Court of Criminal Appeals
Ex Parte Stafford
No. PD-0310-23 9/4/24
Issue:
Is §255.004(b) of the Texas Election Code (“True Source of Communication”) constitutional?
Holding:
No. The Court found that §255.004(b) is a content-based restriction on protected speech and is subject to a strict-scrutiny review. “The True Source statute encompasses communications that are not arguably false or misleading and it is not narrowly tailored to achieve the interests advanced by the State because there is no requirement of materiality. It criminalizes anonymous, un-signed, and factually accurate political communications. There is no exception for social media reposts. The statute also lends itself to prosecuting anonymous communications and even imitation, impersonation, sarcasm, parody, surrogacy, or pen names because it is subject to an individual’s perception of the communication. But the State would still have the prosecutorial discretion under the True Source statute to indict under these facts.” The Court concluded that the statute violated the First Amendment. Read opinion.
Concurrence (Keller, P.J. joined by Richardson, Newell, and Slaughter, JJ.):
“A narrowing construction of the ‘true source’ statute that interprets it to mean something significantly narrower than the public would perceive from reading the language cannot entirely eliminate the chilling effect of the language itself. Because the legitimate use of pen names and parody could often be punished under the statutory language, we must invalidate it to avoid a chilling effect on free expression.” Read concurrence.
Dissent (Yeary, J.):
“[T]he Court’s opinion seems to construe the statute in such a way as to ensure its unconstitutionality, concluding that it reaches conduct that it plainly does not, or which it could readily at least be read not to reach, and then finding the scope of the statute, as thus construed, to be too unfettered to satisfy strict scrutiny” (internal citations omitted). Read dissent.
Commentary:
As the Court acknowledges, the government has a compelling interest in safeguarding the integrity of the election process by protecting voters from confusion, fraud, and undue influence stemming from false or misleading political communications. However, because of the significance of political speech (the nature of which was a primary driver for the creation of the First Amendment) and the commensurately high protections afforded to it, the reality is that it is very difficult for the legislature to craft laws that curtail political speech that will not impinge the First Amendment. Given the government’s interest in this realm and the fraught nature of our elections nowadays, perhaps the legislature will attempt to edit this statute in its next session to try to make it more narrowly tailored to meet the State’s legitimate goals.
Cruz v. State
No. PD-0628-23 9/4/24
Issue:
Was it fundamental error when the trial court failed to conduct an ability-to-pay inquiry (Code of Crim. Proc. Art. 42.15(a-1)) after the jury assessed a fine, even though the defendant did not object to the lack of an inquiry?
Holding:
No. The Court turned to Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993), which divides error-preservation rules into three categories. The Court concluded that the ability-to-pay inquiry falls into the third Marin category—rights that are implemented upon request or else forfeited. The Court concluded that “because the inquiry is not fundamental to the functioning of our adjudicatory system, [the defendant] forfeited his complaint when he failed to object in the trial court.” Read opinion.
Concurrence (Newell, J. joined by Richardson and Walker, JJ.):
“The law changed to require an inquiry on the record while the case was on appeal, so [the defendant] lodged his complaint at the first opportunity he had to take advantage of the new law. While preservation of error is ordinarily a systemic requirement, we cannot not fault defense counsel for a failure to predict the future, and we should not fault [the defendant] for failing to object when the law offered him no basis to do so. A bar card does not come with a crystal ball attached.” Read concurrence.
Concurrence (Keller P.J. joined by Yeary, J.):
“Judge Newell’s concurring opinion says that a bar card does not come with a crystal ball, but defense counsel did not actually need a crystal ball to know about the ‘on the record’ requirement. By the time Appellant was sentenced, the bill had been passed and signed; it simply hadn’t gone into effect yet.” Read concurrence.
Commentary:
This is a nice win for the State because, first, it resolves this particular debate and firmly classifies the ability-to-pay inquiry as a Marin-category-three, forfeitable right. This means that, although the trial court is supposed to conduct an ability-to-pay inquiry prior to imposing fines, fees, and costs, if the court neglects to do so and the defendant does not timely object, the defendant may not raise that error for the first time on appeal. Second, this opinion will likely be useful as a guide or framework through which other legislatively created rights might be categorized in the future, since, as the Court observes, most rights—even many constitutional rights—belong in Marin category three.
Texas Courts of Appeals
Taylor v. State
No. 07-23-00402-CR 9/3/24
Issue:
Did the trial court err in failing to grant the defendant’s motion to suppress when the officer did not follow the agency’s inventory policy?
Holding:
Yes. After receiving information from the defendant’s ex-girlfriend that he was watching her residence, police responded and found the defendant illegally parked in a location where he could spy on his ex-girlfriend. The defendant was arrested on outstanding warrants and his vehicle was impounded. Before the vehicle was towed, an officer began performing an inventory and found a handgun in the center console. The Court found that the officer’s inventory did not follow agency policy. “Simply put, once the firearm was discovered in the console, the remaining search of the vehicle became pro forma and cursory. Yet, discovering contraband does not relieve the officer of the obligation to complete an inventory search in compliance with departmental policy. …Because the inventory search at bar substantively deviated from adopted departmental policy, the trial court abused its discretion in denying [the defendant]’s motion to suppress evidence garnered from the search.” Read opinion.
Dissent (Yarbrough, J.):
“While the majority asserts that the search was merely cursory, this does not align with the standard for evaluating the validity of inventory searches. The standard does not demand an exhaustive search but rather requires adherence to a standardized procedure. The trial court had before it evidence that supported the officer’s compliance with the policy, and it was within the trial court’s discretion to accept this evidence as sufficient.” Read dissent.
Commentary:
To demonstrate that an officer has conducted a lawful inventory search, the State must show that: (1) an inventory policy existed (note that the policy need not be written) which articulated standardized criteria or established a routine for conducting an inventory; and (2) that the officer followed that policy when conducting the inventory search in question. The majority’s primary issue with the inventory conducted here is that, once the officer discovered the defendant’s firearm in the center console, the officer’s continued search of the rest of the vehicle was insufficiently thorough to conform to the officer’s police department inventory policy. In reaching this conclusion, though, the majority applied a hyper-technical view of the inventory policy and substituted its own opinion for that of the trial judge (which was supported by the evidence) as to whether the officer’s conduct adequately conformed to the policy. I hope the State will pursue discretionary review of the majority opinion by the Court of Criminal Appeals, which may be interested in an opportunity to weigh in on how exhaustive an inventory should be to pass muster.
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