April 2011 SDR – Voice for the Defense Vol. 40, No. 3

Voice for the Defense Volume 40, No. 3 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

Walker v. Martin, 131 S. Ct. 1120 (U.S. 2011); Reversed: Ginsburg (9–0)

A California state court convicted Charles Martin of robbery and murder and sentenced him to life in prison without the possibility of parole. Subsequently, Martin filed a round of habeas petitions in state court—all of which were denied. He then raised several new claims in petitions for federal habeas relief in a California federal district court. The court refused to examine the claims because they were not exhausted in state court. After Martin exhausted these last claims in state court, he returned to federal court for federal habeas corpus relief. The district court again denied the petition, relying on California’s statute of limitations for filing state habeas corpus petitions. On appeal, the Ninth Circuit reversed the district court, holding that California’s statute of limitations could not operate as an independent and adequate state ground to bar federal habeas corpus review. The court reasoned that California’s statute of limitations was not sufficiently defined, nor consistently applied such that it could bar Martin’s petition.

Held: The California rule requiring state habeas petitions to be filed “as promptly as the circumstances allow” constitutes an independent state ground that is adequate to bar habeas relief in federal court.

Fifth Circuit

Sixta v. Thaler, 615 F.3d 569 (5th Cir. 2010)

Agreeing with Thompson v. Greene, 427 F.3d 263 (4th Cir. 2005), the Fifth Circuit held that under the Federal Rules of Civil Procedure and the Rules Governing Section 2254 Cases, the habeas respondent (i.e., the custodian) is required to serve the respondent’s answer, plus any exhibits thereto, upon the habeas petitioner. Here, respondent did not attach any exhibits to his answer, and thus there were none to serve. The Fifth Circuit declined to reach the question about whether the Constitution or applicable procedural rules required respondent to attach some portion of the state court records as exhibits to the answer and then to serve those exhibits with the answer pursuant to applicable procedural rules.

Mathis v. Thaler, 616 F.3d 461 (5th Cir. 2010)

Death-sentenced Texas prisoner could not raise, in a successive habeas petition, his claim that execution was unconstitutional under Atkins v. Virginia, 536 U.S. 304 (2002) (holding the Eighth Amendment bars execution of the mentally retarded), because prisoner did not show his Atkins claim was “previously unavailable” as required by 28 U.S.C. § 2244(b)(2)(A). Particularly, Atkins was decided in 2002, and petitioner did not show why he could not have raised his Atkins claim in his first federal habeas petition, in 2003. Moreover, even if his petition met the standards of 28 U.S.C. § 2244, the petition was time-barred under the AEDPA’s statute of limitations, and the court did not abuse its discretion when it denied equitable tolling.

United States v. Rains, 615 F.3d 589 (5th Cir. 2010)

(1) In prosecution for manufacture and distribution of methamphetamine, police had sufficient reasonable suspicion of criminal activity to justify an investigatory stop of defendant’s car. Particularly, police received information that (1) a woman in this car had just purchased an unusual quantity of concentrated liquid iodine (an ingredient used in the manufacture of meth) from a veterinary clinic, (2) the same woman had made repeated purchases of iodine from the same clinic over the past 9 months, and (3) the person had traveled to a rural area 35 miles away to make the purchases. It was reasonable for police to infer from previous discussions with the veterinarian about typical sales of iodine that the purchase of such a large quantity in a relatively short time period indicated that the purchaser intended to use the iodine illegally.

(2) Agreeing with the majority of a split panel in United States v. Nelson, 484 F.3d 257 (4th Cir. 2007), the Fifth Circuit held that defendant’s prior conviction for possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) was a “felony drug offense” that could, in conjunction with another prior conviction for a “felony drug offense,” properly enhance defendant’s sentence to mandatory life imprisonment without release, pursuant to 21 U.S.C. §§ 841(b)(1)(A) & 851. Although 18 U.S.C. § 924(c) could also be violated by possession or use of a weapon in connection with a crime of violence as well as a drug trafficking offense, it was proper to examine the record of conviction to determine that defendant’s § 924(c) offense had been tied to drug trafficking, not a crime of violence. The Fifth Circuit expressed disquietude that its decision could be read to support a double enhancement where the same underlying conduct gives rise to both a substantive drug offense and a § 924(c) conviction.

Paredes v. Thaler, 617 F.3d 315 (5th Cir. 2010)

The Texas courts did not unreasonably apply clearly established Supreme Court law in rejecting death-sentenced defendant’s claim that the state trial court violated his constitutional rights by failing to require a unanimous verdict as to which two or more decedents defendant murdered. The principal Supreme Court decision on the issue of what the Constitution requires by way of jury unanimity—Schad v. Arizona, 501 U.S. 624 (1991)—produced no majority opinion, and neither the plurality opinion or concurrence of Justice Scalia (who provided the necessary fifth vote) provides a clear answer to the question. Moreover, the very general nature of each of these analyses means that a broader range of outcomes will be considered reasonable. In any event, even if there were some error in the failure to require jury unanimity, defendant failed to show prejudice from any such error because the jury was also permitted to find defendant guilty under Texas’ law of parties even if he did not personally shoot any of the victims, and the evidence of defendant’s guilt under the law of parties was overwhelming and virtually unchallenged. For the same reasons defendant suffered no prejudice from any deficient performance by his attorney in failing to request a unanimity instruction.

United States v. Minnitt, 617 F.3d 327 (5th Cir. 2010)

District court did not reversibly err in revoking defendant’s supervised release. With respect to defendant’s due-process confrontation objection to the introduction of lab reports and testimony about their contents, court erred in failing to articulate the basis on which it found good cause to deny defendant confrontation of the lab technicians; however, this error was harmless because the record showed that defendant’s interest in confronting the lab technicians was minimal, and that there was indeed good cause to deny confrontation. Nor did the court violate defendant’s due-process confrontation rights by allowing the probation officer to testify to the feasibility of defendant’s false-positive theories; although the officer’s hearsay testimony about defendant’s missed counseling session presented a more troublesome due-process confrontation question, unchallenged testimony supported the finding that defendant violated this condition of supervised release.

United States v. Carales-Villalta, 617 F.3d 342 (5th Cir. 2010)

Where the Fifth Circuit had previously remanded case on ground that eight-level “aggravated felony” enhancement under USSG §2L1.2(b)(1)(C) was erroneous, government was not, on remand, precluded from presenting (and district court was not precluded from considering) additional evidence not presented at the first sentencing proceeding that the conviction qualified as an “aggravated felony.” In the absence of a specific mandate, and in the interest of truth and fair sentencing, the court may consider any corrections and additions relevant to the issues addressed by the Fifth Circuit on appeal. Therefore, when the case is remanded for resentencing without specific instructions, the court should consider any new evidence relevant to the issues raised on appeal. Although the Fifth Circuit may mandate a particular result on remand, or limit consideration on remand to particular evidence when it is prudent to do so, it did not do so in the prior decision. Therefore, court did not reversibly err in once again applying the eight-level enhancement (and imposing the same sentence) based on the new documentary evidence.

United States v. Gonzales, 620 F.3d 475 (5th Cir. 2010)

Based on the record before the Fifth Circuit, it was unclear whether the district court, upon revocation of defendant’s probation, considered her “financial resources,” as required by 18 U.S.C. §3572(a)(1) & (2), before ordering her to immediately pay the $4,000 balance of a previous fine. Accordingly, the Fifth Circuit vacated the order and remanded for reconsideration so that the court could clarify whether it had considered defendant’s financial resources before ordering immediate payment of the fine.

United States v. Bautista-Montelongo, 618 F.3d 464 (5th Cir. 2010)

District court did not reversibly in applying a two-level enhancement under then-USSG §2D1.1(b)(2)(B) (now USSG §2D1.1(b)(2)(C)) for being the captain, pilot, or navigator of a boat carrying a controlled substance. Following the three other circuits that addressed the issue, the Fifth Circuit rejected defendant’s argument that this enhancement applies only when a defendant is a professional captain or pilot or has some higher degree of special skill, such as high seas navigation; special skills, as defined in USSG §3B1.3, are not required for this enhancement.

United States v. Dowl, 619 F.3d 494 (5th Cir. 2010)

Where defendant was prosecuted for fraudulently obtaining government funds to rebuild a home in New Orleans after Hurricane Katrina, defendant was not entitled to have the Guideline loss amount under USSG §2B1.1 offset by the $46,000 paid by the Road Home program to the Small Business Administration (SBA) upon the Road Home program’s discovery that defendant had already received SBA funds for the same purpose. The Fifth Circuit held that defendant’s case was different from amounts repaid before a fraud was discovered, or even the money returned to investors in a Ponzi scheme, both of which do result in offsets. Defendant did not herself return the funds; moreover, defendant would have received all the funds if the federal government had not discovered the overlap. The Fifth Circuit refused to construe the Guidelines to give credit to defendant for the detection and required repayment of overlapping funds by the government—the defrauded party.

United States v. Lipscomb, 619 F.3d 474 (5th Cir. 2010)

Two judges (King and Jolly) of a three-judge panel held that defendant—convicted of possession of a firearm (which was a sawed-off shotgun)—was properly sentenced as a “career offender” under USSG §4B1.1, but all three judges wrote separately. Judge Jolly would hold that in determining whether the “instant offense” is a “crime of violence” for purposes of the “career offender” Guideline, a sentencing court is not bound by the elements-based categorical/modified categorical approach of Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13 (2005), but rather is specifically authorized to examine the conduct alleged in the indictment; this approach was satisfied here because the indictment to which defendant pleaded guilty specifically charged him with violating 18 U.S.C. § 922(g)(1) by possessing a sawed-off shotgun. Judge King agreed that an elements-based categorical/modified categorical approach was not required, given the Guidelines’ explicit reference to conduct; she declined, however, to rely on defendant’s plea to the indictment as constituting an admission to all the facts contained therein (including the identity of the firearm as a sawed-off shotgun); instead., she would hold that where the “career offender” enhancement turns on the characterization of the “instant offense” rather than that of a prior offense, it is not improper for the sentencing judge to make the critical factual findings in the same way as any other sort of finding at sentencing. Judge Stewart dissented, opining that (1) the categorical/modified categorical approach does apply, and (2) under that approach, there was no cognizable evidentiary basis for the conclusion that the firearm in question was a sawed-off shotgun.

Court of Criminal Appeals

Appellant’s PDRs

Ex parte Chamberlain, __S.W.3d__ (Tex.Crim.App. No. 0076-10, 2/2/11); COA vacated & remanded

Appellant pled guilty to sexual assault, a third-degree felony, and successfully completed his community supervision term. However, because of the offense, appellant was required to register as a sex offender for the rest of his life.

CCA granted appellant’s PDR issue: Did COA err in holding that the lifetime registration requirement imposed on Chamberlain did not violate his substantive due process rights because there is a statutory mechanism by which Chamberlain can seek to be excused from further registration? After CCA granted review, the Council on Sex Offender Treatment (CSOT) published its list of reportable convictions or adjudications for which a person must register, which makes clear that individuals who have been convicted of sexual assault, like appellant, are not eligible for de-registration. The CSOT’s list altered the legal landscape for individuals eligible for early termination from the sex offender registration requirements.

Held: COA did not have the benefit of this information when addressing appellant’s due process claim. The court therefore proceeded under the theory that appellant could avail himself of the lifetime registration requirement; this was the court’s sole basis for concluding that his substantive due process rights were not violated. CCA gives COA opportunity to reconsider appellant’s claim.

Ford v. State, __S.W.3d__ (Tex.Crim.App. No. 0440-10, 2/2/11); COA reversed, trial court affirmed

A jury convicted appellant of failing to comply with sex offender registration requirements, a third-degree felony. COA held that appellant’s prior conviction for failure to comply with sex offender registration increased the level of appellant’s current offense.

Held: COA erred to rely on dicta in State v. Webb, 12 S.W.3d 808 (Tex.Crim.App. 2000), and Young v. State, 14 S.W.3d 748 (Tex.Crim.App. 2000), to conclude that Tex. Code Crim. Proc. art. 62.102(c) increases the level of the offense. Under its plain language, 62.102(c) states that “punishment for an offense . . . is increased to the punishment for the next highest degree of felony.” Therefore, appellant’s prior conviction did not increase the grade of his offense. The prior conviction increased only the punishment level.

Cada v. State, __S.W.3d__ (Tex.Crim.App. No. 0754-10, 2/9/11); COA reversed, acquittal ordered

Appellant was charged with the third-degree felony of retaliation for intentionally and knowingly threatening to harm Arthur Finch by an unlawful act in retaliation for or on account of the service of Finch as a witness. CCA granted review to determine whether a variance between the indictment allegation of one statutory element—the description of the complainant as “a witness”—is material when the proof shows that the complainant was either a “prospective witness” or “an informant”—two different statutory elements.

Held: A variance between the pleading of one statutory element (“a witness”) and proof of a different statutory element (“a prospective witness” or “an informant”) is material under Gollihar v. State, 46 S.W.3d 243 (Tex.Crim.App. 2001). Therefore, the evidence was legally insufficient to support appellant’s conviction for retaliation against Finch on account of his service as a witness.

Stokes v. State, __S.W.3d__ (Tex.Crim.App. No. 0825-10, 3/2/11); PDR refused

Appellant was convicted of aggravated robbery involving the stealing of a handgun that occurred on January 21, 2005.He was convicted separately for the theft of that same gun under the theory that he possessed it on February 19, 2005, knowing it was stolen. COA held that these offenses were different for double jeopardy purposes because (1) the dates of the offenses were different, and (2) the charged theft required the additional element of knowing that the gun was stolen.

Keller’s dissent: These holdings seem inconsistent with the caselaw that says theft is not a continuing offense.

State’s PDRs

Derichsweiler v. State, __S.W.3d__ (Tex.Crim.App. No. 0176-10, 1/26/11); Reversed & remanded

Appellant was indicted for felony DWI. He filed a pretrial motion to suppress evidence obtained as a product of his arrest, which occurred in a parking lot. He claimed the police officer lacked reasonable suspicion initially to detain him, which rendered any product of his subsequent arrest for DWI inadmissible. The trial court concluded that the officer was presented with information by identified informants of an individual’s suspicious activity but no specific criminal act. The officer was able to identify appellant’s vehicle from the specific description provided by the informants at the location they reported, thereby corroborating the tip he had received. Over a dissent, a COA panel held that reasonable suspicion was lacking to believe appellant was about to commit a crime when police detained him. CCA granted the State’s PDR to address whether COA erred to require some indication of a specific criminal offense as a necessary component of reasonable suspicion.

Held: The totality of circumstances, including appellant’s strangely persistent, if admittedly non-criminal behavior, gave rise to a reasonable suspicion that he was about to engage in criminal activity. CCA reverses and remands to COA to address appellant’s remaining points of error.

Smith v. State, __S.W.3d__ (Tex.Crim.App. No. 0298-09, 2/2/11); Reversed & remanded

Smith was convicted of capital murder and sentenced to life in prison for fatally shooting her husband and father-in-law. Smith’s attorneys asked the trial judge to instruct the jury that her ex-husband, Daniel Gardner, was an accomplice as a matter of law based on his testimony. The judge denied the request but instructed the jury to determine whether Gardner was an accomplice as a matter of fact. On appeal, Smith alleged that (1) the judge erred in denying her jury instruction, and (2) the non-accomplice testimony was insufficient to tend to connect her to the offense as required by Tex. Code Crim. Proc. art. 38.14. COA sustained both points of error. However, because COA found the evidence insufficient under Article 38.14, it did not address whether Smith was egregiously harmed by the exclusion of an accomplice-as-a-matter-of-law instruction and entered a judgment of acquittal

With respect to the jury charge issue, the State asked CCA to abandon the automatic application of the accomplice as a matter of law rule when a witness has been indicted for the same offense as the accused. Alternatively, the State contends that it should not have to affirmatively establish that the dismissal of the capital murder charge was not done in exchange for Gardner’s testimony. The State further contends that COA erred in concluding that Gardner was an accomplice as a matter of law because the record does not show that the capital murder charge was dismissed in exchange for Gardner’s testimony.

Held: The judge did not err in denying Smith’s jury instruction because the evidence did not conclusively establish that the capital murder charge against Gardner was dismissed in exchange for his testimony at Smith’s trial. Furthermore, COA erred in holding that the non-accomplice evidence was insufficient.

Shipp v. State, __S.W.3d__ (Tex.Crim.App. No. 1346-09, 2/2/11); COA reversed, trail court reinstated

Appellant was indicted for forgery under Texas Penal Code §32.21. The jury convicted him of a state jail felony under §32.21(d) upon determining that the counterfeited store receipt constituted a “commercial instrument.” COA found the evidence insufficient to support conviction for a state jail felony but held that there was no evidence that a store receipt constitutes a “commercial instrument.”

Held: Section 32.21(d) does not plainly provide that forgery of a store receipt constitutes a state jail felony—at least not in the same way it plainly provides that, e.g., a will, check, and contract do. As such, CCA does not necessarily disagree with COA’s characterization; however, it seems that the class it purports to identify—writings that “relate to legal rights or relationships”—is so broad as to be largely meaningless for applying the rule of ejusdem generis. Even after applying ejusdem generis, the legislative intent remains ambiguous. Having consulted extra-textual factors, CCA concludes that the particular “commercial instruments” delineated by § 32.21(d) are not so distinctly and narrowly drawn as to define a class to which a store receipt plainly does not belong.

Newman v. State, __S.W.3d__ (Tex.Crim.App. No. 00040-10, 2/9/11); COA reversed, trial court affirmed

Appellant filed an unsworn motion to dismiss his intoxication-assault case, claiming that his Sixth Amendment federal constitutional right to a speedy trial had been violated because of an eight-year delay since his indictment. The trial court signed an order denying appellant’s motion. This order indicates that the trial court denied the motion after a hearing. There is no reporter’s record of this hearing in the appellate record. On appellant’s direct appeal, COA declined to consider any factual assertions contained in appellant’s unsworn motion. After also noting the absence of a reporter’s record from any hearing in the trial court on this motion and after cautioning “practitioners regarding the importance of developing a record,” COA nevertheless decided that the “sparse” record that appellant presented was sufficient for it to consider the Barker factors even though this sparse record is silent on the second and fourth Barker factors. In overturning the trial court’s ruling denying appellant’s motion, COA also decided the record was sufficient to show that appellant’s speedy-trial right was violated.

Held: As a matter of state law, appellant failed to sustain his burden to present a sufficient record showing a violation of his right to a speedy trial. With appellant having had a hearing, having lost in the trial court on his speedy-trial claim, and then having presented no record of the hearing, appellant should also have lost on direct appeal.

Gaal v. State, __S.W.3d__ (Tex.Crim.App. No. 0516-10, 3/2/11); Reversed & remanded

Appellant appealed his felony DWI conviction, contending that the trial judge should have been recused for stating—before hearing any evidence—that the only plea bargain he would accept would be for the maximum sentence. COA agreed, holding that “[by] arbitrarily foreclosing the possibility of any plea bargain other than one for the maximum punishment,” the judge forecast his inability to consider the full range of punishment and thereby denied appellant due process. The State challenges COA’s interpretation of the facts and its application of the standard of review.

Held: Because the trial judge’s remark went only to plea bargaining and was supported by facts introduced or events occurring in the course of the proceedings, the recusal judge did not abuse his discretion in denying appellant’s motion to recuse. The appropriate standard of review for an appellate court in an order denying a motion to recuse is an abuse of discretion standard. An appellate court should not reverse a recusal judge whose ruling on the motion was within the zone of reasonable disagreement. An appellate court considers the totality of the evidence and information elicited at the recusal hearing to see if the record reveals sufficient evidence to support the recusal judge’s ruling that the trial judge was unbiased.

Woodall v. State, __S.W.3d__ (Tex.Crim.App. No. 1379-09, 3/2/11); Reversed & remanded

A jury foundappellant guilty of organized criminal activity, and the trial court sentenced her in accordance with the jury’s assessed punishment of 16 years’ confinement and a $10,000 fine. COA affirmed the conviction but reversed and remanded for a new trial on punishment. CCA granted review to determine whether appellant’s confrontation rights were violated by the representation of one witness’ grand jury testimony.

Held: Witness’ memory loss did not render her “absent” for Confrontation Clause purposes. Appellant is estopped from arguing that her confrontation rights were violated because, although the witness was physically absent at the time her grand jury testimony was read into evidence, appellant declined to have her attached and brought to court. COA is reversed, and the case is remanded for consideration of appellant’s point of error, which claims the testimony is hearsay.

State v. Castleberry, __S.W.3d__ (Tex.Crim.App. No. 0345-10, 3/2/11); COA reversed, trial court remanded

Appellant was charged with possession of cocaine. Before trial, appellant moved to suppress the cocaine because the State failed to demonstrate sufficient facts to create reasonable suspicion to detain appellant, as such the seizure a Fourth Amendment violation. CCA granted the State’s PDR to determine whether: (1) COA improperly required reasonable suspicion to justify a consensual encounter between the arresting officer and appellant; and (2) whether COA employed an improper presumption that appellant’s conduct in reaching for his waistband was innocent and improperly ignored key facts that give rise to reasonable suspicion.

Held: COA failed to separate appellant’s encounter with the officer into two distinct parts: (1) the officer’s initial approach of appellant, which was a consensual encounter; and (2) appellant’s act of reaching for his waistband, which provided the officer with reasonable suspicion to detain and frisk appellant. Therefore, the seized contraband is admissible.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

State v. Dixon, No. 13-09-00445-CR, 2010 WL 3419231 (Tex.App.—Corpus Christi 8/27/10)

D had an ownership interest in the cell phone that contained incriminating videos, despite his mother-in-law owning the phone account, giving rise to D’s reasonable expectation of privacy. In addition, accessing the videos in the phone constituted a warrantless search for which PC was required. “[I]t is noteworthy that the incriminating videos were only visible when conducting an intrusive search of the cell phone, and there is no testimony that [person who found cell phone], acting in the shoes of law enforcement, had probable cause to conduct a warrantless search of the cell phone at the time the phone was found in the department store.”

Roane v. State, No. 05-09-00927-CR, 2010 WL 3399036 (Tex.App.—Dallas 8/31/10)

Sufficient evidence supported conviction for DWI, even though officer observed, upon his arrival at the scene, D standing outside the vehicle with the keys in his pocket. “[D] maintains because [officer] did not see [D] driving, the evidence is factually insufficient to support the judgment. It is uncontested that [officer] never saw [D] driving. However, when [officer] arrived at the scene, [D] and his companion were the only ones there. [And] . . . by [D’s] own admission, his companion was incapable of driving, and the videotape supports that the passenger was lying in the back seat. The circumstantial evidence supports that [D] drove there.”

Cardella v. State, No. 04-09-00319-CR, 2010 WL 3443221 (Tex.App.—San Antonio 9/1/10)

Area outside D’s residence became a “suspicious place” for purposes of arresting D without a warrant based on report that D shot a firearm at his tenant in front of the residence. “[D] argues that the area could not have been suspicious because [officer] testified that it was not. However, what [officer] specifically said during his testimony was that the area was not normally a place where criminal activity usually takes place. He did not say that he did not consider the area to be a suspicious place at the time he made the arrest.”

Contreras v. State, 324 S.W.3d 789 (Tex.App.—Eastland 2010)

Breath test results were admissible despite D’s argument that he was not provided with the software code for the breath test machine. Even if D requested the software code and even if the State failed to provide it, “[D] cannot show with a reasonable probability that, had he been given access to the computer and computer program, the outcome of the trial would have been different.”

State v. Weaver, No. 09-10-00116-CR, 2010 WL 3518743 (Tex.App.—Beaumont 9/8/10)

Officers who received consent to search the premises of a welding shop for a wanted man were not authorized to search a van on the premises for which consent was specifically denied, even though a drug dog alerted on the van, because, by that time, officers had concluded their search for the man. From the dissent: “Although the owner refused consent to a search of the van, the canine sniff of the exterior of the van, made while officers were questioning [D], was not a ‘search’ for Fourth Amendment purposes. . . . [O]fficers were not required to see the vehicle ‘be­ing operated’ before the canine sniff of the exterior of the van. After the dog alerted to the drugs, a search of the interior of the van was justified. . . .”

Smarr v. State, No. 06-10-00002-CR, 2010 WL 3518746 (Tex.App.—Texarkana 9/10/10)

Evidence of D’s ingestion of medication for which D had properly obtained prescriptions supported D’s conviction for DWI. “The fact that a defendant was entitled to use prescribed medication is not a defense to DWI.”

Woolverton v. State, 324 S.W.3d 794 (Tex.App.—Tex­arkana 2010)

Consent of co-tenant deemed a sufficient basis to search entire residence, even without obtaining the consent of the other tenant, who police did not discover was present in the residence until after first tenant’s consent had already been given and they had entered residence. “[T]he question of whether [second co-tenant] refused to consent to the search is disputed in this case. . . . [Officer] further testified that when [second co-tenant] was asked to vacate the residence, she complied without ever communicating to [officer] the fact that she lived in the resi­dence. While [officer] did learn that [second co-tenant] resided at the residence after he arrived on the premises, he did not proactively seek her consent because [first co-tenant] had previously provided written consent to search.”

State v. Klein, No. 10-08-00344-CR, 2010 WL 3611523 (Tex.App.—Waco 9/15/10)

D’s consent to a breath test was voluntary, despite officer’s failure to comply with the statutory requirement to orally recite warnings before obtaining consent. “The evidence establishes that [D] was provided the written warnings. [D] did not contend at the suppression hearing, nor does she contend on appeal, that she did not understand the written warnings. Furthermore, be­fore [officer] gave any warnings to [D], [D] admitted that she had been drinking. For these reasons, [D] has shown no causal connection between her consent to the breath test and [officer’s] failure to orally inform her of paragraph (4) of section 724.015.”

Trigg v. State, No. 05-09-01531-CR, 2010 WL 3787820 (Tex.App.—Dallas 9/30/10)

Officer’s illegal restraint of D while officer performed a warrants check was cured by officer’s discovery of an outstanding warrant. Discovery of warrant broke the connection between the primary taint and the subsequently discovered evidence; thus, cocaine found in D’s pocket upon arrest was admissible.

Weems v. State, 328 S.W.3d 172 (Tex.App.—Eastland 2010)

Merely being found intoxicated near the scene of a traffic accident (here, four-tenths of a mile away) provided some evidence that D caused the accident; the inference of causation is even stronger when the accident is a one-car collision with an inanimate object. Although D did not own the vehicle, “[D’s mother] testified that [D] typically drove [the vehicle], and that he had it on the night of the accident. . . . The evidence showed that the accident occurred in a ‘very rural’ area. [D] was found about four-tenths of a mile from the accident scene. The police officers and EMS personnel did not see anyone else at the accident scene or in the surrounding area. The evidence was legally and factually sufficient to establish that [D] was . . . operating a motor vehicle when the accident occurred.” Furthermore, prosecutor’s statement during closing to the effect that the only person who can tell the jury the truth was the person who would not cooperate did not constitute an impermissible remark on D’s failure to testify. “Viewed in context, the complained-of statement by the prosecutor relates to [D’s] lack of cooperation with the police rather than his failure to testify.”

Pace v. State, 318 S.W.3d 526 (Tex.App.—Beaumont 2010)

Officer, who received a tip that someone was smoking mari­juana in a certain residence in the presence of a child, did not have PC to enter residence, even though officer observed D retreat into residence. Note that officer interacted with D im­me­diately before D retreated into residence. “[D’s] retreat into the residence was legally insufficient to establish probable cause that the instrumentality of a crime or evidence of a crime would be found in the residence.” Furthermore, D’s mother’s authority to grant officer consent to enter residence (over D’s ob­jection) did not allow mother to consent to officer’s entry into D’s bedroom. D was an adult, his bedroom had a lock on it, and D’s mother normally knocked before entering the room. Nevertheless, the officer was authorized to conduct a cursory check of D’s bedroom for officer safety, even though D was present and objected to officer’s search. Officer was lawfully in the house and D’s actions in attempting to slam the door on officer and then running away towards his bedroom raised RS that D might be retrieving a weapon.

Bollig v. State, No. 05-08-01038-CR, 2010 WL 3835771 (Tex.App.—Dallas 10/4/10)

D argued that the search of his residence and the seizure of a CD containing images of child pornography was unconstitutional because the search was conducted after the police obtained his wife’s consent, he was present when she consented, and he did not consent. At the suppression hearing, D’s wife said: “[A police officer] talked to me and asked me to give him that CD,” “[I] was asked, do you have the CD in your possession,” and “I was asked for [the CD], and I gave it to them.” Yet, a detective testified that D’s wife was “adamant” that police take the CD. COA concludes that no search occurred because officer merely asked D’s wife to give him the CD and she consensually did so.

State v. Ruelas, 327 S.W.3d 321 (Tex.App.—El Paso 2010)

The State contended that D testified to making an improper left turn by directly entering the right lane after the turn. The trial court disregarded D’s admission by concluding that the evidence should be suppressed because that was not the violation the officer testified to. The State argued that it is irrelevant that the officer did not testify specifically that D entered the right lane because an officer’s stated reason for the stop is not con­trolling if there is an objectively reasonable basis for the stop as shown by the evidence. COA concludes that because law enforcement action can only be supported by facts an officer was actually aware of at the time of that action, and the officer did not testify to D’s act of turning directly into the right lane, the officer lacked reasonable suspicion to support the stop.

Smith v. State, No. 01-09-00263-CR, 2010 WL 3928485 (Tex.App.—Houston [1st Dist] 10/7/10)

D’s post-arrest interview was admissible even though he did not receive Miranda warnings because an employee of the county pretrial services agency conducted the interview, which constituted “administrative questioning.” “[D] argues that the interviewer’s questions adduced the primary basis for his conviction—information linking him to the address at which the car involved in the aggravated robbery was found and establishing his relationship with the car’s owner—and, therefore, constituted custodial interrogation requiring Miranda warnings. Under both the federal and state constitutions, questioning attendant to an administrative ‘booking’ procedure does not generally require Miranda warnings.”

Carter v. State, No. 01-09-00349-CR, 2010 WL 3928492 (Tex.App.—Houston [1st Dist] 10/7/10)

Motel room search proper, even though D did not consent because D had no reasonable expectation of privacy as D failed to show that he was an overnight guest in the room and D’s girlfriend consented and she was the only person in whose name the room was rented. “The officers found female clothing and personal articles in the dresser, but no male clothing or personal items anywhere. . . . [D] contends that his expectation of privacy in [girlfriend’s] hotel room was objectively reasonable because he was legitimately in the room, he believed that he had to power to exclude others from the room as demonstrated by his attempt to refuse entrance to the police, he tried to ensure his privacy by closing the curtains and blinds, the room was not open to the public, and the ‘expectation of privacy of a boyfriend and girlfriend behind closed doors’ is consistent with historical notions of privacy. . . . According to [officer], the gap in the curtains was wide enough that one could walk by the window and clearly see in ‘without having to actually look inside.’”

Pham v. State, 324 S.W.3d 869 (Tex.App.—Houston [14th Dist] 2010)

D had no reasonable expectation of privacy as to contents of plastic shopping bag, which was seized by police from co-defendant’s vehicle after D gave bag to co-defendant. “[D],
[h]aving assumed the risk that [co-defendant] would betray the secrecy concerning the bag’s contents, relinquished his expectation of privacy. . . . More importantly, the evidence unequivocally reflects that [D] had no intention of repossessing the bag: by giving the bag to [co-defendant]. . . .”

Ferguson v. State, No. 14-09-00597-CR, 2010 WL 4013737 (Tex.App.—Houston [14th Dist] 10/14/10)

Gun retrieved from D’s car after it was impounded by police was pursuant to D’s consent, despite D’s argument that his consent had been coerced since the car had already been impounded and he was, therefore, left with no choice but to consent. “The written consent to search describes [D’s] vehicle as being located at the police impound lot; however, there is no evidence [D] knew the vehicle had been taken there until he reviewed and signed the written consent form, which was after he had already agreed to give a statement to [officer] and after he had already orally consented to the search of his vehicle.”

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