Articles Posted in Criminal Appeals

Mark Bennett runs my favorite Texas defense lawyer blogs, Defending People. Mark has been arguing that part of the Texas law regarding Online Solicitation of a Minor is unconstitutional since 2008. Today, the Court of Criminal Appeals agreed and ruled 9-0 that part of the statue, 33.021(b)(1) is a violation of the First Amendment. Congrats to Mark. Let’s look at the opinion.

Online Solicitation of a Minor- What’s the law? 

The statute is a mess to read, so I’ll summarize. Basically, a person who is 17 years of age or older commits an offense if, with the intent to arouse or gratify the sexual desire of any person, the person, over the Internet or by electronic mail or a commercial online service  communicates in a sexually explicit manner with a minor; or distributes sexually explicit material to a minor, or knowingly solicits a minor to meet with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse.

Corey Freeman had a bench trial and was convicted of online solicitation of a minor. Corey challenged the law as being unconstitutional for two reasons. One, was that he claimed the law was a strict liability offense in that there was no requirement that he actually believe he was talking to a 13 year old, and second that the statute infringed on his first amendment. The Dallas Court of Appeals disagreed, which is not surprising, almost every conviction and statute is upheld on appeal. This is Texas after all. On a side note, it’s the exact opposite situation for civil appeals, where judgments for plaintiffs are routinely thrown out to better serve our corporate overlords. But that’s a story for another day. Let’s take a closer look at Freeman vs. State.

Facts- Freeman was in a chat with a person identified by the screen name of “brook_chick13.” BrookChick13 stated in communications to Freeman that she was a thirteen-year-old girl. I’ll quote from the opinion here.

Their conversations, over the span of several months, gradually escalated in sexual explicitness. During the correspondence, appellant mentioned wanting to take the girl’s clothes off, kissing her, pulling off her pants and licking her, and “sliding into” her–all the while being reminded by her that she was only thirteen years old. In actuality, appellant was communicating with a male police officer.

Texas has over 600 news laws going into effect this month. One law aims to reverse our State’s wrongful conviction epidemic by allows writs to be filed challenging convictions based on junk science.

From the article-

“I’m going to predict right now that at least several hundred people over the next few years will come out of prison because of this law,” Innocence Project founder Jeff Blackburn said.

Our State’s highest criminal court recently reversed a marijuana conviction out of Kaufman County Court at Law 2, just in time for 4/20. Whenever I discuss marijuana prohibition I always mention how much court time, prosecutor time, appointed lawyer time, police time and tax dollars we waste we waste prosecuting cannabis cases like this one.

It can take years for a case to move form arrest to appeal, and the whole time you are footing the bill so that the criminal justice system can have something to do (besides prosecute real crime that is). Marijuana prohibition is like an evil version of the WPA. Which reminds me, our lege is in session, so why not call your rep and ask them to support bills like this?

Enough editorializing, on to the case, our case of the day is Abney vs State.

The Supreme Court heard arguments in McNeely vs Missouri this week. The issue was whether the 4th Amendment’s requirement for a warrant actually applies to DWI blood draws. The defendant in Mcneely refused to give a breath specimen, so the police just held him down and took his blood, which was allowed by statute in Missouri.

This should be a straight forward issue; the State shouldn’t be able to simply over turn the bill of rights by statute.. Blood draws are a search, a very intrusive search at that, and we require warrants for searches. Of course, DWI and drug prosecutions are the tip of the spear when it comes to destroying the bill of rights. We’ve lost more freedom to save dope convictions and DWI cases than we’ll ever get back.

The Government in McNeely argued that every DWI is an emergency, so they shouldn’t have to get a warrant. That’s a pretty broad definition of emergency and it really makes the government look lazy. I’m sure it would be easier to just ignore the 4th Amendment and let the conviction machine run unabated. But that’s the point, we require warrants because we can not trust the government to do the right thing. We want to limit the power of government to act without oversight.

You know, I can be pretty hard of appellate decisions I don’t agree with. One of my main sources of blog inspiration is outrage at the loss of civil liberties through appellate decisions. It’s only fair that I point out when our State’s highest criminal court does something right, and today is that day.

Today’s case of the day is Leonard vs. State, the Sequel!

What happened?

Today the Dallas Court of Appeals reversed a sexual assault of a child conviction. The case is Wiseman vs. State. This case highlights the limits of expert testimony on the issue of honesty. Basically, an expert can’t offer an opinion that certain groups of people lie, or certain groups tell the truth.

The expert testified that only 2% of children make up sexual assault allegations, and that most of those false allegations are from child custody cases. Fortunately, even in convict-at-all-Texas we don’t allow trial by statistics.

What’s the law on sexual assault experts? From the opinion-

What happens when an inmate sues the sheriff for open records information?

Today’s case of the day is In Re Brian Edwards Johnson-

In 2008 Brian Edwards Johnson was incarcerated in the Kaufman County jail and sustained an injury. Not sure why he was in jail, or what the injury was. In 2011, Johnson was still an inmate (not sure where) and he filed an open records request to obtain records regarding the 2008 injury. The Sheriff denied the request and asked the AG to rule on the issue. The AG agreed with the Sheriff. Johnson filed suit and appealed to the 5th District in Dallas.

A Kaufman County conviction for Failure to Register as a Sex Offender was reversed last week for factual insufficiency. Basically, it appears the State indicted the defendant under the wrong section of the code of criminal procedure. Factual insufficiency reversals are pretty rare, so let’s walk through how the court reached it’s decision.

Today’s case of the day is- Roberts vs. State.

What happened?

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