The State of Texas v. Robert Chody, 03-24-00536-CR

Background

Robert Chody is charged in connection with a death during an encounter with law enforcement; central evidence includes audio/video recordings taken from a patrol vehicle.
The district court, on remand, entered a written Order finding the footage fell within the federal Privacy Protection Act (PPA) and could not lawfully have been seized without a subpoena or court order.
The Order further held evidence of the footage’s return was not relevant unless shown to be for a reason other than “compliance with federal law.”
The district court’s rulings had the practical effect of foreclosing prosecution of Count One (alleging destruction/concealment of recordings under Tex. Penal Code § 37.09) and overt acts 5 and 8 of Count Two (related to allowing removal/destruction of recordings).
The State contends the Order effectively dismisses those portions of the indictment and is appealable under Tex. Code Crim. Proc. art. 44.01(a)(1); the dissenting justice would so hold and further conclude the trial court’s PPA preemption ruling was erroneous.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Chody)	Held (Dissent)
Appealability under art. 44.01(a)(1)	The Order effectively dismisses portions of the indictment, so the State may appeal.	The Order is not a dismissal (or is otherwise not appealable); oral-order cases limit appeals.	The written Order is appealable; it effectively dismisses parts of the indictment.
Whether the Order effectively dismissed parts of the indictment	The Order’s PPA-based rulings prevent the State from prosecuting Count One and overt acts 5 & 8, so prosecution is terminated as to those charges.	The court did not dismiss charges; its language is not a bar to prosecution.	The Order, as written, effectively dismisses those portions of the indictment.
Applicability/interpretation of the PPA (federal preemption)	The PPA should not preempt the State’s chosen theory; the trial court misapplied federal preemption.	The footage is protected by the PPA, so seizure/return rules foreclose the challenged prosecutions.	The dissent finds the trial court’s preemption ruling erroneous and would allow the State to proceed.
Necessity of a written order for appellate jurisdiction	The State obtained a written order on remand as required; that satisfies jurisdictional prerequisites.	Relying on Sanavongxay, oral rulings may be insufficient; the context matters.	A written order was entered and thus satisfies the requirement—Sanavongxay is distinguishable.

Key Cases Cited

Sikkelee v. Precision Airmotive Corp., 822 F.3d 680 (3d Cir. 2016) (discussing federal preemption as a component of federalism)
State v. Chody, 706 S.W.3d 619 (Tex. App.—Austin 2024) (prior appellate treatment and remand instruction to address PPA effect)
State v. Sanavongxay, 407 S.W.3d 252 (Tex. Crim. App. 2012) (a written order is required to invoke appellate jurisdiction)
State v. Chupik, 343 S.W.3d 144 (Tex. Crim. App. 2011) (art. 44.01 should be construed liberally in favor of State appeals)
State v. Moreno, 807 S.W.2d 327 (Tex. Crim. App. 1991) (State may appeal orders that force alteration of indictment even if amendment possible)
State v. Plambeck, 182 S.W.3d 365 (Tex. Crim. App. 2005) (State entitled to stand on its charging instrument and appeal adverse rulings)
In re State ex rel. Weeks, 391 S.W.3d 117 (Tex. Crim. App. 2013) (State may choose which offenses and theories to pursue)
State v. Stanley, 201 S.W.3d 754 (Tex. Crim. App. 2006) (State may appeal orders that dismiss all or part of prosecution even after jeopardy attaches)
State v. Roberts, 940 S.W.2d 655 (Tex. Crim. App. 1996) (substance and effect control over labels for appealability)
Smith v. State, 559 S.W.3d 527 (Tex. Crim. App. 2018) (reviewing courts must consider an order’s substance and effect)
State v. Rosseau, 396 S.W.3d 550 (Tex. Crim. App. 2013) (State may appeal any pre-acquittal order that effectively terminates prosecution)
Ex parte Sinclair, 693 S.W.3d 346 (Tex. Crim. App. 2024) (endorsing practice of memorializing oral rulings in a written order for appellate purposes)