The Texas Court of Criminal Appeals recently decided that a person taking photos at a public swimming pool was not engaged in criminal activity and could not legally be stopped in his car as he drove away from the pool. The court held that there was no reasonable suspicion to believe that he was committing a crime or about to commit a crime. Arguellez v. State, 409 S.W. 657 (Tex.Crim.App. 2013)
Here is the link to the new Texas case saying it was unlawful for the police to search a cell phone in the property room at the jail: http://www.cca.courts.state.tx.us/OPINIONS/HTMLOPINIONINFO.ASP?OPINIONID=25167
You have a right to privacy in the contents of your cell phone, according to the Texas Court of Criminal Appeals in a new holding. In this new case, State v. Granville, the court held that a person has a “subject, reasonable, and legitimate expectation of privacy” his or her cell phone. The case involved the search of a cell phone being held temporarily in a jail property room. The court noted the Fourth Amendment of the US Constitution protects our “papers and effects” and that information now often held in cell phones, laptops, iPads, and in “the cloud.” Although the ruling concerns a cell phone specifically, the court is saying the we have a legitimate expectation of privacy in all of the places, and is implying that protection of the 4th Amendment also extends to all of these places.
This is a big win for all of us and a remarkable holding by the Court of Criminal Appeals. We all have information and data that we think should be private and removed from the prying eyes of the police when they have no warrant to search in these places. If the police do have probable cause, they need to obtain a warrant from a neutral magistrate before searching.
It is now required that, when approaching a stationary emergency vehicle, tow truck, or Texas Department of Transportation vehicle that is not behind a traffic control device–cones, drums or other markers–and has its signal lights on, a driver must either vacate the land nearest the vehicle or slow down to a specified speed. Texas Transportation Code, Sec. 545.157.
It is now illegal to possess Salvia Divinorum. It is listed in Penalty Group 3 of the Texas Health and Safety Code. So, an amount less than 28 grams is a Class A Misdemeanor; an amount over 28 grams is a State Jail Felony; 28-200 grams is a Third Degree Felony; 200-400 grams is a Second Degree Felony; 400 grams or more is 5 to 99 years or life (1st Degree Felony range). Section 481.104, Texas Health and Safety Code.
It is no longer legal to ticket a child 12 years or younger for Disruption of Classes or Disruption of Transportation. Sections 37.124 & 37.126, Education Code. A system of graduated sanctions is required to be developed & imposed against the child. These will include counseling and other community-based services to address the child’s behavioral problems. These may also include the participation of the child’s parents.
It is now unlawful if a person to knowingly sell, purchase and automated sales suppression device or phantom-ware. This is a State Jail Felony, which carries up to 2 years in a State Jail (regional state-run prisons). Chapter 326, Texas Business and Commerce Code.
It is now an offense to have a “license plate flipper” installed on your motor vehicle. What is this? “A manual, electronic, or mechanical device designed or adapted to be installed on a motor vehicle and switch between two or more license plates.” This a Class B Misdemeanor. Section 504.946, Texas Transportation Code.
A switchblade knife is no longer illegal. Technically, it is no longer listed as a “prohibited weapon” in Section 46.06 of the Texas Penal Code.
It is now an offense (“stalking”) if a person, on more than one occasion, engages in conduct that causes another person to be “offended” or “embarrassed.” No, I’m not making this up. It’s in Section 42.072 of the Penal Code. I expect to challenge this if I have a client charged under this provision: I think this obviously protected speech under the 1st Amendment and will certainly make it difficult to have political campaigns in the future.
Licensed Concealed Handgun Holders: it is now an offense to display your gun to another person in public, unless, of course, you are in a jam and need to use your gun for self-defense. Section 46.035, Texas Penal Code.
It is now an offense to install counterfeit airbags in a vehicle. It is a State Jail Felony, or a 1st Degree Felony if it results in the death of a person. Sec. 521.242, Transportation Code.
It is now an criminal offense for a computer technician who discovers child porn on a client’s computer to fail to report the discovery to law enforcement. The new offense is in the Business and Commerce Code, Chapter 109. Section 109.002 says that a computer technician who, in the course and scope of employment or business, views an image on a computer that is or appears to be child pornography to immediately report the discovery of the image to a local or state law enforcement agency or to the Cyber Tipline at the National Center for Missing and Exploited Children. The report must include the name and address of the owner of the computer. It is a defense to the charge that the child in the image appeared to be at least 18 years of age.
The offense is a Class B misdemeanor, which carries a fine of up to $2000 and up to 180 days in jail.
So, be on your toes, techies.
In a new case, Florida v. Jardines, No. 11-564 (U.S. Mar 26, 2013), the US Supreme Court held that police bringing a drug-sniffing dog to the front door of a home, that is, onto the front porch to allow the dog to try to detect an odor associated with marijuana, violated the homeowner’s right of privacy and constituted an illegal search. The area around a house is know as the “curtilage” of a home and enjoys the same protection under the 4th Amendment to the US Constitution as does the home itself. This does not forbid the police to approach a front door and knock to see if someone will answer the door to talk, a “knock and talk,” but differs from that situation in that the police used the dog to gain information to obtain a search warrant, and did so by conducting a search without the consent of the homeowner in an area that is considered private and protected from unreasonable searches without a warrant. If the police had already obtained a warrant without the information they gained by this search, then they would be allowed to legally conduct the search.
Since 1964, the Texas Court of Criminal Appeals has ruled that polygraph test are inadmissable at trial becasue of their inherent unreliability. This does not stop some people from still using them. This time, it was a sex offender therapist who used the tests to determine if his client was being truthful to him. When the client flunked several tests, the therapist kicked him our of the program and a motion to revoke his probation was filed and probation was revoked because the court admitted the testimony that the failure of the polygraphs was the reason for failure to complete treatment. The Texas Court of Criminal Appeals ruled that the polygraph is not admissable even in this specialized situation, either. It appears that some trial courts are slow to catch on to established law regarding polygraph evidence. The Court of Criminal Appeals, not always friendly to defense claims, makes a good showing in this case and shows that they have not forgotten completely about defendant’s rights.
Next up for the Court : look for a ruling that shakling defendants at trial and in court on a regular basis violates basic due process, and violates an earlier US Supreme Court case on this issue
The Court of Appeals in El Paso recently ruled that a person changing lanes must signal before starting to make the lane change. The defendant argued in his appeal that it should be sufficient to start signaling while making the lane change. The court rejected this argument, and in interpreting Texas Transportation Code Sec. 545.104(b), stated that the purpose of the statute is to give other drivers the opportunity to react appropriately to the person making the lane change, and that purpose is defeated if the the driver changing lanes fails to signal before starting the lane change. So, keep this in mind when you are in a hurry on a street with multiple lanes, especially around 2:00 a.m. when the bars close!
Austin Criminal Defense Attorney: What should you be looking for? You have a lot of choices if you are looking to hire a criminal defense attorney in Austin. Many lawyers will make claims implying that they can get your case dismissed. However, they will not directly promise it, but just state in their ads: “Do you want to have your case dismissed?” “See us for best results.”
You should know that it is unethical for an attorney to promise results in a criminal or family law case. Many people who are looking for the best attorney are drawn in by these implied promises of results. All any attorney can promise is that he will use his experience and skills to get you the best results in your case. That says to me that you should be looking for an experienced and respected attorney who will handle your case individually, and not assign it to a junior, inexperienced attorney, unless cost is an issue and you are assured that the younger attorney will be supervised and assisted by the more experienced attorney.
I handle all of my client’s cases myself. In the future, I may have the assistance of a younger attorney, but he will be a highly qualified and supervised attorney. You can’t afford to let an enthusiastic, but inexperienced attorney take your case without supervision. I am a board certified criminal practitioner and have been a criminal lawyer for over 25 years, working as both a prosecutor, and much longer as a criminal defense attorney. I know that not many cases are “dismissed,” but I have had my share of such dismissals and many more reductions in the final charges. So, whoever you chose to hire in Austin as your criminal defense attorney, be sure that he or she will be able to spot the weaknesses in the prosecutors against you, and that he or she can tell you at the initial interview the issues he or she will be looking for and using to your advantage for your defense. Remember this, too, very few cases go to trial and many of the most successful criminal defense attorneys in Austin are known for how effectively they are able to negotiate the best results for their clients. And sometimes that best result is, in fact, a dismissal.