Texas Court of Criminal Appeals

Mendez v. State

No. PD-0381-17                4/25/18

Issue:

When the court sua sponte instructs the jury on a defensive issue, is the court required to apply the defensive issue to lesser-included offenses?

Holding:

Yes. The court is required to include in a jury charge “the law applicable to the case.” The court is not required to instruct the jury on unrequested defensive issues, but if the court sua sponte instructs the jury on a defensive issue, that issue becomes part of the law applicable to the case. When the court instructs on a defensive issue on its own motion, it assumes the duty to administer the instruction correctly. Any error in the charge actually given is therefore subject to review under Almanza, rather than precluded from review under Posey. Here, the court erred when the jury instruction on self-defense was applied only to the charge of murder and not to the lower charge of aggravated assault. Read opinion.

Commentary:

The court granted review of this case to settle a split among the courts of appeals. In that respect, if a trial court charges the jury generally upon the law of self-defense, whether the defendant has requested a charge on self-defense or not, the court must apply that general charge to every lesser-included offense for which that justification would serve to “acquit” the defendant. This case should not be read for the proposition that this defendant was entitled to a charge on the lesser offense of aggravated assault. Indeed, it is probable that the defendant was not entitled to an instruction on the lesser offense of aggravated assault. See Jackson v. State, 992 S.W.2d 469 (Tex. Crim. App. 1999); Forest v. State, 989 S.W.2d 365 (Tex. Crim. App. 1999). Nevertheless, when a trial judge charges the jury on self-defense and charges the jury on a lesser offense to which self-defense could apply, the judge must apply the law of self-defense to that lesser offense, as well as the charged offense.

Boyett v. State

No. PD-0672-17                4/25/18

Issue:

In an informal competency inquiry, must the evidence of incompetency suggest a “substantial possibility” that the defendant is incompetent to trigger a formal competency trial?

Holding:

No. Making a determination of incompetency to stand trial is a two-step process. The first is an informal inquiry conducted by the trial court, and the second is a formal competency trial. A trial court must hold an informal hearing upon a “suggestion” from any credible source that the defendant may be incompetent. To move to the second step, the informal inquiry must show “some evidence from any source that would support a finding that the defendant may be incompetent to stand trial.” The trial court may consider only evidence of incompetency and may not weigh evidence of competency against it. If the “some evidence” standard is met, the trial court must order a psychiatric competency evaluation and hold a formal competency trial. Here, the lower courts erroneously considered evidence of competency and focused on whether the evidence showed a “substantial possibility” of incompetency, which is a higher standard than required. Read opinion.

Commentary:

There are few decisions from the Court of Criminal Appeals that address competency under the newer statutory scheme. This decision should be helpful in outlining the basic framework of the beginning process for determining a defendant’s competency to stand trial. As should be clear from the opinion, the standards and burdens are very much in the defendant’s favor, so be careful in suggesting that a defendant is not entitled to a formal hearing on competency.

Texas Attorney General Opinion Request

RQ-0222-KP           4/18/18

Question:

Are recreational vehicle park guests licensees or tenants? Read request.

Commentary:

This question centers on how one might remove a recreational vehicle park guest. If such a guest is a licensee, no formal procedure is required. If the guest is considered a tenant, however, formal procedures are required.

Supreme Court of the United States

United States v. Microsoft Corp.

No. 17-2               4/17/18

Issue:

Must a U.S. provider of email services comply with a search warrant to disclose electronic communications within its control even if the communications are stored abroad?

Holding:

Yes. This case was dismissed due to recent passage of the Clarifying Lawful Overseas Use of Data Act (Cloud Act), which amended the Stored Communications Act, 18 U.S.C. §2701 et seq., by adding that a service provider must comply with its obligations to preserve, back up, or disclose electronic communications within its control regardless of where the information is stored. Read opinion.

Commentary:

This is a per curiam opinion that contains no analysis. It merely holds that, with the new amendment, the previous controversy—whether the government could compel Microsoft to turn over records stored in Ireland—is moot. The Court does not acknowledge that Microsoft has any further argument to make, and it appears that Microsoft will now be required to comply with the warrant.

Texas Court of Criminal Appeals

Fowler v. State

No. PD-0343-17                4/18/18

Issue:

Can a video recording of another video recording be properly authenticated without the testimony of a person who witnessed the events in the video or is familiar with the original recording device?

Holding:

Yes. Video recordings without audio are treated as photographs and are properly authenticated by showing that the images accurately represent the scene in question and are relevant to a disputed issue. Although video is most commonly authenticated through testimony of a witness with personal knowledge of the scene, it can also be authenticated by “the appearance, contents, substance, internal patterns, or other distinctive characteristics of the , taken together with all the circumstances.” Here, the officer testified that he requested the manager of the store pull up the surveillance video that corresponded with the time and date on a receipt found at the scene. The officer’s recording of the surveillance footage showed a time and date stamp that matched the receipt, and the footage showed the defendant purchasing the items listed on the receipt. This testimony was sufficient to authenticate the video without additional testimony from the store manager or other employees responsible for maintaining the video surveillance equipment. Read opinion.

Commentary:

This is yet another in a long line of decisions that make it clear that authentication can be done in a number of different ways. Prosecutors who have not been able to authenticate a piece of evidence—especially a videotape—in the normal way should look to this decision and show it to the judge.

Texas Supreme Court

Jefferson County v. Jefferson County Constables Association

No. 16-0498       4/13/18

Issue:

Are deputy constables “police officers” who are entitled to enter into collective bargaining agreements with their public employers under Local Gov’t Code Ch. 174 (Collective Bargaining Act)?

Holding:

Yes. The Collective Bargaining Act defines “police officer” as “a paid employee who is sworn, certified, and full-time, and who regularly serves in a professional law enforcement capacity in the police department of a political subdivision.” The term “police department” is not statutorily defined, but the ordinary meaning is “a governmental department concerned with the administration of the police force.” The ordinary meaning of “police force” is “a professional body of trained officers … entrusted by a government with maintenance of public peace and order, enforcement of laws, and prevention and detection of crime.” Various Texas statutes give deputy constables the authority to provide law-enforcement functions encompassed by the ordinary definition of “police department.” Deputy constables therefore are “police officers” under the Collective Bargaining Act. Read opinion.

Dissent (Boyd, J.):

“Deputy constables may ‘regularly serve in a professional law enforcement capacity,’ but they provide that service as employees of the constable’s office, not as employees of ‘the police department of a political subdivision.’ Nothing in the Collective Bargaining Act even suggests that it defines or uses the terms ‘police officer’ and ‘police department’ differently than the other Texas statutes that consistently use those terms. Because the Collective Bargaining Act applies only to fire fighters and police officers, it does not apply to deputy constables.” Read opinion.

Commentary:

This decision is intended to deal with deputy constables, not necessarily other “peace officers,” as they are identified in Article 2.12 of the Code of Criminal Procedure. The majority makes it clear that not all “peace officers” would be covered by the Collective Bargaining Act. In response to this decision, there might be some attempt in the Legislature to narrow the application of the Act to law-enforcement-related duties.

Texas Courts of Appeals

Ex parte Jones

No. 12-17-00346-CR        4/18/18

Issue:

Is the “revenge pornography” statute, Penal Code §21.16(b), facially unconstitutional for violation of the First Amendment?

Holding:

Yes. Penal Code §21.16(b) prohibits the disclosure of certain types of visual material, including film, photographs, or videotape. The Texas Court of Criminal Appeals has held that photographs and visual recordings are inherently expressive, and distribution of expressive media is entitled to the same First Amendment protection as the material itself. The statute is subject to strict scrutiny because it is a content-based restriction on free speech. The privacy interest protected by the statute is not sufficient to overcome the presumptively invalid content-based restriction because it does not use the least restrictive means possible to protect the compelling government interest. The statute is also constitutionally overbroad because it criminalizes the actions of any person who shares the protected visual materials, regardless of his or her knowledge of the circumstances surrounding the materials’ creation. Read opinion.

Commentary:

The statute prevents the disclosure of visual material if “the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private. …” The court of appeals has construed the statute to read that “the visual material (a) was obtained by the person or (b) created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private . . .” The Legislature almost certainly intended the statute to be construed as follows: “The visual material (a) was (i) obtained by the person or (ii) created (b) under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private. …” The court of appeals suggests that the statute might be rendered constitutional if it required “that the disclosing person have knowledge of the circumstances giving rise to the depicted person’s privacy expectation.” Expect the Court of Criminal Appeals to review this decision. In the meantime, prosecutors should be aware of this decision if they intend to prosecute a defendant under this statute.

Stone v. State

No. 08-16-00343-CR        4/11/18

Issue:

Does an arrest or charge for the lesser-included offense of DWI begin the speedy trial clock for the greater charged offense of intoxication assault?

Holding:

No. A defendant’s right to a speedy trial does not attach until a formal accusation is made. The State publicly accuses a defendant through a charging instrument. An investigating officer’s knowledge of facts that would support a charge for the greater offense is not equal to a criminal charge. This is fundamentally different from a double jeopardy analysis because speedy trial rights insure only that charges pending against a defendant are promptly adjudicated. “Justice is usually best served by discouraging hasty prosecutorial judgments with respect to aggravated charges. … We are disinclined to promote a rule that rushes a prosecutor to make such an important decision out of fear that the speedy trial clock was running.” Read opinion.

Commentary:

This is a faithful and exhaustive application of previous speedy-trial decisions, some rendered under the old Speedy Trial Act. It is clear from this decision that the State was acting entirely in good faith and took its time in examining the evidence and expert opinions before filing the intoxication manslaughter charge. But do not get carried away. A defendant can still make a claim for pre-indictment delay if the State delayed for tactical advantage. That claim is governed by a different set of caselaw from Barker v. Wingo and other speedy-trial decisions.

Paz v. State

No. 01-15-00979-CR        4/18/18

Issue:

Is the trial court required to submit a voluntariness instruction to the jury when the evidence of involuntariness is ambiguous or contradicted by other evidence?

Holding:

Yes. Following a hearing on the voluntariness of a statement in which the trial court decides the statement was voluntary, the trial court must give the jury a voluntariness instruction if evidence pertaining to the voluntariness of the statement is presented during trial. Here, the defendant testified at the suppression hearing and at trial that an officer called him a derogatory name, lunged at him, and slapped him. Both officers present at the time denied this happened. During a later interview, another officer told the defendant he was going to report that the defendant was not cooperating and stated, “You already know what they’re going to do with you.” The trial court did not err in denying the motion to suppress because the officers were found to be more credible than the defendant. However, once the evidence was presented at trial, the conflicting statements concerning voluntariness become a fact issue for the jury to resolve and a jury instruction on voluntariness is required, even if the defendant fails to request one. Read opinion.

Commentary:

If a defendant claims that an officer made threats against him prior to the time that the defendant confessed, read this decision to determine if the defendant might be entitled to a jury charge on the voluntariness of the confession. Note that the defendant does not necessarily have to testify to raise the issue of voluntariness. It can be raised within the body of the confession itself. This is a case in which the State ultimately won the appeal because the error was harmless, largely because the defendant did not request a voluntariness instruction at trial. If such a request had been made at trial, the result very well could have been different.

Announcements

The Animal Law Section of the State Bar of Texas is holding its annual Animal Law Institute conference on Friday, April 27 in Austin. The conference is on animal cruelty and topics include the link between domestic violence and animal abuse, Texas animal cruelty laws 101, preparing and prosecuting animal cruelty cases, animal hoarding, dog fighting, ag gag laws, passing animal cruelty laws in Texas, and ethics. More information available here.

Texas Court of Criminal Appeals

Gonzalez v. State

No. PD-0181-17                       4/11/18

Issue:

Can evidence of extraneous drug use be entered into evidence as relevant to a claim of self-defense?

Holding:

Maybe. Evidence of extraneous offenses may be admissible when it relates to a “fact of consequence.” The relevance of evidence of drug use will depend on the ability to infer intoxicating effects from the drug. The strength of the inference depends on factors including when the drug was taken, the amount taken, the length of time the particular drug lasts, and whether expert testimony is required to explain the effects of the drug. Even if the drug use is relevant, it may still be inadmissible if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Here, evidence that the defendant took Ecstasy six hours prior to the incident may be relevant to his claim of self-defense, but no evidence was offered on the intoxicating effects of Ecstasy or the amount of time those effects last. Because the inference that the defendant was actually under the influence of Ecstasy at the time of the incident was “weak at best,” the prejudicial effect of the evidence substantially outweighed the probative value. Read opinion.

Commentary:

On the merits, this decision is primarily a decision under Rule 403 of the Rules of Evidence. It is consistent with the court’s prior decisions holding that evidence of a defendant’s drug use to show intoxication is not relevant absent expert testimony showing the particular effects of the particular drug. See Layton v. State, 280 S.W.3d 235 (Tex. Crim. App. 2009). Prosecutors should be cautious about introducing evidence of a defendant’s drug use—standing alone—to show intoxication. The State was saved in this particular case because the error in admitting the evidence was found to be harmless.

Texas Courts of Appeals

Robino v. State

No. 06-17-00172-CR               4/10/18

Issue:

May officers continue a warrantless search of a vehicle under the automobile exception after a passenger is identified as the perpetrator in the reported crime?

Holding:

Yes. Under the automobile exception to the warrant requirement, officers may search a vehicle if they have probable cause to believe the vehicle contains evidence of a crime. This extends to any containers or objects in the vehicle that could contain evidence regardless of ownership. Here, officers responded to a report of an attempt to pass a counterfeit bill and stopped a vehicle matching the description. When officers found a counterfeit bill on the passenger seat, there was probable cause to search the entire vehicle for further evidence of forgery. Officers were not required to stop the search of the car when one of the passengers was identified as the person who attempted to pass the counterfeit bill. Read opinion.

Commentary:

It is important to note this is not a case involving a search incident to arrest, controlled by Arizona v. Gant, but rather probable cause to search an automobile, controlled by United States v. Ross and other cases. This is an excellent discussion of the caselaw from the United States Supreme Court on searches under the “automobile exception.”

Simpson v. State

No. 01-17-00158-CR               4/10/18

Issue:

Is a trial court required to sua sponte instruct a jury on sudden passion?

Holding:

No. A trial court is required to instruct the jury on “the law applicable to the case.” If the evidence raises the issues of sudden passion, the defendant is entitled to a jury instruction at his request. However, an unrequested defensive issue is not part of “the law applicable to the case,” and a defendant forfeits any defensive issue that is not explicitly requested. Read opinion.

Commentary:

This is a good decision reaffirming that sudden passion is a defensive issue, even though it occurs only at the punishment stage. Therefore, a defendant is required to request an instruction on sudden passion before he can complain about it on appeal. This is important because the general rule under Almanza v. State is that a defendant can complain about any jury charge error on appeal whether he objected at trial or not.

Announcements

The Animal Law Section of the State Bar of Texas is holding its annual Animal Law Institute conference on Friday, April 27 in Austin. The conference is on animal cruelty and topics include the link between domestic violence and animal abuse, Texas animal cruelty laws 101, preparing and prosecuting animal cruelty cases, animal hoarding, dog fighting, ag gag laws, passing animal cruelty laws in Texas, and ethics. More information available here.

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

Herrera v. State

No. 07-16-00203-CR        4/2/18

Issue:

Is a report of suspicious activity by a citizen-informant sufficient to provide reasonable suspicion?

Holding:

Yes. Information provided to police by a citizen-informant is considered reliable when the informant identifies herself and may be held to account for the accuracy and veracity of the report. Here, the caller reported that a vehicle had been parked in front of her house and was continuously driving around the neighborhood throughout the day in a manner that made her believe the driver and passenger were “casing” the neighborhood. She provided a detailed description of the car and the driver. This report and the caller’s known identity is sufficient to provide reasonable suspicion that the defendant, the driver of the vehicle, was about to engage in criminal activity. Read opinion.

Commentary:

This case relies upon the leading decisions that allow officers to develop reasonable suspicion based upon citizen-informants. This decision is particularly helpful in a case with a defendant who was “casing” a neighborhood or a particular business. There are few cases that deal with officers stopping someone for “casing,” even though that was the behavior that gave rise to our reasonable suspicion jurisprudence in Terry v. Ohio. This decision should be very valuable for that as well.

Announcements

The Animal Law Section of the State Bar of Texas is holding its annual Animal Law Institute conference on Friday, April 27 in Austin. The conference is on animal cruelty and topics include the link between domestic violence and animal abuse, Texas animal cruelty laws 101, preparing and prosecuting animal cruelty cases, animal hoarding, dog fighting, ag gag laws, passing animal cruelty laws in Texas, and ethics. More information available here.

Texas Court of Criminal Appeals

Ross v. State

No. PD-0001-17                3/28/18

Issue:

Does a charge of official oppression require the State to prove beyond a reasonable doubt that the defendant knew her conduct was unlawful?

Holding:

Yes. Under Penal Code §1.07, unlawful is defined as “criminal or tortious or both and includes what would be criminal or tortious but for a defense not amounting to justification or privilege.” Here, the defendant was a Child Protective Services (“CPS”) investigator accused of official oppression by exceeding the scope of a search in the complainant’s home during an investigation by searching the kitchen cabinets and drawers. Evidence of training the defendant received on the Fourth Amendment and testimony that the defendant stated she was searching for evidence of drug use, rather than the missing child, was insufficient to prove that the defendant knew her actions were unlawful. The unique facts of this case included a blood-stained mattress and walls, prior history of drug use, CPS reports by the mother of the missing child, and lack of medical care for a child recently born in the home. A search of the kitchen for evidence of abuse or neglect was reasonably within the scope of the order in aid of investigation issued by a district court judge. Read opinion.

Commentary:

This decision should not be read to indicate that the defendant/investigator’s actions were in fact lawful. The decision only answers the question of whether the defendant knew that her conduct was unlawful. The decision is very fact-intensive, so it may have little application to other cases, such as one involving a law enforcement officer as a defendant who may have received more training on the Fourth Amendment.

Reynolds v. State

No. PD-1452-16                3/28/18

Issue:

Is evidence that the defendant, a CPS investigator, confiscated and searched the phone of a minor in emergency custody of the CPS department sufficient to prove that the defendant knew her conduct was unlawful?

Holding:

No. Evidence was presented that the defendant received training on the Fourth Amendment, the minor did not give anyone permission to seize or search the phone, and the defendant intended to search the phone for evidence of drug use. However, this was insufficient to prove the defendant knew her conduct was unlawful because the training never covered the specific fact situation and the defendant could have reasonably believed she had the authority to confiscate the phone because the minor was in the emergency custody of CPS. Read opinion.

Commentary:

Once again, this decision should not be read to say that the defendant/investigator’s conduct was lawful. This decision, as well as Ross above, reveals just how difficult it can be for the State to prove that the defendant knew her conduct was unlawful.

Texas Courts of Appeals

Callaway v. State

No. 07-16-00252-CR        3/27/18

Issue:

Must a jury unanimously agree on the aggravating circumstance for capital murder to convict?

Holding:

No. In a charge for capital murder, the State is required to allege a predicate murder and at least one of nine possible aggravating circumstances. The aggravating circumstances, which are alternate methods of committing capital murder, may be charged in the disjunctive. Only the victim alleged for the predicate murder must remain the same. A jury may convict as long as all jurors find that one of the aggravating circumstances was met; unanimity on which aggravating circumstance was met is not required. Read opinion.

Commentary:

This decision is a good, basic reminder that unanimity in capital murder cases, as with other result-oriented offenses, is treated differently from unanimity in sexual assault and other conduct-oriented cases. The defendant attempted to apply caselaw involving sexual assault to his case, but the court of appeals relied upon the significant amount of authority showing that a jury does not have to be unanimous as to the different ways of committing capital murder, as long as the jury is unanimous as to the predicate murder.

Texas Attorney General Opinions

Request RQ-0215-KP      3/22/18

Issue:

What are the obligations of a criminal district attorney under Code of Criminal Procedure Article 39.14 to disclose to a criminal defendant information obtained by the criminal district attorney during the performance of certain civil duties? Read request.

Commentary:

The Attorney General’s response to this request will be important to those offices that handle protective orders, parental rights terminations, and other similar cases that may have related criminal cases attached to them. Note that Article 39.14 is restricted in its application by §264.408 of the Family Code. By its terms, Article 39.14 also does not apply to privileged information. Article 39.14 has been construed not to apply prior to the time that a criminal defendant has been indicted. This request for an opinion only speaks to the application of Article 39.14 and does not reference a prosecutor’s responsibility under Brady v. Maryland or the applicable ethical rules.

Announcements

The Animal Law Section of the State Bar of Texas is holding its annual Animal Law Institute conference on Friday, April 27 in Austin. The conference is on animal cruelty and topics include the link between domestic violence and animal abuse, Texas animal cruelty laws 101, preparing and prosecuting animal cruelty cases, animal hoarding, dog fighting, ag gag laws, passing animal cruelty laws in Texas, and ethics. More information available here.

Texas Court of Criminal Appeals

Safian v. State

Nos. PD-0323-16 to PD-0325-16                3/21/18

Issue:

Is a defendant, who is charged with aggravated assault by threat with the use or exhibition of a motor vehicle as a deadly weapon, entitled to a lesser-included-offense instruction on deadly conduct?

Holding:

Yes. “As a matter of law, deadly conduct is a lesser-included offense of aggravated assault alleged by the use or exhibition of a motor vehicle as a deadly weapon. Although the elements of deadly conduct are not phrased identically to the elements of the greater offense as alleged here, the elements satisfy the functional-equivalence test for the first step of the lesser-included-offense analysis.” Read opinion.

Commentary:

This case represents a reaffirmation and an extension of the court’s prior decision in Bell v. State, 693 S.W.2d 434 (Tex. Crim. App. 1985). But this decision also confirms that every judge on the Court of Criminal Appeals accepts the “functional equivalence” test for determining whether an offense is a lesser-included offense of the greater charged offense. The court held that engaging in conduct that places someone in imminent danger of serious bodily injury (deadly conduct) is functionally equivalent to threatening someone with imminent bodily injury while using or exhibiting a deadly weapon (aggravated assault). Prosecutors should be cautious about objecting to an instruction on a lesser offense merely because the elements of the two offenses do not line up exactly.

Texas Courts of Appeals

Lopez v. State

No. 14-16-00987-CR        3/20/18

Issue:

Is a defendant entitled to a sua sponte jury instruction on temporary insanity due to voluntary intoxication?

Holding:

No. Although temporary insanity caused by voluntary intoxication is a mitigation instruction, it is still considered a defensive issue. A trial judge has no duty to sua sponte instruct the jury on unrequested defensive issues because they are not part of the “law applicable to the case.” Read opinion.

Commentary:

The court additionally stated that the defendant would not be entitled to such an instruction even if he had requested it. The best that the evidence showed was that the defendant did not recall what had occurred, but that is not enough to show temporary insanity based upon voluntary intoxication. 

Beltran De La Torre v. State

No. 01-17-00218-CR        3/15/18

Issue:

May a judge define “joint possession” in the jury instructions when the statutory definition of “possession” does not address “joint possession”?

Holding:

Yes. Both “possession” and “joint possession” have established legal definitions that differ from everyday usage. It is proper to define statutorily undefined terms when their legal meaning differs from common usage to ensure that jurors do not apply personal definitions inconsistent with the legal meaning. Defining “joint possession” when it is an issue raised by the evidence is not an improper comment on the weight of the evidence. Read opinion.

Commentary:

Be cautious with this decision. There is caselaw that would allow a trial judge to define a non-statutorily defined term if it has acquired particular technical or legal meanings. See Celis v. State, 416 S.W.3d 419 (Tex. Crim. App. 2013); Navarro v. State, 469 S.W.3d 687 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d). But in crafting such a definition, be careful to select a definition that has acquired long-standing support in the caselaw. In this particular case, the court of appeals was further supported in its ultimate holding by the fact the current Texas Criminal Pattern Jury Charge includes a definition of “joint possession.”

Texas Attorney General Opinions

Opinion KP-0185              3/19/18

Issue:

Which body-worn-camera recordings may an officer review, pursuant to Occupations Code §1701.655(b)(5), before making a statement about an officer-involved incident?

Response:

Occupations Code §1701.655(b)(5) requires a law enforcement agency that receives a grant for a body-worn-camera program or otherwise operates a body-worn-camera program to adopt a policy that entitles a peace officer to choose which recording or recordings of an incident involving the officer to access before the officer is required to make a statement about the incident. Read opinion.

Commentary:

This appears to be a straightforward application of rules regarding statutory construction. The decision—if applied—will have implications for how investigations of allegations of officer misconduct are handled. One might wish an officer to give his version of events without having his “memory refreshed” by his body-worn-camera recording, but this decision—and perhaps the Texas Legislature—would require that the officer be permitted to first review that recording.

Opinion KP-0186              3/19/18

Issue:

Is a municipal law enforcement agency authorized or required to release audio or video recordings from a body-worn camera to members of the public, members of the governing body of the municipality, and civilian employees of the municipality?

Response:

Pursuant to Government Code §552.108(a)(l), upon receiving authorization from the Attorney General, a law enforcement agency may withhold the recording of a body-worn camera if releasing it to a member of the public would interfere with the detection, investigation, or prosecution of a crime. The exception to disclosure under §552.108 is discretionary, and a law enforcement agency may release information recorded by a body-worn camera to a member of the public after the agency redacts any information made confidential by law.

With narrow exceptions, §58.008 of the Family Code prohibits a law enforcement agency from releasing to a member of the public a body-worn camera recording that could be used as evidence in a juvenile court proceeding or depicts or otherwise relates to a child in a manner that would restrict access to the recording.

A municipal law enforcement agency may not withhold from a member of the municipal governing body a recording from a body-worn camera when the request is made in the member’s official capacity. Whether civilian employees may access the recordings will depend on the authority given those employees by the municipal governing body and the internal policies and procedures of the municipality. Read opinion.

Commentary:

This opinion would give a law enforcement agency the freedom to support (or not support) an officer’s actions with hard evidence of what actually occurred at a scene. One might expect the public to demand consistency in the exercise of the agency’s discretion, so an agency will want to consider its policies carefully.

Announcements

The Animal Law Section of the State Bar of Texas is holding its annual Animal Law Institute conference on Friday, April 27 in Austin. The conference is on animal cruelty and topics include the link between domestic violence and animal abuse, Texas animal cruelty laws 101, preparing and prosecuting animal cruelty cases, animal hoarding, dog fighting, ag gag laws, passing animal cruelty laws in Texas, and ethics. More information available here.

Texas Courts of Appeals

Spiers v. State

No. 14-16-00892-CR        3/8/18

Issue:

Can the cumulative force of non-accomplice evidence satisfy the corroboration requirement of Code of Crim. Proc. Art. 38.14 when no individual piece of evidence would do so?

Holding:

Yes. To determine if corroboration evidence is sufficient, accomplice testimony is eliminated and the remaining record is considered to see if there is any evidence connecting the defendant to the commission of the crime. Evidence of the defendant’s motive and opportunity are insufficient on their own to corroborate accomplice testimony but may be considered with other evidence, such as suspicious circumstances, strange behavior, or evidence that the defendant was near the scene of the crime. Even circumstances that appear insignificant when considered separately may cumulatively amount to sufficient evidence of corroboration. Read opinion.

Commentary:

This is a very fact-intensive decision, as is often the case with accomplice witness cases. None of the individual pieces of non-accomplice evidence in this case was particularly strong or noteworthy. But this case shows well how all of that non-accomplice evidence can be considered together to connect the defendant to the commission of the offense. Prosecutors relying upon accomplice witness testimony and circumstantial evidence should definitely read this decision.

Announcements

The Animal Law Section of the State Bar of Texas is holding its annual Animal Law Institute conference on Friday, April 27 in Austin. The conference is on animal cruelty and topics include the link between domestic violence and animal abuse, Texas animal cruelty laws 101, preparing and prosecuting animal cruelty cases, animal hoarding, dog fighting, ag gag laws, passing animal cruelty laws in Texas, and ethics. More information available here.