CASE LAW UPDATE
What’s new
and exciting?
TH
4
AMENDMENT
Unreasonable
searches and
seizures
RODRIGUEZ V. U.S., 575 U.S. ___ (2015).
• Issue: After a traffic
stop and without
reasonable suspicion or
a warrant, may an officer
conduct a dog sniff?
• Holding: No. (6-3) The
purpose of the stop
determines the duration
of the detention.
GRADY V. NORTH CAROLINA, 575 U.S.
___, (2015).
 Issue: Does the
warrantless tracking of a
sex offender through GPS
constitute a search?
 Holding? Yes (per
curiam).
 Didn’t follow rule in US. v
Jones
 “Physical occupation on
private property for the
purpose of obtaining
information.”
RILEY V. CALIFORNIA, 573 U.S.___
(2014); (U.S. V. WURIE)
Issue: May an officer
search a cell phone
without a warrant under
SITA?
Holding: No. Searching a
cell phone does not
support the purpose of
SITA: protect officers
and/or protect evidence.
STATE V. GRANVILLE, 423 S.W.3D 399
(TEX. CRIM. APP. 2014).
Issue: May an
officer view the
contents of phone
without a warrant if
the phone is in
property in the jail?
Holding: No. Pants
can never be a cell
phone!
DWI
EX PARTE BENSON, NO. WR-81,764-01
(TEX. CRIM. APP. 2015)
 I s s u e : A r e i n tox i c a t io n m a n s l a ug h te r a n d f e l o ny D W I c o n s i d e r e d to b e t h e s a m e
crime under double jeopardy?
 Holding: No.
 Two Part Test
 Elements Test under Blockburger: “Do each of these offenses require proof of a
fact that the other does not?”
 Did the legislature intend for the offenses to be treated as the same?
 “Even if an analysis of the Ervin factors were inconclusive, applicant’s double -jeopardy
claim would fail, because the presumption established by the offenses having
different elements under the Blockburger analysis would remain unrebutted. When the
Blockburger same-elements test 136 indicates that the offenses are different, the
evidence that the legislature intended only one punishment must be clear in order to
rebut that presumption. Whatever else one might say, one 137 cannot say that the
legislature clearly intended only one punishment for the offenses of felony DWI and
intoxication assault.”
MURRAY V. STATE, PD-1230-14 (TEX.
APP.- AMARILLO [7 TH DIST.] 2015).
 Issue: Was there sufficient evidence to find that a
defendant who was passed out in the driver’s seat of a
running vehicle had operated the vehicle?
 Holding: Yes.
 Sufficiency of evidence standard
 Court must assume factual disputes were resolved in
favor of the verdict
RODRIGUEZ V. STATE, NO. 01-12-00970CR (TEX. APP.-- HOUSTON [1ST DIST.]
2015).
 Issue: Does one have a
reasonable expectation
of privacy in blood drawn
for medical purposes?
 Holding: No. The blood
test was initiated by
medical personnel and
not law enforcement. D
failed to prove that
society would find it
reasonable.
STATE V. MUNOZ, 08-13-00164-CR, (TEX.
APP.- EL PASO [8 TH DIST.] 2015).
 Issue: Can the State rely on
Transportation Code
§724.012(b)(3)(B) for a
warrantless blood draw?
 Holding: No. Under
McNeely, there is no
exigency for the dissipation
of alcohol from blood.
(retroactively applied  no
good faith reliance
exception).
OTHER NOTABLE CASES
IMMIGRATION
 Mellouli v. Lynch, 525 U.S. ____ (2015). (7 -2)
 Issue: To trigger deportability under the Immigration
and Nationality Act, must the government prove the
connection between a drug paraphernalia conviction and
a substance listed in the Controlled Substances Act ?
 Holding: Yes. He was not deportable because his
conviction was for a drug not specifically listed in the
CSA
 Dissent: argues that “relates” means any connection
OUTCRY STATEMENTS
 Ohio v. Clark, 576 U.S. ____ (2015). (9 -0)
 Issue:
 (1)Does a requirement that a person report child abuse render the
person “law enforcement” for confrontation purposes?
 (2)Are statements to a teacher by a student considered testimonial?
 Holding:
 (1) No. “And mandatory reporting statutes alone cannot convert a
conversation between a concerned teacher and her student into a law
enforcement mission aimed primarily at gathering evidence for a
prosecution.”
 (2) No. The purpose of the conversation was to protect the child and
not gather testimony.
LETHAL INJECTION
 Glossip v. Gross, 576 U.S. ___ (2015) (5 -4)
 Issue: Does Oklahoma’s use of midazolam as the initial drug in the
execution protocol, the same initial drug used in Clayton Lockett's
execution, violate the Eighth Amendment’s prohibition against cruel
and unusual punishment?
 Holding: No.
 Insufficient evidence that it causes pain; 8 th does not guarantee no pain at all
 “Finally, we find it appropriate to respond to the principal dissent’s groundless
suggestion that our decision is tantamount to allowing prisoners to be “drawn
and quartered, slowly tortured to death, or actually burned at the stake.” That is
simply not true, and the principal dissent’s resort to this outlandish rhetoric
reveals the weakness of its legal arguments.”
 “The response is also familiar: A vocal minority of the Court, waving over their
heads a ream of the most recent abolitionist studies (a superabundant genre) as
though they have discovered the lost folios of Shakespeare, insist that now, at
long last, the death penalty must be abolished for good. Mind you, not once in the
history of the American Republic has this Court ever suggested the death penalty
is categorically impermissible. The reason is obvious: It is impossible to hold
unconstitutional that which the Constitution explicitly contemplates .” –Scalia,
concurring
RESTITUTION
Hanna v. State, 426 S.W.3d 87 (Tex. Crim.
App. 2014).
Issue: In order to be eligible for restitution,
must a victim be specifically named in the
charging instrument?
Holding: No. If damage is caused, even in
“victimless” crimes, then restitution may be
ordered.
CONDUCT ORIENTED VS. RESULT
ORIENTED
 Price v. State, PD-0383-14 (Tex. Crim. App. 2015).
 Issue: In an assault family violence (strangulation) case,
must the jury instruction attach a culpable mental state to the
manner and means of strangulation?
 Holding: No. FV asauslt is a result oriented crime because
the “gravamen” focuses on the result, bodily injury, and not
the cause, manner and means.
AUTHENTICATION
 Butler v. State, No. PD-0456-14 (Tex. Crim. App. 2015).
 Issue: Is a witness’s testimony enough to authenticate text
messages?
 Holding: Yes, if the testimony can “bridge the gap” between
ownership of the phone and the person actually sending the texts
 “Although Salas’s responses are not without ambiguity, a 9 rational jury
could conclude that Salas recognized the texts to be coming from
Appellant on this occasion (and not someone else who might have
purloined his phone) because: (1) he had called her from that number on
past occasions; (2) the content and context of the text messages
convinced her that the messages were from him; and (3) he actually
called her from that same phone number during the course of that very
text message exchange.”
 “R.EVID. 901. It requires merely “sufficient” evidence “to support”
authentication. It does not ordinarily require the trial court to make a
threshold determination of the credibility of the evidence proffered by
the proponent to establish authenticity.”
ELECTION; UNANIMOUS VERDICT
 Ansari v. State, No. 04-14-00728-CR (Tex. App.- San
Antonio [4 th dist.] 2015).
 Issue: Did the trial court err in failing to give an
incident-unanimity instruction?
 Holding: Yes. “The unanimity requirement ensures
the jury agrees on the factual element underlying the
charged offense, not that it merely agrees that a
statute was violated.”
 Solution: Elect or charge one
UNANIMOUS VERDICT: CONTINUOUS
SEXUAL ASSAULT
 Holton v. State, No. 08-13-00220-CR (El Paso 8coa 2015).
 Issue: Is Penal Code §21 .02 (Continuous Sexual Abuse a
Young Child) unconstitutional because it does not require jury
unanimity regarding which acts of sexual abuse were
committed?
 Holding: No. “[A] defendant’s constitutional right to a
unanimous jury verdict is fulfilled by requiring the jury to
agree on the key element of the of fense, i.e., that the
defendant committed a “series” of acts within a certain period
of time, and that jury unanimity is not required regarding
which of the particular acts of sexual abuse the defendant
committed.”
EXTRANEOUS CONDUCT
 Belcher v. State, No. 1 2-14-00115-CR (Tyler, 1 2coa 2015).
 Issue: Is CCP Ar t. 38.37, allowing evidence of extraneous of fense or
acts against children, constitutional?
 Holding: Yes. 38.37 is constitutional so long as a 403 balancing test
is conducted prior to admission of extraneous conduct and the state
gives the defense 30 days notice.
 “The extraneous of fense evidence was highly prejudicial, principally
because it was especially probative of Appellant’s propensity to
sexually assault children. The trial cour t did not abuse its discretion in
determining that the probative value of the extraneous of fense
evidence was not substantially outweighed by the danger of unfair
prejudice.”
 Note: State failed to give 30 days notice as the statute requires but D
failed to object…snooze you lose!
PROSECUTORIAL MISCONDUCT
 United States v. Bowen , No. 1331078 (5 th Cir. 2015).
 Issue: Did the trial cour t err in
granting a new trial?
 Holding: No. conduct was egregious
 “Finally, the inevitable impression
lef t by the governme nt’s misconduct
and ongoing pettifogg er y is of a
prosec ution determined to convict
these defenda nts by any means.”
 Rule: social media is the devil!
Don’t be tempted.
TEXAS LEGISLATIVE
UPDATE
HB 207
 VOYEURISM. (a) A per son
commits an of fense if, with
the intent to arouse or gratify
the sexual desire of the actor
or to degrade or abuse any
person, the actor obser ves
another per son without the
other per son's consent while
the other per son is in a
dwelling, structure, or
conveyance in which the other
person has a reasonable
expectation of privacy.
 Punishment
 Class C
 Class B if two or more priors
 SJ if victim is 14yrs or younger
SB 1135 (REVENGE PORN)
 Creates criminal and
civil penalties
 Sec. 21.16. Pen. Code
UNLAWFUL
DISCLOSURE OR
PROMOTION OF
INTIMATE VISUAL
MATERIAL.
 Sec. 98B.002.CPRC
LIABILIT Y FOR
PROMOTION OF
CERTAIN INTIMATE
VISUAL MATERIAL.
HB 3724
 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1 .
Ar ticle 11 .073(d), Code of Criminal Procedure,
is amended to read as follows:
(d) In making a finding as to whether relevant scientific
evidence was not ascer tainable through the exercise of
reasonable diligence on or before a specific date, the cour t shall
consider whether the field of scientific knowledge, a testifying
exper t's scientific knowledge, or a scientific method on which the
relevant scientific evidence is based has changed since:
(1) the applicable trial date or dates, for a
determination made with respect to an original
application ; or
(2) the date on which the original application or a
previously considered application, as applicable, was
filed, for a determination made with respect to a
subsequent application.
 Provides an avenue for a convicted per son to have the case reexamined
when the exper t that testified at the trial changes his opinion.
SB 817
Adds “applicant’’ to
definition of dating
violence
Requires court to
consider when
deciding custody
 prior family violence,
 history/pattern of
child abuse, and
 If a protective order
was ordered
HB 910, SB 11
“I hope you stay tuned as
the Texas State marching
band does its salute to
gun racks and open
beverage containers;
which is only legal in
Texas.”
Open carry, begins
January 1, 2016
College carry
MARIJUANA
 HB2165: failed bill
that would have made
Texas = Colorado
 HB 339: legalized low
TCH level with
prescription for
epilepsy
 SB 173: bans sale,
manufacture,
possession, and use
of all synthetic
marijuana
HB 2398
 Decriminalizes
truancy for kids
 Punishes parents by
fine only,
 in an amount not to
exceed:
 $100 for a first offense;
 $200 for a second
offense;
 $300 for a third offense;
 $400 for a fourth offense;
 $500 for a fifth or
subsequent offense.