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As most defense attorneys in Texas know, the State’s Online Solicitation of Minor statute, Texas Penal Code Section 33.021, has run into trouble.  The Court of Criminal Appeals ruled part “b” of the statute unconstitutional in 2013 in the unanimous decision styled Ex parte Lo. The Court reasoned that the statute was overbroad and unconstitutionally vague, and that the speech it criminalized included too many types of speech protected the First Amendment of the Constitution.

Attacks of other parts of Section 33.021 have followed, most centering on either the problematic definition of “minor” (according to the statutory definition, a “minor” can be someone who represents themselves as younger than 17, regardless of whether the defendant actually believed this person to be the represented age) and on part d of the statute, which, strangely, prohibits a “fantasy” defense (so that a defendant could engage in sexual exchanges online that the person fully intended as merely age role-play, for example, with another person whom the defendant did not believe to be younger than 17, and still be guilty of a felony).

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On February 4, the Ninth Court of Appeals in Texas provided a way for prosecutors to indict synthetic marijuana cases.  In State v. Moseley, the 258th District Court in Polk County granted the Defendant’s motion to quash the indictment. The indictment in question did not identify any of the specific substances listed in Section 481.1031 (that would be “Penalty Group 2A”) of the Texas Health and Safety Code, but just referred generically to “a synthetic chemical compound that is a cannabinoid receptor agonist and mimics the pharmacological effect of naturally occurring cannabinoids.” At the suppression hearing, the defense successfully argued that this generic reference was insufficient to inform a defendant that he had committed any particular offense.

The cornerstone of the defense’s argument is that Penalty Group 2A provides an exclusive list of prohibited synthetic substances. So if the State indicts a person for possessing a controlled substance under Penalty Group 2A but fails to specify one of the particular substances listed in that group, then the State has effectively failed to allege an actual offense.

In its appeal, the State argued that it did not have to specify a particular substance, but could just rely on the “general requirements” set out in the preamble of Penalty Group 2A.

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As the Chris Kyle murder trial continues this week in Stephenville, Texas, it seems appropriate to open this criminal appellate blog with a brief discussion of the Texas affirmative defense of Insanity. The prosecution has already played the videotape judicial confession of Iraqi War vet Eddie Ray Routh, and it is now up to both sides’ medical experts to present evidence as to whether Mr. Routh was insane at the time he shot and killed the famous Navy SEAL Chris Kyle and his friend Chad Littlefield.

In Texas, a criminal defendant may attempt to affirmatively prove that, at the time he committed the charged conduct, he did not know that the conduct was wrong because of a “severe mental disease or defect.” The Texas Legislature has refused to define either of these terms because it’s ultimately a juror’s job, not a doctor’s, to give these terms their “common usage” meaning and to determine if the defendant is legally insane.

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