November 2014 SDR - Voice for the Defense Vol. 43, No. 9

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Saturday, December 6th, 2014

Voice for the Defense Volume 43, No. 9 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

Florida’s threshold requirement that defendants show an IQ score of 70 or below to submit additional intellectual disability evidence is unconstitutional because it creates an unacceptable risk that persons with intellectual disabilities will be executed. Hall v. Florida, 134 S. Ct. 1986 (2014).

        After Atkins v. Virginia, 536 U.S. 304 (2002), petitioner inmate argued that he should not be executed due to his intellectual disability. Petitioner, sentenced to death for murder, presented an IQ score of 71. The Florida Supreme Court affirmed the denial of this motion, holding that Fla. Stat. § 921.137(1) required that petitioner show an IQ test of 70 or below before presenting additional evidence of his intellectual disability. The U.S. Supreme Court reversed and remanded.

        The Court held that Florida’s cutoff rule violated the Eighth Amendment because it considered an IQ score as final and conclusive evidence of intellectual capacity and it failed to recognize that the IQ score was imprecise. IQ test scores should not be read as a single fixed number but as a range; each IQ test had a standard error of measurement, which should be considered. When a defendant’s IQ score falls within the test’s acknowledged and inherent margin of error, the defendant should be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits. The Florida statute misused the IQ score on its own terms and barred evidence that must be considered in determining whether a defendant in a capital case has intellectual disability; accordingly, the Supreme Court held that it was invalid under the Eighth Amendment. While the statute may be constitutional on its face, the Florida courts have interpreted it too narrowly by relying only on an IQ test score—which itself is not infallible.

D was acquitted for double jeopardy purposes when the trial court granted D’s directed verdict motion upon the State’s refusal to present evidence to the empaneled and sworn jury. Martinez v. Illinois, 134 S. Ct. 2070 (2014).

        When the court swore in the jury and invited the State to present its first witness, the State was not ready and declined to present any evidence. D moved for a directed not-guilty verdict, which the court granted. The State appealed that the trial court should have granted its motion for a continuance. The Supreme Court of Illinois held that D was never at risk of conviction and, therefore, that jeopardy did not attach for purposes of retrying D on the aggravated battery and mob action charges. The U.S. Supreme Court reversed the Supreme Court of Illinois and remanded.

        “The question is whether the Double Jeopardy Clause [of the U.S. Constitution’s Fifth Amendment] bars the State’s attempt to appeal in the hope of subjecting D to a new trial. The Illinois Supreme Court manifestly erred in allowing the State’s appeal, on the theory that jeopardy never attached because D ‘was never at risk of conviction.’ . . . Our cases have repeatedly stated the bright-line rule that ‘jeopardy attaches when the jury is empaneled and sworn.’ . . . There is simply no doubt that D was subjected to jeopardy. And because the trial court found the State’s evidence insufficient to sustain a conviction, there is equally no doubt that [D] may not be retried. . . . [T]he trial court’s action was an acquittal because the court ‘acted on its view that the prosecution had failed to prove its case.’”

Chemical Weapons Convention Implementation Act § 229, which criminalizes the possession or use of “chem­ical weapons,” does not reach D’s state assault con­vic­tion, arising from her effort to poison her husband’s mistress by spreading chemicals on (among other things) a doorknob, causing only a minor burn easily treated with water. Bond v. United States, 134 S. Ct. 2077 (2014).

        D was convicted of possessing and using a chemical weapon, in violation of 18 U.S.C.S. § 229(a). The Third Circuit rejected D’s constitutional challenge, holding that § 229 was necessary and proper to carry out the Chemical Weapons Con­vention Implementation Act of 1998. The Supreme Court reversed.

        Because the federal constitutional structure left local crim­inal activity primarily to the states, judicial precedent gen­erally declined to read federal law as intruding on that unless Congress clearly indicated that the law should have such reach. The Chemical Weapons Act contained no such clear in­di­cation where the general definition of “chemical weapon,” although defined broadly, was not a clear statement that Congress meant the statute to reach local criminal conduct. The chemicals D used were not of the sort that an ordinary person would have associated with instruments of chemical warfare. Moreover, state laws were sufficient to prosecute D. Thus, § 229 was read consistent with the principles of federalism inherent in the federal constitutional structure.

Fifth Circuit

When D challenged the government’s use of peremptory challenges to strike five of the six African-American potential jurors, the court did not clearly err in determining that the government’s race-neutral explanations for the strikes were not simply pretexts for racial discrimination. United States v. Pratt, 728 F.3d 463 (5th Cir. 2013).

        However, in calculating the Guideline imprisonment range applicable to D convicted of Racketeer Influenced and Cor­rupt Organizations Act (RICO) conspiracy, the court committed re­ver­si­ble plain error in applying a two-level enhancement under USSG § 2B1.1(b)(8)(A) (because that special offense characteristic does not apply to a crime that falls under § 2S1.1) and also by miscalculating the value of the laundered funds (by using the total amount of loss). But for these errors, instead of a Guideline imprisonment range of 78 to 97 months, D should have faced a range of 70 to 87 months (and possibly lower). Although D’s 87-month prison sentence fell within the lower range, her substantial rights were affected because there was “additional evidence” that her sentence would have been lower. The Fifth Circuit remanded for resentencing.

In healthcare-fraud prosecution, district court abused its discretion in excluding evidence of D’s law-abiding character; however, the error was harmless given the overwhelming evidence that D knowingly submitted fraudulent claims, including D’s own signed admission. United States v. De Leon, 728 F.3d 500 (5th Cir. 2013).

        The district court did commit reversible plain error in assessing a $750,000 restitution order because the court included losses outside the temporal scope of the offenses of conviction as charged in the indictment. Accordingly, the Fifth Circuit vacated the restitution order and remanded for recalculation of the restitution amount.

In sentencing D convicted of food-stamp fraud at his two convenience stores, district court properly applied a two-level enhancement under USSG § 2B1.1(b)(9)(C) based on “a violation of a prior, specific judicial or administrative order, injunction, decree, or process.” United States v. Nash, 729 F.3d 400 (5th Cir. 2013).

        The factual predicate for the application of this enhancement was satisfied by a 2008 letter from the U.S. Department of Agriculture (USDA), in which the USDA (1) concluded that the food-stamp violations identified in an earlier letter had occurred, (2) imposed a civil money penalty, (3) warned that failure to pay the fine would result in disqualification from the food-stamp program, (4) warned that further food-stamp activity after disqualification would result in a fine and possible criminal prosecution, and (5) told D this was a final determination unless D submitted a written request for review. This letter was tantamount to the sort of “administrative warning” referred to in Application Note 7(C) of § 2B1.1.

District court abused its discretion in entering a preliminary injunction and stay of D’s execution based on the State of Louisiana’s failure to disclose the specific procedures for (and particularly, the drugs to be used in) executions. Sepulvado v. Jindal, 729 F.3d 413 (5th Cir. 2013).

        No appellate court has recognized the due-process right to disclosure of a state’s execution protocol, and the Fifth Circuit declined to be the first.

In prosecution for distribution of cocaine base, evidence that D was arrested 10 months prior with 21 grams of cocaine base and $3,522, along with evidence of D’s concurrent statement that he sold crack cocaine because he did not know how to do anything else and had mouths to feed, was not intrinsic. United States v. Kinchen, 729 F.3d 466 (5th Cir. 2013).

        Rather, it was extrinsic evidence subject to Fed. R. Evid. 404(b); nevertheless, the district court did not abuse its discretion in admitting the evidence. It was admissible to prove D’s motive, and the court did not abuse its discretion in holding that the prejudicial effect of the evidence did not substantially outweigh its probative value.

        (2) Under Dorsey v. United States, 132 S. Ct. 2321 (2012), D, whose crime preceded the enactment of the Fair Sentencing Act (FSA) but whose sentencing was after that date, was entitled to the benefit of the lower statutory minimum (five years) ushered in by the FSA. Nevertheless, the error in applying a higher statutory minimum was harmless, because it was clear that the district court’s upward-variance sentence was based off the Guideline range of 120 to 150 months, not off the erroneous statutory minimum.

Where prisoner D alleged that the Texas Department of Criminal Justice failed to accommodate several tenets of his religion, district court erred in granting TDCJ sum­mary judgment on D’s claim relating to his possession of a deceased relative’s hair because the record did not show that TDCJ’s prohibition was the least restrictive means of furthering TDCJ’s compelling interests. Chance v. Texas Dep’t of Criminal Justice, 730 F.3d 404 (5th Cir. 2013).

D’s felony conviction for assault under Tex. Penal Code § 22.01 was a “violent felony” triggering the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e); though D’s assault could have rested on a mens rea of only recklessness, recklessly causing bodily injury to another qualifies as a “violent felony” under the ACCA “otherwise” clause. United States v. Espinoza, 733 F.3d 568 (5th Cir. 2013).

Government did not breach its plea agreement with D; government did not promise to file a motion for downward departure under USSG § 5K1.1, but rather clearly retained its discretion as to whether to do so. United States v. Barnes, 730 F.3d 456 (5th Cir. 2013), on denial of reh’g, 739 F.3d 182 (5th Cir. 2013).

        Furthermore, the U.S. Attorney General’s August 12, 2013, memorandum (directing prosecutors to decline, in some instances, to charge drug quantities triggering mandatory minimums) did not afford D any relief because it was issued after D was sentenced and because the memorandum stated that it was not intended to create any rights. On denial of rehearing, the Fifth Circuit held that the Attorney General’s August 29, 2013, memorandum on the same subject likewise did not purport to offer D any relief, as he had already been sentenced.

D’s New York state misdemeanor conviction for third-degree sexual abuse of a 15-year-old was an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(A); “sexual abuse of a minor” is included in the definition of “aggravated felony,” and there is no requirement that an “aggravated felony” under § 1101(a)(43)(A) actually be a felony. United States v. Hernandez Ramirez, 731 F.3d 351 (5th Cir. 2013).

Court of Criminal Appeals

Trial court lacked jurisdiction to revoke D’s community supervision because the revocation was sought after the period of supervision expired; the period expired on completion of the stated duration of supervision rather than the date of expiration stated by the trial court. Whit­son v. State, 429 S.W.3d 632 (Tex.Crim.App. 2014).

        CCA reversed COA and remanded to the trial court. Nesbit v. State, 227 S.W.3d 64 (Tex.Crim.App. 2007), sets out the required end-date calculation and controls in the event of a conflict with a specified end-date. Because an order for community supervision takes effect on the date of its entry, the duration of this period includes this date and excludes the anniversary date on the final year. “In this case, the error began with the first extension; the trial court ordered an extension of one year—to April 4, 2007—yet the order erroneously specified an end-date two days in excess of one year. The error was repeated in the subsequent extensions, each of which extended supervision for a defined period of years or months. Accordingly, we conclude that appellant’s deferred adjudication ended on October 4, 2009, and the trial court, therefore, did not retain jurisdiction to grant the state’s motion to adjudicate filed on October 5 of that year.”

COA had jurisdiction to consider convicted D’s appeal of unfavorable findings from a hearing on DNA testing. Whitfield v. State, No. PD-0865-13 (Tex.Crim.App. May 7, 2014).

        In 1981, a jury found D guilty of rape and assessed 15 years’ imprisonment. In 2007, he moved for, and was granted, post-conviction DNA testing under Tex. Code Crim. Proc. ch. 64. After receiving the test results, the trial court held the required article 64.04 hearing and found no reasonable probability that D would not have been convicted had the results been available at his trial. D timely filed a notice of appeal. COA held that Chapter 64 does not authorize an appeal of unfavorable findings after post-conviction DNA testing is completed. It dis­missed the appeal for want of jurisdiction. CCA reversed COA and remanded to COA for further consideration consistent with CCA’s decision.

        “We think that the courts of appeals have been given authority to consider the sufficiency of the evidence as well as other grounds of appeal. The only limit that the statute placed on those courts was that they would not have jurisdiction of DNA-testing appeals in death-penalty cases. . . . [A]fter a final decision of a court of appeals of a DNA-testing appeal in a non-death-penalty case, the results of the proceeding may be used for an application for post-conviction habeas-corpus relief under Article 11.07.”

All the circumstantial evidence warranted the conclusion that a half-million dollars in D’s truck was the pro­ceeds of drug trafficking. Acosta v. State, 429 S.W.3d 621 (Tex.Crim.App. 2014).

        D, convicted of money laundering after officers found half a million dollars in cash hidden inside the speaker box of his tractor-trailer, argued that the evidence was legally insufficient to prove that the money represented proceeds from the de­livery of a controlled substance. COA rejected that argument. CCA affirmed. The cumulative force of the evidence was sufficient to prove, beyond a reasonable doubt, that the cash was the proceeds of the sale of a controlled substance, as a drug dog alerted on two bags containing cash, and this was cir­cumstantial evidence of a link between the $502,020 and a drug deal; the amount of the money, its packaging, and its location together constituted persuasive evidence that the money was related to drug trafficking, supporting D’s conviction for money laundering, Tex. Penal Code § 34.02(a)(1).

Applicant’s motion to stay his execution was denied be­cause his application did not satisfy the statutory re­quirements. Ex parte Campbell, 439 S.W.3d 925 (Tex.Crim.App. 2014).

        In 1992, D was found guilty of capital murder and sentenced to death. On direct appeal, CCA affirmed. D then filed four habeas applications, with arguments that his execution would violate the Eighth Amendment because he was “mentally retarded” and the jury should have determined that issue; of Brady and actual innocence; and of a Penry claim. CCA denied each application, including this one.

        “[T]he allegations do not satisfy the requirements of [Tex. Code Crim. Proc. art.] 11.071 § 5. Accordingly, the application is dismissed as an abuse of the writ. Art. 11.071 § 5(c). Further, we decline to reopen the prior writ applications in which applicant previously raised these claims.”

D failed to prove his actual innocence by clear and con­vincing evidence due to the sheer number of back and forth, inconsistent stories. Ex parte Harleston, 431 S.W.3d 67 (Tex.Crim.App. 2014).

        CCA denied D’s habeas application claiming actual innocence because even though the victim’s recantation of her al­le­gations of sexual abuse against D took place after D exhausted his appeals, and therefore was newly discovered evidence under Tex. Code. Crim. Proc. art. 11.07, § 3(d), the newly discovered evidence was not credible, as significant evidence showed that a witness testified untruthfully at the evidentiary hearing and the victim’s recantations and stories explaining why she recanted were inconsistent, implausible, and portions were factually impossible, and were contradicted by testimony adduced at trial.

D’s five convictions from a single home invasion violated double jeopardy. Cooper v. State, 430 S.W.3d 426 (Tex.Crim.App. 2014).

        D was convicted of five counts of aggravated robbery pur­suant to an indictment that named three different complainants, with all counts arising from a single home invasion. The jury found him guilty of all five counts and assessed his pun­ishment at 60 years’ imprisonment on two of the counts, 80 years on two other counts, and 65 years on the remaining count, all to be served concurrently. COA affirmed the judgments.

        D raised two grounds, both of which challenged COA’s holding that double jeopardy was not violated when he was convicted of both aggravated robbery by causing bodily injury and aggravated robbery by threat to the same victim during a single robbery. These grounds involve D’s convictions for two separate counts of aggravated robbery of each of two of the named complainants. “After reviewing the opinion of the court of appeals, the record, and the briefs of the parties, we conclude that appellant’s challenged convictions do violate the double-jeopardy clause. Accordingly, we sustain appellant’s grounds for review. We reverse the judgment of the court of appeals and remand[.]”

CCA upheld the State’s indictment amendment and trial court’s rejection of a hearing for D’s new trial motion. Perez v. State, 429 S.W.3d 639 (Tex.Crim.App. 2014).

        D was convicted of three counts of aggravated sexual assault of a child and two counts of indecency with a child by contact. He was sentenced to life in prison for each aggravated assault count and 20 years in prison, to run consecutively, and a $10,000 fine for each indecency count. COA affirmed. Here, D raised two issues: 1) whether the indictment was properly amended from its original 11 counts to 5, and 2) whether the trial court committed reversible error by not granting D a hear­ing on his new trial motion. Finding no error, CCA affirmed.

        Pursuant to Tex. Code Crim. Proc. arts. 28.10 and 28.11, D was given actual notice of the proposed amendments to the indictment and very clearly stated that he had no objections, and the changes did not add any new charges or alter the language of the old charges; such changes did not invade the province of the grand jury because the grand jury returned a true bill on all the charges for which D was tried and ultimately convicted. Second, there was no evidence that D or his attorney took steps to obtain a setting or attempted to get a ruling on a request for a hearing on his new trial motion.

In a habeas case alleging that a laboratory technician committed misconduct, resulting in false evidence, the State successfully rebutted the presumption of falsity and demonstrated that the technician did not commit intentional misconduct in D’s case. Ex parte Coty, 432 S.W.3d 341 (Tex.Crim.App. 2014).

        After malfeasance of a laboratory technician who worked on D’s case was discovered, D filed a habeas corpus application. CCA granted relief. However, before mandate issued, CCA withdrew its opinion, granted rehearing, and issued a briefing order to the parties. In January 2014, CCA issued a second opinion that set forth a new analytical framework to resolve claims of forensic technician misconduct. CCA then remanded the case to the habeas court to apply the principles of that opinion. The habeas court issued new findings of fact and conclusions of law recommending that CCA deny relief. CCA here affirmed the habeas denial, based on the State’s showing of detail and consistency in the chain of custody report and the technicians’ worksheets. Additionally, CCA concluded that even if the evidence of falsity had not been rebutted, the evidence was not material because an officer’s dashboard camera cap­tured the seizure, weighing, and field testing of the drug exhibit as well as a positive K-9 alert on D’s car.

An amendment to the Texas evading arrest statute was constitutional; COA properly upheld the denial of D’s pretrial habeas application. Ex parte Jones, 440 S.W.3d 628 (Tex.Crim.App. 2014).

        D was indicted for evading arrest with a motor vehicle and challenged that the 2011 amendment to evading arrest statute, Tex. Penal Code § 38.04(b)(2)(A), was facially unconstitutional because it violated the single-subject rule of Tex. Const. art. III, § 35(a), which states, “No bill . . . shall contain more than one subject.” D challenged the validity of a provision within that amendment that elevated the range of punishment, from a state-jail felony to a third-degree felony, for first-time offenders who evade arrest with a motor vehicle. Thus, if D was incorrect in his constitutional challenge, the amendment was valid and his offense was punishable as a third-degree felony; if he was correct, his offense was punishable as a state-jail felony.

        CCA concluded that the bill, described in its title as relating to a tire-deflation-device offense and evading-arrest-with-a-motor-vehicle offense, did not violate the single-subject rule because the provisions had the same general subject, imposition of criminal penalties described in the Texas Penal Code for offenses involving motor vehicles, and had a mutual connection in that their enactment was intended to better protect law enforcement and the public from actors who evaded arrest. In accordance with the Texas constitutional prohibition against judicial invalidation of a bill for title deficiencies, the court considers the title only for limited informational purposes in deciphering a bill’s subject or subjects.

Officers had reasonable suspicion to detain D because circumstances combined with an anonymous tip contributed to their suspicion that he was selling drugs, and the officers were diligent in calling for a K-9 dog to confirm or dispel their suspicion; although D originally had standing to challenge the search of the borrowed van, he abandoned his standing when he fled from the van and officers. Matthews v. State, 431 S.W.3d 596 (Tex.Crim.App. 2014).

        D was charged with possession with intent to deliver co­caine. He filed a pretrial motion to suppress the cocaine offi­cers found during a warrantless search of a van he had borrowed. After hearing the evidence, the trial judge ruled that D’s original detention in the patrol car was reasonable and that he lacked standing to challenge the search of the van. A jury then found D guilty. COA affirmed, agreeing that D lacked standing to challenge the van’s search and upholding D’s detention, even though it was based largely on an anonymous tip. CCA affirmed.

        Although D originally had standing to challenge the search of the borrowed van, he abandoned any expectation of pri­vacy (and hence his standing) when he fled from the van and officers. Second, the officers had reasonable suspicion to sup­port D’s detention that was not based solely on the anonymous tip but on the location and time of night, and D’s act of fleeing increased their suspicion and further justified his con­tinued detention to await the arrival of a drug dog.

A juvenile’s claim that his mandatory life without parole sentence violated the Eighth Amendment was not forfeited by his failure to urge his claim in trial court. Garza v. State, 435 S.W.3d 258 (Tex.Crim.App. 2014).

        In 2011, a jury convicted D of capital murder for his involvement in a stabbing death for the purpose of stealing a car. The State waived the death penalty because D was a juvenile. Immediately upon conviction, D was sentenced to life with­out parole pursuant to Texas Penal Code § 12.31(b), as it existed at the time. No sentencing hearing was conducted, and “[n]o objection was voiced to the procedure employed or to the imposition of the sentence imposed.” D appealed the sentence arguing that because he was a juvenile, the sentence violated Miller v. Alabama, 132 S.Ct. 2455 (2012) (holding that the mandatory imposition of a life-without-parole sentence upon a juvenile is unconstitutional). COA held that by failing to object in trial court, D forfeited this claim on appeal. CCA reversed COA.

        COA’s decision conflicted with Ex parte Maxwell, 424 S.W.3d 66 (Tex.Crim.App. 2014). “Maxwell’s Miller claim was not subject to procedural default. This implied holding was a condition precedent to granting relief; it was a threshold through which the Court allowed Maxwell’s claim to pass. With­out it, the Court could not entertain the merits of Maxwell’s claim consistent with our established case law, much less grant relief on it. Maxwell’s result decided the issue before us today: substantive status-based or individualized-sentencing claims under the Eighth Amendment and embraced by Miller are not forfeited by inaction.”

D’s confession that he threatened complainant by pointing a gun at her, took her property, and shot her was sufficient to prove capital murder; there was also sufficient evidence to support his death sentence. Soliz v. State, 432 S.W.3d 895 (Tex.Crim.App. 2014).

        Appellant was convicted of capital murder, specifically an intentional murder in the course of committing or attempting to commit burglary or robbery. Based on the jury’s answers to the special issues in Tex. Code Crim. Proc. art. 37.071 §§ 2(b) and (e), the judge sentenced appellant to death. Direct appeal to CCA was automatic. Appellant raised eighteen points of error. CCA found them to be without merit.

        D’s confession that he threatened complainant by pointing a gun at her in her home, took her property, and shot her was sufficient to prove his guilt of capital murder. “Moreover, there was ample corroborating evidence,” including a witness’s testimony, forensic evidence connecting the gun recovered from his vehicle to the bullet and shell casing from complainant’s home, and his fingerprint inside her home. There was also sufficient evidence to support his death sentence because a rational trier of fact could have found a probability that he would commit criminal acts of violence constituting a continuing threat to society; the jurors weighed his evidence of brain damage and partial fetal-alcohol syndrome along with other relevant evidence and made a normative judgment that the evidence did not warrant a life sentence.

Court of Appeals

Trial court erred in determining that the Director of the Children’s Advocacy Center of Paris was the proper outcry witness and in exempting this Director from the witness exclusion rule; however, these errors were harmless. Allen v. State, 436 S.W.3d 827, 832 (Tex.App.—Texarkana 2014).

        “To be admissible under Article 38.072 of the Texas Code of Criminal Procedure, outcry testimony must be elicited from the first adult to whom the outcry is made. . . . [T]he child’s statement to the witness must describe the alleged offense, or an element of the offense, in some discernible manner and must be more than a general allusion to sexual abuse. . . . On appeal, the State argues that [complainant’s] statements to [another witness] were not an outcry because they amounted to nothing more than a general allusion to sexual abuse. We disagree. . . . [Complainant’s] statements to [the other witness] establishing how, when, and where the offense alleged in the State’s indictment occurred constituted an outcry for purposes of Article 38.072 of the Texas Code of Criminal Procedure, and the fact that they were made to [the other witness] made her the proper outcry witness in this case. [Complainant’s] tes­ti­mony alone was sufficient to convict [D]. Therefore, we are reasonably certain that the admission of [the Director’s] testimony did not influence the jury verdict or had but a slight effect. Accordingly, we find that the trial court’s error in allowing [the Director] to testify as the outcry witness in this case was harmless.”

        Furthermore, the trial court erred in allowing the Director to remain in the courtroom during complainant’s testimony. COA found this harmless: “After reviewing the entire record, however, we have fair assurance that the error either had no influence on the jury’s deliberations or had such a slight effect that it was imperceptible.”

The evidence was legally insufficient for D’s DWI conviction; no direct or circumstantial evidence appeared of record enabling a reasonable fact finder to infer that D operated his vehicle while intoxicated. Murray v. State, 440 S.W.3d 927 (Tex.App.—Amarillo 2014).

        The State convicted appellant of driving while intoxicated; thus, it was obligated to have shown, beyond reasonable doubt, that appellant was “intoxicated while operating a motor vehicle in a public place.” Tex. Penal Code § 49.04(a). COA rendered an acquittal.

        “CCA has held that a person operates a vehicle when the totality of the circumstances demonstrate that he ‘took action to affect the functioning of his vehicle in a manner that would enable the vehicle’s use.’ . . . Texas troopers found appellant alone, reclining, asleep in the seat of his pickup in the cold early hours of a January morning. The vehicle was parked on a private drive near a fireworks stand with its radio on. Though a portion of the vehicle remained on a shoulder adjacent to the roadway, none was on the roadway. Furthermore, while its motor was running, its transmission was not engaged; that is, it was in park. No signs of containers holding alcoholic sub­stances were found around the vehicle. How long appellant and his vehicle were at the locale went unmentioned, as did the time at which he arrived there. Moreover, the trooper who first encountered and then awoke appellant acknowledged that appellant was not operating the vehicle in his presence. The same trooper also testified both that a sleeping person is not operating a vehicle and that he did not know if appellant had consumed beer at the scene or elsewhere.”

COA reversed the denial of D’s motion to suppress; officer lacked reasonable suspicion. Jaganathan v. State, 438 S.W.3d 823 (Tex.App.—Houston [14th Dist] 2014).

        “Because the arresting officer lacked reasonable suspicion to detain appellant for violating the ‘Left Lane for Passing Only’ sign, we conclude that the trial court committed harm­ful error when it denied appellant’s motion to suppress. We reverse and remand.”