in Re Mitchell Thompson ( 2016 )


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  • Petition for Writ of Mandamus Denied and Majority and Dissenting
    Memorandum Opinions filed October 25, 2016.
    In The
    Fourteenth Court of Appeals
    NO. 14-16-00814-CR
    IN RE MITCHELL THOMPSON, Relator
    ORIGINAL PROCEEDING
    WRIT OF MANDAMUS
    339th District Court
    Harris County, Texas
    Trial Court Cause No. 1492257
    DISSENTING MEMORANDUM OPINION
    Relator Mitchell Thompson alleges that the ex parte order for pre-conviction
    HIV testing entered against him is an unconstitutional application of Article 21.311
    1
    Article 21.31 provides that a person who is indicted for an offense under inter alia
    Section 22.011 of the Penal Code, shall, “at the direction of the court on the courts own motion
    or on the request of the victim of the alleged offense, undergo a standard diagnostic test
    of the Code of Criminal Procedure to him. I agree and would grant Thompson’s
    Petition for Writ of Mandamus. Because the Majority holds that Thompson has
    not shown himself entitled to relief, I respectfully dissent.
    After Thompson was indicted for having “plac[ed] a finger in the sexual
    organ of the Complainant,” the State requested and the trial court ordered
    Thompson to submit to involuntary STD/AIDS/HIV testing. Yet, the face of the
    record shows that indictment is not supported by probable cause. Specifically, the
    probable cause affiant states that it was Defendant 1, not Thompson who is
    Defendant 2, who digitally penetrated the Complainant. Instead, Thompson,
    according to the affiant, “grabbed the complainant in a bear hug and placed her on
    the hood of the car in the driveway.” The affiant further alleges that after
    Thompson lifted the Complainant’s bra, he “put his mouth on one of the
    complainant’s breasts.” If proven, the allegation certainly states an offense. But it
    would be remarkable, indeed, if such acts were capable of causing a sexually
    transmitted disease and the State has never alleged as much. Nor does the State
    allege that the Complainant has requested the testing.
    The trial court’s order for nonconsensual HIV testing is an unconstitutional
    application of Article 21.31 to Thompson because it
    approved by the United States Food and Drug Administration for human immunodeficiency
    virus (HIV) infection and other sexually transmitted diseases.” Tex. Code Crim. Proc. Ann.
    art. 21.31. The Penal Code offense alleged here is “the penetration of the anus or sexual organ of
    another person by any means without that person’s consent.” Tex. Penal Code Ann.
    § 22.011(a)(1)(A).
    2
    (a) does not require probable cause of a crime capable of causing a
    sexually transmitted disease;2 and
    (b) does not represent any State interest in regulation of public health
    or ease any trauma to the victim;3 and
    (c) ignores Thompson’s expectation of privacy in his blood and his
    HIV status.
    Further, the trial court’s order is an unconstitutional application of Article
    21.31 to Thompson because the face of the record on Petition for Writ of
    Mandamus demonstrates that there is no probable cause that Thompson committed
    a crime under Section 22.011(a) or any other section of the Penal Code for which
    HIV testing is authorized by Article 21.31.
    For the foregoing reasons, I would grant Thompson’s Petition for Mandamus
    Relief. Because the Majority does not, I respectfully dissent.
    /s/       Sharon McCally
    Justice
    Panel consists of Justices McCally, Brown, and Wise (McCally, J., Dissenting).
    Do Not Publish — Tex. R. App. P. 47.2(b).
    2
    In fact, because Section 22.011 makes it a crime to penetrate “by any means,” Section
    21.31 would authorize HIV testing for penetration by a sterile instrument or a tampon.
    3
    See generally Stacey B. Fishbein, Pre-Conviction Mandatory HIV Testing: Rape, AIDS
    and The Fourth Amendment, 28 HOFSTRA L. REV. 835 (2000) (discussing the competing interests
    in pre-conviction testing).
    3
    

Document Info

Docket Number: 14-16-00814-CR

Filed Date: 10/25/2016

Precedential Status: Precedential

Modified Date: 10/31/2016