April 18, 2011 SDR


Vol. XXVI, No. 11: Electronic Edition

Please do not rely solely on the summaries below. Each case name links to the full text of the opinion, which we recommend you read in addition to these brief synopses. The SDR is sent to current TCDLA members.

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham


Hale v. King, 624 F.3d 178 (5th Cir. 2010).

The Americans with Disabilities Act of 1990 (ADA) validly abrogates a state’s Eleventh Amendment sovereign immunity under § 5 of the Fourteenth Amendment only to the extent that causes of action under the ADA are “congruent and proportional” to violations of the Fourteenth Amendment. Prisoner’s claim—that he was denied educational training and access to prison work programs because of a medical disability—did not state an equal protection violation under the applicable rational-basis review, and hence the ADA did not validly abrogate state sovereign immunity for that claim.

United States v. Mata, 624 F.3d 170 (5th Cir. 2010).

In alien transporting case, district court did not err in applying the reckless-endangerment enhancement of USSG § 2L1.1(b)(6); the enhancement was supported by findings that (1) a baby stroller, under which the alien was hidden, would impede their ability to exit the vehicle quickly in case of an accident and (2) the stroller could cause serious injury to the alien in the event of an accident, and those findings were not clearly erroneous. Nor did the court err by applying the use-of-a-minor enhancement under USSG § 3B1.4; a defendant who decides to bring a minor along during the commission of a previously planned crime as a diversionary tactic or in an effort to reduce suspicion is subject to this enhancement. Not every defendant who brings a minor child along while smuggling drugs or aliens will be subject to this enhancement, and the court should consider additional circumstantial evidence to determine whether the defendant used the minor to avoid detection. Here, the district court’s findings, none of which was clearly erroneous, supported its determination that the minor was brought along to avoid detection.

United States v. Templeton, 624 F.3d 215 (5th Cir. 2010).

(1) In prosecution for (a) using a firearm and committing murder during and in relation to a drug trafficking crime and (b) possession of cocaine with intent to distribute, district court did not abuse its discretion in admitting, under Fed. R. Evid. 404(b), evidence that defendant had previously sold large amounts of crack cocaine and that defendant had previously been arrested for possession of nine ounces of cocaine. Even though defendant offered to stipulate as to intent to distribute, the evidence was admissible not just to show intent, but also knowledge plus the motive for the decedent’s murder. United States v. Yeagin, 927 F.2d 798 (5th Cir. 1991) (finding reversible error in the admission of evidence after an offer to stipulate was refused) was distinguishable because the evidence there went only to intent, to which defendant offered to stipulate, and, additionally, the admitted evidence in that case was far less relevant and far more prejudicial.

(2) District court did not abridge defendant’s Confrontation Clause rights or otherwise err by preventing defense counsel from cross-examining a witness (defendant’s sister) about abuse allegedly inflicted upon her by her husband. Although the defense alleged that the sister had been coerced or intimidated by her husband into testifying against her brother (defendant), questioning of the sister outside the presence of the jury failed to substantiate this theory of bias, and the defense failed to present any other evidence to substantiate this theory.

(3) District court did not abuse its discretion by instructing the jury that evidence of flight could reflect a consciousness of guilt. A flight instruction is proper when the evidence supports 4 inferences: (1) the defendant’s conduct constituted flight; (2) the defendant’s flight was the result of consciousness of guilt; (3) the defendant’s guilt related to the crime with which he was charged; and (4) the defendant felt guilty about the crime charged because he in fact committed the crime. The evidence here supported each of the four inferences; moreover, even if the court had erred in this regard, any error was harmless in light of the strong evidence of defendant’s guilt.

United States v. Nava, 624 F.3d 226 (5th Cir. 2010).

District court did not clearly err in finding that defendant was a manager or supervisor within the drug conspiracy of which he was convicted, so as to warrant a 3-level enhancement under USSG § 3B1.1(b).

United States v. Mendez-Casarez, 624 F.3d 233 (5th Cir. 2010).

Where Application Note 5 to USSG § 2L1.2 provides that the list of qualifying enhancement predicate offenses “include[s] the offenses of aiding and abetting, conspiring, and attempting” to commit such offenses, that list does not constitute an exclusive list; therefore, other offenses may be comprehended within Application Note 5, provided they are sufficiently similar to the listed offenses. The Fifth Circuit then determined that solicitation under North Carolina law was sufficiently similar to the listed offenses to as to fall within the ambit of Application Note 5. Accordingly, defendant’s North Carolina law for solicitation to commit assault with a deadly weapon inflicting seriously bodily injury was properly countable as a “crime of violence” for purposes of USSG § 2L1.2(b)(1)(A)(ii).

United States v. Roberts, 624 F.3d 241 (5th Cir. 2010).

Where the government agreed, in its plea agreement with defendant, to a particular base offense level but the parties left open that other adjustments might or might not apply, it was a breach of the plea agreement for the government to support the PSR’s application of the career offender Guidelines to defendant. The career offender Guidelines were not simply an adjustment to the Guidelines (as to which the government retained its discretion to advocate) but rather resulted in a new base offense level, in contravention of the government’s plea-bargain stipulation to a base offense level of 30. The government’s conduct was inconsistent with defendant’s reasonable understanding of the plea agreement, and defendant was entitled to specific performance of the agreement. Accordingly, the Fifth Circuit vacated defendant’s sentence and remanded to the district court for reassignment to a different judge and for resentencing consistent with the Fifth Circuit’s opinion. (Judge DeMoss dissented, being of the view that the career offender enhancement was a Guideline adjustment for which the government remained free to advocate.)

United States v. Banks, 624 F.3d 261 (5th Cir. 2010).

Where (following a limited remand for clarification) it was determined that defendant had proceeded to a bench trial on stipulated facts, the evidence was sufficient to support defendant’s conviction for aggravated identity theft under 18 U.S.C. § 1028A. Particularly, the Fifth Circuit noted that in a Memorandum of Agreement attached to the Stipulation of Evidence, defendant expressly stipulated that the facts in the Stipulation “constitute[d] sufficient evidence for the [c]ourt to find him guilty as charged … beyond a reasonable doubt.” Because defendant’s agreement on this point foreclosed any challenge to the sufficiency of the evidence, the Fifth Circuit affirmed the conviction.


State’s PDR from Harris County

Blackman v. State, __S.W.3d__ (Tex.Crim.App. No. 01-08-00138-CR, 4/13/11)

Reversed & remanded: Hervey (7-1); Meyers dissented

Appellant was convicted of possessing a controlled substance (three kilograms of cocaine) with intent to deliver. The cocaine was found behind the driver’s seat of a van in which appellant was a front-seat passenger. During its closing arguments, the defense claimed that the State did not prove beyond a reasonable doubt that appellant “either put [the cocaine] in his car or was aware of it” or that he “aided, assisted and encouraged” any of the others to commit the offense. The State claimed that this defied common sense. PDR was granted to determine whether COA properly decided that the evidence is legally insufficient to support the possession element of this offense. CCA holds that COA misapplied the Jackson v. Virginia standard by asking itself whether it believed that the evidence is sufficient to support appellant’s guilt instead of asking whether a rational trier of fact could have found appellant guilty beyond a reasonable doubt.

State’s PDR from Hale County

State v. McLain, __S.W.3d__ (Tex.Crim.App. No. PD-0946-10, 4/13/11)

Reversed & remanded: Hervey (7-1); Johnson dissented

A grand jury indicted appellee on possession with intent to deliver meth, in an amount of four grams or more but less than two hundred grams. Appellee’s trial counsel filed a motion to suppress the contraband seized as a result of a search authorized by a search warrant. The trial court granted the motion to suppress, and COA affirmed.

CCA granted review on the following grounds: (1) Does an appellate court violate the prohibition on “hypertechnical” review of a warrant affidavit when it strictly applies rules of grammar and syntax in its analysis? (2) Is it appropriate for an appellate court to base its opinion on implications found within a warrant affidavit, rather than deferring to any reasonable inferences the reviewing magistrate could have drawn from the affidavit? (3) Did the appellate court err by failing to address whether the trial court afforded appropriate deference to the reviewing magistrate’s implicit finding that the informant described in the affidavit saw the meth “in the past 72 hours?”

CCA concludes that reviewing courts should only be concerned with whether the magistrate’s determination in interpreting and drawing reasonable inferences from the affidavit was done in a commonsensical and realistic manner, which bars a “hypertechnical” review of syntax and grammar. Furthermore, reviewing courts should defer to all reasonable inferences that the magistrate could have made.

Writ of Mandamus from Bend County

In re Brown, __S.W.3d__ (Tex.Crim.App. No. WO-75,485-01, 4/13/11)

Denied: Per curiam (8-0); Womack filed supporting statement

Relator requests that CCA order the trial court to enter a judgment nunc pro tunc awarding him a certain period of pre-trial jail-time credit. COA has already denied relator mandamus relief, and rightly so, says CCA. In denying the motion again, CCA writes additionally to alert unwary trial counsel of the need to address an issue such as the one presented in this case at the appellate level rather than relying upon the illusory promise of a post-conviction remedy. A motion for judgment nunc pro tunc or a writ of mandamus to the appellate court, if such a motion is denied, will provide a remedy only if the right to pre-trial jail-time credit is absolutely indisputable under the terms of Tex. Code Crim. Proc. art. 42.03, § 2(a)(1). In summary, if a claim of pre-trial jail-time credit involves a question of the proper construction of the statute trial counsel would do well to try to preserve the issue for appellate resolution; post-conviction remedies will prove to be of no avail.

Appellant’s PDR Granted from Johnson County

10-1551 – Gary Lyn Black – Possession of Controlled Substance w/Intent to Deliver

1. Did the COA err in holding that Rachal v. State, 917 S.W.2d 799 (Tex.Crim.App. 1996) applies only to testimony that occurs in the presence of a jury and not to testimony that occurs outside the presence of a jury during trial?

2. Does an arrest warrant issued by a Justice of the Peace for “failure to appear” pursuant to Tex. Code Crim. Proc. art. 45.103 still require a finding of probable cause on the face of the warrant in accordance with the Fourth Amendment to the United States Constitution, Article I, Section 9 of the Texas Constitution, and Article 1.06 of the Texas Code of Criminal Procedure?

3. Does the Waco Court’s opinion conflict with the Dallas Court’s opinion in Kosanda v. State, 727 S.W.2d 783 (Tex.App.-Dallas 1987, pet. ref’d)?

State’s PDR Granted from Tarrant County

10-1809 – Soutchay Sanavongxay – Aggravated Robbery

1. Did COA err in concluding that a trial court can effectively interfere with or deny the State’s right to appeal as legislatively provided for under Tex. Code Crim Proc. art. 44.01(a)(5), simply by refusing to sign a written order memorializing its ruling to exclude or suppress the State’s evidence?

2. Should State v. Rosenbaum, 818 S.W.2d 398 (Tex.Crim.App. 1991) and all its progeny generated statewide be revised to cover situations where a trial court refuses to sign a written order excluding or suppressing evidence in order to interfere or deny the State the right to appeal under Tex. Code Crim. Proc. art. 44.01(a)(5)?

3. Where a trial court intentionally refuses to sign a written order to exclude or suppress evidence, is the oral order sufficient to grant the Court of Appeals jurisdiction on a State’s appeal made pursuant to Tex. Code Crim. Proc. art. 44.01(a)(5)?

4. Did COA err in inferring that a hearing was necessary at the State’s behest notwithstanding the appellate record at the time notice of appeal was given pursuant to Tex. Code Crim. Proc. art. 44.01(a)(5) was totally devoid of any evidence supporting the trial court’s action in excluding or suppressing the State’s DNA evidence?

Appellant’s PDR Granted from Tarrant County

11-0225 – Cecil Edward Alford – Possession of Controlled Substance

1. COA erred in ruling that the “booking question exception” to Miranda applied to a police officer’s questions concerning ownership of a flash drive which was found directly underneath some illegal drugs, because the officer’s questions—unlike routine booking questions—were reasonably likely to elicit incriminating responses.

2. COA erred by evaluating Issue #1, above, using an abuse of discretion standard, when that Court ruled that the trial court “did not abuse its discretion by concluding that Alford’s statements were made during normal processing, and thus, did not invoke article 38.22 and, by extension, article 38.23 of the code of criminal procedure.”

State’s PDR Granted from Fannin County

11-0323 – Corey Don Louis – Capital Murder

1. Did COA violate Jackson v. Virginia by not considering all of the evidence, re-assigning weight and credibility, and generally not viewing the evidence in the light most favorable to the verdict?

2. Was the evidence sufficient?

3. Is an instruction on mistake of fact appropriate when the mistaken “fact” is the result of the conduct in a result-of-conduct offense?

4. Is mistake of fact applicable to lesser-included offenses when the culpability negated by the mistaken belief applied only to the greater offense?

5. Does mistake of fact apply to the culpable mental states of recklessness and criminal negligence?

6. Is the failure to submit a mistake of fact instruction that merely denies the charged offense ever harmful?

7. Is instructing the jury that it may infer intent or knowledge from acts done or words spoken ever harmful, alone or in combination with other erroneous instructions?

For a list of issues pending before the court, click here.


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

State v. Pina, No. 05-10-00026-CR, 2010 WL 4946140 (Tex.App.-Dallas Dec. 7, 2010).

The nervousness with which gun show patron purchased a gun, along with what appeared to officer to be a prison-gang tattoo on patron’s neck, provided RS that patron was a felon in possession of firearm. “[Officer in parking lot] was notified that officers inside the complex had seen three individuals ‘acting in suspicious manners … [with] tattoos indicative of gang affiliations … purchasing weapons and ammunition.’ One of those individuals, later identified as [D], had a star tattoo on his neck that allegedly was ‘indicative of an affiliation to the Tango Blast gang.’ Although [officer] did not specialize in gang affiliation, he did have some knowledge of the Tango Blast Gang. He knew that Tango Blast was a prison gang and, to be a member, the person had to have had a conviction and been to prison.” The appellate court, in finding that RS existed, reversed the trial court’s granting of D’s motion to suppress.

Valdez v. State, No. 04-09-00420-CR, 2010 WL 5269818 (Tex.App.-San Antonio Dec. 15, 2010).

Purported common-law spouse of D did not have actual or apparent authority to consent to officer’s warrantless search of D’s lock box stored in bedroom of home, given that she did not know where box was located and that she reportedly knew nothing about box.

D’s mother had apparent authority to consent to search of the lock box, even though she was not owner of box and did not have authority to unlock it, where she appeared to officer to be owner of home (even though she did not own it), she invited officer directly to bedroom upon officer’s request to collect adult videos for evidence, she retrieved box from closet, unlocked box with key, and placed adult videos on bed. “[Mother’s] recollection of the event, however, was very different. She stated that she did not give [officer] permission to enter the house. She explained [officer] told her [D] had given consent to search, and that she needed to accompany him to the bedroom. She stated that [officer] took the lock box from the closet, and ordered her to unlock it. She had a key ring in her pocket, and after unsuccessfully trying several keys, [officer] got mad, grabbed the keys from her, and opened the box himself. [Mother] claimed the police threatened to arrest her if she did not cooperate.” However, the appellate court, in viewing the evidence in the light most favorable to the trial court’s ruling, adopted the officer’s account, to wit: “[Officer] testified that he believed that [mother] was the owner of the home because she was the person in control. It appeared to [officer] that [mother] had common authority over the lock box because she knew exactly where it was located and had the key.”

State v. Kidd, No. 03-09-00620-CR, 2010 WL 5463893 (Tex.App.-Austin Dec. 30, 2010).

Even though D admitted that he failed to signal lane change 100 feet in advance of turn, the trial court granted motion to dismiss based on conclusion that strict enforcement of the 100-foot requirement was “a violation of one’s right to be free from unreasonable seizures.” The appellate court, in reversing the trial court, observed that a driver’s unfamiliarity with the neighborhood and indecisiveness about which direction to turn simply does not excuse his turn-signal violation. “Although the trial court concluded that enforcement of the 100-foot rule ‘leads to unreasonable, perhaps unforeseen, circumstances,’ we cannot say that the statute’s mandatory requirement that a driver intending to turn must ‘signal continuously for not less than the last 100 feet’ leads to absurd results.”

Alleman v. State, No. 09-10-00173-CR, 2011 WL 193496 (Tex.App.-Beaumont Jan. 19, 2011).

D’s act of pretending to talk on his cell phone during the traffic stop was among the circumstances that provided officer RS to expand scope of stop. “While looking in the console, [D] opened his cellular telephone and held it to his ear. [Officer] did not hear the phone ring and he noticed that [D] was not speaking into the phone. [Officer] found this ‘kind of odd.’… While conducting the traffic stop, [officer] observed several facts that led him to believe that another offense was occurring: (1) [D] stepped out of his vehicle almost immediately after being stopped, (2) [D] silently held his telephone to his ear, (3) [D] claimed to be on a business trip, but had no clothing or other items to corroborate this claim, (4) [officer] smelled marijuana when [D] retrieved his insurance papers, and (5) [officer] saw what appeared to be marijuana residue when he walked to the driver’s side door of the vehicle.”

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