January/February 2011 SDR

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Saturday, January 1st, 2011
In this issue: United States v. Andino-Ortega; United States v. Williams; United States v. Morales-Sanchez; United States v. Davis; Balentine v. Thaler; Woodfox v. Cain; United States v. Williams; Dale v. Holder; United States v. Trejo; White v. Thaler; United States v. Roberts; Ex parte Sinegar; Ex parte Rendon; Welsh/McKithan v. State; Uranga v. State; Meadoux v. State; Pleache v. State; State v. Wilson; Cardenas v. State; Grant v. State; Garcia v. State; Settlemire v. State; Eubanks v. State; Runningwolf v. State; Gutierrez v. State; Brown v. State; State v. Bowman; Parker v. State; Pecina v. State; Collins v. State

Fifth Circuit

United States v. Andino-Ortega, 608 F.3d 305 (5th Cir. 2010)

District court committed reversible plain error by applying a 16-level “crime of violence” enhancement under USSG § 2L1.2(b)(1)(A)(ii) based on defendant’s Texas conviction for injury to a child by intentional and knowing commission; defense counsel’s erroneous statement that the conviction was a “crime of violence” under Perez-Muñoz v. Keisler, 507 F.3d 357 (5th Cir. 2007), did not waive defendant’s appellate challenge to the 16-level enhancement because defense counsel’s misunderstanding of Fifth Circuit precedent did not constitute an intentional and knowing relinquishment of a right. Under Fifth Circuit precedent, even injury to a child committed by an intentional act does not qualify as a “crime of violence” under USSG § 2L1.2. Moreover, the error in applying the enhancement affected defendant’s substantial rights because either of the possible alternative Guideline ranges was well below the 60-month prison term defendant received. Because the district court’s error also seriously affected the fairness, integrity, or public reputation of judicial proceedings, the Fifth Circuit vacated defendant’s sentence and remanded for resentencing.

United States v. Williams, 609 F.3d 368 (5th Cir. 2010).\

Where drug defendant was, notwithstanding a Guideline imprisonment range of 360 to life, sentenced to 192 months’ imprisonment for his crack cocaine offenses, pursuant to a binding-sentence plea agreement under Fed. R. Crim. P. 11(c)(1)(C), district court did not err in denying defendant’s motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) based on the retroactive amendments to the crack cocaine Guidelines; because defendant’s sentence resulted from his plea agreement, not from the Guidelines (which the sentence was well below), the sentence was not “based on” a Guideline range that was subsequently lowered, as necessary to authorize a sentence reduction under 18 U.S.C. § 3582(c)(2); in any event, even if defendant’s sentence were somehow deemed to be “based on” the Guidelines, and thus eligible for reduction under § 3582(c)(2), the district court did not abuse its discretion in denying a reduction based on its belief that defendant did not deserve a lower sentence than 192 months, which was already well below even the reduced Guideline imprisonment range of 324 to 405 months.

United States v. Morales-Sanchez, 609 F.3d 637 (5th Cir. 2010)

District court reversibly erred in enhancing defendant’s Guideline offense level by two levels for obstruction of justice under USSG § 3C1.1 based on defendant’s time-of-arrest phone call asking another person to report as stolen the car in which defendant was apprehended; the government failed to prove that defendant’s conduct resulted in a material hindrance to the investigation or prosecution of the instant offense of sentencing, as required by Application Note 4(d) to USSG § 3C1.1; moreover, the error was not harmless because nothing in the record provided reason to believe that the district court would have imposed the same sentence even without the erroneous obstruction-of-justice enhancement; accordingly, the Fifth Circuit vacated the sentence and remanded for resentencing.

United States v. Davis, 609 F.3d 663 (5th Cir. 2010)

(1) In second capital sentencing proceeding before a jury (pursuant to the Federal Death Penalty Act), the district court erred in responding to a jury note without notifying counsel and allowing counsel input into how the court should respond to the jury’s question; however, the error was harmless.

(2) Prosecutor conducted improper cross-examination of the defense’s only mitigation witness, when the prosecutor, purportedly for the purpose of testing the basis of the witness’ knowledge, himself “testified” to the number of homicides that had occurred in the Florida Housing Project in New Orleans during some of the years at issue in this case; however, the prosecutor’s “testimony,” while improper, did not require reversal in light of (1) the district court’s sua sponte admonitions to the prosecutor, which alerted the jury to the improper nature of the remarks, and (2) other circumstances.

(3) In federal death penalty proceeding, on appeal from a second capital sentencing proceeding before a jury (following remand of the sentence following appellate affirmance of the convictions), defendant’s renewed challenge (pursuant to Batson v. Ken­tucky, 476 U.S. 79 (1986), and progeny) to the prosecution’s allegedly racially discriminatory use of peremptory strikes was foreclosed under the law-of-the-case doctrine; the Fifth Circuit rejected defendant’s contention that the intervening Supreme Court decisions in Miller-El v. Dretke, 544 U.S. 231 (2005), and Snyder v. Louisiana, 552 U.S. 472 (2008), had so changed the applicable law as to constitute an exception to the law-of the-case doctrine.

(4) Even if government’s witness had an undisclosed agreement with the government that he would be placed into witness protection if he testified, defendant still could not show a reasonable probability that had the evidence been disclosed, the result of the trial would have been different; first, the disclosure of the witness protection request was not favorable to defendant, because jury might have assumed that witness needed protection from defendant, who was already accused of killing a person who had filed a complaint against him; moreover, the evidence against defendant was so overwhelming that this evidence would not have made a difference.

Balentine v. Thaler, 609 F.3d 729 (5th Cir. 2010)

In light of Ex parte Campbell, 226 S.W.2d 418 (Tex. Crim. App. 2007), and Ruiz v. Quarterman, 504 F.3d 523 (5th Cir. 2007), the district court should have, pursuant to Fed. R. Civ. P. 60(b), set aside its judgment denying Texas death-sentenced defendant federal habeas relief due to a supposedly adequate and independent state procedural default. Accordingly, the Fifth Circuit reversed the district court’s order denying defendant’s Rule 60(b) motion and remanded for consideration of the merits of defendant’s ineffective assistance of counsel claim, including any necessary evidentiary hearing.

Woodfox v. Cain, 609 F.3d 774 (5th Cir. 2010)

District court erred in granting federal habeas relief on defendant’s Louisiana conviction for murder of a prison guard in 1972; defendant’s primary argument—that trial counsel was ineffective for failing to object on Confrontation Clause grounds to the reading, at the 1998 state retrial, of the testimony of a then-deceased inmate who had testified at the original trial in 1973—was not adequately exhausted in state court; additionally, the claim failed on the merits because the theory on which the district court held that defendant was denied confrontation as to the prior testimony—i.e., the State’s failure, prior to the 1973 testimony, to disclose promises allegedly made to witness in return for his testimony—was not so obvious at the time of the 1998 trial as to render counsel’s performance deficient. (Judge Southwick dissented as to this issue. He would find the issue adequately exhausted in state court; and, on the merits, would find counsel provided constitutionally ineffective assistance of counsel by not objecting to the deceased witness’ testimony on Confrontation Clause grounds.)

United States v. Williams, 610 F.3d 271 (5th Cir. 2010)

In jury sentencing to life imprisonment pursuant to the Federal Death Penalty Act (“FDPA”), with respect to threshold intent element necessary to render defendant death-eligible under the FDPA, the district court reversibly erred in defining the term “act of violence.” An act of violence under the FDPA must involve the use of physical force. Under a proper definition of the term, the evidence was insufficient to support the jury’s finding of this threshold intent factor. Accordingly, the Fifth Circuit vacated defendant’s life sentences on the capital transporting counts and remanded for resentencing.

Dale v. Holder, 610 F.3d 294 (5th Cir. 2010)

Board of Immigration Appeals (“BIA”) erred in characterizing immigrant’s prior conviction for attempted assault under N.Y. Penal Law § 120.10(1)–(4) as a “crime of violence,” and hence an “aggravated felony,” under 8 U.S.C. § 1101(a)(43)(F). Although § 120.10(1) and (2) describe “crimes of violence,” (3) and (4) do not. Although the BIA reasoned that immigrant must have been convicted under (1) or (2) because only these subsections have a mens rea that supports attempt liability, the BIA did not take into account that New York law permits guilty pleas to hypothetical, legally impossible, or nonexistent crimes. That being the case, it could not be assumed that immigrant was convicted under (1) or (2).

United States v. Trejo, 610 F.3d 308 (5th Cir. 2010)

The government supplied an inadequate factual basis to support defendant’s guilty plea to conspiracy to commit “promotion” money laundering under the transportation prong of the federal money laundering statute, 18 U.S.C. §§ 1956(h) and 1956(a)(2)(A). To support defendant’s plea to this offense, the facts had to show that in transporting the funds, the defendant not only promoted the underlying drug-trafficking business but also that his intended purpose in so doing was to further the progress of the business; there must be more than simply the bare act of knowingly transporting the drug money. Although the factual basis for defendant’s plea did not adequately support the conviction in this respect, the error did not require reversal on plain-error review; the error was not “plain,” i.e., it was not “clear” or “obvious,” as the particular question had not been addressed by the Fifth Circuit until this case. (Judge Jolly filed an opinion concurring in the result only. He disagreed that there was an inadequate factual basis.)

White v. Thaler, 610 F.3d 890 (5th Cir. 2010)

Defendant was convicted of murder and aggravated assault in Texas state court. Counsel rendered ineffective assistance by (1) cross-examining defendant about his post-arrest silence, which allowed the prosecutor to impeach him with his failure to tell the police his exculpatory version of the events, and (2) failing to file a motion in limine or object to evidence of the murder victim’s pregnancy. Accordingly, the Fifth Circuit reversed the district court’s denial of federal habeas relief and remanded with instructions to grant the writ. (Chief Judge Jones dissented.)

United States v. Roberts, 612 F.3d 306 (5th Cir. 2010)

Where police arrived at door of apartment to arrest one defendant on traffic warrants, and defendant, after confirming that he was the subject of the warrants, stepped inside at the officers’ request to get identification to confirm that he was the proper arrestee, police did not violate the Fourth Amendment by following him into the apartment without a warrant. Under Washington v. Chrisman, 455 U.S. 1 (1982), a warrantless entry into a residence to maintain control over someone being placed under arrest is reasonable under the Fourth Amendment even in the absence of exigent circumstances. That was especially true here, where the officers had affirmative information about the presence of weapons in the apartment, and where defendant had stepped into a darkened room where at least three other persons were in the room. Nor did the officers’ protective sweep of the apartment violate the Fourth Amendment; the officers entered pursuant to a legitimate law enforcement purpose and had information about weapons; the circumstances on which the officers could reasonably rely in determining that a protective sweep was necessary were not limited to the threat posed by the defendant, but the potential threat of any of the other occupants of the apartment where weapons were clearly present. Moreover, the police did not violate the Fourth Amendment in seizing firearms without a warrant; although the illegal nature of the weapons (based on their possession by persons who had no lawful right to possess them) was not immediately apparent to the police when they entered the apartment. The police were nevertheless justified in temporarily seizing the firearms under the circumstances; the officers were entitled to maintain control over the weapons while they completed their investigation of the individuals inside the apartment; during that investigation, the police acquired knowledge that the two defendants could not lawfully possess firearms, thus justifying a permanent seizure.

Court of Criminal Appeals

Writs of Habeas Corpus

Ex parte Sinegar, 324 S.W.3d 578 (Tex.Crim.App. 2010); Remanded

Applicant pleaded no contest to aggravated kidnapping and was placed on deferred adjudication. His guilt was later adjudicated, and he was sentenced to 75 years in prison. Applicant subsequently filed a pro se habeas application under Article 11.07 alleging that he received ineffective assistance of counsel at the adjudication hearing because counsel failed to seek the recusal of the trial judge. Applicant’s motion for recusal hearing did not contain the notice, and the trial judge responded to that motion in an order saying that the motion would not be addressed.

HELD: Under no circumstances should the trial court have “otherwise ordered” when the motion would be presented. Tex. R. Civ. P. 18a, regarding the recusal of judges, applies in habeas proceedings conducted at the trial level; applicant satisfied those requirements.

Ex parte Rendon, 326 S.W.3d 221 (Tex.Crim.App. 2010); Affirmed

Applicant was charged with possession of cocaine with in­tent to deliver in a drug-free zone. He pled guilty and was sen­tenced to five years in prison. He filed a writ of habeas corpus alleging ineffective assistance of counsel predicated on erroneous advice about parole eligibility. Applicant submitted his writ application on the form for post-conviction writ applications that is specifically prescribed by CCA. Although applicant did not sign the writ application, his writ counsel did.

HELD: Article 11.14 of the Code of Criminal Procedure does not require that an applicant personally verify a post-conviction writ application. This is so regardless of whether an applicant has exclusive personal knowledge of the facts underlying his habeas claim or claims. Nevertheless, the writ application was not properly verified by applicant’s attorney as required by Rule 73.1(d) of the Rules of Appellate Procedure. Because this deficiency arose from a problem with CCA’s prescribed writ application form and through no fault of applicant or his attorney, CCA dismissed the writ without prejudice.

Appellant’s PDRs

Welsh/McKithan v. State, 324 S.W.3d 582 (Tex.Crim.App. 2010); Affirmed

CCA addresses whether under the cognate-pleadings approach of the step-one lesser-included-offense analysis in Hall v. State, 225 S.W.3d 525 (Tex.Crim.App. 2007), offensive-contact assault is a lesser-included offense of the charged offense of bodily-injury assault in an indictment alleging bodily injury by “kicking” the complainant (Welsh, PD-0811-09) and of the charged offense of aggravated sexual assault in an indictment alleging that the complainant was compelled to submit and par­tic­i­pate by the use of “physical force and violence” (McKithan, PD-0969-09). CCA also addresses McKithan’s claim that bodily-injury assault is a lesser-included offense of aggravated sexual assault.

HELD: CCA reaffirmed its analysis in Hall. Offensive-contact assault is not a lesser-included offense of the charged offenses in Welsh and McKithan, and bodily-injury assault is not a lesser-included offense of the charged offense in McKithan.

Uranga v. State, __S.W.3d__ (Tex.Crim.App. No. 0385-08, 11/17/10); Affirmed

A jury found appellant guilty of felony possession of meth. During the punishment phase of trial, the State introduced evidence of two prior convictions and a host of unadjudicated offenses. Included in these offenses is an incident that took place in 2006 when appellant drove his car onto someone’s yard to elude police. This was captured by the video camera in the police car. When the State offered the video into evidence and played it for the jury, a juror discovered that it was his lawn that had been damaged by appellant’s car. The court questioned the juror outside the presence of the jury regarding the incident and any potential bias. After the questioning, appellant requested a mistrial. The court denied the request, and the jury found that appellant was a habitual felony offender and assessed the punishment of life in prison.

Appellant argues that he was denied his right to a fair and impartial jury under the Texas Constitution because he “contends that we should presume harm from the victim-juror’s participation in assessing punishment and, therefore, that we should find error from the rejection of the motion for a mistrial.” COA concluded that the trial court was in the best position to weigh the believability of the juror’s repeated promises to both the court and the parties that he would not take into account his status as the victim of appellant’s extraneous criminal mischief. Therefore, to the extent that the record supports the trial court’s conclusion that the juror would remain unbiased—and absent any evidence to the contrary—COA did not find that a de novo review of the record affirmatively revealed a clear abuse of the trial court’s discretion in ruling on appellant’s motion for a mistrial.

HELD: The standard of appellate review was whether the trial court abused its discretion on the factual issue of actual bias; there was no error.

Meadoux v. State, 325 S.W.3d 189 (Tex.Crim.App. 2010); Affirmed

Appellant was convicted for murdering two victims during a single criminal transaction and trying to burn the victims’ bodies in a house fire. The trial court, in accordance with Texas Penal Code §§ 8.07(c) and 12.31(a), assessed punishment at life in prison without parole. On direct appeal, appellant argued that the prohibition on cruel and unusual punishments contained in the Eighth Amendment barred the State from subjecting a juvenile capital offender to life in prison without parole. COA, with little substantive analysis, rejected appellant’s claim and affirmed the trial court.

HELD: Appellant failed to show that according to contemporary national standards of decency, the punishment of life without parole for juvenile capital offenders is grossly disproportionate to the offense. CCA balanced these four penological goals: (1) appellant did not establish that there is presently a national consensus against imposing life without parole on a juvenile for the offense of capital murder; (2) a juvenile capital offender’s moral culpability, even if diminished as compared to that of an adult capital offender, is still great; (3) life without parole is a severe sentence, especially for a juvenile; (4) life without parole for juvenile capital offenders finds justification in the penological goals of retribution and incapacitation but not in the goals of deterrence or rehabilitation.

State’s PDRs

Pleache v. State, __S.W.3d__ (Tex.Crim.App. No. 1277-09, 11/3/10); Reversed & remanded

Appellant was charged with the second-degree felony of robbery. The indictment contained an enhancement “count” alleging that appellant had previously been convicted of an aggravated robbery. Appellant rejected the State’s offer to plead guilty to a reduced state-jail felony charge of theft from a person in exchange for a recommended sentence of two years in state jail. COA decided that the State’s post-guilt, pre-punishment-phase notice to appellant of the State’s intent to enhance appellant’s punishment with an aggravated-robbery conviction violated appellant’s federal constitutional due-process rights “to know the nature of the charges he is accused of and the consequences of a conviction before jeopardy attaches.”

HELD: CCA reaffirmed Villescas v. State, 189 S.W.3d 290 (Tex. Crim. App. 2006): “when a defendant has no defense to the enhancement allegation and has not suggested the need for a continuance in order to prepare one, notice given at the beginning of the punishment phase satisfies the federal constitution.”

State v. Wilson, 324 S.W.3d 595 (Tex.Crim.App. 2010); Affirmed

In 1987, appellee pled guilty to felony DWI and true to allegations of prior DWI convictions in 1983 and 1986. The trial court found appellee guilty of third-degree-felony DWI, fined him $750, and sentenced him to four years’ probation. The State revoked appellee’s probation within the first year and issued a capias for his arrest. Appellee was arrested 19 years later. In his writ for habeas corpus, appellee alleged that the DWI convictions that enhanced the 1987 offense to a felony were not final judgments under Article 42.01 of the Texas Code of Criminal Pro­cedure and requested that COA issue a writ of habeas corpus vacating his unlawfully obtained conviction and sentence. COA ruled in favor of appellee.

HELD: CCA granted review for three of the State’s contentions and rejected them all. First, use of the 1983 enhancement to elevate appellee’s misdemeanor to a felony was improper. A prior conviction may not be used as an enhancement if the conviction was not final, and until 1984, a DWI conviction on which the sentence was probated and the probation was never revoked was not deemed final. Second, appellee is not estopped from challenging the evidence pertaining to the prior DWI convictions that were used to enhance the misdemeanor offense to a felony. CCA has unanimously held that post-conviction habeas corpus is available when a felony conviction was rendered on a guilty plea when in fact the offense was a misdemeanor. Lastly, when a defendant has been convicted of an offense for which he claims that he is actually innocent, and he proves it, he will be relieved from the restraint of the conviction even though he may have pleaded guilty and confessed. Appellee successfully proved to the trial court that he was not guilty of the felony offense; the 1983 court order explicitly stated that the judgment was not final, and the statute under which he was convicted supports that court order.

Cardenas v. State, 325 S.W.3d 179 (Tex.Crim.App. 2010); Affirmed

Appellant was indicted for three counts of aggravated sexual assault of a child and a single count of indecency with a child. During voir dire, defense counsel asked potential jurors if they could “honestly ever fairly consider on an aggravated sexual as­sault of a child as little as five years in prison and give probation as an appropriate punishment.” More than 50 members of the panel stated that they could not consider the minimum punishment. After voir dire was complete, appellant challenged each of these jurors for cause, but the trial judge denied most of those challenges. The jury subsequently found appellant guilty and sentenced him to 20 years in prison. On appeal, appellant asserted that the trial court erred by denying his challenges for cause to 30 members of the jury panel because they indicated that they could not consider the full range of punishment. COA reversed appellant’s conviction and remanded the case for a new trial.

HELD: The trial court abused its discretion by denying appellant’s challenges for cause. Both the State and defense are entitled to jurors who can consider the entire range of punishment. Therefore, both sides may question the panel on the range of punishment and may commit jurors to consider the entire range of punishment. A commitment question may include any or all of the statutory elements and statutory manners and means contained in the indictment; the inclusion of evidentiary facts or non-statutory manners and means remains improper under the Standefer test.

Grant v. State, 325 S.W.3d 655 (Tex.Crim.App. 2010); Reversed & remanded

Appellant pled guilty to burglary of a habitation with a deadly weapon. After a jury trial on punishment, he was sentenced to 55 years in prison. COA reversed, holding that the trial court erred in denying appellant’s Batson challenge to the State’s exercise of peremptory strikes. COA found that the State’s explanation for striking a particular venire member was a pretext for racial discrimination because “there was no meaningful examination of [the member] regarding the reason the State used to strike him.”

HELD: The trial court’s ruling denying appellant’s Batson challenge was not clearly erroneous. COA misapplied the standard of review. COA should have given deference to the trial court’s evaluation of the prosecutors’ credibility and should not have given dispositive weight to the lack-of-questioning factor.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Garcia v. State, 2010 WL 2677703 (Tex.App.—San Antonio 7/7/10) (No. 04-09-00446-CR)

Officer had PC with respect to searching coffee can in D’s automobile, such that officer could freely place his finger inside can to see whether marijuana was underneath coffee, notwithstanding D’s argument that the destruction of his property (i.e., the coffee grounds) due to officer’s dirty finger rendered the search unreasonable. “[W]hile the destruction of property in carrying out a search is not favored, destroying property does not necessarily violate one’s constitutional rights.” Furthermore, the alleged destruction of coffee did not amount to a “taking” in violation of the Takings Clause. “When property has been seized pursuant to the criminal laws or subjected to in rem forfeiture proceedings, such deprivations are not ‘takings’ for which the owner is entitled to compensation.”

Settlemire v. State, 2010 WL 2720590 (Tex.App.—Fort Worth 7/8/10) (No. 2-09-214-CR)

DWI D’s confrontation rights not violated, even though sponsoring witness for breath test results and maintenance logs, who was the technical supervisor of the machine, did not supervise the machine’s use at time of D’s test. Testimony was not used to establish chain of custody, authenticity of sample, or accuracy of testing device.

Eubanks v. State, 2010 WL 2723176 (Tex.App.—Houston [1st Dist] 7/8/10) (No. 01-09-00833)

Affidavit supporting search warrant deemed sufficient to seize computer from D’s residence, even though complainant was wholly silent regarding any computers and even though complainant “saw him ‘put the [child porn] pictures under his bed or in the closet in his bedroom.’ . . . Although neither complainant specifically mentioned the use of a digital camera or a computer, it was reasonable for the magistrate to infer from the information in the affidavit that the complainants were photographed and that a digital camera and computer could have been used in the process of taking inappropriate photographs of the girls and could probably be found on the premises to be searched.”

Runningwolf v. State, 2010 WL 2730747 (Tex.App.—Amarillo 7/12/10) (No. 07-09-00182-CR)

Letter sent by preacher purporting to be a default judgment gave rise to criminal conviction of preacher for “simulating legal process,” even though the letter begins with the pronouncement, “[b]y the Authority and Power delegated to me solely by the Grace of God” issued by the “Kingdom of Heaven Ecclesiastic Court.”

Gutierrez v. State, 2010 WL 2788249 (Tex.App.—San Antonio 7/14/10) (No. 04-09-00237-CR)

Officer had RS to stop D for speeding, despite officer’s admission that he failed to calibrate his radar using a tuning fork. “[D] challenges the State’s reliance on the radar reading because on voir dire examination [first officer] stated he had been trained to use a tuning fork to determine the accuracy of a radar unit, and the officer admitted he did not use a tuning fork on the radar unit. However, [second officer], who testified he was familiar with the type of radar equipment used by [first officer], told the jury that using the ‘self-test’ function on the unit is the proper method to determine the radar equipment was operating properly. Moreover, the radar reading merely confirmed [first officer’s] initial observation that [D] appeared to be traveling faster than the posted speed limit.”

Brown v. State, 2010 WL 2772488 (Tex.App.—San Antonio 7/14/10) (No. 04-09-00372-CR)

The “missing links” in the chain of custody—including failures to label and uncertainty as to which officer collected the evidence—did not warrant exclusion. “[T]he drug evidence was not weighed, inventoried, or initialed at the scene, and the uncertainty as to whether it was [Officer 1] or [Officer 2] who collected each particular item of evidence . . . there was no time or date noted on the evidence card signed by [Officer 2] that he placed into the storage locker with the evidence . . . and no identifying number on the locker where the evidence was stored. . . . Further, [Lieutenant] failed to initial the envelope of drugs when he removed it from the locker and mailed it to the DPS lab for testing. Finally, one of the baggies introduced in court had a hole in it, which [D] argues suggests the evidence was tampered with. . . . Gaps or theoretical breaches in the chain of custody do not affect the admissibility of the evidence, absent affirmative evidence of tampering or commingling.”

State v. Bowman, 2010 WL 2813504 (Tex.App.—Fort Worth 7/15/10) (No. 2-09-140-CR)

Drugs found in D’s vehicle suppressed—despite officers’ observation of D receiving a black bag at location described by informant—because traffic stop was performed by another officer, who, according to court, found drugs pursuant to unlawful search incident to arrest. “[D]espite the invalidity of the search as one incident to [D’s] arrest, the State points to language in Gant that affirmed the viability of the automobile exception and contends that the officers on the scene had independent probable cause to search [D’s] car based on their collective knowledge and observations of the drug transaction in the Albertson’s parking lot. . . . The only witnesses at the suppression hearing were the investigating and arresting officers, and although their testimony clearly constitutes probable cause if believed, there are suggestions in the record that the trial court questioned whether [D] actually committed traffic violations and whether there was independent probable cause to search [D’s] car.”

Parker v. State, 2010 WL 2784428 (Tex.App.—Houston [14th Dist] 7/15/10) (No. 14-09-00104-CR)

Failure to identify in affidavit the particular STD and duration thereof was not fatal to warrant to draw blood. “[A]lthough the better practice would have been to specify the particular type of STD and its duration (and facts supporting the affiant’s knowledge of such things), because of the commonly understood nature of STDs, the affiant’s failure to so specify did not prevent the magistrate from concluding there was probable cause to believe [D’s] blood constituted evidence of the offense.”

Pecina v. State, 2010 WL 2825663 (Tex.App.—Fort Worth 7/15/10) (No. 2-05-456-CR)

Where Miranda warnings were given by magistrate who, along with police, were visiting D bedside at the hospital, waiver of D’s right to counsel was invalid. Magistrate asked D if he wanted a court-appointed lawyer, and he said he did. Magistrate asked D if he still wanted to talk to the police officers, and he said he did. But D did not initiate the questioning by the police after asserting his right to counsel. “[I]f the dissent’s arguments are correct, the police need only take a magistrate with them to conduct any custodial interrogation and ‘cross their fingers’ behind their backs while letting the magistrate first administer the Miranda warnings, and then they may ignore with impunity any attempt by the defendant to request appointment of counsel from the magistrate, making a mockery of Miranda.”

Collins v. State, 318 S.W.3d 471 (Tex.App.—Amarillo 7/22/10)

Where D was simultaneously convicted of two distinct DWIs, one resulting in imprisonment (“Conviction A”) and the other resulting in probation (“Conviction B”), D was not entitled, upon revocation of the probation, to credit for time served in prison on Conviction A. “At most, the period contemplated should begin either at the time he began serving his Conviction A sentence or at the time he moved to revoke his probation. . . . According to the record before us, appellant was not jailed for the crime underlying Conviction B prior to the time the trial court revoked his probation. Indeed, his plea bargain excluded that since he was granted probation; that is, he was not supposed to go to jail for having committed that offense. Instead, his imprisonment arose from the sentence levied in response to Conviction A. Consequently, the circumstances at issue do not fit those contemplated by art. 42.03 § 2(a)(1).”