EVIDENCE ADMISSIBILITY – BREACH OF COMPUTER SECURITY: Evidence found on defendant’s phone by defendant’s wife was inadmissible.
State v. Holloway, ___ S.W.3d ___, No. 03-23-00423-CR (Tex. App.—Austin July 26, 2024, no pet.) (designated for publication).
Holloway was charged with aggravated sexual assault. Evidence of an extraneous offense was found on Holloway’s phone by his wife. She found the evidence by accessing Holloway’s phone without his consent, by using his thumb while he slept to unlock the phone. Holloway filed a motion to suppress all evidence and testimony that resulted from his wife, with whom he was now estranged, accessing his phone. He argued that she obtained the evidence in violation of state law and that it was therefore inadmissible.
At the hearing on the motion to suppress, Wife testified that “she had a right to the phone because they were married and because she paid the bill and bought the phone he was using.” The trial court granted the motion to suppress, and the State appealed. The appellate court affirmed.
The court observed that under Article 38.23 of the Code of Criminal Procedure, “[n]o evidence obtained by an officer or other person in violation” of the law “shall be admitted in evidence against the accused on the trial of any criminal case” and that, “[u]nlike the Fourth Amendment, which does not extend to private citizens acting in a private capacity, Article 38.23’s ‘other person’ provision allows for suppression of evidence obtained by private individuals in violation of state or federal constitutions or laws.” A person commits the offense of breach of computer security if the person knowingly accesses a computer, computer network, or computer system without the effective consent of the owner. Holloway argued, and the trial court found, that Wife had violated this law when she accessed Holloway’s phone without his permission.
The appellate court agreed. The court explained that “an ‘owner’ includes someone with ‘a greater right to possession of the property than the actor’” and that “the breach of computer security statute on its face does not create an exception for a spouse, community property, or a co-owner with a lesser possessory right to access a computer without the owner’s consent.”
The trial court found that Holloway “had the greater possessory right to the phone than Wife did,” and the appellate court concluded that this finding was supported by the record.
The court also rejected the State’s contention that Wife did not commit the offense because she did not knowingly access the phone without Holloway’s consent. The court explained that there was conflicting evidence on this element, and the court deferred to the trial court’s resolution of the conflicting evidence in Holloway’s favor.
JURY SELECTION – RACIAL COMPOSITION: Defendant failed to prove that Travis County jury-selection process systematically excludes people who self-identify as Black and Hispanic.
Sedillo v. State, No. 03-23-00811-CR (Tex. App.—Austin Aug. 30, 2024, no pet.) (mem. op., not designated for publication).
Sedillo was charged with DWI. Prior to trial, he filed a motion to quash the jury array, arguing that “Black and Hispanic or Latino jurors ha[d] been systematically excluded” from the array, thereby depriving him of his Sixth Amendment right to an impartial jury.
Following a hearing, the trial court denied the motion based on the limited evidence Sedillo presented. The appellate court agreed that Sedillo had failed to prove his case. The court observed that “although the Constitution does not require proportionate representation of races on jury panels . . . [t]he Sixth Amendment requires that the jury panel from which the petit jury is selected represent a fair cross-section of the community.” After summarizing the three-pronged test “by which a defendant may establish a prima facie violation of the fair-cross-section requirement,” the court explained that the evidence presented by Sedillo, which consisted of the research and personal experiences of a Travis County defense attorney, “was insufficient to ascertain the proportions of Travis County residents who self-identify as Black or Hispanic or those groups’ representation in Travis County venires and, consequently, could not provide a basis for the court to find a prima facie fair-cross-section violation.”
The court concluded, “In light of the relatively small sample size encompassed by his experience, his reliance on census figures for the community’s racial demographics, the lack of scientific rigor in his classification scheme, and the possibility of error from relying on surnames, we cannot say that his testimony establishes that people who self-identify as Black or Hispanic are underrepresented on Travis County venires.”