Texas Courts of Appeals

Martinez v. State

Nos. 02-22-00291-CR–00294-CR                4/11/24

Issue:

Can officers open a cell phone abandoned at a crime scene to view non-electronic identifying information, such as the phone’s international mobile equipment identification (IMEI) number, and then use that identifying information to obtain a search warrant for the phone’s digital data?

Holding:

Yes. “The police did not have to obtain a warrant to obtain the phone’s IMEI number from its interior SIM tray before securing a warrant to view the phone’s digital contents. The IMEI number allowed the police to describe the phone with the particularity required to obtain the warrant, and to hold otherwise would impede the ability of police officers (and good Samaritans) to attempt to determine a cell phone’s ownership by checking its nondigital identifiers … Further, by fleeing, Martinez abandoned any reasonable expectation of privacy in the IMEI number when he dropped the phone at the crime scene—a place he had no right to be.” Read opinion.

Commentary:

This decision essentially has two holdings. The first holding is that an officer can search an abandoned or misplaced cell phone’s IMEI number or SIM card to determine the cell phone’s ownership without violating the Fourth Amendment. The second holdings is that the defendant “abandoned any reasonable expectation of privacy in the IMEI number when he dropped the phone at the crime scene—a place he had no right to be.” In that respect, the court’s abandonment holding is much more limited than other courts have been in similar circumstances. The court is being cautious in approach, which is almost certainly wise when dealing with the search of a cell phone. Any prosecutor faced with either or both of these two issues should read this decision. The opinion is extremely thorough and heavily researched.

Milton v. State

Nos. 01-22-00335-CR–00036-CR                               4/16/24

Issue:

Was the evidence legally sufficient to prove the defendant committed the offense of trafficking a person when the defendant alleged he did not cause the victim to commit prostitution since she was 15 years old at the time of the offense and could not consent to have sex as a matter of law?

Holding:

Yes. “We hold that in the context of a conviction for compelling prostitution of a child and trafficking of a child based on compelling prostitution, a child older than 13 years old does not, as a matter of law, lack the ability to consent to sex for purposes of committing prostitution.” Read opinion.

Commentary:

The defendant relied heavily upon the decision of the 14th Court of Appeals in Turley v. State, in which the court overturned the defendant’s conviction when the victim was younger than 14 years of age (and therefore could not consent to sex in order to be able to commit the offense of prostitution). The Turley opinion—decided in 2020—is currently being reviewed by the Court of Criminal Appeals. The court of appeals in this case did not feel bound in any way by the Turley decision because of the differences in ages of the two respective victims. Even if the Court of Criminal Appeals does not overturn Turley, prosecutors should expect this particular decision to remain. Defendants should not be able to escape prosecution because they have chosen young girls as their victims.

Ex Parte Segovia

No. 07-23-00456-CR                       4/16/24

Issue:

Did the trial court abuse its discretion by denying the defendant’s application for bail reduction and failing to consider the public safety report as required by Article 17.15 of the Texas Code of Criminal Procedure?

Holding:

No. “After considering all the statutory and judicial factors relevant to setting bail, we conclude that the trial court did not abuse its discretion in denying [the defendant’s] application seeking a reduced amount of bail.” Regarding the public safety report, the Court noted that the defendant did not raise the issue until his appeal, and the Court may not consider issues that were not raised in his application and addressed by the trial court. The Court went on to say that “even if [the defendant] had presented the public safety report issue and preserved it for our review, [the defendant] does not identify how the trial court’s alleged failure to consider the report caused him harm. As such, he has not met his burden to establish his entitlement to the extraordinary relief of habeas corpus.” Read opinion.

Commentary:

This particular defendant is a very violent (typical) domestic violence offender, and he is facing multiple charges. This is one of the first decisions to be issued since the Court of Criminal Appeals issued its opinion in Ex parte Gayosso, in which the court suggested that a defendant might need to object to the trial court’s failure to consider a public safety report and that a failure to consider it could also be harmless. Perhaps in the typical case, the absence of or failure to consider a public safety report in a bail case will be harmless to a defendant. But this is not the last that we have heard about the necessity of public safety reports in bail cases.

Texas Attorney General Opinion

KP-0462                              4/16/24

Issue:

May a constable serve simultaneously as a municipal court judge?

Conclusion:

No. Holding more than one “office of emolument” violates the Texas Constitution, the common-law doctrine of incompatibility, and potentially violates the State Code of Judicial Conduct. Under the Texas Constitution, when an individual accepts a second office that is incompatible with the first, the first office is in effect resigned. “Thus, when the individual at issue accepted the incompatible office of municipal judge he effectively resigned from the office of constable.” Read opinion.

Requested by:

Franklin McDonough, 31st Judicial District Attorney

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