Passenger's Refusal to Consent of Search of Car Driven by Common-Law Spouse Upheld

Wayne Danish drives a car titled in his name. Shirley Copeland is a passenger. Sheriff's Deputy Jesse Garza, lacking a warrant and probable cause to search the vehicle, asks Danish for permission to search the car. Danish agrees, but Copeland strongly objects. Danish and Copeland both tell Garza that the two of them are common-law spouses. Relying on Danish's consent, Garza searches and finds drugs (I would hate to have been him once the two of them got back home.).
Copeland moves to suppress the drugs. The trial judge grants the motion. The State appeals.  Chief Justice Rogelio Vasquez, writing for a panel including Justices Dori Contreras Garza and Rose Vela, affirms.
The appeals court held that the statements of the couple were sufficient to evince their marriage notwithstanding that they had different last names- it appears that their marriage would in turn show that she had an ownership interest in the car (The prosecutor argued that their claim of marriage was less credible because Copeland didn't take Danish's last name?! Both of my ex-wives kept prior names and my current wife hyphenated half-heartedly and not always consistently.). The appellate court held that Copeland had standing to object to the search of her husband's car. It also held that Copeland's objection invalidated Danish's consent.
Hat tip to the Texas District and County Attorneys' Association for the case. They point out that the factual presumptions of this appeal are generally in favor of the defense.
It appears to me that the proof for the motion got only a lick and a promise. No investigation appears to have been done of the basis of their marriage claim. The State stipulated to lacking probable cause for the search.
State of Texas v. Shirley Copeland, No. 13-11-00701-CR (Tex. App.--Corpus Christi/Edinburg, Aug. 9, 2012, no pet. h.)

What Must a Child Witness Say to Convict of Indecency by Contact?

Jesus Cosio was convicted of four counts of indecency with a child by contact. He appealed to the Thirteenth Court of Appeals (Corpus Christi/Edinburg) in Case Number 13-08-00189-CR. John G. Hill, retired chief justice of Fort Worth's Second Court of Appeals, wrote an en banc opinion which was released Monday. The Edinburg Court reversed and remanded one of the charges with instructions to acquit Cosio and reversed and remanded the others for further proceedings. Justice Dori Contreras Garza joined the other members of the court in the acquittal, but not the reversal of the other charges.

The State alleged that an adult male touched a seven or eight year old girl's genitals. Two or three years after that, she is examined for physical evidence and none is found. At trial six or seven years later, she testified about four incidents:

• The man had touched her on the breast, her private part, and "mostly everywhere."(in 1999, 2000, or 2001)
  
• A week after the first incident—the one above— he touched her breasts and "mostly her whole body, mostly everything." (in 1999, 2000, or 2001)
  
• When she was eight years old, the man put his penis in her mouth, then in her vagina, and (in 2001, 2002, and 2003)
  
• When she was nine or ten, he touched her breasts and put his penis in her vagina. (in 2002, 2003, and 2004)
  

Was the first incident proved to legal and factual sufficiency? The second one?

 
The State tried Cosio as to four offenses:

• July 31, 2004, penetrating the complainant's mouth with his sex organ (aggravated child sexual assault);
  
• July 31, 2003, penetrating her sex organ with his (aggravated child sexual assault);
  
• July 31, 2004, touching part of her genitals (indecency with a child by contact); and
  
• July 31, 2003, touching part of her genitals (indecency with a child by contact).

The charge did not instruct the jury that they must be unanimous as to a single act to convict. Cosio did not object to the charge.

In order to determine if the evidence supporting a conviction is legally sufficient, the appellate court reviews all of the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence.

 
For unobjected-to jury-charge error to be reversible:

• The error must really exist and;
  
• It must deprive the defendant of a valuable right.
  

The girl's testimony that the man touched her in her private part is sufficient for a conviction. Her saying that he touched her breasts and "mostly her whole body, mostly everything" does not.

 
To not require unanimity as to a single act is error. It deprived defendant of his valuable right of a unanimous jury verdict. He has a right to a retrial.  
 
The proof of the second incident is insufficient; acquittal is required.

 
The dissent would hold that:

1. there was no error in the jury charge;
   
2. even if there was error, that error was not preserved for review; and
   
3. even if Cosio was not required to preserve his error in order to obtain an egregious harm review, he did not suffer egregious harm.
   

The dissent appears to me to be a signal to the Court of Criminal Appeals that they should reverse the jury charge issue.