March 2013 SDR - Voice for the Defense Vol. 42, No. 2

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Wednesday, April 3rd, 2013

Voice for the Defense Volume 42, No. 2 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

Neither a statutory nor a constitutional right of competency to stand trial exists in federal habeas corpus proceedings. Ryan v. Gonzales, 133 S. Ct. 696 (2013).

        The Ninth and Sixth Circuits found that state inmates who were sentenced to death and seeking habeas relief in federal district court were entitled to have the proceedings stayed until it was determined that they had the ability to assist counsel. The Supreme Court reversed the Ninth Circuit’s judgment, and vacated the Sixth Circuit’s judgment and remanded that case for reconsideration of whether a stay might be appropriate for D’s fourth claim, noting that an indefinite stay would be inappropriate.

        The Ninth Circuit found that 18 U.S.C.S. § 3599 gave an inmate who was convicted of a capital crime the right to have his habeas corpus action stayed until he was competent and could assist his counsel, and the Sixth Circuit found that § 4241 gave the same right. The Supreme Court disagreed. Although the Supreme Court previously held that U.S. Const. amend. VIII prohibited a state from carrying out a death sentence upon a prisoner who was insane, neither § 3599 nor § 4241 gave inmates a right to suspension of their federal habeas corpus proceedings when they were incompetent. Given the backward-looking, record-based nature of proceedings under 28 U.S.C.S. § 2254, counsel could generally provide effective representation to a habeas petitioner regardless of petitioner’s competence. Even if the district court were to decide that the defendant’s competence was necessary, it should only grant a stay if the defendant is likely to regain competence in the foreseeable future.

Fifth Circuit

Texas district court’s stay of D’s execution represented an implicit determination that D had a likelihood of succeeding on the merits of his motion for relief; that determination was incorrect. Adams v. Thaler, 679 F.3d 312 (5th Cir. 2012).

        D’s motion turned on the intervening Martinez v. Ryan, 132 S. Ct. 1309 (2012), and a change in decisional law does not constitute exceptional circumstances justifying relief from judgment under Fed. R. Civ. P. 60(b)(6). D’s second-in-time federal habeas petition was successive because it raised claims that were identical to two claims raised in D’s initial federal habeas petition; because the petition was successive, the district court had no jurisdiction to consider it. The Fifth Circuit dismissed that petition and vacated the stay of execution.

In sentencing D for attempted export of arms, district court did not err in applying a base offense level of 26 under the pre-2011 version of USSG § 2M5.2. United States v. Diaz-Gomez, 680 F.3d 477 (5th Cir. 2012). 

        Under the pre-2011 Guidelines, the lower base offense level of 14 was limited to cases where a defendant possessed only non-fully automatic arms in a quantity not greater than 10. The fact that D also possessed ammunition (611 rounds) for his non-fully automatic firearm disqualified him from the lower base offense level.

The rule that non-citizen defendants be advised about the potential removal consequences arising from a guilty plea did not apply to D’s case retroactively. United States v. Amer, 681 F.3d 211 (5th Cir. 2012).

        The rule of Padilla v. Kentucky, 130 S. Ct. 1473 (2010)—namely, that the Sixth Amendment imposes upon attorneys representing non-citizen defendants a constitutional duty to advise about the potential removal consequences of a guilty plea—is a “new rule” that does not apply retroactively to convictions that became final before Padilla. D’s conviction became final in 2009, before Padilla was decided. NOTE: Chaidez v. United States, No. 11-820 (U.S. Feb 20, 2013), affirmed that Padilla does not apply retroactively.

D not entitled to habeas relief even though the court reporter lost her notes, impairing resolution of D’s challenges to his conviction; district court could likely have reconstructed an adequate record. Register v. Thaler, 681 F.3d 623 (5th Cir. 2012).

        Although the district court granted Texas state D (convicted of possession or transportation of anhydrous ammonia) federal habeas relief on the ground that the reporter for the state trial court lost her notes, impairing resolution of D’s challenges to his conviction, the Fifth Circuit was persuaded that the district court could likely have reconstructed an adequate record. The Fifth Circuit vacated the grant of relief and remanded to the district court for further proceedings, including reconstruction of the record that the state trial court had before it when it reviewed D’s state habeas petition. The Fifth Circuit noted that D must first make a preliminary showing that further factual development of his claims might be fruitful and noted that even on the present record, some of these claims clearly could not succeed.

The AEDPA’s standard of review is not unconstitutional under U.S. Const. art. III. Cobb v. Thaler, 682 F.3d 364 (5th Cir. 2012).

        AEDPA’s 28 U.S.C. § 2254(d)(1) does not intrude on the independent adjudicative authority of the federal courts; rather, it limits the grounds on which federal courts may grant the habeas remedy to upset a state conviction. Congress may constitutionally grant federal courts habeas jurisdiction over collateral challenges to state convictions and yet limit the availability of the remedy to exceptional circumstances.

        In rejecting D’s claim that the State had suppressed exculpatory/impeaching information—namely, a letter in the district attorney’s file from a jailhouse informant—the Texas state courts did not unreasonably apply Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. No clearly established law establishes that evidence is suppressed under Brady when it is in the open file of a co-defendant. It was not unreasonable for the state courts to conclude that the prosecution satisfied its Brady obligation by providing open access to the case files for the two co-defendants. It was also reasonable for the state courts to determine that the letter was not “material” within Brady, as it would not have added significantly to the impeachment ammunition D’s counsel already had for the informant.

D made a clear and unequivocal invocation of his con­stitutional right to represent himself; the state trial court erroneously denied D’s request. Batchelor v. Cain, 682 F.3d 400 (5th Cir. 2012).

        The state appellate court’s implicit finding that Louisiana armed-robbery D waived his right to represent himself after asserting the right was unreasonable in light of the evidence presented and violated Faretta v. California, 422 U.S. 806 (1975). The Fifth Circuit affirmed the district court’s grant of federal habeas relief.

District court did not err in dismissing a juror for lack of candor and failure to abide by instructions. United States v. Ebron, 683 F.3d 105 (5th Cir. 2012).

        Because the reasons for juror dismissal did not implicate the deliberative process, the Fifth Circuit declined to scrutinize the dismissal under the more stringent standard used by other circuits. Nor did the district court abuse its discretion in refusing to grant D’s motion for mistrial following the dismissal. Nor did the court plainly err in its instructions to the remaining jurors with respect to the dismissal.

        Furthermore, in this prison-murder case, district court did not err by admitting, as a statement against penal interest under Fed. R. Evid. 804(b)(3), a co-actor’s statement to another prisoner in which the co-actor incriminated D. Given that the statement was made in casual conversation, and not in custodial interrogation, the Fifth Circuit declined to find the statement barred under the fractured opinions in Williamson v. United States, 512 U.S. 594 (1994), and Lilly v. Virginia, 527 U.S. 116 (1999).

In bank-robbery case, district court did not err in refusing to sever the cases of the two co-defendants; the mere fact that there was a romantic relationship between them did not create sufficient prejudice to overcome the preference for joint trials, especially in light of the cautionary instructions given. United States v. Owens, 683 F.3d 93 (5th Cir. 2012).

        Furthermore, female D was not entitled to a severance based on her claim that if the Ds were given separate trials, the male D would testify on her behalf. To establish this ground for severance, a defendant needs to produce an affidavit or similar proof from the co-defendant himself. D produced only her attorney’s affidavit about co-defendant’s willingness to testify.

        Nor did district court err in denying D’s motion for a mis­trial following the government’s mention of a digital scale found in D’s bedroom, in violation of an in limine order respecting extrinsic-offense evidence under Fed. R. Evid. 404(b). The court sustained the defense objection thereto, cutting off further inquiry. In light of the cautionary instructions given, the court could have reasonably concluded that this single reference to the digital scale did not warrant mistrial.

The U.S. Supreme Court vacated the Fifth Circuit’s judgment that D procedurally defaulted on his ineffective-assistance claim and that the default was not excused by the alleged ineffective assistance of state habeas counsel; the Fifth Circuit remanded to the district court. Cantu v. Thaler, 682 F.3d 1053 (5th Cir. 2012).

        The Supreme Court remanded in light of Martinez v. Ryan, 132 S. Ct. 1309 (2012). On remand from the Supreme Court, the Fifth Circuit remanded to the district court so the district court could decide in the first instance the impact of Martinez v. Ryan on D’s contention that he had cause for his procedural default.

In health care fraud prosecution, district court did not plainly err in admitting co-conspirator’s statements against D regarding money paid to accomplish the conspiracy. United States v. Grant, 683 F.3d 639 (5th Cir. 2012).

        Statements regarding money paid for services rendered in accomplishing the illegal goals of a conspiracy can be considered to have been “in the course and in furtherance of the conspiracy,” admissible under Fed. R. Evid. 801(d)(2)(E).

        Nor did the district court err in refusing to give a “missing witness” instruction with respect to a co-defendant, who plead guilty and was awaiting sentencing, because D did not show that the co-defendant was peculiarly within the control of the government. Moreover, the government’s decision not to call the co-defendant as a witness was already addressed in jury instructions to the effect that although the government was not required to call every witness possible, the jury could consider the government’s failure to call other witnesses or to produce other available evidence.

Court of Criminal Appeals

D’s consent to the breathalyzer test was conscious and voluntary, even though he repeatedly refused the test before consenting. Fienen v. State, No. PD-0119-12 (Tex.Crim.App. Nov 21, 2012).

        The trial court denied D’s motion to suppress the breathalyzer evidence, and D pled guilty to DWI. COA and CCA affirmed the decision to admit the evidence. Under the totality of circumstances, D made a conscious and voluntary decision to provide a breath specimen following his arrest. He was informed that he could refuse the breathalyzer, and he did so at least twice before his consent. Upon D’s initial refusal, officer followed standard protocol by preparing to obtain a search warrant for a blood draw. Officer’s demeanor was professional and accommodating, and his comments did not put undue psychological pressure on D. CCA overruled Erdman v. State, 861 S.W.2d 890 (1993), which held that law enforcement officials conveying information to DWI suspects besides the statutory warnings could have the effect of undermining their resolve and coercing their consent.

No egregious harm resulted from the failure to give an accomplice witness instruction because corroborative evidence connected D as a party to his wife’s possession of cocaine. Casanova v. State, 383 S.W.3d 530 (Tex.Crim.App. 2012).

        COA reversed D’s conviction for cocaine possession, finding that egregious harm resulted from the trial court’s unobjected-to failure to give an accomplice witness instruction under Tex. Code Crim. Proc. art. 38.14, which requires the jury to find the testimony of the accomplice witness was corroborated before it can rely on that testimony. CCA reversed COA and remanded to that court to address a remaining claim of error.

        The inferences to be drawn from the State’s corroborating evidence more than sufficiently tend to connect D as a party to his wife’s possession of the cocaine found in her purse, and thus supported the admission of her accomplice testimony. For the jury to discount that tendency, it would have had to accept D’s less-than-creditable explanations. The corroborating evidence showed that the cocaine was found in the hotel room D was sharing with his wife, D appeared to be under the influence, his paranoia appeared to be escalating, and he conceded he was aware that his wife was ingesting drugs. Further, no egregious harm resulted when the court erroneously neglected to read the guilt-phase jury charge aloud before sending the jury to deliberate; it can be presumed that the jurors followed the instructions to read the charge aloud in the jury room.

The State can appeal a decision dismissing any portion of an indictment. State v. Richardson, 383 S.W.3d 544 (Tex.Crim.App. 2012).

        D was indicted for multiple counts of intoxication assault arising from a crash. The indictment included enhancement paragraphs incorporating D’s Iowa convictions for “operating under the influence, intentionally causing serious injury.” The trial court refused to allow use of the Iowa convictions to enhance the punishment range for multiple counts of intoxication assault. The State appealed the court’s refusal. COA dismissed the appeal due to lack of jurisdiction. CCA remanded to COA.

        Tex. Code Crim. Proc. art. 44.01(a)(1) permits the State to appeal an order that “dismisses any indictment, information, or complaint or any portion of an indictment, information, or complaint.” The quashed enhancement paragraphs were alleged in the indictment, and thus are literally a portion of the indictment, even though the State was not required to plead enhancements in the indictment.

Upon independent review of the evidence, CCA concluded that D did not receive ineffective assistance of trial or appellate counsel. Ex parte Flores, 387 S.W.3d 626 (Tex.Crim.App. 2012).

        D was convicted of two counts of capital murder. He filed a habeas writ based on ineffective assistance of trial and appellate counsel. After taking additional evidence, the habeas judge recommended CCA grant relief on two ineffective assistance claims: failing to present the expert testimony of particular doc­tors at trial, and failing to raise sufficiency of the evidence on direct appeal. CCA denied relief.

        D’s trial counsel was not ineffective for failing to call an out-of-town expert witness because after investigating the facts, trial counsel retained a well-known, highly qualified lo­cal expert with whom he had worked. The local expert assured counsel that he could testify to the causation issue, and calling the out-of-town expert could have presented pitfalls for the defense. Trial counsel was not ineffective for failing to call the chief medical examiner because his ultimate conclusion provided nothing more than the expert who counsel did call, and D did not explain how the examiner’s testimony would have affected the outcome of his trial. D’s appellate counsel was not ineffective for failing to challenge the sufficiency of the evidence on direct appeal because D failed to show a reasonable probability that he would have prevailed on the claim.

D proved by clear and convincing evidence that no reasonable juror would have convicted her of capital murder in light of new evidence, including initial expert’s retraction. Ex parte Henderson, 384 S.W.3d 833 (Tex.Crim.App. 2012).

        This is a subsequent habeas corpus writ in which applicant asserted she has newly available evidence that: (1) shows she is innocent of capital murder; and (2) but for constitutional errors, she would not have been found guilty. In 2007, CCA found that the application satisfied the requirements for a subsequent writ and remanded the application to the trial court. Here, CCA granted relief and remanded for a new trial.

        In accordance with CCA’s remand order, the trial court held an evidentiary hearing. D presented testimony of six experts. Relying on new biomechanics, the witnesses testified that the baby’s fatal injuries could have been caused by an accidental fall on concrete. Dr. Bayardo, the medical examiner who testified at trial that D’s position that the injuries resulted from an accidental fall was false and impossible, testified at the hearing that he now believes there is no way to determine with a reasonable degree of medical certainty whether the injuries resulted from an intentional act of abuse or an accidental fall. The State presented five experts who testified that notwithstanding the studies cited by D, it was very unlikely that the injuries were caused by an accidental fall.

        Following the hearing, the trial court recommended grant­ing a new trial. The trial court found that all the expert witnesses were truthful and credible, and that Dr. Bayardo’s re-evaluation of his 1995 opinion is based on credible, new scientific evidence and constitutes a material exculpatory fact. In post-conviction habeas review, CCA will accept the convicting court’s findings of fact and conclusions of law, as long as the record supports them, and need not accept the trial court’s conclusions concerning actual innocence.

The forensic psychologist’s “weapon focus effect” testimony offered by D was relevant to his aggravated robbery case, especially because scant evidence established D as the assailant. Blasdell v. State, 384 S.W.3d 824 (Tex.Crim.App. 2012). 

        COA affirmed the trial court’s finding that the expert testimony was not relevant in D’s aggravated robbery case. The only evidence against D was the identification testimony of the victim. D offered testimony from a forensic psychologist intended to educate the jury about the “weapon focus effect.” The trial court ruled that this expert testimony was irrelevant because it was insufficiently tied to the facts of the case; COA affirmed that the trial court did not err in excluding the testimony for a lack of “fit.” CCA reversed and remanded to COA.

        Given the content of the expert testimony, the context in which it was offered, and, most pertinently, the paucity of other evidence to establish D’s identity as the assailant, COA erred in concluding that the psychologist’s weapon focus effect testimony was not relevant to the case.

CCA denied habeas relief and cited D for abuse of the writ for falsifying his application. Ex parte Gaither, 387 S.W.3d 643 (Tex.Crim.App. 2012). 

        D pled guilty to burglary and engaging in organized criminal activity. He filed this habeas corpus application, alleging ineffective assistance of trial counsel. CCA denied relief and cited D for abuse of the writ under Tex. Code Crim. Proc. art. 11.07, § 4.

        CCA agreed with the trial judge that in using information he knew was false to fill out his application, D abused the writ process. Based on the record and the supplemental findings, D’s counsel did not coerce him or provide him with erroneous information regarding the plea offer. Additionally, counsel’s failure to object to the consecutive sentences was not deficient. D clearly knew that these two sentences would be served consecutive to his prior burglary sentence; D falsely claimed ignorance in his writ application. The denial of a frivolous initial writ application under Article 11.07 acts as a bar to further writ applications, except for the few exceptions in Article 11.07, § 4. Furthermore, under the terms of the plea agreement, D waived his appellate rights.

The district clerk is instructed to accept D’s habeas corpus application, which includes additional pages. Stanley v. Bell County Dist. Clerk, No. AP-76,929 (Tex.Crim.App. Dec 12, 2012). 

        Although the district clerk has the authority to return a writ application when an applicant is not using the correct ap­plication form, Tex. Rule Appellate Proc. 73.2, D used the correct form and substantially complied with the instructions. The clerk had replied, “You must briefly summarize the facts on each ground, additional pages can not be added within your application.” D’s application may include some additional pages that are technically non-compliant, but it appears that these pages are not meant to replace the form but give additional answers to questions on the form.

D failed to establish that the State did not exercise due diligence in his community supervision revocation. Garcia v. State, 387 S.W.3d 20 (Tex.Crim.App. 2012).

        The trial court revoked D’s community supervision. COA reversed. CCA reversed COA and reinstated the trial court’s judgment. The State had filed its motion to revoke while D was still on community supervision, and a capias was issued but not executed until two years after D’s community supervision expired. After pleading true to the allegations in the motion, D raised an issue regarding the State’s delay in executing the capias. COA held that the State was required under common law to exercise due diligence in prosecuting a motion to revoke community supervision; CCA held that COA applied the wrong standard. The common-law requirement that the State exercise due diligence in prosecuting a motion to revoke community supervision was superseded in 2003 by Tex. Code Crim. Proc. art. 42.12, § 24, which made due diligence an affirmative defense and applicable to only two allegations (“failure to report to a supervision officer as directed or to remain within a specified place”). Remand is unnecessary as the due-diligence defense is inapplicable to D’s failure to complete substance abuse treatment.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

In prosecution for evading arrest, D unsuccessfully ar­gued that since he had no reason to flee, he had no rea­son to suspect officers were attempting to detain him. Gamino v. State, No. 14-10-01091-CR (Tex.App.—Houston [14th Dist] July 24, 2012).

        “While evidence that [D] was committing a crime when officers attempted to detain may establish that [D] had a motive to flee from police, [D] cites no authority suggesting that such evidence is necessary.”

        Also unsuccessful was D’s argument that officers did not “lawfully” detain him because officer’s vehicle did not comply with all-terrain vehicle regulations (e.g., did not have triangular orange flags, officer not wearing helmet). “[D] cites to no authority suggesting that peace officers must follow all traffic laws in order for an attempted detention or arrest to be lawful. Such a requirement would lead to the absurd result that police would be prohibited, for example, from pursuing a suspect who is exceeding the speed limit.”

Officer’s asking D if he would mind emptying his pockets did not convert consensual encounter into detention. State v. Anderson, No. 11-11-00301-CR (Tex.App.—Eastland July 26, 2012, pet. ref’d).

Officer lacked RS where he merely observed D’s vehicle in parking lot late at night with its headlights and left turn signal illuminated and driver’s side door open, even though businesses in the vicinity were closed and despite officer’s hunch regarding the possibility of burglary. Hernandez v. State, 376 S.W.3d 863 (Tex.App.—Fort Worth 2012).

        Community caretaking not shown; although officer believed D might be in need of assistance because he saw D bump his head on vehicle’s steering wheel, such alleged distress arose only upon officer’s shining a spotlight on D.

Duration of traffic stop not unreasonable, despite officer’s remark that the purpose of checking passenger’s license was to buy time until the K-9 dog arrived. Campbell v. State, No. 12-11-00324-CR (Tex.App.—Tyler Aug 8, 2012, pet. ref’d).

        “[D] contends that the true purpose of the stop ended when he was cleared of any outstanding warrants. . . . (1) the officers did not smell marijuana in the vehicle, (2) [officers] discussed that [D] and [passenger] were calm, but that their demeanor might change when the K–9 unit arrived, and (3) [officer] remarked that [other officer] was just buying some time by talking to [passenger]. . . . We initially note that [officer’s] remark concerning [other officer] ‘buying time’ is troubling. But the trial court was not required to examine [the] statement in a vacuum. The officers were justified in checking whether there were any outstanding warrants for [passenger]. . . . The traffic stop may have concluded more quickly if the officers had requested information on outstanding warrants for [D] and [passenger] at the same time. But the officers were under no obligation to investigate the situation in any particular order.”

D’s consent to house search deemed voluntary, despite presence of twenty officers on D’s property and a police helicopter hovering overhead. Schield v. State, Nos. 01-11-00466-CR, 01-11-00467-CR (Tex.App.—Houston [1st Dist] Aug 9, 2012, pet. ref’d, untimely filed).

        “‘An environment of few or many officers is significant in determining the validity of a consent to search,’ and the Court of Criminal Appeals ‘has been critical of consent given in the face of numbers of armed officers.’ . . . We find this case distinguishable. . . . [D] was behind a tall privacy fence on his prop­erty when [officer] called and asked him to come to the front of the property. . . . [O]nly two officers, with no guns drawn, approached the middle-aged [D] at his gate to ask for con­sent. . . . [D] further testified that none of the officers yelled at him, and that he made small talk with the officers before they asked him to sign the consent form.”

Activity of animal cruelty was not in plain view of officer, despite officer hearing (but not seeing) a puppy yelping. State v. Betts, No. 10-11-00419-CR (Tex.App.—Waco Aug 9, 2012, pet. granted).

D’s refusal to grant permission to search vehicle negated consent given by her common-law husband (issue of first impression). State v. Copeland, 380 S.W.3d 214 (Tex.App.—Corpus Christi Aug 9, 2012, pet. granted).

Trial court did not err in suppressing blood test result given officer’s failure to strike out inapplicable portions of “form” warrant affidavit before singing it. State v. Lollar, No. 11-10-00158-CR (Tex.App.—Eastland Aug 9, 2012).

        “At the hearing, [officer] confirmed that she did not perform any sobriety tests. She admitted that paragraph seven of the affidavit was untrue. . . . [Officer] admitted that she had not read the affidavit before she signed it. She ‘didn’t think to go back and read it and mark out stuff that did not apply.’ . . . Form affidavits can be a valuable tool for law enforcement when time is of the essence; if abused, they also have the potential to infringe on Fourth Amendment rights. . . . It is clear from the record, especially the findings of fact and conclusions of law, that, due to credibility issues, the trial court became concerned with the entire affidavit, not just those portions attacked by the motion to suppress.”

In deciding that D, found sleeping in his vehicle, had “operated” the vehicle for purposes of DWI, among the factors considered were that D had his seatbelt on and had not reclined the driver’s seat and that the engine was running (despite D’s argument that the running engine served merely to power the heater). Schragin v. State, 378 S.W.3d 510 (Tex.App.—Fort Worth 2012).