October 2012 SDR - Voice for the Defense Vol. 41, No. 8

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Thursday, October 25th, 2012

Voice for the Defense Volume 41, No. 8 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

The Fair Sentencing Act applied to defendants who committed the crimes before the effective date but were sentenced after, including individuals who were sentenced during the interim sentencing period of the FSA. Dorsey v. United States, 132 S. Ct. 2321 (2012).

        Petitioner defendants were convicted in separate trials of selling crack cocaine, and in both cases the trial judge found that the Fair Sentencing Act, 124 Stat. 2372, did not apply because they committed the crimes before August 3, 2010, when the FSA took effect. The Seventh Circuit affirmed. The U.S. Supreme Court vacated the Seventh Circuit’s judgment in both cases and remanded.

        The first D sold 53 grams of crack cocaine in March 2007, and the second D sold 5.5 grams of crack cocaine in August 2008; they were convicted but sentenced after the effective date of the FSA. The Court held that changes the FSA made to the Anti-Drug Abuse Act of 1986, which lowered the mandatory minimum sentences for selling crack cocaine, applied to Ds who committed the crimes before August 3, 2010, but were sentenced after, including individuals such as the second D, who was sentenced after August 3, 2010, but before November 1, 2010, when the U.S. Sentencing Commission adopted interim sentencing guidelines to implement the FSA.

The Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. Miller v. Alabama, 132 S. Ct. 2455 (2012).

        Two 14-year-olds convicted of murder petitioned that their sentences to life imprisonment without the possibility of parole, under the mandatory schemes of Alabama and Arkansas statutes, were cruel and unusual. The U.S. Supreme Court reversed the Alabama Court of Criminal Appeals and the Arkansas Supreme Court, which held that the mandatory schemes did not violate the Eighth Amendment.

        Mandatory life without parole for a juvenile precluded consideration of his age and its hallmark features: immaturity, impetuosity, and failure to appreciate risks and consequences. It prevented taking into account the family and home environment surrounding him, from which he could not usually extricate himself no matter how brutal or dysfunctional. It neglected the circumstances of the homicide offense, including the extent of his participation and the way familial and peer pressures may have affected him. It ignored that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. While some states allow prosecutorial discretion in whether to try a juvenile as an adult, those provisions do not mandate standards, protocols, or appropriate considerations.

The Court nullified three Arizona immigration provisions that operated in areas solely controlled by federal policy or interfered with federal enforcement. Arizona v. United States, 132 S. Ct. 2492 (2012).

        The United States sued petitioners, the Governor and State of Arizona, seeking a determination that four Arizona immigration codes enacted in 2010 were preempted by federal law. The U.S. District Court of Arizona enjoined the State from enforcing the statutes; the Ninth Circuit affirmed. The Supreme Court affirmed the Ninth Circuit in part, reversed in part, and remanded.

        The Supreme Court found that §§ 3, 5(C), and 6 of S.B. 1070 were preempted by federal law; however, it was not clear at this stage that § 2(B) was preempted—which required state officers to make a reasonable attempt to determine the immigration status of a person they stopped, detained, or arrested if reasonable suspicion exists that the person is an illegal alien, and to determine the immigration status of any person who is arrested before the person is released. Section 3 was preempted because it intruded on the field of alien registration, § 5(C) was preempted because it imposed criminal sanctions on aliens who sought or accepted employment when U.S. law did not make those activities a crime, and § 6 was preempted because it interfered with the system Congress created for allowing the arrest of illegal aliens.

Fifth Circuit

18 U.S.C.S. § 3582(a) precludes a court from lengthening the time a defendant must serve in prison based on the defendant’s rehabilitative needs when supervised release is revoked. United States v. Breland, 647 F.3d 284 (5th Cir. 2011), vacated, 132 S. Ct. 1096 (2012), remanded to 463 Fed. Appx. 376 (5th Cir. Mar 5, 2012).

        On original submission, the Fifth Circuit adhered to United States v. Giddings, 37 F.3d 1091 (5th Cir. 1994), holding that upon revocation of supervised release, a district court may im­pose a longer prison sentence to address the rehabilitative needs of the defendant; although the Supreme Court held in Ta­pia v. United States, 131 S. Ct. 2382 (2011), that courts may not impose or lengthen a prison term to promote an offender’s re­ha­bil­i­ta­tion, that holding is limited to initial sentencings, not revocation sentencings. The statute governing supervised release, 18 U.S.C. § 3583, specifically requires courts to consider rehabilitation when revoking a defendant’s supervised release and sentencing him thereon. Therefore, the district court did not err in imposing a 35-month revocation sentence based on the desire to make sure D could participate in the Federal Bureau of Prisons’ 500-hour drug treatment program. However, upon D’s petition for certiorari, the government advised the Supreme Court that it had changed its position, and now agreed with D (as do the First and Ninth Circuits). The Court granted certiorari, vacated the judgment below, and remanded for consideration in light of the government’s new position. On remand, the Fifth Circuit, apparently agreeing with the position of the parties and other circuits, remanded for resentencing.

The district court did not reversibly err by reseating two white veniremembers, on the government’s objection, whom the court determined Ds improperly used peremptory challenges to strike on the basis of race. United States v. Bennett, 664 F.3d 997 (5th Cir. 2011).

        Under the reasoning of Batson v. Kentucky, 479 U.S. 79 (1986), and Georgia v. McCollum, 505 U.S. 42 (1992), the Equal Protection Clause prohibits a black defendant from using a peremptory challenge to strike a white prospective juror because of that juror’s race. Furthermore, the district court did not clearly err in determining that Ds’ facially race-neutral reasons for striking the two veniremembers were in fact pretextual. The Fifth Circuit therefore affirmed the district court’s determination that Ds struck the white veniremembers for racially motivated reasons.

Court of Criminal Appeals

CCA deleted the cumulation of D’s sentences because the record does not support mandatory cumulation un­der Health & Safety Code § 481.134(h) and because the trial court did not otherwise intend to cumulate the sentences. Moore v. State, 371 S.W.3d 221 (Tex.Crim.App. 2012).

        The trial court and COA determined that cumulation of D’s sentence for possession of meth with an earlier sentence he received for possession of a controlled substance in a drug-free zone was mandatory under Tex. Health & Safety Code § 481.134(h), which states, “Punishment that is increased for a conviction for an offense listed under this section may not run concurrently with punishment for a conviction under any other criminal statute.” CCA deleted the cumulation order; D’s sentences will run concurrently.

        D’s current conviction is for an offense under § 481.115(d), which is also “listed” within the drug-free-zone statute in subsection (c). His current conviction, therefore, does not implicate the mandatory-cumulation provision so as to require cumulation of his sentence with his prior drug-free-zone sentence. The trial court and COA misconstrued caselaw and the plain language of the statute, which refers to “an offense listed under this section[.]”

D’s appeal was untimely because the mailbox rule in Tex. R. App. P. 9.2(c) applies only to documents sent via U.S. Postal Service. Castillo v. State, 369 S.W.3d 196 (Tex.Crim.App. 2012).

        D sought review of COA’s judgment, which dismissed as untimely his appeal from the county court’s denial of his habeas writ. CCA affirmed COA.

        D pled nolo contendere to misdemeanor assault-family violence and successfully completed his community supervision. Thereafter, he sought a writ of habeas corpus, alleging he had not been properly admonished about the deportation consequences when he entered the plea. Fifteen days after the date on which his notice of appeal was due from the county court’s denial of relief, D sent both a notice of appeal and a motion for extension of time. A private courier service delivered the notice of appeal to the trial court clerk the following day. D did not invoke the jurisdiction of the appellate court because the mailbox rule in Tex. R. App. P. 9.2(c) applied by its plain language only to documents sent via the U.S. Postal Service. The rule did not permit any other type of delivery or private courier system. Thus, the notice of appeal was filed when it was physically delivered to the clerk of the trial court as provided in Rule 25.2(b), which was one day past the extension deadline in Rule 26.3.

COA is no longer forbidden from reforming a conviction to a lesser offense unless the lesser offense was requested by the parties or included in the jury charge. Bowen v. State, No. PD-1607-10 (Tex.Crim.App. June 20, 2012).

        D was convicted of misapplication of fiduciary property valuing $200,000 or more and owned by her niece. No lesser-included offense instructions were submitted to the jury. COA concluded the evidence was legally insufficient to prove that the property equaled $200,000 or more; the niece was a beneficiary of only $103,344. Bound by Collier v. State, 999 S.W.2d 779 (Tex.Crim.App. 1999), COA did not reform the judgment to reflect a lesser-included offense because a lesser charge was not submitted to the jury. Instead, COA ordered acquittal. The State filed for review. CCA overruled Collier, reversed COA, and remanded to the trial court to reform the conviction to reflect the felony of misapplication of fiduciary property in the second degree.

        Acquittal was improper; although the State failed to prove the value of the property, it proved the elements of misapplication of fiduciary property. The failure to request the second-degree felony was not a result of gamesmanship by the State or D, but rather a mistake as to applicable law. The purpose of Collier, which was to prevent the State from overreaching and having an unfair advantage, has been lost through CCA’s subsequent decisions.

The evidence proved criminally negligent homicide: (1) D caused a death; (2) D ought to have been aware that there was substantial and unjustifiable risk of death from her conduct; and (3) D’s failure to perceive the risk constituted gross deviation from the standard of care of an ordinary person. Montgomery v. State, 369 S.W.3d 188 (Tex.Crim.App. 2012).

        Following a three-car collision in which a passenger was killed, D was convicted of criminally negligent homicide. COA reversed and rendered an acquittal, holding in part that cell phone use while driving did not justify criminal sanctions. CCA vacated COA’s judgment and remanded to COA to address D’s remaining points of error.

        The State proved the three marks to make a legally sufficient showing of criminally negligent homicide. D made an abrupt lane change, causing a truck to strike her SUV, which caused her SUV to strike another truck, from which the victim was ejected and died. Second, the State proved D ought to have been aware of the substantial and unjustifiable risk created by her conduct. She was driving at speeds high enough to be lethal, and it was common knowledge that failing to maintain a proper lookout and making an unsafe lane change without signaling or checking for traffic posed a great risk to other drivers. Further, D admitted that using a cell phone distracted her. The State had no burden to show that driving while using a cell phone was always risky or dangerous. Third, there was sufficient evidence of D’s gross deviation from the standard of care because after missing an entrance ramp, she cut across the safety barrier while using her cell phone.

For the purpose of competence to be tried, unless the legislature stated that an enhancement increased the punishment range and the level of the offense charged, the level of the offense is not changed by offenses alleged as enhancements. Ex parte Reinke, 370 S.W.3d 387 (Tex.Crim.App. 2012).

        In 1990, the State charged D with attempted murder, which is punishable by imprisonment from 2 to 20 years. The State also alleged two prior felony convictions as enhancements, which would permit imprisonment of 99 years or life. Before trial, D was declared incompetent and committed to a mental-health facility, where he has remained for more than 20 years.

        D filed a habeas corpus application on the grounds that he has been in the facility for 20 years—the maximum term for attempted murder. The State asserted that because of the enhancements alleged in the original indictment, the maximum term is imprisonment for life. The trial court denied relief, but COA granted relief. CCA affirmed COA.

        Although CCA had previously addressed the interplay between level of offense and enhanced punishment ranges, the court had not spoken to that issue in the context of Tex. Code Crim. Proc. art. 46B.0095: Maximum Period of Commitment or Outpatient Treatment Program Participation Determined by Maximum Term for Offense. The offense “to be tried” is second-degree attempted murder, which carries a maximum of 20 years. “The legislature clearly knows the difference between enhancing the level of an offense and enhancing the level of punishment.”

In holding that there were no facts in the record to support reasonable suspicion for the traffic stop, COA lacked the benefit of State v. Mendoza, 365 S.W.3d 666 (Tex.Crim.App. 2012), which held that the trial court is best positioned to evaluate officers’ credibility and clarify ambiguous findings. Delafuente v. State, 369 S.W.3d 224 (Tex. Crim. App. 2012).

Competency-to-be-executed claims are not cognizable on a habeas writ; second, the district court applied the correct legal standard and was within its discretion to find D competent. Green v. State, Nos. AP-76,374, AP-76,376, AP-76,381 (Tex.Crim.App. June 27, 2012).

        Before D’s scheduled execution in 2010, he applied for habeas relief on incompetency grounds. After the trial court held a hearing and found D competent, CCA stayed his execution to review the court’s determination. Here, CCA lifted D’s stay of execution.

        D argued that competency-to-be-executed claims had to be exempt from the general rule that the writ of habeas corpus should not be used to litigate matters that should have been raised on direct appeal. CCA found that neither the plain language of Tex. Code Crim. Proc. art. 11.071 nor its prior decisions established competency-to-be-executed claims as cognizable on a writ of habeas corpus. Article 46.05 provided D with all the process due to him. Second, the trial court used the correct standard of review under Article 46.05, abuse of discretion; the court did not abuse its discretion in finding D competent to be executed where the strongest evidence to support a finding of competency came from D’s expert, and D’s testimony indicated an understanding of the reason he was to be executed. Finally, CCA dismissed D’s appeal from the denial of his motion to recuse the trial judge; the order denying the motion could be reviewed only on appeal from the final judgment determining D competent to be executed.

The Texas Penal Code operates unconstitutionally to the extent that it purports to authorize successive prosecutions for engaging in organized criminal activity and one of the lesser-included predicate offenses listed in 71.02(a). Ex parte Chaddock, 369 S.W.3d 880 (Tex.Crim.App. 2012).

        D was indicted for engaging in organized criminal activity and aggravated assault. After being convicted of both offenses, D contended in a habeas corpus application that his aggravated assault conviction was the product of a successive prosecution following a conviction for a greater-inclusive offense, in violation of the Double Jeopardy Clause of U.S. Const. amend. V. CCA granted relief, vacated the judgment, and dismissed the aggravated assault indictment with prejudice.

        United States v. Dixon, 509 U.S. 688 (1993), did not adopt a constitutional test for “sameness” in the successive-prosecutions context that was any less protective than Blockburger v. United States, 284 U.S. 299 (1932), which comprised the substantive constitutional test for “sameness” in both the multiple-punishment and the successive prosecution contexts. Dixon held that “[i]n both the multiple punishment and multiple prosecution contexts . . . where the two offenses for which the defendant is punished or tried cannot survive the [Blockburger] ‘same-elements’ test, the double jeopardy bar applies.” This language does not support the proposition that legislative intent is the be-all and end-all of double jeopardy analysis, Blockburger notwithstanding, even for purposes of successive prosecutions. To the extent that Tex. Penal Code § 71.03(3) purported to authorize successive prosecutions for engaging in organized criminal activity and for the commission of one of the lesser-included predicate offenses listed in § 71.02(a), it operated unconstitutionally.

D was prejudiced by counsel’s failure to object to testimony about an extraneous crime that was inflammatory and could have been deflected by adequate investigation. Ex parte Rogers, 369 S.W.3d 858 (Tex.Crim.App. 2012).

        D pleaded guilty to aggravated assault with a deadly weapon and attempted aggravated sexual assault. He was sentenced to 75 years’ confinement plus a fine. He filed writs of habeas corpus, alleging he received ineffective assistance at the punishment stage. CCA granted relief and vacated the sentences so the trial court could conduct new punishment hearings.

        The witness’ testimony about a sexual assault for which D was suspect was highly prejudicial and should have been objected to by counsel. It would not be pure speculation to find that counsel’s deficiencies influenced the jury when D was given 35 years more than the higher end of punishment requested. Counsel should have investigated where D was during the attack on the witness, and he apparently knew that D was excluded by DNA. Had these facts been presented, the probative value of the witness’ testimony might not have been outweighed by prejudice. To qualify for habeas corpus relief, D established that (1) counsel’s performance was deficient, and (2) there was a reasonable probability that the result of the proceedings would have been different but for counsel’s unprofessional performance.

D was entitled to habeas relief on double jeopardy grounds; the trial court entered findings stating the aggravated robbery count was a lesser included offense of the attempted capital murder count, meaning there cannot be convictions for both under the facts of D’s case. Ex parte Carle, 369 S.W.3d 879 (Tex.Crim.App. 2012).

        The judgment of conviction as to the aggravated robbery count is vacated. The conviction and 30-year sentence for the attempted capital murder count in the same cause remains intact.

D timely appealed a nunc pro tunc judgment within 30 days of the judgment’s order; a nunc pro tunc judgment is an appealable order. Blanton v. State, 369 S.W.3d 894 (Tex.Crim.App. 2012).

        COA dismissed D’s appeal of the nunc pro tunc judgment after finding the appeal untimely. CCA reversed and remanded to COA to consider the merits of D’s appeal.

        A defendant’s notice of appeal is timely if filed within 30 days after the day that sentence was imposed or suspended in open court, or after the day the trial court entered an appealable order, Tex. R. App. P. 26.2(a)(1). Rule 23.1 does not expressly provide for the appeal of nunc pro tunc judgments, but caselaw and legislative acceptance provide that right. Although D’s original sentence was imposed in 1987, the third nunc pro tunc judgment was not ordered by the trial court until June 12, 2009. Because nunc pro tunc judgments are appealable orders, the 30-day filing period started the following day. D’s appeal applies only to issues arising from the entry of the third nunc pro tunc judgment; it is not an appeal of the conviction or the validity of the plea bargain.

The Texas attack-by-dog statute contained objective criteria for determining what conduct was prohibited and, therefore, did not permit arbitrary enforcement. Watson v. State, 369 S.W.3d 865 (Tex.Crim.App. 2012).

The judge did not err in giving an instruction on reckless aggravated assault because reckless aggravated assault is a lesser-included offense of intentional or knowing aggravated assault. Hicks v. State, No. PD-0495-11 (Tex.Crim.App. June 27, 2012).

        D was charged with aggravated assault by intentionally or knowingly causing bodily injury using a deadly weapon. The judge instructed the jury on intentional or knowing aggravated assault and gave a separate instruction for reckless aggravated assault. The jury convicted D of reckless aggravated assault. COA held that the judge erred in giving any instruction on reckless aggravated assault because (1) the original indictment did not charge a reckless state of mind, and (2) reckless aggravated assault is not a lesser-included offense of intentional aggravated assault. CCA reversed and remanded to COA to address D’s remaining points of error.

        Based on D’s testimony that the gun accidentally went off during the struggle, the trial judge instructed the jury that it could find D guilty of the lesser-included offense of aggravated assault by recklessly causing bodily injury. The trial judge’s inclusion of that instruction was proper under Tex. Code Crim. Proc. art. 37.09 and CCA’s caselaw.

Officer reasonably exercised his community-caretaking function in seizing D because, under the totality of the circumstances, it was reasonable to believe D needed help. Gonzales v. State, 369 S.W.3d 851 (Tex.Crim.App. 2012).

        D claimed the seizure violated his constitutional rights. The trial court overruled D’s motion to suppress, and COA and CCA affirmed.

        No party contested that D was seized when officer used his emergency lights. The trial court found that officer was primarily motivated by his role to protect public safety, and CCA found no reason to second-guess this. When officer saw D pull off the highway at 1:00 a.m. in a light traffic area, it was reasonable to believe D was experiencing some sort of distress. Officer could have concluded D was suffering distress from a flat tire or running out of gas, which was a distress no less significant to the function of an officer as a public servant.

Because D failed to demonstrate a prima facie case of racial venire strikes, the State was not required to ad­vance race-neutral reasons for its strikes. Hassan v. State, 369 S.W.3d 872 (Tex.Crim.App. 2012).

        COA held that D established a prima facie case of racial discrimination where the State used its only three peremptory challenges to strike two African-Americans and an Asian in a 14-person venire made up predominantly of racial minorities. CCA reversed and remanded to COA to address D’s remaining points of error.

        The statistics were not by themselves sufficient to establish a prima facie case of discrimination given the small sample sizes involved. The jury was racially diverse, with the racial composition of the jury corresponding roughly to the racial composition of the venire. D’s proffer of other circumstances was insubstantial; there was no significance to the occupations of the struck venire members, and none appeared to be connected to law enforcement.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Swabbing D’s hands during traffic stop without D’s consent not an illegal search because the white powdery substance on D’s hands was in officer’s plain view. Johnson v. State, Nos. 14-10-00941-CR, 14-10-00942-CR (Tex.App.—Houston [14th Dist] Mar 6, 2012).

Oath administered by judge over phone to officer deemed proper as to warrant that sought to seize blood; judge and officer were familiar with each other’s voices. Clay v. State, No. 10-09-00355-CR (Tex.App.—Waco Mar 21, 2012).

        “Although the Government Code defines an affidavit as a writing signed by the maker and sworn to before an officer authorized to administer oaths. . . . In this instance, the personal familiarity of the trooper and the judge with each other’s voice provides very strong indicia of truthfulness, trustworthiness, and reliability so as to call upon [trooper’s] ‘sense of moral duty to tell the truth and instill in him a sense of seriousness and responsibility.’”

Contraband pills deemed in plain view even though officer had to perform further investigation to discover the contraband nature of the pills. Garcia v. State, No. 04-11-00400-CR (Tex.App.—San Antonio Mar 21, 2012).

        “[O]fficers lacked probable cause to believe the pills were contraband until . . . questioning the women in the room and by calling poison control. [Officer] testified that it is not illegal to possess prescription pill bottles; however, he also testified that the brown bottles he observed sticking out of the purse were suspicious because they had no prescription labels, or any other type of label. . . . [T]here is nothing in the record before us to suggest that the officers intentionally took their time or stalled as a mere pretext to give them the opportunity to conduct a further investigation. . . . Being legitimately present in the bedroom, the officers observed the unlabeled pill bottles in plain view and conducted a limited further investigation through which they developed probable cause[.]”

Interaction deemed consensual encounter, despite the following: D’s vehicle was blocked by police car, officers activated cars’ emergency lights, and officer asked D to step out of vehicle. Daugherty v. State, No. 09-11-00381-CR (Tex.App.—Beaumont Mar 21, 2012).

        “When [Officer 1] stepped out of his patrol car, he saw [D] reach down into the floorboard. . . . [Officer 1] approached the truck, saw there was nothing in [D’s] hands, and asked [D] to step out of the truck. [D] complied with this request. [Officer 1] testified that [D] was free to leave, and he explained that had [D] refused to step out of the truck, [Officer 1] would have interviewed [D] at the door of the truck. [Officer 1] testified that [D] had done nothing unlawful.”

Police served an arrest warrant on D at D’s home; although police received information that D planned to “blow things up,” the subsequent warrantless search of D’s home (during which police discovered a pipe bomb) deemed unconstitutional. Page v. State, No. 05-10-01136-CR (Tex.App.—Dallas Mar 29, 2012).

        “In support of its contention the search was a protective sweep, the State claims the officers were concerned [D] might ‘hurt himself or someone else.’ . . . The evidence presented in the hearing on [D’s] motion to suppress established the officers did not enter [D’s] house until after [D] had been arrested, handcuffed, and removed from the premises. . . . [Officer] testified the sergeant told the officers to ‘go in the house and get [D’s] guns for safekeeping.’ Assuming this is sufficient to show the officers were primarily motivated by their community caretaking function, we then consider the second prong of the Corbin test: whether the officers’ beliefs that [D] needed help were reasonable. Because [D] had been removed from the house and was en route to jail before the officers began searching his house, there is clearly no evidence to show [D] was in distress, needed assistance, or presented a danger to himself or others.”

The following deemed insufficient to support traffic stop: D engaged brake and started to pull over; his vehicle bumped something on the side of the road and then came to a stop next to the curb. State v. Smith, No. 05-11-00742-CR (Tex.App.—Dallas Mar 30, 2012).

            The arrest report merely stated “reckless driving” and that officer “characterize[s] the bumping of the curb and the stopping as reckless driving.” Officer also testified that bumping the curb was indicia of intoxication. But the video establishes that D’s steering around the debris and the simultaneous bump was not a reckless or unreasonable act that would suggest D was “intoxicated while operating a motor vehicle in a public place.” Although officer’s testimony also referenced a turn signal violation, that was based merely on officer’s subsequent viewing of the video; the arrest report was silent to the same.