Fort Worth Sexual Assault Defense

If you have been accused of sexual assault in Fort Worth or the surrounding areas, what you do (or don’t do) next can impact the trajectory of your case and, ultimately, your life.

Sexual assault cases are usually built on the word of the alleged victim, often without corroborating evidence, so you will not help yourself by cooperating with police or giving your side of the story. They aren’t interested in fairness or getting to the truth. In fact, giving a statement to the police is the worst thing you can do right now.

Your next contact needs to be with an experienced sexual assault defense attorney who has a proven record of success and the reputation to back it up. Our team has helped numerous people beat a sexual assault charge and we are prepared to help you, too. Do not underestimate the gravity of your situation. A conviction for sexual assault carries life-altering consequences, including possible prison time, steep fines and sex offender registration. You will need the very best defense team in your corner to beat a sexual assault charge.

How to Beat a Sexual Assault Charge

At Varghese Summersett, we have a reputation as one of the best sexual assault defense firms in North Texas – and for good reason. We have exceptional results defending rape cases, including sexual assault, aggravated sexual assault and sex allegations involving children.

So what’s our strategy? We get out in front of the case fast – and leave no stone unturned when looking for weaknesses in the prosecution’s case. In this blog post, we share ways to beat a sexual assault charge. But first, please watch this video by Letty Martinez, a board-certified criminal attorney and former prosecutor who has handled dozens of sexual assault cases during her legal career.

Advantages of Getting Out in Front of the Case

If you have been accused of sexual assault, formally or informally, the first thing you need to do is contact an experienced Fort Worth sexual assault attorney. Do not talk to the police – or anyone else.

• If you heard through the grapevine that your ex-girlfriend is telling people you sexually assaulted her, you need to contact a defense attorney.
• If a detective contacts you and asks you to come down to the station to give “your side of the story,” you need to contact a defense attorney.
• If you are arrested on a sexual assault charge, you need to exercise your right to remain silent and contact a defense attorney.

By contacting an experienced defense attorney before you do anything else, you can level the playing field and put yourself in a much better position to defend against sexual assault allegations. The attorney will act as the buffer between you and the police, so you are not inadvertently incriminating yourself.

The attorney can also start investigating the sexual assault allegations right away and, if necessary, take steps to preserve evidence that may be helpful to your defense. For example, if there are text messages or social media posts that contradict the alleged victim’s story, an attorney can work to obtain them before they are deleted.

An experienced sexual assault defense attorney will also be able to assess the credibility of the alleged victim and begin looking for any possible motives that she or he may have to make false accusations. For example, if the alleged victim is trying to gain an advantage in a child custody case, that is extremely valuable information.

In some instances, the attorney can provide police and prosecutors with information that may prompt them to reconsider filing sexual assault charges. For example, if the alleged victim has a history of making false accusations or there is evidence that she was not actually assaulted (i.e., she had consensual sexual contact with someone else around the same time), that may be enough to get the charges dropped.

If it looks like they are going to proceed with the investigation, the attorney can work on a presentation for the grand jury in an attempt to get the case no-billed, or dismissed, at that stage in the process.

The bottom line is this: if you have been accused of sexual assault, the best thing you can do is contact an experienced criminal defense attorney as soon as possible. The sooner you get an attorney on your side, the better your chances of avoiding charges or getting the charges dismissed.

How to Find Weaknesses in the Prosecution’s Case

In sexual assault cases, detectives and prosecutors tend to believe their alleged victims – even in the face of evidence to the contrary. It’s not uncommon for prosecutors to move forward with a case even when an alleged victim recants. Instead of dismissing the case, they may even double down and bring in an expert to explain to the jury why recantations should not be believed.

As defense attorneys, our job is to look for every weakness in the prosecution’s case – large or small – and use them to our client’s advantage. Some areas that we focus on include the timing of the allegation, insufficient evidence, inconsistent statements and motives for lying.

? Timing

The timing of a sexual assault allegation can be very important when defending a sexual assault case.

1.     When was the outcry made?

Did the alleged victim make the accusation immediately after the sexual assault occurred or weeks, months or even years later? The longer the delay, the more likely it is that there are other motives for making the accusation.

For example, if an individual alleges that she was sexually assaulted by her boss and she waits until she is about to be fired for embezzling company funds to make the accusation, that raises serious questions about her motives.

On the other hand, if an individual reports a sexual assault to the police immediately after it happens, that is much more difficult for the defense to overcome.

2.     Is the outcry consistent with the alleged victim’s conduct over time? 

If an alleged victim reports a sexual assault and then posts photos and videos on social media that are sexually promiscuous or inappropriate, it could be used to show that he or she is unfazed by the alleged sexual assault.

It’s important to look at the individual’s social media posts and conduct over time to see if there is a pattern of sexual promiscuity or making false accusations. If there is, that can be used to impeach the alleged victim’s credibility.

3.     Does the timing of the allegation make it more or less plausible – in other words, what else was going on at the time of the allegation? 

For example, if an individual accuses her ex-boyfriend of sexual assault and she makes the accusation immediately after he breaks up with her, that raises questions about her motives.

? Insufficient Evidence

In sexual assault cases, there is often very little evidence beyond the alleged victim’s word. There may not be any eyewitnesses, video footage or physical evidence. This can make sexual assault cases difficult to prove – and easier to defend.

If there is no concrete evidence linking the defendant to the sexual assault, that creates a major weakness in the prosecution’s case. Our team will capitalize on that weakness to create reasonable doubt.

? Inconsistent Statements

It is not uncommon for sexual assault victims to give inconsistent statements to the police, or even change their story completely. When investigating sexual assault cases, our defense team will spend significant time finding, gathering and analyzing any statement the alleged victim made to determine if there are any inconsistencies, including:

• The first statement – or outcry – the alleged victim made (and to whom)
• Statement to the patrol officer
• Statement to the police detective
• Statement to 911 call taker
• Statement to sexual assault nurse examiner
• Statement to a forensic examiner
• Statement to therapist
• Statements to friends, family, co-workers, teachers
•  Family court statements, including in a divorce or child custody case
• School records, work records, doorbell recordings, etc.

If we find any inconsistencies in the alleged victim’s statements, we will use those as leverage in an attempt to get the case dismissed or, if we go to trial, create reasonable doubt in the minds of the jury.

? Motives for Lying

In sexual assault cases, the alleged victim often has ulterior motives for making a false accusation. If we find a motive or bias for lying, we will use them attack the credibility of the accuser. Some common motives for sexual assault allegations include:

• to get revenge – sexual assault allegations are often made in an attempt to get revenge on the accused for some real or perceived wrong.
• to obtain child custody – sexual assault allegations are often made in child custody cases as a way to try to get an advantage.
• to get attention – some people, particularly young girls and boys, crave attention and will make sexual assault allegations as a way to get attention from their parents or others.
• to cover up infidelity – sexual assault allegations are sometimes made to cover up an affair or other sexual misconduct.
• for financial gain – sexual assault allegations are sometimes made in an attempt to get a large financial settlement from the accused or their insurance company.
• mental health issues – some people who make sexual assault allegations are suffering from mental health issues, such as Borderline Personality Disorder.
• fabricated – some sexual assault allegations are completely fabricated and the alleged victim has no memory of any sexual assault because it never happened.
• To obtain immigration status – sexual assault allegations are sometimes made by people who are not citizens in order to try to obtain legal status in the United States.

As you can see, there are many possible motives for bringing false sexual assault allegations. Our experienced criminal defense team will carefully investigate to try to find any ulterior motives in an effort to beat a sexual assault charge.

An Experienced Attorney Can Help Beat a Sexual Assault Charge

We understand that sexual assault cases are often based on “he said, she said” testimony with little to no physical evidence, so we work tirelessly to poke holes in the victim’s story and cast doubt on the credibility of the prosecution’s case.

If you or a loved one has been accused of sexual assault, please contact our office for a free consultation with an experienced defense attorney. We have handled thousands of sex cases – first as prosecutors and now as highly skilled defense attorneys. We know how the other side thinks, which is why are in the best possible position to beat a sexual assault charge. Call 817-203-2220 now; time is of the essence.

If you have been on social media or following the news lately, you’ve probably heard the term “ghost guns.” Earlier this month, President Joe Biden announced a new rule regulating this type of firearm. But what exactly are ghost guns and are they illegal in Texas?

In this blog post, we are going to explain ghost guns, how they are made, and discuss their legality in the Lone Star State. We will also explore the new federal law and the potential consequences of building a ghost gun in Texas.

What is a ‘ghost gun?’

Ghost guns are homemade firearms that do not have a serial number. Because they do not have a serial number, they are untraceable – which makes them almost impossible to track back to crimes. Hence, the term “ghost guns.” They are also sometimes referred to as “80 percent lower receivers.”

How are people making homemade guns?

Ghost guns are made from unfinished kits that can be purchased online or at a gun store and assembled in about half an hour. Licensed gun manufacturers are required by federal law to engrave or cast a serial number on firearms. However, because ghost guns are made by an individual with a kit – not a federally licensed manufacturer – they are considered “unfinished products” and do not require a serial number. The new law changes this.

What is the new federal rule about ghost guns?

In April 2022, President Biden announced a new rule that modernized the definition of a “firearm.” The rule specified that key components in gun kits now qualify as “firearms” and, therefore, must be sold by licensed firearms dealers and include serial numbers on the gun kit’s frame or receiver, which is the primary piece of the firearm that all parts are attached to. The regulation will also require background checks for anyone purchasing a gun kit. The new rule also requires any federally licensed dealer or gunsmith that comes into contact with a ghost gun to serialize it and keep permanent purchasing records.

The new rules are designed to make it more difficult for people to purchase ghost guns and make them illegal without a background check.

When does the new ghost gun rule take effect?

The new law takes effect in August 2022, but pro-gun activists, advocates, and organizations, such as Gun Owners of America, have vowed to challenge the rule in court.

So, is it illegal to make your own firearm in Texas?

The short answer is no. Under state law, it is not illegal to purchase a gun kit and make your own firearm for personal use in Texas as long as you are not a prohibited person and you comply with all other state and federal laws, including passing a background check. Although some states have laws restricting building your own firearm, Texas is not one of them.

Is it illegal to sell a ghost gun in Texas?

In Texas, it is illegal to manufacture or sell a ghost gun without a license from the ATF.

Facing a gun charge in North Texas? Contact Us.

If you have been charged with a gun crime or any other type of criminal offense in North Texas, contact the law office of Varghese Summersett for free consultation with a knowledgeable and experienced criminal defense attorney. We will fight to protect your rights, freedom, and future. Call us today at 817-203-2220

In Texas, it is not uncommon for judges to issue gag orders in high-profile criminal cases. But what exactly is a gag order and why are they necessary? In this article, we will discuss gag orders in Texas, their purpose, and the consequences of violating one.

What is a gag order?

A gag order is a court order that prohibits the parties in a criminal case from publicly discussing the details with the news media or the public. That means those associated with the case, including attorneys, witnesses, and the defendant, cannot make extrajudicial, out-of-court public statements about the case until the trial is over.

What’s the purpose of a gag order?

The purpose of a gag order is to prevent information about the case from becoming tainted or biased before it reaches the jury. If potential jurors are exposed to statements made by those involved in the case, it could impact their ability to render a fair and impartial verdict. In addition, gag orders help ensure that both the prosecution and defense have a level playing field during trial.

Who can request gag orders in Texas?

Gag orders in Texas can be requested by the prosecution or defense, but judges can also decide to issue one on their own. In most cases, the decision will be made based on how high-profile the case is and whether there is a risk that public statements could influence the jury.

How does a judge determine whether a gag order is appropriate?

To justify a gag order, the court must make specific judicial findings, consider less drastic alternatives, and narrowly tailor the order to address the identified harm. For example, in a recent high profile case in Tarrant County involving a police officer accused of fatally shooting a woman inside her home, the gag order contained the following findings:

“The court finds that out-of-court statements relating to the investigation and pretrial matters of this cause pose a serious and imminent threat to the Defendant’s constitutional right to a fair trial, the ability of the Court to maintain a fair and impartial jury, and to the fair administration of justice. The court further finds that other less restrictive means will not adequately protect the Defendant’s right to a fair trial and the interest in the State and the Defendant in a fair and impartial jury.”

Who does a gag order in Texas prohibit from talking?

The gag order can apply to anyone who is participating in the case, including but not limited to:

• the defendant
• witnesses
• attorneys (the prosecutors and defense attorneys)
• law enforcement
• court personnel
• jurors

Let’s look at the same high-profile case in Tarrant County referenced above. A gag order was issued ahead of the trial of Aaron Dean, a former police officer accused of killing Atatiana Jefferson inside her home. The judge issued a gag order that prohibited “any attorney participating in, or any attorney associated with the trial of this cause, their office associates, assistants, staff members, investigators and employees under their supervision, as well as the defendant and any personnel of the Tarrant County Criminal District Attorney’s Office” from making an extrajudicial statement.

Click here to read the gag order in its entirety.

Does a gag order prohibit parties from speaking to the media at all? 

A gag order shouldn’t be overreaching and prohibit parties from speaking to the media entirely. An attorney or other person subject to the order would not be prohibited from reciting, without comment, the information contained in public records, such as the time or date of a hearing, or the general nature of the proceedings.

What are the consequences of violating gag orders in Texas?

If someone violates a gag order in Texas, they could be held in contempt of court. In Texas, contempt of court is punishable by up to six months in the county jail and a maximum $500 fine.

When is a gag order lifted?

The judge presiding over the high-profile case can lift the gag order at any time. However, once the trial has concluded, the parties will be free to discuss the case.

Questions about gag orders in Texas?

We hope you found this information about gag orders in Texas helpful. Our team has handled numerous high-profile cases over the years, first as prosecutors and now as highly-regarded defense attorneys. If you have questions or comments about gag orders in Texas, feel free to leave a reply below. If you or a loved one has been arrested or accused of a crime in North Texas, call 817-203-2220 for a free consultation with an experienced attorney.

You may have heard about someone getting “doxed” or someone “doxing” a person. But what does that mean, and most importantly, is it illegal in Texas? Doxing, also spelled “doxxing,” is a form of cyberbullying that is surging in popularity across the state and country. In this blog post, we are going to explain what it is, what crimes are related to the practice of doxing, and what to do if you are accused of doxing in Texas.

What is Doxing?

Doxing, short for “dropping dox,” is a term that originates from the abbreviated form of documents or “dox.”  It refers to the act of spreading or posting private information about individuals or organizations to the public, mostly through the Internet. Doxing is committed without the victim’s knowledge or consent, and it is often done to harass or get revenge. The practice of doxing has gained popularity and notoriety over the years, and while the practice of doxing is not explicitly illegal in Texas (yet), there are various crimes that can stem from the act of doxing.

What are some Examples of Doxxing?

While doxing ranges in severity, it basically entails releasing private or personal information to the public in an attempt to harass, extort, or shame. Examples include:

• Releasing personal photos of an individual
• Posting an individual’s phone number or address on the Internet
• Releasing information about an individual’s family, work or other private information
• Encouraging others to use released information to harass an individual

You may remember many years ago when creepy distorted videos of individuals wearing Guy Fawkes masks were being circulated on social media. These individuals are a part of the hactivist group, “Anonymous,” which is a collective group of online hackers who release private information or “dox” individuals or groups for political purposes, such as KKK members and law enforcement members.

More recently, the group reemerged to target the Minneapolis police department’s website in protest for the death of George Floyd. While this is an extreme example of doxing, other forms can be as simple as when news anchor Lou Dobbs tweeted the address and phone number of Jessica Leeds, a 74-year-old woman who told the New York Times Donald Trump groped her three decades ago.

Is Doxing Illegal in Texas?

Because doxing is a relatively new phenomenon that is constantly evolving, there is currently no specific law that makes doxing in Texas illegal. However, various charges can stem from doxing including harassment, cyberbullying, stalking, and swatting.

What Charges Can Stem from Doxing in Texas?

Although there is not a specific charge for doxing in Texas, there are a multitude of charges that can be filed against someone engaged in doxing. Some include:

• Harassment: Harassment is a common charge that results from doxing. In the state of Texas, harassment is described in Penal Code Section 42.07 as an intent to “harass, annoy, alarm, abuse, torment, or embarrass” another person. If the intent of the alleged perpetrator includes any of the above when doxing, they could be charged with harassment.  Harassment is a Class B misdemeanor, punishable by up to 180 days in jail and $2,000 in fines. However it can be elevated to a Class A if the defendant has a previous conviction for harassment.
• Cyberbullying: Cyberbullying takes place when someone is bullied, harassed, or threatened over the Internet or on social media. This crime typically applies to teenagers and young adults. Cyberbullying can stem from doxing if any personal information of the alleged victim is shared without consent in order to harass them or bully them. Although punishments typically are handled by schools, if the harassment is severe enough, criminal charges can be filed under the harassment statute.
• Stalking: Stalking is a crime defined by Section 42.072 of the Texas Penal code. It occurs when a  person on more than one occasion, engages in actions which are directed at one specific person or a person’s family or property, which is done with the intent to cause fear of death or serious bodily injury in the person being threatened. Essentially, the defendant must make repeated actions that cause fear of harm toward a specific person or their family – this can be done in person and online. Stalking in the state of Texas is considered a third-degree felony which is punishable by up to 10 years in prison and a maximum $10,000 fine. People with a previous criminal record could have their charge elevated to a second-degree felony, punishable by 2 to 20 years in prison and a maximum $10,000 fine.
• Swatting: Swatting involves calling 911 and reporting a fake emergency in order for police to respond to a specific address, usually to prank or harass an individual. A person is guilty of swatting under Texas Penal Code Section 42.061 if they call 911 when there is not an emergency. Swatting is classified as a Class B misdemeanor and can involve up to 180 days in jail and $2,000 in fines.
• Targeting a Police Officer: After the tragic killing of five police officers in Dallas in 2016, Texas passed a law making threats and violence towards law enforcement officers hate crimes – in person or online. Under HB 2908, the punishment for threatening a police officer was elevated from a misdemeanor to a state jail felony, punishable by up to two years in jail. Punishments can be increased even more if prosecutors can prove the offender specifically targeted a police officer because of their occupation.

What Federal Charges Could Stem from Doxing?

• Stalking: The federal government also has an anti-stalking law, which is found under 18 USC 2261A. While similar to Texas’ stalking law, the main difference is that the alleged offender would violate federal law if they traveled across state lines while stalking, or if the offender used a telephone, the Internet, or the US Postal Service to stalk.So, if an individual only stalked by showing up to a house multiple times in Texas, they would not violate the federal stalking law. However, if any form of communication to the alleged victim took place over the phone, internet, or mail, or if the victim lived in a different state, the alleged offender could be guilty under federal law. A person convicted of stalking under federal law could face up to 5 years in prison and a fine of up to $250,000.
• Protecting Individuals Performing Certain Official Duties: 18 USC 119 is perhaps the most explicit in making doxing illegal, however, it only applies to “covered” persons. Under this law, it is illegal to knowingly make restricted personal information about a covered person or their family available with the intent to threaten, intimidate, or incite violence toward that individual.A covered person is any officer or employee of the United States government, including soldiers. It also applies to those working with such employees in the performance of their duties, any member of the US Court System, or any informant or witness in a federal criminal investigation. The punishment for violating this law is up to 5 years in prison and potential fines.
• Interstate Communications Statute: The Interstate Communications Statue, found under 18 U.S. Code 875, contains laws preventing the extortion of individuals through electronic communication forms. While it contains four sections, the one most relevant to doxing is found in section D, which states the illegality of making any threat to injure the property or reputation of another individual over some electronic communication medium, with the intent to extort a certain individual.In simpler terms, this statute makes it illegal to attempt to extort someone by threatening to release information about them that could damage their reputation. The punishment for violating the Interstate Communications Statute is up to two years in prison and fines.

What are Some Examples of Individuals Who have been Arrested for Doxing?

• Two men in New York were arrested in September of 2019 for releasing the home addresses and social security numbers of more than 36 law enforcement officers. They were charged with related crimes such as harassment and stalking.
• A U.S. House of Representatives intern was arrested in October of 2018 for releasing the home addresses and phone numbers of several Republican lawmakers in an attempt to intimidate them during the Brett Kavanaugh hearings.
• A man from New York was arrested for doxing and swatting in July of 2016 for releasing the information of more than 50 individuals and making false bomb threats to a university in Arizona. He was charged federally and was sentenced to 2 years in federal prison.

Has Legislation Been Proposed to Make Doxing in Texas a Specific Crime?

Yes, in recent years, bills have been proposed that would make doxing in Texas a crime and carry specific punishments. Although they gained traction, none have been passed by the Texas legislature.

Accused of a Doxing-Related Crime in Texas? Contact Us.

If you or a loved one is facing charges related to doxing, such as harassment or stalking, it is crucial that you get legal representation immediately. Our team of defense attorneys at Varghese Summersett have decades of experience and a proven record of exceptional results  Call 817-203-2220 today for a free consultation with a doxing lawyer.

On March 11, 2020, the Court of Criminal Appeals of Texas handed down Holder v. State, an opinion stemming from a capital murder case that could have far-reaching consequences regarding the way investigators obtain cell site location information in the future. Specifically, the high court held that obtaining 23 days of cellphone location tracking dates without a warrant violated the Article I, Section 9 of the Texas Constitution and that the defendant had a reasonable expectation of privacy in his cell site location.

What is Cell Site Location Information?

Cellphones are the most commonly used electronic device by individuals in the United States, providing an intimate window into a person’s life. An estimated 96 percent of Americans own cell phones, allowing friends, family, and others to track an individual’s location through Find my Friends, Snapchat, A-GPS Tracker, and other free phone applications. Yet, people fail to realize that their cellphone providers have access, and regularly store, their cell site location information.

Cell site location information refers to the time-stamped information cell phones transmit to nearby cell towers every time a phone call is made, a text message is sent, or a web browser is opened. Police officers, during ongoing criminal investigations, may request an individual’s cell site location information. This allows authorities to triangulate the general location of a suspect.

What’s the Background in Holder v State?

On November 11, 2012, police found the body of Billy Tanner in his east Plano home. Tanner had been beaten and stabbed. It also appeared that the killer had also attempted to burn down Tanner’s house.

Investigators quickly honed in on Christopher James Holder as the suspect. Holder had been romantically involved with Tanner’s step-daughter, Casey James, and the couple and her young children had lived together in Tanner’s house. In late October 2012, Tanner asked Holder to move out at the request of his stepdaughter because they were having relationship problems.

The following month, James told Holder saying she believed Tanner had inappropriately touched one of her daughters. CPS and police investigated but found no evidence that inappropriate activity had occurred between Tanner and his step-granddaughter.

The next time James spoke to Holder she told him she was going out of town for the weekend. When she returned home two days later on Nov. 11, James knew something was wrong. Tanner’s truck was missing, the garage door-opener didn’t work, and there was a horrible smell in the house. Police responded to the scene and found Tanner dead, a victim of a blunt force trauma to the head and 20 stab wounds. It also appeared that

On Nov. 12,  the police interviewed Holder,  who claimed he had been out of town the last few days — an alibi that would later be disproved by Holder’s cell site location information. That same day, police got a court order requiring Holder’s cellphone provider, ATT, to disclose Holder’s call log and cell site location information records between Oct. 20, 2012 and Nov. 12, 2012. It was a total of 23 days’ worth of data.

Holder’s cell site location information showed that on November 10 between 3:28 p.m. and 4:16 p.m., he was near Tanner’s home. The death investigation revealed that Tanner’s death mostly likely occurred during that time period. The cell site location information further revealed that Holder was near Tanner’s home, again, on November 11 at 12:41 a.m. and that he was suspiciously near where Tanner’s truck was located at roughly 2:11 a.m.

Confronted with the information, Holder changed his story, saying that he remembered being near Tanner’s house but it was only to buy drugs.

Holder was subsequently arrested and later charged with capital murder in connection with Holder’s death.

Several months later, a jail inmate told detectives that that on Nov. 10, 2012, Holder called him asking for drugs and needed help with something. They ended up at a house where a man was dead to clean up the crime scene. The inmate told police that the dead man had “molested a little girl.”

During his trial in the summer of 2015, Holder went on trial for capital murder in connection with Tanner’s death. Tanner filed a motion to suppress the cell data, claiming he had a protected privacy interest in his cell site location information. The trial court denied the motion and Holder was subsequently convicted and sentenced to life in prison without parole.

Holder appealed. In Holder v State, the question for the Court of Criminal Appeals of Texas was whether the cell site location information should have been suppressed?

What About Privacy Rights?

 As citizens of the United States we have a reasonable expectation of privacy so long as society considers that expectation of privacy objectively reasonable. The Fourth Amendment guarantees the right of the people, “to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” U.S. Const. amend. IV.

Furthermore, the Texas Constitution guarantees the right of the people to be, “secure in their persons, houses, papers and possessions from all unreasonable seizures or searches.” TEX. CONST. art. I, § 9. Privacy rights are neither absolute nor explicitly listed. Caselaw clarified scenarios in which individuals have a reasonable expectation of privacy. Ultimately, the court in Holder focused on the privacy rights provided in the Texas Constitution, Article 1, S 9, when discussing how to resolve this case.

How did the Court in Holder Handle Privacy Right’s?

The Court of Criminal Appeals of Texas held that Holder had a right to privacy when it came to his cell site location information. Accordingly, the data which was used to refute Holder’s alibi should have been suppressed. Arrival at this holding required an extensive review of past cases with similar issues and a thorough discussion of the nature of cell site location information records.

• Katz v. United States: Electronically listening to and recording an individual’s phone call, with electronic wiretaps, violates that individual’s reasonable expectation of privacy. This was a monumental Supreme Court decision because it was the first time the concept of “reasonable expectation of privacy” was thoroughly considered.  Katz v. United States, 389 U.S. 347 (1967).
• United States v. Knotts: Attaching a surveillance device in order to reveal information regarding public movement, that could also be obtained through ordinary visual surveillance, is not an unreasonable search. A person travelling on public roads has no reasonable expectation of privacy in his movements from one place to another. If, however, the beeper is used in a private place to track an individual’s location there could be an argument that privacy rights have been violated. United States v. Knotts, 460 U.S. 276 (1983).
• United States v. Jones: The government’s installation of a GPS device on an individual’s vehicle and the use of that device to monitor the vehicle’s movements, twenty-four hours a day for 28 days, violated his Fourth Amendment rights to privacy. Here, the Supreme Court reasoned that the Fourth Amendment violation happened when officers attached the GPS device to the vehicle which was Jones’s private property. United States v. Jones, 565 U.S. 400 (2012).
• Carpenter v. United States (2018): Warrants are required when gathering cell phone tracking information. Cell phones are a vital part of human autonomy which means tracking the location of a cellphone is almost perfect surveillance. The Court went as far as to compare a cellphone to an ankle monitor in terms of location surveillance capability. Additionally, the Court reasoned that the longer GPS monitoring takes place, the higher the probability an individuals’ privacy rights have been violated, “regardless of whether those movements were disclosed to the public at large.” Carpenter v. United States, 138 S. Ct. 2206, 2215 (2018).

Holder v State differs from the cases above because it illustrates privacy concerns that arise from tracking someone through their cell site location information. Precedent calls for the application of the third-party doctrine to resolve the issue present in Holder. The third-party doctrine states that people who voluntarily give information to third parties –banks, phone companies, internet providers, and e-mail servers – have no reasonable expectation of privacy to that information. Accordingly, the government does not need a warrant to access these personal records. Following this reasoning, the data police officers collected in Holder should not have been suppressed – the trial court’s decision was correct. Ultimately, however, the Court chose not to apply the third-party doctrine. The Court instead adopted the ruling in Carpenter: the third-party doctrine will no longer be applicable to cell site location information under Article 1, § 9 of the Texas Constitution. Holder v. State, 595 S.W.3d 691, 701 (Tex. Crim. App. 2020). Accordingly, the cell site location information collected in Holder should have been suppressed because the defendant had a protected privacy interest in that data.

What the Effect of Holder v. State?

In the years to come, expect to see the law change as technology continues to advance. The Constitution of the United States of America and the Texas Constitution guarantee the people a right to privacy, but fail to explicitly state what privacy rights the people have. The Courts in Carpenter and Holder reasoned that as technology advances, it becomes more difficult to determine when privacy rights have been violated. If you or a loved one is facing criminal charges where privacy rights may have been violated it is important to contact an experienced criminal defense attorney.