Weekly Case Summaries: March 3, 2017

5th U.S. Circuit Court of Appeals

Cruz v. Abbott

No. 16-50519     2/23/17

Issue:

Do the anti-harboring provisions of Penal Code §20.05(a)(2) (as passed in 2015 by HB 11) impermissibly target illegal alien shelters and expose the landlords who rent to them to criminal liability?

Holding:

No. The Court concluded that the plaintiffs have not demonstrated imminent harm and therefore did not have standing. “Because there is no reasonable interpretation by which merely renting housing or providing social services to an illegal alien constitutes ‘harboring … that person from detection,’ we reverse” an injunction on enforcing that portion of the statute earlier imposed by a federal district court. Read opinion.

Commentary:

This opinion will make you wish you paid better attention in grammar class. The opinion notes that, while DPS says it won’t enforce the statute in question against landlords who merely rent to illegal immigrants, that same statement is not binding on local district and county attorneys and local police. If law enforcement in your area chooses a different manner of enforcing, they should get ready to spend some time as defendants in a new federal lawsuit.

Texas Court of Criminal Appeals

State v. Jarreau

No. PD-0840-16      3/1/17

Issue:

Must a charging instrument alleging delivery of a named dangerous drug specify whether it is a device or drug?

Holding:

No. Although the State is required to specify which method of delivery it intends to prove under Health & Safety Code §483.042, the definition of “dangerous drug” does not concern the act of delivery and does not have to be specified in the indictment. Read opinion.

Commentary:

This is a natural extension of the CCA’s decision in State v. Babernell, which held that a charging instrument did not need to specify which definition of intoxication the State would rely upon at trial.

Baumgart v. State

No. PD-1358-15      3/1/17

Issue:

Under the Private Security Act (Occupations Code Chapter 1702), are the provisions that say the Act “does not apply” to law enforcement personnel considered exceptions (that must be negated by the State in its charging instrument) or defenses (that must be raised by the defendant)?

Holding:

Defenses that the defendant must raise. The Court concluded that if a defensive matter does not use the exact wording for exceptions outlined in Penal Code §2.02, it is not an exception or affirmative defense but instead a defense that is governed by Penal Code §2.03. The State has no burden to negate defenses governed by §2.03 in the charging instrument. Even though the heading in Subchapter N of the Private Security Act is titled “Exceptions,” the heading does not limit or expand the meaning of the statute itself. Furthermore, the Court specifically addressed how §§2.02 and 2.03 apply to offenses outside the Penal Code. Read opinion.

Commentary:

Most importantly, the Court holds, consistent with several lower courts, that the statutory language “does not apply” means a defense rather than an exception. A holding to the contrary might have blown up thousands of cases around the State because there are many defenses in Texas statutes labeled “does not apply” rather than “it is a defense.” The holding that §§2.02 and 2.03 can apply to offenses outside the Penal Code is good but less important.

Curry v. State

No. AP-77,033     3/1/17

Issue:

In a capital murder case, must a judge instruct a jury that the term “society” in the future dangerousness special issue means life in prison without the possibility of parole?

Holding:

No. The legislature did not define the term “society” in Code of Criminal Procedure Art. 37.071, and the terms and phrases used in Art. 37.071 do not require any special definitions. After the jury asked a question about the meaning of “society,” the trial judge answered: “There is no special definition in the law regarding the term ‘society.’ With that understanding, the jury cannot put a legal limitation on that term.” The Court held that the judge’s answer correctly stated the law and did not violate the defendant’s constitutional rights. Read opinion.

Dissent (Alcala, J.):

The dissent would find that the trial court’s answer to the jury’s question permitted jurors jury to consider the probability of the defendant’s future dangerousness in the “freeworld society and thereby incorrectly led it to believe that appellant might be released from prison prior to the end of his natural life if he was not sentenced to death.” Read opinion.

Commentary: 

This opinion is also useful in its treatment of challenges to the photographic lineups used in the case. The dissent overlooks recent history in Texas and other states—just because a defendant is sentenced to prison does not mean he cannot escape and commit other violent crimes or solicit or direct violent crimes outside prison from within his cell.

Texas Courts of Appeals

State v. Garcia

No. 08-15-00264-CR      2/24/17

Issue:

Is a warrantless blood draw on an intoxication manslaughter suspect justified by exigent circumstances when hospital personnel are about to set up an IV that would introduce saline and narcotics into the suspect’s bloodstream, and the county does not have an expedited warrant process?

Holding:

Yes. Comparing this case to Cole v. State, 490 S.W.3d 918 (Tex. Crim. App. 2016), the court concluded that because the medication and saline would likely compromise the blood sample by impeding the ability to determine the rate of dissipation, the warrantless blood draw was justified. Read opinion.

Commentary:

A very interesting read. All parties and the courts obviously worked hard on this case to develop the record and arguments. The case is unpublished, but still valuable as an authority and a template for other cases.

Rubio v. State

No. 13-15-00087-CR     2/24/17

Issue:

Has the State committed a Brady violation when it has failed to turn over a 911 tape until the time of trial, but the prosecutor agrees at trial that the tape contains inadmissible hearsay and does not attempt to admit it?

Holding:

No. Evidence must be admissible in court before a prosecutor has a duty to disclose it under Brady. Read opinion.

Commentary:

Don’t bet your Bar card on the notion that evidence isn’t subject to Brady just because it is not in admissible form. Some lawyers might be able to figure out how to make it admissible.

Texas Attorney General Opinions

Opinion No. KP-0134      2/27/17

Issue:

What people or agencies may have access to and may view criminal history record information subject to an order of nondisclosure under Chapter 411 of the Texas Government Code?

Conclusion:

Under §411.076 of the Government Code, a court may disclose criminal history record information subject to an order of nondisclosure only to: 1) criminal justice agencies for criminal justice or regulatory licensing purposes, 2) to the person who is the subject of the order, or 3) to an agency or entity listed in §411.0765(b) of the Government Code. This criminal history record information may not be disclosed to employees of a district or county clerk except as necessary for statutorily authorized purposes. The adequacy of measures necessary to seal criminal history record information involves questions of fact that cannot be determined in an attorney general opinion. Read opinion.

Commentary:

This opinion is consistent with the nondisclosure statute but may present compliance difficulties for agencies, like clerks, who possess records subject to the orders.

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]