April 2015 SDR – Voice for the Defense Vol. 44, No. 3

Voice for the Defense Volume 44, No. 3 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

The Fifth Circuit erred in holding that a federal habeas petitioner who prevailed in district court must file a separate certificate of appealability to respond to the State’s appeal. Jennings v. Stephens, 135 S. Ct. 793 (2015).

        Texas petitioner sought habeas relief based on three theories of ineffective assistance during the punishment phase of his state capital murder trial. The district court granted relief on his two “Wiggins theories”—that counsel failed to present evidence of a deprived background and failed to investigate evidence of mental impairment (Wiggins v. Smith, 539 U.S. 510 (2003))—but not on his “Spisak theory”—that counsel expressed resignation to a death sentence during his closing argument (Smith v. Spisak, 558 U.S. 139 (2010)). The court ordered Texas to release D unless, within 120 days, the State granted him a new sentencing hearing or commuted his death sentence. The State attacked the Wiggins theories on appeal, but D defended on all three theories. The Fifth Circuit reversed the habeas grant under the two Wiggins theories and determined that it lacked jurisdiction over the Spisak claim. Implicitly concluding that raising this argument required a cross-appeal, the Fifth Circuit noted that D neither filed a timely notice of appeal, see Fed. Rule App. Proc. 4(a)(1)(A), nor obtained the certificate of appealability required by 28 U.S.C. §2253(c). The Supreme Court reversed the Fifth Circuit and remanded.

        D’s Spisak theory was a defense of his judgment on alternative grounds, and thus he was not required to take a cross-appeal or obtain a certificate of appealability to argue it on appeal. D had prevailed on his Wiggins theories of ineffective assistance, and the district court’s judgment granted the prisoner the right to release, resentencing, or commutation, at the State’s option, and the Spisak theory would have given D and the State the same rights. When an appellee does not cross-appeal, he may urge a defense of his judgment on alternative grounds without filing a certificate of appealability unless doing so would enlarge his rights or lessen those of his adversary as provided by the previous judgment. It was clear that § 2253(c) required a certificate of appealability only when an appeal was taken to the court of appeals, which did not embrace the defense of a judgment on alternative grounds.

An Arkansas prison policy that prevented a Muslim prisoner from growing a half-inch beard in accordance with his religious beliefs violated the Religious Land Use and Institutionalized Persons Act. Holt v. Hobbs, 135 S. Ct. 853 (2015).

        D was an Arkansas inmate and a practicing Salafi Muslim. He sought an injunction and temporary relief from the Arkansas Department of Corrections’ grooming policy, which allowed trimmed mustaches and quarter-inch beards for diagnosed dermatological problems but otherwise no facial hair. D argued that growing a beard was a necessary part of the practice of his religion, that the grooming policy significantly burdened his ability to do so, and that the grooming policy was therefore a violation of the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc (RLUIPA). D was willing to limit his beard to one-half inch as a form of compromise with the policy. The district court granted temporary relief but then dismissed the complaint upon being presented with evidence of the other ways in which D was allowed to practice his religion and the extent to which the grooming policy was necessary to maintain prison security. The Eighth Circuit affirmed. The U.S. Supreme Court unanimously reversed and remanded.

        It was undisputed that the policy substantially burdened the inmate’s sincerely held religious belief that a beard was required by his religion, and there was no showing that the policy was the least restrictive means of furthering compelling prison interests. The unlikelihood of hiding contraband in a short and easily searched beard precluded showing of a compelling interest, and the prison did not require inmates to have short head hair. Nor was the policy the least restrictive means of furthering the interest in inmate identification, since the inmate could be photographed both with and without a beard and periodically thereafter as commonly occurred at other prisons.

D’s counsels’ actual conflict of interest met the “in­ter­ests of justice” standard and required the appointment of conflict-free counsel; furthermore, the counsel should not continue their court appointment and determine the existence of pleas regarding their own abandonment or misconduct. Christeson v. Roper, 135 S. Ct. 891 (2015).

        Petitioner D’s first federal habeas petition was dismissed as untimely. Because his appointed attorneys—who had missed the filing deadline—could not be expected to argue that D was entitled to the equitable tolling of the statute of limitations, D requested substitute counsel who would not be laboring under a conflict of interest. The district court denied the motion, and the Eighth Circuit summarily affirmed.

        “In so doing, these courts contravened our decision in Martel v. Clair [132 S. Ct. 1276] (2012).” An actual conflict of interest meets the “interests of justice” standard of Martel and requires substitution of conflict-free counsel for conflicted counsel appointed under 18 U.S.C. § 3599. Where D’s appointed attorneys had missed the filing deadline for his first habeas petition, D’s best argument for equitably tolling the limitations period was the attorneys’ own failure to satisfy the AEDPA’s statute of limitations, and thus, there was a significant conflict of interest. The two attorneys would have to claim serious attorney misconduct against themselves to prevent the enforcement of the statute of limitations, and they cannot reasonably be expected to do so. Secondly, the appointed counsel who procedurally defaulted D’s habeas application by untimely filing should not continue their court appointment and deter­mine the existence of, and plead, their own abandonment or egregious misconduct warranting equitable tolling of D’s statute of limitations. The Supreme Court reversed the district court and Eighth Circuit and remanded.

Fifth Circuit

District court erred in granting an acquittal for D convicted of knowing possession of child pornography; the government presented sufficient evidence such that the jury could find, beyond a reasonable doubt, that D down­loaded the files and knew what he was downloading. United States v. Smith, 739 F.3d 843 (5th Cir. 2014).

        The government did not need to rely on a theory of constructive possession because the evidence was sufficient to show that D actually possessed the child-pornography images at the time of download. Declining to require the district court to revisit its denial of D’s alternative motion for a new trial, the Fifth Circuit reversed the judgment of acquittal and remanded for sentencing.

The Fifth Circuit reversed D’s conviction for false registration of a domain name, 18 U.S.C. § 3559(g); the gov­ernment did not prove that D used the false domain name after it was registered. United States v. Simpson, 741 F.3d 539 (5th Cir. 2014).

The Fifth Circuit affirmed the denial of prisoner’s 28 U.S.C. § 2241 habeas petition challenging the constitutionality of the Federal Bureau of Prisons’ Inmate Financial Responsibility Program (IFRP); prisoner did not establish that the IFRP violated his constitutional rights to access to the courts, equal protection, or due process. Driggers v. Cruz, 740 F.3d 333 (5th Cir. 2014).

District court plainly and harmfully erred when it sentenced D, on revocation of his probation, to 30 months (over three times the recommended Guideline revocation range of three to nine months) based on D’s need for drug treatment. United States v. Wooley, 740 F.3d 359 (5th Cir. 2014).

        In sentencings on revocation of conditional liberty, just as in original sentencings, a district court may not impose or lengthen the term of imprisonment imposed solely for the pur­pose of promoting rehabilitation. Because this error affected D’s substantial rights and seriously affected the fairness, integrity, and public integrity of judicial proceedings, the Fifth Circuit remanded for resentencing.

In sentencing D convicted of making false statements relating to a credit application (in violation of 18 U.S.C. § 1014), district court reversibly erred in calculating the Guideline loss amount under USSG § 2B1.1 without a determination that all the conduct underlying the loss amount was criminal. United States v. Benns, 740 F.3d 370 (5th Cir. 2014).

        Relevant conduct must be criminal conduct; here, despite an objection on this point by D, the district court did not find, and the record did not show, that the losses were based only on criminal conduct. Accordingly, the Fifth Circuit remanded for resentencing to include findings on this point; the Fifth Circuit also held that the district court should make findings on (1) whether all the transactions included in relevant conduct were part of a “common scheme or plan,” and (2) whether D’s criminal acts actually caused the losses in question.

        (2) The district court’s restitution order was plainly erroneous because it included losses that were outside the strict parameters of D’s offense of conviction; because the error affected D’s substantial rights and seriously affected the fairness and integrity of the judicial proceeding, the Fifth Circuit remanded for reconsideration of the restitution amount.

District court did not err in denying Texas death-sentenced D’s motion to amend the judgment denying him federal habeas relief under Fed. R. Civ. P. 60(b); although D claimed that McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), rendered erroneous the district court’s prior ruling of procedural default, a change in decisional law does not constitute the extraordinary circumstances necessary to support Rule 60(b) relief. Tamayo v. Stephens, 740 F.3d 986 (5th Cir. 2014).

        Additionally, the district court was correct that D’s claim was not brought within a reasonable time because McQuiggin was decided on May 28, 2013, but D waited until January 20, 2014 (two days before his scheduled execution), to file his Rule 60(b) motion.

Death-sentenced Texas D, a Mexican national, was not entitled to a certificate of appealability or stay of execution for his claim that he was entitled to habeas relief on the U.S. treaty obligations as interpreted in a January 2014 decision of the Inter-American Commission on Human Rights. Tamayo v. Stephens, 740 F.3d 991 (5th Cir. 2014).

In prosecution for attempted use of a weapon of mass destruction, in violation of 18 U.S.C. § 2332a(a)(2), D was not entitled to suppress evidence acquired under the Foreign Intelligence Surveillance Act (FISA); based on its in-camera review of the classified materials, the Fifth Circuit held that the FISA searches were properly authorized and that the evidence collected during the searches was properly admitted. United States v. Aldawsari, 740 F.3d 1015 (5th Cir. 2014).

        Particularly, the Fifth Circuit found that the authorization of these searches was justified by a showing of probable cause to believe that D satisfied one of the definitions of “an agent of a foreign power” under 50 U.S.C. § 1801. Moreover, the objective of the searches was not solely the criminal prosecution of D, but also the protection of the nation against terrorist threats (which, under FISA, must be at least a “significant purpose” of the search).

        (2) District court’s instruction regarding the crime of attempt was not reversible error. Although one sentence taken in isolation was arguably flawed, the district court’s instruction taken as a whole correction described the “preparation-attempt continuum.” That is, when read in context, the court’s instruction adequately distinguished between “mere preparation,” which is not an attempt, and “some preparations,” which may amount to an attempt so long as such acts clearly indicate a willful intent to commit a crime.

        (3) District court did not err in cross-referencing, pursuant to USSG § 2K1.4(c)(1), to the guideline for attempted murder. Contrary to D’s argument, this cross-reference does not require a targeted victim. Moreover, even if targets were necessary under the cross-reference, there was evidence that D had considered many targets.

Fifth Circuit rejected D’s claim that the requirements of the Sex Offender Registration and Notification Act (SORNA) violated the First Amendment. United States v. Arnold, 740 F.3d 1032 (5th Cir. 2014).

        These requirements did not fit within the compelled-speech precedents of the U.S. Supreme Court. Furthermore, there is no right to refrain from speaking when essential operations of government require it for the preservation of an orderly society; sex-offender registration fits in this rubric.

District court properly denied child-pornography D’s motion to suppress evidence garnered from a search of his business pursuant to a search warrant; even with the information D claimed should have been included in the warrant affidavit, there would still have been probable cause for issuance of the warrant. United States v. Robinson, 741 F.3d 588 (5th Cir. 2014).

        Nor did the district court err in denying D’s motion to suppress evidence garnered as the result of a search of his residence. The information in the affidavit was not so stale that it rendered the affidavit a “bare-bones” affidavit. Moreover, the affidavit established a sufficient nexus between D’s residence and alleged child-pornography activity. Accordingly, the information was sufficient to entitle the executing officer to invoke the good-faith exception.

        (2) A sentencing court has the power to consider a defendant’s cooperation under 18 U.S.C. § 3553(a), irrespective of whether the government files a substantial-assistance motion under USSG § 5K1.1. This sentencing court’s failure to recognize its discretion to consider D’s cooperation under § 3553(a)(1) was a significant procedural error; on this record, that error was not harmless. The Fifth Circuit remanded for resentencing.

Where D pleaded guilty to firearms charges having to do with one firearm, the district court reversibly erred in applying a four-level enhancement pursuant to USSG § 2K2.1(b)(1)(B) on the ground that the relevant conduct involved between 8 and 24 firearms. United States v. Hagman, 740 F.3d 1044 (5th Cir. 2014).

        The other 11 firearms that were attributed to D disappeared in a burglary of the gun store where D worked; however, the record demonstrated only conjecture and suspicion that D was involved in the burglary. Because the government did not prove the applicability of the sentencing enhancement by a preponderance of the evidence, the Fifth Circuit remanded for resentencing.

Illegal-reentry D’s appellate challenge to the 16-level crime of violence enhancement was waived by the appeal-waiver provisions of his plea, which unambiguously waived the right to appeal the sentence “on any grounds set forth in Title 18 U.S.C. § 3742.” United States v. Rodriguez-Estrada, 741 F.3d 648 (5th Cir. 2014).

        Although D reserved (with the permission of the magistrate judge administering the guilty plea) the right to object to the characterization of the prior conviction as a “crime of violence,” this reservation only allowed D to raise this objection during sentencing and did not carve out an exception to the appeal waiver. Finding the appeal waiver applicable, the Fifth Circuit dismissed D’s appeal.

Court of Criminal Appeals

The district attorney’s certification is necessary to confer jurisdiction on the court of appeals; courts were not hypertechnical in requiring the prosecutor to vouch for the facts that his interlocutory appeal was not being taken for purposes of delay and that the evidence suppressed was of substantial importance. State v. Redus, 445 S.W.3d 151 (Tex.Crim.App. 2014).

        In these two consolidated cases, the trial judge granted Ds’ motions to suppress evidence. The State filed a notice of appeal in each case, but COA dismissed the appeals, concluding that it did not have jurisdiction because the elected district attorney failed to comply with Tex. Code Crim. Proc. art. 44.01(a)(5)’s certification requirements because the district attorney did not timely file the required facts that the appeal was not made for purposes of delay and the evidence suppressed was of substantial importance to the case, but simply signed a document that quoted the statute. The State filed for CCA to review whether COA’s interpretation of the certification requirement was “hypertechnical” and contrary to statutory construction.

        “We conclude that it was neither. As we explained in State v. Riewe [13 S.W.3d 408 (Tex.Crim.App. 2000)], the district attorney’s certification is necessary to confer jurisdiction on the court of appeals. We, therefore, affirm COA’s judgments in these cases.”

Ushering out friends and family during D’s voir dire, without a legitimate overriding interest, closed a critical stage of the proceedings, violating D’s rights. Cameron v. State, No. PD-1427-13 (Tex.Crim.App. Oct 8, 2014, reh’g granted).

        In this murder case, appellant argued that her constitutional right to a public trial was violated when the trial court excluded the public from voir dire. She appealed the conviction and sentence of 70 years’ imprisonment and a $5,000 fine. COA reversed her conviction and remanded for a new trial. CCA affirmed COA.

        “In all criminal prosecutions, the accused shall enjoy the right to a . . . public trial. . . .” This right extends to voir dire and is necessary to ensure that jurors, prosecutors, and the court are kept aware of their responsibility and can carry out their functions. It also discourages perjury by holding parties responsible to the public. A violation of this right is a structural error and does not require a showing of harm. The right to a public trial may give way to other competing rights or interests (such as a defendant’s right to a fair trial). However, these circumstances should be rare, and the trial court must issue findings specific enough for a reviewing court to determine if the closure was properly ordered. Here, the record established that the courtroom was closed during voir dire because counsel made an undisputed statement that D’s friends and fam­ily were ushered out and not allowed back in; the judge, far from disputing these facts, attempted to justify the removal of observers by citing space limitations and safety concerns. The trial court did not make findings to support a legitimate overriding interest for this closure. Therefore, D’s rights were violated because space limitations and safety concerns did not outweigh the right to a public trial under U.S. Const. Amend. VI; the trial court could have moved to a bigger courtroom or split the panel in half and did not make any specific findings as to security. Furthermore, defense counsel preserved this com­plaint for appeal; the record shows very clearly that, as soon as the court went on record, defense counsel brought the complaint to the court and requested (at least six separate times) that the court rule on his objection, but the court declined to rule.

In an appeal from a judgment reversing the trial court and acquitting D of aggravated sexual assault of a child, CCA found that a reasonable jury could have inferred the child complainant mistook D’s closed eyes and heavy breathing for sleep. Whatley v. State, 445 S.W.3d 159 (Tex.Crim.App. 2014).

        A jury found D guilty of aggravated sexual assault of a child by touching. On direct appeal, D claimed that the evidence was legally insufficient to support his conviction because the State did not offer evidence disputing his claim that he was asleep at the time and that his actions were therefore involuntary. COA agreed and reversed the trial court and entered a judgment acquitting D. CCA reversed COA and remanded for consideration of D’s final point of error.

        “Viewing the evidence in the light most favorable to the verdict, we conclude that a jury could have reasonably inferred that appellant was awake, but feigning sleep, when he inappropriately touched the complainant and that his actions were therefore voluntary under Section 6.01(a) of the Texas Penal Code.” A reasonable jury could have had difficulty believing that D, who only sometimes fell asleep quickly while in bed with his wife, was so deeply asleep within minutes on three different occasions that he unconsciously undertook the dexterous action of putting his hands inside the complainant’s pants.

D properly preserved his voir dire objection because once D posed the question he sought to ask and the trial court refused to allow the question, the court’s ruling amounted to a direct order not to ask the question and thus D obtained a specific ruling as to a specific question and properly preserved the issue. Samaripas v. State, No. PD-135-13 (Tex.Crim.App. Oct 15, 2014).

        A jury convicted D of engaging in organized criminal activity and sentenced him, as a habitual criminal, to 53 years in prison. On appeal, D argued that the trial court improperly sustained the State’s objection to D’s questions during voir dire. COA concluded that D failed to preserve error for appellate review. CCA granted review of Appellant’s following questions: (1) To preserve error relative to a limitation on voir dire examination of a prospective juror, must a defendant object after the trial court sustains the State’s objection to a proposed question? (2) May a non-aggravated state-jail felony conviction, previously punished under the range for a second-degree felony, be used for the purpose of enhancing punishment to that of a habitual criminal under Tex. Pen. Code § 12.42(d)?

        “We hold that error was preserved and that the court of appeals failed to apply the correct, particularized standard re­garding preservation of error during voir dire. We further hold that under Sections 12.42(d) and (e) of the Texas Penal Code as it was worded at the time of Appellant’s offense in the present case, the non-aggravated state-jail felony conviction that was punished as a second-degree felony was properly used for subsequent habitual-criminal punishment enhancement. We will reverse and remand to the court of appeals for consideration of the merits of the first issue.”

D who chose to employ peremptory strikes outside the strike zone could not then complain about harm concerning a juror within the strike zone who could have been removed instead. Comeaux v. State, 445 S.W.3d 745 (Tex.Crim.App. 2014).

        “This is a case of first impression in Texas. A jury convicted appellant of burglary of a habitation and sentenced him to fifty years’ imprisonment. Appellant appealed his conviction, arguing that the trial judge erred when he denied a challenge for cause to a potential juror. [COA] affirmed, holding that appellant failed to preserve error on the challenge for cause because, although he exhausted his peremptory strikes and identified an objectionable juror, he used a peremptory strike on a potential juror Comeaux outside of the ‘strike zone,’ and thus suffered no detriment. . . . We granted review to determine if a defendant, while using all of his peremptory strikes ‘wastes’ one on a venireperson who is not in the ‘strike zone,’ has preserved his claim of an erroneous denial of a challenge for cause for appellate review. The issue, however, is one of harm, not preservation. We hold that appellant failed to show harm because he could have, but chose not to, strike the objectionable juror.”

        Even if a trial judge had erroneously denied D’s challenge for cause to a potential juror, D did not show harm because the ruling did not force him to waste a peremptory strike, given that he could have, but chose not to, strike the objectionable juror, instead skipping over the juror and striking a later panel member who was not even within the strike zone of potential jurors. CCA affirmed D’s conviction.

The record was clear that the trial judge orally made restitution part of the sentence, but either the amount or the person(s) to whom it was owed was unclear, incorrect, or insufficient; COA should vacate the faulty order and remand for a new restitution hearing. Burt v. State, 445 S.W.3d 752 (Tex.Crim.App. 2014).

        “Appellant was convicted of misapplication of fiduciary property in excess of $200,000, sentenced to 14 years’ confinement, and given a $10,000 fine. The trial court orally pronounced at the end of the sentencing hearing that appellant would owe restitution, but he did not specify the amount. The next day, the trial judge entered an order for $591,000 restitution in the written judgment. The court of appeals vacated the order and remanded the case to the trial court for a restitution hearing. Appellant claims that the appellate court should have simply deleted the restitution order. We agree with the court of appeals that remanding the case for a formal restitution hearing is proper because this practice is consistent with our case law and adequately protects a defendant’s due-process rights while providing justice to victims.” Because the trial judge made restitution part of his oral pronouncement of sentence, the restitution order under Tex. Code Crim. Proc. art. 42.037 was not to be deleted.

Forged checks were properly suppressed because probable cause did not support D’s warrantless arrest for misdemeanor assault of her boyfriend, and thus the search of her parked car could not be justified as inci­dent to the arrest; an anonymous report of a vehicle chasing a man in a field did not support the arrest because both involved parties indicated they were having an argument and D was simply driving beside the boyfriend. State v. Story, 445 S.W.3d 729 (Tex.Crim.App. 2014).

        “Appellee . . . was charged with forgery after police found forged checks in her car. See Tex. Penal Code § 32.21 (2014). The trial court, however, granted her motion to suppress the checks that were recovered from her vehicle, which was searched during the arrest of Appellee and her boyfriend . . . for unrelated offenses. The trial court determined that Appellee was arrested without probable cause and that the search of her vehicle and seizure of the evidence found there were the result of a trespass by the officer. The court of appeals affirmed the ruling of the trial court, finding no abuse of discretion in the court’s conclusion that Appellee’s arrest was unlawful and the evidence inadmissible. We agree with the court of appeals[.]”

D’s convictions for both contacting and penetrating the victim’s sex organ with his mouth violated his right against multiple punishments for the same offense in the Double Jeopardy Clause of the U.S. Const. amend. V because the contact and the penetration were based on the same act; the facts necessary to prove contact were included within the proof necessary to establish penetration. Aekins v. State, 447 S.W.3d 270 (Tex.Crim.App. 2014).

        “A jury found [D] guilty of three counts of sexual assault. [COA] held that his convictions for both contacting and penetrating the adult victim’s sexual organ with his mouth violated his right against multiple punishments for the same offense because the contact and penetration were based on the same act. We granted the State Prosecuting Attorney’s petition for discretionary review to clarify that (1) when a single exposure or contact offense is ‘incident to and subsumed by’ a penetration offense, the offenses are the ‘same’ for double-jeopardy purposes, and (2) the Texas Legislature has not manifested its intent to allow multiple punishments for those ‘same’ offenses, so (3) multiple convictions for those ‘same’ offenses violate double-jeopardy principles. We conclude that [COA] properly vacated the conviction for the ‘contact’ sexual-assault count, and we affirm its judgment.”

Where D was improperly sentenced to 10 years’ confinement after a community supervision revocation, the right to be sentenced by a judge who considered the entire range of punishment was not subject to procedural default because it was a waiver-only right. Grado v. State, 445 S.W.3d 736 (Tex.Crim.App. 2014).

        D’s community supervision was revoked, and the judge sentenced D to ten years’ confinement, believing that was the statutory minimum for D’s offense when in fact it was five. D did not object. D appealed his sentence and conviction asserting that (1) the judge arbitrarily refused to consider the correct range of punishment, and (2) he was constructively denied effective assistance when counsel agreed with the State’s representation of the minimum punishment. COA held that D’s first claim could be raised for the first time on appeal; COA held that “the right to be sentenced under the correct statute by a sentencing authority who has meaningfully considered the appropriate range of punishment” falls under the second category of Marin v. State, 851 S.W.2d 275 (Tex.Crim.App. 1993), a right that “must be implemented by the [legal] system unless expressly waived” and does not require a contemporaneous ob­jection. COA found that the judge’s error was harmful under Tex. R. App. P. 44.2(b) and did not address D’s ineffective-assistance claim. CCA granted the State’s sole ground for review of COA’s Marin analysis: Is the right to be sentenced by a judge who considers the entire range of punishment subject to procedural default? Concluding that it is a waiver-only right, CCA held that it is not and affirmed COA.

        The application of the general preservation requirement of Tex. R. App. P. 33.1 turned on the nature of the right allegedly infringed on. The right to be punished after consideration of the full range of punishment fell outside of a Marin category-one right because it was waivable or forfeitable by the parties. The due process right here was a significant feature of the judicial system that was properly classified as a category-two right. Because the record did not show an effective waiver of the right, the merits of the complaint were properly entertained.

In this habeas proceeding, CCA denied D’s motion to remand the Tex. Code Crim. Proc. art. 11.07 habeas application to the convicting court for additional fact development by way of an evidentiary hearing because he was required to file any supplemental materials in the convicting court. Ex parte Whisenant, 443 S.W.3d 930 (Tex.Crim.App. 2014).

        By filing his affidavits and declarations directly with CCA, D deprived the convicting court of evidence and undermined its statutory duty to decide whether there were controverted, previously unresolved facts material to the legality of his confinement. If supplemental materials are filed only with CCA, it will not consider them absent compelling and extraordinary circumstances. D offered no such circumstances in his motion to remand. “If Applicant wishes to properly present his affidavits, declarations, and other documentary evidence to this Court, he may file them with the convicting court in Johnson County within 30 days of the date of this order. If he does file them there, the District Clerk shall immediately forward them to this Court as a supplemental record.”

Court of Appeals

Trial court did not unreasonably or arbitrarily interfere with D’s right to choose retained counsel (in violation of U.S. Const., amend. VI; Tex. Const. art. I, § 10; or Tex. Code Crim. Proc. art. 1.05) where the record did not reflect that D or anyone on his behalf took steps to retain another lawyer, he did not request additional time to retain another lawyer, and he did not state he could no longer afford retained counsel. Ibarra v. State, No. 14-13-00337-CR (Tex.App.—Houston [14th Dist] Jan 22, 2015).

        Furthermore, the trial court did not err by not appointing counsel under Tex. Code Crim. Proc. art. 1.051 where, although D requested appointment of counsel, he did not assert that he was indigent, make any showing that he was indigent, or request a determination of indigency.

D was denied effective assistance; D’s counsel incorrectly believed D was eligible for deferred adjudication community supervision, and D cannot be said to have entered his plea knowingly and intelligently if he did so while operating under a misunderstanding of the law applicable to such a critical phase of his case. Anthony v. State, No. 07-13-00089-CR (Tex.App.—Amarillo Feb 12, 2015).

        In 2009, D entered a plea of guilty to aggravated sexual assault. The trial court accepted the plea and placed D on deferred adjudication community supervision for eight years. The Order found the age of the victim to be three years. In 2013, the State moved to proceed with an adjudication of guilt alleging D violated his community supervision. At a hearing on the motion, D entered pleas of true; after hearing testimony, the trial court adjudicated him guilty of the offense and assessed punishment at confinement for life.

        Appellant here sought to reverse the trial court. Among other contentions, he contended his original plea was involuntary under Tex. Code Crim. Proc. art. 26.13(b) because it was based, in part, on the representation that he was eligible for deferred adjudication community supervision (wherein the trial court was not authorized to place D on deferred adjudication community supervision under Tex. Code Crim. Proc. art. 42.12, §§ 3(e)(1) and 5(d)(3)(B) when he was charged with an offense punishable under Tex. Penal Code § 22.021(f)). Appellant contended that but for that representation, he would not have given up his right to a jury trial and entered a plea of guilty. COA found the ineffective assistance claim to be dispositive and pretermitted the remaining issues.

        “We examine an ineffective assistance of counsel claim by the two-pronged standard enunciated in Strickland . . . that (1) trial counsel’s performance was deficient in that it fell below the prevailing professional norms, and (2) the deficiency prejudiced the defendant. . . . [C]ounsel provided Appellant incorrect legal advice concerning the range of punishment ap­pli­cable to the offense charged. Counsel’s incorrect legal advice was reinforced and compounded by the acquiescence of both the prosecutor and the trial judge. Not knowing the law applicable to the offense charged is competence below the professional norm. Accordingly, because obtaining a guilty plea in exchange for a recommendation that was not legally available deprives the accused of the opportunity of making an intelligent choice among legally available courses of action, we find the record clearly establishes that the performance of Appellant’s trial counsel was deficient. . . . [W]e need look no further than the negotiated plea bargain itself to find prejudice. . . . Defense counsel’s mistaken belief that Appellant was eligible for deferred adjudication community supervision, compounded by the misguided consensus of the prosecutor and the trial court, resulted in an erroneous understanding of the law applicable to his case, which reasonably induced Appellant into entering a plea of guilty[.]”

There was insufficient evidence to support the finding that a valid suspension period related to the suspension of D’s driver’s license was in effect on November 6, 2012, because the State introduced neither competent evidence of convictions of D for driving without proof of financial responsibility nor evidence that the Texas Department of Public Safety had automatically suspended his license as of November 6, 2012. White v. State, No. 06-13-00110-CR (Tex.App.—Texarkana Feb 18, 2015).

            D was convicted by a jury of driving while license invalid with a previous conviction for driving while license invalid, and he was sentenced to 90 days in jail with a $1,000 fine. D appealed that there was insufficient evidence for his conviction because there was no evidence that a valid suspension period was in effect at the time he was operating his vehicle. COA found that there is insufficient evidence that any suspension of his driver’s license was in effect at that time. COA reversed the trial court and rendered an acquittal.

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