July/August 2013 SDR - Voice for the Defense Vol. 42, No. 6

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Saturday, September 7th, 2013

Voice for the Defense Volume 42, No. 6 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

In drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify a blood test without a warrant. Missouri v. McNeely, 133 S. Ct. 1552 (2013).

        D’s motion was granted to suppress the results of a blood test where his blood was taken for chemical testing without obtaining a search warrant. The Missouri Supreme Court affirmed the grant of the motion. Certiorari was granted to resolve a split of authority; the U.S. Supreme Court affirmed the Missouri Supreme Court.

        The question was whether the natural metabolization of alcohol in the bloodstream presented a per se exigency that justified an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases. The Court held that it did not. While the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable has to be determined on the totality of the circumstances. Any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests. The general importance of the interest in combating drunk driving does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case. Because the case was argued on the broad proposition that drunk-driving cases present a per se exigency, the Court was not provided with an adequate analytic framework for a detailed discussion of all the relevant factors to determine the reasonableness of acting without a warrant.

If a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, it is not an aggravated felony under the Immigration and Nationality Act. Moncrieffe v. Holder, 133 S. Ct. 1678 (2013).

        The Board of Immigration Appeals affirmed an immigration judge’s deportation order that found petitioner’s conviction for possession of marijuana with intent to distribute under Ga. Code § 16-13-30(j)(1) was an aggravated felony and a Controlled Substances Act (CSA) offense. The Fifth Circuit denied review. The U.S. Supreme Court reversed and remanded.

        Illicit drug trafficking, a generic crime and aggravated felony, encompassed all state offenses proscribing conduct punishable as a felony under the CSA. The generically defined federal crime in 21 U.S.C.S. § 841(a)(1) was any felony punishable under the CSA, 18 U.S.C.S. § 924(c)(2), not just any CSA offense. The alien’s conviction could correspond to either the CSA felony or the CSA misdemeanor. That ambiguity meant the conviction did not “necessarily” involve facts that corresponded to an offense punishable as a felony under the CSA. Under the categorical approach, the alien was not convicted of an aggravated felony. Sharing a small amount of marijuana for no remuneration, let alone possession with intent to do so, did not fit easily into the everyday understanding of trafficking, which ordinarily meant some sort of commercial dealing. It was not sensible that a state statute that criminalized conduct that the CSA treated as a misdemeanor should be designated an aggravated felony.

Fifth Circuit

Sexual assault of a child is firmly considered statutory rape and, therefore, a crime of violence. United States v. Cabecera Rodriguez, 698 F.3d 220 (5th Cir. 2012), reh’g en banc granted, 701 F.3d 1080 (5th Cir. 2012).

        Graves concurred, rejecting the age-differential argument but urging review of the question of the generic age of sexual consent, given conflicting Fifth Circuit decisions.

Contrary to the district court’s finding, the hearing on Texas prisoner’s competency to be executed was procedurally sufficient. Green v. Thaler, 699 F.3d 404 (5th Cir. 2012).

        The district court ruled that the state competency proceeding violated due process by failing to allow D to call forth fact witnesses who would testify as to his medical records and by failing to apply the proper constitutional standards. The Fifth Circuit held that the competency hearing did not violate due process because D was able to testify and introduce expert testimony, including medical records stipulated as accurate. D failed to present clear and convincing evidence to rebut the presumption in favor of upholding the state court’s competency finding. The Fifth Circuit also rejected the contention that habeas findings adopted verbatim from those submitted by the State are not entitled to deference. The Fifth Circuit vacated the district court’s stay of execution.

        Green v. Thaler, 133 S. Ct. 474 (2012), denied a subsequent application for stay of execution.

District court had no authority to strike the appeal-waiver provision of D’s plea agreement with the government; district court’s authority was limited to either rejecting the agreement or accepting it in full. United States v. Serrano-Lara, 698 F.3d 841 (5th Cir. 2012).

When a federal district court sentences a defendant without ordering restitution and finds that 18 U.S.C. § 3663A(c)(3) applies (that it is simply too burdensome or complicated to calculate restitution), the mandate in § 3663A(a)(1) that a court shall order restitution does not authorize that court to reopen its sentencing judgment to add a restitution order. United States v. Murray, 700 F.3d 241 (5th Cir. 2012). 

        Given that the district court had declined, at Ds’ sentencings and in reliance on § 3663A(c)(3), to impose restitution, it had no authority to reopen the proceedings several months later and impose restitution. Dolan v. United States, 130 S. Ct. 2533 (2010), was distinguishable because § 3663A(c)(3) (which is applicable only to property crimes) was not implicated in the restitution order at issue in that case (for assault). The Fifth Circuit reversed Ds’ restitution orders.

        Secondly, the appeal-waiver provision of one D’s plea agreement—barring an appeal of the “sentence imposed”—did not bar D’s appellate challenge to the district court’s belated imposition of a restitution order. Plea agreements do not bar appellate claims unless the plain language of the plea agreement unambiguously applies to the claim. Here, it was not just plausible—it was more likely that the appeal waiver was not meant to apply to D’s claim that the restitution order was imposed outside the authorized sentencing process.

D’s federal conviction for conspiracy to distribute meth­amphetamine, a violation of 21 U.S.C. § 846, was a drug trafficking offense supporting a 16-level enhancement under USSG § 2L1.2(b)(1)(A)(i). United States v. Rodriguez-Escareno, 700 F.3d 751 (5th Cir. 2012).

In order to convict a defendant under 18 U.S.C. § 2251(a), the government is not required to prove that the defendant knew of the interstate nature of the materials used to produce the images of child pornography at issue. United States v. Terrell, 700 F.3d 755 (5th Cir. 2012).

        Nor is there any requirement that the individual who exploited the child also be the person who produced the images.

Where Texas state prisoner initially presented a “mixed” federal habeas petition (with one exhausted claim and various unexhausted claims) and, although the ex­hausted claim was dismissed with prejudice on the mer­its, the unexhausted claims were dismissed without prej­u­dice due to failure to exhaust prisoner’s subsequent federal habeas petition, raising only the previously unexhausted (but now exhausted) claims was not an unauthorized second or successive petition. Strickland v. Thaler, 701 F.3d 171 (5th Cir. 2012).

        The Fifth Circuit reversed the district court’s dismissal of that petition and remanded.

District court committed error that was clear or obvious when it ordered D’s supervised-release-revocation sentence to run partially concurrently with a state sentence D had already served. United States v. Kirklin, 701 F.3d 177 (5th Cir. 2012).

        Neither 18 U.S.C. § 3584(a) nor any other provision authorizes an order that a sentence be served concurrently with a discharged state sentence; indeed, that would make no sense. However, under the third and fourth prongs of plain-error review, the Fifth Circuit declined to vacate the sentence. Even as of the date of the opinion, D was due to be released in less than 30 days, and even more time would have passed by the time it was possible to resentence D. A reduction of no more than a few days was possible, and it was not evident that the district court would make even that reduction. Under these circumstances, D’s substantial rights were not affected, and failure to correct the error would not impugn the fairness, integrity, or public reputation of judicial proceedings.

D’s two convictions and sentences—one for possession of a firearm and one for possession of ammunition—vio­lated Double Jeopardy because the record did not show that the firearm and ammunition were received or possessed on different occasions. United States v. Meza, 701 F.3d 411 (5th Cir. 2012).

        Fifth Circuit sua sponte noticed that D’s two separate convictions and sentences under 18 U.S.C. § 922(g)(1)—one for felon in possession of a firearm and one for felon in possession of ammunition—were multiplicitous and violated the Double Jeopardy Clause. The error met the standard for correction on plain-error review because D received consecutive 120-month sentences (the statutory maximum) on each count for a total sentence of 240 months, whereas he was properly subject to no more than 120 months. The Fifth Circuit vacated D’s sentences and remanded for dismissal of one of the counts at the government’s election, to be followed by resentencing on the remaining count.

Upon granting the victim mandamus review, the Fifth Circuit found no generalized proximate cause requirement for child pornography victim to recover restitution from a defendant possessing images of her abuse. In re Amy Unknown, 701 F.3d 749 (5th Cir. 2012) (en banc).

        Nothing in the Crime Victims’ Rights Act (CVRA) grants crime victims the right to appeal; the CVRA grants crime victims only mandamus review. The Fifth Circuit pretermitted the question whether to apply the slightly less onerous supervisory mandamus power of review to victim’s mandamus petition, as she was entitled to mandamus relief even under traditional mandamus review.

        Except for the “catch-all” provision of 18 U.S.C. § 2259(b)(3)(F), a restitution award under § 2259 does not require proof that the offender’s conduct was the proximate cause of the victim’s losses. Thus, § 2259 requires a district court to engage in a two-step inquiry. First, the district court must determine whether the person seeking restitution is a crime victim under § 2259(c). Second, the district court must ascertain the full amount of the victim’s losses as defined under § 2259(b)(3)(A)–(F), limiting only § 2259(b)(3)(F) by the “proximate result” language contained in that subsection, and craft an order guided by the mechanisms described in § 3664 with a particular focus on its mechanism for joint and several liability. Under this standard, victim was entitled to a remand for entry of a restitution order reflecting her full losses, not limited by any proximate-cause requirement; however, as to the second defendant, because only he appealed, and neither the government nor the victim sought review of the restitution order, the Fifth Circuit could not, consistently with Greenlaw v. United States, 554 U.S. 237 (2008), order the restitution order to be increased, even though the district court erred in failing to award the victim the full amount of her losses. NOTE: The federal circuits are divided on this issue.

Because 21 U.S.C. § 844 defendant’s five-year prison sentence and three-year supervised-release term exceeded the maximums authorized by the post-Act version of § 844, the Fifth Circuit vacated D’s sentence and remanded. United States v. Berry, 701 F.3d 808 (5th Cir. 2012).

        The holding of Dorsey v. United States, 132 S. Ct. 2321 (2012)—namely, that the Fair Sentencing Act of 2010’s reduction in the statutory penalties of 21 U.S.C. § 841 applies to pre-Act offenders sentenced after the Act’s effective date—applies with equal force to the Act’s reduction in the statutory penalties of § 844 (penalizing simple possession).

Court of Criminal Appeals

Officer lacked reasonable suspicion to stop D for the traffic code violation. Abney v. State, 394 S.W.3d 542 (Tex.Crim.App. 2013).

        D filed a motion to suppress evidence after he was found in possession of marijuana during a traffic stop. The trial court denied the motion, and D subsequently pled nolo contendere to the possession charge. D appealed the conviction, and COA held that the trial court did not err by denying his motion to suppress. CCA reversed COA.

        COA erred when it held that officer had reasonable suspicion to stop D for the traffic violation under Tex. Transp. Code § 544.004 of driving in the left lane without passing when a sign prohibited such action. Officer did not provide specific, articulable facts that would lead him to reasonably suspect un­der U.S. Const. amend. IV that D was engaged in a traffic of­fense because there was no evidence to support an assumption that D had driven past the sign, other evidence indicated that the sign was actually located 27 miles away from the stop, and the facts supported that D was driving in the left lane to make a left turn, which would be an appropriate action as it was clearly illegal to make a left turn from the right lane.

COA erred in finding that D’s prior North Carolina conviction for “Taking Indecent Liberties With Children” was substantially similar to the narrower Texas offense of “Indecency with a Child.” Anderson v. State, 394 S.W.3d 531 (Tex.Crim.App. 2013).

A complete analysis of the rejection of D’s lesser-included offense instruction would have considered intermediary offenses and the offenses that were submitted to the jury. Hudson v. State, 394 S.W.3d 522 (Tex.Crim.App. 2013).

        D was convicted of capital murder and sentenced to life in prison for intentional murder of her 13-year-old adopted son in the course of a kidnapping, in violation of Tex. Penal Code § 19.03(a)(2). COA reversed, finding that D should have received a requested jury instruction on the lesser-included offense of manslaughter, § 19.04. CCA reversed COA and remanded.

        The jury charge contained instructions regarding two lesser-included offenses: murder, § 19.02(b)(1), and injury to a child, § 22.04(a)(1). The victim had been beaten with a cord, a mop handle, a rake, and a baseball bat; there was evidence that the victim had also been confined to his room and deprived of food for days. First responders noticed bruising stripes from the boy’s neck to his feet. D’s statements indicated that she was seeking to discipline him. COA conducted its error analysis without considering possible intermediate lesser-included offenses that the evidence might have supported, and it conducted its harm analysis without considering the lesser-included offenses that were actually submitted to the jury. A complete analysis of whether a manslaughter instruction should have been given would consider whether the evidence established one of these offenses and whether such a circumstance prevented D from being entitled to the submission of manslaughter.

Because the law of parties was in the abstract portion of the jury charge and was supported by sufficient evidence, it should be taken into account for the purpose of determining whether to submit a lesser-included offense; in light of the law of parties, there was no evidence that D committed only the crime of robbery. Yzaguirre v. State, 394 S.W.3d 526 (Tex.Crim.App. 2013).

        COA reversed D’s conviction of aggravated robbery and remanded for a new trial on the basis that the trial court committed some harm by not submitting the lesser-included offense of robbery. CCA reversed COA and affirmed the trial court.

        COA held that the charge did not allow the jury to convict D under the law of parties because it was not contained in or referred to by the jury charge’s application paragraph. Consequently, COA concluded that D’s testimony that he did not have a weapon was sufficient to raise the lesser-included offense of robbery. CCA held that because the law of parties was contained in the abstract portion of the jury charge and was supported by sufficient evidence, it was an issue that should be taken into account for the purpose of determining whether to submit a lesser-included offense. Because there was no evidence, in light of the law of parties, that D committed only the crime of robbery, the trial court was correct to deny the submission of the lesser-included offense of robbery.

As a temporary guest in a hotel room, D did not have the objective expectation of privacy of overnight guests. Ex parte Moore, 395 S.W.3d 152 (Tex.Crim.App. 2013).

        A motion to suppress evidence found during the execution of a search warrant on a motel room was denied, and D was convicted of possession of cocaine. The trial court recommended denying habeas corpus relief. In denying relief, it was determined that counsel was deficient due to a waiver of the complaints raised in the motion to suppress. CCA denied habeas corpus relief.

        No prejudice resulted from counsel’s deficient performance because D did not have standing to challenge the search of the motel room under Tex. Const. art. I, § 9 and U.S. Const. amend. IV. Overnight guests of a registered hotel guest shared the registered guest’s reasonable expectation of privacy in the hotel room. Whether a temporary guest shared in the registered guest’s reasonable expectation of privacy is determined by evaluating the totality of the circumstances. D’s subjective expectation of privacy was not one that society was prepared to recognize as objectively reasonable under the circumstances. He was not a registered guest of the room, and he had no property or possessory interest therein. There was no evidence that he had personal belongings in the room or that he intended to stay overnight.

Tex. Fam. Code § 51.095(a)(1)(A) does not prohibit the presence of law-enforcement officers when a magistrate reads the required statutory rights to a juvenile. Herring v. State, 395 S.W.3d 161 (Tex.Crim.App. 2013).

        Defendant juvenile filed a motion to suppress his signed statement confessing to an aggravated robbery, but the motion was denied. D was found guilty of aggravated robbery. COA and CCA affirmed.

        D argued that his statement was taken in violation of Tex. Fam. Code § 51.095 because armed law enforcement officers were present when he was given the magistrate’s warnings. Be­cause § 51.095(a)(1)(A) did not explicitly prohibit the presence of law enforcement officers when a magistrate read the required statutory rights to a juvenile, while other subsections of § 51.095 expressly forbade the presence of law enforcement officers during other kinds of proceedings, CCA concluded that the legislature expressed its intent that such a prohibition should not apply to the reading of the statutory warnings.

The record did not support officer’s warrantless entry into D’s home because nothing suggested that destruction of evidence was imminent; however, COA failed to address the contention that officer’s entry was justified by a belief that the child required immediate aid. Turrubiate v. State, 399 S.W.3d 147 (Tex.Crim.App. 2013).

        A police officer had been informed by an investigator with the Texas Department of Family and Protective Services that a strong odor of marijuana was emanating from D’s home. The six-month-old child of D’s girlfriend lived at the home. When officer knocked on the door, D cracked open the door, and officer smelled marijuana. Officer determined that entry was required to prevent the marijuana from being destroyed. He forcibly entered the home and D was arrested. The trial court denied D’s motion to suppress, and he was convicted of possession of marijuana. COA reversed the order denying D’s motion to suppress. CCA reversed and remanded to COA to decide the State’s arguments with regard to the safety of the child.

        Nothing in the record suggested that destruction of evidence was imminent. D did not engage in any conduct suggesting that he intended to destroy evidence. The record did not support officer’s warrantless entry into D’s home on that basis. However, COA erred in failing to address the State’s contention that officer’s entry was justified by an objectively reasonable belief that the child required immediate aid.

D could not be ordered to pay court-appointed attorney’s fees because the court made no findings to disprove D’s indigence. In re Daniel, 396 S.W.3d 545 (Tex.Crim.App. 2013).

        Inmate applicant filed a habeas corpus writ in the District Court of Bexar County challenging the clerk’s assessment of appointed attorney fees as a cost of court. The Bexar County District Clerk had issued the bill of cost more than nine years after applicant’s conviction and sentence. In addition to the $295 that was specifically assessed in the judgment as court costs in 2002, the belated bill of cost assessed a cost for an appointed attorney for $7,945. Applicant alleged that as of the time of his trial and appeal nine years earlier, he had been declared indigent. The trial court recommended that the writ be granted. CCA ordered the district clerk to amend the bill of cost to remove the charge for counsel fees.

        The clerk’s 2011 bill was not predicated upon any findings whatsoever with respect to the critical elements of Tex. Code Crim. Proc. art. 26.05(g)—D’s financial resources and ability to pay as of the time of trial. Because no such findings were made, there was no basis for the assessment of attorney fees. CCA treated the pleading as an application for writ of mandamus to compel the clerk to remove the attorney’s fee charge. The challenge was not the proper subject of a statutorily governed post-conviction application for writ of habeas corpus because it did not implicate the fact or duration of D’s confinement.

D did not forfeit his restitution order objection; he had no opportunity to object and thus could not have preserved error. Burt v. State, 396 S.W.3d 574 (Tex.Crim.App. 2013).

        A jury convicted D of misapplication of fiduciary property. The judgment contained a restitution order for $591,785. D filed a motion for new trial, but it was denied. COA affirmed, holding that under Tex. R. App. P. 33.1(a), D had failed to preserve the restitution issues by failing to raise them in the trial court. CCA reversed and remanded to COA for consideration of the merits of D’s restitution claims.

        CCA found that in the circumstances surrounding the judg­ment, D did not forfeit his complaint as he had no opportunity to object and therefore could not have preserved error. D could not have objected during the oral pronouncement because at that point, he could not have known that the sentence in the written judgment would be different from the orally pronounced sentence, or that there might be error in the amount of restitution. Similarly, when D filed his motion for new trial, the written judgment had not yet issued, so D could not have known to include the restitution issues in the motion. The trial court ruled on the motion for new trial that same day, thus preventing D from amending the motion to include the restitution issues.

D’s conviction for fraudulent use or possession of identifying information did not violate the in pari materia doctrine; the statute does not conflict with the failure to identify statute because the statutes differ in meaningful ways. Jones v. State, 396 S.W.3d 558 (Tex.Crim.App. 2013).

        D was convicted under Tex. Penal Code § 32.51(b) for fraudulent use or possession of identifying information. D argued that her conviction under § 32.51(b) violated the doctrine of in pari materia because that statute conflicted with Tex. Penal Code § 38.02, the statute defining the offense of failure to identify, which carried a lower penalty. D argued that she should have been charged under § 38.02(b), the more lenient statute. CCA agreed with COA that the in pari materia doctrine did not preclude D’s prosecution under § 32.51. Section 38.02 applied to a much narrower class of persons than § 32.51. The plain language and placement of each statute in the Texas Penal Code also indicated that § 32.51 and § 38.02 did not have the same subject or purpose. Moreover, neither offense appeared to be a more narrowly hewn version of the other. Because the in pari materia doctrine sought to give full effect to legislative intent, § 32.51(e) was the most authoritative proof that the legislature did not intend to limit the State to prosecution under § 38.02 in circumstances in which § 32.51 was equally applicable. Thus, given that § 32.51 and § 38.02 had different subjects and purposes and were aimed at different groups of people, it was clear to the court that the two were not in pari materia, particularly in light of § 32.51(e).

The outcry statute is a hearsay exception statutorily limited to live testimony of the outcry witness; the child-complainant’s own videotaped statement does not meet the requirements for being admitted under that statute. Bays v. State, 396 S.W.3d 580 (Tex.Crim.App. 2013).

        D was convicted of indecency with a child by contact under Tex. Penal Code § 21.11(a)(1). COA reversed. CCA affirmed COA.

        The trial court impermissibly admitted the child victim’s videotaped statement under the outcry statute, Tex. Code Crim. Proc. art. 38.072. The child victim’s own videotaped state­ment did not meet the requirements for being admitted under the outcry statute because the statutory hearsay exception for outcry evidence applied only when the child’s statements were conveyed through the testimony of the properly designated outcry witness. CCA further held that the admissibility of a child’s videotaped statement was governed by the more specific video statute, Article 38.071, as opposed to the more general outcry statute, and that the requirements of the video statute were not met because the child victim was available to testify at trial.

D had standing to challenge the search of his aunt’s backyard and the seizure of his dogs because he had a reasonable expectation of privacy. State v. Betts, 397 S.W.3d 198 (Tex.Crim.App. 2013).

        D was indicted for cruelty to animals. The trial court granted D’s motion to suppress. COA and CCA affirmed. Even though D no longer lived at the residence, he had permission from his aunt to keep his dogs in her backyard and to enter the premises to water and feed the dogs, which he did on a daily basis. The backyard was fenced on three sides, the fourth side was enclosed by the neighbor’s fence, and the dogs were kept approximately 70 yards from the road. Because the officers did not have a warrant to enter the yard, and the State did not argue that an exception to the warrant requirement existed, officers were not authorized by the plain view doctrine to make a warrantless entry into the yard to seize the dogs. The fact that officers could see the dogs from afar did not mean that they were entitled to go onto the property and seize the dogs without a warrant. Because the community caretaking function was not argued by the State at trial or to COA, the State could not rely on that theory on appeal.

The bigamy provision of Tex. Penal Code § 22.011(f) was not found facially unconstitutional because D failed to show that it had no valid application. State v. Rosseau, 396 S.W.3d 550 (Tex.Crim.App. 2013).

        COA properly held that D failed to prove that § 22.011(f) was facially unconstitutional under the Equal Protection Clause, U.S. Const. amend. XIV, because it had at least one valid application, namely the punishment of bigamists who sexually assaulted their purported spouses. Because D failed to show that it was unconstitutional in every respect, § 22.011(f) was not facially unconstitutional.

Officer did not have RS to stop D because officer did not actually see D’s traffic violation. State v. Duran, 396 S.W.3d 563 (Tex.Crim.App. 2013).

        D was charged with DWI. The trial court granted his motion to suppress evidence from the traffic stop, finding there was no reasonable suspicion for the stop. COA reversed the trial court based on a DVD recording of the stop. CCA reversed COA and reinstated the trial court’s decision granting the motion to suppress.

        The officer was en route to a domestic call at a speed of over 60 miles per hour in a 45-mile-per-hour zone when he saw D, approaching from the opposite direction, make a left turn in front of officer, causing officer to brake. Officer turned right to follow D. The DVD recording showed that D’s tire swung slightly across the center line. Officer’s report stated that he stopped D for failing to yield the right of way; however, officer was mistaken in believing that he had the right of way: because he was speeding, he did not. The issue presented to the trial court was therefore a factual issue: Did the officer actually see the center line violation shown in the DVD? The trial court decided that he did not, because that violation was not mentioned in the report, and it was too minor to cause officer to abandon his domestic call and was not visible before he abandoned the domestic call. CCA held that the appellate courts were required to defer to that determination of fact. The totality of the trial judge’s findings supported its reasonable conclusion that officer did not see the center stripe violation.

COA lacked the benefit of recent decisions changing the requirements for counsel to advise of the immigration consequences of guilty pleas. Ex parte Enyong, 397 S.W.3d 208 (Tex.Crim.App. 2013).

        D filed a habeas application claiming his counsel provided ineffective assistance by failing to advise him of the immigration consequences of his guilty pleas. The trial court denied relief. COA reversed. The State filed this petition, contending COA erred in holding that Padilla v. Kentucky, 559 U.S. 356 (2010), applies retroactively to the collateral review of a state conviction that was final when the Padilla opinion was issued. CCA vacated COA’s judgment and remanded.

        The U.S. Supreme Court recently held that Padilla does not have retroactive effect. Chaidez v. United States, 133 S. Ct. 1103 (2013). CCA adopted that reasoning as a matter of state law in Ex parte De Los Reyes, 392 S.W.3d 675 (Tex.Crim.App. 2013). In the instant case, COA did not have the benefit of Ex parte De Los Reyes.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Deemed invalid was inventory search that continued to progress after D’s father showed up at the scene to pick up vehicle, despite officer’s testimony that father failed to provide proof of insurance needed to release vehicle to father. State v. Cashion, No. 05-11-00334-CR (Tex.App.—Dallas Oct 26, 2012), pet refused.

        Local police policy did not expressly require proof of insurance, observed the court. Rather, the policy merely requires the arresting officer to “verify the person taking possession of the vehicle is a licensed driver.”

Odor of marijuana detected by officer during conversation with driver triggered PC to search, not only the passenger compartment but also the trunk. Williams v. State, No. 05-11-00982-CR (Tex.App.—Dallas Oct 31, 2012), pet refused.