Texas Courts of Appeals
Isaac v. State
No. 04-22-00203-CR 8/16/23
Issue:
Is an officer’s training, experience, and senses of sight and smell sufficient to establish probable cause for marijuana possession since hemp has become legal and can be confused for marijuana?
Holding:
Yes. “Despite [the defendant’s] argument that industrial hemp is now legal and indistinguishable from marijuana without a lab test, marijuana remains illegal, and the probable cause standard for police to detect it remains the same. …” The Court also noted that several courts in jurisdictions where hemp is legal and marijuana remains illegal (as well as the Dallas Court of Appeals in an unpublished opinion) have arrived on the same conclusion: Officers can still rely on the odor of marijuana to establish probable cause to investigate marijuana possession. Read opinion.
Commentary:
This is a good decision, and prosecutors should focus judges upon the quoted language above for the court’s holding. However, it should be noted that, in the “Analysis” section of the court’s opinion, the court relied upon other factors to support the trial court’s ruling on the defendant’s motion to suppress. Would this court have upheld the officer’s actions if the only factors were the odor and appearance of marijuana? Perhaps, but it is worth noting. Also note that, in footnote 5 of the court’s opinion, the court recited that the trial judge made a specific finding that the officer in fact believed the substance that he saw and smelled was marijuana. The result of this opinion might have been different if the trial court had granted the defendant’s motion to suppress and the State had to appeal.
Runyon v. State
Nos. 09-22-00043 and -00044-CR 8/16/23
Issue:
Did the defendant’s live-in girlfriend perform an unlawful search of his computer, which contained child pornography as well as unconsented-to videos of her and the defendant having sex, in violation of Penal Code §33.02 and Code of Criminal Procedure Art. 38.23?
Holding:
No. The trial court correctly concluded that information about the contents of the defendant’s computer seen by the girlfriend and communicated to officers was legal to use in obtaining a search warrant for the contents of the computer. The girlfriend had previously used the defendant’s laptop computer (and numerous other electronic devices) with his consent, and the computer was not password protected on the day the girlfriend found the folder with child pornography and other videos. Read opinion.
Commentary:
This is a very fact-bound decision that could have been resolved differently if the facts were even just a little different and that definitely would have been resolved differently if the trial judge issued fewer or different findings of fact. This decision—and the decision above—underscore the crucial importance of prosecutors being involved in helping craft findings of fact after the judge has issued a ruling on the defendant’s motion to suppress. These motions are often resolved not on legal questions, but on significant factual issues. In that respect, it does not matter nearly as much whether the trial judge decided correctly. Rather, it matters whether the trial judge’s ruling and the key fact findings were reasonable or were supported by the record. Great job by the State in this case, both at trial and on appeal.
Sanchez v. State
No. 04-23-00539-CR 08/16/23
Issue:
Are non-citizen defendants entitled to a continuance of an in-person pretrial hearing until they are legally able to enter the country?
Holding:
No. The defendants, arrested and charged as part of Operation Lone Star, have not shown that they have a clear right to a continuance. The defendants did not articulate how or why their presence at the pretrial hearing is substantially tied to their defense to make their absence a violation of due process. The Court also concluded that the “uncontrollable circumstance” affirmative defense is not applicable here, where the State has not sought to forfeit the defendants’ bonds. “Under these facts and the authority by which we are bound, we must conclude [the defendants] have not shown that they have a clear right to a continuance.” Read opinion.
Commentary:
The substance of the pretrial hearing is not mentioned in the court’s opinion. The defendants (relators) apparently did not suggest when—if ever—the United States might allow them to enter the country again—legally. The court of appeals requested responses from the trial judge and the State, and none were provided. The sparse factual and legal development of the issues in this case make this decision of limited value. The decision of the court of appeals is certainly legally correct: The defendants did not show that they had a clear right to continuances until such time as they would be allowed to enter the United States legally. That would also seem to suggest that, if the defendants seek further mandamus relief from the Court of Criminal Appeals, that high court will not change the result here. But prosecutors should be very cautious in relying upon this decision as anything other than a very fact-bound Operation Lone Star case.
Boes v. State
No. 07-22-00204-CR 08/15/23
Issue:
Does “tagging” someone on Facebook constitute an intentional or knowing act of “communication” under the violation of a protective order statute (Penal Code §25.072)?
Holding:
Yes. “Tagging” is the act of creating a link to a particular Facebook friend who must be selected to receive notification of a tag. In this case, the defendant posted on Facebook at least three occasions and “tagged” the victim. The posts admitted into evidence demonstrated the defendant’s transmission or conveyance of information or a written message sufficient to constitute “communications,” and the victim testified that the posts were communications designed to embarrass and shame her. Read opinion.
Commentary:
The substance of the Facebook posts is not mentioned in the court’s opinion. Although the victim testified that she was embarrassed by the posts to which she was tagged, the substance does not really matter. The statute prohibits communicating “in any manner.” Whether “tagging” constitutes “communication” is an interesting issue that the Court of Criminal Appeals may wish to review (especially since the defendant also challenged the constitutionality of the statute as applied to him), but the reasoning of the court of appeals is sound and should hold up. Because of the broad definition of “electronic communication” in §42.07 of the Penal Code (harassment), the reasoning of this decision might also be applied to a harassment prosecution.