Articles Posted in Texas Court of Criminal Appeals

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The state’s highest criminal court recently held a portion of  the Texas “Improper Photography” statute unconstitutional.  The Court struck down the section of that law that prohibited visually recording or taking a photograph of another without the subject’s consent, and with the intent to arouse or gratify the sexual desire of any person.

On September 17, 2014 the Texas Court of Criminal Appeals announced its decision in the case of Ex Parte Ronald Thompson.  In Thompson,  The Court held by an 8-1 majority that the taking of photographs and visual recordings of another without their consent is expressive conduct implicating the First Amendment guarantee of free speech, and therefore beyond the authority of the Government to regulate.  This opinion specifically invalidates section 21.15(b)(1) of the Texas Penal Code.  The First Amendment protections serve to invalidate the law even though, the Court said, the act of taking a photograph or visually recording another without consent was only criminalized under 21.15(b)(1) where the actor’s intent in making the recording or taking the photograph was done so with the intent to arouse or gratify the sexual desire of any person.   As stated by the Court in this case:

  banning otherwise protected expression on the basis that it produces

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When a police officer arrests a person in Collin County, Texas for Driving While Intoxicated, the officer may seek a search warrant from a judge if the person refuses to provide a sample voluntarily. 
 
When the officer applies to the Judge for the search warrant authorizing him or her to draw a person’s blood, the officer must prepare an affidavit of the facts that the officer believes will show that probable cause exists that evidence of a crime (Driving While Intoxicated) will be found in the body of the person under arrest.  That evidence usually takes the form of a quantity of alcohol in the blood of the person.  Because the act of securing a search warrant to take suspected evidence from a location in which the suspect has an expectation of privacy is a serious and solemn matter, the law imposes a requirement that the police officer seeking the warrant present a “sworn affidavit” to the judge in support of the search warrant.  Texas Code of Criminal Procedure 18.01(b) The requirement of preparing an affidavit and swearing to the truth of it’s contents impress upon the officer the serious nature of the matter at hand.

The issue of whether section 18.01(b) requires a police officer to personally appear before the judge to swear out and oath, or whether the officer may simply swear to the truth of his or her affidavit over the phone, is an issue that has been debated by lawyers and judges quite a bit over the last few years.  Until recently, the Texas Court of Criminal Appeals has never weighed in to settle the question.  Finally, in January of 2013, the Court decided the case of Clay v. State of Texas

In Clay the Court succinctly ruled that section 18.01(b) does not necessarily require an officer to be in the personal presence of the judge from whom they seek the search warrant.  Swearing over the phone may be ok so long as “sufficient care is taken in the individual case to preserve the same

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Who is Erdman, and why should you care?  Erdman is a case decided by the Texas Court of Criminal Appeals nearly two decades ago and has been the law of the land in Texas for that period of time. 

The Erdman case established that police officers who have arrested a Driving While Intoxicated suspect may not provide so called ” extra statutory” information concerning the consequences of  refusal to submit to a breath test.  In plain terms,  The Erdman court explained that police are required by law to inform suspects about the legal consequences of refusal – nothing more and nothing less.