March 8, 2019

United States Court of Appeals for the Fifth Circuit

U.S. v. Richmond

No. 17-40299                    2/8/19

Issue:

Has an officer conducted a search subject to the Fourth Amendment by knocking on the tires during a traffic stop?

Holding:

Yes. Under United States v. Jones, 556 U.S. 400, a search occurs when there is a physical trespass combined with an attempt to find something or obtain information. A search that amounts to a trespass is subject to Fourth Amendment protections even if it does not affect any privacy interests. Although the touching might be slight, tapping a tire to determine if something is hidden within constitutes a search. Here, the search was not unreasonable because the officer’s observations (wobbly tires, stripped bolts, and the truck veering outside its lane) gave probable cause to believe that the tire posed a safety risk. Read opinion.

Commentary:

This opinion shows the value of good police work. The trooper’s testimony about safety justified his limited search of the tire. The opinion is a short read and well worth your while. As Jones continues to percolate through the justice system, we will see more opinions applying the property theory of search to what had been settled applications of law.

Texas Courts of Appeals

Martin v. State

No. 11-17-00040-CR        2/28/19

Issue:

Is a defendant’s tattoo, appearing to depict a particular murder, relevant evidence?

Holding:

Yes. Evidence is relevant if it has any tendency to make a fact more or less probable. The defendant’s tattoo, which depicted many details consistent with the circumstances surrounding a shooting, was relevant to prove involvement in the murder and was probative of the defendant’s motive and intent. The tattoo was not unfairly prejudicial because it directly addressed the offense and did not suggest an improper basis for conviction. Read opinion.

Commentary:

It is hard to imagine evidence that is more relevant than a confession worn on the body of the defendant. Also interesting was the defendant’s claim that the tattoo was protected speech because of his beliefs regarding the “no snitch” culture.

Lozano v. State

No. 14-17-00026-CR        2/28/19

Issue:

May a defendant be convicted of two counts of discharging a firearm at a vehicle when two people were located near a single vehicle?

Holding:

No. In a double jeopardy claim based on multiple punishments, the appropriate number of convictions is based on the allowable unit of prosecution. Unlike other assaultive offenses, the allowable unit of prosecution for discharging a firearm toward a vehicle is not each victim. The gravamen of the offense is the discharge of a firearm when the defendant is reckless as to whether the discharge put others at risk. The allowable unit of prosecution is each discharge of the firearm. Here, the defendant discharged a firearm towards a vehicle only once and may be convicted of only one count of the offense. Read opinion.

Commentary:

Families, four-wheelers, firearms, and felons. Just add alcohol, and the result is Grandpa convicted of five felonies. It is a good thing for Grandpa he fired only one shot.

Announcements:

TDCAA Domestic Violence Seminar

Registration is now open for TDCAA’s 2019 Domestic Violence Seminar. Whether you are new to prosecution or a seasoned hand, this course will cover practical skills you need to do your job today. From intake to advocacy, this is Domestic Violence training developed for Texas prosecutors and presented by Texas prosecutors. Join us in Georgetown Texas April 9­–12 for this exciting training opportunity. For more information, please click here.

NCFI Digital Evidence for Prosecutors Training

The National Computer Forensics Institute is offering free training for state and local prosecutors on the investigation of crimes involving technology and presenting digital evidence in court. These five-day courses are held at the NCFI facility in Alabama at no cost to participating prosecutors. The application deadline is March 29. More information and the application areavailable here.

State Bar now taking scholarship applications for upcoming training

The Criminal Justice Section is taking applications for scholarships for various courses. You must be a current member of the Criminal Justice Section to apply. Preference will be given to lawyers licensed 5 years or less. A list of courses and the scholarship application may be accessed here.

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected].