March 2011 SDR

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Tuesday, March 1st, 2011

In this issue: Abbott v. United States; Los Angeles County, CA v. Humphries; United States v. Pack; United States v. Blocker; United States v. Bustillos-Peña; United States v. McCann; United States v. Ortiz; United States v. Clayton; United States v. Goncalves; United States v. Chavira; Stone v. Thaler; Pierce v. Holder; Garland v. Roy; United States v. Zapata-Lara; Gray v. Epps; Foster v. State; Wirth v. State; Lujan v. State; Witkovsky v. State; Martinez v. State; Benson v. Montgomery County Dist. Clerk; Ex parte Panetti; Ex parte Martinez; State v. Fine; State v. Posey; Rogers v. State; Winningham v. State; Banda v. State; Tucker v. State; State v. Roberts; Harpole v. State; Alonzo v. State; State v. Klendworth; Bresee v. State; State v. Rothrock; Ervin v. State; Johnson v. State; Gilmore v. State; McCormick v. State; Barriere v. State

Supreme Court

Abbott v. United States, 562 U.S. ___, 09-479 (11/15/10); Affirmed: Ginsburg (8-0)

In these cases, the defendants engaged in drug trafficking using a firearm. Both defendants received an additional five-year sentence for using or carrying a firearm in furtherance of a drug trafficking crime pursuant to 18 U.S.C § 924(c)(1)(A), even though they received longer mandatory minimum sentences under the Armed Career Criminal Act. On appeal, they argued that the sentencing enhancement provided by 18 U.S.C. § 924(c)(1)(A) should run concurrently with their already longer minimum sentences. The Third and Fifth Circuits rejected the defendants’ arguments.

HELD: In accord with the courts below, and in line with the majority of the Courts of Appeals, a defendant is subject to a mandatory, consecutive sentence for a § 924(c) conviction, and is not spared from that sentence by virtue of receiving a higher mandatory minimum on a different count of conviction. Under the “except” clause, a § 924(c) offender is not subject to stacked sentences for violating § 924(c). If he possessed, brandished, and discharged a gun, the mandatory penalty would be 10 years, not 22. He is, however, subject to the highest mandatory minimum specified for his conduct in § 924(c), unless another provision of law directed to conduct proscribed by § 924(c) imposes an even greater mandatory minimum. Justice Elena Kagan did not take part in the decision because of her involvement in the case as Solicitor General.

Los Angeles County, CA v. Humphries, 562 U.S. ___, 09-350 (11/30/10); Reversed, remanded: Breyer (8-0)

Craig and Wendy Humphries were accused by one of their children of abuse. They were charged with child abuse and felony torture, but the charges were dismissed once it became clear the allegations were false. Despite the dismissal, the Humphries were placed on California’s Child Abuse Central Index (CACI)—a database for known and suspected child abusers. The Humphries sued L.A. County and various officials in a California federal district court, arguing that California’s maintenance of the CACI violates the Due Process Clause of the Fourteenth Amendment because identified individuals are not given fair opportunity to challenge the allegations. The district court dismissed their claims. On appeal, the U.S. Court of Appeals for the Ninth Circuit reversed, holding that the erroneous listing of the Humphries on the CACI violated the Due Process Clause. The Humphries then moved for attorneys’ fees. The Ninth Circuit awarded the fees, reasoning that the limitations to liability established in Monell v. New York City Dept. of Social Servs., 436 U.S. 658 (1978), do not apply to claims for declaratory relief.

HELD: L.A. County does not have to pay attorneys’ fees in the case. Monell applies to claims against municipalities for prospective relief as well as claims for damages. Justice Kagan did not take part because of her involvement in the case as Solicitor General.

Fifth Circuit

United States v. Pack, 612 F.3d 341 (5th Cir. 2010)

Assuming arguendo that defendant (a passenger in a vehicle stopped for speeding) had “standing” to assert a violation of his Fourth Amendment rights arising from an overlong detention (the district court found that he did not have “standing”), defendant still did not make out a violation of his Fourth Amendment rights:

(1) As made clear in United States v. Brigham, 382 F.3d 500 (5th Cir. 2004) (en banc), an officer may, in the course of a traffic stop, question and require identification of passengers and run computer checks on them.

(2) Turning to the question of reasonable suspicion, the Fifth Circuit held that the later en banc decision in Brigham had abrogated the requirement, found in United States v. Dortch, 199 F.3d 193 (5th Cir. 1999), of particularized suspicion of a specific crime, in the sense of something like or generally equivalent to direct evidence of a particular, specific offense. However, Brig­ham does require both the scope and length of the officer’s investigation to be reasonable in light of the facts articulated as having created the reasonable suspicion of criminal activity; each crime he investigates should, if established, be reasonably likely to explain those facts.

(3) After Brigham, a detention during a valid traffic stop does not violate the detainees’ Fourth Amendment rights where it exceeds the amount of time needed to investigate the traffic in­frac­tion that initially caused the stop, so long as (a) the facts that emerge during the officer’s investigation of the original offense create reasonable suspicion that additional criminal activity warranting additional present investigation is afoot, (b) the length of the entire detention is reasonable in light of the suspicion facts, and (c) the scope of the additional investigation is reasonable in light of the suspicious facts, meaning that it is reasonable to believe that each crime investigated, if established, would likely explain the suspicious facts that gave rise to the reasonable suspicion of criminal activity.

(4) Under these principles, there was no unconstitutionally overlong detention. By the time all the checks relating to the traffic stop were accomplished, the officer had reasonable suspicion of criminal activity warranting further investigation. Even if inconsistent stories alone might sometimes be insufficient to establish reasonable suspicion, here the inconsistencies were serious and likely intentionally deceptive, plus the government also relied on other factors to establish reasonable suspicion. Moreover, the length of the entire detention (eight minutes beyond the computer checks) was reasonable in light of the suspicious facts the officer observed. Finally, the scope of the investigation during the detention was reasonable in light of the suspicious facts. The decision to investigate the possibility of drug trafficking was reasonable because drug trafficking provided a reasonably likely explanation for the suspicious facts.

(Judge Dennis dissented. He would hold that under Brendlin v. California, 551 U.S. 249 (2007), defendant clearly had “standing” to challenge the stop/detention; and because the district court based its denial on lack of standing, Judge Dennis would vacate and remand to allow the district court to decide the ques­tion of reasonable suspicion in the first instance. In the alternative, he also dissented from the majority’s discussion and application of the law governing whether a detention is constitutionally overlong.)

United States v. Blocker, 612 F.3d 413 (5th Cir. 2010)

District court erred in assessing two criminal history points to defendant’s Guideline criminal history score pursuant to USSG § 4A1.1(d) (on the ground of an outstanding bench warrant for probation revocation). Under USSG § 4A1.2(m) and Application Note 4 to USSG § 4A1.1, a violation warrant of this type is countable under USSG § 4A1.1(d) only if the underlying criminal justice sentence is also countable. Because the prior sentence was over 21 years old, it was not countable, and thus neither was the active probation revocation bench warrant. Although this error raised defendant’s Criminal History Category from I to II and his Guideline imprisonment range from 70–87 months to 78–97 months, the error did not, on plain-error review, require reversal of defendant’s sentence; defendant’s sentence of 85 months’ imprisonment fell within the correct Guideline range, and defendant did not carry his burden of proving a reasonable probability that the sentence would have been different, given the district court’s refusal to depart downward or even to sentence at the bottom of the incorrect range.

United States v. Bustillos-Peña, 612 F.3d 863 (5th Cir. 2010)

Where defendant (1) was convicted of delivery of marijuana and sentenced to 10 years’ probation in 2001; (2) was deported to Mexico and illegally reentered in 2003; and, (3) had his probation revoked for the delivery offense and had a 5-year prison sentence imposed in 2005, district court reversibly erred in enhancing defendant’s sentence under USSG § 2L1.2(b)(1)(A)(i) for deportation or unlawfully remaining in the United States following a drug trafficking conviction for which the sentence imposed exceeded 13 months’ imprisonment. Because the Fifth Circuit found that it was ambiguous whether the USSG § 2L1.2(b)(1)(A)(i) enhancement applied where defendant was deported before being sentenced to more than 13 months’ imprisonment on a conviction that predated his deportation, it applied the rule of lenity and held that the revocation sentence did not relate back to the date of the original conviction. The Fifth Circuit vacated the sentence and remanded for resentencing. (Judge Clement dissented.)

United States v. McCann, 613 F.3d 486 (5th Cir. 2010).

(1) In felon-in-possession trial, prosecutor’s remark (made in the first part of the government’s closing) that the testifying officers would put their careers on the line if they lied in order to convict the innocent was not improper. In contrast to other cases where this type of remark was found to be problematic, here the prosecutor had actually elicited testimony from a police officer on redirect about the consequences he would face if he lied on the stand. The prosecutor’s remark, therefore, was merely restating evidence. However, it was improper for the prosecutor, in the rebuttal portion of the government’s closing, to make a largely emotional appeal to the jury to credit the arresting officers’ testimony because they were police officers with a hard job to do. This improper remark did not affect the defendant’s substantial rights, given that the prosecutorial misconduct was balanced against a significant counterweight of improper defense argument that at least partially prompted the prosecutor’s argument.

(2) District court did not reversibly err in admitting, over defendant’s objection, a death threat shouted at the arresting officer after defendant’s arrest. Evidence that a defendant engaged in conduct more serious than the charged offense can create sub­stantial unfair prejudice; that was not the case here, as the threat was less severely punished than the felon-in-possession offense for which defendant was being tried. The Fifth Circuit did agree that the evidence of the death threat still created a moderate risk of unfair prejudice; however, the statement had material probative value because it suggested that defendant was conscious of his guilt and wanted to intimidate the principal witness; accordingly, the Fifth Circuit could not say that the district court abused its discretion in holding that the material probative value outweighed the risk of unfair prejudice.

(3) Fifth Circuit declined to decide whether admission of photograph of defense witness, with text added that made it arguably resemble a mug shot or a “wanted” poster, was an abuse of discretion because, even if it was, admission of the exhibit did not affect defendant’s substantial rights, given its extremely minor role in defendant’s trial.

(4) District court committed reversible plain error in characterizing, solely on the basis of the presentence report, defendant’s prior Louisiana manslaughter conviction as a “crime of violence” warranting an enhancement under USSG § 2K2.1. Louisiana manslaughter includes offenses that do not fit within § 2K2.1’s “crime of violence” definition, since it is possible to be convicted of manslaughter in Louisiana if a death occurred during a non-violent offense like theft. Because (as the government admitted) the documents that could permissibly have been used, under Shepard v. United States, 544 U.S. 13 (2005), to narrow defendant’s manslaughter conviction to a “crime of violence” were lost in Hurricane Katrina, the district court would have been compelled to apply a lower offense level had it used the correct procedure at sentencing. Moreover, defendant’s substantial rights were affected because the correction of the error would lower the Guideline imprisonment range from 92–115 months (defendant received 100 months) to 63–78 months. Accordingly, the Fifth Circuit vacated the sentence and remanded for resentencing (but noted that the government could introduce any Shepard-approved documents it could locate to narrow defendant’s prior conviction).

United States v. Ortiz, 613 F.3d 550 (5th Cir. 2010)

In the Guideline sentencing calculation for a conviction for possession of marijuana with intent to distribute, district court reversibly erred by including as “relevant conduct” a quantity of cocaine discovered in a suitcase (belonging to another person) found in a condominium leased by defendant for his girlfriend and where marijuana was stored. The cocaine was not shown to be part of a “common scheme or plan” with respect to the of­fense of conviction; nor was the cocaine shown to be part of the “same course of conduct.” Because the exclusion of the cocaine produced a lower Guideline range than that under which defendant was sentenced, the Fifth Circuit vacated the sentence and remanded for resentencing, with an additional admonition that the offense of conviction was carrying a five-year mandatory minimum prison sentence, not a ten-year mandatory minimum.

United States v. Clayton, 613 F.3d 592 (5th Cir. 2010)

Where defendant was ordered to pay restitution in connection with his convictions for failing to file federal income returns (in violation of 26 U.S.C. § 7203), the Consumer Credit Protection Act (CCPA) (15 U.S.C. § 1673) did not preclude the government from garnishing more than 25% of his earnings. Section 1673(b)(1)(C) exempts from the protections of the CCPA “any debt due for any State or Federal tax.” Because defendant only appealed from the garnishment order, and not from his underlying convictions, the Fifth Circuit refused to consider defendant’s arguments on the merits of the restitution order.

United States v. Goncalves, 613 F.3d 601 (5th Cir. 2010)

District court did not err in refusing to group, pursuant to USSG § 3D1.2, defendant’s convictions for passing counterfeit notes (in violation of 18 U.S.C. § 472) and for using a falsely altered military discharge certificate (in violation of 18 U.S.C. §§ 498 & 2). Grouping is not mandatory or automatic simply because a defendant is charged with an offense that falls under a guideline listed in § 3D1.2(d); because the crimes involved different schemes, different objectives, and different victims, and took place at different times, the crimes were not of “the same general type.” Furthermore, the offense levels for the two crimes were not “determined largely on the basis of the total amount of harm or loss”; nor was the offense level calculated pursuant to Guidelines written to cover “behavior [that] is ongoing or continuous in nature.” Likewise, the district court did not err in applying the Guidelines for the passing-counterfeit-notes conviction, a two-level enhancement under USSG § 2B5.1(b)(5), on the ground that part of the offense occurred outside the United States. The Sentencing Commission did not exceed its authority when it extended this enhancement to convictions under 18 U.S.C. § 472, even though the congressional enactment from which this stemmed required the enhancement only for convictions under 18 U.S.C. § 470. The Commission may enact Guidelines that are not inconsistent with federal law, but which are broader than a congressional directive, when the Commission evinces a clear intent to do so. Finally, the district court did not clearly err in finding that part of defendant’s counterfeit-notes offense occurred outside the United States.

United States v. Chavira, 614 F.3d 127 (5th Cir. 2010)

In prosecution for making a false statement to Customs and Border Patrol Officers (particularly, that the illegal minor girl accompanying defendant was her daughter and a United States citizen), the district court reversibly erred in denying defendant’s motion to suppress her statements, because those statements were taken in violation of Miranda v. Arizona, 384 U.S. 436 (1966); under the circumstances of this case, defendant was in “custody” for purposes of Miranda; these circumstances included the facts that during questioning, (1) defendant was isolated in a small windowless room, in a trailer in the secondary processing area not accessible to the public and was surrounded by a ten-foot chain-link fence; and (2) defendant’s left hand was handcuffed to the chair in which she was seated; the Fifth Circuit also rejected the government’s argument that the questioning of defendant did not constitute “interrogation” for purposes of Miranda. The Fifth Circuit noted defendant, in connection with her bench trial, had stipulated to facts wholly apart from the tainted statements that might be sufficient to sustain her conviction; however, because the district court, in finding her guilty, relied on the entire stipulation, including the statements held inadmissible under Miranda, and because nothing indicated that the district court would have found her guilty without those statements, the Fifth Circuit vacated the judgment of conviction and sentence and remanded.

Stone v. Thaler, 614 F.3d 136 (5th Cir. 2010)

Where Texas state prisoner filed federal habeas petitions complaining of his parole revocation and errors in the calculation of his time-served credit, the AEDPA’s statute of limitations was tolled for 180 days following prisoner’s filing of a time-credit dispute-resolution request (TDR) pursuant to Tex. Gov’t Code § 501.0081. Texas law requires prisoners disputing time-served credit to file a TDR and to wait until they receive a written decision, or until 180 days elapse, before filing a state habeas application; a modest extension of the reasoning of Wion v. Quarterman, 367 F.3d 146 (5th Cir. 2009), leads to the conclusion that filing a TDR impedes a prisoner’s ability to file for state habeas relief, so the AEDPA limitations period was tolled during prisoner’s time-served credit dispute; however, defendant was not entitled to tolling for the entire time the dispute was pend­ing because after 180 days, defendant was entitled to file a state habeas petition; however, because the courts below had identified two different dates on which the limitations period commenced (one that would render the petitions timely and one that would render them time-barred), and because the certificate of appealability granted by the Fifth Circuit did not authorize them to resolve that issue, the Fifth Circuit simply vacated the decisions below and remanded.

Pierce v. Holder, 614 F.3d 158 (5th Cir. 2010)

Where federal prisoner filed a habeas petition, pursuant to 28 U.S.C. § 2241, seeking a nunc pro tunc designation of the state facility where he had served a previous sentence as the place in which he would serve his federal sentence (which would have had the effect of causing the federal sentence to run concurrently with the state sentence, thus giving the prisoner back credit for the time spent in state custody), district court should have dismissed petition for lack of jurisdiction. Until the Attorney General has made a determination of a federal prisoner’s time credit (including a final decision on the prisoner’s nunc pro tunc request), there is no case or controversy ripe for review; because the Bureau of Prisons had not done so at the time prisoner filed his federal habeas petition, the district court lacked jurisdiction to rule on the petition. The Fifth Circuit vacated the district court’s decision denying prisoner’s petition on the merits and remanded to the district court with instructions to dismiss the petition for lack of jurisdiction.

Garland v. Roy, 615 F.3d 391 (5th Cir. 2010)

Federal prisoner’s claim—namely, that in light of United States v. Santos, 128 S. Ct. 2020 (2008), he was wrongfully convicted of multiple nonexistent money laundering offenses because the indictment and jury instructions did not require the government to prove he used “profits” to pay returns to investors in his illegal pyramid scheme—was properly brought under 28 U.S.C. § 2241 pursuant to the “savings clause” of 28 U.S.C. § 2255 (which allows for a habeas corpus action if the § 2255 remedy is “inadequate or ineffective to test the legality of [a prisoner’s] detention”). The savings clause of § 2255 allows a § 2241 petition where (1) the petition raised a claim that is based on a retroactively applicable Supreme Court decision, (2) the claim was previously foreclosed by circuit law at the time when it should have been raised in petitioner’s trial, appeal, or first § 2255 motion, and (3) that retroactively applicable decision establishes that petitioner may have been convicted of a nonexistent offense. The Fifth Circuit found all these requirements satisfied; notably, in holding that the third requirement was satisfied, the Fifth Circuit disagreed with every other circuit to have decided the question of what, exactly, was the precise holding of the splintered decision in Santos; because petitioner’s claim satisfied all three requirements, the district court erred in dismissing that claim. The Fifth Circuit reversed and remanded the district court’s denial of petitioner’s § 2241 petition.

United States v. Zapata-Lara, 615 F.3d 388 (5th Cir. 2010)

In sentencing defendant for conspiracy to possess cocaine with intent to distribute, district court reversibly erred in applying a two-level enhancement under USSG § 2D1.1(b)(1) for possession of a dangerous weapon. The district court did not make adequate findings to support application of the enhancement to defendant either via the relevant conduct provisions of USSG § 1B1.3 or on a theory of personal possession. Accordingly, the Fifth Circuit vacated the sentence and remanded for resentencing, with instructions that if the district court again applied the enhancement on remand, it should make the appropriate findings and state plainly the basis for its decision.

Gray v. Epps, 616 F.3d 436 (5th Cir. 2010)

District court did not err in denying death-sentenced Mississippi defendant’s federal habeas petition alleging ineffective assistance of counsel at the penalty phase of his capital murder trial. The Fifth Circuit pretermitted the question whether trial counsel had provided deficient performance by failing to present mitigating evidence about defendant’s childhood, psychological condition, low intelligence, and good character because, even if counsel was deficient, the Mississippi Supreme Court was not unreasonable in concluding that the proffered mitigation evi­dence does not establish prejudice (i.e., a reasonable likelihood of a different outcome with respect to the sentence).

Court of Criminal Appeals

State’s PDRs

Foster v. State, 326 S.W.3d 609 (Tex.Crim.App. 2010); Reversed COA, affirmed trial court

Appellant was charged with a Class B misdemeanor DWI after a late-night stop near Austin’s bar district. Following the trial court’s denial of appellant’s motion to suppress, appellant pled nolo contendere and was put on community supervision for 18 months. Appellant appealed the trial court’s ruling on his motion to suppress, and COA decided that reasonable suspicion of intoxication did not exist when the police detained appellant to investigate whether he was intoxicated.

HELD: Time of day is a relevant factor in determining reasonable suspicion. Location near a bar district where police have made numerous DWI arrests is also a relevant factor.

Wirth v. State, 327 S.W.3d 164 (Tex.Crim.App. 2010); Vacated & remanded

Appellant was indicted for theft of property over $200,000. A jury convicted appellant of the lesser offense of theft of $20,000 or more but less than $100,000. He was sentenced to ten years’ incarceration, fined, and ordered to pay restitution of $128,103. COA held that the evidence was factually insufficient to support a finding of intent to commit theft, pursuant to Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996).

HELD: At the time COA considered this case, CCA had not issued its opinion in Brooks v. State, which overrules Clewis.

Lujan v. State, __S.W.3d__ (Tex.Crim.App. No. 0303-10, 1/12/11); Reversed COA, affirmed trial court

Appellant was stopped at a traffic checkpoint where officers were checking drivers licenses and insurance. Both appellant and his passenger failed to produce a drivers license or any identification. Both parties gave the arresting officer conflicting stories as to where they were coming from. While issuing the citation, dispatch informed the officer that the passenger had outstanding warrants, and the passenger was arrested. Appellant was then patted down for safety reasons, and the officer found a large amount of cash on his person. Given that the totality of the circumstances gave rise to reasonable suspicion, the officer then asked appellant for permission to search the vehicle. Appellant consented. A K-9 unit alerted the officer to search inside the door panel, where bags of a white powdery substance were found.

The trial court denied appellant’s motion to suppress. The trial court did not make any written findings of fact or conclusions of law. Appellant pled guilty to a lesser-included offense and was sentenced to four years’ imprisonment. On direct appeal, appellant argued that the checkpoint was not merely to check for drivers licenses and insurance; it was a checkpoint for general criminal activity. COA held that a checkpoint used to determine if there are any ongoing criminal violations is too deep of an intrusion upon an individual’s Fourth Amendment rights and reversed the trial court.

HELD: If the primary purpose of the checkpoint is lawful—a license check as opposed to general law enforcement—police can act on other information that arises at the stop. In denying the motion to suppress, the trial court implicitly found that the primary purpose of this checkpoint was permissible. The record supported this finding.

State’s Motion for Rehearing

Witkovsky v. State, 327 S.W.3d 741 (Tex.Crim.App. 2010); Denied

HELD: CCA refuses to reconsider dismissal of the State’s PDR as untimely under Tex. R. App. P. 50.

Direct Appeal

Martinez v. State, 327 S.W.3d 727 (Tex.Crim.App. 2010); Affirmed

Appellant was convicted of capital murder in 1989 and sentenced to death. The conviction and sentence were affirmed on direct appeal. In 2007, CCA granted habeas corpus relief, set aside appellant’s death sentence, and remanded the case to the trial court for new punishment. In 2009, the trial court held a new punishment hearing. Based on the jury’s answers to the special issues, the trial court sentenced appellant to death. Direct appeal to CCA is automatic.

HELD: CCA reviewed seven points of error and overruled all of them. In points of error one and two, appellant relied on Clewis v. State, concerning future dangerousness; however, that decision was overruled in Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010). In point of error three, appellant similarly relied on Clewis and Wardrip v. State, 56 S.W.3d 588 (Tex.Crim.App. 2001), which was also overruled in Brooks. Point of error five alleges a confrontation clause violation. CCA finds appellant was not deprived of his right to confront the witness, where the witness died since testifying in the 1989 trial and that testimony was reintroduced in the 2009 trial because the parties, issues, and underlying purpose of the jury charge were the same in both 1989 and 2009.

Writ of Mandamus

Benson v. Montgomery County Dist. Clerk, __S.W.3d__ (Tex.Crim.App. No. 076,409, 1/12/11); Conditionally granted

Relator was convicted of aggravated robbery and sentenced to 25 years’ imprisonment. He filed an application for a writ of mandamus contending that the Montgomery County District Clerk refused to file his application for a writ of habeas corpus while another habeas corpus application concerning the same cause was pending in CCA.

HELD: The district clerk has a ministerial duty under Tex. Code Crim. Proc. art. 11.07 to receive, file, and timely forward to CCA applications for writs of habeas corpus when earlier applications in the same cause are pending before CCA. Whether a habeas corpus applicant has other applications pending is irrelevant to the district clerk’s duty. CCA withholds issuance of the writ and allows the district clerk an opportunity to conform with this opinion.

Writs of Habeas Corpus

Ex parte Panetti, 326 S.W.3d 615 (Tex.Crim.App. 2010); Dismissed

Applicant was convicted of capital murder in 1995 and sen­tenced to death. CCA affirmed the conviction and sentence on direct appeal. CCA denied applicant’s initial post-conviction application for writ of habeas corpus and dismissed applicant’s first subsequent application for writ of habeas corpus.

HELD: Applicant’s two allegations fail to meet the dictates of Tex. Code Crim. Proc. art. 11.071 § 5.

Ex parte Martinez, __S.W.3d__ (Tex.Crim.App. No. 76,413, 1/12/11); Denied

Applicant was charged with capital murder as a party to the offense. A jury found her guilty, and she was automatically sentenced to life imprisonment. On direct appeal, COA held that her trial counsel sufficiently objected to all gang-related evidence to preserve appeal, and that the trial court erred when it overruled objections to all gang-related evidence, which was irrelevant and prejudicial. However, on discretionary review, CCA determined that counsel did not properly preserve the objection and reversed COA. Upon remand to consider the remaining issues, COA affirmed applicant’s conviction and sentence. Applicant filed this writ of habeas corpus, claiming she was denied effective representation when counsel failed to object to the introduction of all gang-related evidence; he neither continued to object to the evidence nor obtained a running objection. She further argued that but for the deficient conduct, she would have received a new trial as ordered by COA.

HELD: While CCA acknowledges that gang-related evidence tends to be irrelevant and prejudicial if not accompanied by testimony that puts the evidence into context, the record does not support the conclusion that applicant met the second prong of the Strickland test. There was ample evidence to support a finding of guilt. There is not a reasonable probability that the outcome would have been different if counsel had objected to all the gang-related evidence. The first prong of Strickland need not be addressed.

Motion for Leave to Petition for
Writs of Prohibition and Mandamus

State v. Fine, __S.W.3d__ (Tex.Crim.App. No. 76,470/71, 1/12/11); Conditionally granted

The real party in interest in this writ is John Edward Green Jr., the defendant in a pending capital murder case. Green has been charged with capital murder, and the State has given notice of its intent to seek the death penalty. The case has not gone to trial and no one knows what evidence the State will offer. No one knows whether a jury will convict Green or sentence him to death. Nonetheless, Green filed an “Amended Motion to Declare Article 37.071, § 2 of the Texas Code of Criminal Procedure Un­constitutional as Applied” to assert that Article 37.071, the death-penalty sentencing statute, is unconstitutional because “its application has created a substantial risk that innocent people have been, and will be, convicted and executed.” The trial judge eventually commenced a pretrial evidentiary hearing on the motion and State filed the motions at issue in opposition.

HELD: The trial judge does not have legal authority to conduct any such pretrial evidentiary hearing and make any such pretrial declaratory judgment, because there is no basis under Texas law to conduct a pretrial evidentiary hearing to determine the “as applied” constitutionality of a state penal or criminal procedural statute. The trial judge acted beyond the scope of his lawful authority. CCA conditionally grants mandamus and prohibition relief and, if the trial judge does not do so himself, CCA will order the trial judge to dismiss Green’s motion as requesting an unauthorized declaratory judgment.

Appellee’s PDR

State v. Posey, __S.W.3d__ (Tex.Crim.App. Nos. 0034-10 & 0035-10, 1/12/11); Affirmed

A jury convicted appellee of two criminally negligent homicides alleged in separate indictments. The jury found that the vehicle driven by appellee was a deadly weapon, assessed punishment at 2 years’ imprisonment, and recommended that the sentences be probated. The trial court followed that recommendation and placed appellee on community supervision for 5 years for each conviction. Appellee later violated his community supervision and was sentenced to 22 months on each offense. In his oral comments, the trial judge suggested that appellee’s attorney file a motion for shock probation after appellee had been in jail for 75 days.

Pursuant to appellee’s “Motion to Impose Community Supervision,” the trial court conducted a hearing and concluded: “I am going to grant shock probation to Mr. Posey. I’m going to extend the period of his probation to seven years.” The State appealed, and COA agreed. Appellee asserts that COA erred in vacating the trial court’s imposition of shock community supervision. The State argues that COA correctly interpreted Tex. Code Crim. Proc. art. 42.12 by holding that appellee was not eligible for judge-ordered community supervision and was not “otherwise eligible” for shock probation because of the deadly-weapon findings.

HELD: Because the jury verdict included an affirmative finding of the use of a deadly weapon, the trial judge could not grant community supervision without a recommendation from the jury. The jury could, and did, recommend community supervision, but the jury’s recommendation extends only to regular probation. A trial judge may not grant shock probation unless the defendant is eligible for judge-ordered community supervision.

Court of Appeals

Summaries are by Chris Cheatham of Cheatham Law Firm, Dallas, Texas.

Rogers v. State, 2010 WL 2598978 (Tex.App.—Dallas 6/30/10) (No. 05-09-00862-CR)

Following D’s refusal of consent to vehicle search, officer had RS to detain D pending dog sniff, given officer’s observation of two air fresheners and a can of Febreeze and D’s body language indicating, in officer’s view, deception. “When [officer] returned to where [D] was standing and asked for consent to search the vehicle, [D] turned and looked at his vehicle and turned back and ‘kind of hesitated’ before refusing consent to search. As [D] hesitated, [officer] saw [D’s] face began to twitch, and after refusing consent, [D] shuffled his feet and walked back and forth with his arms crossed, indicating he was being deceptive.” Also, D told officer he “had been in trouble before in some other stuff” but did not elaborate and told officer he could “look it up.”

Winningham v. State, 2010 WL 2636175 (Tex.App.—Fort Worth 7/1/10) (No. 2-07-389-CR)

Evidence insufficient to support murder conviction, despite evidence that victim’s blood was present in D’s car trunk and that victim’s body was wrapped in a blue tarp, the same blue material found on bumper of D’s car. In deeming the evidence factually insufficient, the court emphasized there was no weapon linking D to the crime and no indication of blood level consistent with prosecution’s theory that D placed victim’s body in his trunk shortly after he murdered her. Furthermore, investigators did not find any evidence that the murderer drove D’s car, and there was no blue material inside D’s trunk nor any evidence of blue tarp-like material found in victim’s house. Also, investigators failed to gather fingerprint or DNA evidence.

Banda v. State, 317 S.W.3d 903 (Tex.App.—Houston [14 Dist] 7/27/10)

Initial interaction constituted a consensual encounter; officer merely approached an open garage party and asked who had driven a particular vehicle; after D identified himself, officer asked to speak with him. Furthermore, it was necessary to take prompt action to ascertain D’s blood-alcohol level. And, “[t]he short amount of time between [D’s] arrival at his home and [officer’s] arrival at the scene—approximately 10 minutes—also supports a conclusion that [D] was found in a suspicious place.”

Tucker v. State, 2010 WL 2935788 (Tex.App.—San Antonio 7/28/10) (No. 04-09-00046-CR)

D unsuccessfully argued that officers’ refusal to remove D’s son from hot van during traffic stop coerced him into giving consent to search the van. The evidence showed that D only made said request one time. Officer’s question (“You don’t mind if I take a look, do you?”) did not convey to D that search was mandated rather than requested, neither did the tone of officer’s request.

State v. Roberts, 2010 WL 2927481 (Tex.App.—Dallas 7/28/10) (No. 05-09-01328-CR)

As to whether D was “in custody” at the time of the confession, the fact that the interrogating officer had already obtained a warrant for D’s arrest was irrelevant. The officer did not advise D of the existence of the warrant. “Moreover, the remaining facts noted by the trial court—[D] was in a private room with the door closed, a uniformed officer stood outside the door, and ‘the interrogation commenced’—do not show that [D] was in custody at the time in question. The evidence shows that [D] went to the room at the request of his supervisor, not the officers, and the officers did not say anything prior to entering the room. . . . The door to the room was closed but not locked . . . [officer] never promised [D] anything in exchange for making a statement.” Trial court’s suppression of recorded confession reversed.

Harpole v. State, 2010 WL 3001171 (Tex.App.—Fort Worth 7/29/10) (No. 2-09-295-CR)

Search of D’s vehicle was not unreasonable, even though the traffic stop ended before officer obtained consent to search. After issuing D a traffic citation, officer never explicitly indicated to D that he was not free to leave. Officer did not take action (e.g., holding D’s license) to imply that D was not free to leave.

Alonzo v. State, 2010 WL 2957252 (Tex.App.—Corpus Christi 7/29/10) (No. 13-09-00395-CR)

Existence of a newspaper article indicating that D had been serving a life sentence for a prior murder at the time of the prison altercation that led to the prosecution was communicated by one juror to the others during deliberations. Such information was not considered to be “received” by the jurors as to require new trial because the foreman “immediately” informed the trial court after which the court administered a curative instruction.

State v. Klendworth, 2010 WL 3003624 (Tex.App.—Tyler 7/30/10) (No. 12-09-00414-CR)

Burglary is not an inherently violent crime such that mere investigation thereof would justify officer’s act of placing handcuffs on D. “[Officer] articulated no reason to suspect that [D] was carrying any type of weapon, burglary is not an inherently violent crime, and [officer] was not outnumbered.”

Bresee v. State, 2010 WL 3030970 (Tex.App.—San Antonio 8/4/10) (No. 04-09-00696-CR)

Trooper had RS to stop D for DWI, even though trooper did not personally observe any signs of intoxication, where citizen called 911 and reported that D was intoxicated, caused a disturbance at a bar, and had departed the bar in the vehicle. The information provided by the 911 caller was sufficiently corroborated by trooper, including the vehicle’s description, license plate number, and travel route. Importantly, “[trooper] inquired into the reliability of the 911 caller and confirmed that the 911 caller, by giving his name and address, had put himself in a position to be held accountable for his intervention.”

State v. Rothrock, 2010 WL 3064303 (Tex.App.—Austin 8/5/10) (No. 03-09-00491-CR)

D’s “pulling out” of a bar parking lot rapidly was insufficient, by itself, to create RS of D’s intoxication, even though it occurred late at night. “While . . . the officer here also testified that he observed [D’s] vehicle weaving in its lane, the trial court chose not to credit this testimony as sufficient evidence to create reasonable suspicion of intoxication.”

Ervin v. State, 2010 WL 3212095 (Tex.App.—Houston [1st Dist] 8/11/10) (No. 01-08-00121-CR)

That officer towed D’s car and took her keys did not mean D was in custody, where D consented to officers’ actions. Nor did D’s disputed allegation that officer dispossessed her of her cell phone provide a basis for reasonable belief that she was in custody. “[Officer] said [D] was free to call her mother if she wished, and she did not ask to use the telephone. [Officer] acknowledged, however, that he did not offer [D] the use of a telephone.”

Johnson v. State, 2010 WL 3170291 (Tex.App.—Eastland 8/12/10) (No. 11-10-00111-CR)

While an officer awaits the results of a computer warrant check, he may freely question D about matters unrelated to the initial stop because doing so does not elongate the stop.

Gilmore v. State, 2010 WL 3168304 (Tex.App.—Texarkana 8/12/10) (No. 06-09-00233-CR)

Anonymous tip that D was traveling toward county in white truck was not sufficient by itself to create reasonable suspicion because the route was a well-traveled corridor. In addition, “the corroborative tip merely predicted [D’s] current course of travel rather than any future travel itinerary. . . . The travel was down a well-traveled corridor, which was the usual route between Crockett and Trinity, and the tip merely predicted [D’s] current course of travel, not his future travel itinerary.”

Although the Texarkana court (like other courts) declined to officially establish a standard for conducting visual body-cavity searches on pretrial detainees, RS was enough in this instance; a tip from informants justified a visual body-cavity search of D, who had been arrested for possession of controlled substance with intent to deliver. “Notwithstanding the lack of an absolute standard requiring reasonable suspicion, we believe the deputies had reasonable suspicion to search [D].” Furthermore, a person’s arrest record may be considered by officer in determining whether RS exists.

McCormick v. State, 2010 WL 3341541 (Tex.App.—Tyler 8/25/10) (No. 12-10-00025-CR)

Interaction with officer deemed a “consensual encounter,” despite officer’s statement to D that D’s removal of petrified wood from a federal forest was illegal, because D and officer joked during the conversation. Although officer wore a uniform and had a gun and badge, there was no evidence that officer subjected D to physical force or a show of authority.

Barriere v. State, 2010 WL 3369858 (Tex.App.—Austin 8/26/10) (No. 03-09-00026-CR)

D was not under “arrest,” even though he was asked by officer to remove his shoes and socks. [Officer] asked [D] to remove his shoes and socks, both so that [Officer] could search them for additional evidence and so that [D] would have a harder time running if he tried to flee. . . . The degree of intrusion was minimal. . . .