April 2012 SDR - Voice for the Defense Vol. 41, No. 3

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Tuesday, April 24th, 2012

Voice for the Defense Volume 41, No. 3 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

Petitioner police officers did not violate the Fourth Amendment by entering respondent parents’ home without a warrant; the circumstances led the officers to believe that there could have been weapons inside the house. Ryburn v. Huff, 132 S. Ct. 987 (2012)

        The Court affirmed a judgment for the officers that was based on qualified immunity due to the mother’s odd behavior combined with information the officers had regarding threats against a school by the son. No Supreme Court decision “has found a Fourth Amendment violation on facts even roughly comparable to those in this present case.” Judged from the proper perspective of a reasonable officer forced to make a split-second decision in response to a rapidly unfolding chain of events that culminated with the mother turning and running into the house after refusing to answer a question about guns, the officers’ belief that entry was necessary to avoid injury to themselves or others was imminently reasonable.

The Government’s installation of a GPS device on D’s vehicle, and its use of that device to monitor the vehicle’s movements, constituted a “search.” United States v. Jones, 132 S. Ct. 945 (2012)

        The admission of the evidence obtained by warrantless use of the global-positioning-system device violated the Fourth Amendment. Agents installed the device on the undercarriage of a vehicle registered to D’s wife while it was parked in a public lot because D was under suspicion of trafficking narcotics. Over the next 28 days, the Government used the device to track the vehicle. The Government conceded noncompliance with a warrant that had been obtained. Under the common-law trespassory test, the Government physically occupied private property for the purpose of obtaining information. Such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted. D possessed the vehicle at the time the Government trespassorily inserted the information-gathering device. The Government forfeited its alternative argument that the officers had reasonable suspicion and probable cause because this argument was not raised below.

Without affirmative action by the AG, pre-SORNA offenders would not be bound by the registration requirements. Reynolds v. United States, 132 S. Ct. 975 (2012)

        In February 2007, the Attorney General promulgated an Interim Rule specifying that the federal Sex Offender Registration and Notification Act applies to pre-Act offenders. D, a pre-Act offender, registered in Missouri in 2005 but moved to Pennsylvania in September 2007 without updating the Missouri registration or registering in Pennsylvania. D was indicted for failing to meet SORNA’s registration requirements in September and October 2007. The district court rejected on the merits D’s legal attack on the Interim Rule, but the Third Circuit rejected his argument without reaching the merits, concluding that the Act’s registration requirements applied to pre-Act offenders even in the absence of a rule by the AG.

        The U.S. Supreme Court held that the Act did not require D to register before the AG validly specified that the Act’s registration provisions applied to pre-Act offenders. SORNA defines “sex offender” to include offenders who were convicted before the Act’s effective date. SORNA also states, however, that the AG has the authority to specify the applicability of SORNA with respect to sex offenders convicted prior to SORNA’s enactment. The Court noted Congress’ use of the word “applicability” as opposed to “nonapplicability,” inferring that Congress wanted to give the AG discretion to apply SORNA to pre-Act offenders, not the authority to make exceptions to SORNA. The Court therefore reversed the Third Circuit and remanded the case to determine if the AG’s Interim Rule is valid.

Undisclosed notations on a police activity sheet were ambiguous and not exculpatory or impeaching so as to warrant retrial. Wetzel v. Lambert, 132 S. Ct. 1195 (2012)

        Pennsylvania death row inmate sought habeas relief under 28 U.S.C.S. § 2254 on a Brady claim, arguing that the State failed to disclose a police activity sheet noting a co-defendant had identified a fourth person as a co-defendant and bearing other information associating the sheet with the robbery and murder charges. COA reversed the denial of relief. The Supreme Court vacated COA’s judgment and remanded for further proceedings.

        COA improperly rejected the state courts’ reasonable con­clu­sion about the contents of the document. Section 2254 precludes a federal court from granting a writ of habeas corpus to a state prisoner unless the adjudication of his claim by state courts involved an unreasonable application of federal law. COA overlooked the determination of the state courts that the documents were entirely ambiguous; COA focused solely on the state courts’ statements on the impeachment value of the evidence. The state court ruling might have been reasonable, since (1) the activity sheet did not explicitly link the fourth person to the murder-robbery, (2) the co-defendant had committed a dozen other such robberies, (3) he was being held on several charges when the activity sheet was prepared, (4) the fourth person’s name appeared nowhere else in the files, and (5) two witnesses who were shown the fourth person’s photo did not identify him as involved in that crime. The daunting difficulties for the prosecution in a retrial 30 years later were not to be imposed unless each ground supporting the state court decision was examined and found unreasonable under § 2254(d)(1).

The Court has expressly declined to adopt a bright-line rule for the applicability of Miranda in prisons; the determination depends upon whether incarceration exerts the danger of coercion that results from the interaction of custody and official interrogation. Howes v. Fields, 132 S. Ct. 1181 (2012)

        COA affirmed the grant of habeas relief under 28 U.S.C.S. § 2254(d)(1), holding that respondent inmate’s interrogation was a “custodial interrogation” under Miranda because removal to a prison conference room and questioning about conduct occurring outside the prison made any such interrogation custodial per se.

        The Supreme Court reversed COA. Standard prison conditions and restrictions did not necessarily implicate the same interests Miranda sought to protect. Thus, being in prison, without more, was not enough to constitute Miranda custody. Taking the inmate to a conference room, as opposed to questioning him in the presence of fellow inmates, did not necessarily convert a noncustodial situation to one in which Miranda applied. Factors that leaned toward finding the inmate’s questioning was custodial were offset by others: He was told at the outset, and reminded thereafter, that he could leave and go back to his cell whenever he wanted, he was not physically restrained or threatened and was not uncomfortable, was offered food and water, and the door to the conference room was sometimes left open. Those objective facts were consistent with an interrogation environment in which a reasonable person would have felt free to terminate the interview and leave. Being told if he did not cooperate he would be returned to his cell was not coercion by threatening harsher conditions.

Fifth Circuit

District court did not err in denying D’s motion to suppress based upon the warrantless insertion of a GPS device on the undercarriage of D’s brother’s truck. United States v. Hernandez, 647 F.3d 216 (5th Cir. 2011)

        D did not have “standing” to challenge the placement of the GPS device on his brother’s truck, as he failed to demonstrate that he had a legitimate expectation of privacy in the invaded place; he did have “standing” to challenge the use of the GPS device to follow the truck’s path, since he had his brother’s permission to drive the truck. On the merits, however, the Fifth Circuit found that the use of the hidden GPS was not an unconstitutional warrantless search; this one-off use of GPS monitoring was not a search governed by the Fourth Amendment. The Fifth Circuit put off for another day the more troubling question of whether extensive GPS monitoring over a lengthier course of time might rise to the level of a Fourth Amendment search. NOTE: This latter issue was affirmed in United States v. Jones, No. 10-1259 (U.S. Jan 23, 2012). See above.

There was no basis for D’s federal habeas corpus relief from his conviction for sexual abuse of a child—although the victim, as an adult, approached the DA and voluntarily recanted her testimony under oath—
especially under the stringent standard for a successive habeas corpus petition. Kinsel v. Cain, 647 F.3d 265 (5th Cir. 2011)

        There was no evidence that the prosecutor knew the victim was going to provide perjured testimony at trial; nor did the subsequent recantation mean that D was deprived of either his right to confrontation or his right to a fair trial. The Fifth Circuit further held that a federal habeas court could not take cognizance of any alleged misapplication of Louisiana’s postconviction procedural law; infirmities in state habeas proceedings do not constitute grounds for relief in federal court. Accordingly, although finding it “beyond regrettable that a possible innocent man will not receive a new trial in the face of the preposterously unreliable testimony of the victim and sole eyewitness to the crime of which he was convicted,” the Fifth Circuit affirmed the district court’s denial of habeas relief.

Upon revocation of supervised release, a district court may impose a longer prison sentence to address the re­habilitative needs of the defendant. United States v. Breland, 647 F.3d 284 (5th Cir. 2011)

        The Fifth Circuit reinforced United States v. Giddings, 37 F.3d 1091 (5th Cir. 1994); although the Supreme Court held in Tapia v. United States, 131 S. Ct. 2382 (2011), that courts may not impose or lengthen a prison term to promote an offender’s rehabilitation, that holding is limited only to initial sentencings, not revocation sentencings. The statute governing supervised release, 18 U.S.C. § 3583, specifically requires courts to consider rehabilitation when revoking a defendant’s supervised release and sentencing him thereon. Therefore, the district court did not err in imposing a 35-month revocation sentence based, in part, on the desire to make sure that D could participate in the Federal Bureau of Prisons’ 500-hour drug-treatment program. NOTE: The First Circuit held to the contrary in United States v. Molignaro, 649 F.3d 1 (1st Cir. Mass. 2011), an opinion authored by former Justice Souter, sitting by designation.

There was no plain ex post facto error in applying the November 2001 version of the Sentencing Guidelines even though D’s conduct was concluded before that version of the Guidelines took effect. United States v. Murray, 648 F.3d 251 (5th Cir. 2011)

        The Fifth Circuit once again held that United States v. Booker, 543 U.S. 220 (2005), rendered the Sentencing Guidelines merely advisory. Also, district court did not err in calculating the Guideline loss figure applicable to D’s loan fraud case. The testimony of an accountant who studied the loan accounts provided a suf­ficiently reliable basis for the loss figure used by the court. Moreover, the Guidelines do not require sentencing courts to consider extrinsic factors that affect the value of collateral when using the collateral to discount the amount of loss. The loss should be discounted by the fair market of collateral, not by the value the collateral could have had in better economic conditions. Nor did the district court plainly err in applying a four-level leader/organizer enhancement under USSG § 3B1.1(a). The Government need not produce direct evidence demonstrating that a defendant directed or controlled other participants; rather, the district court may infer from available facts, including circumstantial evidence, that a defendant exercised a leader/organizer role. Here, the circumstantial evidence provided a sufficient basis for the enhancement such that there was no plain error in its application.

For a non-Guidelines sentence, just as for a Guidelines sentence, it is error for a district court to consider a defendant’s “bare arrest record” at sentencing. United States v. Johnson, 648 F.3d 273 (5th Cir. 2011)

        District court erred in imposing a 63-month upward variance sentence (from a Guideline range of 37 to 46 months) in part on the basis of a bare arrest record without any underlying facts of the circumstances prompting the arrests. Because the error was preserved, the burden was on the Government to convincingly demonstrate that the sentence would have been the same absent the error. The Fifth Circuit was uncertain whether the district court would have imposed the same sentence absent the arrests; therefore, the error was not harmless. The Fifth Circuit vacated the sentence and remanded for resentencing.

The Guideline enhancement for “crime of violence” covers offenses where consent to sexual activity is involuntary or cannot be given. United States v. Diaz-Corado, 648 F.3d 290 (5th Cir. 2011)

        District court did not err in applying a 16-level “crime of violence” enhancement under USSG § 2L1.2(b)(1)(A)(ii); D’s Colorado state conviction for unlawful sexual contact (in violation of Col. Rev. Stat. § 18-3-4(a)) was one for a “forcible sex offense” under the Guideline, considering Amendment 722.

The state court conclusion that defense counsel was not ineffective for failing to call an alibi witness was not unreasonable, because the state-court record did not show that the witness was willing and able to testify. Rabe v. Thaler, 649 F.3d 305 (5th Cir. 2011)

        Under Cullen v. Pinholster, 131 S. Ct. 1388 (2011), a federal habeas court is limited to considering only the evidence in the state-court record underlying the state-court decision whose reasonableness is being reviewed.

Court of Criminal Appeals

D’s conviction for unlawful possession of a firearm was valid because he had the status of a felon at the time he possessed the firearm. Ex parte Jimenez, No. 76,575 (Tex.Crim.App. Feb 8, 2012)

        In 1982, D was convicted of felony rape. Nine years later, D was convicted of unlawful possession of a firearm by a felon. To prove D was a felon at the time he possessed the weapon, the State introduced proof of D’s prior felony conviction. No appeal was perfected challenging either conviction.

        In 1998, D filed a habeas corpus application challenging his rape conviction. CCA granted relief and set aside D’s conviction. Subsequently, the State dismissed the charge due to a missing witness. In this habeas corpus application, D argued that his conviction for unlawful possession of a firearm is now void because the predicate felony supporting his conviction has been set aside and the charge dismissed. The reviewing court held that D was not entitled to relief because he had the status of a felon when he possessed the firearm that led to the new charges; CCA agreed.

Under the routine booking question exception, a trial court must examine whether, under the totality of the circumstances, a question was reasonably related to a legitimate administrative concern. Alford v. State, 358 S.W.3d 647 (Tex.Crim.App. 2012)

        D argued that the trial court erred in admitting his statements to officers under the routine booking question exception to Miranda and U.S. Const. amend. V. CCA disagreed. If a question lacked a legitimate administrative purpose, the appellate court should apply the Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997), bifurcated standard of review to determine the admissibility of the response under the general should-have-known test for custodial interrogation. The record here undisputedly showed that as D was being booked into jail, the officer asked D if the non-contraband item discovered in the patrol car belonged to him. Upon confirming that it did, the officer gave the item to facility personnel, who placed it with D’s personal property. The totality of the circumstances objectively showed that the officer’s questions were reasonably related to a legitimate administrative concern. The government has a legitimate interest in identification and storage of an inmate’s property.

The trial court properly admitted printouts from a so­cial networking website because there was sufficient circumstantial evidence to support a finding that the exhibits were what they purported to be—web pages the contents of which D was responsible for. Tienda v. State, 358 S.W.3d 633 (Tex.Crim.App. 2012)

        D appealed his murder conviction and argued that the trial court erred in admitting into evidence the electronic content from a website during both the guilt/innocence and punishment phases of his trial because the State failed to properly authenticate, under Tex. R. Evid. 901, the evidence printed from the website. CCA disagreed. There was sufficient circumstantial evidence to support a finding that the exhibits were what they purported to be. There were numerous photographs of D with his unique arm, body, and neck tattoos, as well as his distinctive eyeglasses and earring. There was a reference to the victim’s death and the music from his funeral. There were references to D’s gang and messages referring to a shooting. That evidence was sufficient to support a finding that the web pages offered into evidence were created by D. There was ample circumstantial evidence—taken as a whole with all of the individual, particular details considered in combination—to support a finding that the web pages belonged to D and that he created and maintained them.

COA did not err by ordering that D’s sentences on his two convictions for injury to a child run concurrently rather than consecutively because Tex. Penal Code § 3.03(b)(2)(B) does not authorize a trial judge to order consecutive sentences when the defendant was originally charged with sexual offenses but pleads guilty to nonsexual offenses. Nguyen v. State, Nos. 0260-11 & PD 0261-11 (Tex.Crim.App. Feb 8, 2012)

        D was charged with aggravated sexual assault and sexual assault of his two daughters, but he pleaded guilty to two counts of injury to a child, which was not a sex offense. The trial court revoked D’s community supervision based on his violation of a no contact order and sentenced him to 10 years’ confinement for each of his two cases, to run consecutively. COA reformed the judgment to order the two sentences to be served concurrently. The State petitioned for review. CCA affirmed the judgment.

        Section 3.03(b)(2)(B) ensures that defendants who, pursuant to a plea bargain, are placed on deferred adjudication for certain sex offenses are subject to the same requirements, disabilities, and punishments that had previously been applied only to those formally “convicted” of a sex offense. Section 3.03(b)(2)(B) does not apply in cases where sexual offense charges are formally dropped or never pursued.

CCA disavowed prior decisions that (1) require parole-eligibility misinformation to be an essential part of the plea agreement to prove an involuntary plea resulting from ineffective assistance of counsel based upon such misinformation and (2) fail to distinguish between parole eligibility and parole attainment. Ex parte Moussazadeh, Nos. 76,439 & 74,185 (Tex.Crim.App. Feb 15, 2012)

        D pleaded guilty to murder and was sentenced to 75 years’ incarceration. He filed a second habeas corpus application claiming that counsel’s misadvice regarding parole eligibility rendered his plea involuntary. CCA denied relief. He filed a subsequent application and a suggestion for reconsideration of the second application.

        CCA granted relief and dismissed the subsequent application. Ex parte Moussazadeh, 64 S.W.3d 404 (Tex.Crim.App. 2001), and Ex parte Evans, 690 S.W.2d 274 (Tex.Crim.App. 1985), were incorrect. There are considerable distinctions between parole attainment and parole eligibility. Parole attainment is highly speculative, due to various factors associated with an individual’s parole application. The question of parole eligibility, however, elicits a straightforward answer because parole eligibility is determined by the law in effect on the date of the offense. When a serious consequence is clear, counsel has a duty to give correct advice. Both failure to provide correct information and providing incorrect information violate that duty.

        D sufficiently proved that his counsel was deficient. D’s counsel could have easily determined the parole-eligibility requirements by reading the statute. Instead, counsel failed to inform D of changes in the parole-eligibility statutes that doubled the time he must serve before becoming eligible for parole. The fact that the amendments took effect only 11 days before the offense is of no consequence. CCA also concluded, based on D’s 1997 affidavit, that D would not have pled guilty if he had known the actual time he would have to serve, and thus prejudice is shown.

D was entitled to a new trial on his Brady claim because undisclosed police reports contained favorable evidence material to D’s case and the State failed to disclose such evidence. Ex parte Miles, Nos. 54687-S(B) & 54688-S(B) (Tex.Crim.App. Feb 15, 2012)

        Applicant inmate was convicted of murder and attempted murder. COA recommended that his subsequent application for habeas corpus relief be granted. CCA granted the application and held that the inmate’s actual innocence and Brady claims met the requirements of Tex. Code Crim. Proc. art. 11.07, § 4(c) because they relied on the new evidence of two undisclosed police reports, a witness’ recantation of his in-court identification of the inmate as the shooter, the identification of the source of a previously unknown fingerprint, and a second witness’ affidavit stating that her trial testimony was incorrect—none of which was available or ascertainable on or before the date the inmate filed his first applications. The two undisclosed police reports contained favorable evidence material to D’s case, and the State failed to disclose such evidence. The reports were exculpatory and could have constituted impeachment evidence because they identified other potential suspects for the crime, and subsequent investigation of those allegations could have led to other exculpatory evidence.

A trial court has the authority to reopen a suppression hearing, even mid-trial, to allow the State to present additional evidence in support of the trial court’s initial, interlocutory ruling to deny the motion. Black v. State, No. 1551-10 (Tex.Crim.App. Feb 15, 2012).

        D was convicted of possession with intent to deliver meth. The trial court had denied D’s motion to suppress. COA affirmed. CCA granted D’s PDR to decide whether the trial court erred in reopening the hearing on the motion to suppress. CCA affirmed.

        It was within the trial court’s discretion to reopen the suppression hearing and to entertain new testimony. Furthermore, COA did not err in going beyond the face of the warrant and relying on the new testimony to establish probable cause to issue D’s arrest warrant.

        In cases in which the trial court is never asked, or is asked but declines, to exercise its discretionary authority to reopen the suppression hearing, appellate review of its ruling on the motion to suppress is ordinarily limited to that evidence presented at the pretrial hearing—the evidence that was before the court at the time of its decision. There is an exception: If the parties consensually broach the suppression issue again before the fact-finder at trial, the reviewing court should also consider the evidence adduced before the fact-finder at trial in gauging the propriety of the trial court’s ruling on the motion to suppress. The corollary rule is that if the trial court should exercise its authority to reopen the suppression hearing, the reviewing court should also consider whatever additional evidence may be spread on the record bearing on the propriety of the trial court’s ruling on the motion to suppress.

In the Tex. Health & Safety Code, “prescription form” refers to a pre-printed form designed to have prescription information written on it; the legislature intended for there to be a legal distinction between prescription forms and completed prescriptions. Avery v. State, No. 0864-11 (Tex.Crim.App. Feb 29, 2012)

        Before attempting to fill a prescription for Lortab, D scribbled out “2.5” and made it look like “7.5.” D was convicted of attempting to obtain a controlled substance through the use of a fraudulent prescription form, in violation of Tex. Health & Safety Code § 481.129(a)(5)(B). COA acquitted D because it found no evidence that she used a fraudulent prescription form. CCA affirmed COA’s judgment but disagreed with COA’s reasoning and interpretation of the record.

        The fact that subsections of Section 481.129 overlap somewhat does not change the State’s burden of proving the statutory manner and means that it actually charged. While subsection (A) is broad enough to encompass most fraudulent attempts to obtain controlled substances, the other subsections allow the State to draft a more specific charge for a better jury instruction and to provide more notice to the defendant. An appellate court’s belief that a defendant’s actions more closely resemble an uncharged offense than the offense actually charged is not a legitimate basis for acquittal. Sufficiency of evidence is reviewed by comparing the evidence adduced at trial to the elements of the offense actually charged. Because D fraudulently altered information that was handwritten on a legitimate prescription form, the evidence did not support a conviction for the offense charged.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Ordering a driver to perform field sobriety tests does not, without more, escalate a traffic stop into a custodial detention, despite officer’s admission that driver was not free to leave. State v. Chupik, No. 03-09-00356-CR (Tex.App.—Austin Sep 15, 2011)

Officer lacked RS to justify investigatory stop of vehicle, despite officer’s observation of D’s vehicle crossing high­way’s center stripe coupled with anonymous caller’s tip reporting dangerous driving by a vehicle matching D’s vehicle. State v. Sanders, No. 04-11-00392-CR (Tex.App.—San Antonio Oct 12, 2011)

        “Law enforcement ‘generally cannot rely alone on a police broadcast of an anonymous phone call to establish reasonable suspicion.’ . . . Although [officer] testified [D’s] pickup straddled the white center stripe multiple times, he stated he agreed with defense counsel that the video recording only shows the pickup straddle the line once. The video recording does not show [D’s] pickup drift completely into the left lane, but rather only shows the pickup’s left tires cross the center stripe. Therefore, there is evidence in the record to support the trial court’s finding that the ‘single movement whereby the left wheels of [D]’s vehicle drifted into an adjacent lane of traffic is insufficient to show that [D] “changed lanes” or had an intent to change lanes which would require the use of a turn signal.’”

Evidence of flight alone, even upon a showing of authority, is insufficient to establish reasonable suspicion. Castillo v. State, No. 04-10-00893-CR (Tex.App.—San Antonio Oct 12, 2011)

        COA reversed D’s conviction because although there was evidence officers were going to a location where they believed individuals would be present who would try to flee, there was no evidence to establish officers’ purpose for going to the location. Flight alone is insufficient to justify an investigatory detention.

The presence of persons other than D in the residence provided sufficient evidence to support officers’ belief that D would be in the residence when they attempted to execute the arrest warrant. Walker v. State, Nos. 09-10-00434-CR, 09-10-00435-CR, 09-10-00436-CR, 09-10-00437-CR (Tex.App.—Beaumont Oct 12, 2011)

        D relied on Green v. State, 78 S.W.3d 604 (Tex.App.—Fort Worth 2002, no pet.). The Green court reasoned that the officer knew nothing of Green’s habits, employment status, or the make or model of Green’s car to determine whether he was in the apartment. Additionally, officer’s testimony was devoid of any suggestion that he saw lights on in the apartment or that he had detected any movement within. The court explained that nervous behavior by the person answering the door must be coupled with some other indicia, however minor, that the suspect is present to generate a reasonable belief the suspect is home.

        The instant court distinguished Green on the following grounds. Here, the officers identified at least two persons in D’s residence after announcing their presence—one who looked out the window and another who answered the door (neither of whom were D). “When one [of them] made a sudden move toward the rear of the home upon seeing the police officer at the door, [officer] believed that [D] was present and that the lady may be attempting to warn him of the officers’ presence. Further, the record does not indicate that the officers had any information to suggest conclusively that [D] was not at home. . . . [T]he trial court could reasonably conclude that the officer had formed a reasonable belief that [D] was within the residence.”

PC existed to obtain warrant to search residence where confidential informant (CI) bought cocaine despite brief period of time during which officer could not see CI while CI was conducting controlled buy. State v. Griggs, 352 S.W.3d 297 (Tex.App.—Houston [14th Dist] Oct 25, 2011)

        D also argued (unsuccessfully) that the affidavit in support of the warrant provided, at most, PC to believe cocaine would be found on the person of the suspected party but not in the residence. Rejecting said argument, COA wrote: “The suspected party was present at [the residence] when the informant arrived to purchase narcotics, conversing with the informant at the front door of the residence and retreating into the residence to retrieve the requested cocaine[.]”

Bystander’s statement to officer, “there they are,” did not give rise to RS that driver of vehicle driving away was involved in any criminal activity, in the absence of any evidence indicating whether bystander was the same person who had originally called police. State v. Kerwick, 353 S.W.3d 911 (Tex.App.—Fort Worth Nov 3, 2011)

        In addition, assuming “enhanced reliability of the statement, ‘There they are right there. There they are, there they are,’ based on the fact that the statement was made face-to-face between a bystander and [officer], the substance of the information provided—at least as elicited from [officer] in the record before us—does not indicate any unusual activity, does not connect [D] to any unusual activity, and does not indicate that any unusual activity is related to crime.”

Exigent circumstances did not justify warrantless entry into D’s apartment, and the taint therefrom had not dis­sipated by the time D gave consent to search bag that contained marijuana—even though D was no longer in handcuffs—because officer had removed his Taser gun from his belt and was holding it in his hand. Turrubiate v. State, No. 04-10-00744-CR (Tex.App.—San Antonio Nov 9, 2011)

        Nothing in the record suggested that destruction of marijuana evidence was at risk; D willingly answered door and made no movement as if he were about to destroy evidence, and officer stood away from D’s peephole while CPS investigator knocked on the door such that D would not have been aware of police involvement. As to search of the bag, COA also noted that it is unclear whether D had been made fully aware that he could decline consent to search.

D lacked standing to challenge search of hotel room; D was merely there to visit another occupant (who paid for the room) and D did not intend to spend the night. State v. Valdez, No. 08-10-00260-CR (Tex.App.—El Paso Nov 9, 2011)

        In addition, “neither [D] nor the other members of the group took any precautions to ensure privacy prior to [officer’s] arrival.”

Testimony regarding insurance company’s determination of fault was admissible in prosecution for manslaughter where D claimed she was not at fault for the collision between her vehicle and motorcycle. Mitchell v. State, No. 10-10-00307-CR (Tex.App.—Waco Nov 9, 2011)

        “Although this type of evidence could have a tendency to suggest a decision on an improper basis in a criminal case, the trial court could have reasonably concluded that in this case, it did not.”