January/February 2021 SDR – Voice for the Defense Vol. 50, No. 1

Voice for the Defense Volume 50, No. 1 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

This month we saw two major cases involving the right to pretrial release. In Daves, et al. v. Dallas County, the Fifth Circuit reiterates the due process requirement of individualized consideration of each individual’s ability to make bail. No. 18-11368 —F.3d—- (5th Cir. Dec. 28, 2020). In an unpublished opinion, the Austin Court of Appeals declines the invitation to use the pandemic as an excuse to prolong the period the State may confine an unindicted person. Ex parte Tucker, No. 03-20-00372 (Tex. App.—Austin, Dec. 31, 2020)(not designated for publication). Of equal importance, we also learn the appropriate way to pose for your baton certification class photo (but only if you read this SDR carefully!)

TCDLA thanks the Court of Criminal Appeals for graciously administering a grant which underwrites the majority of the costs of our Significant Decisions Report. We appreciate the Court’s continued support of our efforts to keep lawyers informed of significant appellate court decisions from Texas, the United States Court of Appeals for the Fifth Circuit, and the Supreme Court of the United States. However, the decision as to which cases are reported lies exclusively with our Significant Decisions editor. Likewise, any and all editorial comments are a reflection of the editor’s view of the case, and his alone.

Please do not rely solely on the summaries set forth below. The reader is advised to read the full text of each opinion in addition to the brief synopses provided. Cases are hyperlinked and can be accessed by clicking on the case name.

This publication is intended as a resource for the membership and I welcome feedback, comments, or suggestions: (972) 369-0577.

United States Supreme Court

The United States Supreme Court did not hand down any published opinions since the last Significant Decisions Report.

Fifth Circuit

Daves, et al. v. Dallas County, Texas, et al., No. 18-11368;  —F.3d.—- (5th Cir. Dec. 28, 2020)

Issues. This 42 U.S.C. 1983 lawsuit challenging the constitutionality of cash bail procedures as applied to indigent arrestees raises several issues: (1) Does the subsequent release of inmates in bail litigation seeking injunctive relief eliminate standing? (2) Must all state remedies be exhausted before federal bail litigation? (3) Are the Dallas County District Court Judges proper defendants? (4) Is Dallas County a proper defendant? (5) Is the Sheriff a proper defendant? (6) does the constitution demand more than the implementation of carefully crafted procedures that account for individual circumstances; is there a substantive due process right to be free from wealth-based detention?

Facts. This case is brought as a class action by the same attorneys involved in the Harris County bail litigation. That case now involves three Fifth Circuit opinions upon which this case now builds. Plaintiffs here are a class of indigent inmates who were unable to post bail. Seven Magistrate Judges are named as defendants. The lawsuit also names Dallas County, the Dallas County Sheriff, 17 Criminal District Court Judges, and 11 County Criminal Court Judges. At the time of plaintiffs’ filing, recent arrestees in Dallas County were taken before Dallas County Criminal District Court Magistrate Judges (appointed by the district court judges) who determine bail by reference to a recommended bail schedule (crafted by the district court judges). The schedules at issue set recommended bail amounts for corresponding offenses (absent special circumstances). Despite being stated as recommendations, the federal district court found that magistrate judges routinely treat the schedules as binding. In response to the Harris County litigation, Dallas County District Judges directed Magistrate Judges to begin accounting for an arrestee’s ability to pay based on financial affidavits. The federal district court found these financial affidavits “made no noticeable difference in the practices for setting terms of release.” Inmates who could not afford bail were taken back to jail and kept for weeks or months. The federal district court found “a clear showing of routine wealth-based detention” in violation of procedural due process and equal protection. Pursuant to similar relief granted in the Harris County litigation, the federal district court ordered Dallas County enjoined from imposing prescheduled bail amounts as a condition of release on arrestees who attest that they cannot afford such amounts without first providing an adequate process for ensuring there is individual consideration for each arrestee and possible alternatives to cash bail.

Holding. (1) No. The issue of standing “is to be assessed under the facts existing when the complaint is filed.” Lujan v. Defs. Of Wildlife, 504 U.S. 555, 569 n. 4 (1992). “Because the Plaintiffs had standing when they filed their original complaint, the capable-of-repetition-yet-evading-review doctrine precludes mootness.” Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975). (2) No. Defendant District Court Judges argue that when the constitutional complaint involves a challenge to the “very thing” that stands between the plaintiff and release from custody, plaintiffs must first seek habeas relief before filing a 1983 action. However, the District Court Judges mischaracterize the plaintiff’s requests, they seek individualized consideration of their ability to pay bail and nonfinancial alternatives. “The relief of a more robust hearing would not necessarily lead to ‘immediate release from confinement or the shortening of its duration.’” (3) No. Texas criminal district judges are “undeniably elected state officials” and “act for the state when acting on bail.” As state actors, their actions are covered by sovereign immunity. As such, the only avenue for continued litigation against them is a showing of potential prospective relief from continued and ongoing violation of federal law. Here, the District Judges adopted a policy that permits discretion and plaintiffs take issue in the policy’s implementation. Implementation is not a matter over which District Judges have control. Accordingly, the District judges are not only immune from suit, plaintiffs did not even allege a case or controversy involving them. (4) Yes. While there is some indication that county court judges are part of a state court system, precedent provides that a county court judge is a county actor, not a state actor. As such, when they set policy, they set policy on behalf of the county for which the county may be held liable in a 1983 suit. (5) Yes. “If bail is unconstitutionally required, the sheriff’s ‘constitutional violation is detention on an improperly determined bail amount.’” (6) No. “There is no clear support in the precedents on which the Plaintiffs rely for the expansive liberty right for indigents that the Plaintiffs claim.” Nor does the Eighth Amendment’s prohibition on excessive bail create a substantive right to liberty for indigent defendants. There is no substantive due process right to be free from wealth-based detention. Though liberty cannot be taken without a constitutionally adequate justification, what the constitution requires is procedural due process: an individualized determination of the person’s ability to make bail, whether cash bail is necessary, and whether other alternatives to cash bail may satisfy the government interests involved.

Comment. This is a scary precedent as it pertains to sheriffs. I don’t want the sheriff to be the final arbiter of whether a judge followed the constitution; the Fifth Circuit says its opinion doesn’t go this far. The sheriff’s responsibility is merely a perfunctory one: to see if an individualized assessment was made. But what should a sheriff do when a judge holds a bond insufficient without a hearing, orders a sentence executed that relies upon insufficient evidence?  The other thing which struck me in this case is the invocation of the capable-of-repetition-yet-evades-review doctrine. On the COVID-19 taskforce we have been advancing that argument in the courts of appeal and Court of Criminal Appeals on behalf of inmates denied their statutorily guaranteed release because of delay. Nearly every person we have assisted has mooted-out due to case resolution or some other mechanism. Texas courts have specifically rejected the capable-of-repetition-yet-evades-review argument in the context of bail litigation. This changes things. 

Texas Court of Criminal Appeals

Haggard v. State, No. PD-0635-19 (Tex. Crim. App. 2020)

Issue. Does testimony by a Sexual Assault Nurse Examiner (SANE) via a two-way video system (Facetime) violate the Sixth Amendment?

Facts. Following an outcry of sexual assault, a family friend took the complainant to the hospital for a SANE evaluation. The SANE nurse memorialized the complainant’s story, did not find trauma to the alleged complainant’s sexual organs, but did find a hickey she described on her breast. Despite the complainant describing two instances of ejaculation during the assault, in 2014, the DPS crime laboratory could not find the presence of anyone’s semen in any area of interest, including the shirt the complainant described using to clean herself. In 2017 DPS used new software to determine that the defendant was a contributor of DNA of previous unknown mixed DNA sample from the complainant’s breast hickey (billions of times more likely than any other person to have contributed to the mixed result). At the time of trial (in 2017), the SANE nurse had moved to Montana. Because she committed to voluntarily appearing in court to testify the State did not subpoena her. The Friday before the Monday that trial was set to begin, the SANE nurse changed her mind and informed the prosecutors she would not appear voluntarily. Without attempting to subpoena the SANE nurse or moving for continuance, the State requested that the trial court permit the SANE nurse to testify via FaceTime. The State argued that the SANE nurse was necessary to prove chain of custody and that without the SANE testimony, the DNA evidence would be inadmissible. The trial court granted the State’s motion over defense objection.

Holding. Maybe. It did here. A majority opinion by Judge Hervey, joined by Keasler, Richardson, Newell, and Walker, JJ. A criminal defendant has not only the right confront, but also the right to physically confront those who testify against him. Coy v. Iowa, 487 U.S. 1012, 1017 (1988). That right is subject to important public policy concerns. Id. In Maryland v. Craig the U.S. Supreme Court found one such important public policy concern sufficient. The Court upheld the use of one-way, closed-circuit television for child testimony under a statute which required case-specific findings pertaining to necessity arising from child trauma and inability to communicate while in the presence of the defendant. 497 U.S. 836 (1990). The Court of Criminal Appeals has consistently applied the standard from Craig in cases involving the use of two-way video systems, such as FaceTime. Marx v. State, 987 S.W.2d 577 (Tex. Crim. App. 1999); Gonzalez v. State, 818 S.W.2d 756 (Tex. Crim. App. 1991). The court rejects the invitation of the dissent to treat this progeny as outdated and instead “focus on the realities of the world we live in today.” Citing Scalia, the court notes:

a purpose of the Confrontation Clause is ordinarily to compel accusers to make their accusations in the defendant’s presence—which is not equivalent to making them in a room that contains a television set beaming electrons that portray the defendant’s image. Virtual confrontation might be sufficient to protect virtual constitutional rights; I doubt whether it is sufficient to protect real ones.

Order of the Supreme Court, 207 F.R.D. 89, 91 (2002)(Statement of Scalia). The Court noted the evolution of the right to confrontation from a substantive guarantee to a procedural one in Crawford v. Washington. 541 U.S. 36 (2004). The importance of the right is the ability to test evidence in the “crucible of cross-examination.” Id. The Court seems to assume that Craig remains the applicable standard for evaluating virtual confrontation and finds that the trial court’s desire to save the State from its negligence or alleviating travel burdens on witnesses are insufficient public policy justifications to overcome the defendant’s right to in-person confrontation.

Concurrence (Yeary, J.). The Court of Criminal Appeals is limited to addressing only issues which have been ruled upon by a lower court. The Beaumont Court of Appeals assumed for the sake of argument the Confrontation Clause was violated and found no harm. The case should have been sent back to the Beaumont Court of Appeals to require them to analyze the confrontation clause issue. Nonetheless, Judge Yeary opposes the dissent’s position that the Sixth Amendment has evolved to incorporate the use of new-fangled technologies.

Dissent (Slaughter, J. joined by Keller and Keel, JJ.). The dissenters perceive an opportunity presented by the advancement of technology to allow virtual confrontation despite Crawford and Craig. They find the requirements of the Sixth Amendment are limited to (1) taking an oath, (2) face to face examination with some exceptions, (3) opportunity for cross examination, (4) ability of the factfinder to observe the witness’s demeanor. These were all satisfied in the instant case via FaceTime testimony. The dissent notes the use of really big modern TV screens actually make for better and even enhanced interactions (notwithstanding the numerous technical problems in the instant case). If the defendant wants to avoid whatever shortcomings virtual cross-examination presents, the defendant can issue a subpoena.

Comment. A long but necessary summary. The facts of this case predate the COVID-19 pandemic, but the opinion comes squarely in the middle of a surge in U.S. cases. This case is a blueprint both for proponents and opponents of virtual cross examination during the public health disaster. The State in the instant case did very little in way of presenting a good reason to the trial court for allowing 2-way video confrontation (though its argument was certainly a familiar one: “we’re the State, it’s not fair when we lose, and we really, really, want to do it”). It’s hard to predict whether the six judges in the majority would hold should the State presents better arguments revolving around public health and safety during the pandemic. A defendant facing the prospect of unwanted virtual confrontation should definitely parlay the arguments in this case with those in In re Abbott and Ex parte Sheffield, “[t]he Constitution is not suspended when the government declares such a disaster.” In re Abbott, 601 S.W.3d 802 (Tex. 2020); Ex parte Sheffield, No. 07-20-00216-CR (Tex. App. Amarillo—Sep. 17, 2020).

Day v. State, No. PD-0955-19 (Tex. Crim. App. 2020)

Issue. In the context of an evading arrest prosecution (which requires a lawful detention), can an officer’s discovery of a lawful basis for detention (a warrant) be tainted by illegality—a la fruit of poisonous tree—because the initial basis for the detention was unlawful.

Facts. A city marshal was staged three houses down from the home of an individual with a traffic warrant (“target fugitive”). He intended to arrest this individual but didn’t know what he looked like. A vehicle with several passengers arrived as did a couple of individuals on bicycles. One of the individuals in the group was the target fugitive. He asked those in the group to identify the target fugitive and all declined. The marshal asked for identification. The defendant was one of the two individuals who complied with that command. As the marshal checked the defendant for warrants, the target fugitive rode away on his bicycle. Appellant told the marshal that he wanted to leave, that he had to get to work, and that he wasn’t the target fugitive. The marshal declined to terminate the detention. Appellant admitted to having warrants out of Fort Worth, but the marshal indicated he was not concerned with those warrants, at least until he learned they were county-level warrants. When it became clear that he would be arrested, the defendant started to make his escape. The marshal informed the defendant he was not free to leave and that he was under arrest. He ran, anyway. The defendant argued in the trial court that the continued detention beyond the point of defendant’s expression that he wished to leave, was unconstitutional and thus his further detention and ultimate arrest were unlawful. On direct appeal, the defendant argued this fact entitled him to acquittal (evading arrest or detention requires proof of a lawful arrest or detention). The Court of Appeals found that that the prolonged period of detention was unconstitutional and that the later discovery of a warrant did not cure this.

Holding. No. The word “lawfully” as it appears in the evading arrest or detention statute does not incorporate exclusionary rule principles such as “taint” and “fruit of the poisonous tree.” These concepts define the remedy for unlawful police conduct only in the context of suppression. “[T]hey do not transform an otherwise lawful arrest into an unlawful one.” The court rejects the defendant’s argument that once a detention becomes unlawful, it remains unlawful. The court notes that this remains a valid fruit-of-the-poisonous-tree argument in the context of Fourth Amendment suppression, just simply inapplicable in cases of evading.

Comment. This comment might make your brain explode. Because lawful detention or arrest is an element of the offense, you can’t file a motion to suppress in an evading case (noted in opinion). Now, in the context of any motion to suppress you can argue subsequent lawful police action is “tainted” or “fruit of the poisonous tree” due to initial illegal conduct. But, according to the court, in the context of an evading trial, you can’t argue “taint” or “fruit of the poisonous tree” because they have no bearing on the sufficiency of the evidence. Procedurally, where do you get to make these arguments in an evading case? Nowhere now.

Diamond v. State, No. PD-1299-18 (Tex. Crim. App. 2020)

Issue. In a DWI with BAC greater than 0.15 prosecution, is undisclosed evidence that a lab technician accidentally certified questionable blood results in an unrelated case the type of materially favorable cross-examination evidence that would warrant granting a new trial under Brady v. Maryland?

Facts. This is a substitute opinion on motion for rehearing. Defendant was convicted at trial of DWI with a BAC greater than 0.15. In an unrelated case, prior to defendant’s trial, the technician who analyzed defendant’s blood mistakenly certified a blood alcohol analysis where a police officer had mislabeled the submission form accompanying the blood sample. The technician had caught the discrepancy, followed protocols in setting it aside for resolution, but then accidentally certified the analysis without resolving the discrepancy. At the time of Defendant’s trial, the technician had been removed from casework and was working to research and document this incident. The technician’s supervisor, partly to blame for the error, offered inconsistent reasoning for why he had removed her from casework. The trial court rejected the supervisor’s ultimate rationale: that he had lost confidence in the technician’s knowledge base and denied the writ of habeas corpus. The 14th Court of Appeals found otherwise, rejected the trial court’s finding, and accepted as true that the supervisor had lost confidence in the technician and finding that this fact was at least material to the jury’s finding that the defendant’s BAC was greater than 0.15. 

Holding. No. At least not here. The subjective evidence of intoxication was substantial as was the evidence that, in the instant case, the analyst followed all protocols. In the case of the unrelated error, there was never a question whether the technician accurately analyzed the blood – her error was certifying it as belonging potentially to the wrong person (and that error was caught before it caused any damage). Due to these considerations, the erroneous certification in an unrelated case could not have been materially favorable cross-examination evidence for the defendant. With regard to the accusation made by the technician’s supervisor—a suggestion to lack confidence in her work—the trial court was within its discretion to reject that conclusion, especially in light of the fact that it was self-serving, blame shifting, and one of several inconsistent statements provided by the witness.

Comment. In the creative minds of criminal defense lawyers, it is hard to accept that scandalous evidence is not material evidence. Many of us have tried DWI blood draw cases by attacking the reliability of government crime laboratory procedures for identifying and addressing errors and the normal practice of self-investigation. Having particularized instances where these procedures produced (or almost produced) disastrous results, lend credibility to the argument.

1st District Houston

Thomas v. State, No. 01-18-00504-CR (Tex. App.—Houston [1st Dist.] Dec. 1, 2020)

Issue. In an open-plea scenario, where a defendant executes a standard agreed-plea form to indicate her intent to plead guilty, but that form is modified or repurposed to show the absence of a negotiated punishment, may the state wield boilerplate appeal waiver language in that form to defeat the defendant’s right to appeal?

Facts. Defendant and her co-conspirators stole more than $8 million from an engineering company and pleaded guilty to theft and money laundering. Defendant entered an open plea of guilt and proceeded to punishment before the trial court without a sentencing recommendation from the prosecutor. Prior to the hearing the defendant executed standard/boilerplate forms which included waiver of appeal language. Although the prosecutor did not express a negotiated punishment recommendation in this document, he did indicate that the State waived its right to a jury trial.

Holding. No. A waiver of the right to appeal is unenforceable without consideration. The boilerplate waiver executed by the defendant expressly states that the defendant waived the right to appeal in exchange for the State’s sentencing recommendation. That is not true. And there is no other indication that the State gave some consideration for this purported waiver. The State’s argument that its waiver of jury trial was valuable consideration is unpersuasive. The record does not reflect that the State’s waiver of jury trial was offered in exchange for defendant’s plea or waiver of appeal. Moreover, there is no evidence that the State was otherwise disinclined to waive a jury trial.

Brent v. State, No. 01-19-01008-CR (Tex. App.—Houston [1st Dist] Dec. 10, 2020)

Issue. Does the Code of Criminal Procedure impose a deadline on the trial court’s exercise of “judicial clemency” jurisdiction following a defendant’s successful completion of community supervision?

Facts. In March 2017 the trial court discharged the defendant from her conviction-based misdemeanor community supervision. More than two years later, in 2019, defendant filed a “Motion to Set Aside the Verdict and Dismiss Pursuant to Texas Code of Criminal Procedure Art. 42A.701(f)” (motion for “judicial clemency”). The State filed a response objecting to the trial court’s jurisdiction, arguing that the trial court’s authority to enter such an order expires 30 days after its entry of a probation discharge order. The trial court granted defendant’s request for judicial clemency and interpreted 42A.701(f) to have no such deadline.

Holding. No. A discharge from probation is a recognition that the defendant “has paid his debt to society . . . .” “Judicial clemency” is available “when a trial judge believes that a person on community supervision is completely rehabilitated and is ready to re-take his place as a law-abiding member of society . . . .” Cuellar v. State, 70 S.W.3d 815 (Tex. Crim. App. 2002). The literal text of the 42A.701(f) provides:

If the judge discharges the defendant under this article, the judge may set aside the verdict or permit the defendant to withdraw the defendant’s plea. A judge acting under this subsection shall dismiss the accusation, complaint, information, or indictment against the defendant. A defendant who receives a discharge and dismissal under this subsection is released from all penalties and disabilities resulting from the offense of which the defendant has been convicted or to which the defendant has pleaded guilty [subject to certain exceptions not applicable here].

The State’s incorrectly reads the statute to require discharge and clemency to occur at the same time. The statute envisions the discharge as a condition precedent to the order of judicial clemency. Restricting the trial court’s clemency jurisdiction to the time of granting a discharge is inconsistent with public policy. Judicial clemency is a reward for complete rehabilitation, but some have not reached that status at the date of their probation discharge.

(2) No. There are only two types of community supervision discharges: permissive (early discharge upon early completion of conditions), and mandatory (upon completion of conditions and full expiration of probationary term). The court rejects the State’s attempt to add a third category of discharge ineligible for judicial clemency—one where the defendant did not complete conditions but the probationary period expired, is unpersuasive. 

Comment. Justice Goodman takes a principled stance in the face of five sister courts of appeal holding that jurisdiction to grant judicial clemency expires 30 days after entry of an order discharging the defendant from community supervision. Four months on the job as the new SDR editor and I find myself checking each month to see what Justice Goodman has written.

Roland v. State, No. 01-19-00752-CR (Tex. App.—Houston [1st Dist.] Dec. 15, 2020)

Issue. Does a county court at law have subject matter jurisdiction over a prosecution for official oppression?

Facts. Defendant worked at the Fort Bend County Juvenile Probation Department as a drill instructor. He was accused of slapping or hitting juveniles under his supervision. The State tried to charge him with official oppression. They first filed a misdemeanor cases in the county court. Then believing jurisdiction should be in the district court, they moved to “transfer jurisdiction,” but abandoned this maneuver prior to a hearing. The misdemeanor court instead held the misdemeanor charges while the State obtained a grand jury indictment to prosecute the same charges in district court. The district court dismissed the charges based on the expired statute of limitations. The State then reverted back to their conveniently held prosecution in the misdemeanor court and argued that county and district courts have concurrent jurisdiction over official-oppression cases. The county court denied the defendant’s motion to dismiss and the defendant plead no contest and appealed.

Holding. No. Official oppression is a Class A misdemeanor and constitutes an offense of “official misconduct.” Generally, county courts have exclusive original jurisdiction over misdemeanor offenses. Tex. Gov’t Code § 26.045(a). Misdemeanors involving official misconduct are excluded from this general rule. Tex. Gov’t Code § 26.045(a). Article 4.05 of the Code of Criminal Procedure confers original jurisdiction of all misdemeanors involving official misconduct to district courts. Tex. Code Crim. Proc. art. 4.05. Thus, the county court at law here had no jurisdiction to enter its judgment against the defendant. A judgment entered without jurisdiction is null and void and therefor it is vacated and dismissed.

Comment. There is nothing particularly profound about the outcome or analysis in this case. It is all-around good lawyering. If you didn’t know jurisdiction over misdemeanors involving official misconduct lies in the district court, as Biggie Smalls says, “if you don’t know, now you know.”

Torres v. State, No. 01-18-01074-CR (Tex. App.—Houston [1st Dist] Dec. 22, 2020)

Issue. (1) Does the Confrontation Clause apply in probation revocation hearings? (2) When a probationer is required to “successfully complete” treatment, does a conclusory unsuccessful discharge citing generally that the defendant failed to follow rules provide a sufficient basis to revoke probation?

Facts. Defendant’s probation was revoked. He was previously sentenced to deferred adjudication probation with the condition of completing six months of treatment in the Substance Abuse Felony Punishment Facility (SAFPF). The State, by its motion to adjudicate guilt, alleged that he failed to complete the SAFPF program. At the hearing on the motion to adjudicate the State called a probation record custodian who did not have personal knowledge of defendant’s probation performance but authenticated the defendant’s probation records. The State called a SAFPF coordinator who prepared an unsuccessful discharge report based on information conveyed to him during a “treatment team meeting” with SAFPF/prison personnel over the telephone. The State also introduced the discharge report. Neither the SAFPF coordinator nor the discharge report articulated any particular violations, but did cite generally that defendant committed “rule violations.”

Holding. (1) Dodged. Prior to 2012 several intermediate courts of appeal determined that there is no right to confrontation in probation revocation hearings. In 2012, the Court of Criminal Appeals issued its ruling in Ex Parte Doan holding that “[c]ommunity-supervision revocation proceedings are not administrative hearings; they are judicial proceedings, to be governed by the rules established to govern judicial proceedings.” 369 S.W.3d 205, 212 (Tex. Crim. App. 2012). But the Court of Criminal Appeals has not expounded on that holding. The First Court assumes a confrontation right but mostly dodges this question by finding reversible error elsewhere. (2) No. “Successful completion” of a treatment program impliedly requires a probationer to abide by rules and regulations. However, the exercise of discretion by a third party in evaluating whether the probationer complied with rules and regulations must be accompanied with the basis for such a conclusion. The reasons for a probationer’s discharge from a mandated treatment program are relevant to the trial court’s decision to revoke probation. Due process requires a trial court to evaluate the exercise of discretion by the third party to verify legitimacy, veracity, and “to ensure it was used on a basis that was rational and connected to the purposes of community supervision.” See Leonard v. State, 385 S.W.3d 570 (Tex. Crim. App. 2012). Here, the discharge report only contains conclusory statements that the defendant violated “rules” of the program and bad behavior. It contains no supporting facts, sources of information, and the SAFPF coordinator knew nothing about the bases of the complaints. Thus, the evidence here was insufficient for the trial court to have found the defendant violated the “successful completion” of treatment condition. 

Concurrence (Keyes, J.). Probationers have a right to confrontation in probation revocation hearings. The Court of Criminal Appeals decision in in Doan has sufficiently overruled any predecessor case that holds otherwise. Because the discharge report contained hearsay within hearsay it was inadmissible, despite the proper business record predicate. “Here, there is no indication that the actual facts underlying revocation of appellant’s community supervision were of any concern to the State or to the court; nor was any attention given to assuring appellant’s rights or attempting to reach any result other than a summary dismissal of all obstacles to the swift adjudication of appellant’s guilt and his sentencing to a long term in prison . . .”

Comment. There are two confrontation issues that come up frequently in the context of probation revocation motions: (1) a probation revocation motion prosecuted many years after its filing where the probation department sends a surrogate to testify on behalf of a probation officer with personal knowledge who is no longer employed, and (2) the surrogate probation officer testifying on behalf of the probation officer with personal knowledge to whom the probationer reports in another jurisdiction. These scenarios should draw a confrontation challenge every time.

Rankin v. State, No. 01-19-00156-CR (Tex. App.—Houston [1st Dist] Dec. 29, 2020)

Issue. Was a jury’s rejection of the defendant’s claim of sudden passion based on legally and factually insufficient evidence where the defendant testified that she stabbed her boyfriend immediately after a momentary break from his ongoing assault and strangulation?

Facts. Defendant called her boyfriend to help her jump start her vehicle. When boyfriend arrived, an altercation ensued. According to the defendant’s daughter who witnessed the altercation, the boyfriend grabbed and lunged at the defendant, he stated, “bitch I’ll kill you” and began to choke the defendant. Upon witnessing this, daughter fled to retrieve a baseball bat. Defendant testified that when boyfriend choked her, she felt like she was going to die, she called out for help and then stabbed the boyfriend with a knife as soon as she could free her arms. Boyfriend let go, attempted to drive off, but ultimately collapsed. While boyfriend was attempting to drive off, defendant cried alone in her car. After boyfriend collapsed, defendant rushed him to the hospital. At the hospital an officer asked who inflicted boyfriend’s wounds and defendant admitted that she had. Defendant was interviewed by series of officers and twice omitted that she stabbed her boyfriend amid the ongoing assault and strangulation. Instead she maintained that the stabbing was accidental.

Holding. No. A defendant is punished within the second-degree felony range if he or she “caused the death under the immediate influence of sudden passion arising from an adequate cause.” Tex. Penal Code § 19.01 (d). For conduct to be justified as influenced by a sudden passion “the defendant’s mind must be rendered incapable of cool reflection.” Because sudden passion is an affirmative defense, the court reviews a sufficiency challenge for both legally sufficient evidence (viewing evidence in light favorable to the jury’s rejection of the defense), and for factually sufficient evidence (viewing evidence neutrally and determining whether jury’s finding was contrary to the great weight of other evidence). The evidence was legally sufficient to reject the defendant’s sudden passion claim. The defendant testified that she remained calm and composed before, during and after the stabbing. Defendant’s ability to call out for help belies her claim that the stabbing was an immediate reaction or influenced by a sudden passion. Her crying alone in her car was also reflective of cool reflection. The evidence was factually sufficient to reject the defendant’s sudden passion claim. The evidence contradictory to the jury’s rejection of sudden passion was evidence provided by the defendant and seemed inconsistent with both the testimony of other witnesses and the defendant’s own statements provided to police prior to her arrest. The jury was free to reject the defendant’s testimony as credible evidence.

Dissent (Keyes, J.). This is a classic case of sudden passion. Finding otherwise is against the great weight and preponderance of the evidence. The majority is correct in its legal sufficiency analysis—at least a mere scintilla of evidence supported a rejection of defendant’s sudden passion claim. But, contrary to the majority’s conclusion, the jury’s rejection of sudden passion was factually insufficient. The defendant and the victim were engaged in a physical and verbal altercation. The defendant, having been choked, would have been provoked in a manner that would “commonly produce such a passion in a person of ordinary temper.” Her commission of the murder was immediately upon the victim’s loosening of his grip around her neck and before she could have regained any capacity for cool reflection. A causal connection existed between the provocation, passion, and homicide. There is no evidence to support the conclusion that the defendant did not act out of sudden passion.

Comment. 15 years for a murder sounds like some of the jurors might have believed in the sudden passion theory. It is rare that an appellate court dusts off the relic of factual sufficiency. It is applicable here, in the limited circumstance of assessing sufficiency of the evidence on a defensive issue where the defendant has the burden of proof.

2nd District Fort Worth

The Second District Court of Appeals in Fort Worth did not hand down any significant or published opinions since the last Significant Decisions Report.

3rd District Austin

Ex parte Tucker, No. 03-20-00372 (Tex. App.—Austin, Dec. 31, 2020)(not designated for publication)

Issue. Do Supreme Court Pandemic Emergency Orders authorizing trial courts to “modify or suspend deadlines and procedures [authorized by statute]” permit a trial court to extend Article 17.151 deadlines mandating pretrial release when the State is unprepared for trial?

Facts. After 88 days of pretrial-preindictment confinement, the State of Texas filed a “Motion to Modify Article 17.151 Deadline” (accused must be released on personal bond when State not ready for trial after expiration of 90 days of pretrial confinement). The State argued it was entitled to extension under the recent series of Texas Supreme Court orders authorizing Texas courts to “modify or suspend all deadlines and procedures . . . .” In support of its argument justifying extension of the 17.151 deadline the State pointed to: (1) the lack of clear guidance on whether other Supreme Court Emergency Orders permitted empaneling grand juries remotely, (2) the inability to assemble a sufficient number of in-person grand jury meetings when the ability to do so became clear, and (3) and the inability to assemble a quorum of grand jurors when remote procedures were authorized. The defendant argued that his pretrial-preindictment period of confinement satisfied the Article 17.151 requirements for a personal bond, and that the Supreme Court’s Emergency Order permitting trial courts to modify statutory deadlines violated the Texas Constitution’s prohibition on suspension of laws by a branch of government other than the legislature. He also argued that the Government Code did not grant the Texas Supreme Court and Court of Criminal Appeals the authority to delegate to the district courts the power to suspend Article 17.151 deadlines. The trial court granted the State’s request to extend the 17.151 deadline and reset the matter for 30 days. The State indicted the defendant two days before the reset hearing date and argued that the matter was now moot. The trial court agreed and denied the defendant’s request for personal bond.

Holding. No. Despite the trial court’s explicit finding to the contrary, nothing in the record indicated that the State was ready for trial (or had returned an indictment) within the 90-day deadline imposed by Article 17.151. A defendant’s entitlement to a personal bond under 17.151 is not mooted by a subsequent indictment returned after a defendant makes a valid request and a showing of 90 days of continuous confinement. Rather than stating the Supreme Court Emergency Orders are unconstitutional (in violation of the Texas’s constitutional prohibition on suspension of statutes), the court merely holds that the Emergency Orders do not apply to Article 17.151. By their own terms, the Supreme Court Emergency Orders permitting extension of statutory deadlines pertain to “court proceedings,” but here no case had been filed and therefore there was no “court proceeding.” Thus, the trial court’s extension of the statutorily prescribed deadline was erroneous.

Comment. This “Motion to Modify Article 17.151 Deadline” was no doubt a widely circulated prosecutor template crafted shamelessly as a tactic on how to take advantage of the ongoing pandemic and executive orders. The spirit of these emergency orders is to thread the needle between much needed emergency action and preservation of our constitutional rights and systems of government. The State acknowledges in briefing that the Governor’s GA-13 Executive Order (prohibiting Article 17.151 release certain indigent people during the pandemic) is unconstitutional because statutory suspension is an authority reserved by the legislature under Article I Sec. 28 of the Texas Constitution. Then, in the same breath, the State asks the trial court to uphold the Supreme Court’s suspension of a statute. Someone might point out that the judiciary is also not the legislature.

4th District San Antonio

Ex parte Jarreau, No. 04-19-00704 (Tex. App.—San Antonio, Dec. 23, 2020)

Issues. Is Texas Health and Safety Code §§ 483.042(a) prohibiting distribution of dangerous drugs unconstitutionally vague on its face because  (1) it fails to provide fair notice of prohibited conduct, or (2) because it fails to provide definitive guidance for law enforcement, prosecutes, judges and juries?

Facts. The Texas Health and Safety Code defines “dangerous drug” as:

A device or drug that is unsafe for self-medication and that is not included in Schedules I through V or Penalty Groups 1 through 4 of Chapter 481 (Texas Controlled Substances Act). The term includes a device or drug that bears or is required to bear the legend:

(A) “Caution: federal law prohibits dispensing without prescription” or “Rx only” or another legend that complies with federal law; or

(B) “Caution: federal law restricts this drug to use by or on the order of a licensed veterinarian.”

Holding. (1) No. The Health and Safety Code defines a dangerous drug as “unsafe for self-medication.” This definition is sufficiently clear and specific enough for ordinary people to understand what conduct is prohibited under Section 483.042(a). “The void-for-vagueness doctrine . . . guarantees that ordinary people have fair notice of the conduct a statute proscribes.” Sessions v. Dimaya, 138 S.Ct. 1204, 1212 (2018). A defendant challenging facial vagueness must establish that no set of practical or reasonable circumstances exist under which the statute will be valid. According to the 1981 edition of Websters Third New International Dictionary, “safe” means “secure from threat of danger, harm, or loss;” not threatening danger;” “harmless;” free from contaminating qualities;” and “not liable to corrupt or injure.” Thus, “dangerous drugs” are devices or drugs that are likely to harm or injure, or expose to danger, a person who uses them to treat oneself. This definition excludes over-the-counter drugs commonly understood to be safe for self-medication and provides “fair notice” that the legislature’s intent to prohibit experimental or evolving recreational drugs yet to be categorized as controlled substances. The fact that countless substances could meet this definition is irrelevant, the Constitution only requires “fair notice” of prohibited conduct. To this end, “perfect clarity and precise guidance have never been required.” Ex parte Ellis, 309 S.W.3d 71, 86 (Tex. Crim. App. 2010).  (2) No. As an independent basis for facial validity a defendant may challenge the lack of definitive guidelines for law enforcement, prosecutors, judges, and juries. But the analysis here is the same. The word “unsafe” is sufficiently defined and the defendant fails to show the lack of objective criteria for enforcement of unlawful possession or distribution of a “dangerous drug” as that phrase is previously defined by the court.

Dissent (Rodriguez, J.). The “catchall” definition for “dangerous drug” is unconstitutionally vague on its face. A successful facial vagueness challenge need not establish that the statute always operates unconstitutionally in all circumstances. “The concept that a particular substance ‘unsafe’ for self-medication, i.e., able or likely to cause harm, may differ based on multiple factors including the physical health of the person using the drug, the type of drug, the method of use, the number of times the drug is used, and other various factors.” Further, the degree of harm necessary to satisfy the definition is unclear; it is unclear whether death is a required consequence, or serious bodily injury, or headache, or an upset stomach; must the harm be suffered instantaneously, within hours, or months later?

Comment. This appears to be a case of first impression. The gray area here, as in any facial vagueness challenge, is the degree to which plausible circumstances of conduct unquestionably meets the definition. The multitude of unknowns created by the definition, and cited by the dissent, could tip the balance in favor of unconstitutionality should this case be reviewed further by the Court of Criminal Appeals. 

Avalos v. State, No. 04-19-00192-CR (Tex. App.—San Antonio, Dec. 30, 2020)

Issue. In a capital murder without death penalty prosecution (mini-cap), does Texas Penal Code Section 12.31’s automatic imposition of a life sentence without possibility of parole violate the Eighth Amendment’s (and Texas’s equivalent) prohibition on cruel and unusual punishment as applied to an intellectually disabled defendant?

Facts. This opinion by an en banc Fourth Court of Appeals substitutes the previous panel opinion. Defendant, an intellectually disabled person, pleaded guilty to two counts of capital murder pursuant to a plea agreement in which the state agreed to a punishment of life imprisonment without possibility of parole (automatic in non-death capital murder conviction). The trial court did not consider defendant’s intellectual disability in imposing the agreed-upon and automatic sentence. Defendant appealed claiming that United States Supreme Court precedent prohibits automatic life-without-parole sentencing without a consideration by the trial court of the defendant’s intellectual disability.

Holding. Yes. In Atkins v. Virginia, 536 U.S. 304 (2002), the Supreme Court “barred the execution of intellectually disabled individual as violative of the prohibition on cruel and unusual punishment.” Such sentencing practices mismatch the culpability of a class of offenders and the severity of punishment. Their diminished capacity makes it less defensible to impose death penalty as retribution for their crime. Years later the Supreme Court would apply this same diminished capacity logic to find that an automatic life sentence in the case of a juvenile violated the Eighth Amendment by “run[ing] afoul of [the] requirement of individualized sentencing for defendants facing the most serious penalties.” Miller v. Alabama, 567 U.S. 460, 465 (2012). Based on Supreme Court precedent, it logically follows that a sentencer must not treat every intellectually disabled person as alike with other adults. Because Penal Code § 12.31(a)(2) automatically imposes life without parole, the statute is unconstitutional as applied to intellectually disabled persons.

Dissent (Chapa, J.).  There are differences between an intellectually disabled person and a juvenile – the en banc court erroneously extrapolates from Supreme Court precedent treatment of a juvenile in the Eighth Amendment context. The en banc majority opinion could lead to a lot of intellectually disabled inmates who are in prison getting a new sentencing hearing. Not just murderers but rapists too. Nonetheless, the legislature should reconsider the operation of Penal Code § 12.31(a)(2) to account for intellectual disability.

5th District Dallas

Smith v. State, No. 001-87850-2018 (Tex. App.—Dallas, Dec. 31, 2020)

Issue. (1) Does due process and the doctrine of abatement require an acquittal when the legislature decriminalizes conduct after criminal conduct occurred but before the disposition of a pending prosecution? (2) Where the trial court’s judgment reflects that the defendant was tried for two offenses together in a single trial but the record reflects that the trial court only arraigned the defendant and took the defendant’s plea on a single offense, has there been a trial on the un-referenced charge? 

Facts. On June 10, 2019, the Texas Legislature passed HB 1325, decriminalizing the possession of cannabis with a THC concentration of 0.3% or less and effectively establishing the requirement of laboratory testing in marijuana possession cases. Defendant was alleged to have possessed marijuana before the effective date of HB 1325, but his trial in August of 2019 occurred after the effective date. Despite the State not producing evidence of a THC concentration, the trial court convicted, finding that the partial decriminalization of marijuana possession was a change in the law intended to apply prospectively only and not retroactively to defendant’s conduct predating HB1325. Immediately prior to the State calling witnesses, the trial court announced a single cause number and admonished defendant on a single offense of possession of marijuana. The defendant pleaded “not guilty” to a single charge of possession of marijuana. However, the trial court’s judgment reflects that he was tried and convicted of the additional charge of unlawfully carrying a weapon.

Holding. (1) No. Under the Code Construction Act Tex. Gov’t Code 311.022, “statutes are presumed prospective in their operation unless expressly made retrospective” (Texas’ “general savings clause”) The legislature did not expressly provide for retroactive application in its adoption of HB 1325 which is an indication the legislature intended prospective-only application. Appellant’s due process arguments are unpersuasive because the intent of the legislature controls over what due process would require. The court declines to consider the legislature’s intended use and operation of the general savings clause and appellant’s argument and historical context showing its limited applicability to “technical abatement” or the “the accidental triggering of the abatement doctrine to conduct the legislature still intends to prohibit.” (2) No. A the following presumptions control: the defendant entered a plea when a judgment reflects a conviction, and a judgment is presumed to be correct. A defendant must show affirmative evidence to overcome this presumption. The fact that the record reflects a single plea to a single offense is not persuasive.

Comment. Because I am both the editor of the Significant Decisions Report and Appellant’s attorney in this matter, I present an excerpt from the commentary from the Texas Independent Bar Association Case of the Week summary. Most presciently, David Schulman writes “I fully expect there will be an en banc reconsideration, and thus, a significant possibility of a petition for discretionary review.” John Jasuta provides some historical context regarding the following argument advanced by counsel: if the Code Construction Act suggests retroactive application of sentencing reductions in all pending prosecutions, it should logically follow that completely extinguishing criminal responsibility should do the same. Jasuta notes that similar arguments were advanced in the 1970s when the legislature passed marijuana sentencing reduction and those incarcerated and imprisoned sought relief from their sentences. The Court of Criminal Appeals found that, at least as it pertains to post-conviction relief, to reduce a sentence would amount to a commutation, which is a power exclusively within the prerogative of the Governor.

6th District Texarkana

The Sixth District Court of Appeals in Texarkana did not hand down any significant or published opinions since the last Significant Decisions Report.

7th District Amarillo

The Seventh District Court of Appeals in Amarillo did not hand down any significant or published opinions since the last Significant Decisions Report.

8th District El Paso

The Eighth District Court of Appeals in El Paso did not hand down any significant or published opinions since the last Significant Decisions Report.

9th District Beaumont

The Ninth District Court of Appeals in Beaumont did not hand down any significant or published opinions since the last Significant Decisions Report.

10th District Waco

Holloway v. State, No. 10-18-00053-CR (Tex. App.—Waco, Dec. 9, 2020)

Issue. Did the trial court egregiously harm the defendant by instructing the jury in the abstract portion of the jury charge that the culpable mental state for endangering a child focuses upon the nature of the defendant’s conduct rather than the result of the defendant’s conduct (improperly framing the gravamen of the offense)?

Facts. Defendant was convicted of endangering a child. In the abstract portion of the jury charge, the trial court instructed the jury on the culpable mental states of “intentionally,” “knowingly,” and “recklessly” all “with respect to the nature of her conduct.”

Holding. No. The instruction was erroneous but not egregiously harmful (standard for unobjected-to jury charge error). An abstract portion of a charge includes general legal principles. The penal code couches culpable mental states as the mental state the defendant has with regard to either: (a) the nature of his conduct, or (b) the result of his conduct. A proper jury charge must correctly categorize the offense as such. “When specific acts are criminalized because of their very nature, the culpable mental state must apply to committing the act itself.” However, when “unspecified conduct that is criminalized because of its result,” the culpable mental state must apply to the result. Here, the nature and circumstances surrounding the conduct of child endangerment are inconsequential to the commission of the offense. The Penal code criminalizes unspecified conduct which causes a result – a child having been placed in danger. Thus, the conduct (whatever it may be) must be done with the required culpability to effect this result. The jury charge was in error, but it was not egregiously harmful. Generally, error in the abstract not present in the application paragraph is not egregiously harmful. Here the State actually argued the case as a result of conduct: “at the very minimum . . . [she] ought to be aware that there is a risk there.”

Comment. The courts of appeal are split on the issue of whether endangering a child is a “nature of conduct” or “result of conduct” offense. A secondary issue in this case, which counsel was wise to tap, is a growing sentiment that the doctrine of factual sufficiency should be revived under the Texas Constitution. factual sufficiency review, as opposed to a legal sufficiency review, requires a reviewing court to consider record evidence in a neutral light (rather than one most favorable to the verdict). In doing so, the court evaluates the weight of the evidence and reverses when it is “so obviously weak as to undermine confidence in the jury’s determination.” The 10th Court declined this invitation, but appellate attorneys should continue to make the argument.

11th District Eastland

The Eleventh District Court of Appeals in Eastland did not hand down any significant or published opinions since the last Significant Decisions Report.

12th District Tyler

The Twelfth District Court of Appeals in Tyler did not hand down any significant or published opinions since the last Significant Decisions Report.

13th District Corpus Christi/Edinburg

The Thirteenth District Court of Appeals in Corpus Christi/Edinburg did not hand down any significant or published opinions since the last Significant Decisions Report.

14th District Houston

State v. Baldwin, No. 14-19-00154-CR (Tex. Crim. App.—Houston [14th Dist], Dec 10, 2020)(En Banc)

Issue. (1) when witnesses describe a murder suspect as a Black male who drove a white four-door sedan, does being Black and driving a white four-door sedan in the neighborhood the day prior to the murder establish probable cause? (2) Does the bald assumption that co-conspiring criminals discuss their crimes on their cellphones establish probable cause to seize and search a suspect’s cellphone?

Facts. The 14th District Court of Appeals, en banc, reconsiders this case previously summarized in the September Edition of the Significant Decisions Report. Justice Bourliot, the previous dissenter in the panel decision, writes on behalf of the Court. Two masked gunmen killed a homeowner during the course of a robbery and fled the scene. A witness described the suspects as two Black men in a white four-door sedan. Investigators acquired information about two Black men who were in and out of the neighborhood the day before in a white four-door sedan as well as the license plate number of their vehicle. Four days later, after tracking down the owner/operator/defendant, officers conducted a pretextual traffic stop for the purpose of investigating the murder. The defendant consented to a search of his vehicle but not his cellphone. Officers obtained a search warrant for the phone through a probable cause affidavit attempting to tie the defendant to the crime by his race and the vehicle description and attempting to establish the cellphone as evidence by articulating in the abstract that cellphones are used generally in the commission of crimes.

Holding. (1) No (plurality). Here the affidavit contained no particularized facts connecting the defendant or his cellphone to the commission of the murder—at most the affidavit allows for a conclusion that the defendant was in the neighborhood the day before the murder and he had a cellphone on him five days later. As for the defendant’s presence in the neighborhood, “It would strain credulity to conclude in a county with nearly five million people that evidence of a crime probably would be found in someone’s car just because he was in the neighborhood on the day before the offense in a car the same color as the one driven by a suspect who also happened to be Black.” “The dissent takes issue with the fact that we require a description of the vehicle more specific than white, four-door sedan to support probable cause. But that is exactly the point. There is nothing distinctive that would tie Baldwin’s white car to the one seen at the offense.” (2) No. The “lack of nexus between the sedan and the crime . . . lays a predicate to determine whether there was probable cause to search the cellphone.” Cellphones contain the “most intimate details of a person’s individual life.” A link between cell phone usage and the commission of a crime must be established. Generic boilerplate language about what might be on the phone or how suspects might have used the phone during the commission of the crime does not satisfy the requirement of probable cause. “Under the dissent’s reasoning, any time more than one person is involved in a crime, police officers would have probable cause to search a cellphone.”

Concurrence (Zimmerer, J.). Agrees with the majority opinion as it pertains to a lack of nexus between the cellphone and the commission of the offense. Would find a sufficient nexus between the defendant’s vehicle and the commission of the offense.

Dissent (Christopher, J.). There is a sufficient nexus between the defendant’s vehicle and the commission of the crime. The majority fails to give deference to the considerable weight of evidence stablishing that a white four-door sedan was seen driven by Black men the day before the murder and that a witness to the murder saw Black men in a white four-door sedan fleeing. The matching descriptions of: race, number of occupants, color of car, number of doors, and time proximity when combined were sufficient facts from which to find probable cause that the individuals seen fleeing the scene were the same individuals seen in the neighborhood the day before. There is a sufficient nexus between defendant’s cellphone and the commission of the crime. Although the warrant affidavit contained nothing but boilerplate generalizations about the use of cellphones during the commission of crimes, the affiant’s boilerplate belief that “it is common for suspects to communicate about their plans via text messaging, phone calls, or through other communication applications” is crucial. This boilerplate statement, combined with the fact that the offense was described as committed by co-conspirators, creates the probable cause assumption that evidence would be discovered on the cellphone.

Comment. With courts of appeal across the State flipping partisanship, many eyes are on the impact. Do divided courts result in red-team v. blue-team? Can they find common ground? Can diversity of opinion result in persuasion against a one’s initial instinct? Here, the Fourteenth Court split hard among party lines. Don’t jump the gun and assume a trend from a single example. But this breakdown made me think about the recent Dallas Fifth Court of Appeals en banc opinion in Ex parte Ferris, No. 05-19-00835 (Tex. App. Dallas, Oct. 2, 2020)(en banc). In Ferris, Fifth Court split not only among themselves, but also from sister jurisdictions on an issue pertaining to expunction law (DPS’s claim that “same transaction” bar to expunction is a concept of near-infinite possibilities). The Ferris split was a 6-plus-1 (Dem-Rep) majority opinion and a 4-plus-2 (Rep-Dem) minority opinion.

State v. Chen, No. 14-19-00372-CR (Tex. App.—Houston [14th Dist.], Dec. 31, 2020)

Issue. Is Texas’s electronic harassment statute facially unconstitutional under the First Amendment?

Facts. After the State charged the defendant with electronic harassment, the trial court granted the defendant’s motion to quash and writ of habeas corpus, finding the applicable provision of the Texas electronic harassment statute facially unconstitutional under the First Amendment. The applicable provision states: 

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another person, the person:

(7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.

(b) In this section:

(1) “Electronic communication” means a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. The term includes:

(A) a communication initiated through the use of electronic mail, instant message, network call, a cellular or other type of telephone, a computer, a camera, text message, a social media platform or application, an Internet website, any other Internet-based communication tool, or facsimile machine; and

(B) a communication made to a pager.

Holding. Yes. The first step in analyzing a First Amendment facial validity challenge is to determine whether the statute implicates a substantial amount of protected speech (communication and receipt of ideas, opinions, and information). “The State may lawfully proscribe communicative conduct that invades the substantial privacy interests of another in an essentially intolerable way.” Citing Cohen v. California, 403 U.S. 15, 21 (1971). The Court of Criminal Appeals has rejected a First Amendment facial challenge to a similarly phrased prohibition of telephonic harassment Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010). In Scott, the Court of Criminal Appeals determined that such telephone calls were “essentially noncommunicative” under the First Amendment because the “sole intent” of the defendant who makes such calls is to inflict emotional distress and thus “invade[s] a substantial privacy interest of another (the victim) in an essentially intolerable manner.” Scott v. State, 322 S.W.3d 662, 670 (Tex. Crim. App. 2010). The following courts of appeal have applied the Scott rationale to reach the same outcome as it pertains to the instant electronic harassment provision: Beaumont, Austin, San Antonio, Amarillo, El Paso, Eastland, Corpus Christi. However, some courts and justices believe that Scott has been abrogated. In particular, the Fort Worth Court of Appeals recognizes that the Court of Criminal Appeals refused to apply the rationale of Scott to a materially identical version of the electronic harassment statute in Wilson v. State. 448 S.W.3d 418 (Tex. Crim. App. 2014). Contrary to the holding in Scott the Court of Criminal Appeals in Wilson recognizes that a person communicating electronically can have a dual intent (to communicate protected ideas and opinions while also intending to harass, annoy, alarm, etc.). There is a significance to the fact that a victim of telephonic harassment is a captive audience which makes telephonic harassment “inherently personal and invasive.” The phenomenon of a captive audience “loses its force” in the context of electronic communications. The prohibition of electronic communication “encompasses a far broader array of activities,” many of which fall outside of the context of a captive audience and require affirmative actions by the user to access such content. Examples include clicking on an email or going to another’s Facebook page to seek out the harassing content. With these considerations “we conclude that the electronic-communications-harassment statute goes well beyond a lawful proscription of intolerably invasive conduct and instead reaches a substantial amount of speech protected by the First Amendment.” Because the statute is “content-neutral” the court does not presume invalidity and analyzes the prohibition with a less-than-strict-scrutiny approach. However, because a substantial number of the statute’s applications are unconstitutional when compared to its “plainly legitimate sweep” the electronic harassment statute is facially overbroad. The court agrees with Judge Keller in describing the breadth of prohibitions as “breathtaking” (Facebook posts, message-board posts, blog posts, blog comments, newspaper article comments, any of which are merely criticism of another person constitute a crime). This overbreadth chills legitimate speech and is unconstitutional.

Dissent (Zimmerer, J.). no opinion.

Comment. I will not admit that I have written more than one Significant Decisions Report commentary that was intended to alarm anyone or that was written in a manner critical of the law, but if I did, it appears I would be subject to arrest in Beaumont, Austin, San Antonio, Amarillo, El Paso, Eastland, and Corpus Christi. If you are receiving this communication in those jurisdictions, this message will self-destruct in five seconds. 

Warren v. State, No. 14-19-00589-CR (Tex. App.—Houston [14th Dist.], Dec. 31, 2020)

Issue. Did the State fail to disprove defendant-police-officer’s justification defense beyond a reasonable doubt when both his partner and a baton instructor testified he was not justified in continuing to beat a man with a baton after he had fallen to the ground (from the baton beating)?

Facts. Defendant was an officer who was convicted of assaulting an individual for sleeping on a bench at the METRO light rail platform. According to the complainant, Defendant approached him, defendant stated “n***a, didn’t I tell you to move around?” when complainant stood up he said “say what?” and defendant beat him with “an antenna” while saying “huh, huh, huh, huh.” Two videos were admitted into evidence, one roughly depicts these events. Defendant’s partner testified that they previously encountered the complainant during the same day, and he had been aggressive to the point of requiring him to draw a taser. According to defendant’s partner, complainant was fake sleeping and would not get up after being “tapped” “excessively.” Defendant’s partner believed the complainant was aggressive in the way he stood up from the bench but became compliant after a single strike with a baton. After complainant fell back onto the bench, Defendant continued to strike him with the baton. When complainant fell to the ground from the bench, Defendant continued to beat him with a baton. Eventually defendant’s partner had to tug him to get him to stop striking the complainant. Defendant repositioned himself and beat the complainant a little bit more. According to Defendant’s partner, none of the strikes after the first two were necessary and defendant’s use of force was excessive. The State called a METRO Police Department “baton instructor” who reviewed video footage and testified that the continued beating of the complainant as he fell to the ground was improper. Nonetheless, defendant argued in the trial court that he was justified as a peace officer to strike complainant in the manner he did.

Holding Appellant argues that that the State did not prove his personal belief regarding the necessity of force. However, Penal Code § 9.41(a) requires a consideration of a “reasonable belief” which is a belief of an ordinary and prudent person in the circumstances. The record contains ample evidence that defendant exceeded the amount of force that was reasonably necessary to assist in making an arrest.

Comment. There is such thing as a baton instructor? Interesting. Don’t do a google image search if you don’t like to see people wearing khakis and black tees in a mixture of gleeful and menacing poses while holding batons.

Kyle Therrian
Kyle Therrian
Kyle’s practice has always been criminal defense. In McKinney, where he has practiced for the past 10 years, he represents individuals in all aspects of criminal accusations, including dozens of appeals before the various Courts of Appeal and Court of Criminal Appeals. He enjoys being a resource to his colleagues and, as he describes it, “nerding out on the law.” He is an active member and leader in TCDLA. In addition to his new role as Significant Decisions Report Editor, Kyle serves as Vice Chair to Texas Criminal Defense Lawyers Education Institute, Vice Chair on the COVID-19 Taskforce, is a long-time member of the Amicus committee, and a regular lecturer as part of the Criminal Defense Lawyers Project.

Kyle’s practice has always been criminal defense. In McKinney, where he has practiced for the past 10 years, he represents individuals in all aspects of criminal accusations, including dozens of appeals before the various Courts of Appeal and Court of Criminal Appeals. He enjoys being a resource to his colleagues and, as he describes it, “nerding out on the law.” He is an active member and leader in TCDLA. In addition to his new role as Significant Decisions Report Editor, Kyle serves as Vice Chair to Texas Criminal Defense Lawyers Education Institute, Vice Chair on the COVID-19 Taskforce, is a long-time member of the Amicus committee, and a regular lecturer as part of the Criminal Defense Lawyers Project.

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