:

No. Allowing a felony-murder conviction to be based on reckless or criminally negligent acts that caused the death of a child would circumvent the exclusion of manslaughter as a qualifying precedent felony. Because the legislature specifically excluded conduct that would be classified as manslaughter, the act “clearly dangerous to human life” cannot be based on reckless or criminally negligent conduct. Read Opinion.

Commentary:

This is a very thorough decision. It emphasizes once again that, if injury to a child is alleged as the predicate felony for felony murder, make sure it has been charged as intentional or knowing injury to a child.

Williams v. State

No. 01-16-00781-CR        6/13/17

Issue:

Does failure to offer testimony about a defendant’s difficult childhood in foster care as mitigating evidence for punishment constitute ineffective assistance of counsel?  

Holding:

No. The defendant testified about her health problems and change in life circumstances during the punishment phase of trial. She was given an opportunity to speak to the court and said she had nothing else to add. Her attorney’s decision to not introduce additional evidence was not “so outrageous that no competent attorney would have engaged in it.” There is also no evidence that the outcome would have been different if the defense attorney had chosen to introduce testimony about the defendant’s childhood. Read opinion.

Dissent (Jennings, J.):

“The fact that [the] appellant was raised in foster care and suffered from the traumatic consequences associated with it, constitutes critical evidence supporting mitigation of her punishment. There is no reasonable sound trial strategy, regardless of any possible subjective reason of trial counsel, in not bringing such consequential evidence to the trial court’s attention during the punishment phase of [the] appellant’s adjudication hearing. … Thus, the record presented demonstrates that trial counsel’s performance, as a matter of law, fell below an objective standard of reasonableness.” Read opinion.

Commentary:

This decision is a straightforward application of the law of ineffective assistance of counsel based upon an alleged failure to present mitigating evidence. This particular case is made unique by the policy arguments raised by the dissenting opinion. We shall see if the Court of Criminal Appeals wants to review this decision.

Announcements

Online registration for TDCAA’s popular Legislative Update series is now open! For more information or to register online, visit https://www.tdcaa.com/content/2017-tdcaa-legislative-updates

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Applications are being accepted for the National Computer Forensics Institute courses for prosecutors! For more information, visit http://www.tdcaa.com/announcements/national-computer-forensics-institute-courses-prosecutors

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected].

Court of Criminal Appeals

Hopper v. State

No. PD-0703-16      6/7/17

Issue:

Does a failure to invoke the Interstate Agreement on Detainers (IAD) count against the defendant or the State in the reason-for-delay factor in a speedy trial analysis?

Holding:

Both. The defendant and the State have an equal ability to bring a case to a speedy resolution by invoking the IAD when a defendant is incarcerated outside of Texas. When both parties fail to invoke this right, they are equally at fault under the reasons-for-delay factor. Read opinion.

Commentary:

This is a significant speedy trial decision in that it appears to be the first time that the Court of Criminal Appeals has been called on to deal with a significant delay while the defendant spent a great of the time of that delay incarcerated in another state and failed to invoke his rights under the Interstate Agreement on Detainers. The court notes a significant split of authority across the United States in two footnotes (66 and 67) and also notes that the U.S. Supreme Court has not squarely addressed this issue. If you have a defendant who has raised a speedy trial claim and spent a good deal of time incarcerated in another state, you should definitely read this decision.

Moore v. State

No. PD-1056-16      6/7/17

Issue:

May a fact-finder use reasonable inferences to conclude that the manner in which the defendant was using his motor vehicle was capable of causing death or serious bodily injury?

Holding:

Yes. Even without testimony about the defendant’s driving prior to a rear-end collision that pushed a car into an intersection, the fact finder can reasonably infer that the defendant was driving in a manner that placed others present in substantial danger of death or serious bodily injury. Read opinion.

Dissent (Walker, J.):

The court is speculating about hypothetical danger that is insufficient to support a deadly weapon finding. There were no facts presented about traffic conditions or cross-traffic that would have presented a danger of collision with the vehicle pushed into the intersection. Read dissent.

Commentary:

The court discusses all of the recent decisions (since the 1990s) in which it has dealt with whether a vehicle should be considered a deadly weapon. In doing so, the court shows how the decisions weave together. The court does not break any new ground with this decision, but it does reaffirm that a person does not need to suffer significant injury for a deadly weapon finding to be appropriate. In a case involving a vehicle, the focus should be upon the manner of the defendant’s driving when he committed the charged offense. This should be helpful to prosecutors.

State v. Rodriguez

No. PD-1391-15      6/7/17

Issue:

Does a warrantless search of a college dorm room, at the request of the dorm’s resident director who discovered drugs in the room during a routine inspection, constitute a violation of the Fourth Amendment?

Holding:

Yes. Students enjoy the same Fourth Amendment protection in their dorm rooms as any other citizen in a private home. Although dorm personnel have the authority to enter dorm rooms themselves to perform health and safety inspections, they do not have the authority to give police officers consent to enter dorm rooms. It would be unconstitutional for a university to require a student to give up Fourth Amendment protections as a condition of living in its dorms. The Court also declined to extend the private-party-search doctrine to a residence. Read opinion.

Dissent (Keller, P.J.):

Because the university in question is a private university, it would not be unconstitutional to require a student to give up Fourth Amendment privacy rights within the dorm. The student handbook conferred broad authority on university officials, including university police officers, to enter dorm rooms. Under this authority, the seizure did not constitute a Fourth Amendment violation. Read dissent.

Commentary:

This is not a case in which items were seized by a private landlord, and this is not even a case in which items were seized by a resident assistant (RA) under an agreement allowing the RA to enter a dorm to conduct routine inspections. The court expressly stated that it was not deciding that issue. This was a case in which items were seized by an officer without a warrant in a college student’s dorm. As you might imagine, the court reaffirmed that a college student has a reasonable expectation of privacy in her dorm under the Fourth Amendment, and it cites several decisions across the country in support of that proposition. But the State put up a valiant effort in this case, raising several arguments in support of the seizure in this case. So the court also discussed at great length what it called the “private party search doctrine” and refused to extend it to residences (including college dorm rooms). The court also addressed the “special needs” exception to the warrant requirement, which can allow an officer to search a student under special circumstances. But the court refused to apply that exception to justify the collection of evidence for criminal law enforcement purposes. The court refused to justify the seizure based upon the actual or apparent authority of the resident supervisor to consent because the facts did not support that authority to consent. Needless to say, you can learn a great deal about the current state of these legal doctrines by reading this decision. This has now become the leading decision on many, if not all, of these legal doctrines.

Arteaga v. State

No. PD-1648-15       6/7/17

Issue:

Do all three provisions of Penal Code §22.011(f) require the State to prove facts constituting bigamy?

Holding:

Yes. Although there is grammatical ambiguity in §22.011(f), when considered with its reference to §25.01, it is clear the legislature intended for the State to prove facts constituting bigamy whenever it alleges that the defendant committed sexual assault and invokes the sentence enhancement under §22.011(f). Read opinion.

Concurrence (Yeary, J.):

When the opinion of the court requires the State to “prove facts that would constitute bigamy,” it does not mean that the State must prove the actor actually committed bigamy. As clarified in a footnote, the requirement is only that the State must prove that if the actor were actually to marry his victim (or purport to marry or live with his victim under the appearance of being married), that would constitute the offense of bigamy. Read concurrence.

Commentary:

This decision may cause you to rethink your decision to prosecute sexual assault of a child as a first-degree felony under §22.011(f). Presumably, this same analysis would apply to the affirmative defense under §22.011(e)(2)(b)(ii). If a prosecutor is seeking a first-degree felony conviction (and cannot prove bigamy), the court makes it clear that the defendant can be charged with continuous sexual abuse of a child under §21.02(b) (if the abuse fits the definition of “continuous,” as it often is in these cases) or aggravated sexual assault of a child under §22.021(a)(2)(B) or super-aggravated sexual assault of a child under §22.021(f) (if the child was young enough). The defendant in this case also could be guilty of prohibited sexual conduct under §25.02, although that is not a first-degree felony. The bottom line is that, when drafting a jury charge, do not go looking for other statutes to provide language for the jury charge if the statute that creates the offense does not allow for that.

Ex parte Carter

Nos. WR-85,060-01 & -02     6/7/17

Issue:

Is a claim of improperly cumulated sentences cognizable in a habeas corpus proceeding?

Holding:

No. The court overrules LaPorte and holds that sentences subject to an improper cumulation order are not themselves “void.” An improper order is an infirmity only in how the sentences will be served, and not in the sentences themselves. Because remedies such as reformation on appeal or a judgment nunc pro tunc may fix the infirmity, the sentences are not void because of an improper cumulation. Furthermore, the applicant’s claim is not cognizable because it is a bare statutory violation that does not implicate constitutional rights and because he could have raised the claim on direct appeal. Read opinion.

Concurrence (Yeary, J.):

A claim of improperly cumulated sentences does not invoke the kind of systemic requirement or prohibition that is so critical to the proper functioning of the criminal justice system that the court should regard it as adequate justification for extraordinary relief. Read concurrence.

Concurrence (Newell, J.):

If the applicant had challenged the improper cumulation order as a subset of his ineffective assistance claim, the court should have granted relief on the ineffective assistance claim. However, the trial court’s finding, supported by the evidence, is that the applicant did not claim his counsel was ineffective for failing to challenge the cumulation of sentences at trial or on appeal. Read concurrence.

Dissent (Alcala, J.):

The court should grant relief on the ground that the applicant is unlawfully restrained due to the trial court’s wrongful cumulation order. Read dissent.

Dissent (Richardson, J.):

The court should remand this case to the habeas court to further evaluate the applicant’s unbarred, potentially meritorious ineffective assistance of counsel claims. Read dissent.

Commentary:

Judge Keasler’s opinion for the court is a plurality opinion, but with Judge Newell’s opinion, there is a majority of the court that overrules Laporte v. State to the extent that it held an improper cumulation order renders a sentence void and, therefore, cannot be waived.

Texas Courts of Appeals

Berge v. State

No. 08-15-00263-CR     5/31/17

Issue:

Can a defendant be convicted of misappropriation of fiduciary property only as a primary actor?

Holding:

No. A defendant can be convicted for misappropriation under the law of parties. As long as the evidence supports party liability, the State is not required to prove that the defendant acted in a fiduciary capacity. Read opinion.

Commentary:

The law of parties applies to Penal Code offenses. This decision follows several other decisions that have applied the law of parties to a prosecution for misapplication of fiduciary property.

Davis v. State

Nos. 13-15-00355-CR & -00356-CR      6/1/17

Issue:

Are cellmates in a jail members of the same household under the assault–family violence statute?

Holding:

No. A jail, where individuals are confined involuntarily for penal purposes, is not intended or designed for occupancy as a home and is not the equivalent of a dwelling where individuals may choose to reside. Read opinion.

Commentary:

Good try though. The court also found the evidence to be insufficient to support a finding of serious bodily injury, so the defendant is guilty for Class A misdemeanor assault. Perhaps the Legislature will want to amend the assault statute to provide a higher punishment for the assault of a fellow inmate.

Announcements

Online registration for TDCAA’s popular Legislative Update series is now open! For more information or to register online, visit https://www.tdcaa.com/content/2017-tdcaa-legislative-updates. TDCAA is also taking pre-orders for its 2017 code books, which will begin shipping in August. For more information, see http://www.tdcaa.com/publications

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected].

Texas Courts of Appeals

Lewis v. State

No. 08-15-00015-CR         5/26/17

Issue:

Is criminal trespass a lesser-included offense of burglary of a building with intent to commit theft?

Holding:

Sometimes. The elements of criminal trespass require the State to prove that the defendant’s “entire body” entered the property in question, while the elements of burglary require, at minimum, only a partial intrusion of the property. Because the “entry” required by criminal trespass is greater than that required by burglary, criminal trespass will generally not be considered a lesser-included offense of burglary unless the indictment for burglary alleges the defendant’s full-body entry into the building. Read opinion.

Commentary:

I do not know about you, but I am not aware of ANY burglary indictments, in which the State has alleged that the defendant made a “full-body” entry into a building or habitation.  This is a distinction that a judge might find difficult to believe, so show your judge this decision, as well as Meru v. State, upon which the appeals court relies.  This decision is made under the first prong of the test for charging the jury on a lesser-included offense, so it is important.  If—in a particular burglary prosecution—you want the jury to be able to consider the lesser offense of criminal trespass, you will need to have pleaded that the defendant made a “full-body” entry into the building or habitation.

Traylor v. State

No. 13-13-00371-CR         5/25/17

Issue:

May a jury’s post-deliberation communication amount to an acquittal for double jeopardy purposes for the charged offense although a mistrial was declared due to deadlock on a lesser-included offense?

Holding:

Yes. The jury foreperson communicated to the judge that the jury was unanimous against guilt on the charged offense but deadlocked on the lesser-included offense. After additional hours of deliberation, the judge questioned the foreperson and confirmed that the jury was still deadlocked on the lesser-included offense. This communication is final enough to amount to an informal verdict of acquittal, and the defendant should not have been retried on the charged offense. However, the State is free to retry on the lesser-included offense. Read opinion.

Commentary:

This decision is a direct application of the United States Supreme Court’s 2012 decision in Blueford v. Arkansas.  The court of appeals has directly distinguished this case from Blueford based upon additional communication that the jury foreman made to the trial judge.  It is not at all clear that this communication was a final determination of an acquittal of the greater charged offense.  But even if the court of appeals got the legal analysis entirely correct in this case, the Court of Criminal Appeals will want to review this decision because it is a double jeopardy holding that would be important to the entire state.

Harris v. State

No. 07-16-00435-CR         5/30/17

Issue:

Does the corpus delicti rule require independent evidence that alone proves the crime’s commission?

Holding:

No. For the rule to be satisfied, there must be only some evidence rendering the corpus delicti more probable than it would be without the evidence. As long as there is some corroboration of the extrajudicial statement, the statement itself may be used in connection with the corroborating facts and circumstances to aid the proof of the corpus delicti. Where the defendant was charged with possession of a firearm by a felon and the only evidence of his 2009 release from prison was his own extrajudicial statement, evidence that he was convicted and given a seven-year sentence in 2003 was sufficient corroborating evidence to satisfy the rule. Read opinion.

Concurrence (Campbell, J.):

The court need not have reached the issue of whether the corpus delicti rule was satisfied because the State’s case did not rely at all on any extrajudicial “confession” by the defendant. The defendant’s stipulation to the felony conviction and the officer’s testimony at trial proved that the defendant had previously been convicted of a felony and that the arresting officer found a firearm in the defendant’s car. “There was no danger here of a conviction based solely on [the defendant’s] false confession to a crime that never occurred,” the concurrence reads. Read opinion.

Commentary:

It seems that the concurring opinion has the better argument in this case.  Regardless, it is clear that the defendant was properly convicted of being a felon in possession of a firearm.

In Re: Paxton, Jr.

No. 05-17-00507-CV through -00509-CV 5/30/17

Issue:

May a judge continue to preside over a case under the original docket number, without the consent of the defendant, after ordering a change of venue?

Holding:

No. When a court signs an order changing venue, jurisdiction immediately and automatically vests in the transferee court. A district judge may sit outside of his or her county seat only with express statutory authority. The sole authority is in CCP Art. 31.09, which allows a judge to maintain a case on his or her docket following a transfer of venue only with the written consent of the prosecuting attorney, the defense attorney, and the defendant. Any orders or directives issued by the original court following a transfer are void absent effective application of CCP Art. 31.09. Read opinion.

Commentary:

This appears to be a correct application of Article 31.09 and a correct application of mandamus law.  Because this is a mandamus action, the only remedy that the judge/respondent or the State has is to file—in the Court of Criminal Appeals—another application for a writ of mandamus against the court of appeals to challenge the court’s refusal to allow the Collin County judge to continue as the presiding judge of the case.  Regardless of whether the Court of Criminal Appeals reviews this holding, owing to the high-profile nature of this case and the principals involved, don’t be surprised to see more appellate court decisions regarding this case, even before the case goes to trial.

Texas Attorney General Opinions

No. KP-0150       5/31/17

Issue:

Are municipal courts required to report juvenile convictions for drug paraphernalia offenses to the Texas Department of Public Safety?

Conclusion:

No. A municipal court has jurisdiction over juveniles only for criminal offenses punishable by fine only, such as a class C misdemeanor for possession of drug paraphernalia. The Transportation Code requires courts to report to DPS drug-related convictions affecting a person’s driver’s license. However, conviction for this offense does not result in suspension or denial of a driver’s license, and municipal courts therefore have no duty to report it. Read opinion.

Commentary:

This is a pretty thorough opinion.  A footnote even points out that, if a juvenile fails to obey an order of a municipal court, the court may hold the juvenile in contempt and order DPS to suspend the juvenile’s driver’s license.  But the court would report the contempt order, not the underlying offense, to DPS.

Announcements

Online registration for TDCAA’s popular Legislative Update series is now open! For more information or to register online, visit  https://www.tdcaa.com/content/2017-tdcaa-legislative-updates.

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected].

5^th Circuit Court of Appeals

US v. Wallace

No. 16-40701                      5/22/17

Issue:

Does obtaining prospective cell site data constitute a search within the meaning of the Fourth Amendment?

Holding:

No. Like historical cell site information, there is no reasonable expectation of privacy in the prospective GPS data and location of a cell phone. This information is collected and stored by cell phone service providers in the ordinary course of business for their own purposes. Prospective cell site data falls outside the purview of the Fourth Amendment, and an order for this information based on less than probable cause is not per se unconstitutional. Read opinion.

Commentary:

Keep an eye on this case. Some noted commentators believe this case may have legs in the ongoing battle regarding access to tower data for criminal investigations. The methods of obtaining the tower data here involved court orders based on reasonable suspicion rather than probable cause. The court relies on the third-party doctrine to uphold the trial court, but some dispute whether that doctrine is really applicable to the GPS data in question. In any event, officers were able in this case to use near real-time data to find and capture a fugitive gang member who illegally possessed a firearm.

Texas Court of Criminal Appeals

Larue v. State

No. PD-1544-15                 5/17/17

Issue:

Must a court allow post-conviction DNA testing of oral swabs from the victim and the t-shirt of another suspect when the defendant’s DNA was previously identified on the oral swabs and under the victim’s fingernails, the defendant’s statements put him at the crime scene, and two jailhouse snitches testified that he described committing the murder?

Holding:

No. If someone in addition to the defendant left DNA at the crime scene it would at most muddy the waters. None of the multiple DNA tests previously conducted ever showed that the defendant’s DNA was not present on the victim. Read opinion.  

Commentary:

The Court continues to hold a hard line on post-conviction DNA testing—if it will not exonerate the defendant, it does not fit within the statute.

Texas Courts of Appeals

Ashby v. State

No. 01-15-00182-CR         5/23/17

Issue:

Is testimony regarding the time of ingestion, quantification of the drug in the defendant’s bloodstream, and the pharmacokinetics of a new drug required before evidence of the drug’s presence in the defendant’s bloodstream can be admitted?

Holding:

No. Failure to quantify the amount of the drug and estimate the time of ingestion might lessen the probative value of the evidence, but it does not render it unreliable or irrelevant. Furthermore, the drug in question, TFMPP, is relatively new, resulting in a dearth of scientific knowledge surrounding absorption and elimination rates. Because no human studies of TFMPP have been conducted, the expert could not testify about absorption and elimination rates and estimated time of ingestion. However, the trial court allowed him to testify as an expert because he demonstrated he knew everything there was to know about the new drug. The expert’s testimony also did not offer any opinion that exceeded current scientific knowledge. Read opinion.

Dissent (Jennings, J.):

According to the State’s own expert, it is not possible to reliably extrapolate whether the TFMPP in the defendant’s system was psychoactive at the time of his arrest. Without this knowledge, the fact that the defendant had an unquantified amount of TFMPP in his blood sample was not relevant and the evidence should have been suppressed. Read opinion.

Commentary:

This case will be useful to you if you have encountered a novel intoxicant in a DWI case. The State brought multiple experts to explain what substance was found in the defendant’s blood and, as best could be done at the time, explain the effects of the substance on the defendant.

Chavira v. State

No. 08-15-00128-CR         5/16/17

Issue:

May extraneous-offense evidence of the exact offense charged be admitted by the State to rebut a defensive theory?

Holding:

Yes. The evidence offered had relevance apart from showing character conformity; the fact that the defendant was again arrested four months later with cocaine found under the driver’s seat served to rebut the defensive theory that he had no knowledge of the cocaine under the driver’s seat on the day in question. The probative value of this evidence was not substantially outweighed by any prejudicial impact when it was not cumulative of other evidence and was presented concisely and with a limiting instruction. Read opinion.

Commentary:

It is important to note that this is a 404(b) ruling and not a 609 opinion. The result might be different if you are trying to impeach a defendant with a prior conviction for the same type of offense. See Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992)

Texas Attorney General Opinions

No. KP-0149       5/18/17

Issue:

Are individuals civilly committed pursuant to Chapter 841 of the Health and Safety Code eligible to vote by mail under §82.002 of the Election Code?

Conclusion:

Yes. The behavioral abnormality of a sexually violent predator qualifies as a sickness under §82.002(a) of the Election Code. Furthermore, orders of commitment impose travel restrictions that prevent sexually violent predators from appearing at a polling station without assistance. Read opinion.

Commentary:

I wonder if any political party is going to court the votes of the civilly committed sex offenders?

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected].

Texas Court of Criminal Appeals

State v. Arizmendi

No. PD-0623-16                5/17/17

Issue:

Are the ruling and testimony from a co-defendant’s suppression hearing “new evidence” for the basis of a motion for new trial?

Holding:

No. A trial court’s ruling on a motion to suppress in a related case is not “evidence” in the context of a newly-discovered-evidence claim. While testimony from the hearing is evidence, the defendant could have sought out the arresting officer or the police report before accepting the plea deal. This evidence was available to the defense, and failure to obtain it was due to a lack of diligence. Read opinion.

Concurrence (Hervey, J.):

A motion-for-new-trial waiver should be treated like a post-conviction habeas waiver and not be enforced when the allegation is that of an involuntary plea. Read opinion.

Concurrence (Newell, J.):

The Court should hold that granting a new trial “in the interest of justice” simply refers to the trial court’s power or authority to grant a new trial and is not an independent legal basis for granting it. Read opinion.

Dissent (Alcala, J.):

The trial court did not abuse its discretion by granting the defendant a new trial. The record established that the guilty plea was involuntary due to her attorney’s ineffectiveness. Although this legal theory was not included in writing in the motion for new trial, the State failed to preserve this complaint because it did not obtain an adverse ruling. Alternatively, the trial court retains inherent authority to consider an untimely basis for granting a new trial. Read opinion.

Commentary:

This opinion may come in handy because it is not uncommon for the second or third defendant in a multi-defendant case to end up with a “better deal” for one reason or another—here, by winning a motion to suppress. In a nutshell, the fact that another defendant won a motion to suppress is not grounds for an earlier pleading defendant to get a new trial. Judge Newell’s concurrence is interesting because it points out that the Texas Supreme Court has similar precedent based on similar policies. The only way a defendant should win in this situation is if her trial lawyer was ineffective for failing to file a motion to suppress. But even that claim may not succeed if the decision to forego the motion to suppress was a reasonable tactical decision, which seems to be the case here.

Texas Courts of Appeals

Fisher v. State

No. 14-16-00108-CR         5/11/17

Issue:

Is a photographic lineup impermissibly suggestive when the suspect is wearing clothing matching the description given by the victim?

Holding:

No. All the photos in the lineup showed subjects with similar age, skin tones, facial features, and hairstyles. The fact that the defendant was the only subject wearing a red hoodie as described by the victim is not clear and convincing evidence that the lineup was impermissibly suggestive. Read opinion.

Commentary:

Good procedures at your jail can ensure that the photos used in lineups aren’t subject to attack this way. The modern trend seems to be the use of a towel or smock to ensure that witnesses don’t fixate on the shirt worn by the suspect. While this lineup was upheld, be cautious of how clothing in the photos could affect admissibility.

Gonzalez v. State

No. 01-15-00902-CR         5/16/17

Issue:

Does CCP Article 39.15 violate a defendant’s right to confront juvenile witnesses?

Holding:

No. Article 39.15 allows the defendant, his counsel, and any expert witnesses “ample opportunity” to review the evidence in question. It does not prevent the defense from confronting juvenile accusers regarding their motivation or bias in testifying, nor does it prevent bringing up inconsistencies between prior statements and testimony at trial. Read opinion.

Commentary:

A moderately helpful, but long, opinion. In a nutshell, because lawyers with access to the forensic videos can confront and impeach the victims and witnesses, the rule prohibiting copying the forensic videos does not violate the confrontation clause.

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected].

Texas Courts of Appeals

Davy v. State

Nos. 07-16-00262-CR and -00263-CR    5/5/17

Issue:

Is the State required under the Michael Morton Act (CCP Art. 39.14) to turn over a defendant’s pen packet without the defendant’s specific discovery request for it?

Holding:

No. The disclosure requirements in Art. 39.14(a) are triggered only after a timely request from the defendant. The Court concluded that in its 2013 amendments creating the Michael Morton Act, “the Legislature retained in article 39.14(a) the concept that discovery applies to items ‘designated.’” Read opinion.

Commentary:

This is an interesting opinion. The defendant neglected to make his discovery request part of the appellate record. The court holds that the absence of a request asking for the particular document he complains about on appeal was fatal to his claim that the State did not provide discovery of his prior convictions. If specificity is the key, get ready for discovery motions copying the list of items in Art. 39.14 or using incredibly broad language that encompasses every non-privileged item in the State’s file. Of course, if defense counsel doesn’t ask for everything, the defendant will probably file an ineffective assistance writ if he figures out the State used an item not provided in discovery. “He didn’t ask for it” may not be a very good reason to forego providing a copy.

State v. Haworth

No. 13-15-00519-CR     5/4/17

Issue:

To be disqualified for basing a ruling on personal knowledge of contested facts, must a trial judge actually observe the act in question?

Holding:

No. A judge is also disqualified from hearing a matter in which he has obtained personal knowledge about contested facts. In this case, after viewing a dash-cam video of a DWI stop, the judge went to the street and “inspect[ed] the location” where the defendant made a U-turn at a red light. The judge then granted the defendant’s motion to suppress based on his personal conclusion that the officer could not have seen the red light from his vantage point. “We hold that the trial judge was disqualified from acting on the ground that he sua sponte obtained personal knowledge about contested facts and used that personal knowledge in a ruling on a motion to suppress.” Read opinion.

Commentary:

Just when you thought all reversible errors had been discovered, someone flips over a rock and finds a new one—the trial judge cannot perform a scene visit when hearing a motion to suppress. We are all a little bit smarter today.

Chambers v. State

No. 13-16-00079-CR     5/4/17

Issue:

Are firearms qualifications forms kept by a police department considered “governmental records” under Penal Code §37.10 (Tampering with Governmental Record)?

Holding:

Yes. The State is not required to prove that a document is “required by law to be kept.” It must prove only that the records belonged to, were received by, or were kept by the governmental agency (in this case, a city police department) “for information.” Read opinion.

Commentary:

This could be a very useful opinion. Government agencies keep many different records, not all of them particularly required by a statute or rule, but nevertheless important to governmental operation. Tampering with those records can hamper or harm the government or individuals just as much as records specifically decreed by statute. This opinion helps ensure the offense of tampering with a governmental record remains an effective tool for fighting corruption and malfeasance.

Ex parte Moy

No. 14-16-00420-CR     5/9/17

Issue:

Is Penal Code §33.021(c) an unconstitutional content-based regulation?

Holding:

No. The 14^th Court of Appeals joins the 1^st Court of Appeals in finding that §33.021(c) regulates conduct and speech that is not protected under the 1^st Amendment. See Ex parte Wheeler, 478 S.W.3d 89 (Tex. App.—Houston [1^st Dist.] 2015, pet. ref’d). The Court also rejected the defendant’s challenges to the statute based on overbreadth, vagueness, and violation of the Dormant Commerce Clause. Read opinion.

Commentary:

With the two Houston courts of appeals expanding on language from the CCA’s decision in Ex parte Lo, it is likely that this issue is settled in Texas.

Texas Attorney General Opinions

No. KP-0146     5/8/17

Issue:

Does a county commissioners court that establishes a veterans’ treatment court program under Government Code Chapter 124 have the authority to direct and control administrative details such as hiring and supervising grant-funded personnel?

Conclusion:

No. Chapter 124 authorizes the veterans’ treatment court judge—not the commissioners court—to select and supervise staff of the court program. Read opinion.

Commentary:

That angry shout you just heard was the commissioners of various counties learning of yet another position that will be politically difficult for them not to create but for which they cannot dictate who is hired.

TDCAA Cybercrime Seminar

Registration is now open for TDCAA’s Cybercrime Seminar. The course will run from June 7 to the 9 in lovely San Antonio. Topics will cover the collection and use of electronically stored evidence as well as those offenses commonly committed with the assistance of computers. Don’t forget to book your hotel room now: The TDCAA rate expires 5/16/17! For more information, see the TDCAA website at: http://www.tdcaa.com/training/cybercrime

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected].