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.

April 2021 SDR – Voice for the Defense Vol. 50, No. 3

Voice for the Defense Volume 50, No. 3 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

This month the Fourth District Court of Appeals gives us a pretty sweet work‑around to Governor Abbot’s unconstitutional GA‑13 executive order prohibiting PR bonds for indigent pretrial detainees. Be on the lookout for a future governor’s order abolishing the Fourth District Court of Appeals. And if you’ve ever tanked a jury selection, you’ll want to read this whole SDR to be sure another court wasn’t talking about your case when they said “[h]is presentation to the venire panel included what can be fairly characterized as a rambling and paranoid monologue unrelated to his case.”

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

Broadnax v. Lumpkin, 987 F.3d 400 (5th Cir. 2021)

Issue. (1) Do previously withheld notes suggesting that prosecutors targeted minority jurors for peremptory strikes constitute evidence that a federal court can consider for the first time in a federal habeas petition claiming that the state court unreasonably applied federal law? (2) Did the state court unreasonably apply federal law when it accepted race‑ neutral justifications for the State’s striking of every Black juror from the venire?

Facts. In Petitioner’s 2009 trial for capital murder, prosecutors used their peremptory strikes to remove all prospective Black jurors and one Hispanic juror. Petitioner objected under Batson v. Kentucky, 476 U.S. 79 (1986). Petitioner exhausted his state remedies, and this case arises under federal post‑conviction remedies available to defendants who can show a state court unreasonably applied federal law. In this posture, the Petitioner attempted to submit new evidence – a juror spreadsheet created by prosecutors wherein prosecutors bolded the names of prospective Black jurors. Petitioner indicated that this piece of evidence was previously withheld as work product but disclosed when the district attorney revised policy. The federal district court refused to consider the new evidence based on precedent barring the consideration of evidence not before the state appellate court when a ruling was issued.

Holding. (1) No. A claim that a state court unreasonably applied federal law must be limited to the evidence presented in the state court. A narrow exception might exist which involves the consideration of previously withheld exculpatory evidence. The spreadsheet in this case does not pertain to guilt or innocence and was not exculpatory. Nor was the spreadsheet the type of “single, plainly momentous item of suppressed . . . evidence” which fundamentally alters a preexisting litigated claim to warrant consideration. (2) No. The prosecutors offered sufficient race‑neutral reasons, including a showing that they struck every person who opposed the death penalty, including each of the minority veniremembers. There were also several questionnaire responses by the minority veniremembers which made it “hardly surprising” that they were struck.

Comment. A prosecutor is definitely required to turn over his or her notes in a Batson hearing if the prosecutor uses those notes to refresh a recollection. And in light of the Michael Morton Act’s sweeping reforms to Texas criminal discovery practice since the time of Broadnax’s trial, it should be required even when the prosecutor does not use the notes for refreshing his or her recollection.

Texas Court of Criminal Appeals

In re State ex rel. Best, No. WR-29,923-01 (Tex. Crim. App. Feb. 3, 2021)

Issue. Can a trial court order the State to create audiovisual recordings of laboratory testing when it is known that the process of laboratory testing will consume the entirety of the evidence and render it unavailable for defense retesting?

Facts. Multiple defendants requested observation of State DNA testing which would result in the complete destruction of a DNA sample. The trial court ordered the State to create audiovisual recordings of the DNA testing process. The State argued: (1) that the trial court had no authority to do this, (2) that the defendant’s theory rests on a flawed premise that defendants have a constitutional right to discover and test biological material, and (3) that it could take more than a year to come up with an audiovisual recording system. The State filed the instant writs of mandamus and prohibition.

Holding. No. Texas Code of Criminal Procedure Article 38.43 grants trial courts some discretion to regulate pre‑trial DNA testing. However, neither Article 38.43, nor rules pertaining to criminal discovery authorize a trial court to order the State to create or generate evidence that does not already exist. The court analogizes this scenario to cases where the Court of Criminal Appeals previously held trial courts lacked authority to order the State to generate documentary evidence for purposes of discovery. In re Stormer, No. WR‑ 66, 865‑01 (Tex. Crim. App. June 20, 2007)(not designated for publication)(court may not order witness statements reduced to writing). A defendant’s remedy under the Code of Criminal Procedure is to obtain “any bench notes prepared by the laboratory that are related to the testing of evidence and the results of that testing. Tex. Code Crim. Proc. art. 38.43(k). Furthermore, “[t]here is no general constitutional right to discovery in a criminal case.” Evidence destruction does not present a due process concern until it is shown that the destroyed evidence is exculpatory. When evidence is only potentially exculpatory, “due process is implicated only when the State has destroyed that evidence in bad faith.”

Comment. The Court’s analysis is a sound application of Article 39.14 and Supreme Court precedent, but the outcome is not without dilemmas. Most notably, a criminal defendant has the right to inspect evidence upon a showing of good cause. Tex. Code Crim. Proc. art. 39.14. See McBride v. State, 838 S.W.2d 248 (Tex. Crim. App. 1992) (evidence of the drug itself is always indispensable to the prosecution in a drug possession case, and therefore the defendant always has good cause to demand inspection). Would this outcome be different if the trial court had ordered that the State permit a defense investigator to record the lab testing procedure? I bet a criminal defense lawyer could figure out how to make an audiovisual recording in less than the year‑or‑more it would take the State of Texas with their meager resources (as their classic “woe‑is‑me‑the‑government” argument suggested).

Wheeler v. State, No. PD-0388-19 (Tex. Crim. App. 2021)

Issue. When an officer fails to take an oath and swear to a probable cause affidavit, may the State rely on the good faith exception to Texas’s exclusionary rule to avoid suppression of evidence obtained pursuant to the resulting warrant?

Facts. The arresting officer in a DWI case signed a fill‑in‑ the‑blank blood warrant affidavit without swearing an oath. The arresting officer did not believe an oath was required under Pantego Police Department policy and had not sworn an oath in a single probable cause affidavit in his 14 months with that department. The arresting officer admitted learning about the US and Texas Constitutions and laws pertaining to searches and seizures in the police academy. The arresting officer admits he was trained in the academy to swear an oath before obtaining a search warrant. Defendant also called the magistrate who issued the warrant who testified that she failed to notice the supporting affidavit was unsworn. The trial court applied the good‑faith exception to Texas exclusionary rule (Article 38.23) and denied the motion to suppress.

Holding. Texas Code of Criminal Procedure Article 38.23 (Texas exclusionary rule) provides for an exception to exclusion of unlawfully obtained evidence—when evidence is “obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.” This exception requires objective rather than subjective good faith. In other words, the good‑faith exception is not an exception for conduct that is close enough to constitutional. Here, “no objectively‑ reasonable officer would execute a search warrant knowing that it was procured through an unsworn probable‑cause affidavit.” “It is not too much to ask that the officer swear before another that he or she is telling the truth about the necessity of such a violative intrusion.” No objectively reasonable police officer would have believed the warrant in this case was valid absent a sworn affidavit. The requirement of an oath has existed for more than a century, it is codified numerous times by the Legislature, case law repeatedly emphasizes the requirement, officers are taught the necessity of an oath in the academy, and the particular form used by the arresting officer specifically called for an oath.

Dissent (Hervey, J.) The good‑faith exception is aimed at an evaluation of whether the officer was close enough to establishing probable cause in an affidavit, not aimed at the nuances of swearing an affidavit and obtaining the warrant. There is no question probable cause existed here. Policy considerations weigh in favor of upholding the warrant as well. “What happened was inadvertent. And if they were not before, Officer Bonner and his department are now well‑aware that probable‑cause affidavits must be sworn to, internal policy notwithstanding.”

Comment. Although the officer’s conduct was not sinister, what he did was not “inadvertent.” The officer testified it was his practice and his department policy to not swear affidavits. The dissent makes a valid point that the officer and his department likely learned their lessons ‑ but the point is a policy justification in favor of suppression, “[t] he rule is calculated to prevent, not to repair. Its purpose is to deter/to compel respect for the constitutional guaranty in the only effective available way‑by removing the incentive to disregard it.” Elkins v. United States, 364 U.S. 206, 217 (1960).

Woods v. State, No. PD-1085-20 (Tex. Crim. App. Feb. 10, 2021)(not designated for publication)

Issue. Where the sole issues raised in appellate briefing pertain to missing parts of the record, is an appellant denied a meaningful appeal when the missing record is filed post‑ briefing and appellant’s issues are determined moot?

Facts. The initial clerk’s record filed with the court of appeals omitted the court’s charge from guilt/innocence and the jury’s verdict. Counsel requested nonspecific supplementation in February of 2020. By June of 2020, the clerk had provided neither the court’s charge nor the jury’s verdict. Counsel then requested a more specific supplementation. Having not received supplementation by August, counsel filed a brief arguing for reversal on the basis of a missing record. Five days after counsel filed his brief, the clerk supplemented with the missing record. Counsel did not file any briefing after the clerk’s supplementation. The court of appeals held that the subsequent filing of the clerk’s record rendered the appellant’s issues moot. Appellant filed a pro se petition for discretionary review arguing he was denied a meaningful appeal.

Holding. Yes. Appellant was denied a meaningful appeal. “He was, at the very least, entitled to appellate counsel who would file an Anders brief.”

Comment. An Anders brief wasn’t merited at the time counsel filed his brief. Reversal is merited on the court’s uncertainty whether the post‑brief record was considered. But I don’t think the Rules of Appellate procedure have a literal solution to what happened here—perhaps an Anders‑esque reply brief.

Ex parte Barbee, No. WR-71, 070-03 (Tex. Crim. App. 2021)

Issue. (1) Does the Supreme Court’s opinion in McCoy v. Louisiana (holding a Sixth Amendment violation occurs when counsel concedes guilt at trial over defendant’s objection) provide a previously unavailable ground for relief justifying consideration of a subsequent post‑conviction writ of habeas corpus? (2) Where a defendant professes his innocence but does not expressly instruct counsel to pursue a strategy of innocence, has the Sixth Amendment been violated a la McCoy v. Louisiana?

Facts. This is a writ of habeas corpus following a previously litigated writ of habeas corpus (“subsequent writ”). Subsequent writs are prohibited absent an exception. Applicant alleges the exception of “previously unavailable legal basis” and specifically cites recent United States Supreme Court precedent McCoy v. Louisiana. 138 S.C.t 1500 (2018) (defendant has “autonomy to decide that the objective of the defense is to assert innocence” over counsel’s preference to concede guilt in an attempt to avoid the death penalty). In applicant’s case, evidence showed he confessed to the police that he murdered his pregnant girlfriend and her son. He then confessed to his wife that he was responsible for the deaths, but he caused them by accident. Then prior to trial he urged his counsel to pursue a theory of complete innocence, to blame a different person, and to argue that his statements were coerced. Trial counsel declined and maintained a defense of accidental death. Applicant did not testify at trial or object to defense strategy. Applicant had raised this complaint in previous writs under different legal theories prior to the 2018 McCoy opinion.

Holding. (1) No. A legal basis is not “previously unavailable” if it “could have been rationally fashioned from relevant precedent.” Applicant’s argument was previously available because the McCoy precedent is a logical extension of Florida v. Nixon, 543 U.S. 175 (2005). In Nixon, Nixon did not expressly object to his counsel’s concession strategy; he was unresponsive on trial strategy. In Nixon the Supreme Court found counsel’s concession strategy reasonable given this unresponsiveness and that a presumption of prejudice (structural error) would not be appropriate simply based on a defendant’s lack of consent to trial strategy. Nixon left open the possibility of a different result under different facts, and McCoy was the logical set of facts under which one would expect a different result. “McCoy was a logical extension of Nixon and could have been rationally fashioned from it.” (2) No. Applicant’s evidence is that he told his attorney and other various individuals that he did not want to plead guilty, that he was innocent, that someone else committed the murders. These facts don’t demonstrate that he “told them that his defensive strategy was to maintain his innocence at trial.”

Concurrence (Walker, J.). McCoy is not a logical extension of Nixon. McCoy created a previously unavailable grounds for relief. Nixon is an ineffective assistance of counsel case where the Supreme Court declined to find presumed harm under the Strickland standard for ineffectiveness. McCoy is not. McCoy involves Sixth Amendment right to defendant autonomy. However, Applicant has not satisfied the factual burden of showing that his autonomy was usurped.

Comment. The Court identifies major differences between McCoy’s insistence and applicant’s non‑insistence. McCoy opposed his counsel at every opportunity including in an outburst during opening statement. Applicant did not put up as much of a fight. McCoy’s counsel relieved the State of its burden early – in opening statement. Applicant’s counsel only relieved the State of its burden in closing argument. McCoy testified at trial and contradicted his attorney. Applicant did not testify. Despite identifying these differences, the court does not tell us what impact those facts might have in future cases.

1st District Houston

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

2nd District Fort Worth

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

3rd District Austin

Rucker v. State, No. 03-19-00493-CR (Tex. App.— Austin, Feb. 11, 2021)(not designated for publication)

Issue. When a defendant requests to proceed to trial pro se and a debate ensues where the defendant expresses both a desire for an attorney and a desire to proceed pro se, has he clearly and unequivocally waived his right to counsel?

Facts. Defendant was prosecuted for threatening imminent bodily injury and using a deadly weapon. Defendant, a “transient man” was involved in an altercation with other “transient individuals” behind a Jiffy Lube. When the attendant from Jiffy Lube called 911 and confronted defendant, he pulled out a knife and threatened her. At his arraignment, defendant informed the court that he and his attorney had irreconcilable differences arising from his filing of motions without informing him. Defendant indicated that he would be “happy to go pro se” but verbally sparred with the trial court about what this meant. Several exchanges between the defendant and trial court were a variation on the following:

[The court]: So, basically you want to represent yourself; is that correct?

[Rucker]: I am myself, Your Honor?

* * *

[Rucker]: It would appear to me that somebody would have to have a dissociative identity disorder or [have] multiple personality disorder for one of them to represent the other . . .

The trial court conducted a hearing under Faretta v. California to determine whether defendant knowingly and intelligently waived his right to counsel. Defendant continued with nonsensical debate, at times stating he wanted counsel, at others stating he didn’t. Following the hearing the State filed a suggestion of incompetence citing the defendant’s nonsensical ramblings. The record does not reflect that a competency evaluation or hearing was held. The trial court granted defendant’s request to represent himself and appointed standby counsel. Several weeks later, trial began. Defendant conducted voir dire himself. “His presentation to the venire panel included what can be fairly characterized as a rambling and paranoid monologue unrelated to his case . . . Rucker also called lawyers ‘scumbags’ and ‘weasels’ and characterized the judiciary as ‘corrupt,’ which offended several prospective jurors.” One juror remarked “this is a travesty” and another asked the trial court “[i]s there a process by which the Court goes through to deem whether someone is able to represent themselves?” Standby counsel moved for a mistrial and in the alternative another Faretta hearing after it became clear that defendant’s voir dire presentation irrevocably tainted the jury against him. A variation of the previous incoherent defendant‑judge sparring resulted. The trial court overruled standby counsel’s motion.

Holding. No. There is a strong presumption against the waiver of the right to representation by counsel. The waiver must be “clear and unequivocal.” Defendant did not clearly and unequivocally waive counsel. He indicated at times he would be happy to go pro se and at others he indicated that he wanted counsel—just not his current counsel. He declined to sign the waiver of counsel and in this context stated, “I’m not waiving my right to an attorney.” Albeit in confusing fashion, he indicated that he was incapable of representing himself as it would imply “a dissociative quality.”

Comment. “[Juror]: Is there a process by which the court goes through to deem whether someone is able to represent themselves?” The ultimate what‑the‑hell‑is‑going‑on‑here question. Convince me this person was not a criminal lawyer being passive aggressive.

4th District San Antonio

Ex parte Montes, No. 04-20-00337-CR (Tex. App.—San Antonio, Feb. 17, 2021)(not designated for publication)

Issue. Does Governor Abbot’s GA‑13 Executive Order prohibiting automatic release on personal bond under Article 17.151 (the State’s failure to indict or announce ready for trial after a specified period) also prohibit the trial court’s mandatory obligation to effectuate automatic release by reduced bail?

Facts. Defendant was confined for 90‑plus days pretrial without indictment and filed a pretrial writ of habeas corpus demanding a personal bond or reduced bond under Texas Code of Criminal Procedure Article 17.151. The trial court denied habeas relief on account of Governor Abbott’s GA‑ 13 Executive Order prohibiting automatic release of pretrial detainees who have not been indicted within the statutorily prescribed timeframe and cannot afford a bond during the pandemic.

Holding. No. Under Article 17.151, after a prescribed period of pretrial confinement during which the State has not presented an information, indictment, or announced ready for trial, “the trial court has only two options: it must either release the defendant on personal bond or reduce bail to an amount the defendant can make.” Executive Order GA‑ 13 provides in relevant part:

Article 17.151 of the Texas Code of Criminal Procedure is hereby suspended to the extent necessary to prevent any person’s automatic release on personal bond because the State is not ready for trial.

GA‑13 only suspends the automatic personal bond requirements of Article 17.151. GA‑13 does not suspend the trial court’s second option of automatic release under the statute “by reducing the amount of bail required.” The trial court erred by failing to reduce bond to an amount that the defendant could post.

Comment. Executive Order GA‑13 is unconstitutional. The Governor is prohibited from suspending statutes under the Texas Constitution. Tex. Const. Art. 1 Sec. 28. Although this argument was not raised here, this case provides a nice escape hatch for judges who, based on extraneous calculations, won’t tell the Governor what he needs to hear.

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

Ex parte Rinehart, No. 07-20-00219-CR (Tex. App.— Amarillo, 2021)

Issue. (1) When a defendant is convicted of a state jail felony offense, but he is enhanced to a third‑degree sentence range as a habitual offender, does the five‑year maximum on probation sentencing for state jail felony offenses apply? (2) Does a trial court have jurisdiction to fix a perceived erroneous probation sentence years after it was entered?

Facts. Defendant pleaded guilty to burglary of a building and pleaded true to two allegations of prior felony convictions. The trial court sentenced him to ten years’ incarceration suspended for ten years of probation. During his period of supervision, Defendant filed a writ of habeas corpus arguing his sentence was illegal. He argued he was subject to a five‑year maximum period of supervision (maximum supervision period for state jail felonies under Title 7 of the Penal Code). The State initially agreed, and the trial court reformed the sentence to five years of supervision. Premised on this perceived error in sentencing, defendant then filed a second writ of habeas corpus challenging the voluntariness of his previous plea.

Holding. (1) No. The defendant, the State, and the trial court were incorrect to conclude that the maximum sentence of probation in defendant’s case was five years. The state jail felony “Burglary of a Building” is a State Jail Felony for which the maximum probation period is five years. But the Penal Code enhancement for habitual state jail felony offenders elevates the offense from a state jail felony to a third‑degree felony and is therefore not subject to a five‑year maximum probation period as “third degree felony under Title 7, Penal Code” under the Code of Criminal Procedure Article 42.053(d)(2). (2) Who knows but there is no harm in the trial court reducing the length of probation, so crisis averted.

Comment. The court’s opinion indicates that there does not appear to be any case law or authority analyzing this odd jurisdictional question – where the trial court reduces a sentence of probation erroneously believing the reduction was necessary to cure an illegal sentence. But the Code of Criminal Procedure provides some analogous authority. Texas Code of Criminal Procedure 42A.701 permits the reduction or termination of the period of supervision after one‑third or two years of the original community supervision period is satisfied. That is sort of what the trial court did here, but for the wrong reasons.

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

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

10th District Waco

In re Alvarez, No. 10-17-00426-CR (Tex. App.—Waco, Feb. 3, 2021)(not designated for publication)

Issue. Did the legislature create a non‑discretionary ministerial obligation under the Government Code by using the word “shall” in the following sentence: “[i]f an objection is made to the amount of the transcript fee, the judge shall determine a reasonable fee?”

Facts. After an open plea of guilt (guilty plea with no punishment agreement), relator was convicted and sentenced to 30 years. To substantiate her grounds for a writ of habeas corpus she: (1) requested a free transcript, and (2) demanded a hearing under Tex. Gov’t Code § 52.047(b) by which the trial court could determine a reasonable fee. The trial court declined to hold the mandatory hearing and instead sent a letter telling her that transcripts for meritless appeals are too expensive for taxpayers. The court of appeals entered an initial panel opinion which rejected mandamus relief and cited the lack of a right to a free transcript in habeas proceedings. Relator moved for en banc reconsideration indicating the panel had misinterpreted her request—that she merely wanted the hearing mandated by the Government Code. En Banc rehearing was granted.

Holding. Does not address the issue raised on appeal. The initial panel opinion denied relief based on precedent denying the right to free transcripts to indigent habeas litigants. The court granted en banc reconsideration when relator clarified her demand—a demand for a mandated hearing under the Government Code. The court requested briefing from the State and the trial court, but both declined. Citing only the State’s and trial court’s failures to brief the matter, the court substituted an en banc opinion summarily denying relator’s mandamus petition.

Dissent (Gray, C.J.). The mandamus proceeding does not request the court to declare a right to a free transcript. The relief requested is an order that the trial court hold the hearing on determination of a reasonable fee. The Government Code imposes this ministerial obligation on the trial court. The trial court refused to hold a hearing and instead wrote a letter to the defendant indicating that the claims she wishes to investigate are meritless and the taxpayers shouldn’t have to pay for her investigation. Mandamus should issue and the court should compel the trial court to perform its ministerial duty to hold a hearing.

Comment. Well, this is a travesty. At least the taxpayers are avoiding the rampant and unmitigated cost of court transcripts in Hill County.

11th District Eastland

Barron v. State, No. 11-18-00324-CR (Tex. App.— Eastland, 2021)

Issue. (1) Is a jury compelled to accept unrebutted but self‑serving evidence of self‑defense? (2) Does a trial judge violate a due process when, in the presence of the jury, he repeatedly expresses displeasure with defense counsel, accuses counsel of improper tactics, admonishes counsel that his questions are irrelevant, accuses counsel of violating the law, makes disapproving facial expressions during defense examinations, accuses counsel of “misdirect[ing] or misguide[ing] the court,” encourages the State to object, and raises its own objections to defense evidence? (3) When the defendant admitted drug use, did the trial court err in admitting evidence of a hidden drug safe in a murder trial? (4) Did the trial court improperly exclude evidence that the defendant’s victims committed prior robberies similar to the one he describes as a predicate for acting in self‑defense?

Facts. Defendant was tried for the murder of two individuals. The jury acquitted defendant on one count and convicted and sentenced him to two years on the other (with a finding of sudden passion). According to defendant and his wife, the victims came to their door at 4:00 AM wearing ski masks and attempted to burglarize them. Defendant attacked and killed one of the victims with a knife, then, with that victim’s gun, he shot the other victim who was engaged in a struggle with defendant’s wife. Defendant’s houseguest corroborated these events. But then defendant and his wife concealed the bodies under the trailer and hid evidence behind a shed, including their marijuana stash. After cleaning the crime scene, defendant and his wife turned themselves in to the police. Officers responding to an unattended vehicle with its engine running independently came upon the bodies of the victims and all of the hidden evidence. Defendant’s wife ultimately admitted to having sold drugs to one of the victims and told detective she believed the victims were there to steal drugs. Eight months after the murders, workers from a trucking company discovered a safe in the trucking company’s yard with drugs and an ID belonging to defendant’s wife. At trial, counsel objected to the admissibility of the drug safe, attempted to proffer the testimony of two witnesses who were robbed by the victims previously, and repeatedly defended himself from attacks by the trial judge.

Holding. (1) No. Here there was ample evidence in the record for the jury to disbelieve defendant’s version of events or conclude that he was not reasonable in his use of deadly force. Evidence of self‑defense was derived solely from defendant’s self‑serving statements to the police. Defendant and his wife were in possession of drugs, their statements were inconsistent on critical facts, and they tried to hide the victim’s bodies and other evidence. The jury was not compelled to accept self‑defense. (2) No. The trial court has great discretion in conducting trial and may provide guidance and management on the presentation of evidence. A short‑tempered judge’s efforts at courtroom administration do not support a claim of judicial bias. However, “as a general rule of thumb, a trial court should refrain from expressing or directing comments or admonishments of this nature to trial counsel in the presence of the jury.” Even if the trial judge acted improperly, it was not prejudicial, the jury only convicted defendant of one of the two murder charges and he only a two‑year sentence on the other. (3) Yes. But not harmful. The State explicitly offered the drug safe to show the defendant was using drugs at the time of the offense. The defendant admitted to using drugs at the time of the offense. This proved nothing, and it was apparently not harmful as the jury acquitted defendant on self‑defense grounds of one of the murders. (4) Yes. But not harmful. Evidence of prior bad acts are not admissible to show character, but a defendant may offer prior violent acts committed by the victim to show the victim was the first aggressor. Because the jury did not have to believe—and apparently rejected—defendant’s self‑serving self‑defense evidence on one of the murders, it could not have been harmful to exclude from the jury’s consideration more independent and non‑self‑serving evidence.

Comment. As it pertains to judicial bias infecting this trial, you know it’s bad when the appellate court essentially says: “this isn’t reversible, but it should be noted that we don’t like it.” Really strong language is the typical remedy in these things.

Cyr v. State, No. 11-19-00041-CR (Tex. App.— Eastland, 2021)

Issue. (1) Is a defendant’s failure to provide medical care, standing alone, a sufficient basis to deny a concurrent causation instruction in an injury to child by omission prosecution? (2) Does a defendant’s failure to provide medical care, standing alone, provide sufficient evidence to support a jury’s verdict in an injury to child by omission prosecution?

Facts. Defendant and her husband had three children. On the incident in question, one of defendant’s children choked defendant’s four‑month‑old child because the baby would not stop crying. Defendant intervened to stop the attack. The next day, the baby had intermittent symptoms such as spasms, flailing, and discoloration. On the advice of her nurse‑mother‑in‑law, defendant gave the baby Tylenol and monitored the situation. Testimony was disputed regarding the reluctance to take the child to the hospital initially, but on day two after the incident defendant and her husband took the child to the hospital in Lubbock. According to medical testimony, the child had suffered a brain injury from violent shaking—not choking. Doctors cited hemorrhaging in the child’s eyes and brain and a subdural hematoma as supporting evidence. At trial, defendant requested and was denied a concurrent causation jury instruction. Defendant argued the choking which occurred was a sufficient independent cause of the child’s injuries and that her conduct in “failing to protect J.D. from Justin or failing to seek reasonable medical care for J.D.” was an insufficient cause.

Holding. (1) No. Texas Penal Code § 6.04 provides that “[a] person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.” There is no standard for when causation is clearly sufficient or clearly insufficient, it is “a concept too difficult for lawyers or even philosophers” and is best left for jurors. Citing Westbrook v. State, 697 S.W.2d 791 Tex. App. Dallas, 1985). In an injury to child by omission [by failing to seek medical treatment] it is not sufficient for the State to prove that the defendant failed to provide medical care – the child must suffer serious bodily injury because of the failure. When at least some evidence justifies a defensive instruction, it should be included. Here the State’s expert testified that she had only a 50% confidence level that injuries could have been mitigated with quicker action by the defendant. The denial of a concurrent causation instruction was erroneous, and it resulted in harm. (2) Yes, at least here it did. At least some evidence supports the conclusion that defendant’s failure to act promptly could have resulted in bodily injury.

12th District Tyler

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

13th District Corpus Christi/ Edinburg

The Thirteenth District Court of Appeals in Corpus Christi/Edinburg did not hand down any significant or published opinions since the last Significant Decisions Report.

14th District Houston

Alfaro v. State, No. 14-19-00143-CR (Tex. App.— Houston [14th Dist.], 2021)

Issue. When the State shows that a defendant directed a single drug transaction involving two middlemen and followed that transaction with an offer to sell directly to the buyer, has the State sufficiently shown a continuing course of criminal activity required to sustain a verdict for engaging in organized criminal activity (“EOCA”)?

Facts. This is essentially a drug conspiracy prosecuted in state court as EOCA. Middleman 1 set Undercover up with Weak Heroin Man 1. Undercover wanted stronger heroin. Middleman 1 identified the defendant as a person who could get stronger heroin. Middleman 1 had difficulty getting a hold of defendant. Eventually Middleman 1 set up a transaction for stronger heroin involving Middleman 2. Following that transaction, Middleman 2 was arrested. Middleman 1 provided defendant’s phone number to Undercover who then began reaching out to defendant directly. Defendant indicated that one of his unspecified middlemen had been arrested recently and he offered to sell to Undercover directly.

Holding. No. “A defendant commits the offense of engaging in organized criminal activity if, with the intent to establish, maintain, or participate in a combination, he commits or conspires to commit one or more of the enumerated offenses, including delivery of a controlled substance.” EOCA involves more than the intent to commit an enumerated offense, a plan to commit a single act, or proof of working jointly to commit the crime—it requires continuity.” “Proof of an intent to participate in a criminal combination must extend beyond a single criminal episode, ad hoc effort, or goal, regardless of whether multiple laws were broken within the confines of that episode or effort.” The evidence must establish that the group intended to continue engaging in illegality over a period of time. The fact that Middleman 2 was arrested following the transaction and defendant identified one of his middlemen being arrested following a transaction provides some evidence to support the inference that defendant directed the transaction on this single occasion. But this is a single instance, not an ongoing effort or episode. Defendant’s offer to sell directly in a second transaction did not shed light on an ongoing scheme among three co‑conspirators.

Comment. Save this case. It is about as close as it gets to the line between EOCA and not EOCA.

Jackson v. State, No. 14-19-00168-CR (Tex. App.— Houston [14th Dist.] 2021)

Issue. (1) Does a defendant have standing to challenge law enforcement entry onto the curtilage of a home (where he parked his vehicle) without a showing of some connection to the home? (2) Does the automobile exception to the Fourth Amendment (searches of vehicles upon probable cause alone) apply when a defendant can show the absence of exigent circumstances?

Facts. Defendant was accused of participating with others in robbing a pawn shop. The pawn shop had previously installed GPS on their valuable jewelry and officers were able to quickly determine the location of the suspects. At that suspect’s location, two vehicles matching those seen on surveillance were parked in the driveway. When one officer looked inside of Appellant’s SUV, he saw a black trash bag, clothing, and a weapon. Video evidence showed the suspects had used these items during the robbery. The officer retrieved the evidence from the car.

Holding. (1) No. A defendant has the burden of establishing standing (a legitimate expectation of privacy). To evaluate standing, a court considers “a non‑exhaustive list of factors, including whether (1) the defendant had a property or possessory interest in the place invaded; (2) he was legitimately in the place invaded; (3) he had complete dominion or control and a right to exclude others; (4) before the intrusion, he took normal precautions customarily taken by those seeking privacy; (5) he put the place to some private use; and (6) his claim of privacy is consistent with historical notions of privacy.” Defendant did not present any evidence or argument pertaining to these factors. (2) No. The automobile exception to the warrant requirement only requires the existence of probable cause, the non‑existence of an emergency or exigency is immaterial.

In re Pena, No. 14-20-00735-CR (Tex. App.—Houston [14th Dist.], 2021)

Issue. Does a trial court have a non‑discretionary duty to furnish an indigent defendant with a free transcript to prepare a writ of habeas corpus?

Holding. No. “Indigent defendants do not have the right to a free record for collateral attacks on their convictions.”

Dissent (Bourliot, J.) In other cases where the court lacks a proper mandamus record, it notifies the party and provides an opportunity to cure the defect. “This court should treat similarly situated parties the same way.”

Comment. The penniless defendant who cannot afford a habeas record must request a free one. When that free record is denied, the penniless defendant must file a mandamus. But the penniless defendant who could not afford the habeas record must obtain a mandamus record if the penniless defendant hopes for an appellate court to grant relief. How does the penniless, recordless, lawyerless defendant obtain a trial court record for mandamus review? Perhaps this is a question the board of law examiners could use to force lawyers‑to‑be to grapple with flaws in the system in which they seek admission to practice.

March 2021 SDR – Voice for the Defense Vol. 50, No. 2

Voice for the Defense Volume 50, No. 2 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

It was a slow post-holiday month, but at least one branch of our government remained chill in January. We have more unsuccessful COVID-19 litigation in both state and federal court with the normal consolation prize of really strong language for some future situation with a perfect set of facts. Check out Weatherly v. State, below, for a case which might have PDR legs—it involves the right to redress (or lack thereof) when a court orders potentially unconstitutional sex-offender registration requirements by way of nunc pro tunc order.

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.

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. Bonilla-Romera, 984 F.3d 414 (5th Cir. 2020)

Issue. Can a trial court graft the sentencing range for second-degree murder onto the offense of first-degree murder to punish a defendant who is constitutionally ineligible for first-degree sentencing (life imprisonment or death) because he was under the age of 18 when he committed his offense?

Facts. Defendant was involved in a gang-related murder when he was 17. The government tried him as an adult and he ultimately pleaded guilty to first-degree murder under 18 U.S.C. §1111(b). Because this provision required a sentence of either death or life imprisonment but Miller v. Alabama, 567 U.S. 460, 479 (2012), and Roper v. Simmons, 543 U.S. 551 (2005) prohibit both punishments for a defendant under the age of 18 at the time of his offense, the district court severed these provisions from the statute. The district court concluded that §111(b) authorizes the punishment of such an individual for “any term of years or for life” and sentenced the defendant to 460 months. Defendant argued that the sentencing range fashioned by the trial court did not reflect a severance of unconstitutional provisions, but a merging of first- and second-degree murder sentencing ranges to invent a totally new sentencing range.

Holding. Yes. When a portion of a statute is unconstitutional “the traditional rule is that the unconstitutional provision must be severed unless the statute created in its absence is legislation that Congress would not have enacted.” Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S.Ct. 2183, 2209 (2020). There is no indication Congress would have decriminalized murder had it legislated with the benefit of the Miller and Roper decisions. Courts must use the test from United States v. Booker to craft a constitutional statute by excising the unconstitutional provisions. 543 U.S. 220 (2005). Booker requires the court to retain portions of the statute that are (1) constitutionally valid, (2) capable of functioning independently, and (3) consistent with Congress’ basic objectives in enacting the statute. Because the federal murder statute provides a sentencing scheme, and second-degree murder is a lesser-included offense of first-degree murder the outcome under Booker would be to excise the totality of the first-degree sentencing range and simply apply the second-degree sentencing range.

Comment. The prosecution and defense had agreed to a 30-year sentence which the trial court rejected. Then in defendant’s sentencing hearing the prosecution argued for a 35-year sentence. It baffles me why there are so many cases where the judge rejects a plea agreement, then in sentencing the prosecution argues for more than what they had negotiated as a fair punishment.

United States v. Thompson, 984 F.3d 431 (5th Cir. 2021)

Issue. Does the combination of hypertension, high cholesterol, and a previous stroke present the type of extraordinary circumstances meriting compassionate release (early prison release) during the COVID-19 pandemic for an inmate who has served only eight of his twenty years of imprisonment.

Facts. Defendant, an inmate at FCI Texarkana, presented a request for compassionate release on account of underlying health conditions during the COVID-19 pandemic. Defendant cited hypertension, high cholesterol, and a stroke he suffered over ten years ago as grounds making him uniquely at risk to COVID-19. Procedurally his request was first presented to the warden of the prison who recognized that Defendant presented “legitimate concerns and fears about the spread and effects of COVID” but ultimately denied the request. Defendant then presented his motion to the district court who rejected his request as well.

Holding. No. Compassionate release is governed (though not dispositively) by § 1B1.13 of the United States Sentencing Guidelines (“Guidelines”). The Guidelines provide that compassionate release should be granted only for “extraordinary and compelling” reasons. The Guidelines provide four “extraordinary and compelling reasons” for consideration (1) medical conditions, (2) age, (3) family circumstances, and (4) other. Medical conditions are limited to terminal illness or conditions where the defendant is substantially unable to provide self-care. Defendant’s conditions are managed effectively by medication, his conditions are common conditions, and there is no indication that he is at higher risk than the average inmate. Some courts have found underlying health conditions combined with the COVID-19 pandemic to justify release under “other” considerations, but courts which have granted this form of compassionate release have done so for “defendants who had already served the lion’s share of their sentences and presented multiple, severe, health concerns.”

United States v. Morton, 984 F.3d 421 (5th Cir. 2021)

Issue. Does the good faith exception to the exclusionary rule apply where an officer relied on an invalid search warrant authorizing the search of a cell phone photographic evidence of drug trafficking where that officer’s investigation and accusation led only to the conclusion that the defendant possessed personal quantities of drugs?

Facts. Defendant was stopped for speeding. After officers smelled marijuana in his vehicle, defendant consented to a search of the vehicle. Officers found 16 ecstasy pills, a small bag of marijuana, a glass pipe, children’s school supplies, a lollipop, 14 sex toys, and 100 pairs of women’s underwear. The arresting officer became concerned the defendant might be a pedophile and applied for a search warrant of defendant’s three cellphones. In his application the officer did not mention any concerns about child exploitation, instead he expressed his desire to seek more evidence of drug activity based on his many years of experience. A warrant was authorized and the arresting officer eventually found 19,270 images of sexually exploited minors. In the trial court, the defendant challenged the probable cause supporting the warrant issuance and the government argued the good faith exception to the exclusionary rule. 

Holding. No. The good faith exception allows officers to rely on a defective warrant unless the warrant “so lacked indicia of probable cause that the officers’ reliance on it was entirely unreasonable” citing United States v. Leon, 468 U.S. 897, 923 (1984)(cleaned up). The probable cause affidavit sought permission to search contacts, call logs, text messages, and photographs. Separate probable cause is required to search each of these categories. Citing Riley v. California, 573 U.S. 373 (2014). While it is logical to believe that texts, call logs, and contacts might contain information pertaining to the purchase of drugs the defendant possessed, the same cannot be said about his photographs. The officer’s assertion that co-conspirators often take pictures of their drugs and their drug proceeds was not pertinent to what the offense for which defendant was being accused. Defendant was accused of drug possession, not drug trafficking. Nor did the facts surrounding his arrest did not give rise to an assumption that he was trafficking. “Under these facts, reasonably well-trained officers would have been aware that searching digital images on [defendant’s] phone—allegedly for drug trafficking-related evidence—was unsupported by probable cause.” Thus, the good faith exception to the exclusionary rule does not apply.

Comment. Watch this space. The good faith exception to the exclusionary rule is popping up on the radar more and more.

Texas Court of Criminal Appeals

Ex parte Casey, WR-90,442-01 (Tex. Crim. App, 2021)(not designated for publication)

Issue. Can a Brady violation render a guilty plea involuntary when the matter not disclosed rebuts an affirmative representation made by the prosecutor or in the discovery?

Facts. Defendant shot at two police officers at nighttime in an alleyway. He was subsequently charged and convicted with aggravated assault on a public servant and sentenced to 25 years. The proceeding in the trial court appears to have been an open plea of guilty (a guilty plea followed by sentencing hearing). Defendant filed the instant writ of habeas corpus alleging that the prosecutor withheld a crucial fact which officers testified to at defendant’s punishment hearing: that they did not identify themselves as police officers. Trial counsel provided an affidavit indicating that the discovery provided by the State indicated that officers identified themselves repeatedly. Appellate counsel provided an affidavit that the officers’ failure to identify was not contained in the discovery. Defendant testified that he would not have pleaded guilty if he had known this favorable evidence, that evidence was improperly withheld under Brady v. Maryland, and that his plea was involuntary. The trial court found that the alleged failure to identify was either untrue or unknown to the prosecutor and that the Brady violation is based on speculation. 

Holding. Yes. At least here it did where the discovery materials affirmatively establishes that officers identified themselves and their testimony in punishment proved otherwise. The possibility of the prosecution’s ignorance of the failure to identify evidence is irrelevant to a claim of involuntary plea.

Concurrence (Keel, J.)(joined by Hervey, Richardson and Walker, JJ.). “The prosecution has an inescapable duty to disclose favorable evidence, even if it is known only to the police.” A Brady violation can render a guilty plea involuntary, particularly where a defendant is affirmatively misled about the prosecution’s case—as he was here.

Dissent (Keller, J.)(joined by Yeary, Slaughter, and McClure, J.J.) It is unsettled whether Brady applies to a guilty plea. Brady definitely does not require the disclosure of all exculpatory evidence prior to the guilty plea. Affirmative false representations by the State may render a guilty plea involuntary. Here, the exculpatory evidence was revealed during the punishment stage of trial and counsel did not complain at that time. All of these dilemmas and nuances aside, the false representation that officers repeatedly identified themselves when they did not identify at all is neither material nor prejudicial. Defendant testified in his hearing that he knew the two individuals he shot at were police officers. This fact, alone, eliminates the possibility of materiality or prejudice under a claim of involuntary plea, or even ineffective assistance of counsel (for failing to request a mistrial during sentencing).

Comment. There is clearly a split among the judges on the Court here. We may someday see a more nuanced and published opinion on this issue. Should that day come, I would hope that the fact that the prosecution successfully induced the Defendant into giving up the details of his guilt is not a basis for forgiving the wrongfulness of the inducement. A criminal defendant has a constitutional right to withhold information, stand behind the presumption of innocence, and demand the State satisfy its burden. We don’t celebrate these rights because we love guilty people going free. We celebrate them so they remain intact for the falsely accused staring down the most lopsided fight in history. 

1st District Houston

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

2nd District Fort Worth

Weatherly v. State, No. 02-19-00394 (Tex. App.—Ft. Worth, Jan. 7, 2021)

Issue. (1) May a trial court, years after entering its judgment, enter a nunc pro tunc order to add an omitted sex-offender-registration requirement and a finding that the victim was under the age of 17? (2) Is the application of sex-offender-registration requirements to a person convicted of a non-sex-offense unconstitutional?

Facts. In 2015, defendant pleaded guilty to unlawful restraint and was sentenced, pursuant to an open plea of guilty (plea without punishment recommendation), to 15 years confinement. The trial court’s judgment reflected that sex-offender-registration requirements did not apply and that the age of the victim at the time of the offense was “N/A.” In 2019, the trial court entered a nunc pro tunc order (its fourth in a series dating back to 2017) amending the judgment to reflect that sex-offender registration requirements apply and that the age of the victim was “younger than 17 years of age.”

Holding. (1) Yes. “A judgment nunc pro tunc is the appropriate avenue to make a correction when the court’s records do not mirror the judgment that was actually rendered.” Such orders are limited to the correction of clerical errors, but not errors which were the result of judicial reasoning. “When the law requires the trial court to enter a particular finding in the written judgment of conviction, the trial court retains no discretion to do otherwise, and the failure of the trial judge to do so is not an error of judicial reasoning but rather an error of clerical nature.” Chapter 62 of the Texas Code of Criminal Procedure requires a judgment convicting a defendant of unlawful restraint include sex-offender-registration requirements and a child victim’s age. These are clerical acts which involve no judicial reasoning. (2) Dodged – no jurisdiction. “Just as a trial court may not correct errors that are the result of judicial reasoning via nunc pro tunc . . . we do not have authority to review the underlying conviction or other ancillary matters related to the conviction.”

Concurrence (Sudderth, C.J.). Urges the Court of Criminal Appeals to reconsider what constitutes “judicial error” and what constitutes “clerical error.” The error corrected in this case should be considered “judicial error” not subject to a nunc pro tunc. Procedural due process rights are denied by the binding standard that the majority has to follow.

Dissent (Wallach, J.). Defendant objected and then appealed when the registration requirements were imposed. Defendant may seek redress on appeal regarding the constitutionality of imposing a sex-offender-registration requirement. Because such a requirement has not rational relation to the government’s interest in heightened public awareness of and protection from sexual offenders, imposing a sex-offender-registration requirement here is unconstitutional.

Comment. To challenge the validity of an unconstitutional condition imposed in sentencing a defendant must object at the time of sentencing. This is typically the rule imposed for probation conditions, but it has also been applied to certain trial court findings, including age-of-victim. Keller v. State, 125 S.W.3d 600, 606 (Tex. App.—Houston [1st Dist], 2003). Now, you might ask “how does a defendant object when a condition is not imposed at sentencing?” It’s actually simple:

COUNSEL: I object to you making that finding.
COURT: I didn’t.
COUNSEL: Then, I appeal!
COURT: ???

I guess habeas relief still remains a potentially viable option for the defendant in this case. Ex parte Chamberlain, 352 S.W.3d 121, 122 (Tex. App.—Ft. Worth, 2011). Indeed, the defendant attempted this. But when the case was forwarded to the Court of Criminal Appeals, the State successfully argued (with their fingers crossed behind their backs, I guess) that the defendant has direct appeal remedies which he must first exhaust in the Ft. Worth Court of Appeals. This was surely fantastic news for the defendant to hear—that the State agrees he should have his day in court. But lo, the State made the opposite argument in the Ft. Worth Court of appeals. So, in the CCA, the State argued the defendant must pursue his ability to seek redress in the COA. And in the COA, the State argued the defendant cannot seek redress in the COA. Is this “see[ing] that justice is done?” See Tex. Code Crim. Proc. Art. 2.01.

3rd District Austin

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

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

Ex parte McManus, No. 07-20-00152-CR (Tex. App.—Amarillo, Jan. 26, 2021)

Issue. After a year of pretrial confinement for two nonviolent offenses, and amidst the COVID-19 pandemic, is defendant’s argument that he cannot afford bail and has health conditions making him an increased risk for COVID-19 a sufficient basis for reduced bail without supporting evidence?

Facts. Defendant failed to appear for his Evading Arrest jury trial. He was subsequently arrested on the new charge of Failure to Appear. Nearly a year after his arrest, defendant filed an application for writ seeking personal bond or reduction in bond to $10,000. He articulated the following bases for relief: (1) more than 1-year of custody, (2) nonviolent offenses, (3) health concerns pertaining to his pre-existing health condition and the COVID-19 pandemic, (4) lack of resources to afford his current bail. The district court set bond at $200,000 in both cases. Defendant argued on appeal that his bail is oppressive and calculated to punish him for his failure to appear.

Holding. No. “While [defendant’s] argument has the potential of being persuasive due to the unprecedented delays in trial being experienced due to the COVID-19 pandemic, [defendant] has not provided any evidence supporting his position on these points and the record before us contains none.” Texas Code of Criminal Procedure Article 17.15 provides the appropriate factors for determining the amount of bail; they include: the ability to make bail, work record, family ties, length of residency, prior criminal record, compliance with the provisions and conditions of any previous bond. Defendant did not present evidence on these factors, he presented mere argument. The record failed to establish his financial inability or his unique medical vulnerabilities which he presented as bases for reduced bail. Courts “must be innovative in dealing with the delicate balance between an accused’s right to be released on reasonable bail pending trial and the unparalleled delays courts are experience in the trial of pending offenses.” However, a court cannot be faulted for failing to invent solutions when the record is devoid of factual support.

Comment. I half agree. According to the State’s briefing, this matter was resolved in the trial court without a hearing and without consideration of evidence. In that regard, the record is insufficient to substantiate the defendant’s medical condition. However, I believe that a year of pretrial confinement, having not posted bail, is prima facia evidence that the defendant can’t make bail. I may have just made that rule up – but it seems like a pretty solid one.

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

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

10th District Waco

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

11th District Eastland

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

12th District Tyler

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

13th District Corpus Christi/Edinburg

The Thirteenth District Court of Appeals in Corpus Christi/Edinburg did not hand down any significant or published opinions since the last Significant Decisions Report.

14th District Houston

Bleimeyer v. State, No. 14-18-01082-CR (Tex. App.—Houston [14th Dist.], Jan. 7, 2021)

Issues. This case is an injury-to-child-by-omission arising from allegations that defendant-stepmother, together with her husband, starved her stepson to near death. The most significant issues presented include: (1) Can a stepmother who disclaims responsibility for a stepchild avoid omission-culpability when she has a history of at least fulfilling some parental responsibilities for the injured child? and (2) When a stepmother presents evidence that she merely sat idly by while her husband starved her stepchild, is she entitled to a lesser-included offense instruction on child endangerment?

Facts. Defendant was the stepmother of a starving five-year-old child. A doctor who ultimately treated the child for his injuries reported that the child was terribly malnourished and underweight (one pound shy of what W.H.O. would classify as a famine victim). The doctor described the condition as chronic starvation with the onset of liver and kidney failure and near death. In addition to the complainant, the defendant had five children of her own, and two mutual children with the complainant’s father. Defendant indicated that the complainant was “part of the family and participated in family events.” Defendant testified that her relationship with complainant was similar to a nephew, but that complainant called her “mom.” In addition to managing the household, defendant assumed the responsibility of complainant’s medical visits. Defendant’s children testified that their mom was in control of the household and that their mom and stepfather would starve the complainant as a form of discipline. On one occasion defendant prevented her longtime friend from taking the child to the hospital for his starvation. On another occasion defendant’s son got into a physical altercation with defendant’s husband about complainant’s care. This physical altercation culminated in the defendant and her husband fleeing the home with the complainant to avoid the police. Defendant, her husband, and defendant’s niece all testified that there was an explicit agreement in the relationship that defendant would care for her own children and husband would care for his own children (i.e. the complainant). Defendant also presented evidence that she never actually punished the complainant herself, that her husband and complainant only lived with her off-and-on, that her husband was abusive toward her, and that she was prohibited from doing anything with the complainant without her husband’s permission. Much of this evidence was controverted.

Holding. (1) No. “To be convicted of injury to a child by omission, a defendant need not have an in loco parentis relationship with the child—that is, the defendant need not assume all the duties of a parent.” The record reflects ample evidence that defendant assumed care over the complainant and would lead a reasonable person to assume she accepted responsibility for the child’s nourishment and wellbeing. (2) No. A lesser-included instruction is required when: (1) the lesser-included offense is included within the proof necessary to establish the charged offense, and (2) there is some (more than a scintilla) of evidence that suggests that if the defendant is guilty, she is only guilty of the lesser-included offense. The defensive evidence which painted a picture of the defendant having a more passive role did not refute the causation element of injury to a child. “The evidence does not show that appellant’s omissions merely placed the complainant in danger of injury, rather than caused injury.”

Comment. Defendant went on Dr. Phil and said she was busy with her other kids and that feeding her stepson was not her responsibility. Defendant’s biological children understandably did not have many good things to say about her—at trial or on Dr. Phil.

Root v. State, No. 14-19-00075-CR (Tex. App.—Houston [14th Dist.] Jan. 21, 2021)

Issue. This case involves the seven-day requirement for registering as a sex offender after release from prison. The statute defines compliance as a meeting occurring either within a seven-day-literal window, or a seven-day-expanded window (the earliest day the police choose to meet). Where the State specifically alleges that a defendant failed to report his new email address within seven days of release from prison, may the State rely on the seven-day-expanded definition in the statute to convict at trial?

Facts. In July 2015 defendant was released from prison and went to Houston PD to set up his sex-offender registration. Houston PD set up a meeting for November 2015. At the November meeting defendant completed a “registration update form” where he verified “Email: None.” Three months later, defendant admitted to an investigator that he had the email address . It was shown that this address was created on August 10, 2015 (one month after release, three months prior to his registration meeting). The State charged the defendant with failure to register—by failing to provide his email address within seven days of release from a penal institution. Defendant argued the State’s theory was impossible because he did not create the email address until the 13th day after his release. The State argued that the indictment language was unimportant and that the statutory seven-day requirement is broader than a literal seven-day period. Under the statute, the seven-day requirement also means a date that is on “the first date the local law enforcement authority . . . allows the person to register . . . “ The State’s argument followed: because defendant’s seven-day window was expanded to a date after the creation of the email, the law required the defendant to disclose it at his meeting.

Holding. No. Sufficiency of evidence is evaluated against a hypothetically correct jury charge. An unproven allegation is to be included in the hypothetically correct jury charge when the variance between the allegation and proof is material. The Court of Criminal Appeals has identified three categories of variance:

(1) a statutory allegation that defines the offense, which is either not subject to a materiality analysis, or, if it is, is always material; the hypothetically correct jury charge always will include the statutory allegations in the indictment;

(2) a non-statutory allegation that is descriptive of an element of the offense that helps define the allowable unit of prosecution, which is sometimes material; the hypothetically correct jury charge sometimes will include the non-statutory allegations in the indictment and sometimes will not;

(3) a non-statutory allegation that has nothing to do with the allowable unit of prosecution, which is never material; the hypothetically correct jury charge will never include the non-statutory allegations in the indictment.

The variance here, the seven-day-literal window the State pleaded and the seven-day-expanded window the State proved, is a variance of the first category. The State’s indictment provided a definition for the offense. The State did not prove the offense as they defined it. This variance is material, the hypothetically correct jury charge incorporates only the definition from the indictment, and the evidence is therefore insufficient. Defendant could not have reported the existence of within seven days of his release from prison, because it did not yet exist on that date. 

Comment. A quick TDCJ offender lookup shows the defendant was born in 1969.

January/February 2021 SDR – Voice for the Defense Vol. 50, No. 1

Voice for the Defense Volume 50, No. 1 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

This month we saw two major cases involving the right to pretrial release. In Daves, et al. v. Dallas County, the Fifth Circuit reiterates the due process requirement of individualized consideration of each individual’s ability to make bail. No. 18-11368 —F.3d—- (5th Cir. Dec. 28, 2020). In an unpublished opinion, the Austin Court of Appeals declines the invitation to use the pandemic as an excuse to prolong the period the State may confine an unindicted person. Ex parte Tucker, No. 03-20-00372 (Tex. App.—Austin, Dec. 31, 2020)(not designated for publication). Of equal importance, we also learn the appropriate way to pose for your baton certification class photo (but only if you read this SDR carefully!)

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. Cases are hyperlinked and can be accessed by clicking on the case name.

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

United States Supreme Court

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

Fifth Circuit

Daves, et al. v. Dallas County, Texas, et al., No. 18-11368;  —F.3d.—- (5th Cir. Dec. 28, 2020)

Issues. This 42 U.S.C. 1983 lawsuit challenging the constitutionality of cash bail procedures as applied to indigent arrestees raises several issues: (1) Does the subsequent release of inmates in bail litigation seeking injunctive relief eliminate standing? (2) Must all state remedies be exhausted before federal bail litigation? (3) Are the Dallas County District Court Judges proper defendants? (4) Is Dallas County a proper defendant? (5) Is the Sheriff a proper defendant? (6) does the constitution demand more than the implementation of carefully crafted procedures that account for individual circumstances; is there a substantive due process right to be free from wealth-based detention?

Facts. This case is brought as a class action by the same attorneys involved in the Harris County bail litigation. That case now involves three Fifth Circuit opinions upon which this case now builds. Plaintiffs here are a class of indigent inmates who were unable to post bail. Seven Magistrate Judges are named as defendants. The lawsuit also names Dallas County, the Dallas County Sheriff, 17 Criminal District Court Judges, and 11 County Criminal Court Judges. At the time of plaintiffs’ filing, recent arrestees in Dallas County were taken before Dallas County Criminal District Court Magistrate Judges (appointed by the district court judges) who determine bail by reference to a recommended bail schedule (crafted by the district court judges). The schedules at issue set recommended bail amounts for corresponding offenses (absent special circumstances). Despite being stated as recommendations, the federal district court found that magistrate judges routinely treat the schedules as binding. In response to the Harris County litigation, Dallas County District Judges directed Magistrate Judges to begin accounting for an arrestee’s ability to pay based on financial affidavits. The federal district court found these financial affidavits “made no noticeable difference in the practices for setting terms of release.” Inmates who could not afford bail were taken back to jail and kept for weeks or months. The federal district court found “a clear showing of routine wealth-based detention” in violation of procedural due process and equal protection. Pursuant to similar relief granted in the Harris County litigation, the federal district court ordered Dallas County enjoined from imposing prescheduled bail amounts as a condition of release on arrestees who attest that they cannot afford such amounts without first providing an adequate process for ensuring there is individual consideration for each arrestee and possible alternatives to cash bail.

Holding. (1) No. The issue of standing “is to be assessed under the facts existing when the complaint is filed.” Lujan v. Defs. Of Wildlife, 504 U.S. 555, 569 n. 4 (1992). “Because the Plaintiffs had standing when they filed their original complaint, the capable-of-repetition-yet-evading-review doctrine precludes mootness.” Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975). (2) No. Defendant District Court Judges argue that when the constitutional complaint involves a challenge to the “very thing” that stands between the plaintiff and release from custody, plaintiffs must first seek habeas relief before filing a 1983 action. However, the District Court Judges mischaracterize the plaintiff’s requests, they seek individualized consideration of their ability to pay bail and nonfinancial alternatives. “The relief of a more robust hearing would not necessarily lead to ‘immediate release from confinement or the shortening of its duration.’” (3) No. Texas criminal district judges are “undeniably elected state officials” and “act for the state when acting on bail.” As state actors, their actions are covered by sovereign immunity. As such, the only avenue for continued litigation against them is a showing of potential prospective relief from continued and ongoing violation of federal law. Here, the District Judges adopted a policy that permits discretion and plaintiffs take issue in the policy’s implementation. Implementation is not a matter over which District Judges have control. Accordingly, the District judges are not only immune from suit, plaintiffs did not even allege a case or controversy involving them. (4) Yes. While there is some indication that county court judges are part of a state court system, precedent provides that a county court judge is a county actor, not a state actor. As such, when they set policy, they set policy on behalf of the county for which the county may be held liable in a 1983 suit. (5) Yes. “If bail is unconstitutionally required, the sheriff’s ‘constitutional violation is detention on an improperly determined bail amount.’” (6) No. “There is no clear support in the precedents on which the Plaintiffs rely for the expansive liberty right for indigents that the Plaintiffs claim.” Nor does the Eighth Amendment’s prohibition on excessive bail create a substantive right to liberty for indigent defendants. There is no substantive due process right to be free from wealth-based detention. Though liberty cannot be taken without a constitutionally adequate justification, what the constitution requires is procedural due process: an individualized determination of the person’s ability to make bail, whether cash bail is necessary, and whether other alternatives to cash bail may satisfy the government interests involved.

Comment. This is a scary precedent as it pertains to sheriffs. I don’t want the sheriff to be the final arbiter of whether a judge followed the constitution; the Fifth Circuit says its opinion doesn’t go this far. The sheriff’s responsibility is merely a perfunctory one: to see if an individualized assessment was made. But what should a sheriff do when a judge holds a bond insufficient without a hearing, orders a sentence executed that relies upon insufficient evidence?  The other thing which struck me in this case is the invocation of the capable-of-repetition-yet-evades-review doctrine. On the COVID-19 taskforce we have been advancing that argument in the courts of appeal and Court of Criminal Appeals on behalf of inmates denied their statutorily guaranteed release because of delay. Nearly every person we have assisted has mooted-out due to case resolution or some other mechanism. Texas courts have specifically rejected the capable-of-repetition-yet-evades-review argument in the context of bail litigation. This changes things. 

Texas Court of Criminal Appeals

Haggard v. State, No. PD-0635-19 (Tex. Crim. App. 2020)

Issue. Does testimony by a Sexual Assault Nurse Examiner (SANE) via a two-way video system (Facetime) violate the Sixth Amendment?

Facts. Following an outcry of sexual assault, a family friend took the complainant to the hospital for a SANE evaluation. The SANE nurse memorialized the complainant’s story, did not find trauma to the alleged complainant’s sexual organs, but did find a hickey she described on her breast. Despite the complainant describing two instances of ejaculation during the assault, in 2014, the DPS crime laboratory could not find the presence of anyone’s semen in any area of interest, including the shirt the complainant described using to clean herself. In 2017 DPS used new software to determine that the defendant was a contributor of DNA of previous unknown mixed DNA sample from the complainant’s breast hickey (billions of times more likely than any other person to have contributed to the mixed result). At the time of trial (in 2017), the SANE nurse had moved to Montana. Because she committed to voluntarily appearing in court to testify the State did not subpoena her. The Friday before the Monday that trial was set to begin, the SANE nurse changed her mind and informed the prosecutors she would not appear voluntarily. Without attempting to subpoena the SANE nurse or moving for continuance, the State requested that the trial court permit the SANE nurse to testify via FaceTime. The State argued that the SANE nurse was necessary to prove chain of custody and that without the SANE testimony, the DNA evidence would be inadmissible. The trial court granted the State’s motion over defense objection.

Holding. Maybe. It did here. A majority opinion by Judge Hervey, joined by Keasler, Richardson, Newell, and Walker, JJ. A criminal defendant has not only the right confront, but also the right to physically confront those who testify against him. Coy v. Iowa, 487 U.S. 1012, 1017 (1988). That right is subject to important public policy concerns. Id. In Maryland v. Craig the U.S. Supreme Court found one such important public policy concern sufficient. The Court upheld the use of one-way, closed-circuit television for child testimony under a statute which required case-specific findings pertaining to necessity arising from child trauma and inability to communicate while in the presence of the defendant. 497 U.S. 836 (1990). The Court of Criminal Appeals has consistently applied the standard from Craig in cases involving the use of two-way video systems, such as FaceTime. Marx v. State, 987 S.W.2d 577 (Tex. Crim. App. 1999); Gonzalez v. State, 818 S.W.2d 756 (Tex. Crim. App. 1991). The court rejects the invitation of the dissent to treat this progeny as outdated and instead “focus on the realities of the world we live in today.” Citing Scalia, the court notes:

a purpose of the Confrontation Clause is ordinarily to compel accusers to make their accusations in the defendant’s presence—which is not equivalent to making them in a room that contains a television set beaming electrons that portray the defendant’s image. Virtual confrontation might be sufficient to protect virtual constitutional rights; I doubt whether it is sufficient to protect real ones.

Order of the Supreme Court, 207 F.R.D. 89, 91 (2002)(Statement of Scalia). The Court noted the evolution of the right to confrontation from a substantive guarantee to a procedural one in Crawford v. Washington. 541 U.S. 36 (2004). The importance of the right is the ability to test evidence in the “crucible of cross-examination.” Id. The Court seems to assume that Craig remains the applicable standard for evaluating virtual confrontation and finds that the trial court’s desire to save the State from its negligence or alleviating travel burdens on witnesses are insufficient public policy justifications to overcome the defendant’s right to in-person confrontation.

Concurrence (Yeary, J.). The Court of Criminal Appeals is limited to addressing only issues which have been ruled upon by a lower court. The Beaumont Court of Appeals assumed for the sake of argument the Confrontation Clause was violated and found no harm. The case should have been sent back to the Beaumont Court of Appeals to require them to analyze the confrontation clause issue. Nonetheless, Judge Yeary opposes the dissent’s position that the Sixth Amendment has evolved to incorporate the use of new-fangled technologies.

Dissent (Slaughter, J. joined by Keller and Keel, JJ.). The dissenters perceive an opportunity presented by the advancement of technology to allow virtual confrontation despite Crawford and Craig. They find the requirements of the Sixth Amendment are limited to (1) taking an oath, (2) face to face examination with some exceptions, (3) opportunity for cross examination, (4) ability of the factfinder to observe the witness’s demeanor. These were all satisfied in the instant case via FaceTime testimony. The dissent notes the use of really big modern TV screens actually make for better and even enhanced interactions (notwithstanding the numerous technical problems in the instant case). If the defendant wants to avoid whatever shortcomings virtual cross-examination presents, the defendant can issue a subpoena.

Comment. A long but necessary summary. The facts of this case predate the COVID-19 pandemic, but the opinion comes squarely in the middle of a surge in U.S. cases. This case is a blueprint both for proponents and opponents of virtual cross examination during the public health disaster. The State in the instant case did very little in way of presenting a good reason to the trial court for allowing 2-way video confrontation (though its argument was certainly a familiar one: “we’re the State, it’s not fair when we lose, and we really, really, want to do it”). It’s hard to predict whether the six judges in the majority would hold should the State presents better arguments revolving around public health and safety during the pandemic. A defendant facing the prospect of unwanted virtual confrontation should definitely parlay the arguments in this case with those in In re Abbott and Ex parte Sheffield, “[t]he Constitution is not suspended when the government declares such a disaster.” In re Abbott, 601 S.W.3d 802 (Tex. 2020); Ex parte Sheffield, No. 07-20-00216-CR (Tex. App. Amarillo—Sep. 17, 2020).

Day v. State, No. PD-0955-19 (Tex. Crim. App. 2020)

Issue. In the context of an evading arrest prosecution (which requires a lawful detention), can an officer’s discovery of a lawful basis for detention (a warrant) be tainted by illegality—a la fruit of poisonous tree—because the initial basis for the detention was unlawful.

Facts. A city marshal was staged three houses down from the home of an individual with a traffic warrant (“target fugitive”). He intended to arrest this individual but didn’t know what he looked like. A vehicle with several passengers arrived as did a couple of individuals on bicycles. One of the individuals in the group was the target fugitive. He asked those in the group to identify the target fugitive and all declined. The marshal asked for identification. The defendant was one of the two individuals who complied with that command. As the marshal checked the defendant for warrants, the target fugitive rode away on his bicycle. Appellant told the marshal that he wanted to leave, that he had to get to work, and that he wasn’t the target fugitive. The marshal declined to terminate the detention. Appellant admitted to having warrants out of Fort Worth, but the marshal indicated he was not concerned with those warrants, at least until he learned they were county-level warrants. When it became clear that he would be arrested, the defendant started to make his escape. The marshal informed the defendant he was not free to leave and that he was under arrest. He ran, anyway. The defendant argued in the trial court that the continued detention beyond the point of defendant’s expression that he wished to leave, was unconstitutional and thus his further detention and ultimate arrest were unlawful. On direct appeal, the defendant argued this fact entitled him to acquittal (evading arrest or detention requires proof of a lawful arrest or detention). The Court of Appeals found that that the prolonged period of detention was unconstitutional and that the later discovery of a warrant did not cure this.

Holding. No. The word “lawfully” as it appears in the evading arrest or detention statute does not incorporate exclusionary rule principles such as “taint” and “fruit of the poisonous tree.” These concepts define the remedy for unlawful police conduct only in the context of suppression. “[T]hey do not transform an otherwise lawful arrest into an unlawful one.” The court rejects the defendant’s argument that once a detention becomes unlawful, it remains unlawful. The court notes that this remains a valid fruit-of-the-poisonous-tree argument in the context of Fourth Amendment suppression, just simply inapplicable in cases of evading.

Comment. This comment might make your brain explode. Because lawful detention or arrest is an element of the offense, you can’t file a motion to suppress in an evading case (noted in opinion). Now, in the context of any motion to suppress you can argue subsequent lawful police action is “tainted” or “fruit of the poisonous tree” due to initial illegal conduct. But, according to the court, in the context of an evading trial, you can’t argue “taint” or “fruit of the poisonous tree” because they have no bearing on the sufficiency of the evidence. Procedurally, where do you get to make these arguments in an evading case? Nowhere now.

Diamond v. State, No. PD-1299-18 (Tex. Crim. App. 2020)

Issue. In a DWI with BAC greater than 0.15 prosecution, is undisclosed evidence that a lab technician accidentally certified questionable blood results in an unrelated case the type of materially favorable cross-examination evidence that would warrant granting a new trial under Brady v. Maryland?

Facts. This is a substitute opinion on motion for rehearing. Defendant was convicted at trial of DWI with a BAC greater than 0.15. In an unrelated case, prior to defendant’s trial, the technician who analyzed defendant’s blood mistakenly certified a blood alcohol analysis where a police officer had mislabeled the submission form accompanying the blood sample. The technician had caught the discrepancy, followed protocols in setting it aside for resolution, but then accidentally certified the analysis without resolving the discrepancy. At the time of Defendant’s trial, the technician had been removed from casework and was working to research and document this incident. The technician’s supervisor, partly to blame for the error, offered inconsistent reasoning for why he had removed her from casework. The trial court rejected the supervisor’s ultimate rationale: that he had lost confidence in the technician’s knowledge base and denied the writ of habeas corpus. The 14th Court of Appeals found otherwise, rejected the trial court’s finding, and accepted as true that the supervisor had lost confidence in the technician and finding that this fact was at least material to the jury’s finding that the defendant’s BAC was greater than 0.15. 

Holding. No. At least not here. The subjective evidence of intoxication was substantial as was the evidence that, in the instant case, the analyst followed all protocols. In the case of the unrelated error, there was never a question whether the technician accurately analyzed the blood – her error was certifying it as belonging potentially to the wrong person (and that error was caught before it caused any damage). Due to these considerations, the erroneous certification in an unrelated case could not have been materially favorable cross-examination evidence for the defendant. With regard to the accusation made by the technician’s supervisor—a suggestion to lack confidence in her work—the trial court was within its discretion to reject that conclusion, especially in light of the fact that it was self-serving, blame shifting, and one of several inconsistent statements provided by the witness.

Comment. In the creative minds of criminal defense lawyers, it is hard to accept that scandalous evidence is not material evidence. Many of us have tried DWI blood draw cases by attacking the reliability of government crime laboratory procedures for identifying and addressing errors and the normal practice of self-investigation. Having particularized instances where these procedures produced (or almost produced) disastrous results, lend credibility to the argument.

1st District Houston

Thomas v. State, No. 01-18-00504-CR (Tex. App.—Houston [1st Dist.] Dec. 1, 2020)

Issue. In an open-plea scenario, where a defendant executes a standard agreed-plea form to indicate her intent to plead guilty, but that form is modified or repurposed to show the absence of a negotiated punishment, may the state wield boilerplate appeal waiver language in that form to defeat the defendant’s right to appeal?

Facts. Defendant and her co-conspirators stole more than $8 million from an engineering company and pleaded guilty to theft and money laundering. Defendant entered an open plea of guilt and proceeded to punishment before the trial court without a sentencing recommendation from the prosecutor. Prior to the hearing the defendant executed standard/boilerplate forms which included waiver of appeal language. Although the prosecutor did not express a negotiated punishment recommendation in this document, he did indicate that the State waived its right to a jury trial.

Holding. No. A waiver of the right to appeal is unenforceable without consideration. The boilerplate waiver executed by the defendant expressly states that the defendant waived the right to appeal in exchange for the State’s sentencing recommendation. That is not true. And there is no other indication that the State gave some consideration for this purported waiver. The State’s argument that its waiver of jury trial was valuable consideration is unpersuasive. The record does not reflect that the State’s waiver of jury trial was offered in exchange for defendant’s plea or waiver of appeal. Moreover, there is no evidence that the State was otherwise disinclined to waive a jury trial.

Brent v. State, No. 01-19-01008-CR (Tex. App.—Houston [1st Dist] Dec. 10, 2020)

Issue. Does the Code of Criminal Procedure impose a deadline on the trial court’s exercise of “judicial clemency” jurisdiction following a defendant’s successful completion of community supervision?

Facts. In March 2017 the trial court discharged the defendant from her conviction-based misdemeanor community supervision. More than two years later, in 2019, defendant filed a “Motion to Set Aside the Verdict and Dismiss Pursuant to Texas Code of Criminal Procedure Art. 42A.701(f)” (motion for “judicial clemency”). The State filed a response objecting to the trial court’s jurisdiction, arguing that the trial court’s authority to enter such an order expires 30 days after its entry of a probation discharge order. The trial court granted defendant’s request for judicial clemency and interpreted 42A.701(f) to have no such deadline.

Holding. No. A discharge from probation is a recognition that the defendant “has paid his debt to society . . . .” “Judicial clemency” is available “when a trial judge believes that a person on community supervision is completely rehabilitated and is ready to re-take his place as a law-abiding member of society . . . .” Cuellar v. State, 70 S.W.3d 815 (Tex. Crim. App. 2002). The literal text of the 42A.701(f) provides:

If the judge discharges the defendant under this article, the judge may set aside the verdict or permit the defendant to withdraw the defendant’s plea. A judge acting under this subsection shall dismiss the accusation, complaint, information, or indictment against the defendant. A defendant who receives a discharge and dismissal under this subsection is released from all penalties and disabilities resulting from the offense of which the defendant has been convicted or to which the defendant has pleaded guilty [subject to certain exceptions not applicable here].

The State’s incorrectly reads the statute to require discharge and clemency to occur at the same time. The statute envisions the discharge as a condition precedent to the order of judicial clemency. Restricting the trial court’s clemency jurisdiction to the time of granting a discharge is inconsistent with public policy. Judicial clemency is a reward for complete rehabilitation, but some have not reached that status at the date of their probation discharge.

(2) No. There are only two types of community supervision discharges: permissive (early discharge upon early completion of conditions), and mandatory (upon completion of conditions and full expiration of probationary term). The court rejects the State’s attempt to add a third category of discharge ineligible for judicial clemency—one where the defendant did not complete conditions but the probationary period expired, is unpersuasive. 

Comment. Justice Goodman takes a principled stance in the face of five sister courts of appeal holding that jurisdiction to grant judicial clemency expires 30 days after entry of an order discharging the defendant from community supervision. Four months on the job as the new SDR editor and I find myself checking each month to see what Justice Goodman has written.

Roland v. State, No. 01-19-00752-CR (Tex. App.—Houston [1st Dist.] Dec. 15, 2020)

Issue. Does a county court at law have subject matter jurisdiction over a prosecution for official oppression?

Facts. Defendant worked at the Fort Bend County Juvenile Probation Department as a drill instructor. He was accused of slapping or hitting juveniles under his supervision. The State tried to charge him with official oppression. They first filed a misdemeanor cases in the county court. Then believing jurisdiction should be in the district court, they moved to “transfer jurisdiction,” but abandoned this maneuver prior to a hearing. The misdemeanor court instead held the misdemeanor charges while the State obtained a grand jury indictment to prosecute the same charges in district court. The district court dismissed the charges based on the expired statute of limitations. The State then reverted back to their conveniently held prosecution in the misdemeanor court and argued that county and district courts have concurrent jurisdiction over official-oppression cases. The county court denied the defendant’s motion to dismiss and the defendant plead no contest and appealed.

Holding. No. Official oppression is a Class A misdemeanor and constitutes an offense of “official misconduct.” Generally, county courts have exclusive original jurisdiction over misdemeanor offenses. Tex. Gov’t Code § 26.045(a). Misdemeanors involving official misconduct are excluded from this general rule. Tex. Gov’t Code § 26.045(a). Article 4.05 of the Code of Criminal Procedure confers original jurisdiction of all misdemeanors involving official misconduct to district courts. Tex. Code Crim. Proc. art. 4.05. Thus, the county court at law here had no jurisdiction to enter its judgment against the defendant. A judgment entered without jurisdiction is null and void and therefor it is vacated and dismissed.

Comment. There is nothing particularly profound about the outcome or analysis in this case. It is all-around good lawyering. If you didn’t know jurisdiction over misdemeanors involving official misconduct lies in the district court, as Biggie Smalls says, “if you don’t know, now you know.”

Torres v. State, No. 01-18-01074-CR (Tex. App.—Houston [1st Dist] Dec. 22, 2020)

Issue. (1) Does the Confrontation Clause apply in probation revocation hearings? (2) When a probationer is required to “successfully complete” treatment, does a conclusory unsuccessful discharge citing generally that the defendant failed to follow rules provide a sufficient basis to revoke probation?

Facts. Defendant’s probation was revoked. He was previously sentenced to deferred adjudication probation with the condition of completing six months of treatment in the Substance Abuse Felony Punishment Facility (SAFPF). The State, by its motion to adjudicate guilt, alleged that he failed to complete the SAFPF program. At the hearing on the motion to adjudicate the State called a probation record custodian who did not have personal knowledge of defendant’s probation performance but authenticated the defendant’s probation records. The State called a SAFPF coordinator who prepared an unsuccessful discharge report based on information conveyed to him during a “treatment team meeting” with SAFPF/prison personnel over the telephone. The State also introduced the discharge report. Neither the SAFPF coordinator nor the discharge report articulated any particular violations, but did cite generally that defendant committed “rule violations.”

Holding. (1) Dodged. Prior to 2012 several intermediate courts of appeal determined that there is no right to confrontation in probation revocation hearings. In 2012, the Court of Criminal Appeals issued its ruling in Ex Parte Doan holding that “[c]ommunity-supervision revocation proceedings are not administrative hearings; they are judicial proceedings, to be governed by the rules established to govern judicial proceedings.” 369 S.W.3d 205, 212 (Tex. Crim. App. 2012). But the Court of Criminal Appeals has not expounded on that holding. The First Court assumes a confrontation right but mostly dodges this question by finding reversible error elsewhere. (2) No. “Successful completion” of a treatment program impliedly requires a probationer to abide by rules and regulations. However, the exercise of discretion by a third party in evaluating whether the probationer complied with rules and regulations must be accompanied with the basis for such a conclusion. The reasons for a probationer’s discharge from a mandated treatment program are relevant to the trial court’s decision to revoke probation. Due process requires a trial court to evaluate the exercise of discretion by the third party to verify legitimacy, veracity, and “to ensure it was used on a basis that was rational and connected to the purposes of community supervision.” See Leonard v. State, 385 S.W.3d 570 (Tex. Crim. App. 2012). Here, the discharge report only contains conclusory statements that the defendant violated “rules” of the program and bad behavior. It contains no supporting facts, sources of information, and the SAFPF coordinator knew nothing about the bases of the complaints. Thus, the evidence here was insufficient for the trial court to have found the defendant violated the “successful completion” of treatment condition. 

Concurrence (Keyes, J.). Probationers have a right to confrontation in probation revocation hearings. The Court of Criminal Appeals decision in in Doan has sufficiently overruled any predecessor case that holds otherwise. Because the discharge report contained hearsay within hearsay it was inadmissible, despite the proper business record predicate. “Here, there is no indication that the actual facts underlying revocation of appellant’s community supervision were of any concern to the State or to the court; nor was any attention given to assuring appellant’s rights or attempting to reach any result other than a summary dismissal of all obstacles to the swift adjudication of appellant’s guilt and his sentencing to a long term in prison . . .”

Comment. There are two confrontation issues that come up frequently in the context of probation revocation motions: (1) a probation revocation motion prosecuted many years after its filing where the probation department sends a surrogate to testify on behalf of a probation officer with personal knowledge who is no longer employed, and (2) the surrogate probation officer testifying on behalf of the probation officer with personal knowledge to whom the probationer reports in another jurisdiction. These scenarios should draw a confrontation challenge every time.

Rankin v. State, No. 01-19-00156-CR (Tex. App.—Houston [1st Dist] Dec. 29, 2020)

Issue. Was a jury’s rejection of the defendant’s claim of sudden passion based on legally and factually insufficient evidence where the defendant testified that she stabbed her boyfriend immediately after a momentary break from his ongoing assault and strangulation?

Facts. Defendant called her boyfriend to help her jump start her vehicle. When boyfriend arrived, an altercation ensued. According to the defendant’s daughter who witnessed the altercation, the boyfriend grabbed and lunged at the defendant, he stated, “bitch I’ll kill you” and began to choke the defendant. Upon witnessing this, daughter fled to retrieve a baseball bat. Defendant testified that when boyfriend choked her, she felt like she was going to die, she called out for help and then stabbed the boyfriend with a knife as soon as she could free her arms. Boyfriend let go, attempted to drive off, but ultimately collapsed. While boyfriend was attempting to drive off, defendant cried alone in her car. After boyfriend collapsed, defendant rushed him to the hospital. At the hospital an officer asked who inflicted boyfriend’s wounds and defendant admitted that she had. Defendant was interviewed by series of officers and twice omitted that she stabbed her boyfriend amid the ongoing assault and strangulation. Instead she maintained that the stabbing was accidental.

Holding. No. A defendant is punished within the second-degree felony range if he or she “caused the death under the immediate influence of sudden passion arising from an adequate cause.” Tex. Penal Code § 19.01 (d). For conduct to be justified as influenced by a sudden passion “the defendant’s mind must be rendered incapable of cool reflection.” Because sudden passion is an affirmative defense, the court reviews a sufficiency challenge for both legally sufficient evidence (viewing evidence in light favorable to the jury’s rejection of the defense), and for factually sufficient evidence (viewing evidence neutrally and determining whether jury’s finding was contrary to the great weight of other evidence). The evidence was legally sufficient to reject the defendant’s sudden passion claim. The defendant testified that she remained calm and composed before, during and after the stabbing. Defendant’s ability to call out for help belies her claim that the stabbing was an immediate reaction or influenced by a sudden passion. Her crying alone in her car was also reflective of cool reflection. The evidence was factually sufficient to reject the defendant’s sudden passion claim. The evidence contradictory to the jury’s rejection of sudden passion was evidence provided by the defendant and seemed inconsistent with both the testimony of other witnesses and the defendant’s own statements provided to police prior to her arrest. The jury was free to reject the defendant’s testimony as credible evidence.

Dissent (Keyes, J.). This is a classic case of sudden passion. Finding otherwise is against the great weight and preponderance of the evidence. The majority is correct in its legal sufficiency analysis—at least a mere scintilla of evidence supported a rejection of defendant’s sudden passion claim. But, contrary to the majority’s conclusion, the jury’s rejection of sudden passion was factually insufficient. The defendant and the victim were engaged in a physical and verbal altercation. The defendant, having been choked, would have been provoked in a manner that would “commonly produce such a passion in a person of ordinary temper.” Her commission of the murder was immediately upon the victim’s loosening of his grip around her neck and before she could have regained any capacity for cool reflection. A causal connection existed between the provocation, passion, and homicide. There is no evidence to support the conclusion that the defendant did not act out of sudden passion.

Comment. 15 years for a murder sounds like some of the jurors might have believed in the sudden passion theory. It is rare that an appellate court dusts off the relic of factual sufficiency. It is applicable here, in the limited circumstance of assessing sufficiency of the evidence on a defensive issue where the defendant has the burden of proof.

2nd District Fort Worth

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

3rd District Austin

Ex parte Tucker, No. 03-20-00372 (Tex. App.—Austin, Dec. 31, 2020)(not designated for publication)

Issue. Do Supreme Court Pandemic Emergency Orders authorizing trial courts to “modify or suspend deadlines and procedures [authorized by statute]” permit a trial court to extend Article 17.151 deadlines mandating pretrial release when the State is unprepared for trial?

Facts. After 88 days of pretrial-preindictment confinement, the State of Texas filed a “Motion to Modify Article 17.151 Deadline” (accused must be released on personal bond when State not ready for trial after expiration of 90 days of pretrial confinement). The State argued it was entitled to extension under the recent series of Texas Supreme Court orders authorizing Texas courts to “modify or suspend all deadlines and procedures . . . .” In support of its argument justifying extension of the 17.151 deadline the State pointed to: (1) the lack of clear guidance on whether other Supreme Court Emergency Orders permitted empaneling grand juries remotely, (2) the inability to assemble a sufficient number of in-person grand jury meetings when the ability to do so became clear, and (3) and the inability to assemble a quorum of grand jurors when remote procedures were authorized. The defendant argued that his pretrial-preindictment period of confinement satisfied the Article 17.151 requirements for a personal bond, and that the Supreme Court’s Emergency Order permitting trial courts to modify statutory deadlines violated the Texas Constitution’s prohibition on suspension of laws by a branch of government other than the legislature. He also argued that the Government Code did not grant the Texas Supreme Court and Court of Criminal Appeals the authority to delegate to the district courts the power to suspend Article 17.151 deadlines. The trial court granted the State’s request to extend the 17.151 deadline and reset the matter for 30 days. The State indicted the defendant two days before the reset hearing date and argued that the matter was now moot. The trial court agreed and denied the defendant’s request for personal bond.

Holding. No. Despite the trial court’s explicit finding to the contrary, nothing in the record indicated that the State was ready for trial (or had returned an indictment) within the 90-day deadline imposed by Article 17.151. A defendant’s entitlement to a personal bond under 17.151 is not mooted by a subsequent indictment returned after a defendant makes a valid request and a showing of 90 days of continuous confinement. Rather than stating the Supreme Court Emergency Orders are unconstitutional (in violation of the Texas’s constitutional prohibition on suspension of statutes), the court merely holds that the Emergency Orders do not apply to Article 17.151. By their own terms, the Supreme Court Emergency Orders permitting extension of statutory deadlines pertain to “court proceedings,” but here no case had been filed and therefore there was no “court proceeding.” Thus, the trial court’s extension of the statutorily prescribed deadline was erroneous.

Comment. This “Motion to Modify Article 17.151 Deadline” was no doubt a widely circulated prosecutor template crafted shamelessly as a tactic on how to take advantage of the ongoing pandemic and executive orders. The spirit of these emergency orders is to thread the needle between much needed emergency action and preservation of our constitutional rights and systems of government. The State acknowledges in briefing that the Governor’s GA-13 Executive Order (prohibiting Article 17.151 release certain indigent people during the pandemic) is unconstitutional because statutory suspension is an authority reserved by the legislature under Article I Sec. 28 of the Texas Constitution. Then, in the same breath, the State asks the trial court to uphold the Supreme Court’s suspension of a statute. Someone might point out that the judiciary is also not the legislature.

4th District San Antonio

Ex parte Jarreau, No. 04-19-00704 (Tex. App.—San Antonio, Dec. 23, 2020)

Issues. Is Texas Health and Safety Code §§ 483.042(a) prohibiting distribution of dangerous drugs unconstitutionally vague on its face because  (1) it fails to provide fair notice of prohibited conduct, or (2) because it fails to provide definitive guidance for law enforcement, prosecutes, judges and juries?

Facts. The Texas Health and Safety Code defines “dangerous drug” as:

A device or drug that is unsafe for self-medication and that is not included in Schedules I through V or Penalty Groups 1 through 4 of Chapter 481 (Texas Controlled Substances Act). The term includes a device or drug that bears or is required to bear the legend:

(A) “Caution: federal law prohibits dispensing without prescription” or “Rx only” or another legend that complies with federal law; or

(B) “Caution: federal law restricts this drug to use by or on the order of a licensed veterinarian.”

Holding. (1) No. The Health and Safety Code defines a dangerous drug as “unsafe for self-medication.” This definition is sufficiently clear and specific enough for ordinary people to understand what conduct is prohibited under Section 483.042(a). “The void-for-vagueness doctrine . . . guarantees that ordinary people have fair notice of the conduct a statute proscribes.” Sessions v. Dimaya, 138 S.Ct. 1204, 1212 (2018). A defendant challenging facial vagueness must establish that no set of practical or reasonable circumstances exist under which the statute will be valid. According to the 1981 edition of Websters Third New International Dictionary, “safe” means “secure from threat of danger, harm, or loss;” not threatening danger;” “harmless;” free from contaminating qualities;” and “not liable to corrupt or injure.” Thus, “dangerous drugs” are devices or drugs that are likely to harm or injure, or expose to danger, a person who uses them to treat oneself. This definition excludes over-the-counter drugs commonly understood to be safe for self-medication and provides “fair notice” that the legislature’s intent to prohibit experimental or evolving recreational drugs yet to be categorized as controlled substances. The fact that countless substances could meet this definition is irrelevant, the Constitution only requires “fair notice” of prohibited conduct. To this end, “perfect clarity and precise guidance have never been required.” Ex parte Ellis, 309 S.W.3d 71, 86 (Tex. Crim. App. 2010).  (2) No. As an independent basis for facial validity a defendant may challenge the lack of definitive guidelines for law enforcement, prosecutors, judges, and juries. But the analysis here is the same. The word “unsafe” is sufficiently defined and the defendant fails to show the lack of objective criteria for enforcement of unlawful possession or distribution of a “dangerous drug” as that phrase is previously defined by the court.

Dissent (Rodriguez, J.). The “catchall” definition for “dangerous drug” is unconstitutionally vague on its face. A successful facial vagueness challenge need not establish that the statute always operates unconstitutionally in all circumstances. “The concept that a particular substance ‘unsafe’ for self-medication, i.e., able or likely to cause harm, may differ based on multiple factors including the physical health of the person using the drug, the type of drug, the method of use, the number of times the drug is used, and other various factors.” Further, the degree of harm necessary to satisfy the definition is unclear; it is unclear whether death is a required consequence, or serious bodily injury, or headache, or an upset stomach; must the harm be suffered instantaneously, within hours, or months later?

Comment. This appears to be a case of first impression. The gray area here, as in any facial vagueness challenge, is the degree to which plausible circumstances of conduct unquestionably meets the definition. The multitude of unknowns created by the definition, and cited by the dissent, could tip the balance in favor of unconstitutionality should this case be reviewed further by the Court of Criminal Appeals. 

Avalos v. State, No. 04-19-00192-CR (Tex. App.—San Antonio, Dec. 30, 2020)

Issue. In a capital murder without death penalty prosecution (mini-cap), does Texas Penal Code Section 12.31’s automatic imposition of a life sentence without possibility of parole violate the Eighth Amendment’s (and Texas’s equivalent) prohibition on cruel and unusual punishment as applied to an intellectually disabled defendant?

Facts. This opinion by an en banc Fourth Court of Appeals substitutes the previous panel opinion. Defendant, an intellectually disabled person, pleaded guilty to two counts of capital murder pursuant to a plea agreement in which the state agreed to a punishment of life imprisonment without possibility of parole (automatic in non-death capital murder conviction). The trial court did not consider defendant’s intellectual disability in imposing the agreed-upon and automatic sentence. Defendant appealed claiming that United States Supreme Court precedent prohibits automatic life-without-parole sentencing without a consideration by the trial court of the defendant’s intellectual disability.

Holding. Yes. In Atkins v. Virginia, 536 U.S. 304 (2002), the Supreme Court “barred the execution of intellectually disabled individual as violative of the prohibition on cruel and unusual punishment.” Such sentencing practices mismatch the culpability of a class of offenders and the severity of punishment. Their diminished capacity makes it less defensible to impose death penalty as retribution for their crime. Years later the Supreme Court would apply this same diminished capacity logic to find that an automatic life sentence in the case of a juvenile violated the Eighth Amendment by “run[ing] afoul of [the] requirement of individualized sentencing for defendants facing the most serious penalties.” Miller v. Alabama, 567 U.S. 460, 465 (2012). Based on Supreme Court precedent, it logically follows that a sentencer must not treat every intellectually disabled person as alike with other adults. Because Penal Code § 12.31(a)(2) automatically imposes life without parole, the statute is unconstitutional as applied to intellectually disabled persons.

Dissent (Chapa, J.).  There are differences between an intellectually disabled person and a juvenile – the en banc court erroneously extrapolates from Supreme Court precedent treatment of a juvenile in the Eighth Amendment context. The en banc majority opinion could lead to a lot of intellectually disabled inmates who are in prison getting a new sentencing hearing. Not just murderers but rapists too. Nonetheless, the legislature should reconsider the operation of Penal Code § 12.31(a)(2) to account for intellectual disability.

5th District Dallas

Smith v. State, No. 001-87850-2018 (Tex. App.—Dallas, Dec. 31, 2020)

Issue. (1) Does due process and the doctrine of abatement require an acquittal when the legislature decriminalizes conduct after criminal conduct occurred but before the disposition of a pending prosecution? (2) Where the trial court’s judgment reflects that the defendant was tried for two offenses together in a single trial but the record reflects that the trial court only arraigned the defendant and took the defendant’s plea on a single offense, has there been a trial on the un-referenced charge? 

Facts. On June 10, 2019, the Texas Legislature passed HB 1325, decriminalizing the possession of cannabis with a THC concentration of 0.3% or less and effectively establishing the requirement of laboratory testing in marijuana possession cases. Defendant was alleged to have possessed marijuana before the effective date of HB 1325, but his trial in August of 2019 occurred after the effective date. Despite the State not producing evidence of a THC concentration, the trial court convicted, finding that the partial decriminalization of marijuana possession was a change in the law intended to apply prospectively only and not retroactively to defendant’s conduct predating HB1325. Immediately prior to the State calling witnesses, the trial court announced a single cause number and admonished defendant on a single offense of possession of marijuana. The defendant pleaded “not guilty” to a single charge of possession of marijuana. However, the trial court’s judgment reflects that he was tried and convicted of the additional charge of unlawfully carrying a weapon.

Holding. (1) No. Under the Code Construction Act Tex. Gov’t Code 311.022, “statutes are presumed prospective in their operation unless expressly made retrospective” (Texas’ “general savings clause”) The legislature did not expressly provide for retroactive application in its adoption of HB 1325 which is an indication the legislature intended prospective-only application. Appellant’s due process arguments are unpersuasive because the intent of the legislature controls over what due process would require. The court declines to consider the legislature’s intended use and operation of the general savings clause and appellant’s argument and historical context showing its limited applicability to “technical abatement” or the “the accidental triggering of the abatement doctrine to conduct the legislature still intends to prohibit.” (2) No. A the following presumptions control: the defendant entered a plea when a judgment reflects a conviction, and a judgment is presumed to be correct. A defendant must show affirmative evidence to overcome this presumption. The fact that the record reflects a single plea to a single offense is not persuasive.

Comment. Because I am both the editor of the Significant Decisions Report and Appellant’s attorney in this matter, I present an excerpt from the commentary from the Texas Independent Bar Association Case of the Week summary. Most presciently, David Schulman writes “I fully expect there will be an en banc reconsideration, and thus, a significant possibility of a petition for discretionary review.” John Jasuta provides some historical context regarding the following argument advanced by counsel: if the Code Construction Act suggests retroactive application of sentencing reductions in all pending prosecutions, it should logically follow that completely extinguishing criminal responsibility should do the same. Jasuta notes that similar arguments were advanced in the 1970s when the legislature passed marijuana sentencing reduction and those incarcerated and imprisoned sought relief from their sentences. The Court of Criminal Appeals found that, at least as it pertains to post-conviction relief, to reduce a sentence would amount to a commutation, which is a power exclusively within the prerogative of the Governor.

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

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

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

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

10th District Waco

Holloway v. State, No. 10-18-00053-CR (Tex. App.—Waco, Dec. 9, 2020)

Issue. Did the trial court egregiously harm the defendant by instructing the jury in the abstract portion of the jury charge that the culpable mental state for endangering a child focuses upon the nature of the defendant’s conduct rather than the result of the defendant’s conduct (improperly framing the gravamen of the offense)?

Facts. Defendant was convicted of endangering a child. In the abstract portion of the jury charge, the trial court instructed the jury on the culpable mental states of “intentionally,” “knowingly,” and “recklessly” all “with respect to the nature of her conduct.”

Holding. No. The instruction was erroneous but not egregiously harmful (standard for unobjected-to jury charge error). An abstract portion of a charge includes general legal principles. The penal code couches culpable mental states as the mental state the defendant has with regard to either: (a) the nature of his conduct, or (b) the result of his conduct. A proper jury charge must correctly categorize the offense as such. “When specific acts are criminalized because of their very nature, the culpable mental state must apply to committing the act itself.” However, when “unspecified conduct that is criminalized because of its result,” the culpable mental state must apply to the result. Here, the nature and circumstances surrounding the conduct of child endangerment are inconsequential to the commission of the offense. The Penal code criminalizes unspecified conduct which causes a result – a child having been placed in danger. Thus, the conduct (whatever it may be) must be done with the required culpability to effect this result. The jury charge was in error, but it was not egregiously harmful. Generally, error in the abstract not present in the application paragraph is not egregiously harmful. Here the State actually argued the case as a result of conduct: “at the very minimum . . . [she] ought to be aware that there is a risk there.”

Comment. The courts of appeal are split on the issue of whether endangering a child is a “nature of conduct” or “result of conduct” offense. A secondary issue in this case, which counsel was wise to tap, is a growing sentiment that the doctrine of factual sufficiency should be revived under the Texas Constitution. factual sufficiency review, as opposed to a legal sufficiency review, requires a reviewing court to consider record evidence in a neutral light (rather than one most favorable to the verdict). In doing so, the court evaluates the weight of the evidence and reverses when it is “so obviously weak as to undermine confidence in the jury’s determination.” The 10th Court declined this invitation, but appellate attorneys should continue to make the argument.

11th District Eastland

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

12th District Tyler

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

13th District Corpus Christi/Edinburg

The Thirteenth District Court of Appeals in Corpus Christi/Edinburg did not hand down any significant or published opinions since the last Significant Decisions Report.

14th District Houston

State v. Baldwin, No. 14-19-00154-CR (Tex. Crim. App.—Houston [14th Dist], Dec 10, 2020)(En Banc)

Issue. (1) when witnesses describe a murder suspect as a Black male who drove a white four-door sedan, does being Black and driving a white four-door sedan in the neighborhood the day prior to the murder establish probable cause? (2) Does the bald assumption that co-conspiring criminals discuss their crimes on their cellphones establish probable cause to seize and search a suspect’s cellphone?

Facts. The 14th District Court of Appeals, en banc, reconsiders this case previously summarized in the September Edition of the Significant Decisions Report. Justice Bourliot, the previous dissenter in the panel decision, writes on behalf of the Court. Two masked gunmen killed a homeowner during the course of a robbery and fled the scene. A witness described the suspects as two Black men in a white four-door sedan. Investigators acquired information about two Black men who were in and out of the neighborhood the day before in a white four-door sedan as well as the license plate number of their vehicle. Four days later, after tracking down the owner/operator/defendant, officers conducted a pretextual traffic stop for the purpose of investigating the murder. The defendant consented to a search of his vehicle but not his cellphone. Officers obtained a search warrant for the phone through a probable cause affidavit attempting to tie the defendant to the crime by his race and the vehicle description and attempting to establish the cellphone as evidence by articulating in the abstract that cellphones are used generally in the commission of crimes.

Holding. (1) No (plurality). Here the affidavit contained no particularized facts connecting the defendant or his cellphone to the commission of the murder—at most the affidavit allows for a conclusion that the defendant was in the neighborhood the day before the murder and he had a cellphone on him five days later. As for the defendant’s presence in the neighborhood, “It would strain credulity to conclude in a county with nearly five million people that evidence of a crime probably would be found in someone’s car just because he was in the neighborhood on the day before the offense in a car the same color as the one driven by a suspect who also happened to be Black.” “The dissent takes issue with the fact that we require a description of the vehicle more specific than white, four-door sedan to support probable cause. But that is exactly the point. There is nothing distinctive that would tie Baldwin’s white car to the one seen at the offense.” (2) No. The “lack of nexus between the sedan and the crime . . . lays a predicate to determine whether there was probable cause to search the cellphone.” Cellphones contain the “most intimate details of a person’s individual life.” A link between cell phone usage and the commission of a crime must be established. Generic boilerplate language about what might be on the phone or how suspects might have used the phone during the commission of the crime does not satisfy the requirement of probable cause. “Under the dissent’s reasoning, any time more than one person is involved in a crime, police officers would have probable cause to search a cellphone.”

Concurrence (Zimmerer, J.). Agrees with the majority opinion as it pertains to a lack of nexus between the cellphone and the commission of the offense. Would find a sufficient nexus between the defendant’s vehicle and the commission of the offense.

Dissent (Christopher, J.). There is a sufficient nexus between the defendant’s vehicle and the commission of the crime. The majority fails to give deference to the considerable weight of evidence stablishing that a white four-door sedan was seen driven by Black men the day before the murder and that a witness to the murder saw Black men in a white four-door sedan fleeing. The matching descriptions of: race, number of occupants, color of car, number of doors, and time proximity when combined were sufficient facts from which to find probable cause that the individuals seen fleeing the scene were the same individuals seen in the neighborhood the day before. There is a sufficient nexus between defendant’s cellphone and the commission of the crime. Although the warrant affidavit contained nothing but boilerplate generalizations about the use of cellphones during the commission of crimes, the affiant’s boilerplate belief that “it is common for suspects to communicate about their plans via text messaging, phone calls, or through other communication applications” is crucial. This boilerplate statement, combined with the fact that the offense was described as committed by co-conspirators, creates the probable cause assumption that evidence would be discovered on the cellphone.

Comment. With courts of appeal across the State flipping partisanship, many eyes are on the impact. Do divided courts result in red-team v. blue-team? Can they find common ground? Can diversity of opinion result in persuasion against a one’s initial instinct? Here, the Fourteenth Court split hard among party lines. Don’t jump the gun and assume a trend from a single example. But this breakdown made me think about the recent Dallas Fifth Court of Appeals en banc opinion in Ex parte Ferris, No. 05-19-00835 (Tex. App. Dallas, Oct. 2, 2020)(en banc). In Ferris, Fifth Court split not only among themselves, but also from sister jurisdictions on an issue pertaining to expunction law (DPS’s claim that “same transaction” bar to expunction is a concept of near-infinite possibilities). The Ferris split was a 6-plus-1 (Dem-Rep) majority opinion and a 4-plus-2 (Rep-Dem) minority opinion.

State v. Chen, No. 14-19-00372-CR (Tex. App.—Houston [14th Dist.], Dec. 31, 2020)

Issue. Is Texas’s electronic harassment statute facially unconstitutional under the First Amendment?

Facts. After the State charged the defendant with electronic harassment, the trial court granted the defendant’s motion to quash and writ of habeas corpus, finding the applicable provision of the Texas electronic harassment statute facially unconstitutional under the First Amendment. The applicable provision states: 

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another person, the person:

(7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.

(b) In this section:

(1) “Electronic communication” means a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. The term includes:

(A) a communication initiated through the use of electronic mail, instant message, network call, a cellular or other type of telephone, a computer, a camera, text message, a social media platform or application, an Internet website, any other Internet-based communication tool, or facsimile machine; and

(B) a communication made to a pager.

Holding. Yes. The first step in analyzing a First Amendment facial validity challenge is to determine whether the statute implicates a substantial amount of protected speech (communication and receipt of ideas, opinions, and information). “The State may lawfully proscribe communicative conduct that invades the substantial privacy interests of another in an essentially intolerable way.” Citing Cohen v. California, 403 U.S. 15, 21 (1971). The Court of Criminal Appeals has rejected a First Amendment facial challenge to a similarly phrased prohibition of telephonic harassment Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010). In Scott, the Court of Criminal Appeals determined that such telephone calls were “essentially noncommunicative” under the First Amendment because the “sole intent” of the defendant who makes such calls is to inflict emotional distress and thus “invade[s] a substantial privacy interest of another (the victim) in an essentially intolerable manner.” Scott v. State, 322 S.W.3d 662, 670 (Tex. Crim. App. 2010). The following courts of appeal have applied the Scott rationale to reach the same outcome as it pertains to the instant electronic harassment provision: Beaumont, Austin, San Antonio, Amarillo, El Paso, Eastland, Corpus Christi. However, some courts and justices believe that Scott has been abrogated. In particular, the Fort Worth Court of Appeals recognizes that the Court of Criminal Appeals refused to apply the rationale of Scott to a materially identical version of the electronic harassment statute in Wilson v. State. 448 S.W.3d 418 (Tex. Crim. App. 2014). Contrary to the holding in Scott the Court of Criminal Appeals in Wilson recognizes that a person communicating electronically can have a dual intent (to communicate protected ideas and opinions while also intending to harass, annoy, alarm, etc.). There is a significance to the fact that a victim of telephonic harassment is a captive audience which makes telephonic harassment “inherently personal and invasive.” The phenomenon of a captive audience “loses its force” in the context of electronic communications. The prohibition of electronic communication “encompasses a far broader array of activities,” many of which fall outside of the context of a captive audience and require affirmative actions by the user to access such content. Examples include clicking on an email or going to another’s Facebook page to seek out the harassing content. With these considerations “we conclude that the electronic-communications-harassment statute goes well beyond a lawful proscription of intolerably invasive conduct and instead reaches a substantial amount of speech protected by the First Amendment.” Because the statute is “content-neutral” the court does not presume invalidity and analyzes the prohibition with a less-than-strict-scrutiny approach. However, because a substantial number of the statute’s applications are unconstitutional when compared to its “plainly legitimate sweep” the electronic harassment statute is facially overbroad. The court agrees with Judge Keller in describing the breadth of prohibitions as “breathtaking” (Facebook posts, message-board posts, blog posts, blog comments, newspaper article comments, any of which are merely criticism of another person constitute a crime). This overbreadth chills legitimate speech and is unconstitutional.

Dissent (Zimmerer, J.). no opinion.

Comment. I will not admit that I have written more than one Significant Decisions Report commentary that was intended to alarm anyone or that was written in a manner critical of the law, but if I did, it appears I would be subject to arrest in Beaumont, Austin, San Antonio, Amarillo, El Paso, Eastland, and Corpus Christi. If you are receiving this communication in those jurisdictions, this message will self-destruct in five seconds. 

Warren v. State, No. 14-19-00589-CR (Tex. App.—Houston [14th Dist.], Dec. 31, 2020)

Issue. Did the State fail to disprove defendant-police-officer’s justification defense beyond a reasonable doubt when both his partner and a baton instructor testified he was not justified in continuing to beat a man with a baton after he had fallen to the ground (from the baton beating)?

Facts. Defendant was an officer who was convicted of assaulting an individual for sleeping on a bench at the METRO light rail platform. According to the complainant, Defendant approached him, defendant stated “n***a, didn’t I tell you to move around?” when complainant stood up he said “say what?” and defendant beat him with “an antenna” while saying “huh, huh, huh, huh.” Two videos were admitted into evidence, one roughly depicts these events. Defendant’s partner testified that they previously encountered the complainant during the same day, and he had been aggressive to the point of requiring him to draw a taser. According to defendant’s partner, complainant was fake sleeping and would not get up after being “tapped” “excessively.” Defendant’s partner believed the complainant was aggressive in the way he stood up from the bench but became compliant after a single strike with a baton. After complainant fell back onto the bench, Defendant continued to strike him with the baton. When complainant fell to the ground from the bench, Defendant continued to beat him with a baton. Eventually defendant’s partner had to tug him to get him to stop striking the complainant. Defendant repositioned himself and beat the complainant a little bit more. According to Defendant’s partner, none of the strikes after the first two were necessary and defendant’s use of force was excessive. The State called a METRO Police Department “baton instructor” who reviewed video footage and testified that the continued beating of the complainant as he fell to the ground was improper. Nonetheless, defendant argued in the trial court that he was justified as a peace officer to strike complainant in the manner he did.

Holding Appellant argues that that the State did not prove his personal belief regarding the necessity of force. However, Penal Code § 9.41(a) requires a consideration of a “reasonable belief” which is a belief of an ordinary and prudent person in the circumstances. The record contains ample evidence that defendant exceeded the amount of force that was reasonably necessary to assist in making an arrest.

Comment. There is such thing as a baton instructor? Interesting. Don’t do a google image search if you don’t like to see people wearing khakis and black tees in a mixture of gleeful and menacing poses while holding batons.

December 2020 SDR – Voice for the Defense Vol. 49, No. 10

Voice for the Defense Volume 49, No. 10 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

Check out In re Ogg, below. A big win by Mark Thiessen and Carmen Roe. It is the case to use if you need to get a case to trial during the pandemic and the State won’t waive jury. (see also Ex Parte Sheffield, No. 07-20-00216-CR (Tex. App.—Amarillo, Sep. 17, 2020). DPS was dealt a blow in their pet project to deny expunctions to people who have an old conviction for a similar non-expunction-eligible offense in Ex Parte Ferris. And cops are hiding in bushes on horses watching people do unspeakable things.

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.

United States Supreme Court

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

Fifth Circuit

Anaya v. Lumpkin, 976 F.3d 545 (5th Cir. 2020)

Issue. Did counsel render ineffective assistance by failing to advise his client that, in asserting self-defense, the jury could consider failure to retreat because defendant was a convicted felon in possession of a firearm at the time he shot and killed the victim? Did the Court of Criminal Appeals unreasonably apply the federal standard for prejudice?

Facts. Defendant was charged with murder and aggravated assault. He rejected a plea bargain and argued self-defense at trial. His counsel failed to inform him that due to his previous felony conviction his possession of a firearm during the offense meant he was committing a felony and that the jury could accordingly reject his self-defense claim by a finding that he failed to retreat. After being sentenced to 99 years, defendant argued that he would have entered a plea bargain had he been accurately informed of the law.

Holding. Yes. Counsel’s performance was deficient under the Strickland v. Washington standard. 466 U.S. 668 (1984). The defendant “could not fully understand the risks of rejecting the State’s plea offer because he didn’t know that his status as a felon in possession of a weapon would move the goalpost at trial.” No. In a federal habeas writ challenging a federal issue previously considered by a state court, the state court is afforded great deference. The standard for prejudice here requires evidence: (1) that the defendant would have accepted the plea offer, (2) it would have been entered and accepted by the trial court prior to the state withdrawing, and (3) the end result would have been less incarceration. Here the evidentiary standard for satisfying the second prong is sufficiently murky that “fairminded jurists could disagree” about the nature and quality of evidence that a habeas litigant must show.

United States v. Ochoa, 977 F.3d 354 (5th Cir. 2020)

Issue. Can a defendant demand his federal sentence run concurrently with a state sentence without establishing both are premised on the same relevant conduct?

Facts. Defendant was caught cashing checks that he stole from the mail. He pleaded guilty to one count of stolen mail. Defendant’s Pre-Sentence Report (“PSR”) failed to reflect pending state charges out of multiple counties. Defendant objected claiming that the pending charges were based on relevant conduct to his federal charge and that they must be identified so that his time would run concurrent pursuant to United States Sentencing Guideline (USSG) § 5G1.3(c). The government indicated it did not object to concurrent sentencing but would defer to the US Probation Office determination on the matter. US Probation did little to clear things up. At sentencing the defendant asked for concurrent sentencing and the trial court indicated that it would have to be up to the counties where the state cases are pending. The trial court’s failure to specifically order concurrent sentencing resulted in potential consecutive sentencing.

Holding. No. While USSG § 5G1.3(c) requires federal sentences to run concurrently to anticipated state sentences that are based on the same relevant conduct, it is incumbent on the defendant to show the offenses involve the same relevant conduct. Here the defendant did not. 

Comment. The court does note that concurrent sentencing is not a foregone conclusion in this case – a Texas judge may order consecutive sentencing when a defendant is convicted of multiple sentences under Texas Code of Criminal Procedure article 42.08(a).

Texas Court of Criminal Appeals

Ex parte Chanthakoummane, WR-78, 107-2 (Tex. Crim. App. 2020)

Issue. Has the science pertaining to forensic hypnosis sufficiently changed over time that it now warrants habeas relief because new discrediting scientific evidence was previously unavailable at trial? Has the science pertaining to bitemark comparison sufficiently changed over time that it now warrants habeas relief because new discrediting scientific evidence was previously unavailable at trial? Does the combination of discredited hypnosis evidence and erroneous bitemark evidence warrant habeas relief on the basis of false evidence?  

Facts. Applicant was convicted and is now pending execution for a capital murder committed in 2007. Evidence presented at trial included an eyewitness identification following a hypnosis session with a Texas Ranger and “scientific” comparisons of bitemark evidence. Applicant presented evidence of new skepticism relating to forensic hypnosis and testimony showing that the scientific community has now disavowed individualized bitemark pattern matching. The State presented evidence showing that Applicant’s criticisms of forensic hypnosis were not new and have existed since the 1980s, that, that the pre-hypnosis and post-hypnosis accounts remained consistent, and that it was ultimately DNA evidence which overwhelmingly proved the State’s case.

Holding. No. The evidence indicated that the same myths and risks associated with using hypnosis for memory recall have been well known in the scientific field since the 1980s. Maybe. Bitemark evidence is now discredited scientifically, but here the bitemark evidence only played a minimal role in conviction.

Dissent (Newell, J.) (joined by Richardson, J. and Walker, J.) Applicant’s bitemark claims merit further consideration. Although the State’s expert indicates that the risks associated with forensic hypnosis have been known for some time, the risks associated with eyewitness identification have become more apparent. Eyewitness misidentification is the leading cause of wrongful convictions.

Gonzalez v. State, No. PD-0572-19 (Tex. Crim. App. 2020)

Issue. Is a defendant egregiously harmed by inclusion in the jury charge of a statutory culpable mental state not alleged in an indictment for aggravated assault on a public servant?

Facts. The indictment charged the defendant with intentionally or knowingly causing bodily injury on a public servant. It omitted recklessness as a possible culpable mental state. Despite this omission, the trial court instructed the jury on reckless conduct as though it had been included in the indictment. 

Holding. No. This amounts to an error in formatting the jury charge which did not egregiously harm the defendant. It is error to include an uncharged reckless culpable mental state in the jury instruction section for the indicted offense. Reed v. State, 117 S.W.3d 260 (Tex. Crim. App. 2003). However, it remains appropriate to submit an uncharged reckless culpable mental state as a separate lesser-included-offense instruction. Hicks v. State, 372 S.W.3d 649 (Tex. Crim. App. 2012)(reckless aggravated assault is lesser included of knowing/intentional aggravated assault despite same punishment). Recklessness was supported by the record and the conduct of parties showed they anticipated the jury’s consideration of recklessness.

Romano v. State, No. PD-1289-19 (Tex. Crim. App. 2020)

Issue. Is the element of recklessness to another’s presence sufficiently established in an indecent exposure case when a person masturbates in a Houston parking lot in broad daylight but when that parking lot is empty, there appears to be nobody around, and after taking some measures to conceal his activity.

Facts. Officers on horseback concealed themselves partially behind trees and bushes to look for suspicious activity. One officer witnessed defendant park his vehicle in an empty parking lot, open his passenger door, walk to the back of his vehicle, pull his shorts down, and stroke his penis with his hand. The officers emerged on their stallions and confronted appellant who said he was urinating. No other person witnessed defendant’s conduct. The court of appeals found this evidence insufficient to establish that defendant was “reckless about whether another is present who will be offended or alarmed by his act” because he took measures to conceal his activity and to do it in a secluded area.

Holding. Defendant’s conduct was risky. He masturbated in a public park in Houston. The parking lot was “open and visible to passing road traffic, bicyclists, pedestrians, anyone using the public restroom facilities or picnic tables immediately nearby.” The court of appeals analogized defendant’s conduct to the non-reckless conduct of performing a sexual act after driving deep into the woods. Hines v. State, 906 S.W.2d 518 (Tex. Crim. App. 1995). But, it is more appropriately analogized to the reckless conduct of masturbating in a dressing-room where a three-or-four inch gap in the curtain. McGee v. State, 804 S.W.2d 546 (Tex. App.—Houston [14th Dist.] 1991). There is no ordinary standard of care for masturbating in a public park. 

Comment.  I don’t know what to do with this knowledge.

1st District Houston

State of Texas v. Zena Collins Stephens, No. 01-19-00209-CR (Tex. App.—Houston [1st Dist.] Oct. 6, 2020)

Issue. Does the authority of the Attorney General to prosecute “election laws” extend to prosecution of laws outside of the Election Code? Does the statute which grants the Attorney General authority to prosecute election laws violate the Texas Constitution’s Separation of Powers?

Facts. The original opinion in this case was issued in July—the First Court of Appeals reversed the trial court’s motion to quash the indictment with dissenting opinion by Justice Goodman. This month the First Court of Appeals rejected a request for en banc rehearing triggering another dissenting opinion by Justice Goodman. The original opinion involved prosecution of Jefferson County Sheriff Zena Stephens by the Texas Attorney General. The attorney general alleges that the sheriff tampered with a governmental record and to accepted a cash contribution in excess of $100. The sheriff purportedly accepted a $1,000 cash donation and a $5,000 cash donation, then filed a campaign finance report indicating a $5,000 cash contribution in the section of the standard report designated for political contributions of $50 or less. Stephens filed a motion to quash the Penal Code prosecution (tampering with government record) challenging the attorney general’s authority to prosecute non-election code violations under the statute. The sheriff also challenged the constitutionality of the attorney general’s authority under Texas Constitution’s separation of powers—he belonging to the executive branch and the authority to prosecute to the judicial.

Holding. No—the phrase “election laws” doesn’t mean the laws in the Election Code. It means anything that references elections in any way. “Election records” are specifically mentioned by the tampering statute. This makes tampering with a governmental record an election law. No—the Texas Constitution provides the attorney general with “other authorities prescribed by law.” The fact that the offices of district and county attorneys—offices under the judicial branch—are given the authority to “prosecute the pleas of the state in criminal cases” is immaterial.

Dissent (Goodman, J.) The phrase “perform other duties prescribed by law” cited by the majority is actually a sentence containing a list of attorney general powers “[h]e shall . . . seek judicial forfeiture of [corporate charters] . . . give legal advice in writing . . . perform such other duties as may be required by law..” The cannon of statutory construction “ejusdem generis” requires courts to interpret general words in a list to be of the same kind, class, or nature. The majority instead interprets “perform such other duties” clause in isolation. The founders of the 1876 Texas Constitution deliberately separated judicial/prosecutorial authority from the executive branch in response to “despotic control wielded by the Reconstruction governor.” Justice Goodman again dissents to the rejection of en banc review.

Comment. A Scalia-esque dissent from a Democratic justice. Justice Goodman writes an opinion that may gain traction. Sheriff Stephens has moved for an extension of time to file a petition for discretionary review. 

Lynch v. State, No. 01-17-00668-CR (Tex. App.—Houston [1st Dist.] Oct. 13, 2020)

Issue. Under Texas Rule of Evidence 404(b)(permissible uses of prior crimes and bad acts) may the state introduce mere pen packets as probative of defendant’s criminal intent without supporting testimony or context?

Facts. Defendant was charged with possession with intent to deliver 4-200g of cocaine. At trial, an officer testified to the execution of a search warrant at the defendant’s home where officers discovered 7g of cocaine, baggies, and a knife. The officer testified that he encountered four occupants inside the house, including the defendant and his girlfriend. The girlfriend told officers that the cocaine belonged to her. Officers informed girlfriend that claiming the drugs would not prevent charges against the defendant, so she withdrew her confession. At trial, the girlfriend testified that the cocaine was hers, the defendant would not have approved of her cocaine use, and that officers intimidated her into withdrawing her previous confession. The trial court allowed the State to introduce two prior convictions of possession with intent to deliver to rebut defense testimony which showed a lack of criminal intent. Defendant raised several objections, but importantly: a 403 objection that the probative value was significantly outweighed by unfair prejudice.

Holding. No. While 404(b) permits the use of prior convictions to prove criminal intent, there must be some evidence showing similar circumstances between the prior and the instant offense. Mere evidence that the offenses are the “same type of crime” is not enough. Ford v. State, 484 S.W.2d 727, 730 (Tex. Crim. App. 1972). These pen packets merely showed that the defendant intended to deliver cocaine in the instant case because he was a person who committed the crime before. This offers not only low probative value, it is also impermissible as probative evidence under Texas Rule of Evidence 404(b). Accordingly, the unfair prejudice—that the jury will “draw an impermissible character conformity inference” outweighs. See Gigilioblanco v. State, 210 S.W.3d 637 (403 analysis requires consideration of factors: (1) tendency to suggest decision on improper basis, (2) tendency to confuse or distract, (3) tendency to be given undue weight, and (4) potential for undue delay in presentation).

Comment. Appellate lawyer note: this case also had a citation to the United States Supreme Court on harm analysis which I haven’t seen before. It contained language which I will likely cite to in the future. “The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error.” Kotteakos v. United States, 328 U.S. 750, 765 (1946). 74 years late to the ballgame, but better late than never.

Enns v. State, No. 01-19-00234-CR (Tex. App.—Houston [1st Dist.] Oct. 15, 2020)

Issues. Is an accusation by an unnamed informant alleging drug distribution occurring at a specific location sufficiently corroborated by observations of men departing the location in a vehicle and driving around for no apparent reason on multiple occasions, then ultimately loading packages into the trunk and leaving? Is pulling onto the shoulder when an officer approaches quickly from the rear a violation of the Transportation Code which permits driving on the shoulder to allow a faster vehicle to pass? Is a defendant’s testimony that another person pulled out a gun and demanded he commit a crime sufficient to invoke a necessity instruction?

Facts. A confidential informant provided information about an anticipated large drug shipment. The informant indicated that the shipment would stop at distribution point—a home in Waller County—and would depart for Miami and Chicago. Law enforcement conducted ground and helicopter surveillance. Helicopter officers described the premises, the behavior of two men repeatedly entering and exiting a shed, and several “heat runs” (suspects driving around to see if they are being followed) in a white Crown Victoria with dark tints. When the ground surveillance officer learned the suspects loaded the vehicle with packages and left, he relayed information to a standby officer. The standby officer conducted a traffic stop based on the previous surveillance and because the vehicle crossed the “fog line” without apparent cause. During the stop, the standby officer located 2.4 kilograms of methamphetamine in a secret trunk compartment. The defendant challenged the reasonable suspicion for the traffic stop and argued against the purported traffic infraction and sufficiency of the confidential informant tip. He also testified at trial that the other individual in the vehicle pulled out a gun and threatened to kill him if he did not help deliver the drugs.

Holding. Yes. The conduct of the defendant on the suspected property sufficiently corroborated the informant’s tip. It is not necessary to establish informant reliability when the behavior observed is corroborative of the informant tip. Yes. Although there was an indication that defendant might have been pulling onto the shoulder to allow the officer to pass, there were some indications that the officer was not trying to pass (no blinker, not coming particularly close to defendant’s vehicle). Officers don’t have to prove the traffic violation, merely show reasonable suspicion that one occurred. No. Necessity is a confession and avoidance defense. As such, the defendant must admit every element of the offense, and then offer some evidence that he committed the offense to avoid a greater harm. Here defendant admitted all of the alleged conduct, but stated it was not his intention to deliver the methamphetamine. This is an insufficient confession to raise a confession and avoidance defense.

Concurrence (Goodman, J.) While the corroborated informant information is sufficient reasonable suspicion to detain, the purported traffic infraction was not. It was incumbent on the State to show that pulling onto the shoulder was not done for a permissible purpose, and the majority speculates without evidence.

Comment. This opinion on confession and avoidance moves in the opposite direction of a trend by the Court of Criminal Appeals to either eliminate the confession and avoidance doctrine or at least construe evidence liberally in satisfaction. See Ebicam v. State, No. PD-1199-18 at *2 (Tex. Crim. App. 2020). The First Court’s opinion seems to be in near direct contradiction with Juarez v. State, where the Court of Criminal Appeals indicates that evidence establishing the confession and avoidance can come from any source. In Juaraz despite the defendant denying that he acted intentionally, he admitted conduct from which a juror conclude he acted intentionally. 308 S.W.3d 398 (Tex. Crim. App. 2010).

2nd District Fort Worth

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

3rd District Austin

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

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

Ex Parte Ferris, No. 05-19-00835 (Tex. App. Dallas, Oct. 2, 2020)(en banc)

Issue. A person otherwise eligible for expunction shall be denied when the otherwise eligible offense arose out of the “same criminal episode” as another ineligible offense (i.e. all cases in same criminal episode must be expunction-eligible). Does the definition of “same criminal episode” and its inclusion of the phrase “the repeated commission of the same or similar offenses” require denial of an expunction when a person gets two DWIs 3 years apart and is acquitted of one of them but not the other?

Facts. Petitioner was convicted of DWI in 2015 and served 20 days in jail. Subsequently in 2018 Petitioner was arrested for DWI and was acquitted of that charge in 2019. Petitioner filed a petition for expunction upon his 2018 acquittal. The district attorney agreed to eligibility and the trial court entered an agreed order of expunction. After the order of expunction was signed the Texas Department of Public Safety filed a motion for new trial arguing that the 2018 arrest is ineligible because it was part of the same criminal episode as the 2014 DWI arrest. The trial court rejected this argument:

All right. You’re going to have to help me out here, Ms. Sicola. I’ve worked in the criminal justice system for 35 years as a prosecutor and as a judge. I’m board certified in criminal law, just so you know who you’re talking to. I have never encountered this situation before. Okay? I’ve had, in my career as a prosecutor, guys who drove up and down the highway robbing people on both sides of the highway. Some on the same day. Some, like, the day after. I’ve prosecuted more sex offenders for multiple offenses against the same victim as I can count. I’ve presided over those cases. I’ve never seen a case where, after the first case is disposed of via a plea and the second crime occurs after the first case is disposed of, that that is described or included within the phrase “criminal episode.”

DPS appealed. The decision was affirmed by a panel of the Fifth Court of Appeals. DPS requested the instant en banc review.

Holding. No. Two DWIs occurring years apart are not part of the “same criminal episode” as defined by Texas Penal Code § 3.01. A contrary interpretation “removes analysis of the statute from a ‘cohesive, contextual whole.’” Chapter 3 addresses multiple prosecutions: when offenses may be consolidated, when they may be severed, guidelines for concurrent and consecutive sentencing.  The 2014 DWI arrest has been adjudicated, its sentenced severed, the limitations period expired. The 2014 arrest would be ineligible for “same criminal episode” treatment under any provision of Chapter 3—the two offenses share no common facts, are impossible to prosecute under joinder, cannot share concurrent sentencing. The First District Court of Appeals contrary conclusion under similar facts is wrong.

Dissent (Evans, J.). Section 3.01’s definition of same criminal episode, in particular “the repeated commission of the same or similar offenses” should be read as stated without reference to the statutory context. The concept of same criminal episode is unconstrained by the timing of things. An acquitted person is not necessarily innocent and the legislature apparently deemed them not deserving if they have been previously convicted. Now citizens of six Texas counties will get expunctions that those in 248 others do not receive.

Comment. Historically, in the context of expunctions, courts have favored the bureaucratic concerns of DPS over the rights (or privileges) granted by Article 55 of the Code of Criminal Procedure. This strong rejection of the bureaucratic interpretation bucks this trend 12-1. Nearly every case on expunction law pays homage to a notion that the expunction statute is designed to protect wrongfully accused people. Is it, though? Expunctions are available to people who plead guilty to Class C offenses and receive deferred adjudication, who admit guilt and complete a veterans treatment program, who admit guilt and complete a mental health court program, who admit guilt and complete a pretrial diversion program.

Keaton v. State, No. 05-19-01369 (Tex. App.—Dallas, Oct. 9, 2020)

Issue. When a defendant makes an unconditional threat in the context of a series of conditional threats, and ultimately does commit an assault against a peace officer is evidence sufficient to support a conviction for retaliation by threat (against a peace officer)

Facts. Defendant was arrested for public intoxication. The arrest turned physical—the defendant was taken to the ground. During this, the defendant lobbed verbal insults and challenged the arresting officer to a fight making comments such as “I’d fucking throw you off me if you weren’t a cop” and “[t]ake that badge off, and then let’s fucking fight.” The conditional language escalated to unconditional with the statement “I’ll beat your fucking teeth in.” Then the defendant then kicked the officer in the wrist.

Holding. Yes. Although there were several conditional threats indicating that the defendant wanted to fight the officer only if the officer stepped outside of his role as a peace officer, the situation escalated, the defendant changed his threats from conditional to unconditional and ultimately did commit an assault.

Harrell v. State, No. 05-19-00760 (Tex. App.—Dallas, Oct. 12, 2020)

Issue. Does the admission of autopsy findings and report through a surrogate medical examiner who did not perform the autopsy violate of the Confrontation Clause?

Facts. Defendant was convicted of murder with considerable supporting evidence, including numerous stories provided by the defendant ranging from tangential involvement in the murder to mere presence during the murder and most involving him concealing the body after the murder. The medical examiner who performed the autopsy was unavailable. A medical examiner who did not perform the autopsy testified at trial that the victim suffered two gunshot wounds and multiple skull fractures from blunt-force trauma and that the death was a homicide.

Holding. Yes, but not reversible here. While autopsy findings are testimonial and their admission through a surrogate medical examiner typically violates the Confrontation Clause, when a medical examiner conducts an independent review of another’s findings and renders independent conclusions, there is no Confrontation Clause violation. The admission of the autopsy report was a violation of the Confrontation Clause but was harmless considering the weight of evidence proving the same conclusion.

Comment. This thing was over when the defendant was found driving the victim’s truck, loaded with the victim’s belongings, in possession of the victim’s ID, the victim’s insurance card, the victim’s social security card, the victim’s credit and debit cards, and the victim’s cell phone, and the murder weapon. He also gave four different stories about his involvement in the victim’s death—most of them ending with covering the body with a shower curtain and concealing it. Under different facts the Confrontation Clause issue raised here could have resulted in a reversal as could have the lesser Brady issue raised (resolved against the defendant for similar reasons as the Confrontation Clause argument).

Consuelo v. State, No. 05-19-01385-CR (Tex. App.—Dallas, Oct. 27, 2020)

Issue. Under HIPAA, is an expectation of privacy violated when medical personnel disclose blood alcohol content to law enforcement so they may obtain a warrant or grand jury subpoena?

Facts. Defendant was involved in a motor vehicle accident, the people in the car he hit were injured and defendant was rendered unconscious. Defendant was taken to the hospital and through receiving medical care, his blood was drawn. Hospital personnel disclosed to officers that an analysis of that blood revealed lots of drugs. Law enforcement obtained a warrant for defendant’s blood and used this revelation by hospital personnel as the only evidence of intoxication. The State later acquired defendant’s medical records via grand jury subpoena. Defendant filed a motion to suppress the blood testing results arguing that the hospital personnel violated HIPAA and that the grand jury subpoena was tainted by the wrongful HIPAA disclosure.

Holding. No. HIPAA specifically permits a disclosure to alert law enforcement to evidence of the commission and nature of a crime, and specifically permits disclosure via grand jury subpoena.

Comment. 2020 will be remembered by all as the year of hospital blood evidence (kidding). Last month we looked Crider v. State discussing when the law must authorize both the acquisition of blood from the hospital and the subsequent testing. 607 S.W.3d 305 (Tex. Crim. App. 2020). When the blood is in the possession of the hospital there are two discrete expectations of privacy vis-à-vis the government: that the government not take the blood from the hospital absent a warrant, and that the government not test that blood absent a warrant. But when hospital personnel learn about the blood alcohol content and choose to disclose that information voluntarily or via grand jury subpoena, such disclosure is authorized by HIPAA and therefore no reasonable person receiving medical treatment would expect confidentiality. In these complicated scenarios, I try to analogize searches and expectations of privacy to things that happen in a home – there is no expectation that a house guest keep the drugs they discovered in your home private, but there is an expectation that the police not come in un-invited without a warrant and discover it for themselves.

6th District Texarkana

Johnson v. State, No. 06-19-00222-CR (Tex. Crim. App.—Texarkana, Oct. 8, 2020)(not designated for publication)

Issue. In a prosecution for aggravated sexual assault of a child, is the probative value of cell phone extracted data containing hundreds of images and search results for pornographic websites depicting young looking adult children or adults who look young but who are not underage substantially outweighed by unfair prejudice?

Facts. Defendant is accused of aggravated sexual assault of a young child. In addition to the testimony of the child-victim and her siblings, the trial court admitted cell phone extraction data of 500 pornographic images and a web search history that contained 400 search results for pornographic websites. The detective testified that some of the images appeared to be “very young looking adult children,” but no underage children. The State argued the cell phone evidence “showed defendants predilection for younger looking girls and pornography” and to corroborate the victim’s testimony that the defendant showed her videos of people “humping” on his phone. 

Holding. Yes. The evidence—all of which was adult pornography—was inflammatory and nearly irrelevant to the issues the jury needed to decide. The court considered the Gigliobianco factors when determining error under Tex. R. Evid. 403: (1) probative force of evidence, (2) proponent’s need, (3) tendency to suggest decision on improper basis, (4) tendency to confuse or distract, (5) tendency for undue weight, (6) likelihood presentation of evidence will consume undue time. Gigliobianco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006). The State’s alleged predilection for younger looking girls is mere character conformity evidence prohibited by Tex. R. Evid. 404(a)(1). The probative value in corroborating what the victim claims to have seen on defendant’s phone is low—there was no evidence to suggest any of these images were on the defendant’s phone when she claimed to have viewed it. The websites all involve adult pornography—all depict post-pubescent women. Even if the images resembled teenagers, none involved young children like the alleged victim. The images and websites had little probative value to show that the sexual assaults occurred. The State’s need was slight, the tendency to suggest decision on improper basis or distract the jury significant.

Comment. I hate when the touchstone case in a particular area is difficult to spell and pronounce. Gigliobianco.

Laws v. State, No. 06-19-00221-CR (Tex. App.—Texarkana, Oct. 14, 2020)

Issue. When a defendant makes a speaking objection (failing to state a rule) expressing his concerns about the trial court ordering an alternate juror to observe deliberations, has the defendant sufficiently preserved an issue under Texas Code of Criminal Procedure article 36.22 (“No person shall be permitted to be with the jury while it is deliberating. No person shall be permitted to converse with a juror about the case on trial except in the presence and by the permission of the court.”)? Can the trial court reverse on speculative harm?

Facts. Trial counsel objected to the presence of the alternate juror during deliberations. Counsel stated “I think there’s just too much of a risk and the danger for them to bring input. We can’t police that.” Counsel stated “I think we need to do like we always do and ask them to maybe go downstairs and wait in the room. Counsel reiterated “[b]ut I just think the danger of possible abuse of that is just too—it’s too high, Judge, and I am going to object to that.” The trial court ordered the alternate juror to sit inside the jury room with fellow jurors and to watch them deliberate while he sits in silence. The trial court ordered the other jurors to disregard any comment, statement or opinion by the alternate juror. 

Holding. No. Defendant did not cite “Texas Code of Criminal Procedure article 36.22” so the issue is not preserved. No. The defendant did not brief or show any harm and the court will not reverse harmless error.

Dissent (Burgess, J.). A party need not employ magic words to preserve an issue for appellate review—it is sufficient that he made the trial court aware of the grounds for the complaint. When Article 36.22 is violated, a rebuttable presumption of injury to the defendant arises and the defendant does not have to show harm on appeal – the State has to rebut it. This rationale is explained in the defendant’s brief he would “have no way of knowing what harm may come from such a violation.”

Comment. Usually the difference between majority and dissenting opinions are matters of interpretation. Here, the majority quickly dispatches an issue in a single page which the dissent spends 12 pages discussing. The “no magic words required” doctrine is the most inconsistently applied rule on appellate review, and the dissent makes a good point—why does the appellant have to brief harm if it is presumed?

7th District Amarillo

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

8th District El Paso

State v. Morales-Guerrero, No. 08-19-00185-CR (Tex. App.—El Paso, Oct. 7, 2020)

Issue. When law enforcement provides a custodial interrogation warning that the defendant has the right to remain silent, but omits “and not make any statement at all” must the trial court suppress the defendant’s statements because that specific language is mandated by Texas Code of Criminal Procedure Article 38.22?

Facts. Defendant was charged with continuous sexual abuse of a child. The trial court suppressed the defendant’s statements to law enforcement for failing to substantially comply with Article 38.22 (Texas statutory Miranda warnings). Specifically, the trial court found that law enforcement failed to inform the defendant that he had the right to “not give any statement at all” and that the warnings law enforcement did provide were not the fully effective equivalent: that the defendant has the right to remain silent and that the defendant can decide “from this moment on” to terminate the interview.

Holding. No. Warnings that are the fully effective equivalent of the explicit warnings contained in Article 38.22 are sufficient. A fully effective equivalent warning is one that does not dilute the meaning of the Article 38.22 warnings. “You have the right to remain silent” is a fully effective equivalent to “you have the right to remain silent and not make any statement at all.” The warnings given to the defendant were the full functional equivalent of the Article 38.22 warnings.

Comment. “Remain silent” and “not say anything at all” have the same meaning. But statutory interpretation demands no such redundancy. The Court finds additional meaning in “not make any statement” by distinguishing oral statements from written or sign language statements, the latter being statements made while remaining silent. Thus, in the context of an oral statement, the omission here did not dilute the warning.

Ripley v. State, No. 08-19-00040 (Tex. App.—El Paso, Oct. 16, 2020)

Issue. Does the State’s post-trial disclosure of investigator notes taken during an interview of a victim’s friend require the granting of a new trial when those notes portray an initial victim outcry of sexual abuse as occurring several years before what the victim stated in the trial?

Facts. Defendant’s 5-year-old stepsister informed her mother that defendant had touched her inappropriately and had been doing so for years. This culminated in a trial where counsel raised the implication that the parents of the child manipulated her into an outcry to use as leverage in obtaining a share of a personal injury settlement award belonging to the defendant. There was some inconsistency at trial about the date of the initial outcry. After trial, the State disclosed handwritten notes taken by an investigator during an interview of the victim’s friend. According to the interview notes, the friend indicated that the victim told her mother about the abuse when she was 10 years old, not 13 (as portrayed at trial).

Holding. No. At least not under these facts. The evidence – a suggestion that the outcry occurred several years prior to the date portrayed at trial—ran contrary to the defendant’s theme at trial. The defendant suffered an oilfield injury in 2011 and, as goes the defendant’s theory, in 2014 the parents coached an outcry to get a part of the settlement. The friend’s statement would discredit this theory with an outcry which predated the oilfield incident. The evidence failed to satisfy the second prong of Brady: that the undisclosed evidence be favorable to the defendant.

Comment. Trial strategy changes with the hands we are dealt in discovery and investigation of a case. This doesn’t sound like a case where the defense presented evidence to prove a theory, but rather posed an issue for the jury to consider when performing the task of considering reasonable doubt. Is it conceivable that, with the benefit of this new evidence, counsel would have pursued a different theory of showing why the accusation is false? This case highlights another important distinction: Brady blameworthiness. The failure to disclose here was purely accidental, but as the Court notes “the lynchpin of a Brady violation is the State’s failure to disclose favorable material evidence ‘regardless of the prosecution’s good or bad faith.’” Webb v. State, 232 S.W.3d 109 (Tex. Crim. App. 2007).

9th District Beaumont

Swansey v. State, No. 09-18-00342-CR (Tex. App.—Beaumont, Oct. 14, 2020)(not designated for publication)

Issue. Is punishment evidence in the form of recorded jail conversations substantially more prejudicial than probative (under Tex. Rule Evid. 403) where those recordings demonstrate the defendant’s thought process on rejecting a plea offer?

Facts. Defendant was angry at his ex-girlfriend. He drove to her house and shot at her, her new boyfriend, children standing in front of the house and a police officer. He drove away and a random motorist chased him; he also shot at her, too. In the punishment phase of trial, the State introduced recorded jail phone calls where the defendant discussed: (1) his feelings that punishment should not be more severe when the victim is a police officer, (2) his thought process on rejecting a 50 or 60 year sentence including a discussion about what sentences other inmates were receiving, (3) his frustration with his lawyer, (4) his views about homosexuals and in particular his cell-mate.

Holding. Yes. While the defendant’s views on the value of police officer lives was relevant to punishment and not unfairly prejudicial, the remaining conversations were inadmissible. The trial court can admit in punishment “any matter the court deems relevant to sentencing.” Though this is a low threshold, the evidence must still meet the test for relevance. The Court of Criminal Appeals has made clear that the value in conversations about plea bargains are “at best minimal.” The defendant’s discussion about the sentences of other inmates may have impacted the jury’s fair consideration of the full range of punishment. The defendant’s statements about rejecting a plea offer could have served to anger jurors and created a feeling that their forced service was unnecessary. The defendant’s feelings about homosexuals were similarly not probative of any matter relevant to punishment.

Comment. We practitioners like simple rules, like “if it’s punishment it’s coming in.” Though this is an unpublished case, it is useful as an example which pushes back against perhaps an overly-cynical view of punishment evidence admissibility. 

10th District Waco

Aguirre v. State, No. 10-19-00286-CR (Tex. App.—Waco, Oct. 28, 2020)

Issue. Can a defendant use Texas Code of Criminal Procedure Article 38.23 (Texas exclusionary rule) to suppress evidence of his resisting arrest?

Facts. Defendant and a friend were standing by a pickup truck and drinking. There were beer cans on the ground next to them. Officers responding to an emergency saw the two standing and saw the defendant suspiciously lower his arm and drop something. One of the officers stopped and attempted to arrest defendant and his friend for public intoxication. While the officer was trying to zip-tie defendant’s hands behind his back, defendant pulled his arm away, was taken to the ground, then kept his arms under his body to avoid being placed in restraints. Defendant argued in a jury trial that he was on private property and therefore his arrest for public intoxication was illegal. He requested the trial court to instruct the jury on suppression pursuant to Article 38.23 (juries can suppress evidence if the issue is resolved by deciding disputed versions of facts).

Holding. No. Suppression of evidence under Article 38.23 envisions suppression of evidence that existed prior to the police encounter. Evidence that a person resisted arrest is evidence that comes into existence contemporaneously with the officer’s attempt to arrest. The police, in effecting an arrest, cannot be motivated by the acquisition of evidence of the crime “resisting arrest.” Without such improper motivation, there is no exploitation to be remedied by the judicial system.

Comment. The purpose of the exclusionary rule is to deter unlawful police conduct. United States v. Leon, 468 U.S. 897 (1984). All constitutional violations are unlawful police conduct. A subset of police constitutional violations are exploitative in nature (as opposed to erroneous or accidental conduct). A focus on whether the police conduct was exploitative seems to miss the mark. The stronger point of law—which reaches the same result—is that suppression is not warranted when the deterrent effect is outweighed by societal cost. The Court of Criminal Appeals has already addressed the societal costs associated with permitting those suspected of crimes to decide for themselves when their arrest is unlawful – such rule “presents too great a threat to the safety of individuals and society.” Ford v. State, 538 S.W.2d 633 (Tex. Crim. App. 1976).

11th District Eastland

Denny v. State, No. 11-18-00270-CR (Tex. App.—Eastland, Oct. 30, 2020)

Issue. When everyone knows that a digital photo is already in the custody of the police, does the deletion of a duplicate of that photo on a cell phone constitute tampering with evidence (by concealment)? Does it constitute attempted tampering with evidence?

Facts. Defendant was a program director at the Abilene CPS office. A child in Abilene died from what appeared to be chemical burns. Two siblings who sustained similar injuries were taken to the hospital by a CPS investigator. Simultaneously, a police detective provided a CPS supervisor at the Abilene office a picture of the deceased child. At the hospital, with the injured children, the CPS investigator informed a nurse that there was a picture of the injuries sustained by the deceased child. The nurse requested the picture from the investigator, the investigator requested the picture from the supervisor, the supervisor requested permission to send from the defendant. Defendant instructed the supervisor to not send the picture and to instead destroy it. The supervisor complied. Defendant was charged by indictment alleging that she knowingly concealed the photograph by directing CPS personnel to refuse to provide the photograph with intent to impair its availability in an investigation.

Holding. No. You can’t conceal something from the police that they can see. The State argues that intent to impair the availability of the photo is sufficient evidence, but the Court of Criminal Appeals rejected this argument in Stahmann v. State, 602 S.W.3d 573 (Tex. Crim. App. 2020). No. You can’t attempt to conceal something you know the police already can see. In Stahman the Court of Criminal Appeals reformed the judgment to criminal attempt because that defendant threw a pill bottle out of a car window, hoping the police would not see, and hoping he would avoid possession charges. Criminal attempt requires a defendant to do an act more than mere preparation that tends but fails to effect the commission of the crime. Without the intent to conceal, there can be no attempted tampering. Here, the defendant knew the police already had the photograph, therefore the defendant could not have acted with intent to conceal.

Comment. So now we have a case that says you can’t conceal something that is visible.

12th District Tyler

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

13th District Corpus Christi/Edinburg

The Thirteenth District Court of Appeals in Corpus Christi/Edinburg did not hand down any significant or published opinions since the last Significant Decisions Report.

14th District Houston

Abbott v. State, No. 14-18-00685-CR (Tex. App.—Houston [14th Dist.] Oct. 8, 2020)

Issue. Does the trial court abandon its neutral and detached role by personally interlineating an indictment at the suggestion of the parties? Is counsel ineffective for failing to take advantage of a fatal defect in the indictment by proceeding to trial?

Facts. During an open plea colloquy (no agreement on punishment – trial court will sentence), counsel informed the trial court that the indictment alleged that the defendant possessed methamphetamine but that the lab report showed cocaine. The State concurred and requested an amendment. The State provided the trial court with an interlineated photocopy. The trial court expressed hesitation that the law required interlineation on the original. The trial court amended by interlineating the original. After the open plea hearing, the trial court sentenced the defendant to 48 years.

Holding. No. Texas Code of Criminal Procedure article 28.11 provides that “all amendments of an indictment or information shall be made with the leave of court and under its direction.” The Code does not provide whether the trial court may personally make such amendment but sister courts have found no harm in this method. An amendment may be by interlineation on the original or photocopied original, the trial court’s interlineation was appropriate. No. At least not here with an insufficient record showing what the strategy of counsel was in bringing the fatal variance to everyone’s attention. Conduct which is calculated to earn favor with the fact finder could have been a legitimate strategy of counsel.

Comment. Putting all the eggs in the “they won’t find the fatal variance before trial starts” basket is risky. If you reject the State’s offer to waive jury trial and proceed to open plea just to take advantage of a mistake at trial, the open-plea offer may be gone forever. Keep in mind that the State may amend an indictment “at any time before the date the trial on the merits commences.” Texas Code of Criminal Procedure art. 28.10. 

Abrego v. State, No. 14-18-01010-CR (Tex. App.—Houston [14th Dist.] Oct. 8, 2020)

Issue. Must the record affirmatively reflect that the trial court admonished the defendant regarding his waiver of trial rights? Must a conviction be reversed when the trial court fails to admonish the defendant on his obligation to register as a sex offender?

Facts. This case was a slow plea. (plea of guilty before the jury followed by jury punishment). The record begins with the trial court addressing the jury prior to voir dire. The statements by the trial court and counsel appear to reflect an understanding that was reached before the record began. When the defendant was formally arraigned on the record, the trial court never admonished the defendant regarding his waiver of a right to jury trial, confrontation of witnesses, and self-incrimination rights. Nor did the trial court admonish the defendant that he would be subject to registration as a sex offender as required by Texas Code of Criminal Procedure article 26.13. The defendant argued that his lack of admonishment regarding his trial rights rendered his plea involuntary. The defendant argued his lack of admonishment as to sex offender consequences required reversal on statutory grounds.

Holding. No. While a waiver of trial rights cannot be presumed from silence, the defendant’s understanding can be presumed from what is “spread on the record.” Boykin v. Alabama, 395 U.S. 238 (1969). Here the defendant’s guilty plea appears adequately informed—the State had DNA evidence linking him to a sexual assault of a 16-year-old for which he had no defense other than to mitigate his punishment. Conversations with the venire about the rights the defendant would have had if he plead not guilty also demonstrate an adequate understanding and voluntariness by the defendant. No. the trial court’s failure to admonish on sex offender registration is not reversible error. Article 26.13 specifically provides that failure to comply with the sex offender admonishment requirement is not grounds for reversal.

Comment. I can see where the defendant is going with the sex-offender admonishment arguments. The statute reads literally: “The court must substantially comply with Subsection (a)(5). The failure of the court to comply with Subsection (a)(5) is not a ground for the defendant to set aside the conviction, sentence, or plea. One could say that the legislature appears to create three levels of compliance: insubstantial, substantial, and complete where anything less than substantial compliance is reversible. This interpretation hasn’t been adopted by any court – instead the duty to inform a defendant about sex offender registration is 100% unenforceable.

Blacklock v. State, No. 14-19-00307-CR (Tex. App.—Houston [14th Dist.] Oct. 22, 2020)

Issue. When the State is responsible for 15 years of delay, is the defendant entitled to impeach a complaining witness using convictions that are remote in time (more than 10 years old at the time of trial)?

Facts. Defendant was prosecuted for an aggravated sexual assault which occurred in 2005. Due to DNA backlog, the State did not prosecute the defendant until 15 years after the alleged incident occurred. Details of the assault were presented through witness testimony and reports taken from the victim at the time of the offense. The evidence establishing the identity of the defendant was limited to a 15-year-old mixed DNA sample. At trial, the complaining witness admitted several prior criminal offenses, but defendant wanted to impeach the complaining witness with two theft convictions from 2002, a prostitution conviction from 2004, and another prostitution conviction from 2005. The trial court applied a standard for admission for remote-in-time convictions where ten years have elapsed from the date of conviction and ruled that the prior convictions were not more probative than prejudicial and thus inadmissible.

Holding. No. At least not here. Under Texas Rule of Evidence 609, convictions that are older than 10 years are admissible when their probative value substantially outweigh their prejudicial effect. The factors for consideration are: (1) impeachment value, (2) temporal proximity of conviction to testimony date, (3) similarity of past crime to conduct at issue, (4) importance of witness’s testimony, and (5) importance of the credibility issue. While the impeachment value of theft and prostitution convictions are high, they were fairly duplicative of other convictions already admitted. Their remoteness also would have done little to inform the jury about the present veracity of the witness. The fact that she was a prostitute was adequately established and further evidence would have unfairly focused the jury’s attention on her pattern of past conduct.

Dissent (Poissant, J.) Defendant presented a sufficiency of evidence challenge rejected by the majority. The dissent would reverse on evidence insufficient to establish the greater offense of aggravated sexual assault. The forensic examiner found no injuries and the victim described no aggravated conduct.

Comment. Had the state not caused 15 years of delay in prosecution, the prior convictions would have been admissible. It seems there may have been a legitimate speedy trial issue here.

In re Ogg, No. 14-20-00451-CR (Tex. App.—Houston [14th Dist.] Oct. 27, 2020

Issue. During the COVID-19 pandemic and pursuant to the Supreme Court emergency orders permitting trial court suspension of statutory procedures, may a trial court proceed to a bench trial over the State’s objection in contravention of State’s authority to demand a jury trial under Texas Code of Criminal Procedure article 1.13?

Facts. Kim Ogg is the Harris County District Attorney. Ogg filed petitions for writs of mandamus and prohibition challenging a Harris County court at law judge’s authority to conduct a bench trial without the consent and waiver of jury trial by the State. The defendant had moved for speedy trial on his misdemeanor charges following removal from a pretrial intervention (or pretrial diversion) program. The defendant requested a trial before the court (bench trial) because jury trial was prohibited under the current orders of the Texas Supreme Court regulating court proceedings during the COVID-19 pandemic. In his request for a bench trial, the defendant requested the trial court waive the requirements of Texas Code of Criminal Procedure article 1.13 – a provision securing the State’s authority to demand a jury trial.

Holding. Yes. The Supreme Court’s COVID-19 emergency orders that “subject to constitutional provisions” a trial court may “modify or suspend all deadlines and procedures, whether prescribed by statute, rule, or order.” The State has no constitutional right to a jury trial – the authority to demand one is merely statutory and thus subject to the Supreme Court order permitting trial court modification. This remains true notwithstanding the State’s arguments that the trial court action ran contrary to the statutory emergency authorities granted to the Supreme Court—namely that the legislature intended emergency powers to suspend procedural but not substantive law.

Comment.  The TDCAA summary comment on the same case expresses concern over the slippery slope and “what other statutes can be suspended during the pandemic.” Interestingly their concern was missing when the Governor suspended habeas corpus and statutory rights of criminal defendants. Indeed, prosecutors statewide have made the exact same arguments as the defense in the present case in a widely-circulated motion demanding the suspension of Article 17.151 deadlines to permit indefinite pretrial confinement of arrestees. Geese and gander.

November 2020 SDR – Voice for the Defense Vol. 49, No. 9

Voice for the Defense Volume 49, No. 9 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

Big opinions on the way. The Court of Criminal Appeals is back from break. The Supreme Court 2020-21 session is now under way. I hope the new format is an easy read; let me know what you think!

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.

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. Lima-Rivero, 971 F.3d 518 (5th Cir. 2020)

Issue. Is a trial court bound by the government’s conclusion that the defendant did not provide truthful information when deciding whether to give a reduced sentence under the Federal Sentencing Guidelines’ safety valve provision—a provision which requires a defendant to provide the government with truthful information? Does throwing drugs out of a window during a police chase constitute reckless endangerment under the Sentencing Guidelines?

Facts. The defendant was involved in a drug transaction which resulted in a police chase where he was a passenger in the chased vehicle. During the chase, the defendant threw a bag of methamphetamine out of the passenger window. The defendant also apparently gave a debrief with agents which left agents dissatisfied.

Holding. No. A district court has discretion to apply the safety valve provision and is not bound by the government’s determination of whether a defendant provided truthful information. Yes. Throwing drugs out of a window is reckless endangerment.

Dissent (Haynes, J.) The trial court erred in its deference to the Government’s opinion on safety valve eligibility. However, the agent testified that that it was his opinion that the defendant did not provide truthful information which is sufficient evidence. 

Comment. The Court found that the DEA agent’s conclusory statement was not an adequate substitute for the prosecutor’s conclusory statement. The DEA’s statement was that the defendant was “less than forthcoming regarding many things.”

United States v. Valdez, 973 F.3d 396 (5th Cir. 2020)

Issue. Is counsel ineffective when his Sentencing Guideline estimation is wrong by more than 300 months and the defendant is sentenced to a statutory maximum sentence of ten years?

Facts. Defendant pleaded guilty—without agreement—to possessing a firearm as a convicted felon. Because he used the firearm to commit murder, the guideline range was 324 to 405 months. His attorney estimated a range of 24-36 months. The trial court sentenced the defendant to the statutory maximum of 120 months. Defendant filed a motion under 28 U.S.C. § 2255 claiming his counsel was ineffective and had he known he would be subjected to the statutory maximum punishment under the guidelines, he would have proceeded to trial.

Holding. Counsel’s estimation was not unreasonable and there was no reasonable probability that but for the erroneous guideline calculation the defendant would have insisted on going to trial. He changed his plea the morning of trial after it became clear that the Government had secured a witness damning to his defense.

Dissent (Wiener, J.) “The Sentencing Guidelines play such an important role in federal criminal defense that it is unreasonable for counsel to make a grossly inaccurate estimate of the applicable range . . .”

Comment. Who wouldn’t go to trial if their Guideline calculation was triple the statutory maximum of 10 years? The dissent’s criticism that the majority opinion renders counsel’s familiarity with the Sentencing Guidelines optional is persuasive.

United States v. Beaulieu, 973 F.3d 354 (5th Cir. 2020)

Issue. When a prosecutor who granted testimonial immunity to a witness subsequently prosecutes that witness for contempt upon his refusal to testify, is it prosecutorial misconduct for that prosecutor to inject his personal knowledge in closing and cross examination?

Facts. In an interview with FBI agents, defendant identified suspects involved in carjackings and bank robberies. At trial on these offenses, the defendant refused to testify and invoked Fifth Amendment privilege. The district court appoints Attorney 1 after the invocation. The Department of Justice granted the defendant immunity from prosecution. After he was ordered by the trial court to testify, the defendant still refused. The trial court appointed the same prosecutor to prosecute contempt proceedings against the defendant. Attorney 2 is appointed to represent the defendant in contempt proceedings. Attorney 2 moves to disqualify the prosecutor as a material witness for the defense. Attorney 1 testified at the contempt trial and indicated that the prosecutor had withdrawn a “complete immunity agreement.” The prosecutor advanced his own recollection of what had occurred in cross-examination. In closing argument, the prosecutor disclosed even more facts within his personal knowledge but outside of the record.

Holding. Yes. “There is no gray zone here.” The prosecutor repeatedly expressed personal opinions on the merits of the case, credibility of witnesses, and made arguments not based on evidence presented. The misconduct was prejudicial—the trial was three hours long and filled with misconduct. There were no cautionary instructions to counteract the misconduct. “The proceeding below was obviously contentious, with numerous accusations of dishonesty and bad faith.” This resulted in the prosecutor abdicating his role to see that justice is done.

Comment. It is not often that a trial court cites a prosecutor’s special role and duty in the context of the justice system and then reverses a conviction as it did here. The trial court should have granted the disqualification, or the prosecutor should have withdrawn.

United States v. Soriano, —F.3d—, No. 19-50832 (5th Cir. Sept. 18, 2020)

Issue. Was consent to search given voluntary when given in the context of a traffic stop involving numerous probing questions about unrelated criminal activity?

Facts. Defendant indicated he was travelling from El Paso to Odessa for a short stay with family. Officer testified that travelling between those two cities on Sunday is rare. Officer found it suspicious when defendant asked officer to repeat herself after she asked if defendant had ever been arrested. Defendant ultimately responded that he had been previously arrested for tickets. Officer eventually saw a large duffle bag in the back seat inconsistent with a short stay. Defendant changed his answer on how long he intended to stay in Odessa. The defendant appeared nervous. The defendant showed the officer the top layer of clothes in the suitcase as well as his trunk. Inside the trunk were several cans of gasoline. Officer informs defendant that he was going to receive a ticket for speeding. When she ran his criminal history, she found an undisclosed arrest for Theft. When the officer returned to the vehicle, she asked the defendant whether there was anything illegal in the vehicle, requested consent to search, and asked if a drug dog would discover illegal substances. The defendant said she could check the car and that she was welcome to bring the drug dog. Officer discovers cocaine in the duffel bag.

Holding. Yes. Evaluating voluntariness of consent requires consideration of six factors: (1) voluntariness of defendant’s custodial status, (2) presence of coercive police procedures, (3) extent and level of defendant’s cooperation with police, (4) the defendant’s awareness of his right to refuse consent, (5) defendant’s education and intelligence, (6) defendant’s belief that no incriminating evidence will be found. Although the defendant was not free to leave, there were no coercive procedures, defendant remained cooperative during the encounter, he was imputed with knowledge of a right to refuse based on his experience with criminal justice system, nothing about his intelligence indicated he was susceptible to coercion, and the defendant indicated that there would be no incriminating evidence in the vehicle.

Comment. The defendant raised in the trial court an argument that officers unjustifiably prolonged the detention beyond the amount of time needed to complete the purpose of the traffic stop. It appears this issue was abandoned on appeal. The Fifth Circuit has issued a few recent opinions defining certain activity as consistent with drug couriers, for instance: being on certain highways, telling confusing stories, and responding to the question “are there drugs in the car” with anything more than a simple “no.”

Texas Court of Criminal Appeals

Crider v. State, No. PD-1070-19 (Tex. Crim. App. 2020)

Issue. Must a DWI blood warrant specifically authorize both the blood draw and the blood testing?

Facts. Officer obtains a blood search warrant authorizing the drawing of blood but not the subsequent chemical testing.

Holding. No. While in State v. Martinez, 570 S.W.3d 278 (Tex. Crim. App. 2019) the Court held that chemical testing of blood constitutes a separate and discrete invasion of privacy for Fourth Amendment purposes, a magistrate who has found probable cause to extract blood from a DWI suspect has necessarily found probable cause to conduct a chemical test on that blood. Martinez is distinguishable on this basis. In Martinez, the State did not extract the blood in the first instance. In Martinez the State obtained the blood from the already-extracted blood sample at the hospital, without a finding of probable cause. Then the State tested that blood, also without a finding of probable cause. Under the Martinez circumstances the testing of blood was unconstitutional. Here the blood was taken by a warrant issued upon a probable cause determination that the blood constitutes evidence to prove the offense of driving while intoxicated. This holding does not authorize “general” search warrants for “general exploratory rummaging in a person’s belongings” prohibited by Walthall v. State, 594 S.W.2d 74 (Tex. Crim. App. 1980)(i.e. the State is not authorized to conduct genetic or other biological analysis, only a BAC analysis).

Concurrence (Newell, J.) (Joined by Hervey, Richardson, Slaughter) Appellant raises persuasive concerns about implying authorization for a second search from a warrant that only authorizes seizure. This could lead to general rummaging warrants. This could lead to forensic searches of computers where a warrant only authorizes seizure. When the search warrant incorporates the probable cause affidavit by reference, the scope of the warrant should be judged against both the warrant and the probable cause affidavit. Here the warrant affidavit is requesting the blood draw to prove the offense of DWI which necessarily implies testing.

Dissent (Walker, J.) The court reads “testing” into the warrant where the magistrate did not explicitly permit testing. The question is not whether there is probable cause to test the blood, it is whether the test was authorized. A magistrate can incorporate the probable cause affidavit in its command: “you are commanded to enter the suspected place described in said affidavit and to seize the same and bring it before me,” or it can incorporate generally and in a manner which explains the finding of probable cause: “the officer swore an affidavit establishing probable cause and it is incorporated by reference.” The latter scenario, which occurred here, does not make for an implication that what the officer wanted to do with the blood after the blood draw was authorized by the magistrate.

Comment. Those judges necessary to form a majority opinion also joined in Judge Newell’s concurrence. Do not let the State use this case to get away with more than what Judges Newell, Hervey, Richardson, and Slaughter and Walker would permit in other contexts.

State v. Castanedanieto, No. PD-1154-19 (Tex. Crim. App. Sept. 16, 2020)

Issue. When a trial court suppresses a confession on the basis of noncompliance with the requirements of Miranda and Article 38.23 of the Code of Criminal Procedure, may the Court of Appeals uphold the suppression on a theory of coercive police interrogation instead?

Facts. Defendant was suspected of committing aggravated robbery. Detective 1 begins the first interrogation by reading the defendant Miranda and Article 38.22 rights. The defendant indicated he did not understand. The detective proceeds with the interrogation anyway, and the defendant confesses. Defendant is later taken before a magistrate where he requests appointed counsel. Following arraignment, detective 2 reinterrogates the defendant “suggesting he may have more to tell the second time around.” During both interrogations, detectives spoke to the defendant using declarative statements or commands indicating that an interrogation would take place. In the trial court, after the State abandoned any attempt to defend the first interrogation, the defendant advanced two legal theories for suppressing the second interrogation: (1) his lack of understanding of his Miranda/Article 38.22 warnings in the first interview which carried forward into the second interview, and (2) the State violated the Sixth Amendment by reinitiating questioning after the defendant requested appointed counsel. The Court of Appeals upheld the trial court suppression on a “coercion theory”—that the detectives use of commands and directives regarding the interrogation amounted to coercive police interrogation.

Holding. No. The Court of Appeals erred by upholding the suppression on a theory not litigated below. Not all un-mirandized statements are coerced statements. While coercion has a presumptive taint which carries forth into subsequent interrogations un-Mirandized statements do not (unless part of a strategy to circumvent Miranda). The State was not on notice in the trial court that it needed to defend against a theory that the second interrogation was presumptively tainted by the first interrogation. The Calloway rule (a claim of reversible error on appeal should be rejected if the ruling is correct on any theory of law applicable to the case) should be resisted when it would work a manifest injustice to the party appealing. Here, affirming on a coercion theory would work a manifest injustice to the State.

Comment. The Court’s analysis makes sense. Miranda is a prophylactic against police interrogation, not a barometer for determining when it occurs. However, coercion and Miranda are in the same constitutional wheelhouse (as demonstrated by intuition of the prosecutor to ask the “you weren’t being coercive” questions of the detective). Will this opinion cut both ways? Will it curtail the State raising new theories on appeal? The use of the Calloway rule seems inconsistent across the State. Compare Scott v. State, 572 S.W.3d 755 (Tex. App.—Houston, [14th Dist.] 2019)(trial court is correct that officer did not have probable cause of intoxication to arrest, but he could have arrested for the Class C traffic violations) with State v. Varley, 501 S.W.3d 273 (Tex. App.—Ft. Worth, 2016)(On appeal the State can’t rely on federal three-brake-light rule adopted by the Transportation Code when litigation in trial court focused on the Transportation Code’s two-brake-light rule).

Price v. State, No. PD-0722-19 (Tex. Crim. App. 2020)

Issue. May officers conduct a search incident to arrest (“SITA”) of a person’s luggage after they had already separated the luggage from the defendant and while the defendant was handcuffed and surrounded by officers?

Facts. Police receive a tip that defendant would be arriving at the airport with marijuana purchased out of state. Police detain defendant, handcuff him behind his back, and transported both him and his suitcases to a “secure office” where he is formally arrested. Officers then conduct a SITA of defendant’s suitcases and discover marijuana. The Court of Appeals found that the luggage was not subject to a SITA (defendant separated from luggage, luggage therefore not immediately associated with defendant, police had eliminated threat of defendant gaining access), and that the search could not survive under an inevitable inventory search theory because the doctrine of inevitable discovery is inapplicable to Texas exclusionary rule—Article 38.23 Code of Criminal Procedure.

Holding. Yes. Whether a receptacle is immediately associated with an arrestee should not be defined by the nature or character of the receptacle, but rather in terms of the arrestee’s connection to the receptacle. When an arrestee is in actual possession of a receptacle immediately preceding arrest, and the receptacle must accompany the arrestee to jail, officers are justified in a SITA of that receptacle. The contents of the receptacle would ultimately be inventoried at the jail or police station for the protection of the police, the arrestee, and the public. Lalande v. State, 676 S.W.2d 115 (Tex. Crim. App. 1984). But Lalande is not the application the inevitable discovery rule—it merely stands for the proposition that inevitable discovery by way of inventory is baked into the standard for SITA. Thus, the inapplicability of the inevitable discovery under Texas’ exclusionary rule is irrelevant here.

Dissent (Keller, J.). Inventory searches are not baked into searches incident to arrest. Lalande is an extension of the inventory exception to the Fourth Amendment which permits some inventorying to occur at the scene of arrest. An inventory search must be conducted pursuant to an existing inventory policy. There was none here.

Dissent (Newell, J.) (joined by Hervey, J.). Lalande is the application of the inevitable discovery rule which this Court subsequently found inapplicable to statutory suppressions under Article 38.23. The U.S. Supreme Court has declared that luggage separated from an arrestee is not subject to SITA. United States v. Chadwick, 433 U.S. 1 (1977). But subsequent opinions create numerous distinctions making SITA confusing. The US Supreme Court should fix this. Even if this were justifiable as an inventory, an inventory search must be conducted pursuant to an existing inventory policy. Here there was none.

Dissent (Walker, J.). The purpose of SITA is officer safety and evidence preservation, and neither were threatened here. SITA also requires exigency. Even if the majority were correct in finding that inventories are baked into the SITA exception, there was no chance the luggage was going to the jail with the defendant. They were the physical evidence which provided probable cause for the arrest. Defendants get to walk away from the jail with the property they bring, this doesn’t include big bags of marijuana.

Comment. In the context of inventory searches, the rationale for requiring adherence to an inventory policy is to separate the good faith from the bad faith use of the inventory exception. Neither the State nor the defendant litigated issues pertaining to inventories. With four judges dissenting, this opinion may be ripe for future discussion.

1st District Houston

Malbrough v. State, No. 01-18-00941-CR (Tex. App.—Houston [1st Dist.], Sep. 1, 2020)

Issue. Is evidence sufficient to convict for “directing activities of a criminal street gang” (“DACSG”) when the defendant assisted the leader of a group committing many robberies, but only on an ad-hoc basis? Is it error to instruct the jury that they may convict a person for DACSG under the law of parties? Can the trial court make a deadly weapon finding when a jury sits as trier of fact?

Facts. This case involved a series of aggravated robberies with similar characteristics (firearms, cell phone stores, sophisticated knowledge of cell phone stores, removal of tracker phones, etc.). Robberies were committed by groups of people with significant overlap in participation. Eventually those involved implicated the defendant as a person who vetted individuals for participation, detailed plans, and supervised the robberies. It appeared from the evidence that a separate individual had a superior role in managing the conspiracy.

Holding. A DACSG conviction requires proof that the defendant was: (1) part of identifiable leadership of a criminal street gang, (2) finances, directs, or supervises, (3) the commission or conspiracy to commit an offense in Article 42A.054(a). A criminal street gang is three or more persons having common identifying sign or symbol or identifiable leadership who continuously or regularly associate in the commission of criminal activities. When aggravated robberies are committed pursuant to a similar scheme and significant overlap in participants and a defendant chooses locations, assigns tasks, gives instructions, and acts as a lookout, that conduct is sufficient to sustain a verdict for DACSG. The court assumes without deciding whether it is appropriate to charge the jury in a DACSG case under the law of parties. The Court of Criminal Appeals has indicated “where the evidence clearly supports a defendant’s guilt as a principal actor, any error in the trial court in charging [the jury] on the law of parties is harmless.” The trial court did err by making a deadly weapon finding when a jury sat as trier of fact. When jury sits as trier of fact, trial court may not properly enter an affirmative finding unless: (1) indictment alleges a deadly weapon was used and defendant was found guilty as charged, (2) indictment alleges a deadly weapon per se (such as firearm), or (3) jury finds true a special issue of fact during punishment phase.

Concurrence (Countiss, J.) writes separately in addition to her authorship of the majority opinion to discuss the revitalization of the doctrine of factual sufficiency under the Texas Constitution. In a factual sufficiency analysis, evidence is reviewed in a neutral light, rather in favor of the verdict, and the Court considers whether the evidence is “so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Under this theory, the Texas constitution provides more sufficiency of evidence protection than Jackson v. Virginia. This is an interesting read if you have time.

Comment.  This is a 60-page opinion plus a concurring opinion, thus the long summary. The law of parties issue here is intriguing, and I wish there were more discussion. The defendant’s “absurd result” argument seems to be correct. If all parties who assist the manager can be prosecuted as the manager, then the distinction of being a manager is eviscerated. Justice Countiss’ opinion on reviving factual sufficiency under the Texas Constitution is equally intriguing. There are many states which rely primarily on the superior protections of their own constitutions. In those states, case law cites rarely to the federal constitution. Could the future behold this trend in Texas?

Pacas v. State, No. 01-18-01016-CR (Tex. App.—Houston [1st Dist.] Sep. 22, 2020)

Issue. Does the Texas Constitution prohibit plea bargaining?

Facts. Article I Section 10 provides: “[i]n all criminal prosecutions, the accused shall have a speedy public trial by an impartial jury.” Article I Section 15 provides: “[t]he right of trial by jury shall remain inviolate” but authorizes the legislature to “pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency.” 

Holding. Article I Sections 10 and 15 are in pari materia—when two or more statutes that deal with same general subject, have the same general purpose, or relate to the same person or thing the specific statute prevails. Here Article I Section 15’s delegation to the legislature to regulate jury trials and maintain their efficiency is an acknowledgment that jury trial may be waived, and a defendant sentenced by way of plea bargaining. The history of the Texas Constitution and Code of Criminal Procedure support this conclusion.

Dissent (Goodman, J.). Article I Section 10 creates an absolute requirement that all prosecutions of felony offenses be tried by a jury. The majority’s opinion exacerbates the “the proliferation of the plea bargain and the resultant scourge of mass incarceration.”

Comment. I like this case. It’s got trial by combat, the Constitution of Coahuila & Texas, and it gets real on criminal justice reform.

2nd District Fort Worth

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

3rd District Austin

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

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

Martin v. State, No. 07-19-00082-CR (Tex. App.—Amarillo, Sep. 28, 2020)(not designated for publication)

Issue. Is wearing the insignia of a group labeled as a street gang by the Texas Antigang Center sufficient evidence to establish that an individual is a member of a criminal street gang for purposes of “unlawfully carrying a weapon while a member of a criminal street gang?” (“UCW-CSG”).

Facts. Defendant was stopped for speeding on his motorcycle. The officer noticed that the defendant had a vest which read “Cossacks MC.” During a pat-down the officer discovered a firearm and arrests him for the UCW-CSG. At trial it was shown that the defendant had no prior criminal history, was present at the Waco Twin Peaks during the Cossack-v-Bandido shootout, and had charges arising from that ordeal which were ultimately dismissed.

Holding. No. For purposes of the statute an individual must not only be a member of a three-plus person group with a symbol or sign or identifiable leadership, but also must continuously associate in the commission of criminal activities. Here there was no evidence that the defendant associated in any criminal activities.

Comment. “The only thing I have is just intelligence” was the gang specialist’s reply when asked whether he was aware of any Cossack-related criminal activity in the area. I’m sure it sounded different in person, but it might also be my new favorite phrase.

8th District El Paso

Boltos v. State, No. 08-19-00020-CR (Tex. App.—El Paso, Sep. 11, 2020)

Issue. Can conduct occurring in another state contribute to the basis of an aggregated theft conviction? Does double jeopardy require reversal when conduct forming basis of aggregated theft conviction potentially overlap with conduct forming basis of several individual theft convictions? Does the Miller third-party doctrine (no expectation of privacy in subpoena for bank records) remain good law after recent opinions declining to apply Miller to cell tower location data? 

Facts. A woman in her 30s used fictitious personas and engaged in fake romantic relationships with senior citizens and exploited these relationships to obtain over $1.6 million. Depending on the victim, she presented as a widow, ill with various conditions, a cancer patient, or a homeless mother. The jury convicted her of: (1) an aggregated theft charge for conduct occurring over six years, (2) five individual thefts falling within the same six-year period, and (3) exploitation of elderly.

Holding. Yes—conduct occurring in another state may contribute to an aggregated theft conviction. Aggregation creates a single offense for purposes of jurisdiction and venue. If Texas has jurisdiction over a part of the aggregated theft claim, it has jurisdiction over the entire claim. No—double jeopardy does not require reversal. Unobjected-to double jeopardy claims are reversible only when: (1) undisputed facts show the violation is clearly apparent, and (2) enforcement of waiver would serve no legitimate interest. Here neither prong is met. In theory the jury could have used ABC conduct to convict under the aggregated theft charge, and XYZ conduct to convict under the individual theft charges. Also, the promotion of correcting errors at the trial court level presents a legitimate state interest. Yes—the Miller third party doctrine remains good law until overruled by a higher court. The current state of law provides that there is no expectation of privacy in bank records as they have been turned over to the bank—a third party. United States v. Miller, 425 U.S. 435 (1976). The Court acknowledges recent opinions call this doctrine into question. Carpenter v. U.S., 138 S.Ct. 2206 (2018)(third-party doctrine does not overcome Fourth Amendment in cell tower location data); Holder v. State, 595 S.W.3d 691 (Tex. Crim. App. 2020) (third-party doctrine does not overcome Texas Constitution in cell tower location data).

Comment. The double jeopardy issue here is interesting. While a theoretical jury may have applied a different set of facts to each of their convictions, it’s highly unlikely that someone in the jury room spoke up and said, “for the sake of double jeopardy concerns, let us compartmentalize.” This is a problem with the standard, not the opinion.

Black v. State, No. 08-19-00259-CR (Tex. App.—El Paso, Sep. 15, 2020)

Issue. Does an indictment for aggravated assault by threat fail to provide adequate notice when it does not describe the threatening conduct but does allege that the defendant exhibited a deadly weapon? Did harmful error result by the admission of extraneous offenses without instructing the jury to limit their consideration of such offenses to their probative value in rebutting the defendant’s claim of self-defense?

Facts. Defendant went to Hooters, made inappropriate comments to the hostess and was escorted out of the restaurant by the manager. Defendant pulled out a knife. According to the manager, Defendant was yelling, was waving the knife around, and advanced toward him. According to the defendant, he pulled the knife because the manager was pursuing him, and he felt threatened. Defendant filed a motion to quash the indictment and argued that using a knife (indictments sole allegation) is not inherently criminal and without a description of the threat, he was without sufficient notice and unable to adequately prepare his defense. The trial court denied the motion to quash. At trial the State questioned the defendant about four prior misdemeanor assaults to rebut his claim of self-defense.

Holding. No, the indictment was sufficient. While there is no statutory definition for “threat” and some case law would tend to suggest a threat should be described, here the allegation that a knife was used or displayed provides sufficient description of what the threatening conduct entails. No, the admission of prior offenses to rebut self-defense without a limiting instruction was error, but not harmful error. There were two eyewitnesses to the offense, the defendant admits to being angry and pulling a knife. On direct examination the defendant also admitted to having “quite a bit” of trouble with the law.

Comment. The Court declines to specifically state whether an indictment alleging assault by threat must describe the threat. It discusses a case from the Court of Criminal Appeals which requires a description of the threat in the context of a Retaliation charge. Doyle v. State, 661 S.W.2d 726 (Tex. Crim. App. 1983). The distinction of significance here is the allegation of a deadly weapon, it would seem in the absence of a deadly weapon allegation, the indictment would fail for lack of specificity.

9th District Beaumont

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

10th District Waco

Jones v. State, No. 10-19-00307-CR (Tex. App.—Waco, Sep. 9, 2020)(not designated for publication)

Issue. Does an officer’s potentially mistaken belief about the number of license plate lights required on a vehicle lend itself to an objectively reasonable mistake of law (“not the result of a sloppy study of laws he is duty-bound to enforce”)?

Facts. An officer stops a vehicle equipped with two license plate lights because one license plate light is not emitting light.

Holding. Yes. It is reasonable for an officer to not know whether the Transportation Code requires two illuminated taillights or one. The Court assumes without deciding that the Transportation Code only requires one.

Comment. This is an unpublished opinion, but it is rare for Courts to invoke Heien v. North Carolina. Generally, most courts require officers to have a reasonably strong grasp on the Transportation Code—or as Heien put it not be “sloppy” in the study of laws. The statute here clearly speaks of a license plate “taillamp” in the singular. The court analogized an officer’s mistake about whether a taillight mounted on the cab constituted one of the two lamps required at the “rear of the vehicle” to the instant case. See State v. Varley, 501 S.W.3d 273 (Tex. App.—Ft. Worth, 2016)(caution, all three lamps are indeed required when the State properly argues the correct statute). The issue of whether “rear” means “utmost rear” is of quite a different nature than the issue of whether there is an “s” on the end of the word “taillamp.”

King v. State, No. 10-19-00354-CR (Tex. App.—Waco, Sep. 23, 2020)

Issue. Is a defendant denied a just hearing and reasonable opportunity to defend himself when the trial court resolves an uncontested motion in limine and inquires as to how the defendant intends to plead in his absence?

Facts. The following transpired without the defendant present in the courtroom: (1) trial court granted an uncontested motion in limine, (2) an inquiry and response as to the defendant’s plea and intent to stipulate to indictment paragraphs, (3) an inquiry and response as to whether the defendant intended to be disruptive during trial, (4) a discussion on how voir dire would proceed under an assumption the defendant would plead guilty. The following day the court asked the defendant how he intended to plead and the defendant responded that he wished to plead guilty and have a trial before the jury on punishment.

Holding. No. While both Article 28.01 of the Code of Criminal Procedure and the Sixth Amendment provide that a defendant’s presence at pretrial hearings is required, this error is reversible only when the defendants presence bears a reasonably substantial relationship to the opportunity to defend or when his absence would thwart a fair and just hearing. When the defendant’s insight is not needed for the trial court to rule on an issue or where the defendant does not have any information which varies from that possessed by his attorney, the error is harmless beyond a reasonable doubt (standard of review applicable to constitutional error).

Dissent (Gray, C.J.) When the trial court inquired whether the defendant intended to be disruptive, trial counsel responded that his client believed he could fire counsel and delay trial. Then an unknown conversation took place off the record. This could have impacted the trial court’s attitude toward the defendant. There is insufficient information to find this constitutional error harmless.

Comment. Chief Justice Gray’s argument becomes stronger if the sentencing had been before the trial court. We have all been in the situation where our relationship with a client creates feelings of empathy with those who are responsible for seeking or imposing punishment. While the colloquy outside the presence of the defendant here does not seem particularly damning, it’s always important to remember when you become the subjection of your client’s animosity, he or she may soon be a person with nothing but time and appeals.

11th District Eastland

State v. Whitman, No. 11-18-00001-CR (Tex. App.—Eastland, Sep. 11, 2020)

Issue. Does placing merchandise in a bag of unknown ownership and concealing it inside a store constitute a completed offense sufficient to give rise to probable cause for an arrest? If the offense is completed inside the store (by concealment or staging), does the description of the offense by a loss prevention officer (“LPO”) constitute an offense committed within the view of an officer sufficient to meet the arrest-without-warrant requirement of Article 14.01 of the Code of Criminal Procedure?

Facts. This is a published opinion on denial of rehearing and a case previously summarized in the June SDR. A short recitation facts: LPO observes defendant conceal property in a bag and place under a chair inside the store, LPO tells the reporting officer about it, reporting officer arrests based on LPO’s summary. The trial court suppressed evidence based primarily on the argument that the defendant’s conduct did not give rise to a sufficiently clear intent to appropriate property and distinguished cases where a theft can be completed without exiting the store with property. On the State’s appeal, the defendant presented the additional theory that no offense occurred in the presence of an officer and thus violated Article 14.01 (warrantless arrest requires probable cause + an explicit statutory exemption such as an offense occurring in presence of an officer).

Holding. No—without evidence that an individual placed property into an article or enclosure used to store personal possessions (purse, pockets, etc.), the placing of items in a bag of unknown ownership underneath a chair inside the store does not constitute theft. No—where the theory of theft is concealment of merchandise inside the store, the theft, if any, is complete after items are concealed. Receiving a description of the defendant’s conduct from an LPO does not constitute an offense occurring in the presence of an officer and arrest under these circumstances, without more violates Article 14.01. The 11th Court of Appeals denies rehearing in a written opinion whereby the State proposes Article 14.01 does not require an officer to personally observe any portion of an offense. The Court notes that some intermediate appellate courts take the position that “committed in his presence or within his view” does not mean personal observation. The State cites State v. Woodard, 341 S.W.3d 404 (Tex. Crim. App. 2011) for the proposition that the Court of Criminal Appeals impliedly eliminated the requirement of personal observation. But the Court cited a more recent opinion, State v. Martinez, 569 S.W.3d 621 (Tex. Crim. App. 2019) for the proposition that it did not.

Comment. It will be interesting to see whether the State takes this case further. On one hand, there seems to be disagreement among the Courts what Article 14.01 means. On the other hand, the State lost this case both on probable cause and Article 14.01.

Engel v. State, No. 11-18-00225-CR (Tex. App.—Eastland, Sep. 11, 2020)

Issue. Where a victim flaunts that he stole the defendant’s property, and was the first to draw a firearm, is it proper to charge the jury on “provoking the difficulty” (a circumstance barring self-defense) when a defendant, knowing that the victim was carrying a pistol and behaving erratically, threatens to kick the victim’s ass, and racks his shotgun.

Facts. A neighbor observes a verbal altercation, observed the defendant retrieve something from his truck, and later heard a blast sounding like a gun. Officers later respond to the residence where the altercation took place and discover a sawed-off shotgun inside and a pistol concealed inside a toboggan outside on the porch. Defendant tells police he shot the victim when the victim pulled the pistol from the toboggan and that he did not retrieve a gun from the truck—that it was always inside the house. Defendant testified that they had been in two physical altercations, one earlier in the day, one where the victim pulled a gun on him. The owner of the home testified that the victim had been there and was acting crazy and recklessly with the pistol and took a video camera from the home belonging to the defendant. The owner testified that the victim wanted the defendant to know he was taking the camera. The two ultimately ended up in an argument at the home about the video camera.

Holding. Yes—an instruction on instigating the provocation requires three elements: (1) the defendant did some act or used some words which provoked the attack, (2) such act or words were reasonably calculated to provoke the attack, and (3) the act was done or the words were used for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon the other. The focus here is on the third prong. The Court notes that improper provocation instructions usually involve a defendant and victim who are strangers. The victim and defendant were not strangers—they had an ongoing turmoil. A rational jury could have found beyond a reasonable doubt that the defendant’s acts and words were calculated to provoke the victim to pull a pistol the defendant knew the victim was carrying.

Comment. A very fact specific case. It seems like a toss-up whether the defendant’s aggressive acts and words were meant to scare off the victim who was looking for an altercation or calculated to create a pretext for killing the victim.

12th District Tyler

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

13th District Corpus Christi/Edinburg

The Thirteenth District Court of Appeals in Corpus Christi/Edinburg did not hand down any significant or published opinions since the last Significant Decisions Report.

14th District Houston

Torres v. State, No. 14-19-00286-CR (Tex. App.—Houston [14th Dist], Sep. 3, 2020)

Issue. Was trial counsel ineffective for failing to tie his objection to the Sixth Amendment when complaining that a reviewing analyst was testifying to the results of a test which incorporate work performed by a different testing analyst?

Facts. Forensic examiner takes a buccal swab and a fingernail swab. Testing analyst tested the DNA extracted from the fingernails. Reporting analyst prepares report, testifies to lab procedures, and concludes that defendant could not be excluded as a DNA contributor. Trial counsel’s objection was imprecise but generally communicated a concern that the reporting analyst cannot testify to the results of an analysis she did not perform.

Holding. No—to prevail on a claim of ineffective assistance, a defendant must show that the trial court’s overruling of an imprecise objection would have been in error had a more precise objection been articulated properly. Here the testimony of the reviewing expert did not violate the Confrontation Clause. The important inquiry in determining whether an analysts’ testimony is indispensable under the Confrontation Clause is whether the analyst performed a crucial analysis or merely reported raw data. The Court distinguished Bullcoming v. New Mexico, 564 U.S. 647 (2011)(Analyst who tested blood and prepared report must testify in DWI trial), and Burch v. State, 401 S.W.3d 634 (Tex. Crim. App. 2013) (testimony from a reviewing analyst who double checked everything is not an adequate substitute for cross examination of a testing analyst). The Court found Paredes v. State, 462 S.W.3d 510 (Tex. Crim. App. 2015) controlling. In Paredes, the Court of Criminal Appeals determined that a reviewing expert can offer testimony based on a forensic analysis performed by a testing analyst if the reviewing expert is presenting his or her own opinions and conclusions and not acting as a surrogate for the testing results, and that raw computer-generated data produced by a testing analyst in a DNA case is not testimonial.

Concurrence (Spain, J.) Questions whether the record is sufficient to decide one way or another the issue of ineffective assistance. More detail is needed to determine who the testing analyst was and whether their report was authentic. Points out that the rule from Paredes may be in jeopardy as it has been challenged in a case now before the Court of Criminal Appeals.

Comment. A reviewing expert has no opinion but for the analysis of a testing analyst. So, how one might give an opinion as a non-surrogate is difficult to grasp. If we are to truly compare and distinguish Bullcoming (blood analyst indispensable), the question arises whether the a blood alcohol analyst is looking at the results of a mass spectrometer and giving an opinion as to what they mean, or merely reporting the raw data reported by the machine. If the latter, then the Paredes raw-data-or-crucial-analysis distinction does not seem to hold up.

Macedo v. State, No. 14-19-00386 (Tex. App.—Houston [14th Dist.] Sep. 15, 2020)

Issue. Does Article 37.07 of the Code of Criminal Procedure permit the introduction of a prior criminal offense report into evidence during the punishment phase of trial over a defendant’s hearsay objection?

Facts. The trial court admitted an offense report detailing a previous assault by the defendant committed upon the victim of a murder during the punishment phase of trial.

Holding. No—despite the broad language of Article 37.07 (“evidence may be offered . . . as to any matter the court deems relevant to sentencing”), the Court of Criminal Appeals has at least implied that a trial court may not completely disregard the rules of evidence at the punishment phase of a non-capital case tried to a jury.

Comment. This may not be the case under Section 3(d) which permits the court to consider a PSI which may include prior offenses in the form of hearsay.

Igboji v. State, No. 14-17-00838-CR (Tex. App.—Houston [14th Dist.] Sep. 22, 2020)

Issue. When an investigator tells a suspect he must seize their phone, does an act of compliance (handing the phone over) constitute consent? Is an unarticulated fear of Snapchat’s automatic deletion feature sufficient to justify exigent circumstances?

Facts. KFC is robbed. Several employees including the defendant were present. Investigators interview employees who “seem suspicious” of the defendant. One employee shows an investigator a Snapchat video posted by the defendant showing officers investigating the scene after the robbery. Defendant meets with an investigator who asks the defendant to share his Snapchat videos. Defendant declines. Investigator informs the defendant that he “had no other option but to seize his cell phone” and the defendant “complied” and handed the phone over. Two days later the investigator obtains a warrant by affidavit alleging as probable cause that the defendant is a lazy employee who left the back door unlocked and who didn’t want to share his Snapchat video. In the trial defendant alleges that the seizure of the phone was unconstitutional. On appeal the defendant alleges the seizure was unconstitutional and it was searched without a warrant.

Holding. No—submission to authority of police after declining consent is not consent. The exigent circumstances presented by the auto-deletion feature of Snapchat is undecided here. No—there are not exigent circumstances. The State failed to prove up any facts which would show that defendant’s videos were subject to automatic deletion.

Dissent (Christopher, J.) Believes exigent circumstances were present and that individuals have less privacy interests in a seizure than they do a search. Would find probable cause based on possibility the defendant was involved in a robbery and the possibility that there is evidence on his phone.

Comment. A confusing series of arguments. The issues presented in the fact pattern are: (1) seizure without warrant, and (2) warrant issuance without probable cause. Neither the arguments in the trial court nor the arguments on appeal appear to raise the second issue. The court interpreted the defendant’s brief to raise issue with a warrantless seizure and a warrantless search. Clearly there was a warrant. It was just based on really bad probable cause. Remember, the existence of exigent circumstances alone is not sufficient to conduct a warrantless search, there must also be probable cause. Gutierrez v. State, 221 S.W.3d 680 (Tex. Crim. App. 2007).

Hernandez v. State, No. 14-19-00254-CR (Tex. App.—Houston [14th Dist.] Sep. 22, 2020)

Issue. When a detective misplaces material evidence and later finds it in the middle of trial, is the trial court obligated to grant a mistrial?

Facts. Defendant and complainant were coworkers who carpool. On the date of the incident they both left work early to drink, smoke and hang out. Defendant explained the details of the day which lead to an altercation. Defendant believed he shot the complainant in self-defense. One significant piece of contested testimony was whether the complainant was receiving calls from dangerous people attempting to collect money. The complainant denied this fact and stated it was impossible due to the lack of minutes on his phone. A detective extracted the data from the complainant’s phone near the date of the altercation. This data was placed on a CD which the detective lost before trial. But, during trial she found it. The trial court prohibited the State from using the contents of the disc, but not before the detective testified that nothing useful was found. The trial court gave defense counsel an opportunity in the middle of trial to attempt to analyze 7,098 pages of extracted data on the CD and denied defendant’s motions for mistrial and new trial.

Holding. No—there was no bad faith on the part of the prosecutor or detective thus the extreme remedy of mistrial was not warranted. “Because a mistrial is a serious remedy, it should be reserved for only extreme situations of highly prejudicial and incurable misconduct.” After the defense had an opportunity to review the disc post-verdict and file a motion for new trial, said motion failed to articulate any prejudice in the State’s failure to disclose, i.e. what materially helpful information was contained on the disc. On appeal the information on the disc cited to by the defendant is too hypertechnical for the Court to conclude that it undermines the complainant’s story, nor were they brought to the attention of the trial court (imagine how trial counsel felt).

Dissent (Hassan, J.). A thorough discussion of a defendant’s right to discovery and remedies for violations. “This case represents and abject failure to protect that which due process, Brady, and the Michael Morton Act purport to safeguard in our criminal justice system.” Neither the Michael Morton Act nor Brady require consideration of good faith v. bad faith of the prosecutor.

Comment. “A mistrial is an appropriate remedy in extreme circumstances for a narrow class of highly prejudicial and incurable errors.” Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). In the context of prosecutorial misconduct, some courts add an additional element of “bad faith” on the part of the prosecutor. But what about accidents which rise to the level of highly prejudicial?

Ithalangsy v. State, No. 14-18-00205 (Tex. App. Houston [14th Dist.] Sep. 24, 2020)

Issue. When Victim 1 and Victim 2 are both killed in the course of kidnapping of Victim 2, is the ultimate murder of Victim 2 relevant evidence in the prosecution for capital murder of Victim 1? Does the unfair prejudice substantially outweigh probative value?

Facts. Victim 1’s girlfriend owed money on a drug deal gone bad. Defendant is alleged to have twice kidnapped Victim 1’s girlfriend (Victim 2). At trial, Defendant is alleged to have shot and killed both Victim 1 and Victim 2. The trial court allows the State to introduce evidence of both murders over defendant’s relevance objection.

Holding. No—the State was required to prove that the defendant killed Victim 1 in the course of kidnapping Victim 2. Defendant’s connection to the murder of Victim 2 was insufficiently established, nor did the murder of Victim 2 did help prove that she was kidnapped. Yes—because there was no probative value, the unfair prejudice substantially outweighed the prejudice.

Dissent (Christopher, J.). Rule 404(b) permits the proof of interconnected crimes. Victim 2’s ultimate murder showed that the defendant intended to prevent her liberation by using deadly force—an element of kidnapping and thus an element of Victim 1’s capital murder committed in the course of kidnapping. This probative value is not substantially outweighed by prejudice.

Comment. A capital murder reversal. A 403 reversal. A relevance reversal. These are rare occurrences.

Smith v. Texas, No. 14-19-00097 (Tex. Crim. App.—Houston [14th Dist.] Sep. 29, 2020)

Issue. Prior to sentencing, may a defendant with intellectual disability withdraw his guilty plea by claiming he did not understand the trial court would sentence him as a habitual offender?

Facts. Appellant was charged with Theft Less Than $2,500 enhanced with prior thefts, and enhanced again with previous convictions as a habitual offender. Before his plea, a psychiatrist evaluated the defendant and found he suffered from “Unspecified Intellectual Disability” and “Schizophreniform Disorder” and possessed a “low average IQ.” At the plea, defendant signed paperwork indicating he was aware of the habitual offender punishment range. The trial court admonished the defendant, received the defendant’s plea, found defendant guilty, and set the cause for a punishment hearing. Prior to the punishment hearing, defendant moved to withdraw the guilty plea on the basis of not having understood the enhanced habitual offender punishment range.

Holding. No—a defendant has a right to withdraw a guilty plea only until judgment has been pronounced or the case taken under advisement. Here the case was passed for a presentence investigation which constitutes taking the case under advisement. The trial court’s rejection of defendant’s claim of involuntariness was not an abuse of discretion. Defendant signed and verbalized his acknowledgment of the punishment range.

Concurrence (Frost, C.J.). The arguments on appeal—diminished mental capacity—do not comport with the arguments in the trial court.

Comment. The defendant stole lingerie from Walmart. He was sentenced to 60 years. I sympathize with the defendant’s confusion (with my average mental capacity).

October 2020 SDR – Voice for the Defense Vol. 49, No. 8

Voice for the Defense Volume 49, No. 8 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

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.

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.

Supreme Court of the United States

The Supreme Court of the United States did not hand down any published criminal cases since the last Significant Decisions Report. The court will meet at the end of September to determine the granting of cert in cases for the 2020-21 term.

Fifth Circuit

United States v. Gallegos-Espinal, No. 19-20427 (5th Cir. Aug. 17, 2020)

Issue. Does a cell phone data extraction and analysis exceed the scope of consent to search when: (1) the consent was given only to obtain custody of children of a recently arrested person, (2) the scope was stated as “a complete search of the phone” and taking “any letters, papers, materials, or other property they may desire to examine,” (3) the extraction took place outside the defendant’s presence and without his knowledge, (4) the defendant ultimate would not be taking custody of the children, and (5) the analysis of data occurred three days after extraction?

Facts. A woman was arrested in an alien-smuggling investigation and requested her children be left in custody of the defendant, her adult son, who was a secondary target of the investigation. Agents seized on this opportunity to locate evidence pertaining to defendant’s mother. Agents informed defendant that it would be necessary to search his phones before handing over custody. The written consent permitted agents to take letters, papers materials, or other property they desire to examine. Agents used software to conduct an extraction. Three days later, agents find child pornography. The District Court granted suppression on the basis that the review of extracted data occurred well after defendant’s consent and because the defendant was no longer taking custody of his siblings.

Holding. Under the standard of “objective reasonableness” for determining the scope of consent, the terms of the written consent were broad. A typical reasonable owner of a cell phone would know the extensive personal information contained therein and the use of the term “complete” means everything.

Dissenting (Graves, J.). “Cell phones differ in both a quantitative and qualitative sense from other objects that might be kept on an arrestee’s person.” Riley v. California, 573 U.S. 373, 393 (2014). Sophisticated use of technology to extract exact duplicate of all data on the phone for later review was not envisioned by the agreement to search. Conducting the extraction secretly did not allow for the defendant clarify the scope.

Comment. The scope was broadly stated in outdated terms for the concept of data contained on a phone. Consent shouldn’t be sneakily obtained, but that’s how it appears to have been obtained in this case.

1st District Houston

Ex parte Edwards, No. 01-19-00100-CR (Tex. App. Houston [1st Dist.], Aug. 4, 2020)

Issue. Can the State satisfy its evidentiary burden under Article 12.01(1)(C) (elimination of the statute of limitations in a sexual assault cases) by showing that biological material was collected, sent for analysis, and 10 years later investigators took a buccal swab from the defendant?

Facts. To eliminate the statute of limitations in a sexual assault case, the State’s Article 12.01(1)(C) burden requires a showing that: (1) biological matter was collected, (2) it was tested,  and (3) testing results show the matter did not match the victim or any other person whose identity was readily ascertained. Tex. Code Crim. Proc. art. 12.01(1)(C). At the hearing on applicant’s writ of habeas corpus the parties stipulated to an offense report detailing an investigation beginning with the collection of biological material in 2003, a request for CODIS analysis, and an ultimate buccal swab of applicant in 2017. 

Holding. The implications arising from a buccal swab conducted more than 10 years after biological material was collected and sent for analysis neither satisfies the State’s burden of showing that a test was conducted on biological material, nor the State’s burden of showing that the analysis failed to produce a match to the victim or a readily ascertained person.

Comment. This is nothing ground-breaking—mostly a lesson in living by your stipulations and a good refresher on Article 12.01(1)(C).

State v. Peterson, No. 01-19-00137-CR (Tex. App. Houston [1st Dist.], Aug 25, 2020)

Issue. Does the failure to allege manner and means in a compelling prostitution case violate the due process requirement of adequately informing the defendant of the charge? Does it subject the defendant to double jeopardy?

Facts. The State tracked the language of the Statute: “did then and there unlawfully and knowingly cause by any means, K.O., a person younger than eighteen years of age, to commit prostitution.” The defendant argued that conduct constituting “any means” ranges from neglect to exploitation, and that an acquittal would ultimately attach to an indictment of unknown conduct permitting re-prosecution for the same transaction. The State pointed to subsequent briefing and discovery which narrowed the scope of the prosecution, and to the fact that the statute literally makes manner and means irrelevant.

Holding. The indictment, together with pretrial filings, provided adequate notice of the State’s theory of criminal liability so that the defendant could prepare a defense. A claim of double jeopardy without evidence of a subsequent prosecution initiated is premature.

Comment. The State does not have to prove means to obtain a conviction here. But, in a case like this the State probably must provide more information somewhere. Notice by discovery or other means is a slippery slope toward making the due process requirement of pleading a perfunctory exercise.

3rd District Austin

Ruffins v. State, No. 03-18-00540-CR (Tex. Crim. App.—Austin, Aug. 14, 2020)

Issue. Does egregious jury charge harm result from an accomplice witness instruction creating a presumption that corroboration was not required unless it was proven beyond a reasonable doubt that the witness was an accomplice.

Facts. In an aggravated robbery prosecution, the evidence presented at trial consisted of testimony from an accomplice witness, testimony from a witness who was arguably an accomplice, some arguably corroborating evidence, and an alibi witness. The jury was instructed that corroborating evidence was required only upon a finding beyond a reasonable doubt that a witness was in fact an accomplice to the commission of the offense.

Holding. The legislature has codified a predetermination that accomplice testimony alone does not satisfy a standard of proof beyond reasonable doubt. Tex. Code Crim. Proc. art. 38.14. The Article 38.14 jury instruction in this case was inverted. It should have required corroborating evidence unless the State proved beyond a reasonable doubt that the witness was not an accomplice. Because the presentation and argument of facts focused so heavily on accomplice witness testimony, the error rose to the level of egregious harm applicable to unobjected-to jury charge error.

Concurring (Baker, J.). Justice Baker would also reverse based on the lack of any requirement that the jury believe the testimony of accomplice witnesses. 

Dissenting (Goodwin, J.). Justice Goodwin would interpret trial counsel’s statements during the charge conference as invited error and disagreed with most points of analysis in the majority opinion.

Comment. A significant secondary rule of law in this case is that some corroborating evidence in the record does not cure the unobjected-to egregious jury charge harm. The Court pointed to several districts which hold this to be true – even one which would require countervailing overwhelming corroborating evidence.

4th District San Antonio

Ex parte Metzger, No. 04-19-00438-CR (Tex. App.—San Antonio, Aug 26, 2020)

Issue. Do the 2015 amended provisions of the invasive visual recording statute still violate the First Amendment as their predecessors did? The provisions at issue from Section 21.15 of the Penal Code read:

(b) A person commits an offense if, without the other person’s consent and with intent to invade the privacy of the other person, the person:

(1) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of an intimate area of another person if the other person has a reasonable expectation that the intimate area is not subject to public view;

(2) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another in a bathroom or changing room;

Facts. The defendant challenged the statute by writs of habeas corpus and motions to quash. He challenged the provisions as facially overbroad in violation of the First Amendment.

Holding. Section 21.15 is a content-based restriction because it targets speech based on its communicative content (sexually-related nature and subject matter of images). As such, the restrictions are subject to strict-scrutiny (narrowly tailored to serve compelling state interests). And, in such circumstances, the statute is overbroad only when if it continues to reach far more protected speech than the State has a compelling interest restricting. Here, the State has a compelling interest in protecting personal privacy and security in the seclusion of a home and in places where a person has a legitimate right to expect to be free from visual intrusion. These interests are invaded by unconsented visual images in changing rooms, bathrooms, by taking upskirt or down-blouse photographs, by sneaking video equipment into a person’s home, etc. The statute narrowly addresses the problem by restricting only expressive activity which invades bodily integrity and sexual privacy, which intrudes into the seclusion of a home, and which surreptitiously photographs or transmits through cracks in curtains, holes in walls, or from the ground looking up a person’s skirt. By requiring an intent to invade privacy, the statute is limited to only intolerable invasions. It is no broader than necessary to prevent substantial harms.

Comment. No party was spared from the thorough analysis of this opinion. The Court also rejected the State’s contention that “speech intended to invade substantial privacy rights should be categorically unprotected by the First Amendment.” The same result was reached in a similar challenge this month in Ex parte Ellis, No. 10-17-0047-CR (Tex. App.—Waco, Aug. 31, 2020).

5th District Dallas

Thedford v. State, No. 05-18-00884-CR (Tex. App.—Dallas, Aug. 28, 2020)(not designated for publication).

Issue. When grogginess, the mindless performance of a routine, and taking a prescribed medication all culminate in the inadvertent leaving of a child in the car, does it rise to the level of egregiousness required for negligent homicide?

Facts. Defendant, a teacher home for summer, was responsible for getting his children to daycare and preschool. After dropping his two older children off, he returned home and accidentally left his six-month-old in the back seat of the car, then he went inside, and fell asleep for a few hours. The child died of hyperthermia. Defendant misled emergency responders by telling them he had placed the child in a bassinet beside his bed while he slept. He also ultimately admitted to trying to cool the child down in the refrigerator (with door open) and taking a prescribed Seroquel the night before. At trial, the defendant presented a memory expert to show how such a tragic oversight could occur to someone of normal caution. The defendant was convicted of negligent homicide and acquitted of tampering with evidence.

Holding. Criminal negligence is not simply the criminalization of ordinary civil negligence—the required level of carelessness is significantly higher. The conduct must be egregious and with serious blameworthiness. The defendant’s failure to perceive the risk must be a gross deviation from reasonable care. Here, the routine of returning home still with a child in his vehicle after morning daycare drop-off was a new one. Absent of any significant and ignored warning signs, his conduct failed to rise above inadvertence and non-criminal negligence.

Dissent (Evans, J.). Would not impose a higher standard of serious blameworthiness nor a requirement that a defendant disregard significant warning signs. Mercy should be given in the form of probation, not acquittal.

Comment. Both the majority and the dissent seem to acknowledge that this was a terrible and tragic accident. If criminal laws are intended to conform behavior, then the majority opinion is sound. If criminal laws are intended to punish results, then so is the dissent. There have been several reverse and render opinions in negligent homicide cases in the past few years. 

6th District Texarkana

Sharpe v. State, No. 06-20-00019-CR (Tex. App—Texarkana, Aug 5, 2020)

Issue. Can an appellate court reform a probation order erroneously requiring repayment of court-appointed attorney; is the issue waived by non-objection?

Facts. On a jury verdict the trial court ordered the sentence suspended and ordered the defendant to reimburse the county for the expense of his court-appointed attorney. The defendant did not object at the time of the trial court’s order.

Holding. Appellate courts have authority to reform a probation order requiring repayment of court-appointed attorney.

Comment. The Texarkana Court indicates this would not be true when court-appointed attorney costs are assessed outside the contractual relationship of probation. When assessed merely as part of the judgment, the defendant must object at the time judgment is imposed. See Wiley v. State, 410 S.W.3d 313 (Tex. Crim. App. 2013).

7th District Amarillo

Estrada v. State, No. 07-17-00245 (Tex. App.—Amarillo, Aug 26, 2020)

Issue. Where possession with intent to deliver is an invalid predicate offense to engaging in organized criminal activity (“EOCA”), can the judgment be reformed? If so, to what?

Facts. The state’s evidence was limited to admissions by the defendant and co-conspirators that they were involved in the distribution of methamphetamine. Only one co-conspirator was discovered in possession of methamphetamine during a traffic stop. The defendant was convicted of EOCA with the predicate of offense of possession with intent to deliver – an invalid predicate. This was the second instance of the 7th Court considering this case. The State filed PDR, and the Court of Criminal Appeals remanded with instructions to consider the possibility of reformation.

Holding. Criminal conspiracy to commit possession of controlled substance with intent to deliver is a lesser included offense of EOCA with the same predicate offense. The judgment can be reformed accordingly on appeal.

Comment. Conspiracy is probably a correct offense for prosecution. It is unclear from the Court’s opinion whether the jury considered and acquitted the defendant for the actual act of possessing with intent to deliver or why the predicate itself is not the appropriate crime for prosecution. Under the strict analysis of McKithan v. State (holding offensive contact assault is not a lesser included offense of bodily injury assault), this lesser included analysis may present issues. EOCA requires collaboration by three or more people. Criminal conspiracy requires an overt act by two or more people. Arguably, criminal conspiracy requires the State to prove something more than it would have to in an EOCA prosecution.

8th District El Paso

In re State of Texas, No. 08-19-00151-CR (Tex. App.—El Paso, Aug. 31, 2020)

Issue. Under Article 39.14, Code of Criminal Procedure, can a trial court compel discovery of (1) prior instances of expert testimony, (2) prior transcripts of expert testimony, (3) materials relied on by experts (“gang files”), and (4) disclosure of the substance of proposed testimony which varies from written report?

Facts. This case is a prosecution for engaging in organized criminal activity arising from alleged activities of the Bandidos Outlaw Motorcycle Gang and Traviezos Motorcycle Club. The Defendant anticipated the State’s presentation of expert testimony regarding motorcycle gangs. The trial court granted some, but not all, of defendant’s discovery requests. The State resisted disclosure of all items listed above and sought mandamus relief.

Holding. The State did not meet the mandamus burden (ministerial act + no other adequate remedy). Much of the information sought by the defendant falls expressly under Article 39.14. Article 67 (pertaining to street gang database) also contemplates disclosure under Article 39.14. Facts and data underlying the expert’s opinion are as material as the opinion itself.

Comment. The 6th Court of Appeals, in a case pre-dating the Michael Morton Act, had found that Article 39.14 or Texas Rules of Evidence 104, 702, 703, or 705 of the Code of Criminal Procedure does not require disclosure of expert opinions or the bases for those opinions. The Court was unwilling to surgically address aspects of this case, specifically with regard to the potential overbreadth of the order and the possibility it could require the State to create new documents (an act not contemplated by Article 39.14). Instead the Court cautioned the trial court with regard to the State’s complaint.

10th District Waco

In re Keeling, No. 10-20-00199-CR (Tex. App.—Waco, Aug. 21, 2020)

Issue. Does the trial court have a ministerial duty to consider and rule upon a pro se request for a free record?

Facts. TDCJ inmate wants a free record for habeas purposes. He filed a motion and purportedly sent a certified letter requesting a ruling.

Holding. Yes. The trial court has a duty to rule upon a pro se request for free record.

Ragan v. State, No. 10-20-00199-CR (Tex. App.—Waco, Aug. 21, 2020)

Issue. When a defendant voluntarily waives jury trial, must the trial court ask verbatim whether the defendant’s decision is made knowingly and intelligently?

Facts. During voir dire, the defendant passed a note to his counsel that he wanted to waive a jury trial and proceed with a trial before the court. Counsel presented his client’s wish to the court. Counsel explained on the record the defendant’s right to a jury trial and the role the judge would play if the trial proceeded without a jury. The trial court inquired, and the defendant confirmed his decision to proceed was made voluntarily and with advice of counsel. Defendant signed a jury trial waiver. During the colloquy the trial court did not specifically inquire whether his decision was also intelligent and knowing.

Holding. The trial court must not ask verbatim whether the defendant’s decision is made knowingly and intelligently where the defendant admitted his waiver was voluntary, the procedure complied with Article 1.13 of the Code of Criminal Procedure, and caselaw indicates compliance with 1.13 shows the waiver was intelligently made as well.

Comment. Federal courts expressing guarantees of the federal constitution probably require more, including: an assessment of the defendant’s ability to make an intelligent decision, the awareness of risks and benefits of foregoing a jury trial, and some knowledge of the right to a jury trial.

Reed v. State, No. 10-19-00363-CR (Tex. App.—Waco, Aug. 26, 2020)

Issue. Must a trial court limit a lesser-included offense instruction in the same manner the greater-included offense is limited—by specific manner and means? Does the failure to do so constitute egregious jury charge harm?

Facts. A college student becomes highly intoxicated at a bar, returns to her condo, awakens with the defendant on top of her and no pants on. She believed she was raped. Defendant was charged under a theory of sexual assault by penetrating the victim’s sexual organ with his sexual organ. Some of the witnesses advanced a theory that the defendant used his sexual organ for penetration while others advanced a theory that he used his mouth. The jury convicted of a lesser-included offense of attempted sexual assault.

Holding. The State is bound to prove the manner of penetration it alleges. Here, it alleged penetration of sexual organ using a sexual organ. The jury charge permitted conviction on the lesser included offense of attempt, but under any form of penetration in the law. This improperly broadened the indictment by adding manner and means not plead. The error constituted egregious harm because it affected the very basis of the case by allowing jurors to convict the defendant on the belief that he penetrated the victim by means other than that alleged in the indictment. 

Comment. Surely, had the parties caught this error, the trial court would have corrected it. This is a rare case of not objecting working to the favor of the defendant.

11th District Eastland

Williams v. State, No. 11-18-00171-CR (Tex. App.—Eastland, Aug. 13, 2020)

Issue. When a jury returns an ambiguous verdict resulting from the trial court’s erroneous crafting of the jury verdict form must the trial court grant a motion for mistrial?

Facts. The defendant was charged with two counts of injury to child by omission. The jury was instructed to complete “Verdict Form C” if they find the defendant guilty as charged in Count II. That form erroneously stated a conviction for a lesser included offense. This was discovered by the trial court after the jury read its verdict. While the parties considered remedies outside the presence of the jury, they received a jury note indicating intent to convict the defendant on both counts as charged. Defendant requested the jury polled and then requested a mistrial. The trial court denied the mistrial, prepared proper verdict forms, and sent the jury back to deliberate. The jury returned verdicts on the two charged offenses, and the trial court confirmed the jury’s verdict by a poll.

Holding. “A mistrial is a device used to halt trial proceedings when an error is so prejudicial that expenditure of further time and expense would be wasteful and futile.” It is the duty of the trial court to reject insufficient verdicts and either correct with the jury’s consent or send the jury out to reconsider. The trial court did not err in refusing a mistrial and sending the jury back to correct the error.

14th District Houston

State v. Baldwin, No. 14-19-00154-CR (Tex. App. –Houston, Aug. 6, 2020)

Issue. By discussing generally how bad guys use phones, did a search warrant allege sufficient facts linking a cell phone found in a suspect’s car to the commission of a capital murder by co-conspirators?

Facts. Two masked gunmen killed a homeowner during the course of a robbery. Investigators acquire suspect description, a vehicle, a license plate, and the identity of the most recent vehicle purchaser. As a result, the defendant was arrested during a traffic stop four days later, and his vehicle was impounded. Officers apply for and obtain a search warrant for a cell phone found in the vehicle. The trial court grants a motion to suppress. The warrant affidavit at issue did not contain any particularized facts that directly connected the cellphone to the capital murder, rather, it contained boilerplate recitations about the abstract use of cellphones, training, and experience.

Holding. Despite the lack of direct evidence linking cell phone usage to the alleged crime, the common usage of cellphones among co-conspirators gives rise to a legitimate assumption that evidence of the crime would be found on the cell phone linked to one of the co-conspirators.

Dissent (Burliot, J.). Vague boilerplate accusations that people generally use cell phones when they commit crimes is not a formula for probable cause. Cell phones are unique under Fourth Amendment analysis, they contain the “most intimate details of a person’s individual life.” State v. Granville, 423 S.W.3d 399, 408 (Tex. Crim. App. 2014).

Comment. It is hard to imagine what, if any, circumstances a cell phone would not be subject to search under this rationale. A distinguishing feature of this case is the existence of co-conspirators, however. This elevates the assumption of cell phone coordination somewhat. Appellate litigation appears ongoing in this matter as of the date of this summary.

In re Pete, No. 14-20-00456-CR (Tex. App.—Houston [14th Dist.], Aug. 13, 2020)

Issue. Does the trial court have a ministerial duty to reduce oral rulings to writing?

Facts. A pro se defendant obtained oral rulings on discovery motions but refused to sign written orders reflecting its oral rulings.

Holding. Yes, rulings must be written if requested.

Stredic v. State, No. 14-18-00162-CR (Tex. App.—Houston [14th Dist.], Aug. 13, 2020)

Issue. Does Article 36.28 of the Code of Criminal Procedure allow for a written transcript of disputed testimony to be provided to the jury during deliberations?

Facts. In a murder prosecution, the defendant’s theory was that he was only guilty of manslaughter or negligent homicide. The jury requested a transcript of the defendant’s testimony which the State presented as inconsistent with his video statement. The trial court provided the jury with four pages of the defendant’s testimony over the defendant’s objection.

Holding. Article 36.28 only permits the oral readback of the court’s reporter’s notes. It was a clear abuse of discretion to supply the jury with transcription of testimony over a defendant’s objection. This error affected the defendant’s substantial rights. A trial court furnishing the jury with testimony in the form of an exhibit amounts to an impermissible comment on that testimony’s importance.

Concurring (Zimmerer, J.). Writes separately to stress the harmful nature of the error.

Dissenting (Wise, J.). Writes in dissent and would find error but no harm.

Comment. A long line of cases hold that reading and not supplying testimony strikes a balance between judicial comment on evidence and the jury’s need to resolve conflict. Judicial comments on the weight of the evidence are more harmful than those which merely affect a defendant’s substantial rights; they rise to the level of fundamental error, reviewable even without objection. Instead of providing the jury a single oral readback, it provided them with an exhibit available to be passed among the jury and to be read, considered, and scrutinized without restraint.

Fury v. State, No. 14-18-00935-CR (Tex. App.—Houston [14th Dist.], Aug. 25, 2020)

Issue. Was it improper for the trial court to permit mid-trial abandonment of language from an assault on public servant indictment which incorrectly described the reason a police officer was escorting a defendant through the jail when the assault occurred?

Facts. The indictment described a police officer as transporting the defendant-inmate in the jail “to be magistrate[d].” The testimony showed that the alleged assault occurred after the defendant had been magistrated. During a break in the State’s case-in-chief, the State moved to abandon the surplus language from the indictment: “to be magistrate[d].” The defendant objected and argued on appeal that the alteration constituted an amendment and not a mere abandonment.

Holding. While Article 28.10 of the Code of Criminal Procedure prohibits the State from amending an indictment during trial over the objection of the Defendant, an abandonment of surplusage is not an amendment. In some circumstances extra language which describes a necessary person, place or thing, with particularity is substantive and may not be abandoned, but here the reason why the officer was escorting the defendant was irrelevant.

Comment. Is it? The indictment after alteration described the officer’s performance of a duty as “escorting the defendant at the La Marque Jail.” Defendant testified at trial that jailers were physically assaulting him for attempting to raise alarm with the magistrate over jail conditions, the defense theory follows that not all “escorting” constitutes performance of an official duty.

Stats Show Racial Inequities for Organized Retail Theft Arrests Statewide

Let’s say I wanted to steal an Xbox from Fry’s (or any other retail store). Maybe it’s for a thrill, a dare, voices in my head, or maybe I just want to eat Cheetos all day and play video games on my sofa. Whatever the reason, it is unimportant.

I have committed theft—this is obvious. But, were you aware I also committed Organized Retail Theft (“ORT”)? TEX. PEN. C. 31.16(b) provides:

A person commits an offense if the person intentionally conducts, promotes, or facilitates an activity in which the person receives, possesses, conceals, stores, barters, sells or disposal of . . . (1) stolen retail merchandise.

Arrests for ORT under these circumstances aren’t theoretical, either. Dr. Michael Braun is a statistics professor from SMU’s Cox School of Business. He recently completed a comprehensive study published in the Journal of Empirical Legal Studies (JELS) which found not only were there thousands and thousands of arrests made for organized retail theft where the amount stolen was consistent with ordinary shoplifting—but also racial minorities are bearing a disproportional share of the arrests.

Dr. Braun studied over 110,000 organized retail theft arrests and ordinary thefts through open records from police agencies around the state. He found an African American is twice as likely as a white person to be arrested for ORT. His research found that African-American females are 160% as likely as a white person to be arrested for ORT. At least 30 police agencies showed racial disparities in their arrests based on Dr. Braun’s statistics and research.

There were unsuccessful attempts made this past session in the Texas House and Senate to make the Penal Code consistent with other states’ treatment of Organized Retail Theft. State Representative Jessica Gonzalez (D–Dallas) and State Senator Royce West (D–Dallas) filed bills in the House and Senate to amend the definition of ORT. However, Lieutenant Governor Patrick did not allow Senator West’s bill to reach the Senate Floor, thereby effectively killing it for this session. The proposed fix would install a $2,500 threshold to ORT amounts and would also require the stolen property to be possessed with the intent for the property to be re-distributed.

The Court of Criminal Appeals has weighed in on the issue, too, holding ordinary shoplifting, in and of itself, cannot be organized retail theft even with the bizarre language under 31.16(b). See Lang v. State, 561 S.W.3d 174 (Tex. Crim. App. 11/22/2018). This opinion expounds the need for the statute to be fixed.

Dr. Braun’s full article can be read at the following link: