April 2022 SDR – Voice for the Defense Vol. 51, No. 3

Voice for the Defense Volume 51, No. 3 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

It’s hard practicing law right now. We’re all still kind of chasing our tails with court backlogs, personal backlogs, and remnants of unusual courtroom procedures, all owing to a global pandemic. If you’re like me, you have a lot more emails/mailings you used to read that are now tossed aside on account of not having the time to read them. I appreciate that people find the time to still browse this one. But if you’re inclined to mark as read without reading the electronic SDR, or if you just need to hear less Kyle in your life, check out the new format we cooked up at SDR-HQ. It’s a new shortened what-you-need-to know at the top of each case titled “Issue & Answer.” If it helps, let me know. I am your humble servant aiming to hit everyone with as much significantly decision-like reporting as I can each month.

TCDLA thanks the Court of Criminal Appeals for graciously administering a grant which underwrites the majority of the costs of our Significant Decisions Report. We appreciate the Court’s continued support of our efforts to keep lawyers informed of significant appellate court decisions from Texas, the United States Court of Appeals for the Fifth Circuit, and the Supreme Court of the United States. However, the decision as to which cases are reported lies exclusively with our Significant Decisions editor. Likewise, any and all editorial comments are a reflection of the editor’s view of the case, and his alone.

Please do not rely solely on the summaries set forth below. The reader is advised to read the full text of each opinion in addition to the brief synopses provided.

This publication is intended as a resource for the membership, and I welcome feedback, comments, or suggestions: (972) 369-0577.

Kyle Therrian

United States Supreme Court

The United States Supreme Court did not hand down any published opinions since the last Significant Decisions Report.

Fifth Circuit

United States v. Garrett, 24 F.4th 485 (5th Cir. 2022)

Issue & Answer. The Armed Career Offender Act (ACCA) provides enhanced penalties for federal criminal defendants with three or more convictions for violent felonies. The Supreme Court recently held in Borden v. United States that crimes which may be committed by reckless conduct do not qualify as violent offenses. Does Texas’s robbery statute—which can be committed by recklessly causing bodily injury in the course of a theft—still qualify as a violent felony under the ACCA? Yes, but only robbery-by-threat.

Facts. Defendant was convicted of felon in possession of a firearm. He had two prior burglary convictions which qualified as violent offenses under the ACCA. He also had a simple robbery conviction. Whether this robbery charge qualified as a violent offense under the ACCA was the subject of this litigation. The district court found that it did not, following the Supreme Court’s ruling in Borden. The Government appealed.

Holding. Criminal offenses that can be committed through mere recklessness do not require the use of force and therefore are not violent felonies under the ACCA. Borden v. United States, 141 S.Ct. 1817 (2021). Defendant argues that this holding should apply to the Texas Robbery statute because the statute creates a “single, indivisible crime.” Defendant argues that, as an indivisible crime, it is disqualified as a violent felony because one of the permissible manners and means of committing the offense includes “recklessly causing bodily injury to another in the course of a theft.” In other words, the statute is disqualified using a categorical approach by looking at nothing more than the statute alone. Contrary to defendant’s contention, the Texas robbery statute is a “divisible statute” which can be broken into “multiple, distinct crimes.” The two distinct offenses proscribed by the Texas’s robbery statute are: (1) robbery-by-injury, and (2) robbery-by-threat. Where a statute is divisible, the court applies the modified categorical approach and looks to the charging document to see which of the two offenses underly the conviction. Here the evidence shows defendant committed robbery-by-threat which is committed by knowing and intentional conduct. Defendant is therefore qualified for ACCA sentencing with robbery-by-threat as his third qualifying felony.

Comment. The Fifth Circuit acknowledges the disagreement among Texas Courts of Appeal regarding the divisibility of the statute.

United States v. Martinez, 25 F.4th 303 (5th Cir. 2022)

Issue & Answer. Was the detention of mailed packages for a period of 17 days unreasonable under the Fourth Amendment? No.

Facts. An employee of a postal facility in El Centro, California alerted a postal inspector regarding two suspicious packages. The packages had several hallmarks of drug shipments: (1) postage fees paid in cash, (2) handwritten labels, (3) identical handwriting despite different sender names, (4) both sent to same area, (5) an anxious or nervous sender. The postal inspector requested the packages sent to him in San Diego. The postal inspector learned that an individual with a Mexican IP address had been tracking the package. He also investigated the names and addresses of the recipients and learned the names on the packages were not associated with the addresses on the packages. Eight days after the initial seizure, the postal inspector performed a canine sniff on the packages which resulted in a positive alert for controlled substances. Due to intermittent sickness and other obligations, the postal inspector did not obtain a warrant until 16 days after the seizure. He conducted his search the next day and discovered 2,222 grams of methamphetamine. Defendant moved to suppress claiming: “(1) the postal employee did not have reasonable suspicion to detain the packages, (2) the 17-day delay between detention of the packages and their search was unreasonable, and (3) the search warrants were invalid and insufficient to establish probable cause because they contained incorrect information.”

Analysis. The Fourth Amendment extends to packages sent via the US Postal Service. The government may detain packages based on reasonable suspicion and conduct a search pursuant to a search warrant. Here the postal employee identified five factors consistent with common traits of drug packaging. This was sufficient to justify the initial detention. When the postal inspector received the packages and made additional findings—including a positive canine alert—the reasonable suspicion became probable cause. In evaluating whether the length of detention is unreasonable the court looks to several factors which include: “investigatory diligence, the length of the detention, and whether there were circumstances beyond the investigator’s control.” The postal inspector took possession of the packages and diligently worked to confirm or dispel his suspicion. Within eight days he obtained a positive canine alert. Any delay in this period was attributed to other work that the postal inspector was required to perform or illness. Delay was similarly justified during the next eight-day period it took the inspector to obtain a search warrant. He had other work to do and got sick again. The length of detention was not unreasonable.

Comment. It is the government’s burden to show diligence. Because one guy had other work to do and got sick a couple of times does not discharge that burden, in my opinion. The analysis should be the rights of an individual versus the interests and conduct of the government. The government is vast in both resources and personnel. There should be analysis of why this particular postal inspector had to be the person who performed the investigation, or at least some articulation why passing it to another member of law enforcement would not have expedited the process.

Texas Court of Criminal Appeals

Holder v. State, No. PD-0026-21 (Tex. Crim. App. 2022)

Issue & Answer. When a trial court fails to suppress evidence pursuant to the Texas Exclusionary Rule (Article 38.23 of the Code of Criminal Procedure) is the resulting error analyzed as constitutional error—error resulting in reversal unless harmless beyond a reasonable doubt? No.

Analysis. A trial court’s error in failing to exclude evidence under Article 38.23—Texas’s exclusionary rule—is analyzed as standard non-constitutional error. “We now conclude we were mistaken in Love [to conclude otherwise].” See Love v. State, 543 S.W.3d 835, 846 (Tex. Crim. App. 2016).

Shumway v. State, No. PD-0108-20 (Tex. Crim. App. 2022)

Issue & Answer. The corpus delicti rule provides that a confession alone is insufficient to convict a person of a crime—the confession must be corroborated by some evidence that a crime was committed by someone. Should the court create an exception to the corpus delicti rule “for cases involving trustworthy admissions of sexual offenses committed against victims incapable of outcry?” Yes.

Facts. Defendant and his wife agreed to watch their friends’ children for a weekend. Defendant took the 17-month-old child into his bedroom and sexually abused her. Defendant later confessed to his pastor and then his wife. Defendant’s wife testified that she remembered leaving the defendant alone with the children while she had lunch with friends. The parents of the child took her to a forensic medical examiner. The medical examiner was not able to locate injuries and could not conduct an interview because the child was pre-verbal. The defendant challenged the evidence on corpus delicti grounds. A jury found the defendant not guilty of aggravated sexual assault but convicted him of two counts of indecency with a child. The court of appeals found defendant’s confession sufficiently corroborated by details surrounding the event, namely that the defendant had opportunity, motive, and a guilty conscience.

Analysis. Here there was insufficient evidence to corroborate defendant’s confession. According to the corpus delicti rule, his conviction cannot stand. However, this rule should be narrowed under these circumstances.

Crimes against children, such as indecency with a child, often involve victims who lack the ability to relate the occurrence of the crime. In addition, indecency with a child is not an offense that would ordinarily cause perceptible harm. Failing to recognize an exception to the corpus delicti rule under such circumstances would result in the inability to prosecute such crimes despite the existence of a voluntary, reliable, and corroborated confession.

Because evidence corroborated some of the non-offense details of defendant’s confession and there was no indication of coercion, Defendant’s confession alone is sufficient to maintain the jury’s verdict.

Concurrence (Yeary, J.). Abolish the corpus delicti rule. We are much better at preventing wrongful convictions than England was 300 years ago.

Comment. Judge Newell gives a synopsis for the rationale behind corpus delicti:

The rule has been applied in Texas for at least one hundred sixty years and originated over three hundred years ago in England. It first developed in reaction to a slew of cases in which defendants admitted to the “murder” of missing persons, were executed, and, naturally, were not around for exoneration when their ‘victims’ later turned up, much more alive than their self-admitted “murderers.”

While the opinion here is narrow—applicable to pre-verbal children who cannot inculpate their abuser—in oral arguments the court seemed primed to scrap the 300-year-old argument altogether.

Laws v. State, No. PD-1124-20 (Tex. Crim. App. 2022)

Issue & Answer. Article 36.22 of the Code of Criminal Procedure prohibits a non-juror from being “with the jury while deliberating.” When a trial judge announces his intent to instruct the alternate juror to sit with the jury during deliberations but not participate, has counsel sufficiently preserved Article 36.22 error by objecting and merely explaining his concern that the juror will disregard the non-participation admonishment? Yes.

Facts. A jury convicted defendant of two counts of assaulting a peace officer. The trial judge announced that he intended to instruct the alternate juror to sit in and observe the deliberations of the 12 seated jurors. Defense counsel immediately objected. Counsel did not state a legal basis but articulated his concern that there was no way to police the court’s instruction that the alternate merely spectate and not participate.

Analysis. An objection is sufficient to preserve error when it: (1) alerts the trial court to the nature of the complaint, and (2) provides the judge and opposing counsel an opportunity to address it. A party raising an objection is not required to: (1) use “magic words,” or (2) cite a specific statute. 

The court of appeals claimed that Appellant’s objection was general because he could have been referring to a constitutional claim that alternate jurors cannot be present during deliberations based on the “No More Than Twelve Jurors” Clause of Article V, Section 13 of the Texas Constitution.” The court of appeals faulted appellant for not saying “Article 36.22” when he objected.

Here, counsel made his complaint sufficiently clear. He articulated that he was concerned about the danger that the alternate juror would participate in the deliberations and that the danger could not be policed. The trial court resolved the complaint by stating “this is just the new way . . .” Everyone knew what counsel’s complaint was, the issue was preserved. Case remanded to the court of appeals to address the merits of defendant’s Article 36.22 complaint.

Comment. Here is a riddle, wrapped in a mystery, inside of an enigma: if this scenario comes up in a future case and defense counsel stands up and objects by stating this “violates Laws” has he been sufficiently specific in his objection?

Pham v. State, No. PD-0287-20 (Tex. Crim. App. 2022)

Issue & Answer 1. A defendant faces a higher burden to show deadly force self-defense than he does to show simple self-defense. Penal Code § 9.04 allows a defendant who makes threats using a weapon to avoid this higher burden in cases where a defendant displayed a weapon only to create an apprehension that he would use deadly force if necessary. Where a defendant follows through on such a threat and kills a person, is he still entitled to minimize his burden pursuant to a Section 9.04 instruction? No.

Issue & Answer 2. When trial counsel falls on the sword and indicates that his punishment strategy was not the result of investigation but rather mere assumptions, has counsel provided ineffective assistance of counsel? No. Not here.

Facts. Defendant shot and killed a man who once dated his girlfriend. Defendant got word that his future victim was eating dinner at a restaurant, and he went there to confront him. The defendant described the events transpiring inside the restaurant as follows: there was a commotion at the victim’s table, defendant knew the victim carried a gun, defendant drew his weapon as a warning “in an effort to de-escalate the situation,” the victim tried to pull his own gun, defendant shot the victim twice aiming low to avoid killing him, the victim drew his gun between shots. Defendant fled and evaded apprehension for the next ten years while selling drugs. The trial court instructed the jury on self-defense but refused an instruction on the law of threats as justifiable force under Penal Code § 9.04. After the jury convicted the defendant of murder, counsel sponsored defendant’s two older brothers as punishment witnesses. They both testified that they thought he would do well on probation. Defendant filed a motion for new trial challenging the effectiveness of his attorney in investigating punishment witnesses. Defendant’s trial counsel provided an affidavit explaining that he believed the only other witnesses were people who knew he had been selling drugs for the last 10 years, knew he was on the lam for murder, or people who hadn’t heard from him for 10 years. However, trial counsel admitted: (1) he had made “conclusory assumption[s],” (2) he failed to investigate, (3) his decisions were not based on trial strategy, and (4) his presentation of the defendant’s brothers as witnesses was a rushed decision. Defendant attached 20 character witness affidavits to his motion for new trial.

Analysis 1. Penal Code § 9.04 provides that a threat using a weapon does not constitute deadly force if the sole purpose of making such a threat is to create an apprehension that the actor will use deadly force if necessary. This is not an independent defense, but rather a mechanism to raise simple self-defense in a deadly weapon case and avoid the heightened burden of establishing a deadly force self-defense. The statute’s express limitation that the actor’s purpose be one of causing apprehension is not when the defendant actually used deadly force.

Analysis 2. “If a witness had not had contact with Appellant during the ten years in which he was a fugitive, then that witness’s testimony was likely to be viewed by a jury as stale and uninformed. If a witness did have contact with Appellant while he was a fugitive for ten years, then a jury was likely to view that witness as a bad judge of character.”

Concurring (Yeary, J.). The majority only finds that the defendant failed to show harm arising from purported ineffective assistance of counsel. However, trial counsel “has not been shown to have performed deficiently in this case.”

Concurring (Slaughter, J.). “Because the jury was also instructed on the law of provocation here, an instruction under Section 9.04 was needed to inform the jury that Appellant’s conduct in pulling out his weapon did not necessarily make him the first aggressor and may be justifiable as self-defense.” Nonetheless, the trial court’s failure was harmless.

Comment. I think it assumes too much to conclude without evidence that each of defendant’s 20 witnesses knew defendant had been evading arrest for 10 years. It is an equally large assumption to conclude witness who knew about defendant’s fugitive status “would likely also know about other bad acts committed by Appellant while on the run from the law.”

Ex parte Hicks, No. WR-93,188-01 (Tex. Crim. App. 2022)

Issue & Answer. When a defendant pleads guilty to attempted forgery of a $100 bill and it is later determined the $100 bill is real, is that defendant entitled to actual innocence relief? No.

Facts. The State charged the defendant with forgery. Defendant pled guilty to attempted forgery and the trial court sentenced him to 180 days confinement in state jail. Five years later the Secret Service notified everyone that the $100 bill he possessed was actually a real $100 bill. Defendant filed a writ of habeas corpus alleging actual innocence. The trial court found defendant actually innocent.

Answer. “To prevail in a claim of actual innocence when no constitutional violation is alleged, the applicant must show by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence.” The offense here is not forgery but criminal attempt. A person commits criminal attempt when he performs an act amounting to more than mere preparation but fails to commit the target offense. Criminal attempt punishes people with forbidden objectives who fail due to a factual impossibility (e.g., attempting to pick an empty pocket, attempting to kill with a non-lethal poison). The evidence showed that defendant believed the $100 bill was fake and intended to use it as though it were real. While defendant is not actually innocent, he is nonetheless entitled relief because his plea was involuntary. It was made without “sufficient awareness of the relevant circumstances.”

Dissenting (Yeary, J.). The defendant did not raise “involuntary plea” as a grounds for relief. The only issue before the court was actual innocence. And if the crime can be committed regardless of the nature of the $100 bill, then defendant having not known the $100 bill was real is not even a circumstance which is relevant to the voluntariness of his plea.

Comment. The court distinguishes the instant fact pattern—one where the defendant had misapprehension about underlying facts relevant to guilt—from recent cases in which the court denied relief upon complaints about evidence the State had not disclosed. The misunderstanding of the parties in the instant case went to the basic premise of the prosecution and was not merely a piece of information which would have been useful in evaluating the strength of the State’s case.

1st District Houston

State v. Moreno, No. 01-19-00861-CR (Tex. App.—Houston [1st Dist.] 2022)

Issue & Answer. This scenario involves a multi-charge prosecution where the State obtained a conviction and sentence on a single charge and then let the remaining charge linger for seven years while the defendant was in prison. With this period of delay, was it proper for the trial court to grant defendant’s motion to dismiss on speedy trial grounds despite the defendant never making a speedy trial demand? Yes.

Facts. The State appealed the order of the trial court granting defendant’s motion to dismiss on speedy trial grounds. The timeline of the case was as follows:

    • April 2012: the State indicted the defendant for aggravated assault and possession of controlled substance. The defendant remained incarcerated pending trial after an unsuccessful request to reduce his bond.
    • September 2012: counsel requested a competency evaluation. This was followed by several additional requests over the next 15 months by both the State and defense counsel. Ultimately a jury determined defendant was competent to stand trial in December 2013.
    • January 2014: the first trial setting on the possession charge. This date was rescheduled after counsel moved for new trial on competency.
    • April 2014: the jury trial on the possession charge was held. A jury found him guilty, and the trial court assessed punishment at 33 years. Defendant appealed.
    • September 2015: the court of appeals found defendant’s appeal frivolous and affirmed the trial court’s judgment. Around the same time the district clerk asked the prosecutor about the still-pending assault charge. The prosecutor informed the district clerk that he was aware of the case, and they were waiting on nothing in particular before they requested a bench warrant.
    • Summer 2018: TDCJ granted defendant’s parole on the possession charge.
    • October 2018: the trial court set defendant’s assault charge for an appearance.
    • January 2019: trial court appointed new counsel after previous counsel’s withdrawal. The State moved to hold defendant’s bond insufficient citing frustration with TDCJ who should not have released him with the instant assault case still pending. The trial court placed the defendant back into custody with a $25,000 bond. Defendant posted the $25,000 bail.
    • July 2019: defendant moved to dismiss the prosecution for denial of speedy trial. The trial court reset the August 2019 trial date to November 2019.
    • November 2019: the trial court held a hearing and granted the motion to dismiss on speedy trial grounds. Defendant presented testimony from the director of a recovery center who had become close with the defendant and who shared his observations of stress and anxiety over the newly revived prosecution.

Analysis. The remedy for a denial of speedy trial is dismissal. The issue is analyzed under the factors set forth in Barker v. Wingo: (1) length of delay, (2) reason for delay, (3) assertion of right, (4) prejudice. No one factor is necessary or sufficient to the evaluation. Here the delay between indictment and trial was seven years—six years longer than is generally necessary to trigger the Barker inquiry. Here the State is to blame for all of the delay after the competency proceedings. Both of defendant’s charges were set for trial on the same day and the State failed to proceed on the instant assault charge. The State offered no explanation for this, nor did they show post-trial diligence to prosecute him on the second charge. After the clerk nudged the prosecutor about the case, the case “still lingered on the docket for another three years.” The State argued the instant prosecution was impacted by the pendency of the appeal in the possession case, but the State made no connection between the assault charge and the possession charge. See State v. Davis, S.W.3d 688 (Tex. App.—Austin, 2017)(pending appeal in connected case may justify delay if sufficiently connected). The State was, at best, unconcerned with the instant prosecution while the defendant was in TDCJ. Defendant’s anxiety and sleep loss attributed to the delay in the State’s prosecution was sufficient to find some prejudice existed. On the other hand, defendant, who was represented by counsel for the seven years of delay never demanded a speedy trial and only demanded that the case be dismissed upon the State reinstituting the prosecution. This weighed heavily against the defendant, but ultimately the significant length of delay was sufficient to affirm the trial court’s dismissal.

2nd District Fort Worth

Walton v. State, No. 02-20-00036-CR (Tex. App.—Ft. Worth, 2022)

Issue & Answer. When the State alleges a defendant committed an offense through reckless conduct, Code of Criminal Procedure Article 21.15 requires the State to allege the acts relied upon which constitute such recklessness. When the State alleges acts of recklessness as required by statute, do the acts of recklessness become part of the elements of the offense against which sufficiency of the evidence is judged? No.

Facts. The State charged defendant in three indictments with unlawful restraint and two charges of aggravated assault. After using cocaine, defendant asked his girlfriend to speak with him in the cab of his truck. When she got in the truck, he sped off and told her they were both going to die. Defendant drove erratically and dangerously. His girlfriend asked him to let her out and tried to flag other drivers for help. Eventually defendant ran a red light and crashed his vehicle. Police officers made contact and asked him if he was under the influence. Defendant responded that he had “dabbled in cocaine.”

Analysis. Defendant argues that because Texas Code of Criminal Procedure Article 21.15 requires the State to allege the acts relied upon to constitute recklessness, the hypothetically correct jury charge—a standard against which evidentiary sufficiency is judged—must also include said acts. However, the enhancing element of unlawful restraint is “[r]ecklessly exposing a victim to substantial risk of serious bodily injury,” and this “is a result-of-conduct element.” Variances between pleading and proof in the case of result-of-conduct elements are immaterial and thus need not be included in the hypothetically correct jury charge analysis.

Comment. I find the question raised here interesting. It’s true that indictment allegations which would give rise to an immaterial variance do not become elements of the offense under the hypothetically-correct-jury-charge standard. But if the legislature requires the State to allege a specific manner and means, should this change things? I’m not sure the Court of Criminal Appeals has addressed this. Admittedly, I didn’t look that hard, though. I get exhausted thinking about the unnecessary complexities of “what are the things the State had to prove” under Texas sufficiency of evidence jurisprudence.

3rd District Austin

State v. Curipoma, No. 03-22-0032-CR (Tex. App.—Austin, 2022)

Issue & Answer. Can you file a pre-trial writ of habeas corpus and obtain relief in a county separate from where a prosecution is pending? Yes.

Facts. Habeas applicant is a person charged with misdemeanor criminal trespass in Kinney County, near the border of Texas and Mexico. When the State arrested the applicant, they detained him in a state prison for “migrant processing” for four months without arraignment. This was a feature Governor Abbott’s ongoing Operation Lone Star orders. Defendant filed a writ of habeas corpus in Travis County. The Travis County District Attorney responded to the habeas application by recommending that the district court grant relief. An acting assistant county attorney for Kinney County appeared and demanded to represent the State in the proceeding. The district court sustained objections to the Kinney County Attorney acting as representative of the State and granted habeas relief. The Kinney County Attorney filed this appeal. The Defendant moved to dismiss.

Analysis. “The State has only one, indivisible interest in a criminal prosecution: to see that justice is done. Although different lawyers may have different views about how the law should be shaped to achieve that goal, that does not give them different interests. And the State is not permitted to take different positions in the same lawsuit.” Habeas corpus is primarily criminal, and its procedures are governed by Article 11 of the Code of Criminal Procedure. Though the applicant’s criminal case is pending in Kinney County, his application was still proper in Travis County. Article 11.09 provides that a criminal defendant “may” apply for habeas in the county where his criminal case is pending. This is permissive and not mandatory. With venue being proper in Travis County, Articles 2.02 and 11.39 of the Code of Criminal Procedure provides authority to the local district attorney to represent the State. “Accordingly, we conclude that the [Kinney] County Attorney—who did not represent the State in Travis County District Court habeas proceeding and who may not take a different position than the District Attorney did as to the same habeas application—was not authorized to bring this appeal on behalf of “the State” from the order granting habeas relief.”

Comment. Watch this case. Governor Abbott has instituted abject lawlessness along our border. There are vigilante posses capturing people who look like undocumented immigrants. Jails are holding people without any lawful authority, save for the Governor’s emergency orders. They are holding individuals longer than what the maximum sentence would permit for the offenses they are held on. The filing of a writ of habeas corpus in a different county separate from the underlying prosecution is not only commensurate with the strength of the writ of habeas the founders intended under the Texas Constitution, but also the circumstances under which it should be appropriate.

4th District San Antonio

 The Fourth District Court of Appeals in San Antonio did not hand down any significant or published opinions since the last Significant Decisions Report.

 5th District Dallas

 The Fifth District Court of Appeals in Dallas did not hand down any significant or published opinions since the last Significant Decisions Report.

 6th District Texarkana

 The Sixth District Court of Appeals in Texarkana did not hand down any significant or published opinions since the last Significant Decisions Report.

 7th District Amarillo

In re Schreck, No. 07-21-00198-CR (Tex. App.—Amarillo, 2022)

Facts. The trial court appointed counsel to represent defendant in October 2021. Within a few weeks both defendant and appointed counsel sought to terminate representation. The trial court granted the request. In January 2022, defendant requested new counsel and also filed a motion to recuse the trial judge. The regional administrative judge appointed a senior judge to hear the recusal. The senior judge appointed counsel for the limited purpose of the recusal hearing. Days later that attorney moved to withdraw. The senior judge then appointed a second attorney for the limited purpose of the recusal hearing. The recusal proceedings were ongoing when defendant filed the instant writ of mandamus seeking: (1) appointment of counsel in the underlying criminal case, (2) an order instructing the regional administrative judge to order recusal, and (3) vindication of his due process and equal protection rights. At some point it appears defendant also moved to recuse the senior judge hearing the motion to recuse.

Holding. Until the motion to recuse is resolved, there is not a trial judge to appoint counsel, the mandamus petition is moot. Defendant’s request for mandamus directed at the senior judge is similarly improper. Mandamus is proper upon an unreasonable refusal to rule on a motion, but here the refusal was an effective denial because it was requesting something the recusal judge could not grant: appointed counsel in the underlying criminal case. Based on these resolutions, defendant’s due process and equal protection claims are without merit. 

Comment. I read this opinion in the voice of John Lithgow (Lord Farquaad). Try it. It’s more fun.

8th District El Paso

The Eighth District Court of Appeals in El Paso did not hand down any significant or published opinions since the last Significant Decisions Report.

9th District Beaumont

Walker v. State, No. 09-20-00011-CR (Tex. App.—Beaumont, 2022)

Issue & Answer 1. Is a statute rendered unconstitutionally vague by failure to define “pecuniary interest?” No.

Issue & Answer 2. Is a trial court required to give the definition of “value” in its charge to the jury if the relevant statute provides such a definition? Probably / harmless.

Issue & Answer 3. The Code of Criminal Procedure requires restitution pronounced as part of a defendant’s sentence. Is a restitution order proper when the trial court issued it more than 30 days after sentencing, but when the trial court notified the parties during sentencing that it intended to determine the appropriate restitution on a later date and assess it as a term and condition of probation? Yes.

Facts. A jury convicted the defendant of submitting fraudulent invoices causing the school district’s CFO to execute “a document” affecting the “pecuniary interest” of the school district in the amount of $200,000 or more. To the indictment the State attached a check from the school district for $1,285,064 made payable to the defendant’s electric company. Defendant filed a motion to quash challenging: (1) insufficient notice by virtue of failing to also attach the alleged fraudulent invoices, and (2) facial and as-applied constitutionality of the relevant statute for failing to define “value” and “pecuniary interest.” The trial court denied the motions and the case proceeded to jury trial. Evidence showed that the school district’s CFO requested documentation on defendant’s invoice after it appeared he was requesting reimbursement for materials he did not pay for. It appeared defendant had used materials he already owned at the time of his contract and created fake invoices for reimbursement. Defendant claimed that the reimbursement documentation was immaterial because his contract agreement did not incorporate the need for receipts and invoices. After conviction the trial court conducted a punishment hearing and sentenced the defendant to ten years of probation. At the sentencing hearing the trial court indicated the need for a subsequent hearing on terms and conditions of probation. After 30 days had expired the trial court held this final hearing on restitution and defendant argued that the trial court’s jurisdiction to order restitution had expired. The trial court overruled defendant’s objection and ordered restitution as a term and condition of probation.

Analysis 1. A statute is unconstitutionally vague if it fails to give a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited. In this analysis the court must give plain meaning to undefined terms. When a defendant raises a facial challenge to the statue, he must prove the statue is unconstitutional in every application. Though the term “pecuniary interest” is not statutorily defined, it has a plain and understandable meaning: an interest in money. And here that requirement was met by the State’s showing of a fraudulent invoice submitted for materials the defendant never purchased. The school district had a financial stake or pecuniary interest in paying a reasonable charge for its contract work.

Analysis 2. “The failure to give an abstract instruction [or definition] is reversible only when such an instruction is necessary to a correct or complete understanding of a term in the application part of the charge.” Defendant requested the trial court to instruct the jury on the definition of value under Penal Code § 32.02. The statutory definition would have incorporated the concept of loss rather than the more amorphous concept of “pecuniary interest.” But nothing in the record showed that the jury could not have determined the requisite amount of pecuniary interest lost by the school district, thus the failure to include the definition for value was harmless.

Analysis 3. “There are two scenarios in which it is appropriate for an appellate court to delete a written restitution order: (1) when the trial court lacks statutory authority to impose the specific restitution order; and (2) when the trial judge is authorized to assess restitution, but the evidence fails to show proximate cause between the defendant’s conduct and the victim’s injury. Article 42.01 requires a trial court to impose restitution as part of the original sentence. Defendant challenges the timing of the restitution order as issued not in conjunction with sentencing. However, the trial court indicated that it intended to conduct a restitution hearing when it imposed the sentence, and nobody objected. “[W]e conclude the trial court did not complete sentencing Walker until [the restitution hearing was held].”

Comment. I think I get where the defendant is coming from here.  He essentially argues that the school district was not financially harmed because the defendant’s fraud merely induced the school district to pay for something the school district would have had to pay for anyway. So where is the “pecuniary” loss here? Well, the statute says, “pecuniary interest,” so I guess it means the crime can be committed in scenarios where the financial transaction comes out even or potentially where the victim even gets a windfall. Seems odd.

10th District Waco

State v. Heath, No. 10-18-00187-CR (Tex. App.—Waco, 2022)

Issue & Answer. Did the legislature intend to provide the trial court with discretion to suppress evidence that was not timely produced when it amended Article 39.14 of the Code of Criminal Procedure under the Michael Morton Act? Yes.

Facts. “Approximately one week prior to the fourth jury trial setting in this proceeding, the prosecutor discovered that there might be a 9-1-1 recording related to the alleged offense while interviewing the victim’s grandmother in preparation for trial.” The prosecutor investigated and subsequently obtained the recording from the Sheriff’s Department and turned it over to the defendant. This occurred six days before trial. The trial court excluded the evidence. The State filed an interlocutory appeal.

Analysis. The State argues that the trial court’s exclusion of the evidence was an abuse of discretion because the prosecutor’s failure to produce the 9-1-1 call was not a “willful” violation of Article 39.14. The requirement of willfulness as a pre-requisite to exclusion of late-disclosed evidence was a requirement that predated the Michael Morton Act. With the Michael Morton Act, the legislature added to the discovery statute an element of timeliness: “as soon as practicable.” Here the prosecutor did not investigate what evidence there might be in the possession of law enforcement. As a result of this failure, the discovery and production of a 9-1-1- call came six days before trial. This failed to satisfy this new requirement of timeliness. Under these circumstances suppression was an appropriate judicial remedy.

Comment. This is an important case on two fronts. First it highlights the non-existence of a distinction between what an assistant district attorney actually possesses and what might nonetheless be in the possession of the State’s agents (i.e. constructively possesses). Second, it highlights the appropriate remedy for the State’s failure to disclose. It’s not a motion to order the state to disclose. It’s a motion to exclude evidence.

11th District Eastland

Jokel v. State, No. 11-20-00087-CR (Tex. App.—Eastland, 2022)

Issue. When dad locks son out of the house that mom owns, son tries to chop the door down with an axe, but mom testifies at trial that son had her consent to come into the house, is defendant-son entitled to a lesser included offense instruction on aggravated assault? Yes.

Facts. The State charged the defendant with burglary. The defendant’s father testified that he shouted at the defendant when he saw the defendant working on his truck in his barn. Defendant reacted by threatening to kill his father. Defendant’s father retreated into the house and the defendant tried to chop down the door with an axe. Defendant was unsuccessful. He gave up and walked away. Appellant’s mother who owns the house testified that the defendant lives at the house and had her consent to enter. The defendant requested the trial court to instruct the jury on the lesser-included offense of aggravated assault. The trial court denied the defendant’s request. The jury convicted and the trial court sentenced the defendant to 35 years.

Analysis. Because the State charged the defendant with burglary with intent to commit an aggravated assault, aggravated assault was at least an elemental lesser-included offense. It was an offense established by proof of the same or less than all the facts required to prove the burglary. Here the defendant needed only to show some evidence, weak or strong, that rebutted an element of the greater offense and establishing the commission of the lesser. That evidence came from the owner of the house—his mom—who testified that the defendant had consent to enter this house.

Comment. “Appellant has not challenged the sufficiency of the evidence; therefore, we have tailored our discussion to the facts that are necessary to the disposition of this appeal. . . . Appellant did not enter the house and swing the axe at him. Rather, when Appellant ceased striking the back door with the axe, he walked away from the house and into the field that was behind the barn.” Wink, wink, wink. And by “wink, wink, wink” I mean “this isn’t a burglary.” And by “this isn’t a burglary” I mean there are actually two reasons it’s not a burglary and this case should have been reversed and rendered on insufficient evidence.

12th District Tyler

Brumfield v. State, No. 12-21-00031-CR (Tex. App.—Tyler, 2022)

Issue & Answer 1. The trial court implemented a COVID-19 protocol requiring venire panel members to wear masks and socially distance. Did this protocol violate the defendant’s right to a fair trial such that the trial court abused its discretion in denying the defendant’s motion to continue? Not answered. Issue not preserved.

Issue & Answer 2. The trial court implemented a COVID-19 protocol which split the jury panel into two groups, each convening on separate days. Does this protocol violate the exercise of the defendant’s statutory right to a jury shuffle? Probably not. Issue not preserved.

Facts. Defendant drove a U-Haul truck from Dallas to Tyler. He claimed he was paid to drive the truck and purchase a 4-wheeler from a dealership with a check. The dealership became suspicious and called the police. When police arrived, they determined that U-Haul had reported the truck stolen. At the time of the defendant’s trial, proceedings were regulated by the Texas Supreme Court’s Emergency Orders Regarding the COVID-19 State of Disaster. The defendant raised constitutional challenges to protocols requiring venire panel members to wear facemasks and social distance. The defendant also filed a motion to quash the jury panel challenging the trial court’s protocol which split the venire panel into two groups, convened on separate days. The trial court denied both challenges.

Analysis 1. The motion for continuance was not sworn. It preserved nothing for appeal.

Analysis 2. Article 35.11 of the Code of Criminal Procedure is the mechanism for a jury shuffle. It provides that the trial court “shall cause the names of all the members of the general panel . . . to be placed in a receptacle and well-shaken, and the clerk shall draw therefrom . . .” The Court of Criminal Appeals has interpreted compliance with this provision to require the parties the opportunity to view the venire seated in the courtroom in proper sequence. Here, however, the defendant never requested a shuffle, so this Court cannot determine whether the procedure impacted defendant’s right to a shuffle. Nor did the defendant argue on appeal that he had the right to pick a jury from a single panel. Finally, his argument that the split-panel procedure violated the Texas Constitution is misplaced because a jury shuffle is a statutory right.

Comment. The court’s resolution of the defendant’s argument under the Texas Constitution gives no analysis and does not answer the actual issue raised. Defendant claimed that the Supreme Court’s Emergency Order permitting trial courts to come up with their own procedures for jury trials violated the Separation of Powers clause of Article II Section 1, and Article I Section 28’s delegation of authority to suspend laws to the legislature.

13th District Corpus Christi/Edinburg

Matew v. State, No. 13-20-00062-CR (Tex. App.—Corpus Christi-Edinburg, 2022)

Issue & Answer. A judge may set aside an indictment, plea, and conviction upon successful completion of probation. This is known as judicial clemency. When a person is a convicted felon at the time he committed the offense of felon in possession of a firearm, but subsequently obtains judicial clemency from the underlying predicate felony offense, may he still be convicted of felon in possession of a firearm? Yes.

Facts. The state charged the defendant with unlawful possession of a firearm by a felon and unlawful possession of body armor by a felon. The defendant was on probation for impersonating a public servant. The impersonation charge served as the predicate felony offense in the instant unlawful possession cases. While the State was prosecuting defendant for felon in possession of a firearm, a different trial court in which predicate felony probation was pending granted him early termination and judicial clemency. The defendant was discharged “from all penalties and disabilities resulting from the offense.” The defendant filed a motion to quash the felon in possession indictment on the basis of his new non-felon status. The trial court denied defendant’s motion to quash, and a jury subsequently convicted him. At trial the defendant objected to the admissibility of the newly dismissed and newly set aside conviction for impersonating a public servant. He also requested the trial court to instruct the jury on the necessity of finding the existence of a “final” conviction. The trial court overruled defendant’s objection and denied his jury charge request.

Analysis. The Court of Criminal Appeals addressed a similar scenario in Ex parte Jimenez, 361 S.W.3d 679 (Tex. Crim. App. 2012). Jimenez was convicted of unlawful possession of a firearm by a felon. Jimenez successfully overturned his underlying predicate felony conviction on a writ of habeas corpus and then challenged his subsequent felon in possession charge based on his new non-felon status. The Jimenez Court found that the felon in possession charge should stand because defendant was still a felon at the time he possessed the firearm. Defendant argues that the term “conviction” is not defined in the Penal Code, but in other places the legislature implies that a conviction is not always defined by what the trial court pronounces at the end of a prosecution. In certain statutes the concept of conviction incorporates the concept of finality. Sometimes, a conviction is not final if a person receives probation. Sometimes the legislature specifically states that it means to include offenders who later received judicial clemency within its definition of “conviction.” The defendant argues that the Legislature’s silence under the Penal Code means that the Legislature did not intend felon in possession of firearm prosecutions where the defendant is able to receive judicial clemency on the predicate felony offense before trial. But contrary to these contentions, the concept of conviction has a plain meaning: “the act or process of judicially finding someone guilty of a crime; the state of having been proved guilty.”

14th District Houston

Sharif v. State, No. 14-21-00038-CR (Tex. App.—Houston [14th Dist.], 2022)

Issue & Answer. A felon can possess a firearm five years after being released from conviction, but only in a “premises” that is his home. If a felon lives in his vehicle, can that constitute his home in which he may possess a firearm? No.

Facts. The State prosecuted the defendant for felon in possession of a firearm. During a traffic stop an officer located a gun inside defendant’s vehicle. Defendant was a convicted felon, but his felony conviction was old enough that under Texas law he was permitted him to possess a firearm in “the premises at which [he] lives.” The evidence at trial, including testimony of the defendant, showed that defendant’s home was at his mother’s house. Defendant nonetheless objected to the trial court’s jury charge defining “premises” as “a building or portion of a building” and asked that the trial court permit the jury to construe the term according to common usage. 

Analysis. The evidence here established that the defendant lived at his mom’s house—not in his car. “Even if the evidence conclusively established appellant was living in his automobile at the time of his arrest, the evidence would still be sufficient because the obvious intent of the statute proscribing possession of firearms by convicted felons is to keep violent offenders from going about with firearms.”

Comment. The court also resolve defendant’s claim of jury charge error in similar fashion. Defendant requested the trial court to refrain from defining “premises” and instead permit the jury to resort to its common usage. But the dictionary defines premises in nearly the same manner as the trial court’s definition. Its common usage or common understanding is that which the trial court gave it by definition.

Kyle Therrian
Kyle Therrian
Kyle’s practice has always been criminal defense. In McKinney, where he has practiced for the past 10 years, he represents individuals in all aspects of criminal accusations, including dozens of appeals before the various Courts of Appeal and Court of Criminal Appeals. He enjoys being a resource to his colleagues and, as he describes it, “nerding out on the law.” He is an active member and leader in TCDLA. In addition to his new role as Significant Decisions Report Editor, Kyle serves as Vice Chair to Texas Criminal Defense Lawyers Education Institute, Vice Chair on the COVID-19 Taskforce, is a long-time member of the Amicus committee, and a regular lecturer as part of the Criminal Defense Lawyers Project.

Kyle’s practice has always been criminal defense. In McKinney, where he has practiced for the past 10 years, he represents individuals in all aspects of criminal accusations, including dozens of appeals before the various Courts of Appeal and Court of Criminal Appeals. He enjoys being a resource to his colleagues and, as he describes it, “nerding out on the law.” He is an active member and leader in TCDLA. In addition to his new role as Significant Decisions Report Editor, Kyle serves as Vice Chair to Texas Criminal Defense Lawyers Education Institute, Vice Chair on the COVID-19 Taskforce, is a long-time member of the Amicus committee, and a regular lecturer as part of the Criminal Defense Lawyers Project.

Previous Story

March 2022 SDR – Voice for the Defense Vol. 51, No. 2

Next Story

May 2022 SDR – Voice for the Defense Vol. 51, No. 4

Latest from SDR