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.

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

Voice for the Defense Volume 51, No. 4 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

All I wanna do is zoom-a-zoom zoom zoom and a . . . not be physically present for confrontation clause purposes poom poom. What I mean to convey is there’s a pretty excellent Zoom case in this edition and it’s important. Justice Kagan rejects the notion that time is a flat circle. Omissions are acts if acts are part of the omission. If you’re confused, you won’t find more answers by reading this, but you should do it anyway!

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

Wooden v. United States, 142 S. Ct. 1063 (2022)

Issue & Answer. The Armed Career Criminal Act (ACCA) enhances a defendant’s minimum sentence when that defendant has three prior violent offenses “committed on occasions different from one another.” Does “occasions different from on another” mean anything separated by any amount of time no matter how small? No.  

Facts. In a single evening, the defendant burglarized ten units in a single storage facility. He pleaded guilty and was convicted on ten criminal counts. 20 years later, in the instant case, a federal court determined those convictions were sufficient to subject him to the Armed Career Criminal Act (ACCA) mandating a 15-year minimum sentence on his unlawful possession of a firearm charge. His sentence was 13 years longer than it would have been without the enhancement. The ACCA is triggered by three prior violent felonies “committed on occasions different from one another” and the district court reasoned that entry into each unit constituted a distinct commission of a separate offense on separate occasions despite the burglaries occurring in the course of a single crime spree, under a single roof, and were charged in a single indictment.  

Analysis. The ACCA is triggered by three prior violent felonies “committed on occasions different from one another.” The trial court accepted the Government’s erroneously strict temporal definition of “occasion” as meaning incidents occurring one after another. An “occasion” is essentially an episode or event. An ordinary person would describe his conduct this way: “on one occasion, Wooden burglarized ten units in a storage facility.” They wouldn’t say “On ten occasions, Wooden burglarized a unit in the facility.” Here the legislature placed two conditions on the applicability of the ACCA: (1) different offenses, and (2) different occasions. The commission of multiple offenses can almost always be separated by at least a small moment in time. If every time someone commits more than one offense it also constituted more than one occasion, it would render these two distinct requirements under the ACCA meaningless. Proximity and timing do matter, but not in the strictly technical sense that the Government would have it. This interpretation is consistent with the legislative history, as well. Congress specifically amended the ACCA to exclude the use of multiple convictions in a single criminal episode. The design and focus of the statute are aimed at the career criminals, not criminals who happen to commit multiple offenses on the same night. 

Concurrence (Sotomayor, J.) Justice Gorsuch might be right that the record is unclear, but clarity in the record cuts against the Government. Justice Gorsuch is correct to apply the rule of lenity as an independent basis for ruling in favor of the defendant.

Concurrence (Kavanaugh, J.) Addressing Justice Gorsuch’s lenity argument, the rule should only apply when a criminal statute is “grievously ambiguous.” It is only applied after all other rules of interpretation fail. To presume mens rea where the legislature has stated none is a better approach.

Concurrence (Barret, J.) The majority opinion’s historical analysis of the ACCA is incorrect.

Concurrence (Gorsuch, J.) The majority’s multi-factor approach to considering proximity, timing, and intertwining of offenses lends little help for future cases.  The rule of lenity offers more guidance. “If the law inflicting punishment does not speak plainly to the defendants conduct, liberty must prevail.” Judges should not expand penal laws to “cover problems Congress failed to anticipate in clear terms.”

Comment. Okay, here is another quote which was not necessary to a summary of the case, but which I loved:

The occasion of a wedding, for example, often includes a ceremony, cocktail hour, dinner, and dancing. Those doings are proximate in time and place, and have a shared theme (celebrating the happy couple); their connections are, indeed, what makes them part of a single event. But they do not occur at the same moment: The newlyweds would surely take offense if a guest organized a conga line in the middle of their vows. That is because an occasion may—and the hypothesized one does—encompass a number of non-simultaneous activities; it need not be confined to a single one.

Fifth Circuit

United States v. Sheperd, 27 F.4th 1075 (5th Cir. 2022)

Issue & Answer. The defendant’s lawyer represented the Government’s star witness when that witness debriefed and provided assistance to the Government detrimental to the defendant. The Government was aware of this conflict, but the lawyers on both sides disregarded. Does this constitute a scenario requiring dismissal for denial of conflict-free counsel under the Sixth Amendment? Maybe.

Facts. The Government accused the defendant of Medicare fraud. The lawyer who represented her until days before trial also represented the Government’s star witness. During his representation of defendant, defendant’s lawyer represented another client at a debrief with the FBI and prosecutor. Attorney’s other client would ultimately provide useful information about the defendant and serve as a witness the Government intended to sponsor at defendant’s trial. Notwithstanding all lawyers recognizing the conflict, the debrief went forward. During the next several months the Government added six more counts of healthcare fraud while the lawyers continued to keep the conflict-infected debrief secret from the defendant. Months before trial, defendant’s attorney secured a replacement attorney on account of the conflict. The replacement attorney asked for more time to prepare, and the parties explained the situation to the trial court. The trial court proceeded as planned but excluded the testimony of the conflicted witness. However, the trial court declined to dismiss the case on defendant’s motion raising Sixth Amendment violations. The jury convicted and the judge sentenced the defendant to 30 years in prison.

Analysis. The right to counsel is one of the most important rights afforded a criminal defendant.

One of the most indispensable duties that any counsel owes his client is the duty of loyalty. Counsel breaches that duty when he labors under an actual conflict of interest. And if he breaches the bedrock duty of loyalty, then his representation will fall below the objective standard of reasonableness that the Constitution requires.

In cases where a defendant can show her counsel had a conflict of interest there exists a limited presumption of prejudice where a reviewing court will reverse if the defendant can show that the conflict adversely affected counsel’s performance (as opposed to a probability that it affected the outcome). An attorney’s performance is affected if his judgment was “fettered by concern over the effect of certain trial decisions on other clients.” There is a possibility that the attorney could have persuaded defendant to proceed to trial in order to benefit the conflicted witness. But this record is not sufficiently developed for the court to reach such a conclusion. Therefore, the case must be remanded for further hearing. 

Comment. I don’t mess with representing federal co-defendants if they know each other. Inevitably, one of your client’s names will come out of the other client’s mouth with the intent to reduce a sentence. Probably no conflict exists until something like that occurs, and as long as both clients know of the potential for conflict and sign off on it. A common situation where a lawyer might do something like this is in representing two people arrested in a car with weed in it. Except, in a federal case, there are Title III wiretaps, GPS tracking, search warrants on search warrants, confidential informants, undercover federal agents, probably a lot more money you have to refund after a potential conflict becomes a real one, and a federal judge who will not be so happy about your last-minute motion to withdraw. So, again, I wouldn’t represent federal co-defendants except in limited circumstances.

Texas Court of Criminal Appeals

Garcia v. State, No. PD-0025-21 (Tex. Crim. App. 2022)

Issue & Answer. A restitution order can rest on a faulty legal basis or can lack evidentiary support. It is well established that an objection is required to complain about a faulty legal basis on appeal. Is an objection required to complain about lack of evidentiary support, as well? Yes.

Facts. A jury convicted defendant of aggravated sexual assault. Evidence showed that the Bell County District Attorney paid for a sexual assault exam and was reimbursed by the Attorney General. At the conclusion of defendant’s punishment hearing, the trial court ordered $1,000 restitution payable to the Attorney General. Trial counsel did not object, however the court of appeals found the record to lack evidentiary sufficiency to support the conclusion that the $1,000 restitution would “compensate a victim for loss or injury.”

Analysis. In Idowu v. State the court “drew a distinction between challenges to the factual basis of restitution orders and those that challenge the propriety of such orders; challenges to ‘the appropriateness of (as opposed to the factual basis for) a trial court’s restitution order’ must be explicitly raised in the trial court.” Idowu did not address whether a sufficiency challenge requires error preservation through an objection raised in the trial court. The court of appeals’ reliance on this distinction as permission to review an unpreserved error was incorrect. A complaint about the evidence supporting a restitution order is a due process complaint, and due process complaints can be forfeited by a failure to object. Moreover, the “distinction between factual basis and appropriateness is unclear, we should not rely on it to decide whether challenges to restitution orders must be preserved in the trial court.”

Dissent (Yeary, J.). “I would remand the case to the court of appeals to address the procedural default question in the first instance.”

Comment. The court distinguishes this scenario from assessment of court-appointed attorney fees which requires no objection if assessed without a finding of the defendant’s ability to pay. The Code of Criminal Procedure imposes an affirmative duty on the trial court in the context of court-appointed attorney fees. The Restitution statute has no such affirmative duty, rather it imposes an obligation to consider factors. In my opinion, if both tasks require factual findings, they are not that dissimilar.

Swinney v. State, No. PD-0216-21 (Tex. Crim. App. 2022)

Issue & Answer. A defendant receives ineffective assistance of counsel when his attorney incorrectly advises him that he is eligible for probation from the trial court. But in order to obtain reversal, an appellate court must find prejudice. Does prejudice require a showing that the defendant would have received probation had his attorney given him correct advice? No.

Facts. A jury convicted defendant of aggravated assault with a deadly weapon. Before trial he filed an election for trial court punishment as opposed to jury punishment. In argument, counsel argued for probation. The trial court questioned its ability to grant probation. Counsel insisted defendant was statutorily eligible. He was not. A jury could have granted probation under appropriate circumstances, but the trial court could not. The court of appeals affirmed the defendant’s sentence citing his inability to show that he would have received a better result had he requested probation from a jury.

Analysis. “A successful IAC [ineffective assistance of counsel] claim depends on (1) deficient performance and (2) prejudice. Prejudice may be measured in one of two ways: a reasonable probability of a different outcome or a reasonable probability of a different decision by the defendant.” If the deficient performance pertains to a guilty verdict, prejudice is evaluated by looking to the potential for having achieved a not guilty verdict. If the deficient performance pertains to punishment, prejudice is evaluated by looking to the potential for having achieved a better result. “But if the deficient performance might have caused the defendant to waive a proceeding he was otherwise entitled to, then the reasonable probability that the deficient performance caused the waiver fulfills the prejudice requirement.” The different-outcome analysis is somewhat relevant to deciding whether the defendant would have made a different decision, but it is not the proper analysis for deciding prejudice arising from erroneous probation eligibility advice. Ultimately, the record says nothing about the impact of the attorney’s erroneous advice and some evidence suggested a viable strategy of electing the trial court for punishment. Thus, the defendant failed to show he would have made a different decision had he been properly advised.

Comment. I think the failure to properly advise on probation eligibility should be evaluated at a near-per-se-prejudice level. I’m not aware of many instances in practice where a client says, “let’s go the non-probation route in punishment.”

Ratliff v. State, No. PD-0545-20 (Tex. Crim. App. 2022)

Issue & Answer 1. A person commits the offense of tampering with a governmental record when that person makes, presents, or uses the record with knowledge of its falsity. When an officer enters into a person’s home in clear violation of the Fourth Amendment, but omits this fact from an offense report intentionally, has the drafting officer committed the offense of tampering with a governmental record? No.

Issue & Answer 2. An officer commits the offense of official oppression when the officer intentionally subjects another to mistreatment or unlawful arrest or intentionally denies or impedes another in the exercise or enjoyment of any right. To justify an otherwise illegal entry into a home (and thus defend an official oppression case), can an officer rely on hot pursuit when he was not actively pursuing the arrestee? No.

Facts. Defendant was the Llano chief of police. He was one of three responding officers when an angry officer (“Angry Officer”) attempted to arrest his neighbor (“Neighbor”) for public intoxication after Neighbor told Angry Officer to slow down while driving in the RV park. 20 minutes after this interaction, the defendant and two other officers arrive to help Angry Officer conduct a public intoxication arrest. But at this point Neighbor had already gone back inside of his RV. The officers demanded defendant come outside, but Neighbor adamantly refused. As reflected on a bodycam recording, he not only refused, but did so on 13 occasions.

00:11-00:13: “The best thing I can tell you is get off my door.”
00:23-00:24: “I am not stepping out.”
00:26-00:27: “You are not coming in.”
00:28-00:34: “This is my personal owned property. I am not. And I am not.”
00:56-00:56: “No sir.” (In response to ‘step outside’)
01:24-01:25: “Get your hands off my door.”
01:29-01:33: “Get your hands off my door. This is my property.”
01:35-01:36: “Take your hands off.”
01:40-01:42: “Take your hands off of my door.”
01:49-01:51: “Take your hands off my door.”
01:55-01:56: “Please take your.”
04:11-04:13: “Why am I stepping out of my.”
04:24-04:25: “For what.” (In response to ‘come down those steps’)
09:31-09:34: “Are you coming in for what reason?”
10:48-10:50: “I don’t wanna walk outside.”

Angry Officer attempted to get Neighbor out of his RV by threatening him. He threatened to call his supervisor, threatened to forcibly remove him, and threatened resisting arrest charges. Another officer pointed a taser at Neighbor’s crotch and threatened to electrocute him. The defendant eventually showed up, entered Neighbor’s trailer, positioned himself behind Neighbor, and directed Neighbor outside in handcuffs. Angry Officer prepared an offense report detailing the accusation of Neighbor’s intoxication. The report did not make any suggestion that officers did something improper or reference the additional non-officer witnesses at the scene. Defendant signed off on the offense report. 

Analysis 1. The State’s witnesses detail the importance of an offense report and the need for a comprehensive description of events and witnesses. The report at issue did neither of these things. “At most, the State’s witness testimony supports the proposition that these witnesses disagree with [the reporting officer’s] reporting style.” Though the report omits important information, nothing contained in the report is false. An omission can serve as the actus reus for an offense only when the defendant has the legal duty to act. Here, there is no statute which dictates the contents of an offense report.

Analysis 2. Exigent circumstances arise from the need to (1) provide aid, (2) protect officers from a person who is presently armed and dangerous, or (3) prevent the destruction of evidence or contraband. Hot pursuit would also justify warrantless entry into a home. Here the closest justification was hot pursuit. But hot pursuit was not established. First, hot pursuit requires a pursuit of a felony offense. This was a Class C misdemeanor. Second, the pursuit must be continuous. Here the continuity of pursuit was broken when Angry Officer chose to go work on a different case before returning to the resolve the instant offense. 

Concurrence / Dissent (Keller, J.). The Code of Criminal Procedure permits an officer to arrest for offenses viewed in his presence. There was some indication in the record that Angry Officer re-engaged with Neighbor after tending to whatever emergency required him to initially disregard Neighbor’s purported intoxication upon his initial contact. This is when Neighbor fled into his home. The defendant had no reason to conclude that hot pursuit was not an available justification in the case of a Class C misdemeanor. This is the first the Court has stated this.

Comment. It is a slippery slope to hold officers criminally accountable for offense report omissions, and lawyer-like understandings of Fourth Amendment law. I agree with a lot of what Judge Keller is saying. But her rationale relies on the theory that the hot pursuit occurred when Angry Officer re-engaged with Neighbor after the first break in continuity. It probably did. But the problem is that this rationale points to some evidence in the record supporting innocence as a basis for finding evidence insufficient. This isn’t the standard. It’s any evidence in the record supporting the conviction, and a jury was free to disregard the witness testimony supporting Judge Keller’s rationale.

Ex parte Dotson, No. WR-74,562-02 (Tex. Crim. App. 2022)

Issue & Answer. Was appellate counsel ineffective for failing to raise an illegal sentence claim based on the improper use of enhancements? Yes.

Facts. The facts are as stated in Judge Slaughter’s dissent as it is the only opinion providing background. In 2009 a jury convicted the defendant for a state-jail felony offense of possession of less than a gram of cocaine. The defendant pled true to two prior felony enhancements which raised his offense level to a second degree. He was sentenced to 18 years in prison. One of the enhancements to which defendant pled true was a state jail felony and thus not a valid prior felony enhancement. Defendant’s appellate counsel did not raise this on direct appeal. 12 years later defendant amended a pending writ of habeas corpus to incorporate this new ineffective assistance of appellate counsel claim.

Dissent (Keller, J.). This case should be decided on Lockhart v. Fretwell, 506 U.S. 364 (1993). In Fretwell the Supreme Court reversed a court of appeals decision holding that an error judged by a previous statute in effect at the time of trial is reversible notwithstanding its subsequent repeal. The Supreme Court indicated the analysis should focus on whether the proceeding was fundamentally unfair or unreliable, and not on the outcome. Here there was no fundamental unfairness because applicant’s actual criminal history supports his enhancement. Moreover, on resentencing, the exact same punishment range will be available to the State using a different enhancement.

Dissent (Slaughter, J.). “In his application, Applicant candidly acknowledges that he had other prior felony convictions that could have supported enhancement . . .” This precludes him from relief under Ex parte Parrott, 396 S.W.3d 531 (Tex. Crim. App. 2013). A habeas applicant cannot establish harm from improper enhancement if his enhanced punishment range was otherwise supported by criminal history. Applicant focuses on ineffective assistance of appellate counsel and not ineffective assistance of trial counsel for this reason—had trial counsel objected, the State would have substituted a proper conviction. At the time of Applicant’s direct appeal there was a lack of clarity in the law as to whether an improper enhancement appeal was meritorious without a trial objection. The failure to raise a murky issue is not ineffective assistance of appellate counsel. Also, this application should be barred by laches.

Comment. I wish the court’s opinion provided some analysis. They don’t typically in routine habeas appeals. Judges Slaughter and Keller are making good points. There must be a counterargument if a five-judge majority felt differently.

Gutierrez v. State, No. AP-77,102 (Tex. Crim. App. 2022)

Issue & Answer. A federal district court declared Texas’s post-conviction DNA testing statute unconstitutional for failing to provide a mechanism to vindicate an erroneous death sentence which stands on an otherwise good conviction. Does the constitutional invalidation of the DNA testing statute eliminate post-conviction jurisdiction of the sentencing court such that inmates may no longer bring post-conviction DNA testing motions? No.

Facts. The State is seeking to kill the defendant, and the defendant is seeking to test various items for DNA. He requires DNA testing to explore his theory that the victim’s nephew was the true perpetrator of the offense. The Court of Criminal Appeals has twice previously affirmed a trial court’s finding that the defendant cannot establish a likelihood of having avoided conviction with the benefit of favorable test results.  Defendant filed a civil rights lawsuit in federal district court and obtained a ruling in his favor. The federal district court declared Texas’s procedural requirements for post-conviction DNA testing unconstitutional for failing to provide a mechanism for DNA testing to prove oneself “innocent of the death penalty.” Defendant subsequently filed his third motion for post-conviction DNA testing in a state district court. That court dismissed defendant’s motion and claimed it no longer had jurisdiction in light of the federal invalidation of the relevant statute.  

Analysis. The federal district court did not invalidate what the statute validly authorizes: motions to attack a conviction. The federal district court opinion is not final because it is now pending in the Fifth Circuit. Moreover, the decisions of federal district and circuit courts are not binding authority on Texas state courts. “The trial court in this case was not divested of its jurisdiction to entertain and resolve Appellant’s third motion for post-conviction DNA testing by the federal district court’s opinion.”

Comment. The Court’s opinion puts “innocent of the death penalty” in quotes throughout. They don’t define the concept or explain why. I wasn’t sure whether the Court meant to convey a belief that the concept is silly, that the phrasing is silly, or that it is an elsewhere-defined concept. So, I researched. It means that “no reasonable juror would have found [the defendant] eligible for the death penalty under applicable state law.”  Sawyer v. Whitley, 505 U.S. 333, 336 (1992).

Alcoser v. State, No. PD-0166-20 (Tex. Crim. App. 2022)

Issue & Answer. This case involved a multi-count jury trial with 13 unobjected-to jury charge errors. Only a few affected the jury’s consideration of the State’s allegation that the defendant committed assault family violence. Where errors are the type where a defendant might have derived some benefit had they not existed, has a defendant shown sufficient harm to secure a reversal? No.

Facts. Defendant and complainant were in a verbal altercation. Complainant testified that she confronted the defendant when he began gathering his clothing and while he was attempting to leave the house. According to the complainant, defendant grabbed her by her face, pushed her to the ground, put his hands on her throat, and choked her. After a break in the assault, complainant attempted to call 911 but Appellant took her phone and broke it. Appellant then chased her around the house with a bat and threatened to kill her. Eventually she got away with one of her children; the other child ran to the neighbor’s house to ask for help. Appellant claims to have acted in self-defense because the complainant attacked him. A jury convicted defendant of family violence (enhanced with prior conviction), endangering a child, and interference with emergency request for assistance. On appeal, defendant claimed that an array of erroneous jury charges caused him egregious harm (standard for reversing unobjected-to jury charge error). The court of appeals found defendant was “egregiously harmed by the cumulative errors.”

Analysis. The jury charge contained 13 errors ranging from improper definitions of culpable mental states to misplacement of the self-defense instruction and omission of abstract paragraphs and definitions. The State concedes the Court of Appeals correctly reversed defendant’s convictions for endangering a child and interference with emergency request for assistance. The remaining analysis is focused on the errors which affected the family violence charge: an incorrect definition of “knowingly,” the placement of the self-defense instructions, the self-defense application paragraph, and the omission of the presumption of reasonableness instruction (home defense). The erroneous definition of “knowingly” was harmless. Defendant admitted that he acted knowingly when he defended his case by self-defense. The misplacement of the self-defense instruction was harmless. Though its placement made it applicable to the offense of interference with emergency request for assistance, the language of the self-defense instruction made it applicable to assault. The omission of a self-defense application paragraph and appropriate presumption of reasonableness are more nuanced issues to which the court must apply the multi-factor egregious harm test for unobjected-to jury charge set forth in Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984). Here, under the Almanza analysis, there was not egregious harm. The state of the evidence suggested that the State’s case was not necessarily strong enough to likely overcome a presumption of reasonableness. However, the arguments of counsel did not focus on whether defendant’s use of force was reasonable or necessary. The arguments were a traditional he-said-she-said juxtaposition. This was sufficient to overcome any likelihood of acquittal which may have flowed from the appropriate instruction.

Concurrence (Yeary, J.). The court of appeals shouldn’t be pointing out things a trial court did wrong when they weren’t pointed out by the parties. The court of appeals shouldn’t have cumulated the jury charge error and applied it to all offenses. Instead, each error should have been carefully assigned to the offense to which it applied.

Comment. Almanza is a four-factor test: (1) the entirety of the jury charge, (2) the state of the evidence, (3) arguments of counsel, and (4) other stuff. The court acknowledges this jury charge is a mess and that the state of the evidence was such that a correct jury charge would have put the defendant in a better position. The only factor militating against reversal was the fact that the attorneys didn’t really argue about whether the defendant was acting reasonably. This is an example of why factor tests aren’t that helpful. They provide a nice way to format a brief, but they don’t tell you who wins.

Patterson v. State, No. PD-0322-21 (Tex. Crim. App. 2022)

Issue & Answer. Does a warrant sufficiently describe the place to be searched when the warrant only describes a fraternity house but the incorporated affidavit describes the room inside the fraternity house officers wish to search? Yes.

Facts. Police received multiple calls regarding a drug overdose at the Texas A&M Sigma Nu fraternity house. Upon arrival and discovery of a deceased fraternity member, the police treated the fraternity house as a murder scene. They conducted a protective sweep of the house and discovered narcotics and paraphernalia in plain view in common areas and in certain rooms, including defendant’s room 216. Both the warrant affidavit and the resulting warrant described the suspected place as the fraternity house. However, the warrant affidavit also described the suspected room 216 and what law enforcement had seen in the room giving rise to probable cause. This information did not appear under the heading “suspected place” but rather ‘synopsis of investigation.” The court of appeals pointed to this as the basis for why the incorporated warrant affidavit did not cure the warrant’s non-specificity.

Analysis. “When a search warrant affidavit is incorporated into a search warrant, it becomes a part of, and can be used to aid the description in, the search warrant.” When read in a common-sense manner, the affidavit described Appellant’s room as the place to be searched.

Valadez v. State, No. PD-0574-19 (Tex. Crim. App. 2022)

Issue & Answer. Can the State use the “doctrine of chances” to present evidence of numerous context-less marijuana “incidents” involving a defendant who denies at trial knowledge of marijuana hidden inside a vehicle. No.  

Facts. Defendant was the backseat passenger in a car that smelled like marijuana. A DPS trooper stopped the vehicle for a window tint violation. During the stop the trooper noted the smell of marijuana and the fact that the three passengers behaved nervous and did not have consistent stories about their plans. Eventually the DPS trooper discovered 18 pounds of marijuana concealed in the vehicle. Defendant claimed at trial he was an innocent passenger uninvolved in the distribution. Defendant sponsored the testimony of vehicle’s driver who had already pleaded guilty and taken responsibility for the marijuana. The driver testified that the defendant had no knowledge of the marijuana or his plans to distribute. Over Defendant’s Rule 404(b) and Rule 403 objections, the State introduced evidence of six prior instances where the defendant was “connected with” marijuana. The trial court also denied defendant’s request for a limiting instruction on this issue. The court of appeals held that the defendant opened the door to the State’s use of these prior acts by advancing a theory that he was innocent.

Analysis. Under Rule of Evidence 404(b) evidence of prior bad acts is not admissible to prove character conformity. One of the numerous exceptions to Rule 404(b) is the “doctrine of chances.” Evidence is admissible under this doctrine if it shows “highly unusual events that are unlikely to repeat themselves inadvertently or by happenstance.” The similarity between the two events is probative of the fact that the instant offense, alleged to have been committed similarly to the prior one, was committed by the defendant. Upon request, a trial court must instruct the jury that it may consider the doctrine of chances only if it finds the extraneous offense true beyond a reasonable doubt and limits its consideration to its intended purpose. Evidence admissible under Rule 404(b) may still be inadmissible under Rule 403—when probative value is substantially outweighed by danger of unfair prejudice or misleading the jury. Where strong evidence already supports the State’s conviction the probative value of objectionable evidence is reduced. Here the doctrine of chances “did not justify the admission of extraneous incidents because they were not highly unusual or exactly the same as the charged offense.” The State provided the jury only with generic details surrounding the other offenses. Thus, the jury was left to speculate about the meaning of the prior drug offenses. This problem was exacerbated by the trial court’s erroneous denial of a limiting instruction. The State’s evidence was already sufficiently strong, and the prior convictions did not meaningfully advance their proof in a permissible way.

Dissent (Yeary, J.). The trial court’s determination was at least within the zone of reasonable disagreement. This court should give deference to that ruling. The prior marijuana incidents at least provided some evidence that the defendant would have been familiar with the odor of marijuana. Because the defendant claimed to be innocent, he opened the door. Rule 403 favors admissibility. Once a prosecutor establishes some relevance to the defendant’s prior bad acts beyond character conformity, it should be admitted.

1st District Houston

Navarro v. State, No. 01-20-00308-CR (Tex. App.—Houston, March 31, 2022)

Issue & Answer. When a defendant “provokes the difficulty” of resisting arrest but some evidence shows officers used unlawful or excessive force in response to this, is the defendant entitled to a necessity defense in the ensuing prosecution for assaulting a police officer? No. Not in the First District Court of Appeals.

Facts. The State charged the defendant with (1) aggravated assault with deadly weapon against a peace officer (striking Officer 1 with a trophy and attempting to strike Officer 1 with a screwdriver), (2) aggravated assault with deadly weapon against public servant (attempting to strike Officer 2 with a screwdriver), (3) assault of public servant (biting Officer 1), and (4) attempted arson. The evidence presented at trial showed officers were dispatched to multiple 911 hang-ups at an upholstery business. When they arrived several car radios were on with volume full blast. Defendant’s mother approached officers in the parking lot covered in transmission fluid. Defendant stepped outside of the business briefly to yell at officers and to tell them his mother was a “black widow” and a “drug dealer.” When officers entered the business, it was in disarray and transmission fluid was everywhere. Officer 1 had his handcuffs out. When the defendant saw Officer 1, the defendant retreated to an office and refused to come out. He soaked a towel in transmission fluid, lit it on fire, and threatened to burn everyone in the building. Officer 2 used a steel baton to smack the flaming towel out of defendant’s hand. Officer 1 tasered the defendant who was unphased by electrocution. The defendant hid under a desk and tried again to light the transmission fluid on fire. Officer 1 tasered the defendant again and defendant was again unphased by the electrocution. Officers flipped the desk over and the defendant “rode the desk to his feet.” Officers tackled the defendant and during a struggle the defendant struck Officer 1 with a trophy, grabbed a screwdriver and attempted to stab him, then bit him in the arm. Officer 2 punched defendant in the face until he was sufficiently dazed that he could be handcuffed. Officer 1 testified that the trophy blow caused pain but no injury. He also testified that the bite resulted in a loss of a chunk of flesh which required hospitalization and a week-long antibiotic soap regimen. The defendant testified that he “had a feeling they were going to take me to jail for whatever reason they could find,” admitted he did not obey commands, and admitted he resisted being pulled by the arm out of the office. According to the defendant he did not bite Officer 1 until the encounter escalated into a physical altercation due to his resistance.

Analysis. A defendant is not entitled to a necessity defense instruction “if it is undisputed that he provoked the difficulty that made it necessary for him to commit the offense.” “[O]ne who unlawfully resists detention or arrest by peace officers cannot claim that later criminal conduct, such as an assault, is a necessary response to any further efforts to detain or arrest him that his initial resistance precipitates.” The defendant disobeyed orders and physically resisted detention and later bit an officer in an altercation that his disobedience and resistance precipitated. This is distinguishable from a case where a defendant resists a person and claims he was unaware that person was a police officer.

Comment. The Fifth Court of Appeals and the Tenth Court of Appeals do not believe that “provoking the difficulty” is a doctrine which makes a defendant ineligible for a necessity defense.

2nd District Fort Worth

Thetford v. State, No. 02-18-00488-CR (Tex. App.—Fort Worth, Mar. 3, 2022)

Issue & Answer. An offense which requires “an act” cannot be predicated on “an omission.” Rodriguez v. State, 454 S.W.3d 503 (Tex. Crim. App. 2014). Rodriguez was an insufficient evidence reversal of a felony murder conviction—murder in the course of committing injury to a child, to wit: failing to feed a child (alleged numerous ways). Did Rodriguez create a per se rule that evidence is always insufficient to support a conviction when the relevant statute requires an act, but the State alleges an omission? No.

Facts. The State charged the defendant with attempted murder “by failing to provide adequate food and/or nutrition.” The evidence showed that the defendant, in addition to passively failing to feed her son, told friends and family not to feed him, led people to believe that feeding her son caused him pain, interfered with a gastrostomy button placed into her son’s stomach by doctors, asked medical staff to keep him asleep, and removed her son from Ronald McDonald House when she learned medical staff provided him with food after it was requested.

Analysis. Criminal attempt requires an act—not an omission—that amounts to more than mere preparation and tends but fails to affect the commission of the offense intended. The Penal Code defines an “act” as a “bodily movement” and an “omission” as the “failure to act.” Tex. Penal Code § 1.07(a)(1). When the State alleges a failure to do something, a conviction can be supported by a showing that the defendant committed acts in the course of an omission. The record established that the defendant committed both acts and omissions. She deterred and interfered with attempts to provide nourishment. This was sufficient to support a conviction for attempted murder despite the non-statutory allegation that the defendant committed the offense by omission.

Comment. The defendant filed a motion to quash the indictment alleging that failure to do something can’t serve as a predicate “act.” The Court agrees but was previously satisfied with the sufficiency of the indictment by summarily holding that Rodriguez is a sufficiency case and has no bearing on whether the indictment alleged an offense. Despite the court’s previous resolution of the question, it remains unclear to me how a defendant has notice of what acts she must defend herself from allegedly committing when the indictment alleges only an omission. Alleging an omission to inform a person about the acts they committed is as useful as not alleging any acts or omission at all.

3rd District Austin

The Fourth 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

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 Nineth 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

Ex parte Herrington, No. 12-21-00168-CR (Tex. App.—Tyler, Mar. 23, 2022)

Issue & Answer. The State may re-try a case after an objected-to mistrial if there was a “manifest necessity” for the trial court to grant the mistrial. Does manifest necessity exist when the State learns that an un-subpoenaed officer who promised to be present is missing at trial? No.

Facts. After a jury was empaneled and sworn, the State realized their DPS trooper had been deployed to the Texas border. The trial court declared a mistrial without the consent of the defendant. Before retrial, defendant filed a writ of habeas corpus challenging continued prosecution on double jeopardy grounds.

Analysis. Prosecution after mistrial is not barred if a trial court grants the mistrial on the basis of manifest necessity. A manifest necessity mistrial is justified only in extraordinary circumstances. A missing officer who the State did not subpoena does not create grounds for granting a mistrial on the basis of manifest necessity. “[W]hen a prosecutor empanels a jury without first ascertaining that his witnesses are present to testify, the prosecutor takes a chance” and gambles on proceeding without that witness’s testimony.  

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

Ex parte Pham, No. 14-20-00872-CR (Tex. App.—Houston [14th Dist.], Mar. 1, 2022)

Issue & Answer. Is a defendant’s plea involuntary when he represented himself, made it known to the prosecutor that eligibility for a dentistry license was his concern, then enters a no-contest plea which ultimately resulted in his ineligibility to apply for a dentistry license? No.

Facts. Defendant was a dentist. While subject to a disciplinary action he continued to practice dentistry when he should not have. The State charged him with unlawfully practicing dentistry. Defendant initially retained a lawyer, but that lawyer never appeared in court. Defendant requested the court’s permission to represent himself. After a Faretta hearing and the defendant’s acknowledgment of the dangers and disadvantages of self-representation, the trial court permitted the defendant to proceed pro se. Defendant entered a no contest plea to the offense.  In the plea paperwork he struck references to guilt and even wrote the phrase “not guilty” in various places. After the trial court accepted the defendant’s no-contest plea and placed defendant on community supervision, the defendant learned the disposition of his criminal case made him ineligible to reinstate his dentistry license. With assistance of new counsel, the defendant filed a writ of habeas corpus challenging his plea on the basis of voluntariness and ineffective assistance of counsel. In an affidavit to the habeas court, the defendant articulated his misunderstanding about the consequences of his plea on his dentistry license.

Analysis. “A plea is voluntary if (1) the defendant is fully aware of the direct and punitive consequences of the plea . . . and (2) the plea is not induced by threats, misrepresentations, or improper promises.” The record does not reveal that the defendant’s plea was induced by any misrepresentation by the trial court or the prosecutor. Because the defendant elected to represent himself, “he was expected to discover for himself that certain consequences would result from his plea. Pham’s failure to understand that he would become ineligible for a dental license did not render his plea involuntary, unless the trial court was required to admonish him of that consequence sua sponte.” The trial court only had a duty to admonish the defendant regarding the direct consequences that are punitive in nature and enunciated in the law. 

Hughes v. State, No. 14-20-00628-CR (Tex. App.—Houston [14th Dist.], Mar. 15, 2022)

Issue & Answer 1. Is there a Sixth Amendment right to confrontation in a revocation hearing? Yes.

Issue & Answer 2. Is the physical presence aspect of the Sixth Amendment’s right to confrontation violated by conducting a Zoom revocation hearing without obtaining sufficient waiver of physical presence? Yes. Even though counsel did not object? Yes.

Facts. Defendant was a deferred adjudication probationer. The State filed a motion to adjudicate guilt alleging that defendant had committed a new offense (forgery). The trial court conducted a Zoom hearing. Counsel was present in the courtroom for the hearing, but the State, the witnesses, and the defendant all attended via Zoom. The trial court indicated that the defendant remained on a video in the jail because he had been exposed to COVID-19 while in the jail. During the hearing the defendant was not given an opportunity to speak or communicate except when he testified in his own defense.

Analysis 1. Ex parte Doan, 369 S.W.3d 205 (Tex. Crim. App. 2012) controls the question of confrontation in a revocation hearing. Doan declared that revocations are not administrative in nature, but rather judicial proceedings. Thus, they are governed by the rules applicable to judicial proceedings. This includes the right to confront witnesses.  

Analysis 2. The right to be present for witness confrontation is a waivable-only right (objection unnecessary, the right is not forfeited absent a valid waiver).

“Appellant was in a separate break-out room with no possibility to communicate with his counsel in private regarding how to confront and cross-examine [the sole witness proving the offense of forgery]. Appellant was not truly present during his hearing. Instead he was relegated to being a distant observer with no opportunity to confront or cross-examine as envisioned by the Confrontation Clause.”

The defendant was not present at his hearing for Sixth Amendment purposes. Had he been present he may have offered assistance in pointing out inconsistencies in testimony which would have enabled counsel to cast doubt on the accusation.

Dissent (Wise, J.). The record does not reflect that the defendant was unable to communicate with counsel.

Comment. The Fourteenth Court provided this disclaimer: “However, we are neither prepared to make blanket pronouncements in this case nor conclude that a defendant is not present at a proceeding under the Sixth Amendment if he is present via video-conferencing.” I think this alludes to the possibility of conducting a Zoom proceeding in a different manner which alleviates the problems articulated in this case; namely that the defendant could not privately and effectively communicate with counsel during cross-examination. I think this would be exceptionally difficult within the Zoom platform itself in cases where the defendant and his or her attorney are in separate locations. Even the break-out functionality which conceivably creates an opportunity for attorney-client consultation is a poor substitute for real-time interaction in a courtroom. First, it requires stopping down the proceedings, interrupting the flow of cross-examination. Second, it places an unfair burden on the defendant that he chooses between imposing upon the trial participants and consulting with his or her lawyer. Third, so long as the defendant remain under guard (either in the courtroom or the jail) the conversation is neither private nor privileged.

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

Voice for the Defense Volume 51, No. 3 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

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

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

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

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

Kyle Therrian

United States Supreme Court

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

Fifth Circuit

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

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

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

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

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

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

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

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

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

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

Texas Court of Criminal Appeals

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1st District Houston

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

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

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

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

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

2nd District Fort Worth

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

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

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

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

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

3rd District Austin

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

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

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

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

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

4th District San Antonio

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

 5th District Dallas

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

 6th District Texarkana

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

 7th District Amarillo

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

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

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

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

8th District El Paso

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

9th District Beaumont

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

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

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

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

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

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

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

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

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

10th District Waco

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

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

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

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

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

11th District Eastland

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

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

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

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

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

12th District Tyler

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

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

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

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

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

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

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

13th District Corpus Christi/Edinburg

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

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

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

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

14th District Houston

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

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

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

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

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

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

Voice for the Defense Volume 51, No. 2 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

Facebook is reading your messages, so I cut and pasted this entire SDR and sent it to a friend. We’ll hit that algorithm and bust loose eventually, Sig Heads! We learn that the Confrontation Clause is strong enough to keep sister Suzie, brother John, Martin Luther, Phil, and Don from coming in (because they get in when you open the door. Get it? Whatever.). In other news, I’ve been considering lobbying TCDLA to make some Significant Decision T-Shirts, so send me your ideas, you know they’ll sell!

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

Hemphill v. New York, 595 U.S.—, No. 20-637 (2022)

Issue. Is the State permitted to use testimonial hearsay excluded under the Confrontation Clause when a defendant “opens the door” in a manner that requires correcting a misleading impression?

Facts. During a street fight in the Bronx someone fired a stray 9mm bullet and killed a 2-year-old child. Police identified an initial suspect (Suspect 1) and a witness (Witness). When police first interviewed Witness, Witness implicated Suspect 1 as the shooter. Witness later recanted his accusation and instead identified Defendant (Defendant / Hemphill) as the shooter.  Police did not credit Witness’s recantation. They searched Suspect 1’s apartment and discovered a 9mm cartridge and three .357 rounds. Three other witnesses later identified Suspect 1 as the shooter. Abruptly during their murder prosecution of Suspect 1, the State agreed to dismiss their murder charge and allowed Suspect 1 to enter a time-served plea on refiled charges for possessing a .357 revolver. Five years after this dismissal, the State arrested and charged Defendant Hemphill for the same murder. Defendant Hemphill’s DNA had recently proven a match with a sample taken from a blue sweater found inside of Suspect 1’s apartment. Other witnesses had described the shooter as wearing a similar blue shirt during the initial investigation. Defendant Hemphill defended himself at trial by blaming Suspect 1. In opening, counsel explained to the jury that officers discovered 9mm ammunition in Suspect 1’s apartment hours after the shooting. The State convinced the trial court that counsel’s statement was misleading because it omitted the fact that .357 rounds were also discovered and because Suspect 1 ultimately pleaded guilty to possessing a .357 revolver.  Based on New York case law, the trial court found that counsel had “opened the door” to the State’s use of evidence otherwise inadmissible under the Confrontation Clause. The trial court permitted the State to publish to the jury portions of the transcript from Suspect 1’s plea hearing.

Holding. No. Crawford v. Washington, 541 U.S. 36 (2004), rejected the notion that the State may overcome a confrontation challenge with sufficiently reliable hearsay evidence meeting a known hearsay exception. The founders intended to prohibit the “civil-law mode of criminal procedure” and the use of “ex parte examinations against the accused.” Exceptions to the requirement of confrontation are only those known and established at the time of its founding. New York State’s “opening the door rule” was not an exception to the right of confrontation at common law.  The State contends that the “opening the door rule” is a mere procedural rule akin to the requirement of an objection. However, in its implementation, “it is a substantive principle of evidence that dictates what material is relevant and admissible in a case.” The purported exception requires the trial court to evaluate the entirety of evidence and arguments and determine whether admission is justified in order to correct a “misleading impression.” This practice is contrary to Crawford’s strong rejection of procedures allowing trial judges to make determinations whether hearsay evidence is sufficiently reliable in the face of a Confrontation Clause objection. “The Clause commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” The right to Confrontation is a guarantee the same as Fifth Amendment’s prohibition against compelled testimony. A court would be no more justified in admitting a coerced confession to rebut a defendant’s testimony than it would be in admitting testimonial hearsay. The State’s recourse when it believes a defendant is misleading a jury in a manner that can only be cured through evidence made inadmissible by the Confrontation Clause is to raise a Rule 403 objection.

Concurring (Alito, J.). A defendant’s conduct in a criminal prosecution may result in an implied waiver of confrontation. Some examples of this include a failure to object or certain disorderly conduct which results in the defendant’s removal from the courtroom. The rule of optional completeness should be another exception. When a defendant introduces part of a declarant’s testimonial hearsay, the State should be permitted to introduce the rest for context.

Dissenting (Thomas, J.). The Defendant did not raise a Sixth Amendment claim in the New York appellate courts and has not preserved error.

Comment. “Counsel opened the door” is about as popular as saying “not offered for the truth” when prosecutors identify a piece of inadmissible evidence falling into well-known category of evidentiary admissibility: I-get-to-use-this-because-defense-counsel-is-too-effective. I think this case has significant implications, but not necessarily in curtailing rampant use of testimonial hearsay by the State. Instead, I think the impact here is that criminal defense attorneys will be a little less shy about raising certain defenses for fear of the evidentiary consequences.

Fifth Circuit

United States v. Meals, 21 F. 4th 903 (5th Cir. 2021)

Issue. Facebook is reading your messages. When they discover evidence of child exploitation and are compelled by statute to forward that evidence to the government, have they become a state actor for purposes of the Fourth Amendment?

Facts. Defendant was sexting with a fifteen-year-old on Facebook Messenger. Facebook was monitoring these communications and forwarded a tip to the National Center for Missing and Exploited Children (NCMEC). NCMEC forwarded the tip to local law enforcement. Local law enforcement obtained warrants for defendant’s electronic devices and found naked pictures of the fifteen-year-old. Defendant moved to suppress under a theory that Facebook and NCMEC acted as government agents when they searched and obtained messages in which the defendant had a legitimate expectation of privacy. The district court denied defendant’s motion to suppress and sentenced the defendant to 50 years imprisonment.

Holding. No. Under the private search doctrine the government may obtain and use evidence acquired by a non-governmental entity, notwithstanding a person’s expectation of privacy. There are two exceptions to the private search doctrine: (1) the “private actor” is acting as an agent for the government, and (2) if the government, without a warrant, exceeds the scope of the private actor’s original search. The defendant relies on 18 USC § 2258A(a) which requires internet companies to report all instances of child exploitation to NCMEC. Defendant’s argument is that congress has co-opted internet companies for law enforcement purposes. But “[s]ection § 2258A(a) mandates reporting child exploitation on internet platforms to NCMEC, but it neither compels nor coercively encourages internet companies to search actively for such evidence.” The defendant cites the split in authorities on the appropriate factor-test for determining when a private actor becomes a governmental actor and argues that he should prevail under the First Circuit’s test. This court declines to use any factor-test.

Comment. Facebook, if you’re listening, please send me more videos of talking dogs. I’ll tell you all if this worked in Vol. XXXVII No. 3.

Texas Court of Criminal Appeals

Witcher v. State, No. PD-0034-21 (Tex. Crim. App. 2022)

Issue. The offense of continuous sexual abuse of a young child requires two or more instances of sexual abuse occurring over a period of 30 or more days. When the State questions witnesses about the first instance of sexual abuse using words such as “give or take” or “about,” has the State required the jury to speculate such that the verdict is not supported by sufficient evidence?

Facts. Defendant sexually assaulted a young child more than once. The last instance of sexual assault occurred on July 26, 2018. The first instance occurred around the time the victim’s brother went to jail, which was on June 10, 2018, “give or take.” The court of appeals reversed, finding the date the victim’s brother went to jail was too uncertain and speculative. This conclusion was based in part on the fact that the prosecutor phrased all questions about the relevant date of the first instance of sexual assault using the words “at some point,” “around,” “about,” “maybe,” and “give or take.” It was also based on the fact that the testimony did not establish how quickly after the victim’s brother went to jail that the abuse began. “When” someone went to jail could refer to the moment that person went to jail or the time period of that person’s incarceration.

Holding. No. “A jury is permitted to draw reasonable inferences from the evidence but may not come to conclusions based on mere speculation.” The court of appeals’ interpretation of the phrase “when he went to jail” as potentially meaning something other than the exact moment that person went to jail was in error. If someone meant to refer to a general period someone was in jail, they would have said “when he was in jail.” The court of appeals’ finding that words like “around” or “give or take” created too much wiggle room on the relevant date of the first instance of abuse was also in error. “Around” or “give or take” means only a few days. Given the date of incarceration and the date of the last incident, the date of the last incident of sexual assault, the State created a 46-day window for continuous sexual assault when the statute requires two or more incidents occurring more than 30 days apart. Nothing in the testimony lends itself to the conclusion that the generalities used in questioning meant that the first incident of abuse could have actually occurred 16 days after June 10, 2020.

Dissent (Keel, J.) The testimony about the beginning date was equivocal and the jury had to speculate about the meaning of testimony.

Comment. “I invoked my right to counsel when officers tried to question me, give or take.” “I maybe revoked my consent to search around the time officers discovered the contraband.” Same interpretation in these scenarios? Probably not a fair analogy.

State v. Garcia, No. PD-0183-21 (Tex. Crim. App. 2022)

Issue. Can the State appeal from an order granting relief in a misdemeanor post-conviction writ of habeas corpus?

Facts. Defendant pled guilty to two misdemeanor offenses. After immigration authorities notified defendant that his convictions subjected him to deportation, he filed writs of habeas corpus in the misdemeanor court. The trial court found his pleas were involuntary due to ineffective assistance of counsel who failed to advise defendant of his immigration consequences. The State appealed the trial court’s orders granting relief. The court of appeals dismissed the appeal for lack of jurisdiction, holding that the State had no ability to appeal relief granted in a misdemeanor post-conviction writ of habeas corpus. More specifically, the court of appeals explained that the State could not appeal an order “discharging” a defendant from custody on his writ of habeas corpus.

Holding. Yes. “We have previously held that the State can appeal an order granting habeas corpus relief when the order functionally creates one of the appealable scenarios that Article 44.01 specifically enumerates.” Granting of habeas relief is the functional equivalent of granting a new trial—a ground recognized in Article 44.01. Previous cases holding that the State cannot appeal from a judgment “discharging” a defendant are cases that “pre-dated the legislative creation of the State’s right to appeal in criminal cases.”

Rubio v. State, No. PD-0234-20 (Tex. Crim. App. 2022)

Issue. If all of the following happen within the 30-day period for the granting of a new trial, does the trial court continue to have jurisdiction to grant a motion for new trial: motion for new trial filed, motion for new trial denied, leave of court granted to amend motion for new trial, amended motion for new trial filed?

Facts. A jury convicted the defendant of capital murder and the trial court automatically sentenced him to life without parole. Defendant’s attorney filed a motion for new trial for the purpose of giving the court reporter more time to prepare the record. It recited boilerplate language: “the verdict was contrary to the law and evidence.” The trial court promptly overruled this motion. New counsel was retained and filed a substantive motion for new trial with exhibits. The trial court heard and denied the motion on the merits. “In order to determine what arguments and evidence could be considered as part of the record on appeal to resolve this claim, the court of appeals examined whether Appellant’s amended motion for new trial was timely.” The court of appeals found that the second motion—filed after denial of the first—was untimely. The court of appeals therefore declined to consider the evidence of ineffective assistance of counsel produced by defendant during the hearing at which the trial court denied defendant’s second motion.

Holding. Yes. Texas Rule of Appellate Procedure 21.4 provides that a motion for new trial must be filed within 30 days of judgment and sentence and that “[w]ithin 30 days after the date when the trial court imposes or suspends sentence in open court but before the court overrules any preceding motion for new trial, a defendant may, without leave of court, file one or more amended motions for new trial.” From this rule and prior opinions four distinct rules flow: (1) a motion for new trial must be filed within 30 days, (2) a trial court may rescind an order granting or denying a motion for new trial at any time, (3) A defendant may not amend his motion for new trial outside of the 30-day period, even with leave of court, (4) but if the state does not object to #3, the court can consider a motion so-amended. Now a fifth rule: if the trial court overrules a motion for new trial and a defendant amends and obtains leave of court within the initial 30 days for filing a motion for new trial, the trial court retains jurisdiction to consider the amended motion. 

Dissent (Keller, P.J.).

Comment. It irks me to see prosecutors argue jurisdictional bars and technicalities in substantive motions for new trial which attempt to raise grounds for new trial which are commonly brought in habeas corpus proceedings. Courts don’t appoint counsel in habeas proceedings often and even when they do, most take years to resolve (years after direct appeals are exhausted). When I see a you-didn’t-dot-the-i-and-cross-the-t argument against a motion for new trial, what I really see is a prosecutor saying “let’s use the system against the defendant—we can probably prevent him from having the merits of an argument ever heard because he might not be able to afford a habeas lawyer.” Maybe that’s not what they mean to do, but they should know the implications of what they are doing.

Pugh v. State, No. PD-1053-19 (Tex. Crim. App. 2022)

Issue. “Must a trial court suppress a demonstrative computer animation illustrating otherwise reliable expert testimony purely because it potentially involves some depiction of human behavior?

Facts. A jury convicted defendant of murder. Defendant intentionally ran the victim over with his car. Investigators took detailed measurements from the scene and collected what proved to be the victim’s DNA located on the outside of defendant’s truck. Using measurements from the scene, physical evidence such as tire tracks and the body’s location, and the medical examiner report, the State used an expert to create an animation which depicted the consensus of what the State’s experts believed happened. Defendant objected to the demonstrative exhibit claiming that it portrays subjective belief of what occurred, that nobody knows what the victim was doing before he was struck, and that the unfair prejudice substantially outweighs the probative value.

Holding. An animation is just thousands of individual diagrams. Computer animations are “not fundamentally different from any other form of demonstrative evidence.” They must be authenticated, relevant and have probative value that is not substantially outweighed by unfair prejudice. A demonstrative is authenticated when it fairly and accurately depicts an expert’s opinion. A demonstrative exhibit is relevant if it is helpful to understanding the expert’s opinion. The prejudice versus probative value test should take into account “inaccuracies, variations of scale, and distortions of perspective against the degree to which the judge thinks that the item will assist the trier of fact in understanding a witness’s testimony.” The inflammatory nature of the animation plays a role, too. A demonstrative can be too gruesome or evoke an improper emotional response from the jury. Speculative depictions and factual inaccuracies are also considered under the Rule 403 lens. Here, the expert testified that the animation was a fair and accurate depiction of his opinion (and the jury was instructed the same). Here, the animation was relevant because it helped the jury understand what happened according to the expert. Finally, the probative value was not substantially outweighed by unfair prejudices. The animation was underwhelming in how it depicted the human body as “only marginally more detailed than a stick figure.” The animation did not attempt to recreate injures, it did not contain gore, it did not attempt to evoke an emotional response by doing things such as setting it to the music of Celine Dion or Enya. See Salazar v. State, 90 S.W.3d 330, 338-39 (Tex. Crim. App. 2002)(yes there was a case about the prejudicial nature of Celine Dion and Enya music). The fact that the defendant disputed where the victim was and what the victim was doing is not pertinent to the consideration. There is no per se prohibition against the depiction of human behavior in demonstrative exhibits, but if there were, the instant animation would not be in violation. The instant animation depicted the victim as a rigid motionless almost mannequin-esque figure.

Concurrence (Walker, J.). Computer animations are quite persuasive. When defense learns that the State is going to sponsor a computer animation the defense should do the same thing. If the county does not want to fund a defense animation, that should weigh heavily in favor of the defendant in the Rule 403 balancing analysis.

Comment. Here’s a fun trick: contact the person who created the animation and ask him to show the human figure charging at the defendant menacingly (if that’s the theory). You’ll either get your version of the animation in front of the jury or you’ll get to rail on the bias of the animator who refused to do it.

Ex parte Mathews, No. WR-91, 731-01 (Tex. Crim. App. 2022)

Issue. Does the inference of falsity applicable in cases of a governmental agent engaging in a pattern of misconduct relating to evidence apply to “cases involving a police officer with a demonstrated pattern of misconduct in drug-related cases.”

Facts. Defendant was arrested by a police officer with a pattern of misconduct in drug-related cases which included lying in government records, lying in sworn testimony, and lying in a search warrant affidavit. Defendant pled guilty.

Holding. Yes. In Coty the Court of Criminal Appeals addressed a forensic lab analyst who routinely falsified lab results. It held that it would overturn a conviction without proof that the lab analyst actually falsified the records in a particular case, so long as a defendant can establish a pattern of misconduct. This rule was based, in part, on the egregiousness of conduct and the onerous burden it would place on criminal defendants to have to prove particularized misconduct. A defendant’s burden under Coty is to demonstrate: (1) the technician was a state actor, (2) multiple instances of intentional misconduct, (3) the technician worked on the defendant’s case, (4) the misconduct in other cases is the type that would affect evidence, and (5) the technician handled and processed evidence in defendant’s case around the same period as the misconduct. “We now conclude that the same considerations that drove the Court’s decision in Coty apply with as much force to cases involving police officers who display a pattern of mendacity in obtaining drug arrests and convictions as it does for cases involving laboratory technicians who routinely falsify forensic test results and documentation.”

Comment. I read this sentence—”We filed and set this cause to address whether the requirements for the inference of falsity this court adopted in Coty should apply in cases involving a police officer with a demonstrated pattern of misconduct in drug-related cases”—and thought “oh no, what are they about to do?” The right thing, that’s what!

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

Turner v. State, No. 02-21-00058-CR (Tex. App.—Fort Worth, 2021)

Issue. The Code of Criminal Procedure used to allow a trial court to assess “reparations” in a judgment revoking probation. This provision had been interpreted to grant authority to a trial court to assess unpaid probation fees. When the legislature deletes the word “reparations” from the operative statute, can a trial court continue to require the payment of unpaid probation fees as reparations?

Facts. Defendant was on deferred adjudication probation. The trial court revoked that probation and sentenced the defendant to four years imprisonment. The trial court imposed $910 in “reparations” for unpaid probation fees, to be paid from defendant’s inmate commissary while imprisoned. Defendant appealed the trial court’s reparations order arguing that the Court of Criminal Appeals has never defined probation fees as reparations and the legislature removed the term “reparations” from operative statute permitting the assessment of fees upon revocation.

Holding. Yes. We just won’t call them reparations anymore. Article 42.03 § 2(b) used to say: “in all revocations of a suspension of the imposition of a sentence the judge shall enter the restitution or reparation due and owing on the date of the revocation.” Now it doesn’t say that. The legislature removed the word “reparations” in 2017. The legislature expressly indicated that this amendment was a “nonsubstantive” change to the law. According to the Second Court of Appeals, their precedent only sort-of relied on the term “reparation” to uphold the assessment of unpaid probation fees. But the Second Court also sort-of didn’t rely on the term “reparation.” One of the cases cited by one of the other cases relied upon by Second Court once called probation fees “administrative” or “other fees.” The legislature allows the assessment of probation fees under 42A of the Code of Criminal Procedure. “[W]e believe that Article 42A.652(a) provides [other authority to assess probation fees],” and “[w]e see no reason to abandon our long-standing precedential holdings.”

Comment. One way around precedent is to pretend it isn’t precedent.

none of our prior cases have directly addressed the significance, if any, of the 2017 deletion of the word “reparation” from Article 42.03, § 2(b) of the Code of Criminal Procedure, upon which some of our opinions have purported to rely, at least partially. See, e.g., Taylor v. State, No. 02-15-00425-CR, 2016 WL 3159156, at *4 (Tex. App.––Fort Worth June 2, 2016, pet. ref’d) (mem. op., not designated for publication); Tucker v. State, Nos. 02-15-00265-CR, 02-15-00266-CR, 2016 WL 742087, at *2 (Tex. App.—Fort Worth Feb. 25, 2016, pet. ref’d) (mem. op., not designated for publication); Brown v. State, No. 2-08-063-CR, 2009 WL 1905231, at *2 (Tex. App.––Fort Worth July 2, 2009, no pet.) (per curiam) (mem. op., not designated for publication); see also Kitchen v. State, 594 S.W.3d 429, 431–32 (Tex. App.––Fort Worth 2019, pet. ref’d) (op. on reh’g en banc) (citing Tucker without citing Article 42.03, § 2(b)); Hongpathoum v. State, 578 S.W.3d 213, 216 (Tex. App.––Fort Worth2019, no pet.) (same); Zamarripa v. State, 506 S.W.3d 715, 716 & n.2 (Tex. App.––Fort Worth 2016, pet. ref’d) (same).

I read the cases. They don’t “purport” anything. See PURPORT, Black’s Law Dictionary (11th ed. 2019)(“to profess or claim, esp. falsely; to seem to be”). The above-string-cited cases actually say that probation fees can be assessed upon revocation for the sole reason that probation fees are reparations. But prest-o change-o, now they’re not. Not that I agree, but I think I prefer Judge Yeary’s method to overcoming stare decisis, call it “dead weight” and don’t hesitate to overrule “on account of the court-made doctrine of stare decisis . . .” Ex parte Thomas, 623 S.W.3d 370, 384 (Yeary, J. concurring).

3rd District Austin

State v. Guilbault, No. 03-20-00110-CR (Tex. App.—Austin, 2021).

Issue. (1) Can a trial court grant a new trial because of its own opinion regarding a key witness’s credibility? (2) Can a trial court grant a new trial in a DWI case when an officer leaves a false impression by his evasiveness to questions exposing limitations on NHTSA’s field sobriety testing procedures?

Facts. A jury convicted the defendant of driving while intoxicated. During his cross-examination of the arresting officer, counsel asked questions to test the officer’s proficiency in NHTSA’s standardized field sobriety tests and the Transportation Code. Specifically, counsel asked about: (1) limitations of the HGN test exposed by a 2007 study cited in the NHTSA manual, and (2) the officer’s own traffic infractions he committed while operating his squad vehicle in a non-emergency situation. The officer’s testimony demonstrated that he was not familiar with the 2007 study, nor his obligation to follow traffic laws when operating his vehicle for a non-emergency reason. Defendant moved for a new trial citing: “disingenuous testimony” of the arresting officer and the State’s failure “to correct false and/or misleading testimony.” The trial court found that the officer’s testimony was unduly evasive and presented serious credibility concerns when he was unaware he had to follow traffic laws in non-emergency situations. The trial court granted defendant’s motion for new trial.

Holding. (1) No. A trial court may not grant a new trial because it found a witness not credible. “Whether a witness is credible is a fact question that goes to the weight of the witness’s testimony . . . [and] the jury is the exclusive judge of the facts, credibility of the witness, and weight to be given to the testimony.” (2) Maybe, but harmless here. Even if the officer’s evasive testimony about the limitations of HGN testing was “false and/or misleading testimony [that] the State failed to correct,” the defendant failed to show how this trial error was anything more than harmless error. The arresting officer provided numerous bases for his belief that the defendant was intoxicated, and the State produced evidence of a 0.087 BAC.

4th District San Antonio

Ex parte Ramirez-Hernandez, No. 04-21-00340 (Tex. App.—San Antonio, Jan. 26, 2022)

Issue. A defendant showed he could not afford his $1 million bond; some of the evidence he presented weighed in favor of reduction; some of the evidence he presented weighed in favor of maintaining a high bond. Under these circumstances does a trial court abuse its discretion to deny a request to reduce bond?

Facts. Defendant was arrested on three counts of aggravated sexual assault of his step-daughter. His bonds were set at a cumulative amount of $1 million. Defendant filed a writ of habeas corpus challenging the bond amount and seeking reduction. At the hearing defendant presented a probable cause affidavit, three witnesses, and a letter of support from his employer. All of the witnesses spoke to the defendant’s good character. Two of the witnesses offered testimony controverting the allegations and explaining the complainant’s incentive to lie. Defendant’s siter testified that the most the family has been able to accumulate for bail is $5,000-$7,000. The State offered no evidence. The trial court denied defendant’s request to reduce bail.

Holding. Yes. “[C]ase law is of relatively little value in addressing the ultimate question of the appropriate amount of bail in a particular case because appellate decisions on bail matters are often brief and avoid extended discussions, and because the cases are so individualized that generalization from results reached in others is difficult.” Citing Ex parte Beard, 92 S.W.3d 566, 571 (Tex. App.—Austin, 2002).

The court must consider how actual evidence admitted into evidence affects the weighing of bail factors. Statutory factors include: (1) securing attendance at trial, (2) not an instrument of oppression, (3) nature and circumstance of offense, (4) ability to make bail, (5) safety of victim and community. Case law factors include: (1) nature of offense and possible sentence, (2) ties to community, (3) length of residency, (4) employment history, (5) criminal history, (6) other bond amounts and past compliance, and (7) aggravating factors in the case. Here some factors weighed in favor of a high bond amount and others weighed in favor of a lower bond amount.

The Fourth Court of Appeals considered five other pretrial bail appeals involving sexual assault of a minor. Several of them involved a nuanced consideration of the above-listed factors. In those where bond was set at unattainable levels, they were upheld only when there was a showing of serious risk of flight, continued violations of the law, or inappropriate post-release contact with victims.

Comment. A pretrial writ of habeas corpus reviewed and disposed of by an appellate court within 5 months of filing notice of appeal! San Antonio is doing something right. Other COAs should take notice. Here is a snippet you don’t see often: “Bail is oppressive when the record indicates the trial court set the bail amount for the express purpose of forcing a defendant to remain incarcerated pending trial or appeal.”

5th District Dallas

Shuler v. State, No. 05-20-00386-CR (Tex. App.—Dallas, Jan. 11, 2022)

Issue. Does anyone pay attention to what trial courts assess as fines, fees, and costs?

Facts. The facts are not particularly important here. See below for how the court (frankly how Kathleen Walsh of the Dallas PD’s office) picks apart all of these costs and fees.

Holding. Yes. The trial court assessed a $1,500 fine which it did not pronounce during the defendant’s plea colloquy. “A fine is punitive in nature and intended to be part of a defendant’s sentence; therefore, it must be orally pronounced.” The fine is deleted.

The legislature amended Texas Local Government Code 134.101(b) to require the payment of new types of court costs: a clerk’s fee, a county records management fee, a courthouse security fee, a technology fee, and a specialty court fee. The Statute became effective in 2020—after defendant’s offense date. The assessment of these fees were in error and are therefore deleted.

Former statutes provide for the collection of child abuse prevention and DNA testing fees from defendants convicted or placed on deferred adjudication for child pornography. A new statute reclassified the child abuse prevention fee as a fine and deleted the DNA testing costs. The text of the new law provides that the law in effect at the time of a defendant’s offense shall determine the assessment of appropriate fees. Texas Government Code § 51.608 provides a catchall provision which would seem to supersede the express language of the newly adopted legislation: “a court cost imposed on the defendant in a criminal proceeding must be the amount established under the law in effect on the date the defendant is convicted of the offense.” But, because of the savings provision of the new law indicating the defendant shall pay the costs in effect on the date of his offense, the “law in effect on the date the defendant is convicted” is a law that requires the payment of fees under the old statute.

A former statute authorizes a time payment fee of $25 for a defendant who does not pay the balance of fines and fees within 31 days of sentencing. When a case is on appeal, the assessment of this fee is premature. The 31 days begins counting from the date a mandate is issued.

The court doubled all of the defendant’s costs on account of his being placed on deferred adjudication in two cases. Texas Code of Criminal Procedure article 102.073(a) prohibits a court from assessing a cost or fee against a defendant more than once in cases that are tried in a single criminal action.

The trial court assessed a $185 consolidated felony conviction fee. The Legislature increased the consolidated felony conviction fee from $133 to $185 with an effective date of 2020. This post-dated defendant’s offense date. The consolidated fee is therefore reduced to $133.

Comment. This case is kind of like being stuck behind someone in line at the grocery store with mad coupons. You kind of feel like you’re taking a beating standing in line. But also . . . super interested in how much they’re going to save.

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

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

Hall v. State, No. 14-19-00902-CR (Tex. App.—Houston [14th Dist.], Jan 20, 2022)

Issue. Is a sitting trial judge who is friends with a criminal-defense-lawyer-victim an appropriate rebuttal witness if he has familiarity with the low crime rate in the area where the victim was murdered, and the defendant has raised a self-defense which incorporates evidence the high crime rate in the area?

Facts. Defendant was a person with a handicap parking placard and a concealed carry permit. The victim was a person with neither. When the defendant saw that the victim had parked in a handicap parking spot, defendant decided to right this wrong by instigating an altercation. According to the defendant, the two exchanged punches. When the victim got “really mad” and clenched his fists in an “aggressive stance” the defendant pulled out his concealed handgun and shot him in the chest. He then calmly called and flagged down police officers and paramedics. Officers did not see any indicators that the defendant had been in the type of physical altercation the defendant described. At trial, officers testified to the lack of any physical indicia of a serious altercation at the scene; a medical expert testified that the defendant’s handicap was not serious enough to be fatally exacerbated by a fist fight; and the victim’s son testified that the victim was a peaceful criminal defense lawyer who had avoided serious physical altercations with violent people for the duration of his career. Defendant put on evidence of the victim’s young age and physical fitness and compared them to his own old age and ailments. Defendant also elicited through cross-examination of an arresting officer that the area of the offense was prone to gang violence. The trial court permitted the State to call in rebuttal County Criminal Court at Law Judge Raul Rodriguez who was a friend of the victim and familiar with the area in which defendant murdered the victim. Judge Rodriguez testified that he had both maintained a practice and lived in the area of the murder and in his opinion “it is no more dangerous than any other area of Houston” and personally never felt the need to carry a gun to protect himself. 

Holding. Maybe not. Harmless here. Defendant’s argument that the State had no legitimate need for Judge Rodriguez’s rebuttal testimony is unpersuasive. Defendant essentially argues that the State cannot rebut their own witness’s testimony—here the testimony of their officer who admitted the murder occurred in a high crime area. But cross-examination testimony offers shaky support for this argument. Moreover, Judge Rodriguez appeared to be more familiar with the relevant area and community. The combination of Judge Rodriguez’s status as a sitting judge and as a friend of the victim did not convert his testimony from that of a fact witness to that of a witness whose testimony was presented for the mere purpose of improperly influencing the jury. Judge Rodriguez’s relationship with the victim was not a focal point of testimony or the State’s closing. “Even assuming the admission of this portion of the judge’s testimony was erroneous, we conclude any error is harmless.”

Concurrence (Hassan, J.). It was an abuse of discretion to allow a trial judge to testify as a quasi-expert, but the defendant did not specifically object to the witness identifying himself as a judge.

Comment. The Fourteenth Court cites a very good case on the appropriateness of judicial testimony and the potential for improperly influencing a jury by the prestige of office. Joachim v. Chambers, 815 S.W.2d 234 (Tex. 1991).

January/February 2022 SDR – Voice for the Defense Vol. 51, No. 1

Voice for the Defense Volume 51, No. 1 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

I hope everyone had a wonderful holiday season. I thought about everyone and how difficult it must have been to celebrate the new year without a January print edition of the Significant Decision Report. I’ve tried to step up my game here in the inaugural entry in Vol. XXXVII. So, what do we have this month? The Attorney General is now basically prohibited from prosecuting criminal offenses, we discuss comedian Jeff Ross, and we consider whether statements akin to “hulk smash” constitute assault by threat. Also, I’ve got a Hawaiian Punch joke, and you won’t get it, but sometimes I got to do things for my own entertainment (this thing is 36 pages . . . ).

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

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

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

Kyle Therrian

United States Supreme Court

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

Fifth Circuit

United States v. Ortega, 19 F.4th 831 (5th Cir. 2021)

Issue. Does a trial court improperly delegate a core judicial function to the probation office when it orders inpatient treatment lasting for a period of 4-12 months and a release date in that period to be determined by the probation officer?

Facts. Defendant pleaded guilty to possession of stolen mail in 2016 and went to prison. After completing her initial period of imprisonment, defendant violated her supervised release and the trial court sentenced her to an additional period of imprisonment as well as an additional year of supervised release. As a condition of defendant’s future supervised release, the trial court ordered defendant to “reside in a Reentry Center and successfully participate in a Residential Reentry Program for a period of at least 4 months to be released at the discretion of the probation officer.”

Holding. No. The trial court may delegate the authority to determine “details” of supervised release but not the “core judicial function” of imposing a sentence. The trial court errs when it abdicates to the probation office “the final say on whether to impose a condition.” The trial court does not err when it assigns to the probation office the task of supervising a treatment program’s “modality, intensity, and duration.” Here the trial court provided more specificity than in cases where this court has found an improper delegation of authority. Considering the trial court’s order another way, it simply provided the probation office an 8-month window to determine when release is appropriate. This is hardly substantial enough to amount to an improper delegation of a “core judicial function.”  

Texas Court of Criminal Appeals

Middleton v. State, No. PD-1236-20 (Tex. Crim. App. 2021)

Issue. “When a defendant is placed on deferred adjudication, and he is later charged with a new offense, and the punishment stage for both the deferred-adjudication offense and the new offense occur in the same proceeding, have the two cases been tried in the same criminal action for the purpose of determining whether the sentences can be stacked?”

Facts. A trial court placed the defendant on deferred adjudication probation for three theft offenses. During the period of probation, he committed two new thefts. The State filed two new charges and three motions to adjudicate the three earlier theft cases. After a hearing on all five cases simultaneously, the trial court found defendant guilty of each charge, sentenced defendant to two years confinement in each case, and stacked all five sentences. The court of appeals held that the sentences should run concurrently after concluding that they arose from a single episode and that the State prosecuted them in a single criminal action. 

Holding. Yes. Penal Code § 3.03 mandates concurrent sentencing “[w]hen the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action.” The definition of “same criminal episode” includes “the repeated commission of the same or similar offenses.” “Because all of Appellant’s offenses were thefts, they constituted the repeated commission of the same or similar offenses under the statute.” The definition of “single criminal action” includes a consolidated punishment hearing on two or more separate offenses regardless of when a plea is entered. “Criminal action” refers to a trial or plea proceeding. A plea proceeding is not concluded until punishment is assessed. The fact that a defendant was on deferred adjudication is significant, as well. The language of the deferred adjudication statute “contemplates a pause, as if the case were taken under advisement. . . .  If [the defendant] fails, and the trial judge later finds a violation of probation and decides to adjudicate guilt, the proceedings continue where they left off: [the proceedings continue as if adjudication of guilt had not been deferred].”

Regular probation is different. A sentence received upon revocation of regular conviction-based probation is stackable upon a new offense committed during the probationary period. But deferred adjudication probation differs from conviction-based probation in enough ways to justify different treatment here. A deferred felony probationer remains eligible for regular probation in a future case because he is not considered to have a final felony conviction. This is not true for the regular felony probationer. A deferred probationer is subject to the full range of punishment upon revocation. This is not true for the regular felony probationer. A deferred defendant adjudicated guilty may file a post-adjudication motion for new trial to undo the conviction. This is not true for the regular felony probationer.

Comment. The court gives a very open-ended definition to “same criminal episode.” In Ex parte Ferris, No. 05-19-00835 (Tex. App. Dallas, Oct. 2, 2020)(en banc) the Fifth Court of Appeals concluded that 2015 DWI conviction and a 2019 DWI acquittal were not part of the same criminal episode for purposes of denying an expunction of the 2019 DWI acquittal. In that case the trial judge stated, “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 ‘same criminal episode.’” Ferris is now before the Supreme Court of Texas (expunction appeals are civil in nature). Though the length of time between the commission of the two offenses in Ferris is longer than it is here, this case presents a potential for disagreement between the Supreme Court and the Court of Criminal Appeals on what constitutes a “same criminal episode.” 

Brooks v. State, No. PD-0703-20 (Tex. Crim. App. 2021)

Issue. Does the statement “I need to hit” constitute a threat?

Facts. The State charged the defendant with aggravated assault family violence. The State alleged in their indictment that the defendant “threaten[ed] [the victim] . . . with imminent bodily injury by telling her that he was going to end her life, and the defendant did use or exhibit a deadly weapon during the commission of the assault, to wit: a piece of wood.” According to the victim, the defendant choked her, hit her with a board, and stated “I need to hit.” The Court of Appeals found the statement “I need to hit” insufficient to establish an assault-by-threat.

Holding. An appellate court reviews sufficiency of the evidence in the light most favorable to the prosecution, and that “ordinarily means resolving any ambiguities in the evidence in the prosecution’s favor.” When considering the defendant’s statement in the context of what was occurring, it is fair to resolve the ambiguity in favor of maintaining the conviction. “Appellant beat her, told her ‘I need to hit,’ and beat her some more.”

Comment. I’m not sure why the State didn’t indict him for physical assault instead of verbal assault. Also, I found this line funny: “Appellant cites several cases in which the phrase ‘I need to hit’ was included in a defendant’s statement as examples of the phrase being a verbal threat . . .” I’m over here banging my head against the wall trying to figure out “how much proof is probable cause” and this lawyer lucks out on several (several?) cases in which a defendant said: “I need to hit.” How weird is that?

Inthalangsy v. State, No. PD-1000-20 (Tex. Crim. App. 2021)

Issue. A murder in the course of kidnapping is capital murder. (1) Where a defendant kills two victims—only one of which he kidnapped—is evidence that he ultimately killed the kidnappee admissible in the capital murder prosecution for killing the non-kidnappee under Texas Rule of Evidence 404(b) (extraneous offense limitations)? (2) Is it under Texas Rule of Evidence 403 (substantial prejudice)?

Facts. A jury convicted the defendant of capital murder for a murder he committed in the course of kidnapping. Defendant killed two people after $70,000 worth of drug profits went missing. The victims were a couple (boyfriend-girlfriend) who the defendant and his accomplice believed stole that money. The State alleged that the defendant killed the boyfriend and in the same transaction kidnapped the girlfriend and killed her later. The State wanted to present evidence of both killings in the prosecution for murdering the non-kidnappee. The trial court permitted this after overruling defendant’s extraneous offense and Rule 403 objections. The court of appeals reversed. The court of appeals explained that the girlfriend’s death did not make the kidnapping more or less probable, and the probative value of the second murder was substantially outweighed by unfair prejudice caused by the violent nature of the offense.

Holding. (1) Yes. Kidnapping was an element of proof in the prosecution of capital murder for the killing of the non-kidnappee. One way to commit the offense of kidnapping is by using or threatening deadly force. The fact that defendant shot the kidnappee to death is evidence that the kidnappee was restrained in exactly such a manner. “[T]here is a logical connection between the violent death of Cassie and the kidnapping charge. Thus, the fact that Cassie was killed is a fact of consequence in the action.” Not only was this evidence of the charged offense, but it also constituted same-transaction contextual evidence which “illuminate[d] the nature of the crime alleged.” The jury needed to know about the girlfriend’s death. “A juror would naturally wonder . . . why [the kidnappee] did not testify about what happened to her on May 7.” (2) Yes. While the jury could have been confused about who the defendant is on trial for murdering and even become inflamed by the fact that the defendant murdered two people, the State had a moderate need for the evidence of the second victim’s death. The State needed to show that the kidnappee was restrained by deadly force.

Comment. I agree with the fact that the girlfriend’s death is evidence probative of the kidnapping. I think the analysis could have ended there. I’m not sure I agree with the need to dispel the potential curiosity of a juror about why a victim isn’t present to testify as basis for admitting same-transaction contextual evidence of her murder. The jury receives instructions to only consider evidence presented in court. Defendants must live by the strength of such admonishments every day, why can’t the State?

Lerma v. State, No. PD-0075-19 (Tex. Crim. App. 2021)

Issue. Under the penalty of dismissal, Texas Rule of Evidence 508 requires disclosure of an informant’s identity when disclosure is “necessary to a fair determination of guilt or innocence.” When officers feign ignorance as to the informant’s identity in a 508 hearing, may the trial court use this as evidence sufficient to order a dismissal?

Facts. Using a confidential informant, narcotics officers conducted a controlled buy from a drug dealer (“Dealer”) and that drug dealer’s roommate (“Roommate”). Officers knew both Dealer and Roommate worked together to sell drugs from their home. Several months after the controlled buy, defendant and his friends tried to rob Dealer and Roommate. During the robbery, Dealer shot and killed Roommate and shot and wounded several of the robbers. The State charged defendant with the capital murder of Roommate. Even though Dealer was the only person to fire a gun during the robbery, the State declined to charge Dealer. During the capital murder prosecution, defense counsel learned that the State also declined to charge Roommate in connection with the earlier controlled buy. Counsel suspected that Roommate was the earlier confidential informant and Dealer used the robbery as an opportunity to kill Roommate. Defendant sought an order requiring the State to disclose the identity of the confidential informant. The trial court granted defendant’s request. While mandamus was pending, the parties agreed to conduct a Rule 508 hearing in the trial court whereby the trial court would determine whether identity of the informant must be disclosed under threat of dismissal.

At the Rule 508 hearing the prosecutor informed the trial court that the State had expected officers to identify the informant for purposes of an in-camera evaluation, but the officers suddenly forgot the identity of the informant before the hearing. Several officers took the stand and told the trial court under oath that they could not remember and did not document the informant’s identity. They also admitted the possibility that the informant, whose identity they couldn’t remember, might possess exculpatory information. “Combined with the fact that the State utilized every means available to resist disclosure of the informant’s identity, the trial court found that the Task Force officers’ claim that they simply did not know the informant’s identity lacked credibility.” After defense filed a motion to dismiss under Rule 508, the task force commander told the prosecutor that the officers did in fact know the identity of the informant, but that they would refuse to disclose it to defense counsel. The trial court, having quite enough, dismissed the case. The State appealed. The court of appeals reversed.

Holding. Yes, probably, but there was additional evidence here. Texas Rule of Evidence 508 makes the identity of a confidential informant privileged. It also provides that, in a criminal proceeding, it must be disclosed “if the court finds a reasonable probability exists that the informer can give testimony necessary to a fair determination of guilt or innocence.” The State’s persistence in refusing disclosure after such a finding triggers a mandatory dismissal of charges under the Rule. “Since the defendant may not actually know the nature of the informer’s testimony . . . he or she should only be required to make a plausible showing of how the informer’s information may be important. . . . The Rule 508 burden is not a high one, and Appellee met his burden to make a plausible showing of how the informant’s information may be important.” Here, the defendant showed: (1) the existence of an informant, (2) the non-charging of the shooter’s accomplice drug dealing roommate, (3) the drug dealer shot and killed his roommate during the robbery, (4) the vigorous fight to prevent disclosure, (5) the agreement to have a hearing about disclosing the identity and sudden amnesia of law enforcement, (6) the task force’s policies and procedures, and (7) the admission that exculpatory information was possible, (8) the post-hearing disclosure that officers lied from the witness stand. Even if the trial court had relied on the officer’s lying and scheming, this could amount to evidence in some contexts. In civil cases “A party’s intentional destruction of evidence may . . . be sufficient by itself to support a finding that the spoliated evidence is both relevant and harmful to the spoliating party.”

Dissent (Keller, P.J.). If the confidential informant is the roommate, the roommate is now dead and unable to testify. If the confidential informant is a third person, that third person is not a confidential informant to the capital murder. Moreover, the State must disclose Brady evidence notwithstanding Rule 508.

Comment. This was a tooth and nail fight about whether narcotics officers must disclose the identity of their informant. It included a district court hearing, a gag order, a mandamus petition to the court of appeals, a mandamus petition to the court of criminal appeals, a motion to hold that appeal in abeyance, the granting of the abeyance, plans to conduct a 508 hearing. This all culminated in the police saying “whoops we forgot who the informant was, na-na-na-na boo-boo, we can lie on the witness stand in a jurisdiction where the prosecutor lets us do what we want.” (not a direct quote). Some shady stuff is going down in Hays County. A stronger-than-useless prosecutor would have dismissed the case on his own motion rather than bothered the Court of Criminal Appeals with his quest to fight for narcotics agents who felt entitled to play games with the court system. See Texas Code Crim. Proc. art. 2.01; Tex. R. Disciplinary Procedure 3.03.

Bahena v. State, No. PD-0653-20 (Tex. Crim. App. 2021)

Issue. Texas Rule of Evidence 803(6)(D) (business records exception) requires the testimony of sponsoring witness who is either: (1) the custodian of the record, or (2) another qualified witness. When the opponent of a business record objects and claims a sponsoring witness is not a custodian of records, has the opponent necessarily raised an objection and preserved error as to whether the sponsoring witness is another qualified witness?

Facts. A sheriff’s deputy recorded defendant’s jail calls. That deputy was unavailable to testify at trial, so the State called the deputy’s sergeant as a sponsoring witness instead. The sergeant admitted he was not the one who collected and compiled defendant’s recordings onto a disc. However, he testified about his tactical unit’s practice of collecting recorded phone calls, the jail’s procedures for linking phone calls to individual inmates, and the sheriff’s office normal practice of retaining recorded phone calls. The sergeant also used defendant’s inmate identification and phone codes to link the phone calls to the defendant. Defendant objected and argued that the Sergeant was not a true custodian of records under the Rules of Evidence. The Court of Appeals upheld the trial court’s ruling on error preservation grounds; namely, that business records may be authenticated through a custodian of records or another qualified witness and defendant had only objected to the sergeant as a business records custodian.

Holding. Yes. “We take this opportunity to explicitly disavow and reject the notion that a defendant must specifically object to both prongs of 803(6)(D) [custodian or other qualified witness] to entitle him to a merits review of his hearsay objection. Nonetheless, the sergeant’s testimony satisfies Rule 803(6)’s requirements. Specifically: (1) his testimony established that records were made at or near the time by someone with personal knowledge by automatic recording procedures and retrieval methods using inmate identification codes, (2) his testimony established that it was the regular course of business for the sheriff’s office to keep these records, (3) his testimony established that it was the regular practice for the sheriff’s office to collect these records, and (4) defendant did not show at trial or preserve any argument that the calls lacked sufficient trustworthiness.

Comment. Clint Broden had a great article in 2018 on The “Business Duty” Rule for Business and Public Records. In it he explains the common law business duty requirement incorporated with the adoption of the Rules of Evidence. “Each participant in the chain which created the record—from the initial observer—reporter to the final entrant—must generally be acting in the course of the regularly conducted business.” Broden also cites to a perfect analogy from the Court of Criminal Appeals in 2004:

“A delusional person might call Crimestoppers to report that George Washington was cutting down a cherry tree on the Capitol grounds. Although Crimestoppers has a business duty to accurately record all incoming calls and to keep the records as part of its business records, the caller had no business to report the duty accurately.”

Garcia v. State, 126 S.W.3d 921, 929 n. 2 (Tex. Crim. App. 2004). To me, this is the better path to plow in cases like this. What duty did the sergeant have until there was a witness problem for the State?

State v. George, No. PD-1233-19 (Tex. Crim. App. 2021)

Issue. When the State alleges conspirator liability in a capital-murder-in-the-course-of-robbery, a conviction is appropriate when murder is a foreseeable result of the planned robbery. Is a defendant entitled to a lesser-included offense instruction on robbery if he can produce some evidence that the initial plan did not include murdering the robbery victim?

Facts. A jury convicted defendant of capital murder based on his participation in a conspiracy to commit a robbery which ultimately resulted in murder. Defendant was a pimp and he conspired with others to rob a man in his hotel room after learning from two of his prostitutes that the victim had thousands of dollars in cash on him. Defendant planned the robbery. He used the prostitutes to distract the victim while he and another large man broke into the room. One or more of the conspirators bound the victim, severely beat him, and left him to die face-down in a pool of his own blood. Two of defendant’s co-conspirators testified that defendant did not participate in the beating and only intended to rob the victim. Defendant requested a lesser-included-offense instruction on robbery. The trial court denied his request. “In upholding the refusal of the lesser-included-offense instruction, the court of appeals appeared to create a bright-line rule applicable to conspirator-liability capital-murder-in-the-course-of-a-robbery cases. It stated that ‘when one decides to steal property from another, he should anticipate he or his co-conspirator might be confronted by that individual and that his co-conspirator might react violently to that confrontation.”

Holding. No. Not here. Entitlement to a lesser-included instruction requires a two-step analysis: (1) is the offense legally a lesser-included, and (2) would the evidence permit a rational jury to find that if the defendant is guilty, he is guilty only of the lesser offense. The question here pertains to the combination of the second prong and the conspiracy statute’s imputed liability for “anticipated results” caused by the participation in the conspiracy. The Court of Appeals’ bright line rule that all co-conspirators must anticipate a murder when they agree to participate in a robbery was wrong. A jury considering conspirator liability in a capital-murder-in-the-course-of-a-robbery case could rationally find a defendant only guilty of a robbery. “For the jury to make such a finding, there had to be evidence refuting or negating the anticipation element for conspirator-liability showing that the defendant should not have anticipated the murder.” Here, defendant attempted to show lack of intent, but that does not address the issue of what he should have anticipated. The witnesses attempted to exonerate the defendant of murder by showing it was not part of the initial plan, but they did not address whether circumstances eventually unfolded such that Appellant intended or could have anticipated a murder. Defendant planned for an altercation in a closely confined space, wore all black with black gloves, brought zip ties, had plans to cut the phone lines, and brought a large man with him as muscle. “Appellant ‘just stood there’ during the beating, the fact that Appellant calmly said and did nothing while [a co-conspirator] viciously beat [the victim] unconscious, bound him with zip ties, and left him face down on the bed in a pool of his own blood suggests that Appellant was not surprised by, and likely approved of, Range’s actions.

Comment. I think this case is a close call. It makes sense that you cannot raise the issue of a lesser-included offense by only showing that the conspirators didn’t initially plan the conspiracy to turn into a murder.

Hall v. State, No. AP-77,062 (Tex. Crim. App. 2021)

Issue. Is Comedian Jeff Ross an agent of the government (when he goes into a jail and starts interviewing inmates for a Comedy Central special)?

Facts. Comedian Jeff Ross hosted a Comedy Central special inside of the Brazos County Jail where Defendant was detained before a jury sentenced him to death. Comedy Central agreed to pay for expenses associated with any need for additional staffing for the event. The jail agreed to host the special as a treat to inmates as consistent with its “Inmate Behavior Management” philosophy. Comedy Central required inmates to sign a release before appearing in the special. The jail promoted the event by posting flyers throughout the facility. During one segment, Ross sat with inmates inside their pod and engaged in conversation. Ross engaged in a 17-minute conversation with defendant in which he mocked his appearance and made jokes about his race. Defendant made remarks showing a lack of remorse for the brutal murder he committed. Upon learning the Ross interview produced useful punishment evidence, the State issued a subpoena and obtained the Comedy Central recording and ultimately presented it at trial. Defendant filed a motion to suppress the recording and his statements under a theory that Ross was acting as a de facto agent of the government in conducting an interview without the presence of counsel.

Holding. No. The Sixth Amendment prohibits the use of a defendant’s own incriminating words if they were elicited deliberately by the government without counsel present after the Sixth Amendment right to counsel has attached. This right is violated even when the government employs an agent to step into the shoes of the government in order to elicit such statements. But here there was no agreement between the State and Ross for Ross “to gather evidence.” The State neither instructed nor encouraged Ross to collect incriminating evidence. Ross was not acting as an agent of the State when he spoke to the Defendant.

Edward v. State, No. PD-0325-20 (Tex. Crim. App. 2021)

Issue. Does sufficient evidence support a family violence conviction when an arresting officer indicates that the non-testifying complainant reported a dating relationship, but the officer’s body camera does not corroborate the officer’s recollection?

Facts. A jury convicted defendant of an elevated third-degree assault family violence offense based on the “dating relationship” he had with the complainant and his prior conviction for the same offense. The complainant declined to testify at trial. The State sponsored the testimony of the investigating officers. One officer testified that the complainant told him that the defendant was her boyfriend when he initially arrived on scene. The officer’s body camera footage did not depict this to be true.  When counsel highlighted this fact in cross examination the investigating officer changed his testimony and indicated that the camera footage did not capture the entire interaction with the complainant.

Holding. Yes. Here it does. Even though the investigating officer initially stated that the complainant told him about the existence of a dating relationship when he initially arrived, when that fact proved to be untrue, the investigating officer became flexible enough in his recollection to sustain this verdict. When confronted about the discrepancy, the investigating officer indicated that he must have received the statement at a different time not depicted on the video. Some circumstantial evidence supports the family violence finding as well: defendant was found in complainant’s bedroom sitting on her bed, the two had been alone together inside her apartment, and the complainant completed a family-violence form provided by the investigating officer.

Comment. The State also sponsored an EMT who testified about family violence from a report prepared by another EMT which may have been based on information provided by yet another person. Why on earth were all these people allowed to testify? What is going on here?

Bell v. State, No. PD-1225-19 (Tex. Crim. App. 2021)

Issue. Is a trial court’s error in explaining the requirement of sequencing of prior felony convictions for purposes of habitual offender enhancement a mere jury-charge error subject to harm analysis?

Facts. A jury found defendant guilty of failure to register as a sex offender. Defendant had two prior felony convictions. The trial court erroneously instructed the jury that they must enhance defendants sentencing range to 25-life if the State proved that Defendant’s second prior felony became final after the commission of the first felony. Penal Code 12.42(d) requires both dates to be measured from the date of finality “a finding that the first conviction became final prior to the commission of the second felony.” Notwithstanding the erroneous jury charge the prosecutor articulated the law correctly in closing “a person commits a felony offense, goes to prison for that offense, gets out, commits a new felony offense, goes to prison for that offense, gets out and commits another, the minimum is 25 years.” The jury found the enhancements true and sentenced defendant to 50 years. The Court of Appeals found that “In the absence of a proper jury finding on the sequencing requirement . . . Appellant’s fifty-year sentence was ‘illegal’ and ‘void’ because it exceeded the maximum punishment allowed for an unenhanced third-degree felony.”

Holding. Yes. “An illegal sentence is distinguishable from a procedural irregularity.” A trial court’s failure to instruct on a sentencing factor or even on an element of the offense does not constitute structural error. It is subject to harm analysis. The evidence submitted to the jury proves the proper sequencing of prior convictions according to the correct law.

Concurrence (Slaughter, J.) To be clear, this case deals with a prior sentence and not some other elemental factor for which the defendant failed to receive jury consideration. When a jury is not asked to consider an elemental factor in sentencing it is constitutional error and subject to constitutional harm analysis under Apprendi. But enhancement by prior sentence is different. It is only subject to regular harm analysis.

Comment. When judicially created harm analysis replaces a jury’s consideration of elemental fact or a sentencing factor, it is simply the court injecting itself into the role of the jury envisioned by our founders.

Avalos v. State, No. PD-0038-21 (Tex. Crim. App. 2021)

Issue. Does the Constitution require an individualized consideration of punishment and thus prohibit an automatic life without parole sentence for an intellectually disabled person?

Facts. A jury convicted defendant of capital murder. The state waived the death penalty which resulted in an automatic sentence of life without parole. Defendant challenged the automatic sentence as unconstitutional as applied to him because he is intellectually disabled.

Holding. No. The court explores Supreme Court precedent in this area and acknowledges a distinction between cases in which a particular punishment was categorically prohibited by the constitution and cases where the constitution merely requires an individualized assessment of mitigating circumstances.

    • Eddings v. Oklahoma: a state cannot automatically impose the death penalty. A jury must consider “the character and record of the individual offender and the circumstances of the particular offense.”
    • Harmelin v. Michigan: the individualized assessment requirement in death penalty cases do not apply to non-death-penalty cases.
    • Miller v. Alabama: an individualized assessment is required before imposition of mandatory life without parole for juvenile offenders. The sentencer must “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”
    • Atikins v. Virginia: death penalty for intellectually disabled offenders is categorically prohibited. They are categorically less culpable than the average criminal. The national legislative trend is to prohibit it. Neither retribution nor deterrence is served.
    • Roper v. Simmons: death penalty categorically banned for juvenile offenders. Supreme Court exercised its own judgment on disproportionality. Juveniles lack maturity and responsibility, are more susceptible to negative influence, and their undeveloped character traits are transitory rather than fixed. A death penalty for a juvenile denies the juvenile an opportunity to “attain a mature understanding of his own humanity.”
    • Graham v. Florida: automatic life without parole for non-homicide juvenile offenders is categorically prohibited. The national legislative trend is to prohibit it. Life without parole neither serves the goals of retribution nor deterrence. “[T]ransience of youth makes questionable any assumption that a juvenile will prove incorrigible.”

Miller (individualized assessment before juvenile life without parole) is different than Atkins, Roper, and Graham which categorically prohibit certain punishments based on objective indicia of society’s attitude. Though people with intellectual disability may have some of the same mitigating characteristics as juveniles (diminished impulse control and greater susceptibility to peer pressure), their characteristics are not transient like those of a juvenile.  Whereas a juvenile offender may mature and become a well-adjusted member of society, an intellectually disabled person will remain intellectually disabled. Even though the intellectually disabled person is categorically less culpable, “[s]ociety has a substantial interest to protect itself from disabled murderers.” Automatic life without parole is justified by a persisting need for incapacitation.

Comment. “It is not inconceivable to us that the Supreme Court might again ultimately say something similar [that individualized assessments are constitutionally required in life without parole cases] with respect to intellectual disability.” I believe this is where the case is headed.

State v. Kahookele, No. PD-0617-20 (Tex. Crim. App. 2021)

Issue. If a state jail felony is aggravated to a third degree, is it subject to further habitual offender enhancements expressly inapplicable to state jail felonies?

Facts. The State charged the defendant in two indictments with the state jail felony offenses of possession of controlled substances. With defendant’s prior murder conviction, the State was able to aggravate that offense to a third-degree (“aggravated state jail felony”) offense pursuant to Penal Code 12.35(c). Then the State enhanced defendant’s range of punishment to a habitual-offender range of 25-99 years or life using two sequential non-state-jail felony convictions. The trial court granted defendant’s motion to quash challenging the legitimacy of the habitual offender enhancement as applied to an offense which began as a state jail felony.

Holding. Yes. Ordinarily a state jail felony cannot be enhanced to a 25-99 sentencing range in the same way as non-state-jail felonies using the habitual offender provisions of the penal code. The State can enhance an ordinary state jail felony in the following ways:

    • to a third-degree felony when the State can show two previous state jail felony convictions.
    • to a second-degree felony when the State can show two previous sequential non-state-jail felony convictions.

Section 12.35 of the penal code defines the sentencing range for state jail felonies. It also provides that a state jail felony may be aggravated to a third-degree by: (1) a deadly weapon, or (2) a previous conviction for enumerated serious offenses. The Penal Code specifically provides under Section 12.425 that an offense so-enhanced may be enhanced again to a second-degree by a prior non-state-jail felony. This is the extent to which the Code specifically provides special enhancement rules for state jail felonies. All non-state-jail felonies are subject to different habitual offender enhancements under the “normal rules.” In particular, as it pertains to this case, two prior sequential felonies will enhance the sentencing range of a non-state-jail felony to 25 to 99 years or life. Here, when a state jail felony is aggravated in the way envisioned by Section 12.35, it becomes a non-state-jail felony and the legislature intended that it be treated as a non-state-jail felony subject to the normal habitual offender rules. The 25 to 99 or life enhancement was appropriate.

State v. Stephens, No. PD-1032-20 (Tex. Crim. App. 2021)

Issue. May the Texas Legislature delegate to the Attorney General—a member of the executive department—the authority to prosecute election-law violations in district and inferior courts?

Facts. Zena Collins Stephens is the elected sheriff of Jefferson County. After her election, the Texas Rangers learned of and investigated potential campaign finance violations. Specifically, they discovered that Stephens misreported cash contributions on her finance report. The Jefferson County District Attorney declined to prosecute and referred the Rangers to the Attorney General. The Attorney General presented the matter to a grand jury in nearby Chambers County and obtained a three-count indictment. Count I charged Stephens with tampering with government record by misreporting cash contributions. Counts II and III charged Stephens with accepting a cash contribution in excess of $100. Stephens filed a motion to quash the indictment and a pretrial writ of habeas corpus. She challenged the constitutionality of Texas Election Code 273.021 which delegates authority to the Attorney General to prosecute criminal offenses “prescribed by the election laws of this state.” She claimed that such a provision violates the separation of powers and only a district attorney—a member of the judicial branch—has this authority. She further argued that such a delegation of authority, if constitutional, does not include the authority to prosecute Count I of the indictment, a Penal Code offense. The trial court granted Stephens’ motion to quash on Count I and denied the pretrial writ of habeas corpus on Counts II and III. The court of appeals reversed the trial court’s granting of Stephens’ motion to quash and upheld the trial court’s denial of Stephens’ writ of habeas corpus.

Holding. No. Only district and county attorneys may represent the State of Texas in a criminal case. Our state constitution “expressly divides the powers of government into three distinct departments—legislative, executive, and judicial—and prohibits the exercise of any power ‘properly attached to either of the others,’ unless that power is grounded in a constitutional provision.” Texas’s separation of powers provision is even more potent than the implied separation under the federal constitution. The Attorney General’s principal argument is that the Texas Constitution grants his office enumerated duties as well as “other duties as may be required by law.” As he argues, the Legislature lawfully created “other duties” by enacting Election Code Section 273.021 and that provision grants him authority to prosecute election law crimes. But the law must conform to Texas’s constitutional separation of powers, these “other duties” must be executive branch duties. “Simply put, the ‘other duties’ clause may not transform the judicial duty of prosecutorial power into an executive duty.” The Attorney General’s authority to act as an attorney in a criminal case is limited to cases where he has been asked for assistance by the local district attorney and deputized.

Dissent (Yeary, J.). Would read the “other duties” clause more broadly—as a “catch-all” and permit the Attorney General to represent the State in a criminal proceeding.

Comment. This is a huge deal. Incredible work by Russell Wilson II and Chad Dunn. I wouldn’t suggest the Attorney General sometimes injects himself into cases for political reasons, but I might be persuaded to share another story. Okay you convinced me. In 2020, he took the wheel from Harris County District Attorney Kim Ogg, who was required to represent the State when dozens of Texas representatives obtained writs of habeas corpus to protect them from the warrants issued by the Speaker of the House to establish a quorum. The matter was before both the Court of Criminal Appeals and the Texas Supreme Court simultaneously to decide the Attorney General’s authority in habeas proceedings before it was rendered moot by the legislators returning to Austin.

Martin v. State, No. PD-1034-20 (Tex. Crim. App. 2021)

Issue. Does unlawful carrying of a weapon by a gang member require proof that the defendant was among the individuals of the identified group (gang) who regularly or continuously committed gang crimes?

Facts. Defendant was riding his motorcycle and wearing a vest which read “Cossacks MC.” An officer stopped him for multiple traffic violations. Defendant admitted he was a member of the Cossacks Motorcycle Club. Defendant also admitted he was carrying a firearm. The officer arrested defendant for carrying a firearm while being a member of a criminal street gang. At trial a special gang officer testified about the TxGANG database in which officers archive the existence of various criminal street gangs and their membership. According to the gang officer, the Cossacks organization was a recognized criminal street gang, and the defendant was a recognized member. Defendant had been entered into the database during previous law enforcement encounters. Evidence showed that defendant was an “enforcer” in the organization and was present at the Twin Peaks Waco shootout. Defendant testified that his Twin Peaks case was dismissed and that he did not participate in violence in that or any other case. He further explained that in Lubbock, where he lived, there were a total of six Cossacks who worked as mechanics and city employees.

Holding. Yes. The Statute makes it unlawful to possess a weapon when that person is a member of a criminal street gang. A criminal street gang is defined as “three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities. The State contends that it is sufficient that some members of the group continuously or regularly associate in the commission of crime and that the State merely show that the defendant is a member of that group. The State’s interpretation would lead to absurd and unconstitutional results. The State’s interpretation “would allow for the conviction of a person who is unaware of the gang’s criminal activities and who has not personally committed a crime or associated in the commission of a crime.” To hold a person liable as a member of a street gang because some members of the organization with which the person becomes a member associate in criminal activity violates the First Amendment. To avoid this, the statute is more logically read to require the defendant to be one of the individuals among the members who actually engages in criminal activity. “Though not a criminal for purposes of carrying a firearm, Appellant became one simply by riding his motorcycle and wearing his cut.”

Concurrence (Yeary, J.). Is not sure that the State’s interpretation makes the statute unconstitutional, but the Court’s rejection of the State’s interpretation is necessary to avoid unconstitutionality.

Comment. Think of how this would work if the State were correct. By their interpretation of the definition, all the following are criminal street gangs: Republicans, Democrats, members of professional sports teams, police officers, lawyers, doctors, and accountants. It would even require “the application of the term ‘criminal street gang’ to members of the Boy Scouts of America,” as Judge McClure explains.

1st District Houston

Rivera v. State, No. 01-20-00062-CR (Tex. App.—Houston [1st Dist], 2021)

Issue. When a trial court excuses a juror after the parties exercise their strikes and challenges but before the jury is sworn, is the trial court required to permit the parties to reconsider their peremptory strikes?

Facts. During jury selection the trial court excused various jurors for financial inconvenience and work conflicts. After removing jurors with adequate excuses, the trial court granted challenges for cause. A potential pool of jurors remained upon which the parties exercised peremptory challenges. As the trial court called the names of jurors selected, it became apparent that the trial court failed to excuse one of the selected jurors based on her stated grounds for inconvenience. The trial court excused the juror and effectively expanded the group of potential jurors by one. Defendant requested the opportunity to redo peremptory challenges because he had not previously factored in potential service of the newly added member to the jury which resulted from the trial court excusing the service of an otherwise selected jury member. The trial court denied defendant’s request and the new unexpected member of the jury was seated.

Holding. No. The defendant effectively argues “That he should have been allowed a do-over because the trial court had altered the pool of potential jurors by one after both sides had already made their peremptory challenges.” Defendant argues he would have used a peremptory to exclude the one additional potential juror added to the jury pool. “[N]o statute or rule addresses this scenario.” But this case can be resolved by reference to the consent of the parties in excusing the juror who the trial court failed to excuse before peremptory challenges were exercised. “[Expansion of the pool of jurors by one] was the natural consequence of the parties’ consent.” The defendant did not have to consent to the excusal of this juror. Moreover, the juror selected was among three jurors considered as an alternate juror. Neither side struck the newly selected juror as an alternate juror. This juror “had been qualified and accepted by the parties as an alternate.”

2nd District Fort Worth

State v. Wood, No. 02-19-00460-CR (Tex. App.—Ft. Worth, Nov. 10, 2021)

Issue. Texas’s felon in possession of a firearm statute prohibits firearm possession within five years of: (1) release from felony confinement, (2) release from felony probation, or (3) release from parole. Is a defendant entitled to an acquittal due to the variance which occurs when the State alleges one option but proves another?

Facts. The State charged the defendant with felon in possession of a firearm. Their theory was that the defendant possessed firearms during a period in which he was prohibited as a felon: within five years of his release from confinement. The State did not prove the release of confinement date at trial. They showed that he was convicted in 2006 and sentenced to 30 years confinement, that he was on parole at the time law enforcement found guns in his home, and that his parole would not end until 2036. Despite the trial court’s instruction to the jury to convict only if they found that the defendant possessed firearms within five years of his release from confinement the jury found him guilty. 

Holding. Yes. “[W]hen a statute lists more than one method of committing an offense or more than one definition of an element of an offense, and the indictment alleges some, but not all, of the statutorily listed methods or definitions, the State is limited to the methods and definitions alleged in the indictment.” Sufficiency of the evidence is weighed against a hypothetically correct jury charge (not the one given or even the indictment itself). Not all factual allegations in the indictment need be considered as part of the hypothetically correct jury charge—only material ones (those which proof of alternative facts would give rise to a material variance). “As relevant here, variances involving statutorily enumerated elements are always material, and the corresponding indictment allegations always bind the State.” Here, the statute permits the State to convict an individual if they possess a firearm within five years of: (1) release from felony confinement, (2) release from felony probation, or (3) release from parole . . . “whichever date is later.” If the State alleges one of these options, it cannot sustain a conviction by proof of another. In this case the State alleged defendant possessed a firearm within five years of release from confinement but proved he possessed a firearm within five years of release from parole. This is a material variance, and the defendant is entitled to an acquittal.

Comment. I agree with this outcome. I think the Court of Criminal Appeals would, too. I don’t see a PDR filed by the State, so I think it’s safe to play devil’s advocate for a minute. What if Penal Code § 46.04 does not create three distinct units of time-based prosecution, but rather a single time-based element based on a calculation that produces the latest date? I feel gross, now. 

Serrano v. State, No. 02-20-00014-CR (Tex. App.—Ft. Worth, Nov. 18, 2021)

Issue. (1) Is fleeing a lesser included of evading with a motor vehicle? (2) Does harmless but nonetheless reckless and dangerous driving provide sufficient evidence to sustain a deadly weapon finding in an evading arrest prosecution?

Facts. Defendant committed a traffic violation after leaving a drug house. Officers chased him without their headlights on and without activating their overhead emergency lights. Defendant fled. Eventually, when defendant reached the highway, officers turned on their overhead lights to formally conduct a traffic stop. Defendant did not pull over. Despite other motorists on the roadway and at least one pedestrian, defendant drove at a high rate of speed, drove recklessly, and drove in oncoming lanes of traffic. The chase spanned six miles of highways and residential streets. The State charged defendant with third-degree evading arrest, enhanced as a habitual offender.

Holding. (1) No. entitlement to a lesser-included offense instruction is a two-step process: (1) is the offense legally a lesser-included offense (does the lesser offense has elements included in those needed to prove greater offense), and (2) is there some evidence sufficient for a jury to find a defendant guilty only of the lesser offense? Here, the State would have to prove additional facts to obtain a conviction for fleeing; namely, that the officer was driving a police vehicle, that the officer was in uniform, and that the officer was giving a visual or audible signal to stop. “Because fleeing requires proof of elements that evading does not, fleeing is not a lesser-included offense of evading.” (2) Yes. In an evading arrest prosecution, a motor vehicle constitutes a deadly weapon when the manner of use presents an “actual danger” of causing death or serious bodily injury. However, “[t]he evading arrest statute does not require pursuing officers or other motorists to be in a zone of danger, take evasive action, or require the appellant to intentionally strike another vehicle to justify a deadly weapon finding.” Citing Drichas v. State, 175 S.W.3d 795 (Tex. Crim. App. 2005). Defendant relies heavily on body camera footage for his argument, but this footage shows cars having to slow down and stop to avoid collision. It also shows the defendant run stop signs and red lights with traffic nearby. This evidence was sufficient to sustain a deadly weapon finding. 

Comment. The court indicated that defendant was enhanced once by a deadly weapon finding and a second time as a habitual offender (presumably two prior felony convictions). A deadly weapon finding only “enhances” a state jail felony (for other offenses it constitutes an affirmative finding impacting things such as parole eligibility). In the same legislative session, the House and the Senate passed amendments to the evading arrest statute. The House made the offense a state jail felony. The Senate made the offense a third-degree felony. The Governor signed the Senate bill last. Courts have consistently applied a legal equivalent of the LIFO inventory method to find that the Senate bill controls. In August 2021 the Court of Criminal Appeals declined to hear a challenge to this statutory chaos under the doctrine of lenity (tie goes to the confused defendant). Here, the fleeing statute cannot be a lesser-included offense because it requires proof of additional facts not required in an evading prosecution, namely that the officer attempting to stop the defendant was inside a police vehicle when attempting to effectuate the stop.

Massey v. State, No. 02-20-00140 (Tex. App.—Fort Worth, 2021)

Issue. (1) When a defendant complies with an officer’s instruction to “just go ahead and turn around, I’m going to pat you down,” does his compliance constitute consent? (2) When that defendant, mid-pat-down, struggles and resists, has he disrupted the causal connection between the unlawful frisk and the ultimate discovery of evidence on his person?

Facts. An officer encountered defendant at a closed gas station. During the encounter, the officer turned the defendant around to conduct a pat down. The defendant sort of complied initially but when the officer went for his right pocket, a struggle ensued. The officer eventually won the struggle and discovered methamphetamine. Defendant moved to suppress this evidence. He argued that the officer did not have reasonable suspicion to believe he was “armed and dangerous, as is required to justify a protective frisk.” The trial court found: (1) the officer did not have reasonable suspicion to frisk the defendant, but (2) the frisk was justified by the defendant’s consent when he complied with orders to turn around and submit to a frisk, and (3) the defendant’s own actions in improperly resisting disrupted the causal connection between the frisk and the discovery of methamphetamine.

Holding. (1) No. The trial court found that the officer’s frisk was not justified by reasonable suspicion. “This determination is well supported by the record.” The defendant was nervous and in an area where there had been drug arrests – this does not amount to reasonable suspicion that the defendant was armed and dangerous. Although consent can be shown nonverbally through an act of submission, where an officer issues a command, compliance is not the same as consent. Here the officer issued a command: “just go ahead and turn around, I’m going to pat you down just for my safety.” The defendant’s brief compliance was “acquiescence to an assertion of lawful authority.” This is illustrated clearly when considering what happened next: defendant tried to pull away and a struggle ensued which resulted in the officer tasing the defendant and arresting him. “A struggle is not a hallmark of genuine consent to search.” (2) No. Evidence lacking a causal connection to illegal police conduct is “attenuated” and should not be suppressed despite the police infraction. In considering the doctrine of attenuation “we ask whether granting the establishment of the primary illegality, the evidence . . . has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” The courts are not in agreement on the impact of a subsequent criminal offense committed after an illegal search or seizure. But “if the crime is petty and relatively predictable as a product of unlawful detention or search, the evidence revealed is better viewed as an extended derivation of the illegal police action.” Here, the defendant’s resisting and evading was a result of the illegal frisk, they were petty offenses derived from the officer’s unconstitutional search. 

Comment. The trial court found that resisting an unlawful frisk was an intervening circumstance, but also the fact that he didn’t resist the unlawful frisk initially amounted to consent. This was a bit of a “heads I win, tails you lose” analysis.

Sopko v. State, No. 02-20-00162-CR (Tex. App.—Fort Worth, 2021)

Issue. Does Article 39.14 of the Code of Criminal Procedure require the State to produce evidence relevant to the underlying criminal offense in the context of a probation revocation proceeding?

Facts. The trial court placed the defendant on probation for assault family violence and retaliation in 2019. Prior to doing so defendant received discovery from the State. Defendant violated probation five months later and the State filed a motion to revoke his probation. The trial court appointed a new revocation attorney who filed a discovery motion requesting a video of the assault and a copy of the complainant’s written statement. The State declined to produce this evidence and the trial court denied the defendant’s motion. The trial court held a hearing on the State’s motion to revoke and the State called the complainant as a witness. When the complainant could not remember aspects of the underlying criminal offense, the State used the very witness statement they secreted from the defense to refresh the recollection of the witness. The trial court granted the State’s motion to revoke probation and sentenced the defendant to seven years.

Holding. Dodged the question with harmless error. The State is required, upon a request, to produce all evidence material to the proceeding. Tex. Code Crim. Proc. art. 39.14. The failure to do so is subject to harm analysis on appeal. Assuming a violation of 39.14 occurred here, there was no harm. The defendant was not harmed because the State provided the defendant discovery when he initially pleaded guilty. The State actually exceeded its duties under Article 39.14 by providing the defendant electronic duplicates of documents instead of merely permitting him to come to their office and make his own copies (editorial note: sarcastic slow clap). The defendant was not harmed because it also appears that revocation counsel was aware that the video he sought “went viral” on social media and he was aware of its contents. Finally, the defendant was not harmed by the trial court’s denial of the motion to compel discovery because Article 39.14 does not require a court order – the State’s duty is triggered upon a request by the defendant, a trial court’s refusal to enforce Article 39.14 in the face of a recalcitrant prosecutor cannot be harmful.

Comment. Article 39.14 absolutely entitles the defendant to discovery pertinent to the criminal offense in a revocation hearing. There is no need to assume it without deciding. I’m reasonably confident the Court of Criminal Appeals would enforce the prosecutor’s duty instead of applauding their obstinance like the Second Court does here. But let’s pick this apart a bit further.

The court of appeals unfairly imputes the previous attorney’s receipt of discovery to Sopko. “It is undisputed that the State produced to Sopko all discovery materials required by Article 39.14 before he pleaded guilty . . .” Well, this is where it gits a bit tricky. Sopko didn’t get his discovery. TDCAA fought hard to make sure the Sopkos of the world never actually receive the discovery after the State provides discovery to a defendant’s attorney. In fact, most prosecutors make defense lawyers sign a condescending declaration that they have not violated this rule before submitting a plea recommendation to the trial court. What if the previous attorney has a file destruction policy and no longer has a copy? What if the previous attorney is a bum and won’t provide it? Rather than making a point of what Sopko “received” maybe we just don’t let the State play the “I have something you don’t have” game. The State also makes an argument that defense counsel’s request for discovery did not specifically invoke Article 39.14 of the Code of Criminal Procedure, which is a very Michael-Scott-declaring-bankruptcy understanding of the law.

A few constructive thoughts now that my rant is over. The Second Court is right to the extent they indicate that there is no need to obtain a trial court order. Seeking a trial court order is certainly an option, at least in places that are not the Second District. But there are other remedies available. These remedies begin with the appropriate groundwork though: e-file and e-serve an initial demand letter; follow the initial demand letter with an e-filed and e-served demand specifying what the State has failed to provide. If the State continues to hide evidence, the options for the defense include: (1) a trial court order to compel, (2) a motion to exclude State’s evidence, (3) a mandamus directed at the district attorney.

3rd District Austin

State v. Serna, No. 03-20-00087-CR (Tex. App.—Austin, Nov. 17, 2021)

Issue. (1) May a frequent overnight guest claim Fourth Amendment protection in a carport located within a home’s curtilage? (2) Is that overnight guest’s expectation of privacy diminished by his status as a parolee?

Facts. Officers had a warrant to arrest the defendant. They acquired an address at which defendant “frequently stayed.” When officers approached the home and they saw defendant sitting in the driver’s seat of a parked car beneath a carport abutting the home. Defendant was blocked in by cars parked behind him. The carport shared a roof with the home and was within a few steps of the front door. Officers confronted the defendant when he exited the car. Defendant locked the car and created a diversion so he could hide the keys inside the home. Officers removed him from the home and arrested him. After the defendant was placed in handcuffs, officers approached defendant’s car to conduct a plain view through-the-window search. They discovered the firearm which formed the basis of defendant’s instant felon in possession of a firearm prosecution. The trial court granted the defendant’s motion to suppress, and the State appealed.

Holding. “The area immediately surrounding and associated with the home—its curtilage—is part of the home itself for Fourth Amendment purposes.” Citing Florida v. Jardines, 569 U.S. 1, 6 (2013). Officers may seize evidence they discover in plain view when they are lawfully present where the object is plainly viewed. And officers may conduct a warrantless search of a vehicle under automobile exception when probable cause exists and the vehicle is readily mobile. But when the vehicle is parked within the curtilage of a home, the officer must obtain a warrant or other justification to search and seize evidence. (1) Yes. A person may claim Fourth Amendment protection in a place where he is an overnight guest even when he has no dominion, control, or right to exclude others. This extends to the curtilage of the home and persists as long as the host grants permission to the guest to be present. (2) Maybe but not here. Parolees can lose Fourth Amendment rights and have a diminished expectation of privacy in their homes. But cases of warrantless or suspicion-less searches of parolees all involve an explicit waiver of privacy rights by the parolee as a condition of parole. Here the State did not prove the existence of such a waiver.

Comment. The State’s final argument is an interesting one—one which might distinguish this case from future fact patterns. There is nothing special about the vehicle in this case. The defendant’s parking of the vehicle in curtilage essentially makes the vehicle part of the home for Fourth Amendment purposes. But officers may be present inside of a home without a search warrant or consent when there is sufficient evidence supporting the belief that the individual they are seeking to arrest pursuant to an arrest warrant is inside. Once inside the home, armed with an arrest warrant only, officers may seize evidence and contraband in plain view. Had officers walked past the vehicle on their way to effectuate the arrest and saw the firearm at that time, this case could have gone differently. But it was not until after officers had already taken the defendant into custody that they started looking around the vehicle.

Daniel v. State, No. 03-20-00519-CR (Tex. App.—Austin, 2021)

Issue. Does a person commit a traffic infraction by drifting from his or her lane of travel without jeopardizing the safety of any person?

Facts. The State charged defendant with driving while intoxicated and the defendant challenged the constitutionality of the traffic stop leading to his arrest. The arresting officer stopped the defendant after completing a left turn at an intersection with two designated left-turn lanes. When the defendant made his left turn, he crossed the dotted line designating the curvature of the lane through the intersection. The officer testified at the hearing on defendant’s motion to suppress that there were no other vehicles near defendant’s when he purportedly failed to maintain a single lane of traffic.

Holding. No. Texas Transportation Code 545.060(a) requires that an operator: (1) shall drive as nearly as practical entirely within a single lane; and (2) may not move from the lane unless that movement can be done safely. It is the concurrence of both of these elements which constitutes a criminal offense. A person does not commit a criminal offense by drifting from his or her lane without a showing that such drifting was unsafe. This has been the law in the Third District (as well as two others) for decades. See Hernandez v. State, 983 S.W.2d 867 (Tex. App.—Austin 1998, pet. ref’d). A four-judge plurality of the Court of Criminal Appeals attempted to reject this construction of the Transportation Code in 2016. But plurality opinions are not binding precedent. [D]riving is an exercise in controlled weaving. It is difficult enough to keep a straight path on the many dips, rises, and other undulations built into our roadways.” Citing State v. Cortez, 543 S.W.3d 198, 206 (Tex. Crim. App. 2018).

Dissent (Goodwin, J.). Given the plurality decision of the Court of Criminal Appeals rejecting this court’s analysis here, the officer’s conduct was an objectively reasonable mistake of law. This Court should reconsider its position en banc and the Court of Criminal Appeals ultimately decide the correct interpretation of the Transportation Code.

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

Clark v. State, No. 07-21-00116-CR (Tex. App.—Amarillo, 2021)

Issue. Is fingerprint evidence sufficient to establish the identity of an arsonist who sort of admits to being present in the home where he has no permission to be?

Facts. A jury convicted the defendant of arson of a habitation. Nobody saw who set the fire, but defendant’s fingerprint was on a Hawaiian Punch bottle that smelled like gasoline. Defendant called his wife from jail and stated he “didn’t go in there without no gloves on.” Defendant’s wife’s sister was dating the same man as the homeowner-victim. 

Holding. Yes. Fingerprint evidence, by itself, is probably not sufficient evidence to establish guilt of a crime. But where the State can add some circumstantial evidence, there is no sufficiency problem. Sufficient supporting evidence can include a showing of no other legitimate reason for the defendant’s prints to be on the discovered object or no permission to be in the place where the discovered object was found. The State showed both of these things at trial and showed that the statements defendant made seemed to be an admission.

Comment. I would have been looking for a little guy with a weird red hat and a history of sucker punching people. I’ve shared this comment with a test audience, and nobody gets it. But I do. So, it stays.

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

Brown v. State, No. 10-19-00254-CR (Tex. Crim. App.—Waco, Nov. 10, 2021)

Issue. Can the State convict a defendant of both occlusion (strangulation) assault and bodily-injury assault for injuries inflicted in the same criminal episode?

Facts. Defendant punched his girlfriend in the face, strangled or choked her on three separate occasions, threw her into a nightstand, kicked her in the stomach, pulled her hair, slammed her to the floor, burned her with a cigarette, and slammed her head into the wall. These separate attacks took place over the course of several hours. A jury convicted defendant of occlusion assault (strangulation) and misdemeanor assault by causing bodily injury.

Holding. Yes. Double jeopardy protection is inapplicable when distinct offenses occur during the same transaction. Double jeopardy does prohibit conviction on both a lesser and greater included offense. In Ortiz v. State the Court of Criminal Appeals held that bodily-injury assault is not a lesser-included offense of occlusion assault when the disputed element is the injury. 623 S.W.3d 804 (Tex. Crim. App. 2021). Occlusion (strangulation) assault and bodily-injury assault are both result-oriented or result-of-conduct offenses. “[A] defendant may be held criminally responsible for two or more result-of-conduct offenses, even if they occur during the same transaction, so long as each offense causes a different type of result.”

11th District Eastland

Robertson v. State, No. 11-19-00343-CR (Tex. App.—Eastland, 2021)

Issue. When actual ownership of a vehicle is unclear, is it reasonable for officers to conduct a consent search when that consent is provided by a registered owner who had not possessed the vehicle for several months?

Facts. After parking his truck and noticing officers trying to get his attention, defendant took off running. While fleeing officers, defendant threw a small bag on the ground. Officers eventually arrested defendant and noted he looked and behaved like a person who was under the influence of methamphetamine. Officers seized the bag defendant threw on the ground and impounded his vehicle. The bag contained methamphetamine residue. Officers later learned that the vehicle driven by the defendant was registered to defendant’s friend. Officers wished to open a locked toolbox attached in the bed of the pickup. They invited defendant’s friend to the impound lot and obtained consent to remove the lock and open the toolbox. Defendant’s friend told officers that he had given the vehicle to the defendant to use, that he had not been in possession of the vehicle for several months, that he was not the person who attached the toolbox to the truck, and that he did not have a key. Officers removed the lock from the toolbox and discovered methamphetamine and paraphernalia.

Holding. Yes. When an officer reasonably, but mistakenly, believes a third party has actual authority to give consent to search, a search is not invalid when it is later shown that the third party lacked actual authority. Even though the record presents uncertainty as to whether defendant’s friend remained the actual owner of the vehicle at the time he consented to a search of the attached toolbox, the record did establish that he was the registered owner. These circumstances presented the searching officer with a reasonable basis to conclude that the friend had apparent authority to consent. In addition to being the registered owner of the vehicle, the friend contacted the police agency daily with inquiries on how to retrieve the vehicle. By law, the registered owner is the person who is entitled to retrieve a vehicle from an impound lot.

Comment. Defendant also raised a sufficiency of the evidence challenge asserting the State failed to establish affirmative links to drugs found days later in a locked toolbox. The court sets out fourteen different scenarios which have constituted affirmative links in other cases. This is a good blueprint for arguing or deciding whether to argue affirmative links in drug possession cases.

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

State v. Torres, No. 13-20-00101-CR (Tex. App.—Corpus Christi-Edinburg, 2021)

Issue. Texas Family Code § 51.09 gives a magistrate the option of ordering officers to immediately return a recording of a juvenile interrogation for a determination of voluntariness. When officers fail to follow this return-and-review procedure are the statements provided by the juvenile defendant inadmissible?

Facts. Officers arrested defendant for murder. On the date of his arrest defendant was 16 years old. A justice of the peace provided Miranda warnings to the accused and indicated in writing that officers were required to return a recording of defendants recorded interview so he could determine whether statements were provided voluntarily. This admonition was in accordance with Texas Family Code § 51.09. The justice of the peace waited at the police station from 12:23 AM until 4:00 AM but a recording was never returned. At the time of the hearing on defendant’s motion to suppress, the justice of the peace still had not reviewed the recording.

Holding. Yes. Texas Family Code § 51.09 provides that a child between 10 and 17 may waive any constitutional rights only under certain conditions. One way a child may waive Miranda rights under Section 51.09 is by a waiver after warnings are provided by a magistrate directly. When electing to secure a waiver of rights through this method, the magistrate may request officers to return the child after the interview and make a post-interview determination of voluntariness after reviewing the recorded interrogation. When a magistrate invokes this optional procedure, strict compliance is required, and failure renders the child’s statement inadmissible. Here, the magistrate invoked the return-and-review procedure and waited all night for officers to comply. They didn’t. And the state may not avail itself to other provisions of the Code which might otherwise show the child’s statement admissible once the return-and-review procedure is invoked. “We note that this could lead to an unjust result, in that an incriminating statement which is voluntarily made—and thus passes constitutional muster—may nevertheless be excluded due only to the magistrate’s invocation of the specific procedure set forth in the statute. Such a result, while required by the statute’s language, would not advance the purposes of the statute. We urge the Legislature to amend the statute to reflect that a statement will be admissible if it is adjudged at any point to be voluntarily made . . .”

14th District Houston

Ex parte Fairchild-Porche, No. 14-19-00445-CR (Tex. App.—Houston [14th Dist], Nov. 16, 2021)

Issue. Does the 2017 version of Texas’s revenge porn statute violate the First Amendment?

Facts. The State charged the defendant with unlawful disclosure of intimate visual material (“revenge porn”) and the defendant filed an application for pre-trial habeas corpus relief challenging the facial validity of the statute under the First Amendment. The State narrowed its allegations under the revenge porn statute to disclosure of photographs depicting the complainant with his genitals exposed which defendant obtained under circumstances where complainant had a reasonable expectation that the photographs would remain private. The indictment further alleged that the disclosure harmed complainant because the defendant disclosed the photographs to his co-workers and said photographs revealed complainant’s identity by depicting his face.

Holding. A statute targeting the content of speech is presumed invalid unless the State can show that the statute is narrowly tailored to serve a compelling government interest. The court may assist the State in discharging this burden by giving the statute a narrowing construction to avoid constitutional violation—but only when a narrowing construction comports with normal rules of statutory construction. In a similar case the Twelfth Court of Appeals found the revenge porn statute unconstitutional (see comment below). This case is distinguishable. Here the defendant obtained the photograph under circumstances where the depicted person had a reasonable expectation of privacy and the defendant herself revealed the identity of the depicted person rather than a third party revealing it. What ultimately cures this dispute is a construction of the statute which produces what the legislature intended when it created a statute targeting for criminal prosecution obscene pornography rather than non-obscene pornography. The statute must be read to include a requirement that the defendant acted knowingly or recklessly with regard to the depicted person’s expectation of privacy. Furthermore, the statute must be read to include a requirement that the defendant acted knowingly or recklessly in revealing the identity of the depicted person.

Concurrence (Spain, J.). We followed the Court of Criminal Appeals’ unpublished non-precedential opinion in Jones and then we published it. Why should this Court do the Court of Criminal Appeals’ job for them?

While dutifully stating that it is not relying on the authority of the unpublished per curiam opinion of the court of criminal appeals in Ex parte Jones, this court nonetheless follows the high court’s opinion. See Ex parte Jones, No. PD-0552-18, 2021 WL 2126172 (Tex. Crim. App. May 26, 2021) (per curiam) (unpublished); see Tex. R. App. P. 77.3 (“Unpublished opinions have no precedential value and must not be cited as authority by counsel or by a court.”) (emphasis added). And who can legitimately blame this court when the high court writes 43 pages that effectively rewrite Penal Code section 21.16(b) to avoid constitutional infirmities created by another department of government, then takes no long-term responsibility for the rationale that supports the high court’s judgment? The courts of appeals have no choice but to take responsibility for our opinions.

* * *

We pretty much know what the court of criminal appeals will do if we do not follow the unpublished Jones opinion, but I decline to participate in making Jones precedent through the back door. We do not have to publish . . .

Comment. I began this comment before reading Justice Spain’s concurrence and realized what I had to say was what Justice Spain said (but with less pizazz). So, I leave you with this comment: Justice Spain is right.

Ex parte Contreras, No. 14-20-00397-CR (Tex. App.—Houston [14th Dist], Nov. 16, 2021)

Issue. When counsel demonstrates unfamiliarity with the discovery and his client’s proficiency in the English language, does manifest necessity exist to declare a mistrial such that double jeopardy does not bar retrial?

Facts. The State charged the defendant with assault-family-violence. At trial defense counsel demonstrated his lack of familiarity with his client and the discovery in the following ways: (1) he released an interpreter not knowing his client’s English was insufficient to proceed with trial, (2) he indicated that he had not received discovery from the State, (3) he indicated that he had received discovery but had not reviewed it all, (4) he indicated that he received and reviewed all of the discovery but several months ago and could not remember basics facts contained therein, (5) he indicated a need to recall a witness for cross examination on facts contained in a non-existent witness statement. On the second day of trial the court, sua sponte, declared a mistrial claiming that defense counsel was “not prepared for trial” and “not able to provide effective assistance of counsel to complete this matter at this time.” Defense counsel objected to the declaration of mistrial. Before retrial defendant filed a “motion for writ of habeas corpus” challenging the second trial on double jeopardy grounds.

Holding. Yes. Jeopardy attaches in a jury trial once a jury is impaneled and sworn. “Accordingly, the premature termination of a criminal prosecution via the declaration of a mistrial—if it is against the defendant’s wishes—ordinarily bars further prosecution for the same offense.” This ordinary rule is inapplicable to cases where extraordinary circumstances present a “manifest necessity” to grant a mistrial. “[M]anifest necessity exists where the circumstances render it impossible to reach a fair verdict, where it is impossible to proceed with trial, or where the verdict would be automatically reversed on appeal because of trial error.” The State has the burden to show manifest necessity and to disprove the existence of alternative courses of action less drastic than the declaration of mistrial. The facts establish that counsel was unfamiliar with his client and the basic facts of the case. This falls below a reasonable standard of effective assistance of counsel under Strickland. Moreover, it appeared to the trial court that the jury had become frustrated with counsel during the proceedings in a manner that may have prejudiced his client.

Dissent (Christopher, C.J.) The majority “imposes a standard that many lawyers could not meet, and fails to engage in a meaningful analysis of prejudice”

Comment. Chief Justice Christopher’s dissent reflects a stereotype of criminal lawyers, and it is unfortunate. There’s surely a lot going on behind the scenes that we don’t know about, and Justice Christopher points some of those things out. I’m loath to jump to conclusions about an attorney’s performance from an appellate opinion – but that counsel didn’t know anything about the discovery is at least a basic premise of the majority and dissent. The implication of the dissenting opinion is that this is good enough for criminal defense and we shouldn’t expect much more from lowly defense attorneys who struggle to live up to the meager expectations of Strickland. No. We should. We should be expected to have basic familiarity with the information contained in discovery which persists through the day of trial.

Crowell v. State, No. 14-20-00017-CR (Tex. App.—Houston [14th Dist], Nov. 18, 2021)

Issue. (1) When the state moves an inmate from the local jail to a prison during the period for filing a motion for new trial, has the state denied effective assistance of counsel? (2) Can an appellate court modify multiple judgments when a trial court attempts to stack several sentences but erroneously sandwiches a non-stackable offense between several other stackable offenses? (3) Can a trial court stack a 1997 sexual assault of a child sentence with other more recent stackable offenses?

Facts. The State charged the defendant with three counts of aggravated sexual assault of a child under 14, sexual performance by a child under 14, and possession with intent to promote child pornography. Defendant entered a guilty plea, and the trial court conducted a punishment hearing without an agreed punishment recommendation (“open plea”). The trial court sentenced the defendant to 295 years by cumulating sentences.

Holding. (1) Question avoided “As a prerequisite to obtaining a hearing on a motion for new trial, the motion must be supported by an affidavit, either of the accused or someone else specifically showing the truth of the grounds of attack.” Conclusory allegations and sworn statements will not suffice. Here the defendant contends that providing a sworn statement for counsel to file became impossible when the State prematurely moved him to a prison. But counsel’s representation of this fact in the motion was conclusory and did not explain why some person other than the defendant could not have executed an affidavit. (2) Yes. The version of the stacking-eligibility statute applicable to defendant’s offenses did not permit stacking of possession of child pornography. The trial court attempted to stack all of defendant’s sentences, it did so by sandwiching defendant’s child pornography sentence between his other stackable sentences. (3) No. In 1997 sexual assault of a child was not a stackable offense by the nature of the offense alone. To stack this 1997 offense the state had to meet two requirements either: (1) they did not prosecute the offense in the same criminal action, or (2) it did not arise out of the same criminal episode. Because “same criminal episode” has no temporal limitation, it was not shown that defendant’s 1997 sexual assault of a child met this requirement.

Ex parte Temple, No. 14-20-00156-CR (Tex. App.—Houston [14th Dist], Nov. 23, 2021)

Issue. Before 2005 the Code of Criminal Procedure required that a mistrial declared during the punishment phase of trial result in retrial starting from the guilt-innocence phase of trial. When a defendant committed an offense before 2005 but is prosecuted after 2005 and a trial court declares a punishment phase mistrial must the trial court apply the law applicable on the date the defendant committed the offense and grant a new trial on both guilt-innocence and punishment?

Facts. In 2007 a jury convicted the defendant for murdering his wife in 1999. Defendant’s conviction and life sentence were reversed, and a new jury convicted him in 2019. After the jury delivered its guilt-innocence verdict, the trial court dismissed two of the four alternate jurors. During punishment deliberations the jury sent a note to the trial court indicating that two of the jurors refused to participate in deliberations. Defense counsel requested a supplemental instruction and opportunity for additional argument from the parties. The State objected and suggested the two jurors might be considered “disabled” for purposes of jury service. The trial court read to the jury an Allen charge and instructed them to go reach a verdict on punishment. The jury eventually sent a note back to the trial court telling the judge to declare a mistrial because “we believe it is a total fluke, a one and a thousand chance that this group of jurors was assembled . . . two jurors are not willing to budge at all. The trial court declared a mistrial. Defendant a writ of habeas corpus challenging the ex post facto application of the 2005 limited punishment retrial upon punishment mistrial statute. The trial court denied relief.  The state filed a “motion to exclude exonerating or residual doubt evidence at punishment.”

Holding. Issue dodged. Defendant’s challenge to the amended Code of Criminal Procedure’s limited retrial provision is an as-applied challenge to the statute’s constitutionality. Unless you are the Governor and accused of a crime, you cannot raise an as-applied challenge through pre-trial writ of habeas corpus. Ex parte Perry, 483 S.W.3d 884, 895 (Tex. Crim. App. 2016) (yes that’s actually law). Defendant argues that it would be unfair in light of the trial court granting the State’s motion to exclude “residual doubt” evidence for a new jury to issue a determination on punishment – but the trial court can still reverse its decision after seeing what evidence the defendant might wish to present.

Comment. What the heck is a “motion to exclude exonerating or residual doubt evidence?” It sounds like “don’t talk about how bad our case was to the new jury who doesn’t know how bad it was.” When a jury is asked to render a verdict on guilt and a verdict on punishment, they are not supposed to barter with one another and trade concessions on one verdict in exchange for another. But they do. And that they do is not only well-known but a protected part of the process. United States v. Powell, 469 U.S. 57 (1984). To have a new jury deliberate on a punishment that a previous jury saddled it with delivering but without hearing the weight of the State’s evidence is problematic.

Null v. State, No. 14-19-00839-CR (Tex. App.—Houston [14th Dist], 2021)(en banc)

Issue. Under Texas Rule of Evidence 702, may a lab analyst testify about the results of lab testing performed offsite when that lab analyst has knowledge of existing protocols at the off-site laboratory and can assume or deduce without personal knowledge that those protocols were followed? (2) Can a court take judicial notice that DNA evidence is widely accepted?

Facts. This is an en banc rehearing from a case appearing in the August edition of the Significant Decision Report. The facts are copied from the previous summary. The issues above are narrowed to those decided differently by the en banc court. Complainant was 16 years old when she came home in a confused state and told her mother she had been raped while out jogging. Later complainant revealed that the jogging story was a lie. Instead, her story was that she skipped school, got drunk, hung out with an adult friend, got more drunk, tried to walk home, passed out, found herself in a car with a man “pressing on top of her.” Toxicology reports showed complainant had Xanax and marijuana in her system. Forensic evidence showed that Defendant could not be excluded as a suspect. At trial, complainant testified that she did not know the defendant, had never seen him before, and could not identify him as the attacker.

Holding. (1) No. Under Texas Rule of Evidence 702, the proponent of scientific evidence must, among other things, show by clear and convincing evidence that a reliable scientific technique was properly applied on the occasion in question. Here, an offsite laboratory developed DNA profiles by extracting DNA, quantification of DNA, amplification of DNA, and graphing of DNA. The testifying expert did not supervise any of these steps and did not have personal knowledge that the testing was done properly. Sometimes a DNA analyst who does not personally perform relevant work may nonetheless establish scientific reliability in lab testing results. But such a witness must impart some personal knowledge that protocols were actually followed. The testifying analyst here was not able to state who performed the work at the off-site laboratory, whether the off-site laboratory actually followed the proper testing process, or whether the off-site laboratory had properly calibrated their instruments or stored their specimens. Moreover, the testifying analyst merely confirmed the accuracy of conclusions rendered by another analyst. “While the testifying expert can rely upon information from a non-testifying analyst, the testifying expert cannot act as a surrogate to introduce that information.” (2) No. At least it cannot do so without notifying the parties and allowing argument from the evidentiary opponent. To uphold a conviction because a trial court could have taken judicial notice denies a defendant the opportunity to challenge the information upon which the trial court would purportedly rely to take such judicial notice. This would constitute a violation of due process. 

Dissent (Christopher, C.J.). “The standard for en banc consideration has not been met.” A lab analyst is not required to have personal knowledge as to whether a reliable technique was followed. It is sufficient that the analyst reviews the results of the work and be able to deduce that protocols were followed. To the extent that the testifying expert operated as a surrogate, it would present a Confrontation Clause issue, not a Rule 702 issue. Defendant waived any complaint under the Confrontation Clause by not objecting on that basis.

Comment. I’m surprised the 702 issue is where the en banc court reached disagreement with the panel. Defendant also raised legitimate issues with the sufficiency of evidence pertaining to penetration and venue. The panel’s rejection of those arguments is undisturbed in this opinion on reconsideration.

December 2021 SDR – Voice for the Defense Vol. 50, No. 10

Voice for the Defense Volume 50, No. 10 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

When you’re running behind on the SDR and think to yourself “I might need to skim a few of these cases,” but then you stumble upon this gem from the Eighth Court of Appeals Opinion: “When a tribal police officer has probable cause to believe that a non-Indian motorist has violated state or federal law on tribal lands, the tribal police can detain the motorist for a reasonable period of time until state or federal law enforcement arrives.” If you guessed that I took the heat for a late submission and read the heck out of that case, then you guessed correctly, folks. Summary below.

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

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

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

Kyle Therrian

United States Supreme Court

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

Fifth Circuit

United States v. Gardner, 15 F.4th 382 (5th Cir. 2021)

Issue. Must a trial court grant an evidentiary hearing on a motion to withdraw a guilty plea when the defendant alleges that he lost an opportunity to file a meritorious motion to suppress evidence after relying on counsel’s incorrect representation that said motion could be filed later, after entering an unconditional guilty plea?

Facts. Defendant entered a guilty plea without a plea agreement. On the day of sentencing counsel made an oral motion for continuance to file objections to the presentence investigation report (“PSR”). This was several months after objections were due. Defendant then filed a pro se motion to appoint new counsel alleging that counsel misled him into believing that counsel had previously filed PSR objections and that counsel gave inconsistent information regarding the availability of audio and video footage of the search leading to his arrest. Defense counsel moved to withdraw citing “irreconcilable differences.” The district court granted counsel’s motion and appointed new counsel two days before sentencing. New counsel filed a series of continuances to get his footing in the case. Ultimately new counsel filed a motion to withdraw defendant’s guilty plea as involuntary by virtue of ineffective assistance of former counsel. In his motion to withdraw guilty plea, Defendant alleged that previous counsel informed him a motion to suppress could be litigated after entering a guilty plea. The trial court denied defendant’s motion to withdraw his plea without a response from the government and without an evidentiary hearing.

Holding. Yes. A trial court’s denial of an evidentiary hearing is reviewed for abuse of discretion. A trial court must permit a defendant to withdraw his guilty plea if he “can show a fair and just reason for requesting the withdrawal.” Factors in making this determination include “(1) whether the defendant asserted actual innocence; (2) whether the withdrawal of the plea would prejudice the government; (3) the extent of the defendant’s delay, if any, in filing the motion to withdraw; (4) whether withdrawal would substantially inconvenience the court; (5) whether the defendant was benefitted by the close assistance of counsel; (6) whether the guilty plea was knowing and voluntary; and (7) the extent to which withdrawal would waste judicial resources.” Here many factors weigh against the defendant, but not so heavily as to overcome a valid claim that his plea was rendered involuntary by ineffective assistance of counsel. Here, the allegations amount to ineffective assistance of counsel if proven. If proven, erroneous advice on the court’s ability to consider a motion to suppress after entering an unconditional guilty plea would fall below an objective standard of reasonableness. Therefore, defendant alleged sufficient facts to justify an evidentiary hearing and the trial court was in error to deny one.

Comment. The court points out that it is not ruling on the effectiveness of counsel but merely on the appropriateness of the trial court’s ruling without an evidentiary hearing.

Texas Court of Criminal Appeals

Maciel v. State, No. PD-0753-20 (Tex. Crim. App. 2021)

Issue. Necessity is a confession-and-avoidance defense. It requires a defendant to essentially admit the charged conduct. Does a DWI defendant sufficiently trigger a confession-and-avoidance defense when she testifies that she does not believe her attempt to move an inoperable vehicle satisfied the element of operation?

Facts. Defendant was too drunk to drive so she got a ride home from her brother. While the two were en route, defendant’s brother stopped the car in the middle of the road and began vomiting. Defendant climbed into the driver seat to try and drive the car out of the middle of the road. She could not get the car to move. She testified “I couldn’t get the car to move, so I wasn’t driving. I don’t think I was operating it.” A Texas A&M University Police officer discovered the vehicle in a lane of traffic with smoke coming from under the hood. Defendant was in the driver seat and the engine was running. The officer arrested defendant for DWI. At trial, defendant requested a necessity defense. The trial court denied the request because it believed defendant failed to trigger the confession-and-avoidance defense by denying her operation of the vehicle.

Holding. Yes. A defendant is entitled to a defensive instruction if raised by any evidence, weak or strong. If the defendant’s theory of the case does not controvert circumstances which would establish guilt, the defendant has not flatly denied the charged conduct. “While the term ‘operate’ is not statutorily defined, this Court has held that, under a sufficiency review, the totality of the circumstances must demonstrate that the defendant took action to affect the functioning of his vehicle in a manner that would enable the vehicle’s use.” The arresting officer’s testimony and body camera footage established sufficient evidence of operation. Defendant’s own testimony essentially admitted to every element of the offense charged—she admitted to getting into the driver seat and trying to move the car to a parking lot. “[O]ur jurisprudence regarding the confession-and-avoidance doctrine does not require an explicit admission from the defendant that she committed the crime.” It is sufficient that defense evidence admits conduct sufficient to establish a crime. Here it did.

Concurrence (Newell, J.). It was unnecessary to remand this case back to the court of appeals to conduct a harm analysis. This court could have done that.

Comment. I like the precedent for this rare fact pattern. I don’t like that operating includes “not operating.”

Lozano v. State, No. PD-1319-19 (Tex. Crim. App. 2021)

Issue. When some evidence suggests a reasonable person might have been justified in the use of deadly force, but no evidence establishes the defendant’s subjective belief that it was, is the defendant entitled to a deadly force self-defense instruction (such that the trial court’s erroneous inclusion of a duty to retreat instruction warrants reversal)?

Facts. Defendant engaged in an altercation with a man he thought was hitting on his girlfriend at the bar. When everyone left the bar, defendant drove his car menacingly near the man and the group he was with. Defendant rolled down his window and stared at the man’s girlfriend. The man threw a beer can inside of defendant’s truck which exploded. As defendant retrieved a gun from his back seat the man charged defendant’s open window and hit him in the face 1-3 times. Defendant shot and killed the man. The trial court charged the jury on self-defense together with an instruction on the duty to retreat. The court of appeals found that the inclusion of a duty to retreat instruction egregiously harmed defendant and reversed his conviction.

Holding. In 2007 the legislature eliminated the duty to retreat where deadly self-defense is raised by the evidence and where a person has the right to be present at the location where deadly force is used and has not provoked the altercation. The inclusion of an inappropriate general duty to retreat instruction constitutes an improper comment on the weight of the evidence. While the inclusion of the duty to retreat instruction was erroneous, so was the inclusion of a self-defense instruction in the first place. There was no evidence that Appellant acted in self-defense when he shot and killed the victim. Deadly self-defense requires both a subjective belief that deadly force is necessary and an objective determination that the defendant’s belief was reasonable. A defendant’s subjective belief is presumed reasonable if the defendant used deadly force to repel a person forcibly entering his occupied vehicle who he did not provoke (and assuming the defendant was not himself committing an offense greater than a Class C traffic offense). Here, a jury could have found the presumption of reasonableness applicable to repelling forcible entry into an occupied vehicle. But this does not obviate the necessary showing that the defendant actually believed deadly force was necessary. Defendant either brandished a firearm after the victim threw a full can of beer in his truck because he was legitimately felt the need to use deadly force or because he wished to intentionally escalate an altercation. Defendant either shot the victim because he was legitimately felt the need to defend with deadly force or because he overreacted. He either shot the victim a second and third time because he thought it necessary in a fight for his life, or he did it gratuitously. The evidence does not establish, one way or another, how the defendant felt about the necessity of force. Because defendant was provided a windfall by the inclusion of an improper self-defense instruction, he could not have been egregiously harmed by the improper inclusion of a duty to retreat instruction.

Comment. I’m not sure what this does to the “self-defense is triggered by some evidence from any source” rule. I can see a prosecutor using this case to argue that circumstantial evidence of the defendant’s subjective belief is not enough, and that a defendant must testify. However, given this goes against considerable precedent, if this is what the Court of Criminal Appeals meant to do, they probably would have been more explicit.

State v. Brent, No. PD-0020-21 (Tex. Crim. App. 2021)

Issue. In the case of a convicted defendant who receives a discharge from probation, Article 42A.701(f) of the Code of Criminal Procedure provides a trial court with authority to set aside a verdict, withdraw the defendant’s plea, and dismiss the complaint, information, or indictment (a.k.a. grant “judicial clemency”). Does a trial court have never-ending jurisdiction to grant this judicial clemency?

Facts. More than two years after the trial court discharged her from probation, defendant requested, and the trial court granted judicial clemency.

Holding. No. A trial court has 30 days of plenary power to grant judicial clemency after discharge. “That understanding was embraced by all the courts of appeals to consider the issue between 2011 and 2018, and the Legislature never countermanded it. . . . Prolonged inaction by the Legislature in the face of a judicial interpretation of a statute implies approval of that interpretation.” In the face of this judicial interpretation, the legislature reenacted the judicial clemency provision without change in verbiage. Contrary to the opinion of the court of appeals, discharge from probation and judicial clemency are not separate forms of relief—clemency depends on discharge, and they must occur together. The fact that a former probationer may become completely rehabilitated and worthy of judicial clemency on a later date is not a basis to extend the court’s jurisdiction. Arguably the authority of the trial court should be shorter than the 30-day plenary power normally applied to motions for new trial. “For one thing, judicial clemency grants more relief than does an order granting a new trial or arresting a judgment because clemency not only claws back the verdict and/or guilty plea, it dismisses the charging instrument” and the State has no opportunity to re-convict.

Concurrence (Yeary, J.). “Superficially, at least, the very concept of ‘judicial clemency’ threatens to unduly encroach upon the prerogative of the Executive Department, in violation of the separation of powers mandate of Article II, Section 1 of the Texas Constitution.” A holding that affords indefinite jurisdiction to the trial court would amplify the risk that the statute may be struck down as unconstitutional.

Comment. The defendant argues that many rehabilitated former probationers don’t learn about their ability to request judicial clemency until long after their discharge. The Court frames this argument as follows: “Along the way she endorses an out-of-date assertion that defendants are not given notice about the possibility of judicial clemency. Cf. Tex. Code Crim. Proc. art. 42A.058 (requiring written notice to defendants about the possibility of judicial clemency when they are placed on community supervision). The Court’s analysis here highlights the value that could be added to the Court of Criminal Appeals by the addition of more defense attorney perspectives. I practice in the sixth largest county in Texas and not a single defendant (to my knowledge) has received an admonishment on judicial clemency from a trial court since 42A.058 was enacted in 2017. And I am aware of one judge in neighboring Dallas County who issues such admonishment. I would take the defendant’s argument here one step further. Not only do a lot of former probations fail to recognize the law in this area; a lot of judges, prosecutors, and defense lawyers do, too. Frankly, the law is chock-full of things trial courts and lawyers are supposed to do but don’t. When appellate courts say its harmless to not do them, they often don’t get done.

Ramos v. State, No. PD-0788-20 (Tex. Crim. App. 2021)

Issue. Are the offenses of continuous sexual abuse and prohibited sexual conduct (incest) the same offense for purposes of a multiple-punishments double-jeopardy analysis?

Facts. A jury convicted the defendant of continuous sexual abuse of a child and prohibited sexual conduct. The conviction for prohibited sexual conduct was a single instance of sexual abuse against the same victim and during the same timeframe as the conduct underlying the conviction for continuous sexual abuse. The complainant testified specifically about a single incident giving rise to the prohibited sexual conduct conviction. It occurred on the last date of the timeframe alleged in the continuous sexual abuse allegation. The complainant also testified generally about sexual abuse occurring throughout alleged timeframe of the continuous sexual abuse charge. Defendant challenged his convictions on double jeopardy grounds. The court of appeals reversed.

Holding. No. Section 21.02 supplies various predicate offenses that, if committed on multiple occasions, can form the predicate offense for a continuous sexual abuse conviction. Prohibited sexual conduct is not among the predicate offenses listed in Section 21.02. The starting point for double jeopardy analysis is Blockburger: “two separately defined statutory offenses are presumed not to be the same so long as each requires proof of an elemental fact that the other does not.” In Texas, that presumption is rebuttable. Rebutting the presumption requires consideration of several factors: whether provisions are in the same statutory section, whether offense are phrased in the alternative, whether offenses are named similarly, whether offenses have common punishment ranges, whether offenses have common focus or gravamen, etc. See Ervin v. State, 991 S.W.2d 804 (Tex. Crim. App. 1999). Here, the two offenses are not the same under Blockburger. A person commits prohibited sexual conduct regardless of whether the victim is a child (as required by the continuous sexual abuse statute) and regardless of whether the victim is younger than 14 years of age (as required by the continuous sexual abuse statute). “The Ervin factors—including the focus/gravamen factor—ultimately militate in favor of a conclusion that continuous sexual abuse of a child and prohibited sexual conduct are not the same offense for purposes of a multiple-punishments double-jeopardy analysis.” The provisions do not appear in the same statutory section. They are not phrased in the alternative. They are not named similarly. The two offenses carry wildly different punishment ranges. The elements which differ between the two offenses are nothing alike. One offense requires proof of two acts of sexual abuse, the other requires proof of intercourse with a stepchild. Finally, legislative history reveals “[t]he two statutes are of entirely different vintages.” The purpose of the continuous sexual abuse statute is to protect children from predatory adults and the purpose of the prohibited sexual conduct statute is to protect the sanctity and integrity of the family unit. The court of appeals erroneously interpreted the gravamen of the offenses to be the same. But continuous sexual abuse is a hybrid nature-of-conduct and circumstances-surrounding-conduct offense. The victim must be under the age of 14 and the abuse must occur over a period greater than 30 days. Prohibited sexual conduct does not punish sexual intercourse in the abstract, it punishes it when the actor knows the person is a relative.

Comment. Is it odd to refer to a sex offense statute as a “vintage?” Do you swirl the statute and take in its aroma before using it to punish a person a second time for the same conduct?

Molina v. State, No. PD-1079-19 (Tex. Crim. App. 2021)

Issue. The Confrontation Clause guarantees the right to cross-examine a laboratory witness whose work is testimonial in nature. Is work done by a lab technician who prepares evidence for analysis, generates raw DNA data, and conducts initial presumptive testing testimonial in nature?

Facts. A jury convicted defendant of raping a woman based on a match between the DNA sample collected from the victim in 2000 and a sample voluntarily provided by the defendant 17 years later. In 2000, a SANE nurse collected samples from the victim which law enforcement preserved due to the complainant’s inability to identify her attacker. In 2017, when a laboratory tested defendant’s sample, it was determined that the DNA collected from the complainant in 2000 belonged to the defendant. Defendant objected at trial to the testimony of the analyst as a surrogate for the testimony of other expert opinions contained in the final lab report. Over defendant’s objection, the trial court permitted the testifying analyst to explain how another analyst processes evidence before a DNA profile is developed; how another person locates areas of interest on the evidence, how another person conducts presumptive testing, extracts material, and amplifies genetic markers. The testifying analyst also explained the controls used by his laboratory to ensure reliability and how errors in processing cannot result in the erroneous generation of the wrong person’s DNA profile. Finally, the analyst testified that he was able to independently verify the profile developed by the person who performed work before him.

Holding. No. There are scenarios where a lab supervisor might testify as a surrogate for the testimonial analysis performed by another lab technician and violate the Confrontation Clause. There are other scenarios where a lab supervisor uses non-testimonial data prepared by another person/computer to reach a testimonial conclusion of her own and does not violate the Confrontation Clause. Here, the lab supervisor reviewed non-testimonial data and rendered her own conclusions. The relevant cases for comparison are Burch v. State and Paredes v. State.

In Burch v. State, 401 S.W.3d 634 (Tex. Crim. App. 2013), a laboratory supervisor testified in place of the analyst who performed the testing. The laboratory supervisor double-checked everything but could not confirm that the non-testifying analyst reached the correct result. The Court of Criminal Appeals ruled that the defendant had the right to cross-examine the non-testifying analyst because her report contained testimonial statements, and the supervisor was a mere surrogate for her conclusions.

In Paredes v. State, 462 S.W.3d 510 (Tex. Crim. App. 2015), a laboratory supervisor testified in place of the analyst who generated raw DNA data resulting in a lab report identifying the victim’s blood on the defendant’s shirt. The Court of Criminal Appeals ruled that there was no Confrontation Clause violation because the DNA profile was computer generated and “stood for nothing without [the] further analysis” provided by the laboratory director who “performed the crucial analysis determining the DNA match and testified to her own conclusions.” Also relevant was the fact that the reports were not entered into evidence, that potential human-error was cured by the director’s ability to verify that her conclusions were properly generated, and that safety measures were implemented to detect errors.

The court of appeals concluded that Paredes controlled, notwithstanding: (1) the fact that Paredes involved a computer-generated DNA profile instead of a human-generated DNA profile, and (2) the fact that the instant lab supervisor testified only in generalities as to the laboratory’s quality controls. The court of appeals analysis was correct. The preparation of DNA samples here [presumptive tests, epithelial-cell fraction collection, quality control measures, and raw data about a DNA profile] was not inherently testimonial. This work stands for nothing on its own without additional analysis. The lab supervisor here was not a mere surrogate and his lack of personal knowledge about the specifics of lab quality control measures are unimportant. It was sufficient that he could explain that “if there is an error in processing evidence, no profile suitable for comparison would be generated.” Moreover, the lab supervisor checked the work of analysts who prepared the profile and was able to develop the same profile using the same underlying raw data.

Comment. The area of concern is the lack of any personal knowledge about quality controls observed by the laboratory. If an expert is going to testify to a one in quadrillion chance of innocence, it isn’t too much to ask that the witness be able to at least say something like “we lock the door of the laboratory at night.” Give me something . . .

Ex parte Hill, No. WR-83-074-04 (Tex. Crim. App. 2021)

Issue. (1) When a defendant successfully overturns a prior criminal conviction used for enhancement purposes many years after-the-fact (and during the pendency of the enhanced case), can the State rely on the doctrine of laches to defeat his now timely illegal sentence claim by pointing to the delay in challenging and overturning the prior criminal convictions? (2) When the State enhances a defendant’s sentence with a defective prior conviction, is the problem appropriately analyzed as an illegal sentence (as opposed to defeated as a defective enhancement)? (3) Is a defendant harmed by a mandatory life sentence in one case when he would have received a life sentence in another case?

Facts. Defendant was convicted of second-degree sexual assault of a child and indecency with a child by contact. The State enhanced his sentences with a prior conviction for aggravated sexual assault. The effect of the enhancement was automatic (in the sexual assault of a child), and up-to-life-imprisonment (in the indecency by contact). Before the instant appeal, the Court of Criminal Appeals vacated defendant’s sentences used for enhancement (enhancing sentences).

Holding. (1) No. The State should have raised laches when Defendant challenged his prior convictions – “not now when Applicant is raising different claims less than six months after they became available challenging sentences that he has never challenged.” Moreover, “there is no record evidence to support that the State would be materially prejudiced. . . . no evidence that memories have faded or evidence has been lost or is otherwise unavailable because of the passage of six months’ time.”

(2) Yes. Ex parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006) governs if the court treats the instant case as an illegal sentence. In Rich a defendant pleaded guilty to an enhanced felony and later realized one of his prior sentences had been reduced to a misdemeanor. Defendant’s claim was not forfeited because such claims are regularly raised for the first time on postconviction, and the appellate record did not reveal the problem with the defendant’s sentence. Hill v. State, 633 S.W.2d 520 (Tex. Crim. App. 1981) controls if the court treats the instant case as an improper enhancement. In Hill a defendant directly appealed his enhanced theft and argued that one of his prior theft convictions was defective. The Court of Criminal Appeals held in Hill that a defendant cannot raise for the first time on direct appeal an improper-enhancement claim unless he objected at trial. This case is governed by Rich and not Hill. The Court of Criminal Appeals has not relied on Hill or its progeny in 23 years. “[W]e need not overrule Hill and its progeny because they do not apply to illegal-sentence claims based on an improper enhancement.” In analyzing the legality of a sentence, the court must look to “the legality of the punishment as it now stands not as it stood at some other time.” Defendant’s sentences “are now known to be illegal.” Here, both of defendant’s sentences are illegal because they exceed the maximum sentences for second-degree felonies (his sentencing range on the underlying offenses un-enhanced).

(3) No. In assessing harm, the court looks to a defendant’s actual criminal history to assess what enhancements might still have applied. Here defendant’s automatic life sentence for sexual assault is without question harmful. On the other hand, defendant’s life sentence for indecency with a child is not because “his actual criminal history supports the first-degree felony punishment range in which he was sentenced.”

Concurrence / Dissent (Keller, P.J.). Laches.

Concurrence / Dissent (Yeary, J.). At the time the sentence was imposed there was nothing wrong with it.

Comment. I might have tired-head from reading this opinion, but my question is this: if Hill and its progeny do not apply to illegal-sentence claims based on improper enhancement, what does it apply to? Why doesn’t the Court of Criminal Appeals overrule it explicitly? 

West v. State, No. PD-0236-20 (Tex. Crim. App. 2021)

Issue. Does an indictment alleging prescription fraud of Substance A toll the statute of limitations to later allege a prescription fraud of Substance B?

Facts. The State alleged three counts of possession occurring in 2015. In 2016 the State charged Defendant with possession of Tramadol by misrepresentation, fraud, forgery, deception, or subterfuge. In 2018, after the statute of limitations ran, the State refiled an indictment substituting Oxycodone for Tramadol. The trial court dismissed the 2018 indictment for failure to include tolling paragraphs. Months later, in 2018, the State filed a third indictment identical to the second indictment fixing the problem with tolling paragraphs. The trial court dismissed the third indictment as barred by the statute of limitations. The court of appeals reversed and reasoned that the State had properly tolled the statute of limitations on the Oxycodone prosecution by filing a Tramadol case.

Holding. No. An indictment or information tolls the computation of time for purposes of calculating the period of limitation. However, a prior indictment only tolls the statute of limitations for a subsequent indictment when both indictments allege the same conduct, same act, or same transaction. . . . A subsequent indictment is barred by the statute of limitations if it broadens or substantially amends the charges in the original indictment.” In Hernandez v. State, 127 S.W.3d 768 (Tex. Crim. App. 2004) the Court determined that a prior indictment for possession of amphetamine tolled the statute of limitations for possession of methamphetamine because both indictments charged the defendant with possession of controlled substance and “the facts involved with the conduct alleged in the first indictment would be nearly identical to those involved with the conduct alleged in the subsequent indictment.” The instant case differs from Hernandez because it alleges a variety of different means for committing the offense (knowingly possessing, attempting to possess, by misrepresentation, by fraud, by forgery, by deception, by subterfuge). “This distinction could theoretically allow for greater permutations in the combination of facts constituting the particular actions committed. . . . [For instance] [p]ossessing Tramadol after deceiving a doctor into writing a prescription for the drug describes completely different conduct, acts, or transactions from attempting to possess Oxycodone by forging a doctor’s prescription and presenting that forgery to a pharmacist.” In the instant case there is no way to conclude from the face of the indictment that there would be overlap in the evidence required to prove either indictment.

Dissent (Yeary, J.) What matters is whether the substances are sufficiently similar. And they are. “I would simply hold . . . that the running of the statute of limitations is tolled during the pendency of any “indictment, information, or complaint” against the defendant.”

Comment. I agree with the outcome. I am scratching my head about the Court basing its opinion in notice-based analysis of whether you can tell from the face of the documents that the State is referring to the same conduct in both indictments. I feel like (and admittedly I’m not going to Westlaw this) if the Defendant had moved to quash either indictment on inadequate notice grounds, he would have gotten the ‘ol “come on you know what they’re talkin’ about” treatment. Maybe not . . . 

Diaz v. State, No. PD-0712-20 (Tex. Crim. App. 2021)

Issue. When an officer’s warrant affidavit misinforms a magistrate that his source of information is an unnamed informant instead of correctly identifying the source as a confidential informant (or snitch), does the warrant affidavit fail to establish probable cause due to materially false information?

Facts. A jury convicted defendant of burglarizing a police officer’s home. Defendant moved to suppress a search warrant under Franks v. Deleware, claiming the probable cause affidavit used to obtain the warrant to search his phone contained materially false statements. The warrant affidavit claimed that the investigating officer received a tip from an anonymous source who relayed the name and two phone numbers for the individual who burglarized the police officer’s home. The investigating officer further swore that he approached a DEA agent and requested the agent run the numbers through DEA databases and find an identity. The testimony before the trial court showed the anonymous tipster was actually a confidential informant for the DEA, that the confidential informant provided a tip to a DEA agent and not the investigating officer, that the DEA agent ran the phone numbers on his own volition, and that the DEA agent contacted the investigating officer.

Holding. No. An anonymous tipster is treated the same as a confidential informant in the analysis of their credibility on the face of a warrant affidavit: “their reliability depends on facts from which an inference may be drawn that they are credible or that their information is reliable.” Because an anonymous tipster is not treated less skeptically than a confidential informant, the omissions in the investigating officer’s affidavit were not material. The corroborating evidence in the affidavit would have sufficiently corroborated either an anonymous tipster or a confidential informant such that a magistrate could find probable cause. Similarly, the investigating officer’s lie about who contacted who is immaterial. Whether the DEA contacted the investigating officer, or the investigating officer contacted the DEA has no bearing on probable cause.

Comment. Don’t lie. Make liars regret lying. Then less lies.

Ex parte Rion, No. PD-1096-19 (Tex. Crim. App. 2021)

Issue. Where a defendant successfully defeats a charge of manslaughter by arguing he was suffering from a mental health episode when he collided with another vehicle, does the jury’s verdict of acquittal represent a finding that the defendant did not recklessly cause any injury whatsoever, such that the State is collaterally estopped from a post-acquittal prosecution for aggravated assault with a deadly weapon?

Facts. Defendant crashed his vehicle into another vehicle. The passenger of the other vehicle died. The State prosecuted the defendant for reckless manslaughter. In his first trial, defendant defended his case by arguing that he did not act recklessly because the accident occurred amid a mental health episode. Defendant did not dispute that the collision was the cause of the victim’s injuries and ultimate death. Defendant’s first jury found him not guilty of manslaughter and not guilty of the lesser included offense of criminally negligent homicide. The State then prosecuted defendant for aggravated assault. Defendant challenged the second prosecution as barred by collateral estoppel. The court of appeals reversed.

Holding. Collateral estoppel is a component of double jeopardy. “Before collateral estoppel can apply, a court must be able to say that it would have been irrational for the jury to acquit in the first trial without finding in the defendant’s favor on a fact essential to a conviction in the second.” Here, the court of appeals was incorrect to deduce from the jury’s verdict a belief that the defendant lacked the mens rea of recklessness as it pertains to causing the accident. This is the wrong focus. Manslaughter and criminally negligent homicide are “result of conduct” offenses and the mens rea attaches to the result: the defendant recklessly causes death. The focus is not on causing the accident. Here, the jury could not have found the defendant lacked mens rea as to the accident because the jury was not asked about the defendant’s mens rea as to the accident. The first jury simply found that he was not aware of a risk that death could occur as a result of his conduct. “But this is not to say that collateral estoppel can never apply where one trial is for manslaughter and the other trial is for reckless aggravated assault causing bodily injury. Because death itself is a form of bodily injury.” As it would appear on the LSAT, it goes like this:

    • If the defendant is aware of a risk of death; then he is aware of a risk of bodily injury.
    • If the defendant is not aware of a risk of death; then he is or is not aware of a risk of bodily injury.
    • If the defendant is aware of a risk of bodily injury; then he is or is not aware of a risk of death.
    • If the defendant is not aware of a risk of bodily injury then he is not aware of a risk of death.

Comment. I think this opinion only pays lip service to the collateral estoppel requirement that the court examine “the entire trial record, as well as the pleadings, the charge, and the arguments of attorneys.” Defense counsel argued that he was suffering a mental health crisis when he collided with the victim. Counsel for the State argued that this was bologna. There is little distinction in the mind of a lay person between conduct which causes a car accident and conduct that causes the death after a car accident. I seriously doubt jurors in this case spent a lot of time discussing the nuances of “result of conduct” versus “nature of conduct.” The State’s new position on appeal is disingenuous, too. To defeat defendant’s argument that the jury necessarily determined the issue of recklessness against the State, the State argued that a reasonable juror considering this evidence could have based his or her verdict in causation. So, on appeal the State says it is reasonable to conclude the Defendant’s conduct is not the cause of death. But at trial the State argued that they had proven causation: “[b]ut for the Defendant’s actions, this woman would still be alive.” Can the State be estopped by their estoppel-defeating estoppel argument?

1st District Houston

Ex parte Lowry, No. 01-20-00858-CR (Tex. App.—Houston [1st Dist.], Oct. 26, 2021)

Issue. Is the Texas statute on child erotica, Texas Penal Code § 43.262, unconstitutionally overbroad?

Facts. The State charged the defendant with possession of lewd visual material of a child under Texas Penal Code § 43.262. The statute prohibits possession of material which depicts the lewd exhibition of clothed or unclothed minors. It does not include as part of the definition that the material be “patently offensive” as is required by the Supreme Court’s definition for obscenity and as is typically included by the legislature when outlawing obscene materials. Defendant filed a writ of habeas corpus challenging the facial validity of the statute (regulating substantial amount of protected speech and unconstitutionally vague). Defendant argued that Section 43.262 outlaws speech which is neither child pornography nor obscene and referenced for example social media influencers under the age of 18 who post provocative but clothed pictures of themselves.

Holding. Content-based regulations are presumptively invalid and subject to strict scrutiny. However, obscenity and child pornography enjoy no protection under the First Amendment. What Section 43.262 outlaws is not “obscenity” because it omits from its definition that the material be “patently offensive.” The statute outlaw child pornography. Another statute outlaws child pornography; this statute was crafted with the intent to supplement the child pornography statute by also outlawing “child erotica.” Section 43.262’s targeting of lewd exhibition that appeals to the prurient interest makes it content-based. Thus, to survive a First Amendment challenge it must survive the strict scrutiny requirements of serving a compelling government interest through narrow tailoring. The government has a compelling interest in curtailing the sexual exploitation of children is compelling, but this statute merely curtails a purported harm arising from depicting children in a sexually suggestive manner. The Supreme Court requires a direct causal link between the material and the harm sought to be prevented and the State has shown none here. Nor is the statute narrowly tailored. Defendant’s examples of outlawing young social media influencers or Netflix’s depiction of young children performing gymnastics are well taken. The statute does not distinguish between teenagers taking selfies and those taking pictures with more sinister motives. It simply prohibits substantially more free speech than is necessary, is not narrowly tailored, and is overly broad.

Comment. I suspect the Court of Criminal Appeals will take this up, but the analysis is sound.

King v. State, No. 01-19-00793-CR (Tex. App.—Houston [1st Dist.], Oct. 28, 2021)

Issue. (1) In a motion to suppress, should a trial court disregard portions of a warrant affidavit as materially misleading for failing to portray arduous process of identifying the defendant? (2) Is unlawful restraint a lesser-included offense of attempted kidnapping (in this case)? (3) Does a person have an objective and subjective expectation of privacy in his possessions stored in a semi-truck when he is the operator but not the owner of the semi-truck (and when he did not ask the police to gather his possessions and secure them while being arrested)?

Facts. A jury convicted the defendant of injury to a child causing serious bodily injury and aggravated kidnapping. Defendant lured a young girl away from her school route, strangled her, then fled when her school bus arrived. Paramedics initially believed the victim’s injuries were not life-threatening, but nonetheless transported her to the emergency room. At the hospital her injuries proved more critical. Her lungs were full of fluid, and medical staff placed her in the intensive care unit where she was intubated and required life-saving treatment. She ultimately required a heart transplant with accompanying serious complications. The lead detective in the case acquired surveillance videos of the attack. He identified defendant as a suspect by running the registration of the vehicle his wife used to pick him up. The lead detective located the defendant and his wife in Oklahoma and obtained a search warrant for his DNA which matched with DNA taken from the victim. An Oklahoma detective obtained a search warrant to search defendant’s semi-truck owned by his employer. After the search of the semi-truck, and after return had been made, investigators realized they left behind a cell phone. The lead detective asked defendant’s employer to retrieve it and mail it to him, which he did. The phone contained child pornography. Defendant alleged the DNA warrant was obtained through a materially false or misleading affidavit, but the trial court denied his motion to suppress. Defendant also moved to suppress the photographs of child pornography and argued that, although investigators possessed a valid search warrant, it had expired at the time they retrieved the cell phone. The State successfully convinced the trial court that the defendant had no expectation of privacy in his semi-truck because it was owned by his now-former employer and he had abandoned it by failing to request it when he was arrested. The State presented to the jury during the punishment phase the fact that defendant possessed child pornography together with defendant’s extremely violent past relationships.

Holding. (1) No. When determining whether an affidavit sufficiently establishes probable cause to obtain a search warrant a trial court should disregard materially false or misleading statements or omissions. Defendant relies on cases in which detectives indicate they personally observed matters they in fact did not. This is not the case here. Here, detectives left out many of the intricacies of how they identified the defendant as a suspect—but they explain the basics. Defendant’s argument that the affidavit portrayed the identification as easy is unpersuasive. The warrant affidavit establishes probable cause without that information. The warrant affidavit would continue to establish probable cause with that information. There was no error here. (2) No. Whether a lesser-included offense instruction is appropriate requires a two-step analysis: (1) are the elements of the lesser offense established by proof of the same or less than the facts required to prove the charged offense? (2) could a rational juror find that, if the defendant is guilty, he is only guilty of the lesser offense? Unlawful restraint is a lesser-included offense to the completed offenses of kidnapping and aggravated kidnapping. “Kidnapping and aggravated kidnapping require an abduction, which includes the completed actus reus of restraint.” However, the completed offense of attempted kidnapping does not require a completed act of restraint. The acts alleged in the indictment did not entail the defendant moving the victim from one place to another or confining her, nor were they the functional equivalent of restraint. This includes the allegation that the defendant “grabbed” the victim. (3) Yes. The State asserts incorrectly that the defendant’s expectation of privacy attaches to his employer’s semi-truck only while using the vehicle. Defendant was arrested near the semi-truck at a truck stop after he had been driving it and his cell phone was inside at the time of arrest. Defendant had a possessory interest in the semi-truck and by virtue its contents. Defendant had lawful control over the semi-truck at the time of his arrest. Ownership is merely one factor and here defendant’s non-ownership does not outweigh other evidence indicating subjective and objective expectations of privacy. The State’s theory that defendant abandoned the property by not requesting it upon his arrest is also unpersuasive. The record does not reflect affirmative evidence of defendant’s intent to abandon property. Abandonment will not be presumed from a silent record. Moreover, defendant lost possession of the truck and its contents not because the true owner took steps to divest him of it, but because the police arrested and incarcerated him.

Comment. I saw an 89-page opinion and thought to myself “maybe I should just declare this one insignificant.” Then I heard fake Antonio Banderas in my head: “but I must . . .” See “The How Do You Say? Ah, Yes, Show” Saturday Night Live. Created by Lorne Michaels National, NBC (Chris Kattan as Antonio Banderas). Somewhere in a thick stack of pages, this case raises an interesting question: if unlawful restraint is not a lesser-included of attempted kidnapping, is attempted unlawful restraint?

Costilla v. State, No. 01-20-00297-CR (Tex. App.—Houston [1st Dist.], Oct. 19, 2021)

Issue. Does a trial court improperly comment on the weight of the evidence (when ruling on admissibility) when it admits an application and order for testimonial immunity given to a witness who has invoked her Fifth Amendment privilege against self-incrimination?

Facts. Defendant got in a fight with his girlfriend. He called the police because, according to his story, she attacked him. Police decided it happened the other way around. The State prosecuted defendant for continuous family violence assault. Defendant’s girlfriend did not want to testify at trial. She asked if she could plead the fifth. The State applied to the trial court for testimonial immunity from the use of the girlfriend’s testimony “as evidence against her in any criminal proceeding other than a prosecution for perjury, aggravated perjury, or contempt.” The trial court granted the State’s application in a written order. The girlfriend then testified she could not remember anything and later testified that she had lied to the police on the night of the altercation. The trial court admitted the State’s application for immunity along with its own order granting it.

Holding. No. Article 38.05 of the Code of Criminal Procedure prohibits a trial court from commenting on the weight of evidence in ruling on its admissibility. Defendant “argues that the very act of admitting [the application and order for immunity] into evidence was a comment on the evidence.” However, under the plain language of Article 38.05, the trial court cannot violate the statute unless “it engages in discussion or commentary beyond the announcement of its decision.” Here the trial court’s remarks on admissibility were made outside the presence of the jury. Defendant attempts to bootstrap the statements made by the prosecutor in its motion made in the presence of the jury before the jury was excused. Defendant’s position is that the State’s motion and the subsequent ruling and order admitted into evidence “conveyed to the jury that the trial court was guaranteeing that the alleged victim’s testimony would be truthful, affording credibility to the alleged victim and ultimately fortifying the State’s case” is unpersuasive. According to the defendant, the combination of the State’s motion and the trial court’s order admitted into evidence conveyed that this particular witness had something to share with the jury “necessary to the public interest” and should be therefore granted immunity “so that justice may be served.” This argument does not square with Article 38.05. The application and order constitute evidence and Article 38.05 only applies to comments made while admitting evidence “not remarks made within the evidence subject to the ruling.” The trial court did not characterize the girlfriend as the victim nor did the trial court guarantee her truthfulness. It merely concluded in its order that the girlfriend was “a material witness” and concluded that her testimony “may be necessary to the public interest and so that justice may be served.”

Comment. This witness was definitely put on a pedestal by the way the trial court went about this. This is a good lesson in tying appellate arguments to constitutional error. The Court’s laser-focus on the explicit language of Article 38.05 does not do justice to the defendant’s argument. It is true that the application and order were admitted without any commentary in the jury’s presence. But the problem here is due process and probably even the right to confrontation (of the judge and prosecutor). The defendant is correct – the court placed a stamp of imprimatur on this witness’s importance. The court of appeals acknowledges this much when it states “the application and order are evidence.” If they are evidence, then who is the declarant?

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

Vitela v. State, No. 04-19-00737-CR (Tex. App.—San Antonio, Sep. 29, 2021)

Issue. (1) Does the failure to collect a vehicle from the impound lot constitute an abandonment and relinquishment of reasonable expectations of privacy such that the police may conduct a search of the vehicle with impunity? (2) Does the fact that trained crash investigators regularly rely on vehicle black box data make such evidence sufficiently reliable and accurate and therefore admissible under Texas Rule of Evidence 702?

Facts. A jury convicted the defendant of criminally negligent homicide (a lesser included charge of the indicted offense). The jury heard evidence that the defendant sped around a curve, lost control of his vehicle, and crashed into a tree causing his passenger to die. Officers obtained a search warrant to download the vehicle’s “black box” containing data on the vehicle’s speed before the crash. Defendant filed a motion to suppress the black box search as well as challenged the admissibility of the black box data under Texas Rule of Evidence 702 (reliability and accuracy of scientific evidence). The State argued that the defendant abandoned his vehicle by failing to pay the tow fee and collect the wreckage. The State also presented trained accident investigators to defeat defendant’s 702 challenge. The trial court denied both challenges.

Holding. (1) Maybe. Here it did. Defendant made no attempt to collect his vehicle from the impound lot after it was made available to him (upon payment of the towing and storage fees). Defendant’s insurer sent the vehicle to an auto auction – where investigators learned that it had been so abandoned and decided to collect the black box data. (2) No. Notwithstanding the black box indicating it was not for the same make as defendant’s vehicle and notwithstanding numerous other errors, the black box data was sufficiently reliable and accurate to withstand Rule 702 scrutiny. Data used regularly in relevant scientific fields is ordinarily accepted as admissible. The troopers who testified as experts explained that they like to use black box data in their field. Therefore, it is admissible because of this and because they have a lot of training and experience in this field.

Comment. Black box data is reliable because they use it. Why do they use it? Because it’s reliable. See also Mike Judge, director. Idiocracy. 20th Century Fox, 2006 (“But Brawndo has what plants crave! It’s got electrolytes!” “Okay—what are electrolytes? Do you know?” “Yeah. It’s what they use to make Brawndo.” “But why do they use them in Brawndo? What do they do?” “They’re part of what plants crave.” “But why do plants crave them?” “Because plants crave Brawndo, and Brawndo has electrolytes.”).

5th District Dallas

Griswold v. State, No. 05-19-01561-CR (Tex. App.—Dallas, Oct. 26, 2021)

Issue. Is the Texas stalking statute unconstitutionally overbroad and vague on its face (when it alleges as a predicate repeated electronic harassment)?

Facts. The State charged the defendant with stalking by way of repeated electronic harassment: “engaged in [repeated] conduct under section 42.07 and/or conduct that [Griswold] knew or reasonably should have known [the complainant] would regard as threatening bodily injury for [the complainant] and or bodily injury or death, and did cause [the complainant] to be placed in fear of bodily injury or death, to wit: [listing five specific allegations of repeated communications, public declarations on Facebook, public statements, and public threats]. The indictment continued by alleging Griswold’s conduct caused the complainant to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended and would cause a reasonable person [to feel the same].”

Holding. Yes. The court agrees with sister courts who also find the electronic harassment statute unconstitutional. “It suffers from a fatal flaw of vagueness because the disjunctive series of the terms ‘harass, annoy, alarm, abuse, torment, embarrass, or offend’ leaves the electronic communications subsection open to various uncertainties of meaning and the term ‘reasonably likely’ does not create a ‘reasonable person’ standard sufficient to cure the failure of the subsection to specify whose sensitivities were offended.” Citing Ex parte Barton, 586 S.W.3d 573 (Tex. App.—Fort Worth 2019). The court also adopted the rationale of the Fourteenth Court of Appeals in declining to apply the logic of telephone harassment to electronic harassment, distinguishing telephone calls as uniquely invasive but describing electronic communications as encompassing “a far broader array of activities.” Notably, purported victims of electronic harassment are not a captive audience, but instead require “affirmative actions by the user to access the content at issue.” Citing State v. Chen, 615 S.W.3d 376 (Tex. App.—Houston [14th Dist.] 2020]. The electronic harassment statute sweeps too broadly and renders too many uncertainties of meaning. Penal Code 42.072(a) is facially unconstitutional.

Comment. Pending at the Court of Criminal Appeals since March 18, 2020 is Ex parte Barton, No. PD-1123-19. Eventually the court will resolve this issue for all courts in Texas, but until then the score is: unconstitutional in the Second, Fifth, Fourteenth; constitutional in the Third, Fourth, Seventh, Eighth, Ninth, Eleventh, and the Thirteenth.

Delgado v. State, No. 05-19-00821-CR (Tex. App.—Dallas, Oct. 21, 2021)

Issue. (1) Is the statutory instruction frequently used in murder cases which encourages the jury to consider the “relationship existing between the defendant and the deceased” an improper judicial comment on the weight of the evidence? (2) Is a trial court required to properly charge the jury on the law of parties as an alternative theory to capital murder by solicitation? (3) Is the State entitled to challenge a juror for cause on the basis of that juror indicating he would consider defendant’s failure to testify in his deliberation?

Facts. A jury convicted defendant of capital murder for her role in hiring two hitmen to kill her ex-boyfriend’s girlfriend. Shortly after the murder, investigators identified a suspect vehicle in surveillance footage. Defendant’s friend identified the car as belonging to him. He had loaned it to defendant, but not to use for murder. Defendant’s friend testified that defendant later tried to scare him into hiding and potentially changing the paint color of the vehicle. One of the hitmen testified at trial in exchange for a plea deal. The testifying hitman explained that she and the defendant plotted to kill the victim over multiple meetings and described their mutual activities leading up to the murder. The group acquired a handgun and planned to acquire a silencer. Investigators acquired corroborating evidence, including: (1) a video on defendant’s phone recording a conversation about acquiring a silencer, (2) evidence that defendant had loaded her ex-boyfriend’s iPhone account onto another device and tracked his movements, (3) cell phone GPS data putting her in the same location as the hitmen leading up to the murder, (4) an ATM withdrawal receipt for the amount paid to the testifying hitman, (5) surveillance video of defendant and the hitmen picking up the vehicle used in the murder, and (6) defendant’s partial corroboration of being in at least one of the group’s meeting places prior to the murder. At trial defendant’s friends and acquaintances testified about her violent obsession with the victim. After she was interviewed by investigators, Defendant fled to Mexico.

Holding. (1) No. The instruction tracked the language of Texas. Code of Criminal Procedure article 38.36 which alerts the jury that the relationship between the defendant and the deceased is a relevant fact in a trial for murder. “Instructions based on article 38.36 are traditional parts of murder jury charges.” Save for limited circumstances, singling out a particular item of evidence in the jury charge does constitute a comment on the weight of evidence. But here the trial court did not single out a particular item of evidence, but rather instructed the jury to “consider all relevant facts and circumstances.” (2) No. Here the defendant complaints about the omission of the culpable mental state to accompany the law of parties instruction (the State’s alternate theory of conviction). But the jury was properly instructed on the crime of capital murder by solicitation. “[T]he ‘parties’ or ‘solicitation’ aspect of the crime is built into the statute.” There being sufficient evidence to convict for capital murder by solicitation, there is no issue here. (3) Yes. A juror who considers a defendant’s failure to testify as an admission of guilt is disqualified from jury service. “That such a bias might have been in favor of the State does not prevent the State from making a challenge on that basis.”

Comment. The Article 38.36 argument here is interesting. It is true that the statute authorizes the instruction, but the legislature frequently authorizes or even compels things that do not comport with the Constitution. Also interesting is the argument that the State cannot challenge a juror for cause on the basis of a defense issue (here: the consideration of a defendant not testifying). The defendant frames the issue as one of selective waiver of her own rights. The court of appeals frames it as one of disqualification. Article 35 of the Code of Criminal Procedure specifically sets out grounds for disqualification – this scenario is not one of them. The juror was challengeable. But by the plain language of the statute, challengeable only by the defendant. The State may challenge a juror “that has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction.” The State does not rely on the Fifth Amendment privilege against testimony for a conviction.

6th District Texarkana

Biggers v. State, No. 06-20-00129-CR (Tex. App.—Texarkana, Oct. 14, 2021)

Issue. (1) Does an out-of-state judgment and sentence for a four-year sentence in the Oklahoma Department of Corrections sufficiently establish a qualifying prior sentence for enhancement purposes when it omits the specific charge and statute under which the defendant was convicted? (2) Has the State established sufficient proof of manufacturing or delivering by showing possession of a large amount of methamphetamine in rock form in a high drug-trafficking area and nothing to smoke it with?

Facts. A jury convicted the defendant of first-degree manufacture or delivery of methamphetamine (4-200 grams). Officers arrested defendant after a short foot chase during which he threw bags of drugs in an effort to conceal them. The arresting officer testified at trial that he located the drugs and, based on the weight combined with his training and experience, he did not believe it to be a “user amount.” Another officer, also with lots of training and experience, testified that the totality of circumstances determines whether a person is a user or a dealer. This officer testified to how many uses a person could get out of a gram of methamphetamine and that a person in possession of “rocks,” like the defendant, typically breaks the rock down and sells small baggies of methamphetamine. Officers testified they discovered two half-ounce rocks discarded by the defendant and that the arrest took place in a high drug-trafficking area. The crime lab report indicated 11.68 grams as that the weight of one of the two rocks. The lab did not weigh both rocks. The State alleged one prior felony conviction for purposes of enhancement. Defendant pleaded true to the enhancement during the punishment phase of trial. The State introduced a judgment and sentence from Choctaw County, Oklahoma to corroborate defendant’s plea of true to the enhancement.

Holding. (1) Yes. Defendant argues that “it was impossible to identify the conviction as a qualifying conviction under Texas Penal Code § 12.42. The exhibit omitted the language regarding the specific statute of conviction, the type of substance involved, and the weight of drugs involved. However, the judgment identifies defendant’s prior sentence as a four-year sentence in the Oklahoma Department of Corrections and witnesses testified that meant “prison.” While these facts do not necessarily translate to a qualifying Texas enhancement felony, the Code of Criminal Procedure instructs that any out-of-state felony involving potential confinement in a penitentiary is treated as a felony of the third degree. Tex. Penal Code § 12.41. (2) Yes. The following factors are circumstantial proof of manufacturing and delivering: (1) the nature of the location at which the defendant was arrested; (2) the quantity of controlled substance in the defendant’s possession; (3) the manner of packaging; (4) the presence of drug paraphernalia . . . ; (5) the defendant’s possession of large amounts of cash; and (6) the defendant’s status as a drug user.” Here the logical force of these factors established sufficient proof of manufacturing.

Cook v. State, No. 06-20-00001-CR (Tex. App.—Texarkana, Oct. 20, 2021)

Issue. May another witness give his or her opinion as to a complaining witness’s credibility?

Facts. A jury convicted the defendant of Aggravated Sexual Assault. The trial court permitted a police officer to testify about the credibility of the complainant’s allegations. The State asked whether the investigator believed the statements given by the victim during the interview were “sufficient to go forward.” The investigator replied that she felt “a victim, of his age, gave a credible statement.” Defendant objected.

Holding. No. “A direct opinion as to the truthfulness of a witness crosses the line under Rule 702 because it does more than assist the trier of fact to understand the evidence or to determine a fact issue; it decides an issue for the jury.” Yount v. State, 872 S.W.2d 706, 709 (Tex. Crim. App. 1993). Here, “though legally sufficient,” the evidence of guilt was far from overwhelming. The jury heard no other significant evidence of truthfulness or corroboration. Given these factors, together with the fact that it was a police officer vouching for the complainant’s credibility, Defendant was harmed by the trial court’s error.

Comment. Rule 608 permits opinion of truthfulness if it is first attacked. The Yount case specifically stated it was not addressing the impact of Rule 608.

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. Astorga, No. 08-20-00180-CR (Tex. App.—El Paso, Oct. 27, 2021)

Issue. When tribal police officers arrest a non-Indian for a non-arrestable tribal code violation and fail to contact state law enforcement for five hours, have they exceeded their inherent authority to detain non-Indians for suspected criminal offenses?

Facts. The State prosecuted the defendant for possession of methamphetamine discovered by officers of the Ysleta del Sur Pueblo Tribal Police Department. Defendant is not an Indian but was detained by tribal police when he violated a tribal traffic law. Tribal officers discovered open containers and a clear glass pipe in the vehicle (civil infractions under the Tribal Code). Tribal officers handcuffed the defendant and conducted a search incident to arrest but located nothing. Tribal officers then transported defendant back to tribal police headquarters. At the headquarters defendant’s female passenger informed tribal officers that defendant was concealing methamphetamine in his “groin” or “genital area.” Tribal officers ordered him to strip and then located a baggie of methamphetamine. Then tribal officers turned the matter over to the El Paso Police Department. Defendant moved to suppress his unlawful arrest. The trial court granted defendant’s motion and indicated that the open container and paraphernalia offenses were civil infractions which provided the tribal officers had no authority to arrest.

Holding. Yes. “Although Indian tribes are considered distinct, independent political communities exercising sovereign authority, due to their incorporation into the United States, their sovereignty is of a unique and limited character.” Indian tribes lack “inherent authority to exercise criminal jurisdiction over non-Indians, even for offenses committed on tribal land.” The Ysleta Pueblo tribe agreed via treaty to allow the State of Texas to “exercise criminal jurisdiction over state law violations committed on the Pueblo . . . .” The tribe retains jurisdiction to impose civil sanctions “on both Indians and non-Indians who violate the Tribe’s Traffic and Peace Codes.” Those codes do not address a tribal officer’s authority to detain or arrest for infractions, but tribal officer’s have an inherent right to detain and search non-Indian’s they suspect of committing a criminal offense on tribal land. The Supreme Court has held that Indian law enforcement have inherent authority to detain a non-Indian for a criminal offense for a period of time long enough for the appropriate authority to arrive on scene or to transport the offender to the proper authorities. The authority to search such person is “ancillary to this authority” but only to the extent necessary for officer safety. U.S. v. Cooley, 141 S.Ct. 1638 (2021). Here officers observed a paraphernalia offense which is a discretionary arrestable offense under Texas law. Officers could have contacted El Paso Police Department to determine if they wished to take custody of the defendant, but they did not. Here, tribal police took matters into their own hands and did not contact El Paso Police Department until five hours into their detention and arrest—and only after they conducted a strip search. Even if tribal officers were detaining the defendant at the request of El Paso Police Department, they could not justify the length of time it took them to confirm or dispel their suspicions of criminal activity.

Comment. This is fascinating. Also, it appears I missed the Cooley case from June of this year. Sorry.

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

Delagarza v. State, No. 13-19-00617-CR (Tex. App.—Corpus Christi-Edinburg, Oct. 14, 2021)

Issue. Does a parent have standing to challenge the constitutionality of a warrantless non-consensual search of his minor child? 

Facts. Defendant hid evidence of his drug dealing in the pants and underwear of his two daughters during a traffic stop. A jury convicted him of third-degree tampering with evidence and the trial court sentenced him to 99 years imprisonment based on two prior felony enhancements. Defendant challenged the search of his minor daughters. At a hearing on the motion to suppress, officers testified that one of defendant’s daughters was cooperative and admitted to having contraband in her underwear (“cooperative daughter”). Later at trial cooperative daughter testified that she chose to hide the marijuana inside her vagina when the defendant asked her to conceal it. The other daughter was uncooperative (“uncooperative daughter”) and officers had to order her to remove her jacket in order to discover the marijuana defendant had hid in her waistband. Uncooperative daughter also testified that her father did not hand her or uncooperative daughter anything. Instead, uncooperative daughter testified that the drugs belonged to cooperative daughter. During punishment the State introduced evidence of fourteen prior criminal offenses all involving female complainants. Defendant’s ex-girlfriend also testified about defendant’s abuse and shared pictures of severe injuries inflicted by the defendant.

Holding. No. This is a case of first impression. “We acknowledge that a parent, in many contexts, has a right to make decisions of substantial legal significance concerning their child.” But defendant’s attempt to derive his own personal right to privacy from that belonging to his minor child overly broadens the recognized fundamental parental rights “concerning the care, custody, and control over their child.”

Comment. The court disposed of defendant’s Eighth Amendment challenge to his 99-year sentence as not properly preserved.

14th District Houston

State v. Hatter, No. 14-20-00496-CR (Tex. App.—Houston [14th Dist.], Sep. 30, 2021)

Issue. Is a prosecutor’s promise to dismiss a case and not re-file subject to specific performance enforced by the trial court when the prosecutor re-files the case at the insistence of his supervisor?

Facts. The State charged the defendant with felony assault on a public servant arising out of a driving while intoxicated offense for which she was also charged. During the pendency of these charges, defendant picked up a second DWI charge. The State dismissed the felony charge “based on the understanding that [defendant] would plead guilty to the misdemeanor charges. But the misdemeanor charges also were dismissed shortly thereafter. The State re-filed the felony charge approximately two months later.” Counsel for defendant claimed that he and the prosecutor had a gentleman’s agreement that no refiling would occur and the understanding was that the dismissals became unconditional when defendant’s misdemeanor defense attorney became uncooperative (seeking dismissal on faulty blood vials). Defendant filed a “Motion for Specific Performance” requesting the trial court to enforce the dismissal agreement. At the hearing the prosecutor corroborated defense counsel’s claim, indicated it was not his decision to re-file, and explained that the complainant-police officer insisted on the refiling. The trial court granted the motion and dismissed the felony charge. The State appealed.

Holding. Yes. When the trial court granted the motion to dismiss with the underlying handshake agreement that defendant would be immune from future prosecution, the trial court granted its approval of not only the dismissal but the underlying handshake agreement. Even if the defendant failed to perform some part of the agreement, the trial court was not required to be aware of the defendant’s promise of performance at the time it sanctioned the dismissal agreement. The dismissal and the immunity agreement became binding when the trial court granted the State’s motion to dismiss notwithstanding any future expectations of the parties.

Dissent. There is no immunity agreement. The cases cited by the defendant pertaining to specific performance involve plea agreements. There is no plea agreement. There is no agreement. “What the majority characterizes as an ‘agreement’ is at most a unilateral promise by the prosecutor.” There was no consideration exchanged for the unilateral promise. The trial court did not sanction an immunity agreement. There is no evidence the court was aware of the prosecution’s unilateral promise at the time it initially dismissed the prosecution.

November 2021 SDR – Voice for the Defense Vol. 50, No. 9

Voice for the Defense Volume 50, No. 9 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

What do you get when you combine, in a single lawyer, a level of intelligence that is sought after for employment simultaneously by the district attorney and the district judges in a single county, and a level of intelligence not sufficient to decline one or the other spanning a fifteen-year period? Answer: one reversal this month and probably hundreds if not thousands to come in Midland County. We’ll also delve into evidentiary search warrants versus instrumentality and contraband search warrants for the first time since the bar exam. As Ray Arnold would say “hold onto your butts” Steven Spielberg. Jurassic Park. Universal Pictures, 1990. It’s about to get significantly decision-like.

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.

Kyle Therrian

United States Supreme Court

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

Fifth Circuit

United States v. Moparty, 11 F.4th 280 (5th Cir. 2021)

Issue. When the Government elicits evidence of a co-defendant’s guilty plea for the apparent purpose of showing their prosecution is righteous, does the trial court abuse its discretion in denying a motion for mistrial?

Facts. Defendant and co-conspirators were convicted for various health care fraud schemes. One co-defendant pleaded guilty and was convicted before trial. The government presented this as evidence of their righteous prosecution. They introduced it as a fact in opening, and twice elicited it through witness testimony.

Holding. No. Not here. “Defendants are entitled to have questions of guilt based on the evidence against them, not on whether a government witness or a codefendant has plead guilty to the same charge.” Error in admitting a co-defendant’s guilty plea is analyzed using a four-factor test: “(1) the presence or absence of a limiting instruction; (2) whether there was a proper evidentiary purpose for introduction of the guilty plea; (3) whether the plea was improperly emphasized or used as substantive evidence of guilty; and (4) whether the introduction of the plea was invited by defense counsel.” Here, the court gave the jury a limiting instruction in both instances where the State introduced evidence of the co-defendant’s guilty plea. While there was no proper evidentiary purpose for this evidence (did not thwart a defense nor head off impeachment of the witness), the introduction of guilty plea evidence did not overcome the presumption that the limiting instruction was effective. Moreover, the strength of admissible evidence “overwhelmingly eclipsed” any harm that came from the introduction of the co-defendant’s guilty plea. The district court did not abuse its discretion in denying defendant’s motion for mistrial.

Comment. The opening paragraph of this opinion reads: “Some inexcusable trial errors were committed or permitted by the government, which counsel on appeal explained as the reason for an incredibly long (132-page) appellate brief: the government wanted to make abundantly clear that the errors were “harmless.” Nonetheless, we AFFIRM.” Since I’m the summary guy, let me summarize: “GOV’T: what we did was inexcusable, but here’s an excuse,” “COURT: we excuse you.”

United States v. Martinez, 12 F.4th 473 (5th Cir. 2021)

Issue. Federal Sentencing Guideline sentences rely heavily on drug quantities, and a trial court can extrapolate drug quantities from any reliable information. Does a trial court commit error in a multi-drug prosecution and multi-drug sentencing case by arbitrarily attributing 100 percent of seized cash as proceeds from the sale of a drug which results in the highest guideline sentencing range?

Facts. Defendant pleaded guilty to a drug conspiracy charge after law enforcement raided his tobacco shop and found marijuana, cocaine, THC, and other paraphernalia. Law enforcement also found $12,424 in cash. Because the defendant pleaded guilty to a conspiracy involving different types of drugs, the federal sentencing guidelines provide for an all-drugs-combined “converted drug weight” to establish a single base guideline level or starting point for calculating a guideline sentence. In addition to this, the proceeds of drugs can be converted into additional drug quantity based on the drug sales from which they are derived. Here the initial presentence investigation report treated the $12,424 in cash as proceeds from marijuana sales. But upon realization that the defendant could be saddled with a higher converted drug weight and larger sentence if the court treated the full $12,424 as proceeds from cocaine, the probation officer amended the presentence investigation report to treat the full amount as cocaine proceeds. The resulting converted drug weight was three kilograms above the threshold for a base level offense of 24.

Holding. Yes. “A sentencing court can extrapolate the quantity of drugs from any information that has sufficient indicia of reliability to support its probable accuracy.” But a trial court commits clear error when it bases its extrapolation on a presentence investigation report that relies upon speculative inferences and conclusory statements. Here it was clear error to treat all the seized cash as cocaine proceeds. The cash could have been proceeds from tobacco sales, marijuana sales, THC sales, or Xanax sales.

Texas Court of Criminal Appeals

State v. Lujan, No. PD-0244-19 (Tex. Crim. App. 2021)

Issue. Defendant gave incriminating statements during a secretly recorded car ride to locate a victim’s body. Did the previously provided statutory Miranda rights (Texas Code of Criminal Procedure Article 38.22), waived by the defendant while in an interrogation room, carry forward to a subsequent interrogation disguised as a car ride?

Facts. The defendant gave statements during three separate custodial interrogations. During the first and third interrogations defendant was warned as required by Texas Code of Criminal Procedure Article 38.22 (statutory Miranda rights), but she received no such warnings during her second interrogation. In her first interview, defendant told officers she was aware of the details of a murder and the people involved. She admitted she was forced to help tape the bags containing the victim’s remains, joined a caravan of vehicles to a location to dispose of the body, but bailed on the caravan before reaching the final destination. Defendant offered to take detectives to the last known location of the caravan. While in the police vehicle looking for the victim’s body, the second, secretly recorded, warning-less and waiver-less interrogation occurred. During this interrogation defendant “gave a free-wheeling narrative about Trejo’s death, the kidnappings of two other people, her drug use, drug smuggling, and prostitution, the ‘tweaker’ lifestyle, and her underworld compatriots.” After returning, detectives eventually placed defendant back into an interrogation room, provided Article 38.22 warnings, and questioned defendant further about the things she discussed while in the car.

Holding. Article 38.22 prohibits the State’s use of custodial interrogation unless, among other things, interrogators: (1) record a warning the suspect of his rights surrounding an interrogation, and (2) a knowing, intelligent, and voluntary waiver. “The required order is to first warn, waive second, and confess third, and these things must appear in the recording itself. . . . Only ‘warned and waived’ custodial statements are admissible in evidence.” A defendant’s waiver must be a free and deliberate choice made with full awareness of the nature and right abandoned and the consequences of abandonment. “The waiver’s validity depends on, among other things, a showing that the defendant was aware of the State’s intention to use his statements to secure a conviction. . . . A waiver secured by deception is not voluntary.” Here, there was no valid waiver with respect to the in-car statements. The stark contrast between the formalities and warnings preceding the interrogation room statements and the “unceremonious and indecorous” nature of the surreptitiously recorded in-car statements worked to mislead the defendant and weighs against a valid waiver. The fact that detectives insisted on the car ride when defendant expressed a preference to merely tell them where the body was located weighs against a valid waiver. The fact that one detective remarked that the interrogation could continue when they return from locating the body further worked to mislead the defendant and weighs against a valid waiver. The detectives conduct in disguising an interrogation as a car ride to locate a body also weighs against a valid waiver. The State argues that Bible v. State, 162 S.W.3d 234 (Tex. Crim. App. 2005) permits the use of unwarned unwaived statements when they are made as a continuation of a previous warned and waived interrogation. But Bible lacks the elements of deception that exist in this case. Bible signed numerous waiver forms, his unwaived and unwarned statements were given in close proximity to and under similar circumstances as his warned and waived statements. Here, the totality of the circumstances show deception to obtain an unwarned and unwaived confession. 

Concurrence (Yeary, J.) agrees with the majority opinion but would not agree with the majority’s suggestion that Article 38.22 warnings can continue to a future unwarned unwaived interrogation. Article 38.22 requires a separate warning for each recording made.

Concurrence (Newell, J.) “It is unclear whether Bible focuses on the voluntariness of the statement, the issue of whether the second statement was a continuation of the first, or the effectiveness of a reference to warnings in an earlier statement upon a defendant’s decision to make a later statement.” Bible’s usefulness should be limited to inquiries about whether “whether statutory warnings given in a second statement are a fully effective equivalent of statutory warnings given in the first.”

Dissent (Keller, J.) Either the car interrogation was a separate and distinct interrogation for which no warnings were provided and the analysis ends there, or the car interrogation was a continuation of the interrogation room interrogation and this Court should remand for analysis under Bible. Balanced under the factors of Bible, the car interrogation was a continuation.

Comment. There are jokes here about distinguishing [the] Bible. “The instant case is not consubstantial with Bible . . . ?” I don’t know. I’ll keep workshopping it.

Ex parte Couch, No. PD-0349-21 (Tex. Crim. App. 2021)

Issue. The Penal Code’s prohibition on money laundering might include conduct that constitutes an unconstitutional “thought crime” by penalizing the intent to finance or invest funds the defendant believes are intended to further the commission of criminal activity. Is a facial challenge to the validity of the money laundering statute cognizable on a writ of habeas corpus when the State pleaded alternatively that the defendant: (1) intended to finance or invest, and (2) actually financed or invested?

Holding. No. Even if the court struck the complained-of portion of the statute, the State has charged the defendant alternatively with an unchallenged portion of the statute. A pretrial writ is not cognizable if it does not grant the defendant relief from the prosecution. It appears the prosecution would proceed notwithstanding a ruling for the defendant on appeal, thus the court of appeals should address this issue as a matter of congizability.

Villafranco v. State, No. PD-0488-20 (Tex. Crim. App. 2021)

Issue. Rule 412 (Rape Shield Rule) requires an in-camera hearing to determine the admissibility of past sexual behavior of an alleged victim. Both the defendant and the State are entitled to be present and ask questions. Is it reversible error for the trial court to exclude the defendant and the State?

Facts. “At trial, Appellant sought to ask the victim about a previous incident of sexual abuse by someone else to rebut medical evidence offered by the State [the suggestion that vaginal scarring was consistent with the accusation that the defendant penetrated her]. The trial court questioned the victim outside the presence of the parties [without objection] and ruled the evidence of prior sexual abuse inadmissible. The State and defense now agree that the trial court failed to follow the proper procedure for a hearing under Rule of Evidence 412, also known as the “rape shield” rule, and erred in excluding the State, defense counsel, and Appellant from the hearing. The court of appeals affirmed the trial court, concluding that Appellant did not show harm [and rejecting defendant’s contention that the error was structural harm].”

Holding. Sort of. Under Rule 412 (Rape Shield Rule) specific instances of past sexual behavior are admissible to rebut or explain medical evidence presented by the State. The trial court must hold an in-camera hearing on the record to determine whether such evidence is admissible. Both the State and the Defense are entitled to question the witness during this hearing. When the trial court fails to follow this procedure, the proper remedy on appeal is to abate the appeal and remand the case to conduct a retrospective hearing where the defendant has an opportunity to show admissibility and thus harm in the exclusion of testimony. Here, the trial court’s error prevented defendant from adequately developing a necessary record. The exclusion of defense counsel from the in-camera hearing under Rule 412 was a denial of counsel. A denial of counsel is subject to review on appeal despite the lack of a trial court objection if it pertains to a critical stage of the proceedings. “We concluded that a Rule 412 adversarial hearing is a critical stage of trial, and Appellant’s right to counsel was not forfeited by inaction alone.” The ruling of the court of appeals to the contrary is reversed with instructions to abate the proceedings for a proper 412 hearing whereby the defendant can properly develop whether the trial court’s error was harmful.

Dissent (Keller, P.J.) defendant was not actually denied counsel. Counsel was allowed to ask some questions before the court took complainant back into chambers for in camera examination. “Consequently, this was not a complete denial of counsel at the hearing.”

Macedo v. State, No. PD-1053-20 (Tex. Crim. App. 2021)

Issue. The State presented evidence that the defendant regularly beat his son and his wife, that he threatened to kill them, and that he had a prior conviction for domestic violence. Under these circumstances, was the trial court’s erroneous admission of the offense report which accompanied the prior conviction harmful when the prosecutor highlighted it in closing and the jury requested to review it in deliberations?

Facts. Defendant shot and killed his wife. During the guilt stage of trial family members testified about defendant’s mistreatment of the victim, their constant fighting, and defendant’s previous threat to shoot her in the head. At the punishment stage family members testified again. The recounted incidents where the defendant was mean to the victim and family members for no particular reason. Defendant’s son testified about incidents of physical abuse which included the use of a horse whip. He also recounted an incident where the defendant threatened to crash the car and kill the entire family. In addition to live witness testimony, the State introduced a prior judgment of conviction for domestic violence and, over defendant’s hearsay objection, accompanied it with an offense report describing defendant’s conduct as kicking and biting his wife in the jaw and “right eye area.” In arguing the totality of aggravating punishment evidence, the prosecutor highlighted the facts contained in the offense report and invited the jury to review the offense report during deliberations. The jury accepted the prosecutor’s invitation and requested the report.

Holding. No. “In light of all of the punishment evidence, the evidence that Appellant bit the victim one time was relatively insignificant.” He regularly beat his son with a horse whip. He regularly beat his wife. He threatened to kill his family. He threatened to kill his wife multiple times, once with a gun. He committed domestic violence. He gave false stories about the shooting to the police. “[E]ven if the jury had not learned about the biting and kicking from the police report, it would have learned from the prior judgment that Appellant was convicted of a prior domestic violence incident against his wife. Without the details, the jury would have been left to imagine what happened during that offense, and given the horse-whip testimony and the prior threat with the gun, the jury could have imagined the extraneous offense to be even worse than it was.”

Comment. I agree with the final sentiment of this opinion – I can’t imagine the jury would have imagined facts better than they were depicted in the police report if given the opportunity to consider only the judgment of prior conviction.

Rodriguez v. State, No. PD-1130-19 (Tex. Crim. App. 2021)

Issue. Self-defense is a confession-and-avoidance defense requiring the defendant to admit an offense and assert his defense. Is a defendant entitled to a self-defense instruction when he admits the actus reus but equivocates on the mens rea?

Facts. Defendant was convicted of murder. The incident involved a brawl in the parking lot after a Dallas Cowboys football game. Defendant pointed a gun at the victim who was, depending on who you believe, either pummeling his brother or trying to break up a fight. Defendant testified that he retrieved the gun to scare the attackers away, he didn’t intend to shoot the victim, and that the gun went off accidentally when someone grabbed his arm. The trial court denied the defendant’s requests for instructions on necessity, self-defense, and defense of third persons. The court of appeals found that the defendant did not satisfy the doctrine of confession-and-avoidance (admit the crime and assert the defense) and affirmed.

Holding. Probably. “Confession and avoidance is a judicially imposed requirement that requires defendants who assert a justification defense to admit, or at a minimum not deny, the charged conduct. . . . Logically, one cannot both justify and deny conduct.” This Court has previously found confession and avoidance sufficiently satisfied when the defendant admits an actus reus but still equivocates on the culpable mental state. “[A] defendant’s testimony explicitly denying a culpable mental state or asserting accident does not automatically foreclose a justification defense if his testimony may otherwise imply a culpable mental state.” “Refusing the defensive instructions in [such cases] would violate a court’s duty to look at the evidence in the light most favorable to the requested instruction. The refusal would depend on accepting as true the defendant’s express denial of intent and ignoring his admissions about having hurt or killed the victim in response to the victim’s aggression. Such admissions would imply the requisite intent even if the defendant otherwise denies it.” Here, defendant testified that he had his finger on the trigger and gripped the gun tightly when he pointed it at the victim at close range. This sufficiently demonstrates an intent to kill.

Comment. Even though the Court of Criminal Appeals has steadily chipped away at confession and avoidance, some courts of appeal still use it as one of their top favorite ways to get rid of cases involving self-defense.

Simms v. State, No. PD-1248-19 (Tex. Crim. App. 2021)

Issue. Is some evidence showing that a recklessly speeding defendant actually passed out the moment before veering into oncoming traffic and killing an oncoming motorist sufficient to trigger a lesser-included-offense instruction on deadly conduct in an aggravated assault prosecution?

Facts. A jury convicted defendant of aggravated assault for recklessly causing a fatal head-on car accident while speeding. Defendant drifted into oncoming traffic inside the Washburn Tunnel in Houston while going between 58 and 62 miles per hour. Defendant admitted he was speeding in the tunnel but testified that he dozed off or passed out while driving prior to the collision. Defendant requested a lesser-included-offense instruction on deadly conduct. He argued that some evidence showed the collision was the result of his involuntary non-reckless act of losing consciousness and “if the jury believed his testimony that he passed out or dozed off prior to the accident, it could have rationally concluded that he was reckless only with respect to his speeding, but not with respect to actually causing the head-on collision.” The trial court denied defendant’s request.

Holding. Yes. Entitlement to a lesser-included-offense instruction requires a two-part test: (1) determine whether the proof necessary to establish the charged offense includes the lesser offense, and (2) determine whether there is some evidence in the record that would permit the jury to rationally find that, if the defendant is guilty, he is only guilty of the lesser offense. Anything more than a scintilla of evidence will do. Here there is no dispute that deadly conduct is a lesser-included-offense of aggravated assault. In a reckless aggravated assault prosecution, the State must show that the defendant’s reckless act actually caused the end result. “In contrast, a person commits deadly conduct if he recklessly engages in conduct that places another in imminent danger of serious bodily injury.” Aggravated assault is a result-oriented offense, meaning the defendant must be shown to have been reckless with respect to the result of serious bodily injury. Deadly conduct is not a result-oriented offense, meaning the defendant must only be shown to have been reckless about his actions which placed another in imminent danger of serious bodily injury, but not with respect to any particular result. If the jury believed the defendant’s speeding-then-dozing-off story, then defendant was reckless with regard to his speeding, but not reckless with respect to actually causing the victim’s serious bodily injury “because the conduct leading to that result was committed involuntarily and unconsciously.” The speeding, alone, could not have caused the collision and the defendant’s loss of consciousness, if believed, would constitute an intervening cause.

Dissent (Yeary, J.) The speed caused the injury and defendant recklessly sped before losing consciousness.

Ex parte Harris, No. WR-78,077-02 (Tex. Crim. App. 2021)

Facts. Evidence at trial showed that when officers approached a drug house, a man took off running and got away. A witness in the home described the man who got away and provided the nickname “Man.” Based on witness statements an officer was able to identify the man known as “Man” as the defendant. Two witnesses at trial testified that defendant was not the man known as “Man” and that the defendant wasn’t present at the home when officers arrived. Another witness testified that he and appellant were together all day at his home during the drug bust. Some evidence at the scene did connect defendant to the offense, including a pit bull (defendant was known to own a pit bull) and a Cadillac (defendant’s sister owned a Cadillac). Defendant presented substantial evidence in a habeas hearing that the person known as “Man” is Orlando Noble who bears a strong resemblance to the defendant. Harris County District Attorney’s Office Conviction Integrity Unit interviewed Noble. Noble denied being at the house, but admitted his nickname is “Man.” The trial prosecutor testified at the habeas proceeding that defense counsel had explained to him that Orlando Noble was the person they were seeking. The trial prosecutor showed a picture of Noble to the officer who chased him and that officer could not identify him. At trial the chasing officer testified with 100% certainty but based on the recent developments testified at the habeas hearing that me might have gotten it wrong. At the time of trial the Houston Police Department Gang Tracker database failed to show any similarities between Noble and defendant. Now, 10 years later it shows striking similarities in the appearance between Applicant and Noble.

Holding. Based on evidence presented, defendant has established actual innocence.

Concurrence (Yeary, J.). This isn’t actual innocence – there remains some suggestion that the defendant is still the person known as “Man.” However, the disparities in the Houston Police Department Gang Tracker database between the time of trial and what it shows presently constitutes new evidence sufficient to grant habeas relief.

Comment. Not the first time the man got the wrong man, man.

Ex parte Cook, No. WR-91,503-01 (Tex. Crim. App. 2021)

Issue. When a defendant is driving while intoxicated with a child passenger, can the State convict the defendant of two offenses when there are two child passengers?

Holding. No. The unit of prosecution in a DWI with Child is the act of driving. The offense is both a nature of conduct offense (driving while intoxicated) and circumstances surrounding conduct offense (with a child passenger). “A circumstance element can prescribe the gravamen of the offense if it makes otherwise innocent conduct criminal.” Here it doesn’t.

Comment. Toughness should at least be commensurate with knowledge of the law. Here one trait outpaced the other. 

Biggers v. State, No. PD-0309-20 (Tex. Crim. App. 2021)

Issue. The statutory scheme for codeine possession requires proof of more elements (particularized chemical ratios) as its associated Penalty Groups decline in severity. The highest penalty group for codeine possession is possession of pure codeine and requires no proof of chemical ratios. When the State fails to prove chemical ratios fitting the penalty group they alleged, are they entitled to a conviction on the highest penalty group? Are they nonetheless entitled to some form of a conviction?

Facts. The State charged defendant with possession of codeine as described in Penalty Group 4 (with a particular ratio of codeine and medicinal nonnarcotic substance). A jury convicted defendant of possession of codeine, a Penalty Group 4 substance. However, at trial the State’s chemist did not thoroughly discuss chemical ratios (here codeine and promethazine). The state did not perform quantification testing on the substance. The chemist did not testify that the substance mixed with codeine (promethazine) had “valuable medicinal qualities” either alone or when mixed with codeine as required by the Statute. The Court of Appeals reversed and rendered a judgment of acquittal on the basis of no evidence establishing the particular ratio of codeine and medicinal nonnarcotic substance (promethazine).

Holding. No and No. “The Texas Health & Safety Code establishes different tiers of punishment for codeine possession:

    • Penalty Group 1: Codeine not listed in Penalty Group 3 or 4.
    • Penalty Group 3: A mixture of not more than 1.8 grams of codeine . . . per 100 milliliters or not more than 90 milligrams per dosage unit, with one or more active, nonncarcotic ingredients in recognized therapeutic amounts.
    • Penalty Group 4: a mixture that includes one or more nonnarcotic active medicinal ingredients in sufficient proportion to confer on the . . . mixture . . . valuable medicinal qualities other than those possessed by the narcotic drug alone and not more than 200 milligrams of codeine per 100 milliliters or per 100 grams.”

Here, “[t]here is no question that promethazine is present in the mixture.” The defendant admitted the substance was “lean,” the chemist testified that it smelled like cough syrup and that the substance contained “an unspecified amount of codeine and promethazine.” What the chemist failed to do was testify that the combination of promethazine and codeine created a compound with medicinal qualities other than those produced by codeine alone. With this failure, the jury was prohibited from convicting the defendant as charged—under Penalty Group 4. This failure cannot result in Codeine possession under Penalty Group 1. Codeine possession under Penalty Group 1 is the possession of codeine that does not fall in Penalty Group 3 or 4. “To put it simply: The State must negate the possibility that a mixture was a Penalty Group 3 or 4 substance. Because we lack proof that the substance in this case is not a Penalty Group 4 Substance, we cannot say it is then a Penalty Group 1 substance.”

Dissent (Keller, J.). Would affirm the conviction as a penalty group 4 conviction. Proportions of substances under this statutory scheme are mitigating factors. “Of course, the State has to prove that the substance lacks the mitigating characteristics of penalty group 4 codeine in order to obtain a conviction for penalty group 1 codeine. As the Court explains, the State has not done this. So, the State cannot obtain a conviction for penalty group 1 codeine.”

Dissent (Slaughter, J.) Would affirm the conviction as a penalty group 4 conviction. “We have never required a chemist to explicitly recite the relevant statutory language or use magic words to support the finding that the ‘valuable medicinal quality’ element was satisfied.”

Comment. Albeit correct in the outcome, the opinion somewhat mischaracterizes the State’s position. I read the entirety of the State Prosecuting Attorney’s brief because I was bothered by what their argument appeared to be on the face of the opinion: “we are entitled to convict a person of a greater crime we know he didn’t commit because we failed to prove the lesser crime we know he did.” But that’s not quite what they’re saying. The State’s position is that “valuable medicinal qualities” is simply a fact the State must disprove to obtain a PG-1 conviction and thus “[d]espite its placement in PG-4, it should only affect PG-1.” In other words, the State’s success in proving codeine but failure to prove the statutory ratios should result in a conviction of the lowest penalty group by default. Regardless of how the one reads the State’s argument, it is nice to see the CCA aim a brushback pitch at the State and their contention that the defendant’s argument was the absurd one. “When the State brings a defendant to trial for possession of a specific penalty group (where that penalty group requires a specific quantity and proportion analysis), fails to ensure that the proper testing is conducted, and fails to provide testimony to the jury as to the specific quantity and proportion analysis as required by statute, and then turns to this Court to invent a creative way to uphold this conviction, perhaps this is a scenario that borders on absurdity.”

Sanchez v. State, No. PD-0593-20 (Tex. Crim. App. 2021)

Issue. When a defendant executes a jury trial waiver in anticipation of an agreed plea but ultimately rejects the State’s plea agreement, does the trial court abuse its discretion to enforce the jury trial waiver and force the defendant to a trial before the court?

Facts. Defendant executed a jury trial in anticipation of an agreed plea. Procedurally, he had reset his case on a few occasions, some having to do with his request to have a Spanish speaking attorney. Prior to reaching an agreement, defendant had set his case for jury trial. On a date preceding his trial setting, defendant appeared in court for purposes of accepting a plea agreement. He expressed hesitation and effectively communicated to the trial court that he did not wish to withdraw his jury trial waiver. The trial court denied the defendant’s request and set the case for a trial before the court.

Holding. Yes. “[A] defendant who executes a jury waiver in anticipation of a negotiated guilty plea, and then balks at executing the plea and immediately seeks the reinstatement of his right to a jury trial, should be [entitled to have his wish respected].” Even if this nuance were not dispositive, the trial court abused its discretion under the Hobbs v. State, 289 S.W.3d 193 (Tex. Crim. App. 2009) analysis of a defendant’s right to withdraw a jury trial waiver: (1) orderly administration of business of the trial court, (2) unnecessary delay or inconvenience to a witness, (3) prejudice to the State. The State articulated witness reticence, but reticence was not attributable to the defendant’s waiver of a jury trial. If anything, it was attributable to the fear of testifying—something required from the witness in either instance. The delay and administration of court business would have similarly been insignificant had the trial court permitted defendant to continue to jury trial which the trial court had already docketed for two weeks after the date the defendant was supposed to enter his plea of guilty. The matter was only reset by virtue of the State amending the indictment and triggering the defendant’s right to 10 days of preparation.

Comment. The opinion highlights a colloquy between the trial court and the Spanish speaking defense counsel where the trial court interrogates counsel about the details of the advice provided by counsel pertaining to the defendant’s waiver of a jury trial. Counsel gave a detailed account of his communications with the defendant. I’m not entirely sure the trial court is entitled to this information from counsel.

Ex parte Young, No. WR-65, 137-05 (Tex. Crim. App. 2021)(not designated for publication)

Issue. [Although the answer is obvious] can a prosecutor work for the district judges as a clerk and legal advisor in cases where he is directly and indirectly involved or even simply employed as a prosecutor?

Facts. Ralph Petty, the chief appellate and writ counsel for the Midland County District Attorney’s Office moonlighted as a clerk and legal advisor to the district judges in cases where his office represented the State of Texas. His employment with the district judges was described as follows: “When a habeas application was filed, the judge of the convicting court assigned the writ to Petty. He then reviewed the file, performed any necessary research, and submitted a recommendation and a proposed order with findings of facts and conclusions of law to the assigning judge.” This went on for fifteen years. The current elected district attorney, Laura Nodolf, initiated an investigation resulting in the DA’s office sending “letters to each of the defendants for whom Petty had billed the district court judges for work on postconviction writs—some 300 plus defendants—to inform them of the ‘ethical situation.’” In the instant case—a capital murder prosecution—two separate prosecutors represented the State, but “Petty was actively part of the prosecution team. Petty was basically the legal advisor to the team that was prosecuting the case and probably drafted just about every single motion in that case that the prosecution filed.” During the pendency of defendant’s prosecution Petty was paid $16,700 by the district judges. Petty represented the State during defendant’s first subsequent writ proceeding that was denied by the trial judge paying Petty. During the pendency of the instant writ, Petty resigned from the State Bar of Texas in lieu of disciplinary action and the Supreme Court found the facts established violations of Texas Disciplinary Rules of Professional Conduct, Rule 1.06(b)(2)(conflict of interest by virtue of other employment or personal interests). He also evaded testimony by claiming Fifth Amendment privilege.

Holding. No. “Applicant Clinton Young’s structural due process rights were violated by Judge Hyde’s employment of Petty as a judicial clerk while Petty was prosecuting Applicant for capital murder before Judge Hyde.” “The record demonstrates that Petty was serving two masters.” A fair tribunal is a fundamental requirement of due process. Impartiality is a fundamental requirement of the public’s confidence in the judiciary. “Judicial and prosecutorial misconduct—in the form of an undisclosed employment relationship between the trial judge and the prosecutor appearing before him—tainted Applicant’s entire proceeding from the outset. As a result, little confidence can be placed in the fairness of the proceedings or the outcome of Applicant’s trial.”

Comment. The Court’s opinion implies that every case Petty touched for 15 years is tainted. And the judges involved are as culpable as Ralph Petty. Only two Midland County judges involved during the Ralph Petty era are still sitting as judges in Midland County. Kudos to the TCDLA Amicus committee on their extensive involvement in this case. There’s a lot of work to be done now in Midland County.

Roland v. State, No. PD-0035-21 (Tex. Crim. App. 2021)

Issue. Historically, district courts had exclusive original jurisdiction over misdemeanors involving official misconduct. Does that remain true today?

Facts. Defendant was prosecuted for and convicted of official oppression in a Fort Bend county court at law. The Court of Appeals found the conviction void and explained “neither the Code of Criminal Procedure nor the Government Code grants original jurisdiction over misdemeanors involving official misconduct to county courts at law” and that Article 4.05 of the Code of Criminal Procedure grants such jurisdiction to district courts.

Holding. No. The court of appeals’ opinion relies on case law which predated a 1985 amendment to the Texas Constitution. At that time the Texas Constitution contained a specific provision giving district court jurisdiction over official misconduct misdemeanors. The Constitution now reads “District Court jurisdiction consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive appellate or original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body.” Thus, the court must look here to “other law.” Article 4.05 confers original jurisdiction on the district court, but not exclusive jurisdiction. A county court at law has original jurisdiction of “all misdemeanors of which exclusive original jurisdiction is not given to the justice court, and when the fine to be imposed shall exceed five hundred dollars.” Article 26.045 excludes from county court “exclusive original jurisdiction” offenses involving official misconduct, but does not prohibit the exercise of “original jurisdiction.” The legislature has provided that the exercise of any jurisdiction by a county court over cases of official misconduct in the following counties: Atascosa, Bowie, Calhoun, Hopkins, Hunt, Kaufman, Navarro, Rockwall, and Van Zandt.

Comment. Weird.

Do v. State, No. PD-0556-20 (Tex. Crim. App. 2021)

Issue. The State read a DWI charge to the jury and omitted the allegation that the blood alcohol concentration (BAC) was 0.15 or greater; the State similarly omitted the same allegation from the jury charge. Under these circumstances: (1) did the State fail to join the 0.15 allegation for consideration in this trial? (2) may the State maintain a jury verdict of 0.15 on which no jury passed its judgment?

Facts. The State charged the defendant with driving while intoxicated with a blood alcohol concentration (BAC) of 0.15 or greater. At trial the State did not read the 0.15 BAC allegation to the jury and the jury charge omitted instructions to consider this element. During the punishment phase, the State read the 0.15 allegation and defense objected and argued that the fact of blood alcohol concentration was an element of the offense to be determined by the jury. The trial court overruled defendant’s objection and convicted him of driving while intoxicated with a BAC of 0.15 or greater. On appeal, the State conceded that the 0.15 element is an element of the offense which should have been submitted to the jury. The court of appeals analyzed the issue as jury charge error and reversed on a theory that the State was limited to proving intoxication by showing a blood alcohol concentration, and that the jury charge permitted proof by other definitions (mental or physical faculties). In reaching this conclusion the court of appeals pointed to some facts contained in the record inconsistent with intoxication: speaking clearly and coherently and concession by law enforcement that defendant did not appear highly intoxicated.

Holding. (1) No. Defendant advances a “failure-to-join” argument. He contends that the failure to read the 0.15 enhancement and failure to include it in the jury charge meant it was never joined as part of the case at the guilt stage of trial. This argument should be analogized with cases where a charging instrument is read by the State late in trial. The error in such instance is not the timing of the reading alone, but the consideration of evidence before the indictment was read. The remedy is the reintroduction of evidence. This is an error which requires objection to effectuate the remedy, but defendant made none, at least until the punishment phase when the State alerted everyone that it would then proceed on its proof of the 0.15 enhancement. Because defendant’s failure-to-join argument as it pertains to an errant element omitted from the reading of the indictment gets messy under these facts, “we conclude that there is no such thing as joining issue on only some of the elements of an offense in the charging instrument.” This leaves only jury charge error. (2) Yes. “The right to have an element decided at the guilt stage of trial is a creature of statute.” The error is not structural, but rather constitutional. As such the Court reverses only unless it finds beyond a reasonable doubt “an omitted element is supported by uncontroverted evidence . . . where the defendant did not, and apparently could not, bring forth facts contesting the omitted element.” Here the results of the BAC test were uncontroverted, and the error was therefore harmless beyond a reasonable doubt.

Concurrence (Richardson, J.)(joined by Hervey and Newell). The Court should state specifically whether the 0.15 element is a punishment enhancement or offense element.

Concurrence (Newell, J.)(joined by Hervey, Richardson, and McClure). The Court should state specifically whether the 0.15 element is a punishment enhancement or offense element. It is a punishment enhancement.

Dissent (Yeary, J.)(joined by Slaughter). The 0.15 element is an offense element. “Once again, as in Niles v. State, 555 S.W.3d 562 (Tex. Crim. App. 2018), this Court puts the onus on a defendant to object on the State’s behalf when the jury charge fails to require the jury to find an essential element of a greater-inclusive offense, thus resulting in the defendant’s de facto conviction for a lesser-included offense.” “It seems anomalous to me . . . that we should allow the State to convert Appellant’s true point of error on appeal into a claim of jury charge error that the State did nothing within its power at trial to prevent. . . . We should treat Appellant’s appellate claim for what it purports on its face to be and for what it truly is: a claim that his one-year jail sentence was illegal, since he was convicted only of a Class B misdemeanor . . .”

Dissent (Walker, J.)(joined by Yeary). “Party responsibility” for not objecting to the jury charge should not fall to the defendant when the State omits an element of the State’s case. Appellant’s “party responsibility” was to object when the Court sentenced him to a greater offense than on which the jury convicted. He did. The State did not appeal the submission of the submission of an incorrect charge. The only issue before the court is an illegal sentence. The sentence is illegal.

Comment. The Sixth Amendment requires a jury to find each element of the offense beyond a reasonable doubt before the State can obtain a conviction. This is not “a creature of statute,” but rather United States federal constitutional law. See Apprendi v. New Jersey, 530 U.S. 466 (2000); Alleyne v. United States, 570 U.S. 99 (2013). Judge Yeary’s position makes the most sense to me, but it did not win the day. Now it is what it is. So going forward, during voir dire, do we raise an objection when the State says the jury must find all the elements beyond a reasonable doubt and puts their outline up on a PowerPoint slide. Because it seems the rule is that the jury just needs to find some of the elements beyond a reasonable doubt and appellate courts can fill in the blanks. This might seem overly sarcastic, but unless someone can show me the juror who gave an opinion on the 0.15 element in this case, this is what happened here.

Hernandez v. State, No. PD-0790-20 (Tex. Crim. App. 2021)

Issue. Is indecency with a child a lesser-included offense of aggravated sexual assault of a child?

Facts. The complainant accused the defendant, her father, of forcing her to perform oral sex on him while she was ten years old. The defendant testified that he did not do that, but that he instead pulled her pants down, rubbed her vagina, pulled his pants down, hugged her, and touched his penis to her torso. The trial court denied the defendant’s request for a lesser-included offense instruction on indecency by contact.

Holding. No. “An offense is a lesser-included offense if it is established by proof of the same or less than all the facts required to establish the commission of the charged offense.” A defendant is not entitled to a lesser separate offense instruction. To distinguish separate offenses from lesser offenses, the court conducts an allowable-unit-of-prosecution analysis. “Aggravated sexual assault’s allowable unit of prosecution is penetration. . . . Similarly, the allowable unit of prosecution for indecency with a child is sexual contact.” One offense involves penetration of sexual organs, the other involves simply touching the breast, anus, or genitals. 

Comment. The Court explains the flawed rationale of Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007). In that case the court attempted to foreclose any analysis which permitted a factual approach to lesser-included analysis by stating that the analysis “must be capable of being performed before trial by comparing the elements of the offense as they are alleged in the indictment with the elements of the potential lesser-included offense.” But the Hall court went on to explicitly endorse Martinez v. State, 599 S.W.2d 622 (Tex. Crim. App. 1980), a case in which used a facts-at-trial approach. The Court reconciles this using the offense gravamen analysis. But the facts of this case lent themselves to this analysis. Defendant’s theory is that he criminally touched the complainant in completely different places than he is accused of penetrating. The question remains, what if the defendant touches but doesn’t penetrate a sexual organ he is accused of penetrating?

State v. Lopez, No. PD-1291-18 (Tex. Crim. App. 2021)

Issue. Is four months of delay sufficient to trigger a full analysis of the Barker v. Wingo factors and conclude a defendant was denied his Sixth Amendment right to a speedy trial?

Facts. Defendant was arrested in April for injury to an elderly person. The court appointed counsel in May. In July, five days before the 90-day indictment-delay deadline, which would trigger a personal bond, the State dismissed the felony charge and filed a Class A Misdemeanor assault. Two hearings followed, one on July 20 and one on August 8. It appears at the July 20 hearing: (1) the trial court denied defendant’s request for the personal bond to which he was statutorily entitled, (2) the trial court ordered defendant’s competency evaluated, (3) the proceedings were not stayed as statutorily required for competency evaluation, and (4) speedy trial rights were not asserted or discussed. The August 8 hearing appears to have been the date set for trial to begin, but counsel indicated he had no notice or awareness of an August 8 trial setting. A very confusing hearing ensued where the trial court constantly went on and off the record. The trial court asked some questions about defendant’s competency, defendant’s counsel orally demanded a speedy trial and dismissal of charges, the State announced ready for trial and urged agreed-upon competency issues, counsel for the defendant then announced ready for trial. The trial court then announced it believed defendant was incompetent but granted the speedy trial motion and dismissed the case. The Court of Appeals affirmed the dismissal order in a published opinion that “allow[ed] a defendant to claim he has been presumptively prejudiced by the State’s failure to provide a speedy trial far sooner than any standard this Court has ever recognized, even though the State announce[d] ready for trial and ha[d] not been served with a speedy trial motion.”

Holding. No. Four months is an insignificant delay. “To be clear, the length of delay is a ‘triggering mechanism” for analysis of the other Barker factors, and a court does not engage in the complete analysis unless a defendant alleges that ‘the interval between accusation and trial has crossed the threshold dividing ordinary from presumptively prejudicial delay. We measure the delay from the time the defendant is formally accused or arrested to the time of trial.” Even if it were appropriate to account for future delays for competency evaluation, that delay is not the fault of the State. The State’s exercise of discretion to reduce the case to a misdemeanor instead of pursue the original felony is not a basis to blame them for four months of delay. Moreover, the defendant did very little to assert his right to a speedy trial until the August 8 hearing when he contemporaneously asked for a dismissal.

Comment. The court held that the delay in obtaining a competency evaluation is not the fault of the State but did not go so far as to say that the time for competency restoration is not the fault of the State. To be clear, it is 100% the fault of the State that a person cannot get treatment for mental health and competency restoration in a reasonable amount of time. It is 100% the fault of the State that people with mental health problems languish in county jails and serve de facto sentences for crimes they were not convicted of. The mental health crisis in this state is 100% the fault of the State. Not the defendant.

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

Megwa v. State, No. 02-19-00386-CR (Tex. App.—Fort Worth, Sep. 2, 2021)

Issue. Article 18.01 of the Code of Criminal Procedure literally prohibits a municipal judge from issuing a search warrant for a place that has already been searched before. Does this prohibition apply when the subsequent search involves new probable cause and a new crime?

Facts. Defendant owned a pharmacy in Denton. The State alleged she was running a “pill mill” (a pharmacy that fills fraudulent prescriptions). An investigator obtained two search warrants, the second issued a month later than the first.

A district court judge issued the first search warrant (SW1). In this warrant application the investigator accused the defendant of engaging in “diversion of controlled substances for unlawful use by virtue of her profession or employment” as well as money laundering. The warrant authorized a search of the defendant’s pharmacy and the seizure of “hard copies of prescriptions, a surveillance system hard drive, drugs, U.S. and Nigerian currency, a cell phone, computer equipment, a safe, some vehicles, cashier’s checks . . . , and various documents.”

A municipal court judge issued the second search warrant (SW2). In this warrant application the investigator again alleged the defendant “knowingly diverted to the unlawful use or benefit of another person a controlled substance to which she had access by virtue of her profession or employment.” The investigator alleged some of the same probable cause facts from SW1 but added new facts detailing a what appeared to be a controlled-buy using a cooperating suspect. This controlled-buy occurred after law enforcement had previously executed SW1. In the SW2 warrant application, the investigator shared his cooperating suspect’s account of the defendant illegally selling her drugs by swapping her name out for that of a legitimate customer. Based on the investigator’s representations, the municipal judge authorized SW2’s request to search defendant’s pharmacy for prescription bottles, currency, labels, and other documents.

Holding. No. Article 18.01(d) provides: “a subsequent search warrant may be issued pursuant to Article 18.02(a)(10) [an evidentiary search warrant for mere evidence] to search the same person, place, or thing subjected to a prior search under Article 18.02(a)(10) only if the subsequent search warrant is issued by a judge of a district court, a court of appeals, the court of criminal appeals, or the supreme court.” Search warrants issued pursuant to Article 18.02(a)(10) are “evidentiary search warrants” seeking evidence proving the commission of a crime or the identity of a suspect (“mere evidence”). They are subject to more stringent requirements than warrants authorizing seizure of evidence for some other reason under the various other articles which provide specific authorizations for specific types of evidence which are either contraband, fruits, or instrumentalities of a crime. Defendant proposes a strict literal reading of the Article 18.01’s subsequent warrant issuance prohibition / limitation. The defendant’s reading would prohibit a search of a place if that place has ever been searched before for any type of evidence for any reason at any time. This would lead to absurd results.

Case law proposes two views indicating why the subsequent search in this case was permissible. View 1: “if a warrant authorizes a search for both mere evidence and items listed under another ground for search and seizure, then the warrant is not a mere-evidentiary search warrant” and not subject to the stringent prohibition / limitation on subsequent warrant issuance under Article 18.01(d). View 2: the subsequent warrant prohibition does not prohibit the issuance of a warrant based on different probable cause for a different criminal offense. Both views assume legislative the legislative intent of prohibiting subsequent search warrants (or limiting their issuance to certain magistrates) meant to harass or serve as general exploratory searches of the same person, place or thing. Here, neither warrant was purely evidentiary. Both authorized search and seizure of evidence constituting evidence of an offense or tending to show that a particular person committed an offense as well as search and seizure of evidence of implements and instrumentalities. Both search warrants also set forth distinct probable cause for distinct criminal offenses occurring on different days. For these reasons the “subsequent” warrant issuance by the municipal judge was appropriate.

Comment. The court suggests that the Court of Criminal Appeals take this issue up. I doubt the outcome would be different. The hypothetical given by the Second Court is compelling: a strictly literal reading of the subsequent warrant prohibition would prohibit police from searching for a dead body in the same place they executed a search for methamphetamine ten years prior if the warrant was issued by the wrong type of judge. This is an absurd result not intended by the legislature.

3rd District Austin

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

4th District San Antonio

Ex parte Trevino, No. 04-20-00544-CR (Tex. App.—San Antonio, Sep. 15, 2021)

Issue. Do the rules of evidence apply in bail revocation hearings?

Facts. This is the continuation of a saga from the June edition of the Significant Decisions Report. Defendant is currently held without bail on an aggravated assault family violence allegation as the result of a motion filed by the State with an attached offense report detailing defendant’s commission of a new family violence offense committed while on release. The trial court revoked the defendant’s bond without a hearing based on the consideration of the State’s hearsay evidence. Defendant filed a motion to set his bond and the trial court conducted a hearing where it again considered the State’s hearsay evidence over the defendant’s objection. Following the trial court’s denial of his motion, defendant filed a writ of habeas corpus seeking bail. The trial court refused to issue the writ.

Holding. Yes. The rules of evidence apply in proceedings that may result in denial of bail. “In some bail proceedings, the trial court may consider hearsay evidence, but not in bail revocation proceedings when the hearsay evidence has been objected to and no exception applies.” A trial court abuses its discretion in revoking bail based on objected-to hearsay evidence. In the instant case, the trial court heard no substantive evidence from a witness with first-hand knowledge of facts sufficient to hold the defendant without bail. “Without the inadmissible hearsay evidence, there was no evidence presented to satisfy the preponderance of the evidence standard to deny bond . . . .”

Comment. The court reaches the correct outcome but leaves the lines still somewhat blurred in an area where a significant number of trial courts in this State prefer a Star Chamber model. The rules of evidence specifically apply in bail proceedings to “deny, revoke, or increase bail.” “Deny,” “revoke,” and “increase” are distinct concepts. When a judge revokes bail, the judge must either then set new bail or deny bail. A judge may also deny bail upon initial arrest. Denial of bail is saved for limited statutory and constitutional circumstances. A judge may circumvent bail revocation by simply finding the current bail insufficient. But in this scenario the judge has increased bail. So, the rules of evidence apply in all of these scenarios. But to make things simpler, here is the rule: if whatever the defendant did wrong on bail means he might have to go to jail again, the rules of evidence apply.

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

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

Popp v. State, No. 08-19-00298-CR (Tex. App.—San Antonio, Sep. 9, 2021)

Issue. (1) If the State intends to rely on party liability, must it plead facts sufficient to establish one of the enumerated statutory bases for party liability? (2) Is the State required to present direct evidence of an agreement to establish conspiracy liability? (3) In a prosecution for capital murder committed in the course of a robbery, is a defendant entitled to a 404(b) limiting instruction when the State introduces evidence of another robbery committed by the defendant during the same evening under similar circumstances? (4) When the State introduces a text message conversation between the defendant and a witness can the defendant use the rule of optional completeness to introduce a separate conversation involving that witness and a third person about the same subject matter?

Facts. A jury convicted the defendant for his part in a capital murder committed while robbing a drug dealer. The State’s evidence included a separate robbery committed by the defendant and his associate Soriano on the same evening. In the pre-murder robbery, defendant and Soriano robbed the girlfriend of a drug dealer at gunpoint while driving in a gray Crown Victoria. Later in the evening a witness saw an unidentified person inside of a similar Crown Victoria shoot and kill a man. Law enforcement reviewed the victim’s text messages and saw that the defendant had set up a $100 purchase of cocaine. The victim was found with a fake $100 bill and no cocaine. Witnesses identified the defendant as the driver of a similar Crown Victoria on the evening of the murder. Defendant and Soriano asked a housemate to dispose of the murder weapon and told this witness that they had “fucked up.” Defendant claimed at trial that his associate Soriano pulled the trigger without his knowledge or cooperation. Prior to trial defendant filed a motion to dismiss the indictment indicating he was unclear on which of the statutory theories of party liability the State intended to rely and pointed out the various acts which could constitute party liability (causing, aiding, promoting, assisting, failing to prevent, attempting)

Holding. (1) No. The Texas Constitution provides that the State need only notify the defendant that he has been charged with a felony—nothing more. All other complaints about an indictment are complaints as to its form and are governed by statute. Statutorily “everything should be stated in an indictment which is necessary to be proved.” Tex. Code Crim. Proc. art 21.03. But the State’s failure to adequately inform the defendant doesn’t matter if it doesn’t prejudice the defendant’s substantial rights. It is well settled that the State need not plead party liability. Requiring the State to plead party liability is unworkable. The State is entitled to use theories of party liability to rebut a defendant’s attempt to shift blame to another person. “[T]he State cannot predict with any certainty which accomplice theory will apply until the accused actually puts on his case contesting his participation in the offense as a principal.”

(2) No. “In determining whether the accused participated as a party, the court may look to events occurring before, during and after the commission of the offense, and may rely on actions of the defendant which show an understanding and common design to do the prohibited act.” Evidence showed that earlier in the night defendant lured a drug dealer to a certain location, drove a crown Victoria with passenger Soriano, and robbed the drug dealer at gunpoint. Two hours later the defendant lured a second drug dealer to another location, drove to the same vehicle with the same passenger. The victim died from a bullet fired from the same gun. Given these facts, both knew a gun was in the car, how it would be used, that they were participating in a robbery, and played certain roles. Whoever the non-shooter was, that person failed to call 9-1-1 and seek medical attention to the dying gunshot victim.

(3) No. “When a separate offense is used to prove a main fact in the case, an instruction limiting the jury’s consideration of this evidence is generally not required. Indeed, circumstances of the offense which tend to prove the allegations of the indictment are not extraneous offenses.” This is same transaction contextual evidence. The State charged the defendant with committing murder in the course of a robbery. The earlier robbery showed that defendant and his associate were on a crime spree involving multiple robberies of drug dealers during the evening.

(4) No. At least not here. The rule of optional completeness under Texas Rule of Evidence 107 permits a party to introduce additional writings to supplement those offered by their opponent if those writings are part of the conversation or part of another conversation that is necessary to explain or allow the fact finder too fully understand the conversation. Here, the State introduced text messages between the victim and the defendant setting up a drug deal. The victim’s separate conversation with his girlfriend admitting he had no drugs to sell was not particularly relevant. The jury did not need to know the victim was not actually going to sell the defendant drugs, the issue at trial was whether the defendant believed he was robbing a drug dealer when he murdered the victim.

Comment. I’ve never seen the right to factual notice described as a mere statutory right. I have seen it describe this way, though:

Our prior cases indicate that an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as ‘those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished. ‘Undoubtedly the language of the statute may be used in the general description of an offence, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged.

Hamling v. United States, 418 U.S. 87, 117–18 (1974)

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

State v. Martinez, No. 11-20-00144-CR (Tex. App.—Eastland, Sep. 2, 2021)

Issue. (1) Is a defendant’s aversion to being hassled by the police combined with a bit of potentially sketchy behavior enough for reasonable suspicion? (2) As long as an officer has reasonable suspicion, can he make a person wait 38 minutes while a drug dog arrives to sniff that person’s vehicle?

Facts. An officer decided to hassle a person he recognized from a previous arrest. That person was the defendant and the officer stopped him for a technical violation of the Transportation Code. Defendant pulled over at a gas station and immediately exited his vehicle without having been asked to do so. Defendant recognized the officer and thanked the officer for his previous arrest and helping him change his life. After explaining to the defendant that he would receive a warning for the traffic infraction, the officer launched into a fishing expedition about evidence of unrelated crimes that might be found on the defendant’s person or in the defendant’s vehicle. Defendant consented to both a search of his person and his vehicle. Prior to the officer searching his vehicle, defendant became agitated about the circumstances of the traffic stop. He revoked his consent and declined to even roll down his windows when requested. The officer held the defendant at the scene for 38 minutes until a canine unit arrived and alerted on the vehicle for drugs. The trial court granted the defendant’s motion to suppress.

Holding. (1) Yes. Criminal history + attempting to avoid the police + exiting a vehicle on a traffic stop + changing the topic of discussion during the traffic stop + not owning the vehicle you are driving + becoming irritated about being detained for a hyper-technical traffic violation + not consenting to a visual search + declining to roll windows down and consent to a smell search + defendant’s prediction that the officer would call a canine unit = reasonable suspicion that some nonspecific other criminal activity may be afoot. (2) Yes. “[I]f during his investigation of the circumstance that precipitated the traffic stop the detaining officer develops reasonable suspicion that other criminal activity has occurred or is occurring, the scope of the initial investigation may expand to include other offenses and the officer may further detain the driver for a reasonable period of time in order to dispel or confirm the officer’s reasonable suspicion of other criminal activity.” The standard for a prolonged detention during which an officer has reasonable suspicion is diligence. An officer must work diligently to confirm or dispel his suspicion. 38 minutes to procure a drug dog was diligent and not unreasonable.

Comment. Rodriguez v. United States, 575 U.S. 348 (2015) is the controlling case here. It explicitly states that making a person wait for a drug dog absent reasonable suspicion is unconstitutional. It suggests without holding the existence of reasonable suspicion might provide the officer with a little bit of bonus time to get a drug dog there. The court finds that this implied bonus time is enough to cover the 38 minutes it took the officer in this case to get the drug dog. I’m not sure this holds up. I’m also not a big fan of using a person’s aversion or reaction to police harassment as a factor for reasonable suspicion. The act of exercising a Fourth Amendment right should not be a factor which weighs against a citizen.

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

Chavez v. State, No. 14-19-00351-CR (Tex. App.—Houston [14th Dist.], Sep. 9, 2021)

Issue. Generally, when a defendant denies commission of an offense, he presents no evidence establishing commission of a lesser-included offense. But in a capital murder case involving party liability, where a co-conspirator testifies the agreement among co-conspirators included kidnapping but not murder, is the defendant who denies all criminal responsibility entitled to lesser-included offense instructions on kidnapping and on felony murder?

Holding. Defensive evidence sufficient to establish the submission of lesser-included offense instructions may come from prosecution witnesses. The testifying co-conspirator was inconsistent about what the defendant agreed to. Because there was some evidence that the defendant was only party to a kidnapping and some evidence the defendant was only a party to felony murder, the jury should have been given the opportunity to sort it out.

Dissent (Wise, J). There is no evidence that the defendant did not intend to kill the victims. There is no evidence that when the co-conspirator formulated the idea to commit murder, the defendant did not join in that endeavor.

Comment. There is a statewide trend helmed by the Court of Criminal Appeals permitting defensive instructions that are inconsistent with defensive theories but nonetheless consistent with evidence presented at trial.

October 2021 SDR – Voice for the Defense Vol. 50, No. 8

Voice for the Defense Volume 50, No. 8 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

Pop quiz Sig Heads: can two flashlights strapped to the hood of a car serve as headlights? Follow up question: if you are committing a crime and you drive a flashlight-for-headlights car, should you either: (a) think twice about committing a crime, or (b) think twice about committing a crime at night. Extra points: does this fact pattern get better by adding a drug dog named Harley Quinn whose “I found drugs” signal is to wag her tail? This month isn’t just fun fact patterns. I celebrated my first case summary from a case found in the Federal Reporter Fourth Series (F.4th). I celebrated alone of course because who celebrates stuff like that? Me, I do. I also found a really good unpublished opinion, and in a way, I like to think it’s now kind of published—thanks Voice for the Defense! Compare Tex. R. App. Proc. 47.7.

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.

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

U.S. v. Flowers, 6 F.4th 651 (5th Cir. 2021)

Issue. When you park your car at a convenience store in a bad part of town and don’t get out of your vehicle for 10-15 seconds have you given police sufficient reason to seize you?

Facts. An officer with Jackson P.D.’s Direct Action Response Team (DART), a proactive unit tasked to “look for suspicious behavior, suspicious activities, traffic stops, and things of that nature” was observing activity in an area of the city where “recent violent crime and burglaries” had occurred. This officer observed defendant inside his vehicle with a passenger for 10 to 15 seconds. The occupants did not exit the vehicle and did not appear to be patronizing the establishment. Due to defendant’s behavior, six patrol cars converged upon the defendant’s vehicle with their emergency lights activated. They positioned themselves in a manner so that the defendant could not leave. While interrogating the occupants of the vehicle, officers discovered a firearm in the defendant’s possession. Because he was a felon, the government charged and convicted him with the instant Felon in Possession of a Firearm case. At trial, defendant moved to suppress evidence obtained as a result of an unlawful seizure. The trial court denied defendant’s motion.

Holding. Yes. “The parties debate the existence of a ‘seizure’ under the circumstances here, and there appears to be no Fifth Circuit case where a law enforcement seizure occurred by the mere surrounding presence of police cars and Officer Stanton’s non-threatening approach to May’s auto. We need not resolve that debate and will assume arguendo [that there was a seizure]. . . . The following facts are determinative. [In addition to the area being known for crime], Officer Stanton was no novice. He possessed an undergraduate degree in justice administration and a masters degree in criminology and had ten years of law enforcement experience. . . . Two males were in the car, and Officer Stanton observed that neither of them stepped out of the Cadillac heading toward the store for 10-15 seconds.” This is reasonable suspicion. The court distinguished cases suggesting otherwise by pointing to the geographic specificity of high crime in the instant case, the very “unsavory” nature of the neighborhood, the suspicious place where the vehicle was parked—to the side of the business. Though the court assumes arguendo that there was a detention, the court also has much to say about how six police cars swooping in on the defendant with flashing lights was a simple and uncoercive “field interview.”

Concurrence / Dissent (Elrod, J.). The defendant was not parked suspiciously – he was parked in one of five or six available spots in the lot. Nor had officers received a report of suspicious activity. Based on their “dawdling” for 10-15 seconds, officers surrounded and “trapped” them with squad cars with emergency flashing lights. The majority is wrong to conclude that this Circuit has not held such police conduct a seizure – it has. See United States v. Beck, 602 F.2d 726 (5th Cir. 1979). The majority points to nothing particular about the circumstances present in this case that would lead one to conclude the defendant was exhibiting suspicious behavior. On numerous occasions this Court and the Supreme has found presence in a high crime area insufficient to justify reasonable suspicion—even in cases where an officer can imaginatively spin innocent conduct into seemingly suspicious conduct. “For citizens to become suspects, they must do more than merely exist in an ‘unsavory’ neighborhood. As my able colleague once put it, ‘it defies reason to base a justification for a search upon actions that any similarly-situated person would have taken.’ Rideau, 969 F.2d 1572, 1581 (Smith, J. dissenting). Otherwise, our law ‘comes dangerously close to declaring that persons in ‘bad parts of town’ enjoy second-class status in regard to the Fourth Amendment.” Id.

Comment. Forgive me for abundance of direct quotes, I felt the founding fathers judging me when I attempted to put this opinion in my own words. Also, I couldn’t stop picturing Sylvester Stallone driving around on his hover bike boasting his “undergraduate degree in justice administration.” The good news here is that this is my first F.4th opinion—a fact that excites me the same as it would potentially two other people I can think of on this planet.

U.S. v. Aguirre-Rivera, 8 F.4th 405 (5th Cir. 2021)

Issue. (1) In a drug conspiracy prosecution, is a defendant entitled to a judgment of acquittal when a jury returns a general jury verdict of guilty, but returns a special interrogatory finding the defendant was unaware that the conspiracy involved the requisite quantity of drugs constituting an element of the offense? (2) Under the same circumstances, may the trial court continue to subject a defendant to a drug-quantity-based enhanced minimum sentence in light of the jury’s inconsistent verdict?

Facts. A jury found the defendant guilty of conspiracy to possess with intent to distribute one kilogram or more of heroin. However, in a special interrogatory, that same jury could not find beyond a reasonable doubt “that the defendant knew or reasonably should have known that the scope of the conspiracy involved at least one kilogram or more of a mixture or substance containing a detectable amount of heroin.” The defendant moved for a judgment of acquittal and argued the jury’s answer to the special interrogatory undermined an element of the offense. In sentencing the trial court relied on an erroneous presentence investigation report (PSR) which stated that the defendant’s offense was “Conspiracy to Possess with Intent to Distribute 100 Grams or More of Heroin”—an offense carrying a mandatory minimum of 5 years. Defendant maintained that he had been acquitted by the jury’s inconsistent verdict but also objected to the PSR on the basis that the jury had made no finding with regard to a drug quantity.

Holding. No. “We have explained that the essential elements of a drug conspiracy are (1) an agreement by two or more persons to violate the narcotics laws; (2) a defendant’s knowledge of the agreement; and (3) his voluntary participation in the agreement.” In Apprendi v. New Jersey, 530 U.S. 466 (2000) and in Alleyne v. United States, 570 U.S. 99 (2013) the Supreme Court required that any factual matter which increased a defendant’s maximum or minimum sentence be treated as an element of the offense. Notwithstanding the explicit language Apprendi and Alleyne, the Fifth Circuit chooses to treat such matters as mere sentencing enhancements—not “formal elements of a conspiracy or possession offense.” (2) No. The trial court cannot sentence a defendant by relying on facts not found by the jury. “This was constitutional error.”

Comment. It baffles me how most Courts look to the holdings of Apprendi and Alleyne and persist in making distinctions between elements of an offense and sentencing enhancements. “The law threatens certain pains if you do certain things, intending thereby to give you a new motive for not doing them. If you persist in doing them, it has to inflict the pains in order that its threats may continue to be believed. New Jersey threatened Apprendi with certain pains if he unlawfully possessed a weapon and with additional pains if he selected his victims with a purpose to intimidate them because of their race. As a matter of simple justice, it seems obvious that the procedural safeguards designed to protect Apprendi from unwarranted pains should apply equally to the two acts that New Jersey has singled out for punishment. Merely using the label “sentence enhancement” to describe the latter surely does not provide a principled basis for treating them differently.Apprendi, 530 U.S. at 476 (citing Oliver Wendell Holmes).

Texas Court of Criminal Appeals

The Court of Criminal Appeals Court did not hand down any published opinions since the last Significant Decisions Report.

1st District Houston

State v. Gallien, No. 01-19-00882-CR (Tex. App.—Houston [1st Dist.] Aug. 12, 2021)

Issue. Does Rule 606(b)(1) prohibit juror testimony pertaining to statements or incidents occurring during jury deliberation to impeach the jury’s verdict?

Facts. A jury convicted the defendant of aggravated robbery with a deadly weapon. During the punishment phase, the jury considered whether the defendant had two prior felony offenses for punishment enhancement purposes. The trial court received two notes. The first note, written by the foreman, indicated the jury was split 11-1 regarding whether the enhancement allegations were true. The second note, written by Juror No. 32, stated:

What if a juror feels that they were pressured by their peers into a guilty verdict?

I expressed to all of my fellow jurors that I was not comfortable with a guilty verdict due to the fact that the detective did not both confirm that the defendant understood and waived his rights. I feel that his Miranda rights were violated.

That violation coupled with the witness testimony gave me cause for reasonable doubt and I believe the defendant to be innocent. Fearing that I would be bullied, I changed my verdict to guilty.

Now that we are in the punishment phase, the exact thing that I feared has come to pass as I have been belittled, berated, and threatened with perjury of court due to my beliefs regarding the additional charges being considered in sentencing.

Honestly, I am not comfortable with this entire process and am not sure how to proceed.

Defendant immediately moved for a mistrial on punishment and the trial court granted. Later defendant filed a motion for mistrial and motion for new trial on guilt-innocence. Defendant argued the verdict did not represent an expression of opinion but was rather the product of bullying, harassment, and the threat of criminal prosecution. Before the hearing on the motion for a new guilt-innocence trial, counsel obtained an affidavit from Juror No. 32. The trial court vaguely admonished counsel on the inappropriateness of contacting a juror and informed the parties she would not consider the contents of the affidavit. The court instead focused on the mid-deliberation note over the State’s objection under Texas Rule of Evidence 606(b). This rule makes inadmissible any “statement made or incident that occurred during the jury’s deliberations” influencing the juror’s vote. The trial court overruled the State’s objection and explained her view of 606(b) as a rule prohibiting post-trial harassment of jurors. Instead of granting a new trial on juror misconduct, the trial court granted a mistrial “in the interest of justice.” The State appealed the granting of a mistrial.

Holding. Rule 606(b)(1) prohibits juror testimony pertaining to statements or incidents occurring during jury deliberation to impeach the jury’s verdict. There are only two exceptions to this rule, both found under 606(b)(2): testimony about an outside influence, and testimony to rebut a juror’s qualifications to serve. Pressure placed upon one juror by others does not fit within either exception. Defendant’s argument, and the trial court’s position, that Rule 606 was designed to prevent post-trial harassment and not post-verdict-pre-jury-discharge inquiries is unpersuasive. Texas courts have consistently referred to the rule as one pertaining to post-verdict inquiry and at least one federal circuit court has found the identical federal counterpart to Rule 606 to prohibit mid-trial post-verdict inquiry. Even if were proper for the trial court to consider the juror’s mid-trial note, being bullied, harassed, belittled, berated, and threatened with criminal prosecution is just a normal part of jury deliberation.

Comment. How about this. Rule 606 is stupid. Make a new one. “In sum, Rule 606(b) protects a good system that cannot be made perfect.” So, this defendant be damned and have fun in prison. And here is something else. Texas Rules of Appellate Procedure require a new trial granted when the verdict is not a fair expression of the juror’s opinion, or when the jury engages in misconduct. If someone can explain to me how these things are shown without violating Rule 606, I’d listen patiently until you were done being wrong under the current status of the law.  

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

State v. Robles, No. 04-20-00244-CR (Tex. App.—San Antonio, Aug. 4, 2021)

Issue. Can a judge dismiss a prosecution sua sponte without notice and a hearing because the prosecutor failed to timely prosecute the matter?

Facts. The County Attorney of Kinney County and the judge of the Kinney County Court are not seeing eye-to-eye. This is one of fourteen variations of a similar spat currently pending before this Court. This one vaguely references the County Attorney’s disagreement that the “trial judge’s pay to plea practice was not authorized by law.” It appears the County Attorney would not submit plea papers in several cases and allegedly “engaged in protracted efforts to frustrate the proper functioning of the County Court of Kinney County, Texas.”  The trial judge sua sponte, without notice, and without hearing, dismissed some prosecutions with an “Order dismissing for Want of Prosecution.”

Holding. No. “Without the denial or violation of a defendant’s constitutional right permitting a dismissal of a misdemeanor complaint a court does not have the authority to dismiss a case unless the prosecutor requests a dismissal.” “The State’s right to maintain a criminal prosecution enjoys special protection because it is fundamental to the proper functioning of the adjudicatory process.”

Olalde v. State, No. 04-20-00197-CR (Tex. App.—San Antonio, Aug. 18, 2021)

Issue. In an intoxication manslaughter case where a defendant presents rebuttal evidence showing, among other things, she was first struck by another vehicle before colliding with the decedent’s vehicle, is evidence sufficient to show the defendant’s intoxication was the cause of the accident and death?

Facts. Defendant was driving a Ford Expedition and collided with a Chevy Malibu. The driver of the Chevy Malibu died. The State presented evidence showing the defendant veered from the left lane into the right lane, then veered onto the sidewalk before ultimately returning her vehicle to the roadway. The driver of the Chevy Malibu entered the highway from a private drive. Defendant struck the Chevy Malibu at the moment she returned her vehicle to the highway from the sidewalk. The State’s accident reconstructionist estimated defendant’s speed at 74-75 miles per hour. Defendant presented evidence that she was struck by a silver Dodge Charger before the collision. She told officers this during their crash investigation. A witness at the scene took a video showing a silver vehicle at the crash site. A 911 caller mentioned a silver Charger at the scene. The State rebutted this defensive theory with a nearby store surveillance video showing no other vehicles on the access road at the relevant time and with police officer testimony regarding the lack of paint transfer on the Expedition.

Holding. Yes. There were two theories presented regarding the collision. A person is absolved of criminal responsibility only when a concurrent cause is clearly sufficient to produce the result and the conduct of the defendant was clearly insufficient. Tex. Penal Code § 6.04. When defendant’s conduct is sufficient by itself to cause the result, or when the defendant’s conduct combines with a concurrent cause to cause the result, a defendant remains criminally liable. Here the jury was not unreasonable to reject the defendant’s evidence, or to accept the defendant’s evidence but find that the defendant’s intoxication combined with the concurrent accident caused the death of the Chevy Malibu driver.

5th District Dallas

Guyger v. State, No. 05-19-01236-CR (Tex. App.—Dallas, Aug. 5, 2021)

Issue. (1) Is a defendant entitled to a mistake of fact acquittal when she intentionally killed an individual after entering his apartment, but when the record reveals dozens of circumstances showing the defendant believed she had entered her own apartment and the victim was an intruder? (2) Is a defendant entitled to a self-defense acquittal under the same circumstances? (3) Is criminal culpability capped at criminally negligent homicide under the same circumstances?

Facts. Defendant was a Dallas police officer. She was convicted of murder after she entered a neighbor’s apartment at the end of her shift and shot him. Both the defendant and the victim lived in the Southside Flats Apartments. Defendant was a resident of 1378 on the third floor; victim was a resident of 1478 on the fourth floor. Evidence showed the layout of the building was confusing; one could easily mistake what floor they were on when entering from apartment hallways from the parking garage. When defendant approached 1478 she believed she was at her apartment. The door was ajar, and defendant testified that she heard someone shuffling around inside. She perceived a threat but did not call for backup or take cover. Instead, she entered and encountered the resident of 1478—Botham Jean. Defendant testified that she ordered Botham Jean to put his hands up and then she shot him in the chest intending to kill him. Defendant attempted to resuscitate Jean while calling 911. During that time, Defendant told the dispatcher 20 times that she thought she was in her own apartment, that she “fucked up” and panicked about losing her job. The investigating Texas Ranger testified that 23% of residents living on the third floor had accidentally tried to enter the wrong apartment at some point. Bullet trajectory testimony showed a fatal shot inconsistent with the defendant’s story of Jean standing up and moving toward her. Other residents testified to hearing the gunshot but without any warnings or commands from the defendant.

Holding. (1) No. A mistake of fact defense may only negate an element of an offense which requires a culpable mental state. “It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.” Tex. Penal Code § 8.02(a). Here a “mistake of fact would apply if Guyger mistakenly formed a reasonable belief that negated her intent to kill Jean.” Defendant did not mistakenly shoot Jean, she testified that she intended to kill him. “[T]he mistaken facts upon which Guyger relies are relevant only to whether Guyger was justified in shooting Jean.” (2) No. An individual may defend him or herself with deadly force when the individual reasonably believes such force is necessary to protect oneself from another’s use or attempted use of unlawful deadly force. Tex. Penal Code § 9.32(a) A defendant’s reasonableness is presumed when she knew or had reason to believe the victim entered the defendant’s habitation with force. Tex. Penal Code § 9.32(b). The defendant points to “her mistaken belief that she was in her own apartment to support the reasonableness of her belief that Jean posed an imminent threat. Mistake of fact, however, plays no role in self-defense—the former addresses Guyger’s culpable mental state; the latter addresses the circumstances of Guyger’s conduct. Guyger’s argument thus [improperly] bootstraps mistake of fact to reach the section 9.32(b) presumption of reasonableness.” Sufficient evidence supports the jury’s rejection of self-defense. A trained police officer testified that, in the defendant’s scenario, it is preferrable to take cover, call for backup, and offer the perceived intruder an opportunity to surrender. There was also some conflicting evidence regarding the moments before the shooting: whether Jean was seated or standing up and advancing, and whether the defendant demanded Jean show his hands prior to shooting him. Self-defense was not irrefutably shown. (3) No. Murder is a “result of conduct” offense. “Guyger’s mental state with respect to the result of her conduct—Jean’s death—determines the applicable offense. . . . The conscious objective or desire to cause death, or awareness that certain conduct is reasonably certain to cause death, gives rise to murder.” Defendant points to dozens of circumstances which led her to believe she was entering her own apartment, but the circumstances surrounding her conduct are irrelevant to this analysis. Defendant intended to cause the result of death according to her own confession.

Comment. The one thing I latched onto in this opinion was the following quote: “[w]e differentiate mistake of fact—a defense—from justification. Justification depends on the circumstances giving rise to the challenged conduct, and the reasonableness of the defendant’s belief that the conduct is immediately necessary to avoid imminent harm. [block quote of Tex. Penal Code § 9.22 “Necessity”].” The court then parlays this into a discussion about deadly self-defense in which it rejects the notion that a defendant can avail herself to the in-her-own-home presumptions with an erroneous but potentially reasonable perception she was in her own home. I’m not sure if the court means to imply that the defendant might have prevailed had she only raised a Section 9.22 necessity defense. Looking through the briefing in this case to see whether the parties addressed Section 9.22, it appears the State has latched onto the same quote. Unsatisfied with 100% victory, they have filed a motion for rehearing insisting the court shouldn’t have said that.

Sledge v. State, No. 05-19-01398-CR (Tex. App.—Dallas, Aug. 26, 2021)

Issue. A jury convicted a defendant of an offense but found the State’s enhancement allegations not true. Defendant moved for and the trial court granted a new trial, and the new jury found defendant guilty and found the State’s enhancement allegations true. Under these circumstances is counsel ineffective for failing to argue collateral estoppel or issue preclusion as a bar to the enhancements in the second trial?

Facts. Defendant was involved in an altercation where he ended up shooting a gun down the hallway of an apartment complex and then held a gun to someone’s head. Defendant fled the apartment in a vehicle driven by another person. When police stopped the vehicle at a convenience store, defendant exited and attempted to walk into the store while the driver remained. Police detained defendant and conducted a protective sweep of the vehicle. They discovered “a pistol on the driver’ side floorboard, and a bag containing several smaller bags of what appeared to be illicit drugs on the passenger’s side.” Upon arresting defendant, they found $3,000 in cash on his person. Defendant was charged with possession with intent to deliver: (1) heroin, and (2) cocaine, as well as felon in possession of a firearm. The State attempted to enhance defendant’s sentences in the drug cases with: (1) a prior felony conviction, and (2) the use of a firearm. The State attempted to enhance defendant’s sentence in the firearm possession case with only the prior felony conviction. The jury convicted the defendant of the offenses but found all enhancements not true. Defendant then requested a new trial “which was granted without any specific grounds identified.” Defendant’s second jury found him guilty and found the enhancements true.

Holding. Yes. “In Ashe v. Swenson, the Supreme Court recognized that the Fifth Amendment guarantee against double jeopardy embodies the principle of collateral estoppel.” Collateral-estoppel in the context of double jeopardy means that “the government may not litigate a specific elemental fact to a competent factfinder (judge or jury), receive an adverse finding, learn from its mistakes, hone its prosecutorial performance, and relitigate the same question of fact.” There is no provision in the law requiring a defendant to “forgo favorable portions of a verdict as a condition of challenging the balance of the verdict that was answered against him . . .” Like elemental facts, findings regarding enhancement elements are entitled to the preclusive effect of collateral estoppel under double jeopardy principles. Because the court can imagine no reasonable strategy for counsel’s failure to object to the State’s deadly weapon and habitual offender allegations, counsel’s performance was harmfully deficient. 

Dissent (from denial of en banc consideration) (Burns, C.J.) Double jeopardy applies if there has been one of three possible jeopardy terminating events: (1) an acquittal, (2) a trial court determination of insufficiency of the evidence leading to directed verdict of acquittal, and (3) an unreversed determination on direct appeal that there was insufficient evidence to support the conviction. The original jeopardy was never terminated because the trial court granted a motion for new trial. “There could be a number of reasons why defense counsel did not raise the issue of collateral estoppel in retrial. For one, she would have had no way to peer into the future and know or guess that a panel of our Court was willing to expand the law surrounding motions for new trial.”

Comment. Snatching victory from the jaws of defeat from the jaws of victory? There’s a lot of jaws here is what I’m saying, I guess. I’m trying to wrap my brain around (without Westlawing) why the argument had to be ineffective assistance rather than a simple due process argument that the conviction cannot be enhanced without regard to the effectiveness of counsel.

6th District Texarkana

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

7th District Amarillo

In re City of Lubbock, No. 07-21-00070-CV (Tex. App.—Amarillo, Sep. 2, 2021)(not designated for publication)

Issue. (1) When a defendant seeks an ex parte discovery order pursuant to his due process rights and without utilizing the Code of Criminal Procedure’s mechanisms for discovery, must he first mount a challenge to the constitutionality of the Code of Criminal Procedure? (2) Is a defendant limited to the mechanisms provided for in the Code of Criminal Procedure when seeking discovery from a third-party witness?

Facts. The defendant in a pending child sexual assault case had a theory that another witness in the case had influenced complainant to make false allegations. The defendant sought records of the third-party witness’s own false allegations. Instead of making a discovery request or seeking a subpoena, defendant sought an ex parte order from the trial court to command the City of Lubbock / Lubbock Police Department to produce records regarding the witness “including but not limited to: records where she was reported to be a child victim of sexual abuse.” The trial court issued the requested order with instructions prohibiting the city from disclosing the existence or contents of the order to the State or any other person. The city objected to the ex parte nature of the order and the trial court held a hearing to consider their arguments against production. At that hearing, the trial court conducted an in-camera inspection of records at the request of the defendant. After inspection, the trial court persisted in its order. The instant proceeding is the city’s petition for writ of mandamus seeking protection from the trial court’s order. 

Holding. (1) No. The defendant asserted a due process right to investigate and obtain discovery in a manner consistent with his right to not disclose defensive theories. He sought an ex parte court order to obtain the documents in the possession of a government entity because other mechanisms provided for under the Code of Criminal Procedure would not allow him to conduct such an investigation. “Despite these assertions, [the defendant] steadfastly maintains that his ex parte motion is not a constitutional challenge to any statute . . . . Rather, it is the City that argues [the defendant] must contend that the provisions of the Texas Code of Criminal Procedure are unconstitutional and that the trial court erred by implicitly finding that the discovery provisions of the Code violate his state and federal constitutional rights. The City is simply wrong in this contention for the reason that articles 24.02 and 39.14 of the Texas Code of Criminal Procedure are not the exclusive means by which a party may seek the discovery of relevant information under the control of a third party.” (2) No. A defendant has a constitutional right to investigate without exposing his defensive theories or the nature of his investigation to the State. The tools for discovery under the Code of Criminal Procedure do not always permit for such an investigation. In Ake v. Oklahoma, 470 U.S. 68 (1985) (and in its progeny) the Supreme Court held that criminal defendants have the right to the basic tools essential to their defense and may request assistance from the court ex parte to maintain the confidential nature of representation and to avoid disclosing defensive theories. For the same reasons articulated in Ake, the law permits the trial court to issue an ex parte order compelling a third-party to produce discovery.

Comment. We should all strive to have a court quote our briefs as much as the majority opinion quoted defense counsel’s in this case. This is an important opinion—one the court should publish.

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

Edwards v. State, No. 09-19-00180-CR (Tex. App.—Beaumont, Aug. 25, 2021)

Issue. Officers posed as a fictitious 14-year-old girl on the internet. Defendant asked for a picture of her masturbating, and she declined. The fictitious child asked for sex, and the defendant declined. Under these circumstances, does a prosecution for attempted sexual performance by a child violate the First Amendment?

Facts. The State charged defendant with attempted sexual performance by a child. Detectives posing as children posted on social media that they were bored and looking to hookup with adults. Defendant chatted with the fictitious child and, when asked, detectives sent defendant pictures of a fifteen-year-old girl. Eventually, defendant sent pictures of his penis and asked the fictitious child to send pictures masturbating. The fictitious child declined to send pictures of herself naked but invited defendant to come over and hang out. Defendant accepted the invitation but declined the fictitious child’s invitation to have sex. Detectives arrested the defendant on arrival and interrogated him. Defendant stated he believed the person he was meeting was 18 despite the explicit representation that she was 14. Defendant argued that the picture she sent led him to believe she was 18. Defendant denied he was there to do anything other than hang out or go to lunch. Detectives did not find condoms, lube, or things customarily found when intercepting defendants in other solicitation of minor stings.

Holding. No. An as applied First Amendment challenge requires the court to look at the specific conduct of the defendant and determine whether the statutes at issue as applied to him were unconstitutional under the circumstances. Sexual performance by a child includes the inducement of a minor to take a photograph masturbating. Defendant attempted to commit this offense by doing more than a mere act amounting to preparation in this regard. “Words that are specifically designed to prompt an associate to action are not simply speech [in the context of the First Amendment], but are conduct that may be treated accordingly.” Barnes v. State, 206 S.W.3d 601, 606 (Tex. Crim. App. 2006). Defendant’s suggestion that the combination of the criminal attempt statute and the sexual performance by a child statute could criminalize “non-obscene communications between two consenting adults when one of the participants claims to be under seventeen” is a facial challenge to the constitutionality of the statute which was not raised in the trial court. Nor is this argument particularly persuasive—the statute proscribes certain conduct directed at a minor who the defendant believes is a minor. It does not sweep too broadly.

Comment. I’m not sure Attempted Sexual Performance by a Child can be a crime. It’s like saying attempted attempt to do something. The actus reus of the underlying offense includes “promotes a performance” without regard to whether that promotion was successful.

White v. State, No. 09-19-00328-CR (Tex. App.—Beaumont, Aug. 25, 2021)

Issue. Does the trial court have a sua sponte duty to provide the jury with an Article 38.23 instruction permitting it to disregard evidence it believes was illegally obtained?

Facts. A K-9 deputy with the Montgomery County Constable’s Office saw a vehicle using two flashlights strapped to the hood of the vehicle as headlights. He stopped the vehicle and after he was denied consent to search, he deployed his narcotics dog. The dog’s name was Harley Quinn, and Harley Quinn was a dog whose narcotics alert involved either wagging her tail or sometimes not wagging her tail. She also might alert on drugs by putting her ears back. Ultimately Harley Quinn sits down when she decides to give a final alert. The K-9 deputy testified Harley Quinn alerted on defendant’s vehicle by doing a “passive sit” on the driver’s side door. The deputy then searched the defendant’s vehicle on the basis of probable cause. Defendant moved to suppress the search of the vehicle based on video evidence not depicting Harley Quinn sitting at the driver door. The K-9 officer testified that Harley Quinn’s “passive sit” must have occurred when she was at the front of the vehicle and off-camera and just before she jumped in front of the driver’s door to get a tennis ball. The trial court went along with this and denied the motion to suppress. Defense did not request an Article 38.23 instruction and expressed satisfaction with the jury charge as written. When defendant’s counsel twice attempted to argue in closing the legality of the search, the trial court sustained the State’s objection. Then, having excluded from consideration the legality of the search, the prosecutor argued the legality of the search. During deliberations the jury sent the trial court a note asking whether it should consider that there was probable cause to search the vehicle.

Holding. No. Because the defendant did not object to the trial court’s jury charge, the appellate court will only review for egregious error—error that denies a defendant a fair and impartial trial when looking at the charge as a whole, conduct of counsel, and the entirety of the case and evidence. Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984). Because the rest of the jury charge [the part explaining how to find the defendant guilty] was correct, the omission of the statutory right of the jury to disregard evidence of guilt was not harmful when weighed against the rest of the jury charge. The weight of evidence showing the dog alerted on the driver-side door was considerable and weighs against egregious harm. The fact that both sides focused arguments on the legality of the search was inconsequential.

Comment. I mean this whole thing is wheels off. A dog named Harley Quinn that alerts by doing normal dog stuff. Then the “final alert” was on the driver-side door, but you can’t see it because the dog is not at the driver-side door when it does a “passive sit” on the driver-side door. Also, you can’t prolong a detention to make someone wait on a dog sniff. And, I’m pretty sure flashlights strapped to the hood might be good enough to pass Transportation Code muster. To top this all off the Court strains the Almanza test to uphold a conviction with a most superficial analysis. Why publish this?

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

Monroy v. State, 11-19-00257-CR (Tex. App.—Eastland, Aug. 5, 2021)

Issue. (1) Texas code of Criminal Procedure Article 38.072 permits the first witness to a child’s outcry of sexual abuse to testify notwithstanding the rule against hearsay; under this rule, can multiple witnesses qualify as outcry witnesses in a continuous sexual abuse trial? (2) Can a prosecutor argue inferences from the defendant’s failure to call a witness?

Facts. A child sexual assault victim outcried to her mother and the defendant’s sister simultaneously. On a separate occasion, the child outcried to her stepmother. This occurred after the child’s mother dropped her off with maxi pads and explained that the eight-year-old child had started her menstrual cycle. Stepmother questioned the child until the child admitted that defendant was sexually abusing her.  The trial court allowed both the mother and the stepmother to testify as outcry witnesses. The testimony of each witness describing what the child had told them was nearly identical. However, the stepmother concluded that digital penetration had occurred, and the child’s mother had concluded that the child made it all up. Defense counsel argued in closing that the child’s timeline rendered her accusations impossible. On the dates and times of the alleged assault the child would have either been with her mother, grandmother (defendant’s mother), or in school. The State suggested the defendant had something to hide by not calling his mother.

Holding. (1) Yes. Texas Code of Criminal Procedure Article 38.072 “provides that outcry testimony from the first person, eighteen years of age or older, other than the defendant, to whom the child makes a statement describing the alleged offense will not be inadmissible because of hearsay, subject to certain procedural requirements.” The statement must describe the offense and be more than a general allusion. Hearsay from more than one outcry witness is admissible if the witnesses testify about different events—“designation of the proper outcry witness is event-specific.” Here one witness described an outcry involving touching and the other witness described an outcry involving penetration. The evidence sufficiently established that the child outcried about different events. (2) Yes. a prosecutor may comment on the defendant’s failure to call a witness if it does not fault the defendant for his failure to testify. And the failure to produce an available witness justifies an inference that the witness would testify unfavorably. Moreover, in the context of this case, the State’s argument was invited by the defendant. The defendant argued that the victim’s story was impossible because the events occurred during a time when his mother (child’s grandmother) would have been home and had not opportunity to be home alone with the victim as depicted in her stories.

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

Garcia v. State, No. 14-190-00086-CR (Tex. App.—Houston [14th Dist.], Aug. 10, 2021)

Issue. Do two bullet wounds which missed vital organs but required three hours of medical treatment where a doctor had to check to make sure everything was okay and staple the wound shut constitute serious bodily injury?

Facts. Defendant shot at complainant twice. One bullet went through her thigh without striking any organs. Another bullet went through her breast without striking any organs. Complainant went to the hospital and received minor medical attention. The treating physician testified that he used staples to close the wounds, that staples cause scars, and that “a gunshot wound can cause serious bodily injury and even death, and based on the location of complainant’s wounds, he believes she sustained serious bodily injury.” However, the physician “did not discuss whether complainant’s injuries, if left untreated, could have created a substantial risk of death or caused death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

Holding. No. First degree aggravated assault on a family member requires the defendant to use a deadly weapon and cause serious bodily injury. Serious bodily injury is defined as “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Tex. Penal Code § 1.07(a)(46). The injury inflicted is assessed “as inflicted, not after the effects have been ameliorated or exacerbated by medical treatment.” “A gunshot wound is not per se serious bodily injury.” Here there was no evidence that bullets hit any vital organs or caused lasting impairment or disfigurement. Complainant remained standing after being shot, gathered her things, and drove away. Complainant did not receive any serious medical treatment at the hospital. Complainant testified she felt she was going to die and that she now has scars, but she did not explain why she felt that way or describe her scars. “The simple fact that some scarring occurred is not sufficient to support a finding of serious bodily injury.” Complainant’s treating physician testified that he believed complainant suffered serious bodily injury, but that opinion was not shown to be linked to the statutory definition. The physician testified no vital organs were struck and did not testify what would have happened if the complainant went untreated.

Dissent (Poissant, J.) “Complainant suffered two gunshot wounds near vital organs, bled profusely, lost consciousness, required emergency room treatment, has bullet fragments in her right thigh, has scars from the bullet wounds. The testimony of the emergency room physician who treated Complainant established both that the Complainant suffered serious bodily injury and that her injuries could have caused Complainant’s death.”

Comment. My initial instinct here was to focus on “creates substantial risk of death.” I would think any gunshot wound creates a substantial risk of death, especially when you have a doctor give the ole “little to the left or little to the right” testimony. Near the end of the opinion, however, the court does a good job string citing scary-conduct-not-so-scary-injury cases supporting this outcome.

Ex parte Estrada, No. 14-20-00758-CR (Tex. App.—Houston [14th Dist.], Aug. 19, 2021)

Issue. Does the Confrontation Clause of the Sixth Amendment prevent the State from introducing hearsay testimony adverse to the defendant at a pretrial writ of habeas corpus requesting bail reduction?

Facts. Defendant, a previous felon, was arrested when he entered a Houston P.D. “bait house” (fake drug home to lure drug burglars) with body armor and guns. His bond was initially set at $1.25 million. This is the appeal from the writ of habeas corpus whereby the trial court reduced his bail to $900,000. At the hearing on defendant’s writ, defendant presented testimony that family could post a bond amount of $25,000, that defendant maintained steady employment with ties to the community, and that he has “co-morbid conditions” increasing his risks to serious health problems should he contract COVID-19 in the jail. The State presented no testimony. The State offered and the trial court admitted a copy of the indictments and a written summary from the investigating detective over defendant’s hearsay and Sixth Amendment objections.

Holding. “The closest the Texas Court of Criminal Appeals has come to ruling on this issue was in a 1971 case, Ex parte Miles, in which the Court held a defendant possessed rights under a differently formulated provision of the Texas Constitution ‘to be confronted with the witnesses against him at [a pretrial bail hearing] before bail can be denied,’ as statements by out-of-court witnesses were not evidence substantially showing the guilt of the accused.” 474 S.W.2d 225 (Tex. Crim. App. 1971).” But this case centers on different constitutional rights and on the probative value of non-testifying witnesses, not a defendant’s confrontation rights. The Supreme Court has limited confrontation rights to instances of trial testimony and in parole hearings. Lower federal courts have denied the right to confrontation in bail proceedings. Here, the defendant erroneously relies on “his own characterization of the Texas Court of Criminal Appeals’s Miles decision,” that “an accused is entitled to be confronted with the witnesses against him at [his bail] hearing.” The Court of Criminal Appeals in Miles interpreted the Texas Constitution as it pertains to outright denial of bail, not the federal constitution’s right to confrontation.

Comment. The court distinguishes the right to confrontation in the context of parole by arguing [t]hose hearings implicate a set of rights and interests entirely distinguishable from those in play during pretrial detention hearings.” I don’t quite agree.

Thomas v. State, No. 14-19-00685 (Tex. App.—Houston [14th Dist.], Aug. 26, 2021)

Issue. Does Texas Code of Criminal Procedure Article 38.371, which permits the introduction of evidence in a domestic violence case which helps explain the “nature of the relationship between the actor and the alleged victim,” facially violate a defendant’s right to due process? 

Facts. Defendant was smoking crack with his wife (complainant). After believing she was hiding some of the crack he began to assault and choke her. The child in the room started screaming and hollering, and the neighbor called 911. Complainant testified at trial accordingly, even though she had previously given numerous sworn and unsworn statements exonerating the defendant. Defendant’s trial strategy was to challenge the complainant’s credibility. To rebut this defense, the State introduced evidence of a prior assault from 2017 involving the same couple and the defendant’s use of crack prior to commit assault. The trial court admitted this evidence pursuant to Texas Code of Criminal Procedure Article 38.371 which permits the introduction of all evidence which would permit the jury to understand the “nature of the relationship between the actor and the alleged victim” but maintains the normal rules against character conformity evidence contained in the Texas Rules of Evidence. The trial court gave a jury limiting instruction that required the jury to first determine whether the prior bad act was shown true beyond a reasonable doubt and prohibited its use as character-conformity evidence. In the punishment phase of trial, the trial court permitted the State to admit over the defendant’s objection disciplinary records from his previous period of incarceration for aggravated robbery.

Holding. No. “Generally, an accused must be tried only for the offense with which he is charged and may not be tried for a collateral crime or being a criminal generally.” Texas Code of Criminal Procedure Article 38.371 permits the introduction of all evidence which would permit the jury to understand the “nature of the relationship between the actor and the alleged victim” but maintains the normal rules which apply to character conformity evidence contained in the Texas Rules of Evidence. There is no fundamental right to a trial free from the introduction of extraneous offense evidence. Accordingly, Article 38.371 must only pass a rational basis test—it must be reasonable, not arbitrary, and rationally related to a legitimate state interest. Due to the nature of family violence cases and victims who frequently recant or don’t testify, the “nature of the relationship between the actor and the alleged victim” help “confirm the complainant’s initial—and later recanted—statements to the police, or to explain the complainant’s unwillingness to cooperate with law enforcement or prosecution.” Appellant’s contention that Article 38.371 violates due process by dispensing with any balancing consideration by the judge is without merit. Article 38.371 expressly provides that the Rules of Evidence pertaining to character conformity evidence shall not be violated – this includes a 403 balancing test.

Comment. I don’t get the use of “generally” before the sentence “an accused must be tried only for the offense with which he is charged and may not be tried for a collateral crime or being a criminal generally.”

September 2021 SDR – Voice for the Defense Vol. 50, No. 7

Voice for the Defense Volume 50, No. 7 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

Long time no see SDR fans! We got a lot of important questions answered in this month’s issue, like is there a difference between bail and bond? The Court of Criminal Appeals picked apart some Governor Abbott’s GA-13 Executive Order prohibiting automatic release for pre-indictment delay. And the Martinez holding that a DWI blood draw constitutes two searches has an interesting new twist pertaining to statutory time limits on warrant execution. The Fifth District didn’t love the issue, but I do.

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 on the online edition.

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

Borden v. United States, 141 S.Ct. 1817 (2021)

Issue. The Armed Career Criminal Act (ACCA) mandates a 15-year minimum sentence in cases of illegally possessing a gun when a defendant has three or more prior convictions for a “violent felony.” Is a criminal offense a “violent felony” if it requires a mens rea of recklessness.

Facts. The defendant pleaded guilty to a felon-in-possession charge. The Court enhanced his sentence under the ACCA. One of the predicate offenses relied on by the government was a reckless assault.

Holding. No. “An offense qualifies as a violent felony . . . if it has an element the use, attempted use, or threatened use of physical force against the person of another.” One of the keys to this conclusion is the requirement that the force must be used “against the person.” This suggests a higher degree of conduct. It “demands that the perpetrator direct his action at, or target, another individual.” Recklessness does not satisfy this requirement. Nor do reckless offenders rise to the level of culpability the legislature intended to target.

Concurrence (Thomas, J.). The key phrase here is not “against the person of another” but rather “use of physical force” which has an accepted mens rea of intentional or knowing. The ACCA has an additional clause that would include an offense that “involves conduct that presents a serious potential risk of physical injury to another.” But we erroneously found that clause to be unconstitutionally vague in Johnson v. United States, 576 U.S. 591 (2015).

Dissent (Kavanaugh, J.). See comment below – Justice Kagan pretty well summarizes it for us.

Comment. Justice Kagan throwin’ down: “In a nutshell, the dissent’s ‘term of art’ theory goes as follows: Congress took an umbrella term (“offenses against the person”) used to organize a broad set of crimes (some not even conceivably ACCA predicates); plucked out three words (“against the person”); appended them to a statutory phrase (“use of physical force”) with which they are not often associated; put the combination into a substantive criminal statute—all to signify, contra Leocal, a term of art indifferent to mens rea. No wonder the dissent is the first to make the argument. It fails at every turn.

Lange v. California, 141 S.Ct. 2011 (2021)

Issue. Does an officer always have exigent circumstances to enter a home without a warrant when pursuing a fleeing misdemeanant? 

Facts. A police officer entered the defendant’s garage after the defendant committed traffic infractions and, rather than stop when the police officer tried to pull him over, drove a short distance and pulled into his attached garage. The police officer ultimately arrested the defendant for driving while intoxicated. The state appellate court found that categorically that an officer has exigent circumstances to enter a home without a warrant if he is pursuing a fleeing misdemeanor offender.

Holding. No. Not always. An officer may enter a home without a warrant when the exigencies of the situation create “a compelling need for official action and no time to secure a warrant.” The exigent circumstance doctrine requires a case-by-case assessment. In previous cases, the court has found exigent circumstances to include: (1) the need to prevent imminent injury, (2) the need to prevent destruction of evidence, and (3) the need to prevent the suspect’s escape. In United States v. Santana, 427 U.S. 38 (2002) the court indicated a retreating felony suspect could “not defeat an arrest” that had “been set in motion in a public place.” Whether this is a categorical approach in all fleeing-felon cases is unresolved, but its rationale is not a perfect fit for fleeing misdemeanants. Misdemeanor offenses come in all shapes and sizes. Minor offenses do not constitute emergencies sufficient to justify warrantless entry. Minor offenses plus flight may rise to the level, but not always.

Comment. Misdemeanant is a fun word I am going to use now. It actually makes me wonder, should it be Missy Misdemeanant Elliot instead of Missy Misdemeanor Elliot. These are the contributions I give you to ponder.

Texas Court of Criminal Appeals

Pugh v. State, No. PD-0546-20 (Tex. Crim. App. 2021)

Issue. In a conversation where a defendant provided some information voluntarily and some information in response to un-mirandized custodial interrogation, was it improper to evaluate the harm of the inadmissible statements without regard to the admissible statement, and without regard to subsequently discovered physical evidence?

Facts. Defendant had a warrant. An officer looking to execute that warrant located the defendant, conducted surveillance, conducted a traffic stop, and arrested the defendant. During the transport to the police station and without the benefit of Miranda warnings the following conversation occurred:



APPELLANT: I’m going to be honest, sir; I got stuff in the car, man.

OFFICER LOPEZ: What do you got in the car?

APPELLANT: I got drugs in the car, and I got a small handgun.

Officers later searched defendant’s car and found heroin and a gun. The prosecution referenced this conversation in closing as proof of the defendant’s knowledge. The court of appeals reversed, finding the statements to be the product of un-mirandized interrogation and the heroin to be fruits of an un-mirandized interrogation.

Holding. Yes. There is no fruit of the poisonous tree doctrine for un-Mirandized statements leading to physical evidence. “A statement taken in violation of Miranda must be suppressed at trial, but other evidence subsequently obtained as a result of that statement need not be suppressed.” The court of appeals was incorrect to conclude that the physical evidence discovered in the car was inadmissible as fruits of un-Mirandized statements. The court of appeals was also incorrect to treat the defendant’s initial volunteered statement of “I got stuff in the car” as inadmissible when conducting a harm analysis. A proper harm analysis would have considered the statement “I got stuff in the car” together with the subsequently discovered contraband. These two pieces of evidence are sufficient to render the follow-up clarification of “I got drugs in the car, and I got a small handgun” of little value since officers properly discovered that for themselves.

Concurrence (Walker, J., joined by Newell J.). “[O]nce Appellant volunteered that he had ‘stuff in the car,’ police had probable cause to search the Impala independent of the subsequent unlawful question by Officer Lopez. . . . It does not take a legal technician to understand that Appellant was conveying that he had illegal items in the vehicle when he volunteered that he had ‘stuff in the car.’”

Comment. If you want a third point of view, I’m not 100% convinced a what-do-you-mean-type question in response to unsolicited voluntary statements rises to the level of custodial interrogation.

Ex parte Gomez, No. PD-0724-20 (Tex. Crim. App. 2021)

Issue. A trial court can require new bond when that bond is insufficient. In this context (1) is there a distinction between “bail” (as an amount set by the court) and “bond” (the value posted by the accused)? (2) Must a trial court cite a “good and sufficient cause” before finding bond insufficient (must that cause be based on changed circumstances)?

Facts. Defendant is alleged to have entered a home and strangled the complainant in her sleep. A magistrate set his bail at $25,000 for burglary and $15,000 for assault by impeding breathing. Defendant posted surety bonds in both cases. The same morning, the trial judge set new bail at $75,000 on each charge. Defendant filed a writ of habeas corpus seeking reinstatement of the original bonds. The trial court denied habeas relief and cited as authority Texas Code of Criminal Procedure Article 17.09 Section 3 (“[defendant shall not be required to give new bond unless] bond is defective, excessive or insufficient…or for any other good cause.”). The court of appeals distinguished between the concept of bail (the amount set by the court) and bond (the amount posted by the accused). In doing so, the court of appeals found that bond was not insufficient because it was posted in an adequate amount to satisfy the amount of bail. The court further found that absent changed circumstances, there exists no “other good cause” to increase bail.

Holding. (1) No. “Bail” and “bond” mean the same thing. The court of appeals was incorrect to draw a distinction and declare that bond is only insufficient when it fails to equal the amount set as bail. The court of appeals correctly cites several places throughout Article 17 supportive of this theory, but there are numerous other places throughout Article 17 where the legislature used  “bail” and “bond” interchangeably. (2) No. The insufficiency of the bond, itself, is a good and sufficient cause. Article 17.09 permits bond revoked if the original bond “is defective, excessive or insufficient . . . or for any other good and sufficient cause.” “The final clause is a catch-all, granting the trial court discretion to revoke bond for reasons not enumerated in the statute.” Moreover, Texas Government Code Section § 54.856 governing jail magistrate determinations in certain counties specifically permits the “court in which the complaint, information, or indictment is filed to review or alter the decision of the criminal law hearing officer.”

Concurrence (Yeary, J. and Slaughter, J.) no opinion.

Comment. This scenario in the future should be attacked on two fronts: (1) Texas Rule of Evidence 101(e)(3)(C) requires the application of the Rules of Evidence in proceedings to deny, revoke, or increase bail, and (2) procedural due process challenges rules mandating notice, hearing and opportunity to be heard. Combined, these rules should require non-hearsay witness testimony.

Johnson v. State, No. PD-0553-20 (Tex. Crim. App. 2021)

Issue. (1) Was it appropriate for the court of appeals to consider facts contained in an exhibit extrinsic to the official appellate record when concluding counsel rendered ineffective assistance by failing to admit said exhibit? (2) Is an attorney ineffective for attempting to admit admissible evidence and failing?

Facts. Defendant is a person who appears to have serious mental health issues. He broke into an occupied vehicle and drove off while a passenger remained inside. While doing this, he brandished a screwdriver and made the passenger feel threatened. Defendant testified at trial that he believed the truck was his because he had abandoned a similar truck in another city. Between the time he abandoned his vehicle and when he believed he discovered it again, defendant was admitted to and broke out of a hospital for psychiatric evaluation. He then hitchhiked to his parents who saw him behaving erratically. He rubbed grass on himself in the yard, he laid on railroad tracks, he walked down the freeway licking guardrails. Defendant’s stepfather testified that defendant had suffered from “schizophrenia or something” in the past. Defense counsel attempted to introduce medical records without a sponsoring witness or proper predicate. The trial court excluded the records. Counsel did not make an offer of proof. The court of appeals held “there was no plausible, professional reason for the failure of Johnson’s trial counsel to properly prepare and offer Appellant’s medical records into evidence in admissible form” and reversed defendant’s conviction. 

Holding. (1) No. “Appellant’s medical records were not filed with the trial court, nor were they part of an offer of proof or a formal bill of exceptions, and there was no motion for new trial where the records were made an exhibit. It is unclear how the court of appeals obtained these records, but it was improper to consider them.” The court’s use of these records to determine deficient performance and harm under the Strickland standard was improper (2) No. Counsel may have had a good reason attempting but failing to admit 1000 medical records. There is no evidence in the record pertaining to counsel’s rationale. “Counsel gets the benefit of the doubt” on direct appeal with a silent record. Without an opportunity to explain why he chose not to secure a sponsoring witness or lay the proper predicate for medical records, there is insufficient evidence to conclude counsel’s performance was deficient.

Comment. I don’t agree the record is insufficient to find deficient performance. Counsel decided these medical records were important enough to offer into evidence but did not do the work to get them admitted. The court suggested a hypothetical where counsel wanted the jury to see the State object to immaterial medical records– but this seems somewhat far-fetched.

Tilghman v. State, No. PD-0676-19 (Tex. Crim. App. 2021)

Issue. Does a hotel guest lose his reasonable expectation of privacy in a hotel room when hotel staff determines the guest has violated hotel policies which are not stated in a rental agreement or explicitly communicated to the guest?

Facts. A hotel manager smelled marijuana coming from Defendant’s room, so he took affirmative steps to evict him. For safety, he called the police for assistance. When the defendant and his guests would not open the door, officers entered without a warrant. Officers discovered marijuana and methamphetamine in plain view. The trial court concluded defendant lacked a reasonable expectation of privacy in the hotel room due to the hotel’s decision to evict him. The court of appeals reversed, finding “without advanced notice of eviction, Appellant maintained a reasonable expectation of privacy . . .” In reaching this conclusion the court of appeals focused on the absence of eviction policies communicated to the defendant and the failure to slide notice of eviction under defendant’s door.

Holding. “Appellant’s expectation of privacy in the hotel room was extinguished once the hotel staff took affirmative steps to evict him on suspicion that he was using illegal drugs in his room in violation of hotel policy.” Police were authorized to enter the room to facilitate the eviction. It is well established precedent that a hotel guest loses his expectation of privacy when their occupancy is scheduled to end or upon eviction. The novel question presented in this case is “[a]t what point, under Texas law, does a person lose his reasonable expectation of privacy in a hotel room if the hotel decides to evict him for violating hotel policy. Our answer is that such loss of privacy interest occurs as soon as the hotel takes affirmative steps to repossess the room.” Actual notice of policies or the attempted eviction is immaterial to this analysis as Texas law does not require actual notice for a hotel to evict a guest. The police may step into the shoes of the hotel to effectuate the eviction.

Comment. But what if you hang the do not disturb sign on the door?

State v. Mata, No. PD-0810-19 (Tex. Crim. App. 2021)

Issue. Does the New York v. Quarles public safety exception to the Miranda requirement apply to interrogations about the location of a kidnapped child?

Facts. Defendant kidnapped a child and held her for ransom. Police quickly tracked him down. While in custody, without providing him with Miranda warnings, police asked the defendant where he was keeping the child. The defendant led police to the child while under arrest.

Holding. Yes. The court of appeals improperly narrowed the Quarles exception to scenarios involving guns—a fact central to the Quarles fact pattern. “But everything the Supreme Court said in Quarles applies with at least as much force to the kidnapping of a child.” The social value of rescuing a child outweighs the social value in enforcing the prophylactic rule which deters police misconduct in custodial interrogation. And “[t]he possibility that warnings will deter a suspect from giving information leading to the rescue of a child is not worth the societal cost.”

Concurrence (Walker, J.) The Quarles public safety exception is not “categorical” and “does not turn on whether there is a missing gun, whether there is a kidnapping, or whether public safety can be generally pointed to. Instead, the exception applies when the Miranda warnings themselves can cause more harm than good: when the warnings themselves implicate public safety.”

Comment. I don’t like curtailing longstanding Fourth Amendment precedent, but if someone were holding my family member for ransom, I would beg the police not to give Miranda warnings. I think this case is right.

Wexler v. State, No. PD-0241-20 (Tex. Crim. App., 2021)

Issue. Would a reasonable person believe they are under arrest when ordered out of their home on a loudspeaker, placed in the back of a police car, then accused of knowing where drugs are inside of their home?

Facts. Houston police conducted a raid at a home. 25 officers surrounded the home, blocked off access with an armored vehicle, and ordered the occupants to exit using a loudspeaker. Once the occupants complied, the officers encountered the defendant. An interrogating officer believed defendant was involved in the drug dealing which formed the basis of the search warrant officers were then executing. Without telling defendant she was a suspect, the interrogating officer placed the defendant in the back of a patrol car and told her “We have a search warrant. Tell me where the narcotics are. It will save us some time doing the search. We’re going to find it no matter what.” Defendant complied and told the interrogating officer where to find 25 grams of methamphetamine, marijuana packaged for sale, drug paraphernalia, guns, and ammo. At trial the defendant objected to the introduction of her statements to the interrogating officer given without the benefit of Miranda warnings or those required by Texas Code of Criminal Procedure Article 38.23. The trial court overruled defendant’s objection and the jury convicted. The court of appeals concluded that the defendant was only temporarily detained and affirmed the trial court’s determination that Miranda and Article 38.22 were inapplicable.

Holding. No. The warning requirements of Miranda and Article 38.22 are triggered by custodial interrogation. They serve as a prerequisite to admissibility only when the defendant satisfies an initial showing that she was under arrest when responding to interrogation. The relevant inquiry in determining Miranda/38.22 custody is “whether, [objectively] under the circumstances, a reasonable person would have believed that her freedom of movement was restricted to the degree associated with a formal arrest.” The restriction upon freedom of movement must be more than that associated with a mere investigative detention. Here, the detention was brief, the investigation was efficient, defendant was not removed from the scene nor was she told she could not leave. No evidence shows defendant was aware of the overwhelming police presence which may have given rise to a subjective belief of arrest. 

Dissent (Walker, J.). “I cannot agree [with the majority]. Police commanded her to come out of the residence, placed her in the back of a police car, and told her they were going to find drugs and just tell the police where the drugs were. . .  Appellant was in custody.”

Comment. The court distinguishes State v. Ortiz, 382 S.W.3d 367 (Tex. Crim. App. 2012). In part the court pointed to the fact that the court had been provided with body camera footage of the entire encounter in Ortiz such that it could conclude defendant was aware of circumstances giving rise an arrest. It is frustrating to see here the absence of a body camera cut against the defendant. I think Walker has it right – notwithstanding the evidence the majority believes the defendant did not prove, there should be enough to find an arrest occurred here.

Ex parte Lanclos, No. PD-0243-21 (Tex. Crim. App. 2021)

Issue. Article 17.151 of the Code of Criminal Procedure requires a court to release a defendant after certain periods of pre-indictment delay either: (1) on a personal bond, or (2) a bond he can afford. Does the Governor Abbott’s GA-13 order suspending Article 17.151 “to the extent necessary to prevent any person’s automatic release on personal bond . . .” prohibit a court from fulfilling its duty to instead reduce bond to an amount the defendant can afford?

Facts. After 90 days of pretrial detention without indictment, defendant filed a writ of habeas corpus pursuant to Texas Code of Criminal Procedure Article 17.151 (mandating release of inmates held without formal charge after certain periods of delay). He sought a reduced bond he could afford. The trial court declined to grant a personal recognizance bond or reduce defendant’s bond to an amount he could afford. The court of appeals affirmed the trial court’s denial of relief, citing defendant’s failure to present any evidence of a bond amount he could afford.

Holding. “Article 17.151 is mandatory; if the State is not ready for trial within 90 days of the beginning of the defendant’s detention, the defendant accused of a felony must be released on personal bond or by reducing the bail amount. Without an indictment, the State cannot be ready for trial under Article 17.151. Under those circumstances, the judge has only two options: either release the accused on personal bond or reduce the required bail amount. If the court chooses to reduce the amount of bail required, it must reduce it to an amount that the record reflects the accused can make.” The State’s argument that the Governor has suspended Article 17.151 is only partially correct. The Governor’s GA-13 Executive order provides: “Article 17.151 . . . 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.” This language suspends the release of defendants on personal bond, but not release on bonds they can afford. The State’s arguments that statutory exceptions to release under Article 17.151 are unsupported by the record. 

Dissent (Yeary, J.). To secure his release for pre-indictment delay under Article 17.151 the accused has the burden to show the trial court a bail amount he could afford.

Comment. The court acknowledges the Executive Order GA-13 (suspension of 17.151) workaround recognized in the previous SDR summary of Ex parte Montes. No. 04-20-00337-CR (Tex. App. San Antonio, Feb. 17, 2021)(not designated for publication). Without saying so, it appears the court places the burden on the trial judge to inquire and ascertain the amount of bond the defendant could post to secure release.

Anderson v. State, No. PD-0279-20 (Tex. Crim. App. 2021)

Issue. Does a pro se incarcerated defendant perfect an appeal by placing his notice of appeal in the mailbox within the deadline to perfect appeal, but omits the words “district clerk” on his mailing?

Facts. Defendant mailed his notice of appeal within the statutory deadline to file notice of appeal. He addressed the mailing to the trial court: to “Dallas County Court #265.” The clerk later received this mailing and filed it a couple weeks after the notice of appeal deadline.

Holding. No.

Dissent (Yeary, J.). Historically a pleading addressed to the proper trial court has been construed as a pleading addressed to the proper clerk. The filing should have been deemed filed on mail receipt within 10 days after the deadline (mailbox rule) or the moment he turned the filing over to prison authorities (prisoner mailbox rule).

Dissent (Walker, J.). Regardless of how an envelope is addressed, if it contains a filing, it is deemed filed in the appropriate clerk’s office the moment it arrived in the custody of the jail or prison. The envelope was better addressed than in other cases where the Court has found an attempt to file sufficient.

Comment. I think the tie should go to the indigent, lawyerless, pro se, incarcerated, inmate trying to perfect an appeal without the help of anyone. I am disheartened by technocratic opinions like this which deny access to the court to an individual who is trying his best without a lawyer.

Herron v. State, No. PD-0853-19 (Tex. Crim. App. 2021)

Issue. When a parolee sex-offender is released from prison and obligates himself to residing county X in pre-release paperwork, does the parolee commit the offense of failure to register as a sex offender in county X when he never physically arrives in that county?

Facts. The defendant was released from prison and ordered to check into a halfway house in El Paso County. Because his offense required registration as a sex offender, Defendant signed forms on his release acknowledging his obligation to register with local law enforcement in El Paso County. At a Greyhound station, and while prison officials were obtaining a bus ticket for him, the Defendant absconded. He never reported to the halfway house in El Paso County. He never registered with a local law enforcement agency in El Paso County. He was later apprehended in Aransas County. At trial nobody could testify where the Defendant actually lived during his period of absconsion. The trial court convicted. The court of appeals reversed and rendered a judgment of acquittal on the State’s failure to sufficiently prove with which of the possible law enforcement agencies with jurisdiction over the halfway house the Defendant was required to register.

Holding. No. “The registration requirement of Chapter 62 is violated only when an individual resides or intends to reside in a particular location . . . . Because it was uncontested that Appellant never physically arrived in El Paso during the relevant time period, he could not have violated an obligation to register there.” The fact that the obligation is triggered after a specified period following the person’s arrival in the jurisdiction indicates that the person’s physical presence in the jurisdiction is required. As it pertains to parolees taking up residence upon release from prison, Article 62 “contemplates situations in which the individual does not move to his expected residence after release.” This supports the conclusion that a parolee does not commit an offense in the county where he announced he would reside when he fails to physically appear in that jurisdiction.

Comment. The Court makes very clear that the defendant should be prosecuted in Aransas County.

Ex parte Sanchez, No. PD-1039-20 (Tex. Crim. App. 2021)

Issue. May a court of appeals, when considering the appeal of an Article 11.072 writ, review evidence de novo when the trial judge hearing the writ did not preside at the trial which resulted in the complained-of conviction?

Facts. Defendant was convicted of failing to stop and render aid when he purportedly collided with a police vehicle involved in a police chase of an unrelated motorist. Defendant contended that he swerved to avoid another vehicle that darted in front of him. The question at trial was whether the defendant actually collided with the police vehicle and whether the defendant was aware the collision occurred. Defense counsel at trial did not call the passengers in defendant’s vehicle as witnesses, but on habeas, their affidavits were presented. Each indicated that defendant swerved to avoid a car that darted in front of him, and none were aware of a collision. The trial court rejected this evidence and denied habeas relief. The court of appeals reversed, applying a de novo standard of review. In the view of the court of appeals, de novo review was appropriate because the habeas judge was not the same judge who heard the trial of the underlying criminal cause and thus “not in an appreciably better position than the reviewing court to resolve the matter.”

Holding. No. “Unlike Article 11.07 cases where [the Court of Criminal Appeals] is the ultimate finder of fact, in Article 11.072 cases, the trial court is the sole finder of fact, and the reviewing court acts only as an appellate court.”

Comment. There are places where the implementation of common law rules pertaining to standard of review and error preservation become untethered from the principles underpinning their implementation. This seems to be one of them. Deferential standards of review derive from the presumption that the trial judge was in a better position to review and evaluate evidence. That simply is not true here.

1st District Houston

Chaves v. State, No. 01-19-00524-CR (Tex. App.—Houston [1st Dist.], Jun. 3, 2021)

Issue. Must a trial court grant a mistrial when the clerk discloses she skipped over a venire member when calling off “the first twelve names on the lists?” to sit on the jury?

Facts. After the State and the Defendant made challenges for cause and exercised their peremptories, the trial court called twelve members of the venire to sit on the jury. The trial court asked whether either side had objections to the jury and both responded they did not. The next day, before swearing in the jury, the trial court informed the parties that the clerk of the court had skipped over an individual who had not been struck by either party. This resulted in the trial court seating the wrong juror—one not among the first twelve unstruck veniremembers. The trial court denied defendant’s motion for mistrial.

Holding. No. Article 35.26(a) requires the clerk to call the first 12 names on the venire list who have not been struck for cause or removed by a peremptory challenge. However, the clerk’s clerical error in skipping over one of these jurors and seating the 13th juror still complied with the “spirit and intent” of Article 35.26(a). The “spirit and intent” analysis is consistent with other intermediate courts addressing the same issue. The use of “shall” in defining the clerk’s duty as “shall . . . call off the first twelve names . . .” isn’t a hard “shall.” Also, defendant cannot show harm in the seating of the improper juror. The juror who the trial court sat was within the zone of potential jurors who could have been seated and the defendant did not exercise a peremptory strike on this juror. The court can only deduce from this that the defendant would have found this juror acceptable but for the fact that this juror was erroneously called by the clerk.

Comment. This is a tough analysis. I agree with the but for analysis of the court: but for learning the fact that this juror was wrongfully counted among the first twelve the defendant wouldn’t have a complaint. But it isn’t like the defendant tried to sandbag everyone by waiting until trial wasn’t going well for him. He raised his complaint the moment he learned about it and before the jury was sworn.

Ex parte Mora, No. 01-17-00661-CR (Tex. App.—Houston [1st Dist. Jul. 27, 2021)

Issue. Can a court of appeals rely on an unpublished opinion of the Court of Criminal Appeals holding that the 2017 version of Texas’s revenge porn statute does not violate the First Amendment.

Facts. Defendant was charged under the 2017 version of Texas’s revenge porn statute. He moved to quash the indictment and filed an application for writ of habeas corpus challenging the statute facially under the First Amendment. The trial court granted both.

Holding. Yes. Sort of. Last month the Court of Criminal Appeals held the 2017 version of the Texas revenge porn statute was not facially violative of the First Amendment. Ex parte Jones, No. PD-0552-18 (Tex. Crim. App. 2021). The Jones court grafted some additional mens rea requirements onto the statute to its unconstitutional interpretation. Rule 77.3 of the Texas Rules of Appellate Procedure prohibit relying on Jones as precedent because it is unpublished. However, this rule is not consistently followed and the Court of Criminal Appeals itself has once held that unpublished opinions can be cited to demonstrate how the court “interpreted and applied constitutional law. Alford v. State, 358 S.W.3d 647 (Tex. Crim. App. 2012). Accordingly, this court adopts the reasoning in Jones in this case with indistinguishable facts.

Comment. “The rules of procedure prohibit us from relying on the Court’s unpublished opinion in deciding this appeal. Thus, our dilemma: what is a court of appeals to do when the Court of Criminal Appeals has spoken on an issue but effectively forbids us from repeating what it said?” I have a solution, rule for the defendant and force them to speak on it again.

Monjaras v. State, No. 01-19-00608-CR (Tex. App.—Houston [1st Dist. Jul. 27, 2021)

Issue. Is a defendant detained when officers greet him, ask to search his bag, pat him down, and ask him questions?

Facts. Officers encountered the defendant while patrolling an apartment complex they describe as a high crime area. When the defendant saw officers, he immediately looked down. The officers turned around to observe defendant again and he had disappeared.  Eventually the same officers encountered defendant a second time. These officers parked their vehicle without activating emergency lights or blocking defendant’s path. They greeted defendant with “good morning. How you doing, sir?” Appellant spoke freely with the officers. Officers made several requests of the defendant: for identification he could not produce, for use of his fingerprints in their fingerprint identification device, for consent to search him and his backpack. The officers’ language and tone of voice did not indicate mandatory compliance with their requests. Defendant consented to a pat down search and a search of his backpack. At first, the officer conducting the search did not discover a firearm, but when he discovered bullets in defendant’s backpack he patted defendant down again. This officer discovered a gun and a fight ensued. 

Holding. No. Officers did not draw their weapons, speak in a tone indicating mandatory compliance with requests, their posture and where they chose to stand were not oppressive. A pat down and a search of a backpack does not convert a voluntary encounter into an investigative detention.

Dissent (Goodman, J.). After the first search this became a detention. When the defendant started emptying his pockets for officers, their requests became commands and instructions which were repeated multiple times when the defendant did not comply with their “requests.” Officers instructed the defendant to place his hands in front of his body and eventually escalated to making physical contact with him. 

Comment. Both officers swear they would not have chased the defendant if after their consensual encounter he decided to take off running. They would have just watched him run away. I would be committing perjury if I stated under oath I believe that. 

2nd District Fort Worth

Fuller v. State, No. 02-20-00101-CR (Tex. App.—Ft. Worth, Jun. 3, 2021)

Issue. When the State causes 34 months of delay waiting on DNA testing and a defendant asserts speedy trial rights but ultimately acquiesces in trial resets, is a defendant’s right to speedy trial denied?

Facts. This is a substitute opinion from a case appearing in the May 2021 edition of the Significant Decisions Report. Defendant was convicted by a jury of capital murder. The facts at trial showed the defendant and co-defendant entered the home of the victim in the evening of October 9, 2016, shot and killed the homeowner and a guest, then returned the next day, seemingly to clean up the scene. A car chase ensued following the defendant’s flight from the victim’s home on the second day and the defendant was captured. On him was a firearm matching the caliber of the bullets used to kill the victims and $4,000 in cash. After his arrest, the defendant made several inculpatory statements on jail phone calls during the pendency of his case. The case then proceeded as follows:

    • December 2016 – indicted
    • December 2016 – State and defendant announced ready for trial
    • November 2017 – potentially favorable defense witness died
    • May 2018 – first trial setting (without objection from defendant)
    • March 2018 – State discovered untested DNA and requests continuance
    • Unknown – second trial setting
    • November 2018 – defendant demanded then withdrew speedy trial demand
    • February 2019 – third trial setting
    • February 2019 – DNA testing incomplete State and defendant announced not ready
    • March 2019 – defendant reasserted his desire for speedy trial
    • March 2019 – State represented DNA testing will be complete by July 2019
    • October 2019 – fourth trial setting
    • July 2019 – State represented DNA testing would be complete by August 2019
    • October 2019 – defendant requests continuance based on newly provided evidence
    • March 2020 – fifth trial setting
    • February 2020 – defendant urged motion to dismiss for speedy trial violation

Holding. No. Speedy trial claims are analyzed using the Barker v. Wingo factors: (1) length of delay, (2) reason for delay, (3) defendant’s assertion of the right, and (4) prejudice. 407 U.S. 514. Here, 34 months of delay is more than sufficient to trigger consideration of the remining Barker factors. The three years of delay awaiting laboratory results from DNA testing was unreasonable, but it was the result of negligence, not deliberate conduct.  Both the delay and the reason for delay weigh against the State. However, the remaining factors weigh against the defendant. The defendant did not firmly insist on a speedy trial until a month prior to his trial. He agreed to or failed to object to trial resets during the pendency of the case. Prejudice is lacking, too. This case involves “compelling evidence of Fuller’s guilt.” Neither the death of a witness prior to the defendant’s assertion of his speedy trial right nor an isolated memory lapse by the investigating detective change this.

Comment. This is a thorough and straightforward application of the Barker factors. However, I maintain my previous comment. There are two elements to the reason for delay here: (1) the laboratory backlog, and (2) the prosecutorial decision to wait for the laboratory results. The backlog is not the prosecutor’s fault—it is not deliberate—but the decision to wait on (and make the defendant wait on) lab results is, by definition, deliberate. In some cases it may be excusable based on necessity, but the court here drives home the point how unnecessary those lab results were based on the “compelling evidence of Fuller’s guilt.”

Kingsbury v. State, No. 02-19-00239-CR (Tex. App.—Fort Worth, Jun. 10, 2021)

Issue. (1) Can a domestic violence expert testify to the behaviors of domestic violence victims, generally, as an explanation for why the specific victim in a case recanted on the witness stand?

Facts. Defendant threatened to kill his pregnant girlfriend while brandishing knives in his hands. At trial the victim testified that there was not an assault and that there was instead a mutual struggle. So, the State sponsored a “domestic violence expert” to impeach the victim and explain how battered women think and behave. In the punishment phase, the trial court admitted evidence of prior convictions. Because the prior conviction evidence arose from a probation revocation, that evidence contained references to other inadmissible evidence of unadjudicated offenses which triggered the revocation. The State redacted references to the inadmissible offenses. The defendant objected to their admission as redacted.

Holding. (1) Yes. Three conditions must be met before expert testimony is admissible under Rule 702: (1) the expert must be qualified, (2) the evidence must be reliable, and (3) the evidence must be relevant. The behavior of domestic abuse victims is a soft science. Here, the expert was well-qualified both in education and in experience. Soft science reliability is measured by the legitimacy of the claimed scientific field and whether the testimony is tailored to and guided by principles pertaining to that field. Here the expert met the soft science reliability standard—she testified about the generally accepted principles of the cycle of violence and power-and-control wheel. Given the evidence presented regarding a specific history of abuse, the recanting of the victim on the witness stand, and the unlikelihood that the jury would have familiarity with how domestic violence victims behave, the trial court did not err in finding that the behaviors the expert has seen exhibited by other domestic violence victims would be helpful to the jury in this case.

Evans v. State, No. 02-20-00097-CR (Tex. Crim. App.—Ft. Worth, Jul. 15, 2021)

Issue. (1) To obtain post-conviction DNA testing under Chapter 64 of the Code of Criminal Procedure, a defendant must show that the requested DNA testing would produce exculpatory results. Can the defendant satisfy this burden by merely pointing to issues with the laboratory maintaining proper chain of custody? (2) Statutorily, an inmate may make a declaration in lieu of providing an affidavit when required to do so by statute. Is a declaration that omits an affirmation of truth “under the penalty of perjury” a sufficient declaration?

Facts. Defendant was convicted of capital murder and sentenced to life. Defendant’s theory at trial was that two other individuals committed the murder using all of the instrumentalities of the offense the State sought to link to him. Those items were tested for DNA which linked them back to the victim in the case. After his trial, the Fort Worth Police Department learned that two gun cartridges collected as evidence had been inadvertently swapped and mispackaged. The defendant seized on this error as a basis for his Chapter 64 motion for post-conviction DNA testing. He claimed it as a basis to believe that proper DNA testing would exonerate him.

Holding. (1) No. One of the requirements for entitlement to post-conviction DNA testing is that ‘the trial court must find that the item’s chain of custody was sufficiently reliable to establish that the item has not been tampered with.” The foundation of the defendant’s request is that the mishap involving mispackaging should lead the court to believe that the chain of custody was so bad that it produced unreliable results. (2) No. Another requirement is that the movant accompany a request for post-conviction DNA testing with an affidavit confirming the truth of the assertions contained in the motion. “Generally, an inmate may use a declaration in lieu of an affidavit . . .” The defendant included an unsworn declaration but “did not include ‘the only phrase that the Legislature actually mandates should be included in such declarations: that the declaration was 
‘under penalty of perjury.’” This technical failure on the part of the defendant was a sufficient basis for the trial court to deny the defendant’s requested relief.

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

In re Garcia, No. 04-21-00142-CR (Tex. App.—San Antonio, Jun. 16, 2021)

Issue. Does a trial judge have a ministerial duty to rule on a post-trial discovery motion more than a decade after conviction?

Facts. Defendant pleaded guilty to an offense in 2009 and was sentenced to 40 years imprisonment. On January 19, 2021, he filed a motion for post-trial discovery under the Michael Morton Act, Texas Code of Criminal Procedure Article 39.14. With his motion he included a letter requesting the clerk forward his motion to the judge. On January 28, 2021, defendant sent another letter directly to the judge requesting a ruling on his motion. The trial judge declined or failed to rule.

Holding. Yes. The trial court has a ministerial duty to rule on a discovery motion, even one filed more than a decade after trial. Mandamus relief is appropriate when a government actor declines to perform a ministerial act and the defendant has no other adequate remedy at law. There being no other adequate remedy, mandamus was appropriate here.

Comment. I am normally critical of the heavy-handed application of technical rules against pro se defendants. But jurisdiction is not a mere technical rule, and I’m not confident the trial court has jurisdiction to grant an order for discovery in this case. The tug-of-war in my head on this issue is between the dilemma of trial courts having jurisdiction into perpetuity (infinite jurisdiction) and having at least enough jurisdiction to enforce Article 39.14(k) which provides:

(k) If at any time before, during, or after trial the state discovers any additional document, item, or information required to be disclosed under Subsection (h), the state shall promptly disclose the existence of the document, item, or information to the defendant or the court.

In the State’s motion for rehearing they explain “[l]ike Chapters 11 and 64 of the Code of Criminal Procedure, the Michael Morton Act provides post-mandate jurisdiction to hear motions – but only for those defendants convicted in 2014 or later .” Sounds like they are conceding trial court jurisdiction into perpetuity.

Cameron v. State, No. 04-19-00245-CR (Tex. App. San Antonio, Jun. 30, 2021)

Issue. (1) Does the due process doctrine of in pari materia require the State to prosecute a person who hires a hitman under the Criminal Solicitation statute and not under the Murder statute as a party to the hitman’s offense? (2) Are insinuations about leniency in exchange for honesty and false assertions that co-conspirators have already implicated an interviewee the type of psychologically coercive tactics which render a confession involuntary? (3) Is an indigent defendant entitled to the appointment of an expert in police interrogation tactics?

Facts. Defendant was convicted of murder. The State presented evidence that she “concocted a plot to murder her former partner’s and son’s father” to collect insurance proceeds. The plot involved three individuals. Defendant was convicted under the law of parties for her conduct in soliciting the other individuals to commit the murder. In addition to challenging the legitimacy of the State’s charging decision, the defendant challenged the lawfulness of her confession. Defendant was interrogated by two officers at the police station in a small room but was free to leave the room during the interrogation and ultimately permitted to go home even after confessing to her involvement in soliciting the murder. The interrogating officer lied to the defendant about how much they knew about the offense, advised that honesty would help her with her case, made references to the defendant’s family, and falsely implied that the hitman was in custody and had already implicated her.

Holding. (1) No. “Two penal provisions are in pari materia if one provision has broadly defined an offense, and a second has more narrowly hewn another offense, complete within itself, to proscribe conduct that would otherwise meet every element of, and hence be punishable under, the broader provision.” Here the criminal solicitation statute is not a more narrowly hewn version of the murder statute. Both statutes contain elements the other does not. “Murder requires death of an individual.” “Criminal solicitation requires a second person be involved in the commission of the offense.” (2) No. The promise of leniency was a vague insinuation that honesty would help with the defendant’s case and devoid of any specifics about charging decisions or possible sentences. There is no evidence the defendant was “overborne as the result of any promise.” (3) No—at least not here. The court considers three factors in determining whether to appoint an expert: (1) the private interest that will be affected by the action of the State, (2) the State’s interest that will be affected if the safeguard is provided, and (3) the probable value of the additional procedural safeguards that are sought and the risk of erroneous deprivation of the affected interest if those safeguards are not provided. The defendant’s (private) interest in the accuracy of the proceeding weighs more heavily than the State’s interest in judicial economy, but the third factor is the weightiest. The defendant has the burden to show that the failure to appoint an expert would create a risk of an incorrect verdict and should support their motion with affidavits or other evidence supportive of the theory, explain why the expert would be helpful or why there is reason to question the State’s expert or proof. Here defense counsel’s assertion that he required an academic and sociological analysis of interrogation tactics was insufficient.

Comment. The narrowly hewn test should be measured by a hypothetically correct jury charge, in my opinion. The elements of the defendant’s offense in this case did, in fact, require a second person to be involved. And while criminal solicitation does not require the death of another individual – it contemplates it: “[i]t is no defense to prosecution under this section that: (4) the felony solicitated was actually committed.” Tex. Penal Code 15.03(c). The court notes that Criminal Solicitation is a inchoate offense and Murder is not. But doesn’t party liability convert it to one? 

5th District Dallas

Turner v. State, No. 05-19-01328-CR (Tex. App.—Dallas, Jun. 9, 2021)

Issue. (1) Can evidence sufficiently support a continuous sexual abuse of young child conviction when the trial court instructs the jury to consider multiple theories of sexual abuse, some of which are wholly unsupported by the record? (2) Did the trial court improperly comment on the weight of the evidence by instructing the jury that “penetration is complete however slight?”

Facts. Defendant was convicted of continuous sexual abuse of a young child. Defendant sexually abused his six-year-old and seven-year-old granddaughters. He was caught by his wife on one occasion. Both children identified acts of digital penetration and sexual contact on multiple occasions over the course of several years. A nurse examiner confirmed injuries to one of the granddaughters consistent with the accusation. In the application paragraphs of the jury charge, the court instructed the jury they could convict on five theories of sexual abuse. Two of those theories were unsupported by any evidence in the record: penetration or sexual contact of the anus. Defendant’s trial strategy as to the remaining bases of conviction included attacking the credibility of witnesses and presenting a theory that his actions were involuntary due to his diabetic low blood sugar.

Holding. (1) No. The verdict was non-specific. There is no basis to conclude the jury relied on erroneous theories. The evidence shows many acts of sexual abuse a period of time exceeding 30 days. (2) No. “The State’s brief concedes the language was erroneous. However, mandatory precedent from 1937 establishes that such language is (i) analyzed as an instruction and (ii) not erroneous.” The Court of Criminal Appeals has condemned and reversed in cases where the trial court defines an anatomical threshold constituting penetration. Greene v. State, 476 S.W.3d 440 (Tex. Crim. App. 2015). But here the trial court did not provide any specific threshold. Even if the instruction was erroneous, the defendant was not egregiously harmed by it.

Dissent (Partida-Kipness, J.). Greene v. State overruled by implication the 1937 precedent permitting the trial court to instruct a jury that “penetration is complete, however slight.” Two courts of appeal have recognized this. Submission of the penetration definition was erroneous but not egregiously harmful.

Comment. I have no issue with the outcome in this case – the evidence presented by the State seems substantial, and the likelihood the jury charge quirks resulted in an unjust result are far too remote. But the case highlights some frustrating realities about our standards of review. Our disproportionate standards for appellate review juxtaposed in this case is what frustrates. We don’t analyze the jury’s thought process unless we need to analyze the thought process to conclude they didn’t think something that would be bad for the verdict.

State v. Patel, No. 05-20-00129-CR (Tex. App.—Dallas, Jul. 2, 2021)

Issue. (1) May a trial court grant a motion to suppress on grounds not raised by a defendant’s motion to suppress?  (2) Is the State’s failure to present evidence of a return and inventory a proper basis for granting a motion to suppress evidence? (3) Must the State show that blood was both drawn and analyzed within the statutorily prescribed three-day period required for execution of a search warrant?

Facts. Defendant was arrested for driving while intoxicated. The arresting officer applied for a warrant and articulated the grounds for his belief the defendant was intoxicated. A magistrate signed a warrant authorizing a blood draw but not blood testing. The warrant further required the officer to execute the warrant within six hours of its issuance. The defendant’s blood was drawn seven minutes after the magistrate issued the warrant, however the laboratory did not test the blood until four days later. Defendant filed a motion to suppress. At the hearing, both the State and the defendant stipulated to the validity of the search warrant and focused arguments on the validity of laboratory testing not authorized by the warrant. Despite the stated scope of the motion, the trial court suppressed the State’s evidence base on: (1) the untimely execution of the search – namely, the laboratory testing conducted outside of the statutorily required three-day execution period under Texas Code of Criminal Procedure 18.07(a), and (2) the failure of the officer to make a timely return and inventory of the executed search warrant. The trial court did not address the implications of the dual-search-dual-authorization issue presented by the DWI blood draw and subsequent test. At the time of the hearing, this issue was an unresolved issue under State v. Martinez, 570 S.W.3d 279 (Tex. Crim. App. 2019). However, during the pendency of this appeal, the Court of Criminal Appeals issued its opinion in Crider v. State effectively resolving the dispute in favor of the State, 607 S.W.3d 305 (Tex. Crim. App. 2020).

Holding. (1) No. “The State has no burden at a pretrial suppression hearing until the defendant alleges a theory of suppression on which the State bears the burden of proof. . . . As a result, the State’s burden of production and persuasion with respect to such issues was never triggered.” (2) No. Texas Code of Criminal Procedure Article 18.10 which provides the requirement for an inventory and return specifically prohibitions suppression of evidence for failure to comply. (3) No. Texas Code of Criminal Procedure Article 18.07(a)(3) requires “execution of a search warrant” within three days of its issuance. But “execution” is the seizure of the evidence, not the subsequent searches. Here, the blood was drawn, and therefore the warrant executed, within three days.

Comment. Despite the issue not being properly raised below, the court nonetheless rejects the argument that the blood must be tested within the three-day period for warrant execution mandated by Article 18.07. The court cites its own opinion in State v. Jones, 608 S.W.3d 262 (Tex. App.—Dallas, 2020) as authority for a conclusory proposition that a search warrant is fully executed upon the seizure of the evidence. This is not correct. The definition of execute is “to carry out fully: put completely into effect. “EXECUTE.” Merriam-Webster Online Dictionary. 2018. (1 August 2020). A search warrant is not fully carried until it can no longer be pointed to as the justification for conducting a search or a seizure. And Crider did nothing to disturb the Martinez holding that “when the state itself extracts blood from a DWI suspect, and when the state conducts the subsequent blood alcohol analysis, two discrete ‘searches’ have occurred for Fourth Amendment purposes.” Martinez merely held that the second search is impliedly authorized when the police have asked a magistrate to issue a warrant to draw blood. This issue has legs. Article 18.07 says get it done within three days. Because this is a State’s appeal, the defendant should have an opportunity to re-litigate. He should. And then he should take this up to the Court of Criminal Appeals.

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 Owais, No. 07-20-00245-CR (Tex. App.—Amarillo, Jun. 16, 2021)

Issue. (1) When the State offers and the defendant rejects a misdemeanor reduction, is counsel ineffective for failing to advise a defendant that a felony crime of violence will result in automatic deportation? (2) Is counsel ineffective for failing to advise his client to pursue an appeal in order to prevent ICE from using defendant’s “final conviction” against him in deportation proceedings?

Facts. Defendant was driving his car on the sidewalk at Texas A&M. A police officer on foot tried to stop him and he kept on driving. Eventually another officer in a squad car pulled him over and asked him why he didn’t stop for the previous officer. Defendant stated he was scared and nervous and knew he was not supposed to be driving on the sidewalk. The State offered to reduce his offense from a third-degree evading to a misdemeanor evading charge. Counsel advised defendant that his case had triable issues, advised defendant to go to trial until the state offered a misdemeanor reduction, then advised defendant to accept the plea bargain offer. Prior to trial, counsel advised defendant to discuss potential immigration consequences with his immigration attorney and advised defendant generally that evading arrest in a motor vehicle could carry adverse immigration consequences. After a jury convicted defendant, counsel advised defendant of his right to appeal but also advised there were unlikely to be any issues to raise on appeal. The jury convicted the defendant and ICE initiated deportation proceedings based on his conviction which triggered automatic deportation as a “crime of violence.”

Holding. (1) No. When immigration consequences are succinct and straightforward, counsel has a duty to advise the defendant about the immigration consequences of making a particular decision in a criminal case. Padilla v. Kentucky, 559 U.S. 356 (2010). However, here, defendant claims his deportation proceedings arise from the instant felony evading arrest conviction – an offense which renders him automatically deportable as a “crime of violence.” In 2019 the U.S. Supreme Court found the federal definition for “crime of violence” unconstitutionally vague. Sessions v. Dimaya, 139 S.Ct. 2319 (2019). Thus, “the immigration consequences of a conviction for evading arrest in a motor vehicle are ‘not succinct and straightforward . . . .” (2) No. “Counsel is constitutionally required to consult with the defendant about an appeal when there is reason to think that a rational defendant would want to appeal, such as when there are apparent nonfrivolous grounds for appeal, or when the defendant has reasonably demonstrated to counsel his desire to appeal.” Only after his appeal deadline expired and immigration proceedings were initiated did defendant articulate his desire for an appeal on the basis of insufficient evidence. Evidence was sufficient. Defendant admitted to the offense. 

Comment. First, what did counsel do to be named specifically in this opinion aside from give good legal advice? Second, if the federal definition for crime of violence is unconstitutionally vague, how did he get deported for a crime of violence conviction? Which brings me to my third beef, I am not an immigration expert and maybe that is why I don’t know the answer to my second question. Maybe we should all just file Ake motions for immigration experts in cases with potential immigration consequences.

Teague v. State, No. 07-20-00074-CR (Tex. App.—Amarillo, Jun. 24, 2021)

Issue. Is evidence sufficient to convict a defendant as a party to aggravated sexual assault without a showing that the defendant intended for his co-defendant to inflict serious bodily harm?

Facts. Defendant held a woman in his trailer against her will, raped her, captured her after an attempted escape, returned her to the trailer, chained her to a toilet and helped codefendants rape and sodomize her repeatedly until she suffered serious bodily injury.

Holding. Yes. Defendant concedes he is party to the offense of sexual assault, but not aggravated sexual assault. Defendant relies on Nava v. State, 415 S.W.3d 289 (Tex. Crim. App. 2013) for the proposition that “the intent to promote or assist element of party liability required the State to prove that appellant intended the result of victim suffering serious bodily injury.” Nava is a felony murder case where a defendant entered a conspiracy to commit a theft and a co-defendant shot and killed an undercover officer. Nava’s conviction was reversed because “combining the language of [the party liability statute] with the felony murder statute, then, requires an intent to promote or assist, not only the commission of the underlying felony and the unreasonably dangerous act, but also the result of the offense of felony murder—the death of an individual.” The court here distinguishes Nava. In Nava the underlying felony offense was wholly unrelated to the offense the defendant was held liable for at trial. Here, the victim’s serious bodily injury was a foreseeable result of the underlying offense of sexual assault. The doctrine of transferred intent provides “if a defendant intends to promote or assist the commission of one type of sexual assault, but his co-defendant commits a different type of sexual assault, that difference does not shield him from party liability . . .”

8th District El Paso

Ex parte Cardenas, No. 08-21-00034-CR (Tex. App.—El Paso, Jul. 21, 2021)

Issue. Because Governor Abbott has suspended the provision of Article 17.151 of the Code of Criminal Procedure which mandates a personal bond for pre-indictment delay, must a trial judge instead set bond at an amount that a detainee can post to secure his or her release?

Facts. Defendant was arrested on ten charges relating to sexually abusing a child. He was unable to post his bail and the State did not indict him within 90 days. Defendant filed a writ of habeas corpus demanding release pursuant to Article 17.151 (mandatory release for pre-indictment delay). The district court denied relief and cited Governor Abbott’s GA-13 Emergency Order suspending Article 17.151.

Holding. Yes. Article 17.151 requires release on personal bond or an amount the defendant can afford to post. Emergency Order GA-13 only suspends the part of Article 17.151 – the part mandating release on personal bond. A judge still has a ministerial duty to set bond in an amount the detainee can afford if the State has not obtained an indictment in the periods specified in that Article. This issue was decided by the Court of Criminal Appeals last month in Ex parte Lanclos, No. PD-0243-21 (Tex. Crim. App. 2021). “Due to [Lanclos], we need not address whether GA-13 is constitutional or valid.”

Comment. Yes. Courts actually do need to decide whether GA-13 is constitutional or valid. This is an abdication of responsibility by our judicial system. Paying money to secure release when a statute passed by our legislature says you pay no money to secure release is an injury worthy of remedy. Injuries are remedied in courts. Yet, to date, no court wishes to address it.

9th District Beaumont

Hogue v. State, No. 09-19-00234-CR (Tex. App—Beaumont, Jul. 28, 2021)

Issue. Can an appellate court review a complaint about a sleeping juror or a juror unable to hear the trial when no objection was raised by the defendant in the trial court?

Facts. During defendant’s trial, one juror informed the trial judge he could not hear. The judge suggested the juror change his seat. Also, during defendant’s trial, the prosecutor brought to the attention of the trial judge that an entirely different juror was constantly falling asleep during testimony.

Holding. No. Defendant asserts the Sixth Amendment’s promise of a speedy public trial by an impartial jury required the trial court to remedy the problem of inattentive jurors sua sponte. Defendant has neither shown precedent nor argued that juror attentiveness falls within the two categories of errors which an appellate court can review without objection (waivable-only rights and absolute systemic rights).

10th District Waco

Huggins v. State, No. 10-19-00096-CR (Tex. App.—Waco, Jul. 7, 2021)

Issue. Can a trial court accept a pro se guilty plea without providing the Faretta v. California admonishments about the dangers and disadvantages of self-representation?

Facts. Defendant, having previously been represented by two appointed attorneys, asked to represent himself at trial. He signed a document indicating he knowingly waived his right to representation and requested to proceed without an attorney. The record contained some evidence that the defendant was sufficiently intelligent and experienced in criminal justice to support the conclusion that his waiver was knowing and intelligent. This included partial completion of a college education and prior criminal prosecutions. The trial court did not admonish the defendant regarding the dangers and disadvantages of self-representation.

Holding. Yes. In the Tenth District at least. Before a trial court may permit self-representation, the trial court must ensure the defendant is “aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.” Faretta v. California, 422 U.S. 806 (1975). However, the Court of Criminal Appeals has distinguished Faretta holding that it does not apply in cases of self-representation where the defendant does not contest guilt. Hatten v. State, 71 S.W.3d 332 (Tex. Crim. App. 2002). Defendant argued that the Court of Criminal Appeals limited its holding in Hatten to misdemeanor cases and cites one other court of appeals which agrees with this analysis. This court disagrees with this conclusion.

Ex parte Braswell, No. 10-21-00121-CR (Tex. App. Waco, Jul. 7, 2021)

Issue. Does an intermediate court of appeals have original jurisdiction to consider a pretrial writ of habeas corpus pertaining to bail?

Facts. Defendant filed an original application for writ of habeas corpus in the Tenth Court of Appeals after “an incident between the vehicle she was driving and another vehicle and after a blood draw was performed on Braswell.” In the writ, the defendant challenged the amount of her pre-trial bail.

Holding. No. The Texas Constitution vests intermediate appellate courts with original jurisdiction in writs of habeas corpus. But law also provides for direct appeal of pretrial writs of habeas corpus. The intermediate court of appeal cannot exercise both original and appellate jurisdiction. The original jurisdiction of a court of appeals to issue a writ of habeas corpus is limited to those cases where a person’s liberty is restrained because the person has violated an order, judgment, or decree entered in a civil case.

11th District Eastland

Smith v. State, No. 11-19-00222-CR (Tex. App.—Eastland, Jun. 10, 2021)

Issue. (1) In an online solicitation of a minor prosecution, is evidence that a defendant suggested he and the minor only “maybe have sex” sufficient to establish the intent to engage in sexual contact element of the offense? (2) Are recorded accusations lodged by a detective in an interrogation inadmissible under the Confrontation Clause when that detective is not called to testify at trial?

Facts. Law enforcement created an online post on Craigslist in the “casual encounters” section where they posed as a minor after a person responded to the post. Defendant responded to the post. The officer posing as a minor indicated he eventually informed the defendant that the person he was talking with was 13 years old. Defendant claims he did not receive that message prior to texting: “do you wanna come over and talk and drink and maybe have sex? Just see where it goes.” The officer then sent another message indicating the person with whom the defendant was speak was 13 years old. Defendant showed up for his “casual encounter,” texted “how do I know this isn’t a trap,” powered through that dilemma, entered the apartment and got arrested. Officers looked through defendant’s phone and could not find the first text message they sent defendant indicating an age of 13 years old – the one that preceded defendant’s suggestion that they “maybe have sex.” Defendant gave a mirandized interview where he disputed his knowledge and intent. The detective interviewing him lodged accusations such as “you knew she was 13” and “the opportunity presented itself and maybe you took advantage of it.” The State did not want to call the detective to testify at trial and instead played a recording of the interview over defendant’s objection.

Holding. (1) Yes. At least here. It is true that defendant’s explicit statement was that he intended to “maybe have sex” and see where things go. Even assuming he did not receive the first text message indicating age, defendant’s argument that he took “maybe have sex” off the table after receiving the second text message indicating the age of the minor is unpersuasive. Sufficient evidence indicated defendant went to the location set up by law enforcement with the intent to have sex with a minor. The encounter arose from a posting in the “casual encounters” section of Craigslist and the moment before he entered the apartment where he believed he was meeting a minor he asked “how do I know this isn’t a trap.” (2) Yes. At least here. But the error was not harmful. Testimonial statements that are offered for purposes other than to establish the truth of the matter asserted do not violate the Confrontation Clause. Tennessee v. Street, 471 U.S. 409 (1985). Sometimes the State may admit statements made by a non-testifying police officer during an interview to provide context for the interviewee’s responses. To determine whether contextual or background statements are admissible a court weighs the actual utility of placing the defendant’s own words into context against the “likelihood the jury will gravitate toward the statement’s improper use.” Here there was little to no utility, defendant’s responses were sufficiently understandable without the detective’s contextual accusations. This rendered the detective’s accusations inadmissible under the Sixth Amendment but the trial court’s error was not harmful. They “were of minimal importance to the State’s case” considering their cumulative nature to direct evidence linking defendant to the offense.

Comment. Does every one of these cases involve the defendant committing a crime despite knowing he is being set up?

Deere v. State, No. 11-19-00227 (Tex. App.—Eastland, Jul. 22, 2021)

Issue. (1) Must a trial court strike a juror for cause who indicates they have a bias in favor of police but who was not informed the law required them to be unbiased or set their bias aside? (2) To preserve error must a identify the objectionable jurors selected, is it improper for the trial court to require counsel to alienate the jury by doing this in their presence?

Facts. Counsel asked each potential juror “how much credibility, based on a scale of one to five, the juror would afford an officer of the law before any testimony was given, and each potential juror answered.” The scale of one to five was only vaguely explained. Counsel did not inform potential jurors that the law required their impartiality to judge credibility of witnesses nor did counsel ask whether jurors could set aside their bias in favor of following the law.  After following the first four steps in the five-step process to preserve error in the improper seating of a juror, trial counsel attempted to complete the process by objecting to improperly seated jurors once they were seated but before they were sworn. The trial court required defendant to object to jurors in their presence.

Holding. (1) No. “That some of the potential jurors answered that they would rank an officer’s credibility as a five does not necessarily equate to an admission that the juror would absolutely believe the officer’s testimony once given. Nor does it equate to the venireperson’s inability to set aside preconceived notions or an admission of the venireperson’s inability to follow the law.” This scenario is different than the one presented in Hernandez v. State, 563 S.W.2d 947 (1978) where a trial court exercised discretion to strike a juror for cause who committed to always believing a police officer no matter what. The Hernandez juror’s bias was more deeply entrenched and the trial court made a discretionary determination to excuse, not a compulsory one. (2) No. First, counsel did not follow the five-step process for objecting to improperly seated jurors. He must identify objectionable jurors before he learns of his opponent’s strikes (before the jury is announced). “This prevents a party from belatedly conforming its claimed objections to the jurors actually seated.” Here, counsel waited until the jury was seated (but not sworn). While it was probably unfair for the trial court to require counsel to make objections about the jury in front of the jury without any explanation for why a hearing outside the jury’s presence was denied “any potential harm was self-inflicted since the (object-before-jury-announced) procedure in Nava, was not precisely followed.”

Comment. I’m trying to wrap my head around the articulated reason for a rule that objecting once the jury is announced is too late. The court seems to say that this is essentially sandbagging. But, if the other four complicated steps in the process were followed, I don’t see how this is taking unfair advantage. The first step in the process is to make a “clear and specific challenge for cause.” So, counsel would have to conform the objection to improperly seated jurors to the previously made challenge for cause.

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

Null v. State, No. 14-19-00839-CR (Tex. App.—Houston [14th Dist.] Jun. 8, 2021)

Issue. (1) Is a complainant’s inability to remember an attack or identify the defendant as an attacker an impediment to a sexual assault conviction if DNA evidence doesn’t exclude the Defendant as the assailant? (2) Can an appellate court find that venue was proper out of thin air? (3) when a trial court excuses a juror sua sponte on unauthorized grounds (can’t speak English), has a defendant preserved error by objecting to the factual assessment rather than the unauthorized grounds? (4) Was defendant wrongfully denied a lesser-included instruction on attempted sexual assault after the sexual assault nurse indicated that the DNA she collected could have migrated to its location of discovery (inside of the vagina) from another place (outside of the vagina)? (5) Did the trial court err in admitting DNA testing over Appellant’s 702 objection that the State’s witness had no information on how the laboratory conducted testing or independent qualifications to explain the testing.

Facts. Complainant was 16 years old when she came home in a confused state and told her mother she had been raped while out jogging. Later complainant revealed that the jogging story was a lie. Instead, her story was that she skipped school, got drunk, hung out with an adult friend, got more drunk, tried to walk home, passed out, found herself in a car with a man “pressing on top of her.” Toxicology reports showed complainant had Xanax and marijuana in her system. Forensic evidence showed that Defendant could not be excluded as a suspect. At trial, complainant testified that she did not know the defendant, had never seen him before, and could not identify him as the attacker.

Holding. (1) No. Despite the complainant’s inability to describe an attack or identify the defendant as the attacker, her initial statement to her mother was that she had been raped and the defendant could not be excluded as a contributor to the DNA. A rational jury could have concluded that he was the attacker and that he had sexually assaulted the victim. (2) Yes. The State has the burden to prove venue by a preponderance of the evidence. Because the defendant did not contest venue, “we presume that the prosecution satisfied that burden . . .” (3) No. While inability to speak English is not a grounds for the trial court to excuse a juror over objection, the defendant must tailor his objection to the trial court’s lack of authority to preserve such an argument for appeal. Here the defendant objected to the trial court’s assessment of whether excused jurors sufficiently spoke English. This did not preserve the legal issue for review. (4) No. Entitlement to a lesser-included instruction on attempt requires affirmative evidence, the fact that the sexual assault nurse believed that semen could have migrated from outside to inside the vagina is mere uncertainty and not affirmative evidence. (5) No. Trial courts can take judicial notice of all DNA evidence concerns under Texas Rule of Evidence 702, including the validity of DNA testing and the validity of the STR technique in evaluating DNA evidence.

Dissent (Hassan, J.). “Instead of endeavoring to establish that the State met its burdens [under 702], both the State’s brief and the majority rely upon the well-known fact that courts are permitted to take judicial notice of select facts. Without evidence that the trial court took judicial notice, this is an unremarkable recitation of an unambiguous Rule.”

Comment. This opinion is incredible. First, if the complaining witness can’t articulate that an attack occurred and identify the defendant was the attacker, the mere fact that he can’t be excluded as a DNA contributor was enough for two judges on this panel. Then, the evidence sufficient to establish venue is that there is no evidence of venue but the court will fix it by presuming there is. The goose/gander issue with criminal attempt should be noted, too. That DNA was found in the complainant’s vagina was certainly evidence of the defendant’s guilt for this panel, but that it could have migrated from outside of the vagina to inside of the vagina is not affirmative evidence of anything. A motion for en banc reconsideration has been filed. Rightfully so.

Coleman v. State, No. 14-19-01016-CR (Tex. App.—Houston [14th Dist.] Jul. 15, 2021)

Issue. (1) Can the State establish the necessary element of physical pain in a bodily injury assault without the testimony of the complainant or any physical indicia of injury? (2) Can the State establish the necessary element of a dating relationship in a family violence prosecution by showing the defendant made 235 phone calls to the complainant and expressed that he loved her and missed her? (3) Can the State use a prior assault family violence conviction to elevate a misdemeanor assault to a felony and then sentence a defendant as a habitual offender with additional assault family violence convictions?

Facts. A police officer observed defendant’s car jerking in front of him at a stop sign, saw defendant slap and hit the complainant, heard the complainant scream for help, observed the vehicle fail to maintain a single lane, observed the passenger door open while the vehicle was still moving, observed complainant’s body hanging out the door as though someone was preventing her escape. Complainant got into the officer’s vehicle and explained the assault that had occurred. While incarcerated waiting trial, defendant made 235 phone calls to the complainant. During one call he told the complainant that he loved her and missed her. Complainant did not testify at trial.

Holding. (1) Yes. “[A] factfinder may infer that a victim actually suffered physical pain, and no witness—including the victim-need testify that the victim felt pain.” The jury could have inferred the complainant felt pain when she screamed help, when she was slapped, when she was hit, when she hung out the door of the car. (2) Yes. The jury could infer from 235 phone calls as well as from “the tenor and content of” intimate conversations that the defendant and complainant had a dating relationship. (3) Yes. Defendant’s analogy to theft offenses elevated by “two or more” previous theft convictions is misplaced. A state jail felony elevated theft may not be punished as a habitual offender with additional theft convictions because the statute provides that a theft offense is elevated by “two or more” prior thefts. This language indicates the legislature’s intent to set a maximum punishment on habitual thieves at state jail punishment. In the context of habitual domestic violence, the offense is elevated to a felony if it is shown that the defendant has a single prior family violence offense. The statutory language lacks the open-endedness of the elevated theft statute which justified a limit on usage for prior offenses of the same type.

July/August 2021 SDR – Voice for the Defense Vol. 50, No. 6

Voice for the Defense Volume 50, No. 6 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

An old phrase that tormented attorneys who immerse themselves in the nuances of expunction law is: “the arrest is the unit of prosecution for an expunction,” meaning that all offenses arising from the same arrest must be expunction eligible or none are. The Supreme Court has yet again chipped away at this notion this month in Ex parte R.G.P.G. In Houston, a couple of really smart prosecutors do their best Bill Clinton impression and feign bewilderment about what a person could possibly mean by using the word “snitch” when they insist on having a lawyer present before doing whatever it means to do that. Other than that, just some run-of-the-mill hard-hitting sig-decs this month!

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

Please do not rely solely on the summaries set forth below. The reader is advised to read the full text of each opinion in addition to the brief synopses provided. Cases are hyperlinked and can be accessed by clicking on the case name on the online edition.

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

United States Supreme Court

Caniglia v. Strom, 141 S.Ct. 1956 (2021)

Issue. Does Cady v. Dombrowski’s community caretaking doctrine, which permits an officer to enter a vehicle and secure an unattended firearm, also permit an officer to enter a home to secure a firearm?

Facts. This is a civil lawsuit filed in response to law enforcement entering petitioner’s home and seizing his weapons. While arguing with his wife the day before, petitioner placed a handgun on the table and asked his wife to “shoot him and get it over with.” The next day officers came to the home to conduct a welfare check. Officers suggested that petitioner admit himself to the hospital for a psychiatric evaluation. Petitioner agreed on the condition that officers not enter his home and seize his firearms. They promised. Then they took his firearms. Petitioner sued the officers for a violation of the Fourth Amendment. The district court granted summary judgment in favor of the officers and the First Circuit affirmed. Both courts cited Cady’s community caretaking exception.

Holding. No. “What is reasonable for vehicles is different from what is reasonable for homes.” At the very core of Fourth Amendment protections is “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Florida v. Jardines, 569 U.S. 1, 6 (2013). The holdings below go far beyond anything this court has ever authorized. “True, Cady also involved a warrantless search for a firearm. But the location of that search was an impounded vehicle—not a home—‘a constitutional difference’ that the opinion repeatedly stressed.” Citing Cady, 413 U.S., at 439.

Concurrence (Roberts, C.J.)(Breyer joins) A warrantless entry into a home is justified when there is a “need to assist persons who are seriously injured or threatened with such injury.”

Concurrence (Alito, J.) Petitioner glosses over some important questions this court might ultimately have to address: (1) the State’s ability to effect “a short-term seizure conducted for the purpose of ascertaining whether a person presents an imminent risk of suicide;” (2) “the so-called ‘red flag’ laws that some States are now enacting” which allow officers to get a court order to seize guns to prevent their use for suicide or infliction of harm on innocent persons, and (3) the ability of police to enter a home to determine whether a person is in need of help.

Concurrence (Kavanaugh, J.) It is important to note that officers would have the authority to enter a home to assist someone in need of aid.

Comment. It’s nice to see the court pushing back against the rampant expansion of community caretaking exception justification.

Fifth Circuit

United States v. Torres, 997 F.3d 624 (5th Cir. 2021)

Issue. Without offending the Sixth Amendment, can a trial court prohibit counsel from communicating with his client during an overnight recess occurring in the middle of the defendant’s trial testimony?

Facts. At 7:09 P.M. during the second day of trial, the State presented its final witness and rested. Counsel for the defendant informed the court that the defendant wished to testify and that he anticipated that direct examination would take several hours. The trial court proceeded with the defendant’s testimony but ultimately declared an overnight recess at 8:03 P.M. At that time, the district court issued a sequestration order prohibiting the defendant from speaking to any person, including counsel, during the recess. Counsel requested clarification and the trial court sternly admonished counsel that he was prohibited from speaking with his client. 

Holding. The propriety of denying the defendant access to counsel in trial exists on a spectrum. In Geders v. United States, 425 U.S. 80, 91 (1976), the Supreme Court found a 17-hour overnight recess too long of a period to bar counsel from communicating with client. In Perry v. Leeke, 488 U.S. 272, 284-85 (1989) the Supreme Court found that a prohibition on conferring with counsel during a short recess of only a few minutes did not violate the Sixth Amendment. Here, the 13-hour prohibition falls
“squarely within the Geders rule; that is, a trial court may not bar a testifying criminal defendant from all communication with his attorney during an overnight recess.” This is plain error, reviewable without an objection. The circumstances of the error are “so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.”

Comment. At 9 P.M. on a Monday, I finished this summary by reading the final paragraph of this case in which the court gives us a 7-P.M.-was-probably-a-good-time-to-stop-working-for-the-day type commentary. Touché.

Texas Supreme Court

Ex parte R.P.G.P., No. 19-1051 (Tex. 2021)

Issue. Is expunction eligibility for a single offense contingent on expunction eligibility for all offenses arising from the same arrest?

Facts. Petitioner was arrested for DWI. During that investigation officers found marijuana. Petitioner’s DWI was dismissed after completion of pretrial diversion. Petitioner pleaded guilty and was placed on deferred adjudication for the marijuana charge. When petitioner attempted to expunge the DWI, the State opposed the “partial expunction request” on the basis that not all offenses arising from the arrest were eligible for expunction—the marijuana charge was still non-expungable. The State claimed and the court of appeals agreed that the expunction statute is arrest based and not offense based.

Holding. No – not in cases involving only misdemeanors. In cases involving only misdemeanors a defendant may expunge as many offenses which are eligible for expunction regardless of whether another misdemeanor case arising from that arrest is expunction-eligible. “Article 55.01 is neither entirely arrest-based nor [entirely] offense-based.” The legislature defined expunction eligibility in the case of dismissal, non-filing, and pretrial diversion as scenarios where the charge did not result in conviction and for where no probation was ordered for the offense. The use of “the” in referring to “the offense” and “the charge” reflects the legislature’s intent to tie expunction eligibility to a single offense and not all offenses arising from the arrest.

Dissent (Bland, J.). “The object of the statute is the expunction of ‘all records and files relating to the arrest,’ not some records.” The majority opinion creates bureaucratic problems associated with partially redacting arrest information from a person’s record. 

Comment. This is opinion is a gamechanger. But it is limited to only misdemeanor offenses. The Court reaches this distinction based on the juxtaposition of language in Article 55.01(a)(2)(A): “regardless of whether any statute of limitations exists for the offense and whether any limitations period for the offense has expired, an indictment or information charging the person with the commission of a misdemeanor offense based on the person’s arrest or charging the person with commission of any felony offense arising out of the same transaction for which the person was arrested. “The juxtaposition between the singular language used for misdemeanors and the plural language used for felonies demonstrates that an offense-based interpretation applies to misdemeanors while an arrest-based interpretation applies when more serious crimes—felonies—are involved.”

Texas Court of Criminal Appeals

Ramirez v. State, No. AP-77,084 (Tex. Crim. App. 2021)

Issue. The defendant confessed to and was convicted of orchestrating a gang-robbery-shootout-murder. He now wishes to conduct DNA testing on a pair of hats left at the scene by shooters. Can he show these purportedly exculpatory mystery hats sufficiently useful to him that it would warrant post-conviction DNA testing?

Facts. Defendant was convicted and sentenced to death for his involvement in the robbery and murders of rival gang members. The evidence at trial showed that Defendant directed the activities of his gang who broke into a home, ransacked the place, then killed most of the occupants. Defendant had a gang tattoo that matched that of the gang responsible for the murders. The two gangs involved had “green lights” with respect to members of the opposite gang (they could kill one another without asking permission from command structure). Defendant confessed to his involvement in the murders including directing the activities of his co-defendants. Defendant’s confession was corroborated by a surviving witness who indicated that the man giving orders wore a hat which he dropped at the crime scene. The jury applied the law of parties to convict the defendant. In the instant post-conviction proceeding requesting DNA testing, the defendant presented evidence from a co-defendant and fellow gang member indicating that the defendant was not the person giving orders and that the individual who took off his hat was named Lenny. He also presented arguments that his confession following the murder was false – in support citing evidence and argument presented in his previous writ of habeas corpus.

Holding. No. Several statutory conditions must be met before a defendant is entitled post-conviction DNA testing. Relevant here: (1) “identity was or is an issue in the case,” and (2) that the defendant “would not have been convicted if exculpatory results had been obtained through DNA testing.” Tex. Code Crim. Proc. art. 64.03(a). The defendant incorrectly relies on Article 64.03(b) for the proposition that the trial court may not consider his confession in resolving the second issue: whether he would have been convicted in a trial with the benefit of DNA testing. Article 64.03(b) only prohibits the trial court from considering a defendant’s confession in determining whether “identity was or is an issue in the case.” The defendant also incorrectly asserts that the trial court was required to accept the veracity of the affidavit submitted by his co-defendant and fellow gang member. “Testimony from an accomplice which exonerates a defendant without exposing the accomplice to further criminal liability is to be viewed with suspicion.” The defendant has failed to show that his confession was false and has failed to show how DNA testing excluding him as an individual wearing a hat would have been useful to him at trial. He was convicted under the law of parties and whether he was one of the hat-wearers or not, he was part of a gang robbery resulting in multiple murders.

Spielbauer v. State, No. PD-0245-20 (Tex. Crim. App. 2021)

Issue. Must a trial court dismiss a potential juror for cause based solely on that potential juror’s answer to a jury questionnaire?

Facts. The venire summoned for defendant’s non-death capital-murder trial responded to a questionnaire. The questionnaire asked whether prospective jurors had heard about defendant’s case and had already formed an opinion about his guilt or innocence. Six veniremembers indicated they had. The trial court questioned these veniremembers and two of them renounced their written answers indicating that they responded to the questionnaire mistakenly. On this basis the trial court declined to remove these two jurors for cause.

Holding. Texas Code of Criminal Procedure Article 35.16(a)(10) provides a challenge for cause when “there is established in the mind of the juror such a conclusion as to guilt or innocence of the defendant as would influence the juror in finding a verdict.” The Code continues by indicating that once the juror admits such an opinion would influence his or her verdict, “the juror shall be discharged without further interrogation by either party or the court.” However, “a questionnaire answered before voir dire will not by itself support a challenge for cause . . .” Questions answered in a questionnaire are not part of formal voir dire. “They may be a useful tool, but questionnaires are no substitute for the human interaction inherent to voir dire and essential to the trial court’s evaluation of a juror’s suitability for jury service.”

Comment. Before reaching the merits, the trial court first considered the appropriateness of the State arguing a new and distinct legal theory from that which was raised in the Court of Appeals. The court declined to impose existing error preservation requirements on the State “Given that our preservation rules are intended to protect the trial court’s judgment from reversal based on arguments never heard by the trial court, we answer this threshold issue in the negative: The State’s arguments are not foreclosed from our consideration.” “The rules of preservation are judge-protecting rules.” This new rule overrules a 30-year-old precedent set in Rochelle v. State, 791 S.W.2d 121 (Tex. Crim. App. 1990).

Petetan v. State, No. AP-77, 038 (Tex. Crim. App. 2021)

Issue. (1) was a death-sentenced defendant entitled to a pre-trial determination of his intellectual disability? (2) Was the jury’s finding of no-intellectual-disability legally sufficient? (3) was it factually sufficient?

Facts. Defendant was convicted of capital murder for killing his wife. In response to a special issue, the jury rejected the suggestion that the defendant was intellectually disabled and ineligible for the death penalty. Several experts testified on behalf of the defendant that he had significantly subaverage intellectual functioning with childhood and adult IQ scores which ranged from 52 and 74. The State presented no expert witnesses but instead focused on conflicting implications raised by his school grades, human interactions, and occasional employment.

Holding. The State cannot execute a person who is intellectually disabled. The Court of Criminal Appeals initially decided this case prior to the United States Supreme Court twice reversing the Court of Criminal Appeals in the similar case of Moore v. Texas. 137 S.Ct. 1039 (2017). In Moore the Supreme Court found that the Court of Criminal Appeals unduly relied on judicially crafted standards which focused on the defendant’s abilities rather than the defendant’s disability and which required the defendant to show that his deficits were not related to a personality disorder. After twice reversed in Moore, the court reconsidered the instant case in order to apply more appropriate clinical standards for intellectual disability. “Concerning the sufficiency of the evidence regarding the jury’s rejection of his intellectual disability claims, we apply contemporary clinical standards—the framework set forth in the [American Psychiatric Association’s] DSM-5—for assessing intellectual disability.” The burden of proof falls to the defendant to show by a preponderance of the evidence that he has subaverage intellectual functioning and significant limitations in adaptive skills such as communication, self-care, and self-direction—both manifest before the age of eighteen. Intellectual disability is in the nature of an affirmative defense and “[a]ffirmative defenses may be evaluated for legal and factual sufficiency.” (1) No. the law does not require anything more than a consideration of intellectual disability during sentencing. (2) Yes. There was conflicting evidence presented regarding the defendant’s abilities as a child and his educational achievements; conflicting evidence presented regarding the defendant’s social abilities; and conflicting evidence presented defendant’s practical skills such as cooking, cleaning and managing day-to-day tasks. There was at least a scintilla of evidence to support the jury’s rejection of intellectual disability. (3) No. Evidence contrary to the jury’s verdict greatly outweighs that which supports it when viewed in a neutral light. It is improper under Moore to allow the jury to reject clinical conclusions in favor of their lay-person opinions of the defendant’s adaptive strengths. “Expert after expert diagnosed Appellant with mild intellectual disability . . .” “We therefore conclude that the jury’s rejection of Appellant’s intellectual disability claim was clearly wrong and manifestly unjust.”

Dissent (Keller, J.). The Defendant’s medical evidence was flawed, the defendant’s non-medical evidence was biased and unreliable. Some evidence suggested the IQ scores fell above the range for intellectual disability. There was evidence of the defendant’s malingering, deception, and fakery. The State should kill him according to the jury’s verdict.

Montelongo v. State, No. PD-0202-19 (Tex. Crim. App. 2021)

Issue. To preserve error, must a defendant who timely filed a motion for new trial and requested a hearing also object to the trial court’s failure to hold a hearing?

Facts. A jury convicted defendant of Attempted Capital Murder and Continuous Family Violence and sentenced him to 99 years and 10 years, respectively. Defendant timely filed a motion for new trial and requested a hearing. The trial court initially set, but then cancelled, a hearing. The trial court never reset the new trial hearing and never ruled on defendant’s motion. As a result, the motion was denied by operation of law. In the intermediate appellate court, defendant argued that the trial court abused its discretion in failing to hold a hearing on the motion for new trial. The intermediate appellate court rejected this argument and held that the defendant had not preserved error because the defendant did not: (1) attempt to reschedule, (2) attempt to obtain a ruling, and (3) object to the trial court’s failure to rule.

Holding. No. “To avoid forfeiting a complaint on appeal, the party must let the trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the judge to understand him at a time when the judge is in a position to do something about it.” A defendant’s obligation of a timely objection is to object at the earliest opportunity or as soon as the grounds for the objection become apparent. “When do the grounds for the objection—that the trial court failed to hold a hearing on the motion for a new trial—become apparent?” A trial court has not “failed” to hold a hearing until the trial court can no longer hold a hearing. Unlike other trial court errors, when a motion for new trial is overruled by operation of law, “the grounds for objection become apparent at a time when the trial court is unable to do anything about it.” It would be improper for the trial court to fix its error upon the defendant’s objection after its plenary power expires (75 days after sentence imposed).

Dissent. (Slaughter, J.) Dissenting without opinion.

Johnson v. State, No. PD-0561-20 (Tex. Crim. App. 2021)

Issue. Does the combination of the following circumstances rise to the level of reasonable suspicion: unusual activity, secretive behavior, dark parking lot, vague representation by an officer that the place is where crimes sometimes occur?

Facts. A police officer became interested in the defendant when it appeared to him the defendant was attempting to avoid other people. The officer ultimately detained the defendant and articulated the following reasonable suspicion: the fact that the defendant was not parked near other vehicles, that it was after midnight, that the lot was known for “a variety of criminal activity,” and that the defendant and his passenger moved when he shined a spotlight into defendant’s vehicle. In response to these observations, the detaining officer turned his emergency lights on, parked 10-15 yards away, and approached the defendant’s vehicle on foot. The intermediate court of appeals reversed the trial court’s denial of defendant’s motion to suppress.

Holding. Yes. “Assuming, without deciding, that a seizure did occur, we agree with the State that Sergeant Cox had reasonable suspicion.” Unusual activity related to a crime is sufficient. Seven facts supported reasonable suspicion in this case: (1) an inference that the lot had significant association with criminal activity, (2) the officer’s opinion that it was unusual to be sitting in a parked car in that lot after midnight, (3) at least one person was inside the vehicle after midnight, (4) that person was awake, (5) the vehicle’s exterior lights were off, (6) the vehicle’s interior lights were off, and (7) the vehicle was parked away from other vehicles. “The unusual and secretive behavior of the occupants of Appellant’s vehicle at least gave rise to an objectively reasonable suspicion that some sort of crime was being committed or contemplated.”

Dissent (Walker, J.) These facts do not present reasonable suspicion. The court derives reasonable suspicion from the fact that the defendant was not acting as an innocent person would. “But what one might expect of an innocent person is no way to judge whether a stop is supported by reasonable suspicion.” “It seems to me that, in order to uphold the detention in this case, the Court has to resort to stereotypes about light and dark, day and night, good and evil.”

Comment. Exercising the right to privacy is by its very nature “secretive behavior.” I always have a hard time with cases that find that “being private” is a factor in overcoming the right to privacy. Certainly, the activity here is “unusual” but I don’t see where it is tied to criminal activity.

Hammack v. State, No. PD-0636-19 (Tex. Crim. App. 2021)

Issue. Is formal notice service of an order pertaining to child custody an element of the offense in an Interference with Child Custody prosecution?

Facts. CPS suspected defendant was abusing his daughter. A CPS investigator went to the defendant’s home to investigate, and the defendant promptly ordered the investigator off the property. Two CPS investigators came back the next day with a court order. The investigators identified themselves and informed the defendant that the order gave them custody of his daughter. Defendant became aggressive and ordered them to leave. The CPS investigators complied, but later picked the daughter up from school and held her at the local CPS office. Investigators called defendant to inform him again about the court order and what was occurring. After the call, the daughter escaped. In their search for the child, CPS investigators and police discovered the defendant at his mother’s home where he was attempting to enter the attic. They could also hear voices coming from the attic. CPS left the home without further investigation after the defendant became confrontational and his mother withdrew consent to search. Evidence showed that a few days later defendant took his daughter to Oklahoma where she married her eighteen-year-old boyfriend.

Holding. Penal Code § 25.03(a)(1) provides:

(a) A person commits an offense if the person takes or retains a child younger than 18 years of age:

(1) when the person knows that the person’s taking or retention violates the express terms of a judgment or order, including a temporary order, of a court disposing of the child’s custody.

Appellant’s argument that he could not know about the “express terms” of the order without service of the order is unpersuasive. The statute merely requires the defendant to know of the express terms he purportedly chose to violate. This case is unlike Harvey v. State, where the court interpreted notice requirements in the context of a protective order violation (“VPO”). In Harvey, the court determined the VPO statute to require formal notice and service as elements of the offense because all orders under the VPO statue require the satisfaction of specific notice and service requirements before such orders become “binding.” Here, “[t]here is no indication that the statutory service requirements of a particular child custody order must be incorporated into the terms of the offense.” Section 25.03 does not list provisions of the code defining custody orders, “it only refers generically to a ‘judgment or order, including a temporary order, of a court disposing of the child’s custody.’” Because Section 25.03 provides for a culpable mental state (knowingly), there is no need to resort to the notice or service requirements particularized statutory methods for notice and service. 

Dissent. (Keller, J.). Defendant was told that CPS was awarded custody but not “sole custody.” The CPS investigators merely guessed that defendant knew this fact. There is no evidence that he did.

Comment. The court also rejects defendant’s argument that, absent service of the order, he has the right to distrust the information conveyed to him by the CPS investigators. At least in this context, where multiple CPS investigators continued to convey information to him and police became involved in a search for the child.

Ex parte Andrus, No. WR-84, 438-01 (Tex. Crim. App. 2021)

Issue. Did the following failures of trial counsel constitute harmful deficient performance in a capital murder case: failure to conduct a mitigation investigation, failure to present mitigation evidence, accidentally bolstering State’s witnesses, and failure to investigate the State’s aggravating evidence?

Facts. This case is decided after remand from the Supreme Court of the United States (SCOTUS). The Court of Criminal Appeals (CCA) previously rejected the defendant’s ineffective assistance of counsel writ citing failure to show deficient performance in a one-sentence opinion. SCOTUS considered the defendant’s new evidence and reversed on the “tidal wave of information . . . with regard to mitigation” which “revealed a childhood marked by extreme neglect privation, a family environment filled with violence and abuse.” This included: (1) the violent neighborhood defendant grew up in, (2) the lack of a father figure, (3) the physical abuse endured by him and his siblings by their various, (4) the abuse committed by his siblings’ various fathers against his mother, (5) an incident involving one sibling’s father raping another one of defendant’s siblings, (6) his mother engaging in prostitution and drug dealing from the home, (7) parents who were constantly high, (8) defendant stepping into the role of head of the household and assuming responsibilities of cooking, cleaning and educating his siblings (9) defendant’s diagnosis with affective psychosis. SCOTUS also found some reasonable mitigating circumstances surrounding the state’s aggravating evidence, such as young age, suicidal behavior, and adverse reactions to psychotropic drugs.  In consideration of this evidence, SCOTUS remanded the case and instructed the CCA to consider harm.

Defendant’s offense involved an attempted carjacking where he shot and killed two people and wounded another. The State presented evidence of a violent and aggressive past. Defendant had two juvenile adjudications, one for drug possession and the other for solicitation of aggravated robbery. He was ultimately confined in the Texas Youth Commission for these offenses. The month prior to committing the instant capital murder, the defendant committed a particularly violent aggravated robbery. During his various periods of confinement, he was aggressive, threatening, and violent toward staff. He also admitted to being a member of a street gang. At trial, defendant testified to his upbringing by a drug-dealing mother and lack of any real adult supervision which led to his life of crime and drug use. He also indicated that he had given his life to God and was ready to make a change.

Four concurring judges in the CCA’s original opinion in this case described their thoughts on some of defendant’s new mitigating evidence. The concurring opinion characterized the new evidence as duplicative of what was presented by him and his family members or as “double-edged” evidence which could have been used both as mitigating and aggravating (in particular evidence of a history of abusing and killing animals that defendant’s mitigating expert would have been required to admit). This, combined with the significant aggravating evidence, did not warrant a finding of harm, according to the concurring opinion.

Holding. No. SCOTUS requires the CCA to consider “the totality of the available mitigation evidence—both that adduced at trial, and the evidence adduced in the habeas proceeding—and reweigh it against the evidence in aggravation. A finding of prejudice requires a reasonable probability that at least one juror would have struck a different balance regarding Applicant’s moral culpability.” SCOTUS’s assumption that the CCA did not consider prejudice is incorrect. Nonetheless, the CCA articulates its rationale in this new opinion: “the mitigating evidence offered at the habeas stage was relatively weak in that it was not specific to Applicant, was contradicted by other evidence, or overlapped evidence heard by the jury, and because the aggravating evidence was strong.” [17 pages of critical analysis of defendant’s new evidence followed].

Dissent (Newell, J.). “The United States Supreme Court unquestionably made mistakes regarding this Court’s original order denying post-conviction relief in this case.” Justice Alito pointed this out in his dissent, but the SCOTUS majority didn’t care. SCOTUS, unpersuaded by the CCA’s previous denial is likely to be unpersuaded by this more articulated denial which flies in the face of SCOTUS’s characterization of the evidence in this case.

Comment. I don’t think the CCA liked getting reversed here. “We did not set forth our reasons for denying habeas relief, but we are not aware of any constitutional requirement to do so.” This statement speaks loudly. This is not a mea culpa, the CCA  appears to frankly disagree with SCOTUS requiring them to provide the 17 pages of analysis it now provides in the instant opinion on remand. That statement is followed by “Nevertheless, in an abundance of caution, we now set forth our reasoning . . .” I do believe Judge Newell will be correct in the end. 

Williams v. State, No. PD-0477-19 (Tex. Crim. App. 2021)

Issue. Is a defendant required to identify evidence in the record supporting a lesser-included instruction to preserve error in its denial?

Facts. A jury convicted the defendant of continuous trafficking. Evidence at trial showed that he managed “adult escort” services on, specifically those of an adult woman and a 16-year-old girl. This scheme lasted more than a year, during which the ads were paid directly by the woman and the girl with one limited exception. During a 16-day period, the defendant paid for some of the ads. Despite the suggestion raised by the billing records, substantial evidence showed that Appellant managed this trafficking scheme. But his theory was that he didn’t. Defendant testified and explained that he had no idea that these girls were even escorts, that they must have set up the ad themselves, and that other incriminating evidence was the product of coincidence. The trial court denied defense counsel’s request to instruct the jury on the lesser-included offenses “trafficking, compelling prostitution, prostitution, and . . . simple assault.” When asked by the trial court, counsel could not point to any evidence in the record supporting his requests for lesser included offenses. The trial court denied the request. However, the court of appeals reversed based on the suggestion raised by 16 days billing attributed to the defendant. According to the court of appeals this constituted “more than a scintilla of evidence from which a rational jury could conclude Appellant was guilty of only trafficking and not continuous trafficking [occurring for more than 30 days].”

Holding. Yes, unless the evidence is obvious. Defensive instructions are subject to the ordinary rules of procedural default. “Requests for lesser-included instructions, like requests for defensive instructions, frequently depend upon trial strategy and tactics, so they are not considered the law applicable to the case.” To preserve error on jury charge error, counsel must either present objections in writing or dictate them into the record. To preserve error on omitted lesser-included offenses, the defendant must point to evidence in the record supporting the proposed instruction unless the evidence is obvious. “A defendant who files or dictates a laundry-list of objections to the charge must also specify the legal or factual reasons why he believes himself entitled to such special instructions.” Defendant’s theory at trial was he committed no offense. As such, facts supporting the lesser-included offenses were not obvious to the trial court.

Dissent (Yeary, J.). No rule or case requires a defendant to cite factual support on top of citing the legal support for a requested jury instruction.

Comment. As much as I loathe when ultra-technical error preservation rules are used as a mechanism to condone an unfair trial, I don’t believe this is one of those circumstances. I agree with the majority that this was a he-did-it versus he-didn’t-do-it case. But if this counsel-must-point-to-the-evidence rule is to be employed going forward, I do hope to see plenty of cases where courts find that that defense counsel’s failure is excused by the obviousness of evidence in the record.

Ex parte Jones, No. PD-0552-18 (Tex. Crim. App. 2021)

Issue. Does the previous 2017 version of Texas’s revenge porn statute violate the First Amendment?

Facts. Defendant was charged with “Unlawful Disclosure of Intimate Visual Material” under Texas Penal Code Section 21.6(b). The indictment, which tracked one of several ways the statute criminalizes conduct, alleged that he did:

Intentionally or knowingly without the effective consent of [A.B.], hereafter styled the complainant, intentionally disclose visual material, namely, photograph, depicting the complainant with her naked genitals exposed, and the visual material was obtained by the defendant under circumstances in which the complainant had a reasonable expectation of privacy that the visual material would remain private, and the disclosure of the visual material caused harm to the complainant, namely, embarrassment, and the disclosure of the visual material revealed the identity of the complainant, through accompanying or subsequent information provided by the defendant.

Holding. No. “Section 21.16(b) is content based on its face” because it targets a particular kind of visual material—that which depicts intimate parts or sexual activity. Content-based regulations must be narrowly tailored to serve a compelling government interest. Protecting an individual’s sexual privacy is a compelling government interest. Narrow tailoring is the more difficult question in this case. Section 21.6(b) prohibits disclosures “only under certain privacy-invading circumstances—where the depicted person: (1) has not consented, (2) has a reasonable expectation of privacy, and (3) is identified.” The literal text of the statute, however, only requires that a defendant act intentionally with regard to the disclosure. This suggests that the defendant is strictly liable for all other circumstances which makes the disclosure a crime. Strict liability raises serious constitutional doubts when the government seeks to regulate speech, “therefore, it is incumbent on the Court to read the statute to eliminate those doubts so long as the statute is reasonably susceptible to such a construction.” Here the Court can presume the legislature did not intend to punish inadvertently disclosing sexually private material. Accordingly, to eliminate unintended overbreadth, the court holds “that the statute only covers the intentional disclosure of sexually explicitly material by third parties when that third party (1) obtained the material under circumstances in which the depicted person had a reasonable expectation that the image would remain private; (2) knew or was aware of but consciously disregarded a substantial and unjustifiable risk that he did not have effective consent of the depicted person; and (3) knowingly or recklessly identified the depicted person and cause that person harm through the disclosure.

Comment. The legislature amended the statute in response to the court of appeals holding finding the statute unconstitutional, it now requires far more in terms of mens rea, but it does not include the culpable mental state grafted onto the statute by the court regarding the act of identifying the depicted person. This issue may still be live.

1st District Houston

State v. Negrete, No. 01-19-00357-CR (Tex. App.—Houston [1st Dist], May 4, 2021)

Issue. Is the statement “I don’t want to snitch without a lawyer” an unambiguous invocation of the right to counsel?

Facts. Police interrogated the defendant about a murder. The defendant moved to suppress the interrogation alleging that officers violated his Fifth Amendment rights by failing to honor a request to have counsel present during interrogation and by coercing his confession by threatening criminal charges against his family members. The only evidence presented to the court in a hearing on the motion to suppress was a videotape of the interrogation.

After reviewing the videotaped recording, the trial court listed the “three statements [by appellee that it] found invoke[ed] [the right to] counsel.” The first statement by appellee, which occurs about thirteen minutes and ten seconds into the videotape recording, was: “I don’t want to snitch without a lawyer.” (Internal quotations omitted.) The second statement by appellee, which occurs about nineteen minutes into the videotaped recording, was: “What about my lawyer right there.” (Internal quotations omitted.) The third statement by appellee, which occurs about twenty minutes and forty seconds into the videotaped recording, was: “I want to make sure that I am going to be benefitted. That’s why I need a lawyer.”

Several times the officers also threatened to arrest defendant’s family members who they knew had nothing to do with criminal activity.

The State asserts that appellee’s statement, “I don’t want to snitch without a lawyer,” was not an unambiguous invocation of his Fifth Amendment right to counsel because the word ‘snitch’ is informal or slang and “it is not exactly clear when a criminal defendant snitches,” thus making the term “snitch itself ambiguous. (Internal quotations omitted.) Further, appellee’s statement only indicated that his “desire for an attorney [was] condition[ed] on when he snitche[d],” and it was not a blanket request for an attorney.

Holding. Yes. Law enforcement “may not conduct a custodial interrogation of a suspect who has requested the assistance of counsel.” Ambiguous and equivocal statements about counsel are insufficient to invoke the right or warrant suppression of statements resulting from continued interrogation. But the invocation does not require the expression of magical words. “Appellee’s statement was an unambiguous and unequivocal invocation of his right to counsel, and it is not unlike the statements made by the defendants in other cases in which courts have held that the defendant clearly invoked his right to counsel.” The State’s argument that the defendant’s request was conditional or not framed as a request is unpersuasive.

Comment. A different result would have been reached by the shameless Louisiana Supreme Court which once pretended to find ambiguity in the statement, “I want my lawyer dog.” That court found a reasonable person could not determine whether such an expression meant the suspect wanted the assistance of a real human lawyer or the assistance of a dog with a license to practice law. State v. Demesme, 228 So. 3d 1206 (La. 2017). I thought about discussing the professionalism of the State’s argument in this case to make sure I wasn’t being unfair. I quickly noticed they cited the Demesme case and now I have spent more time deleting not-nice snark-commentary than I have drafting an actual summary of this case.

Alternate Comment (Erin Therrian, SDR Wife). What if the detectives were big Harry Potter fans, I can see how that would be confusing for them?

Goliat v. State, No. 01-19-00904-CR (Tex. App.—Houston [1st Dist.] May 11, 2021)

Issue. Is a trial court required to re-open punishment evidence for counsel who learned from a State’s punishment witness that the victim has favorable things to say about the defendant?

Facts. A jury convicted defendant of two counts of aggravated sexual assault against a child for sexually abusing his girlfriend’s daughter who was 11 years old. Evidence showed that defendant bribed and badgered the victim to engage in sexual conduct. The victim became suicidal and eventually shared the facts of his sexual abuse. Defense counsel did not present evidence during guilt-innocence. Defense counsel did not present evidence during punishment. Defense counsel stipulated to six prior adjudicated offenses. Defense counsel did not challenge evidence of several unadjudicated offenses. The State presented the testimony of the victim’s mother (defendant’s former girlfriend) who told the jury that the victim did not want to hurt the defendant, see him suffer, or spend the rest of his life in jail. In her opinion, her daughter had been brainwashed by the defendant. Before closing arguments and reading of the punishment charge, defense counsel moved to re-open the evidence to present punishment testimony from the victim regarding her feelings about punishing the defendant. The trial court denied counsel’s request to re-open the evidence. The State argued in punishment that, among other things, there was no “mitigating evidence, anything that would make you feel sorry for him.” The jury sentenced the defendant to 65 years.

Holding. No. A trial court’s refusal to reopen evidence is reviewed for an abuse of discretion. The Code of Criminal Procedure requires the trial court to “allow testimony to be introduced at any time before the argument of a cause is concluded if it appears that it is necessary to a due administration of justice.” Tex. Code Crim. Proc. art. 36.02. Evidence necessary to a due administration of justice is evidence that would materially change the case in the proponent’s favor. Defendant contends that the victim’s plea for leniency is “unique testimony for which there is no substitute and would carry great weight with any jury.” However, here, the jury had already heard the victim testify in guilt-innocence that she still cared for the defendant and the victim’s mother testified in punishment that she did not want to hurt him or spend life in prison. Because the jury heard the evidence from other sources, there is no basis to conclude that the testimony would materially change the case in the proponent’s favor.

Comment. If you can think of a reason to not call punishment witnesses in an Aggravated Sexual Assault of a Child case, then you have a better imagination than I do.

Flowers v. State, No. 01-18-01059-CR (Tex. App.—Houston [1st Dist.] May 27, 2021)

Issue. When a judge believes he has given the minimum punishment allowed but is wrong about the minimum punishment, may an appellate court reform the judgment to reflect the true minimum punishment?

Facts. Defendant pleaded guilty to Possession of Controlled Substance 4 Grams or More but Less Than 200 Grams in a Drug Free Zone (enhanced again by one prior felony). Counsel, prosecutor, and trial judge all agreed that the effect of the drug-free zone enhancement increased defendant’s minimum punishment to 15 years. They were wrong. On appeal the State and defendant agree on this much—that the minimum punishment for an offense so-enhanced is 10 years. When defendant expressed shock at the severity of his sentence and in particular that the Drug Free Zone enhancement also required the judge to sentence him concurrently with a separate charge to which he pleaded, the trial court expressed that it had sentenced the defendant to the minimum punishment allowed by statute. On appeal, Defendant requests a sentencing modification to 10 years imprisonment – the actual minimum allowed by statute.

Holding. No. The Rules of Appellate Procedure permit reformation of judgment to “speak the truth when the matter has been called to its attention by any source.” French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992). An appellate court may modify a trial court’s judgment when the record indisputably reflects an error which is correctible by reference to information on the record. “But the record must supply us with the information necessary to show both that a modification is warranted and the particular modification that is warranted.” Here, the trial court expressed that it had sentenced the defendant to what it believed was the minimum punishment, but the record does not reflect that the trial court would have sentenced the defendant to even less if it had known that less was possible.

Comment. The court provides a great summary of scenarios where it is appropriate to modify judgments or correct errors:

    • court costs and fees;
    • deadly-weapon findings;
    • the defendant’s name;
    • the offense of conviction;
    • appeal waivers;
    • the defendant’s plea to enhancement allegations;
    • enhancement-allegation findings;
    • family-violence findings;
    • period of community supervision;
    • fines;
    • the imposition of court-appointed counsel’s fees;
    • credit for time served;
    • the degree of felony of the offense of conviction;
    • conflicts between the trial court’s oral pronouncement of punishment from the bench and the written judgment;
    • the defendant’s plea to the indicted offense;
    • the identity of the person to whom the defendant must pay restitution; and
    • conflicts between the punishment assessed by the jury and the punishment stated in the trial court’s judgment.

2nd District Fort Worth

McBurnett v. State, No. 02-19-00418-CR (Tex. App.—Ft. Worth, May 6, 2021)

Issue. (1) Does a passing, unsolicited reference to the defendant’s pretrial incarceration sufficiently impair a defendant’s presumption of innocence that a mistrial is warranted? (2) Is a defendant who is intoxicated when he commits a sexual assault entitled to a jury charge on temporary insanity?

Facts. Defendant was convicted of raping his former girlfriend’s daughter. On the date of the offense, defendant was living in a hotel and the victim and his former girlfriend’s cousin were visiting him. Defendant was intoxicated and, after sending the cousin away, he raped the victim. She later gave birth to a child at age 13. The State showed through DNA evidence that it was 2.2 billion times more likely the child was his than someone else’s. An investigating officer testified at trial that he collected the defendant’s DNA sample while he was incarcerated in the Tarrant County jail, which drew an objection and request for mistrial from the defendant. The trial court sustained the objection, denied the mistrial, and instructed the jury to disregard.

Holding. No. “the present case involves a single brief, unsolicited reference to the defendant being in jail.” This objectionable comment was cured by a prompt instruction to disregard. It did not constitute the type of impairment on the presumption of innocence presented in cases where the defendant is forced to appear in trial wearing shackles or jail clothing. No. Voluntary intoxication is not a defense to the commission of a crime. However, a defendant has the right to introduce evidence of temporary insanity by virtue of intoxication in punishment mitigation. A defendant is entitled to a jury instruction whenever some evidence supports it. But in this context, there must be more than evidence of mere intoxication. The intoxication must overcome the defendant’s ability to distinguish right from wrong. The question is not whether the conduct lacks a rational explanation other than intoxication. The defendant must make a showing that he did not know that sexual assault was wrong. Because he did not do that here, the evidence did not warrant the jury instruction.

Flores-Garnica v. State, No. 02-20-00016-CR (Tex. App.—Ft. Worth, May 13, 2021)

Issue. (1) The law defines a “motor vehicle” in the context of a DWI prosecution as “a device in, on, or by which a person or property is or may be transported or drawn on a highway . . .” Does an ATV, which legally may not be operated on a highway, satisfy this definition if no evidence suggests it was actually operated on a highway? (2) When the trial court judicially notices and admits into evidence statutes which are probative of evidence rebutting the defendant’s theory, must the trial court provide an instruction pursuant to Texas Rule of Evidence 201(f) explaining that jurors may accept or reject the noticed statutes as conclusive? 

Facts. Defendant drove his Polaris ATV in a convenience store parking lot, ran into the store to get a twelve-pack of beer, got back onto his ATV, and sped down street/private drive back to his closed-to-the-public mobile home park. Officers stopped, investigated, and arrested defendant for driving while intoxicated. A jury convicted defendant in a trial focused on whether: (1) any of the places he drove constituted a public highway, and (2) whether the ATV constituted a motor vehicle. The trial court took judicial notice and provided or read to the jury in the form of evidence several Transportation Code statutes which were probative of arguments rebutting the defendant’s theory. Defendant requested and the trial court declined to instruct the jury under Texas Rule of Evidence 201(f), a provision which instructs that the jury could choose to accept or reject the noticed statutes as conclusive.

Holding. (1) Yes (see question presented). “Without citing any authority, Flores-Garnica strictly defines ‘may’ in the motor-vehicle definition to mean ‘is lawfully authorized to’ as opposed to ‘is physically capable of.’” The court rejects this “narrow construction of the statute.” Because an ATV is physically capable of transporting a person or property on a highway, it meets the definition of motor vehicle regardless of whether the defendant truly operated it in such a manner. (2) No. “Under Rule 201(f), when a court takes judicial notice of an adjudicative fact ‘in a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.” Adjudicative facts are the facts that must be established by evidence relevant to an ultimate matter and not subject to any controversy. The statutes at issue, admitted as evidence, are not adjudicative facts but rather legislative facts. Legislative facts are those having relevance to overall legal reasoning and the lawmaking process and need not be proven by evidence, nor are they governed by Rule 201. The statutes at issue here were not unique to this case nor were they necessary to the jury’s determination whether the defendant drove a motor vehicle (even though tangentially related to the defendant’s theory of the “may be transported” legal impossibility). In essence all the court did here was tell the jury the law, but did not tell the jury that these judicially noticed laws necessarily applied to this case. 

Comment. “May” either means legally permissible or physically possible. The court criticizes the defendant for choosing a definition which supports his acquittal without citing support for his choice. The court makes the alternative choice which supports affirming a conviction. The court does not cite any support for its choice.

3rd District Austin

Whillhite v. State, No. 03-18-00766-CR (Tex. App.—Austin, May 27, 2021)

Issue. Can the court of appeals entertain a void conviction argument raised for the first time on appeal from a revocation of deferred adjudication probation?

Facts. Defendant pleaded guilty to and was placed on deferred adjudication for sexual assault of a child and online solicitation of a child. In a subsequent revocation hearing the trial court sentenced the defendant to 75 years on each offense. The defendant appealed but his counsel filed an Anders brief alleging no meritorious grounds for appeal. Defendant filed a pro se petition for discretionary review with the Court of Criminal Appeals and the case was remanded on grounds that appointed counsel should have presented argument on the unconstitutionality of the online solicitation statute as determined in Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013)(Online Solicitation statute facially overbroad). With the appointment of new appellate counsel, defendant now makes such arguments.

Holding. Yes. Whereas a defendant normally loses the ability to raise issues pertaining to his initial plea in the context of a later revocation proceeding, “under the ‘void judgment’ exception to this rule, a defendant appealing the judgment after his guilt is adjudicated may collaterally attack the original deferred-adjudication order if the order was void.” Similarly, a defendant may raise for the first time on appeal—without raising first in the trial court—the issue of a void conviction arising from a statute that is facially overbroad.  Because defendant’s conviction is based on an unconstitutional statute, it is void and the court must render a judgment of acquittal.

4th District San Antonio

Ex parte Treviño, No. 04-20-00544-CR (Tex. App.—San Antonio, May 19, 2021)

Issue. (1) Do the Rules of Evidence apply in a bond revocation hearing? (2) Can the fact of an arrest alone provide a basis for no-bond order under Article 1, Section 11b of the Texas Constitution (no-bond order authorized in family violence case when a magistrate determines a defendant violated a condition of release related to victim or community safety)?

Facts. Defendant was arrested for aggravated assault with a deadly weapon upon his wife. His bond was set at $20,000. Defendant posted his amount and was released. Eventually several conditions were placed upon his pretrial release. He was prohibited from going near his wife’s apartment and prohibited from injurious contact with family members. The State filed a motion to revoke defendant’s bond after, according to their allegations, he went to his wife’s apartment, sexually assaulted her, and choked her until she passed out. As proof in the hearing to set new bond, the State offered offense reports, arrest affidavits, and hearsay testimony. The trial court considered this evidence over the defendant’s hearsay objections. The trial court ordered defendant held without bond.

Holding. (1) Yes. Texas Rule of Evidence 101(e)(3)(C) specifically provides that the rules of evidence apply in “hearings to deny, revoke, or increase bail.” (2) No. “Texas Constitution article I, Section 11b contemplates a hearing to deny bond to an accused pending trial.” The fact of the arrest alone does not establish the truth of the violation.

Romo v. State, No. 04-19-00772-CR (Tex. App. San. Antonio, May 26, 2021)

Issue. Does a video displaying nude pre-pubescent girls participating in a nudist beauty pageant shot in purported documentary fashion satisfy the requirement of “lewd exhibition of the genitals” essential to a child pornography conviction? 

Facts. Defendant was convicted of continuous sexual abuse of a child, indecency with a child, and possession of child pornography. The significant issue presented involves the issue of child pornography. During the investigation of the sexual abuse, police discovered a DVD titled “Nudist HDV” in the defendant’s office at the Food Bank where he worked. The DVD depicted young girls participating in a nude beauty competition.

Holding. No. “the meaning of the undefined statutory phrase ‘lewd exhibition of the genitals’ is a matter of law’ that we review de novo.” Citing State v. Bolles, 541 S.W.3d 128, 134 (Tex. Crim. App. 2017). In Bolles, the Court of Criminal Appeals borrowed from United States v. Dost to guide their determination on whether depictions of nude children are “lewd.”636 F. Supp. 828 (S.D. Cal. 1986). The Dost non-exclusive factors for consideration include:

    1. Whether the focal point of the visual depiction is on the child’s genitalia or pub area;
    2. Whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;
    3. Whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;
    4. Whether the child is fully or partially clothed, or nude;
    5. Whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;
    6. Whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

The video begins with a disclaimer that it is intended to portray nudist life, is not sexually oriented or adult in nature, and claims to be documentary and educational material. The video focuses mainly on pre-pubescent girls and depicts no pre-pubescent boys. There are a few adults depicted. The cameraman focuses only on the faces as he talks with the girls before a beauty pageant. The setting is outside in a grassy picnic area. There is no sexual activity depicted, everyone is behaving casually. Accordingly, “the evidence is legally insufficient to support a finding that the video depicts a lewd exhibition of the genitals.”

Dissent (Alvarez, J.). The suspiciously over-enthusiastic label on the DVD reads “100 percent genuine, fully-legal nudist documentary, Miss Jr. Teen Beauty Competition.” Several children have tan lines. Several children have shaved or partially shaved pubic hair. The cameraman intentionally keeps their nudity within the frame. The video is in French but the disclaimer seems to be intended for an American audience, promising no federal laws are violated. There appears to be no purpose to the film except to show naked girls. This is more akin to child pornography cases involving voyeurism than those typically analyzed under the Dost factors.

Comment. I agree with Justice Alvarez, “the artifice is apparent and not at all natural.”

5th District Dallas

Nawaz v. State, No. 05-19-00092-CR (Tex. App.—Dallas, May 11, 2021)(not designated for publication)

Issue. When the State alleges in two indictments indistinguishable acts and injuries, does double-jeopardy prevent a conviction for both: (1) Injury to a Child – Serious Bodily Injury, and (2) Injury to a Child – Serious Mental Deficiency?

Facts. Defendant was accused of inflicting serious head injuries to his two-month-old daughter. She was taken to the hospital with abnormal breathing, vitals, and blood oxygen. CT and MRI scans revealed brain bleeds, hematomas, contusions, and neck ligament damage. According to physicians, these were all indicative of trauma from some sort of external whipping-like force. Appellant and his wife had no explanation for their daughter’s injuries. A pediatric ophthalmologist concluded that she had suffered retinal hemorrhaging and would not regain vision. A child abuse pediatrician determined that the injuries would result in developmental delay and permanent loss of mental function. The State prosecuted defendant for: (1) Injury to a Child Causing Serious Bodily Injury With Deadly Weapon (hands), and Injury to a Child Causing Serious Mental Deficiency With Deadly Weapon (hands).

Holding. Yes. The Blockburger test for double jeopardy permits a conviction for two similar offenses when each provision requires “proof of a fact which the other does not.” Texas applies a modified Blockburger test described as the “cognate-pleadings approach.” See Bigon v. State, 252 S.W.3d 360 (Tex. Crim. App. 2008). “Under the cognate-pleadings approach adopted by this Court, double-jeopardy challenges should be made even to offenses that have different elements under Blockburger, if the same ‘facts required’ are alleged in the indictment.” Id. Overlying these tests is the legislative intent—“the Blockburger test cannot authorize two punishments where the legislature clearly intended one.” Ervin v. State, S.W.2d 804, 807 (Tex. Crim. App. 1999)(providing factors for interpreting the legislature’s intent).

Both convictions fall under the same penal code section. The relevant statutory subsections are phrased in the alternative or disjunctive. They all carry the same punishment range. Each indictment lists the identical manner and means of committing each violation. The indictments do not list distinct incidents of injury. The facts required for conviction in each indictment were exactly the same. Injury to a Child is a result-of-conduct offense and the State neither alleged nor proved distinct injuries that the defendant inflicted. “Because it is the child’s injury that defines the offense, the State may not obtain two convictions against a defendant for causing the same injury.”

Comment. The State has requested additional time to prepare a petition for discretionary review with the Court of Criminal Appeals. The issue appears to be one of first impression, however, the Fifth Court of Appeals notes that the Court of Criminal Appeals has analyzed this statute in related ways. In particular, in Villanueva v. State, the Court of Criminal Appeals addressed whether a defendant could be prosecuted for Injury to a Child for both an “act” and an “omission” and concluded “it was conceivable—so long as the State could prove that two separate and discrete incidents occurred on that day comprising two violations of the statutorily defined offense.” Citing Villanueva, 227S.W.3d 744 (Tex. Crim. App. 2007).

6th District Texarkana

State v. Bronson, No. 06-20-00135-CR (Tex. App.—Texarkana, May 26, 2021)

Issue. Does the Supreme Court Emergency Orders Regarding the COVID-19 State of Disaster which permit trial courts to extend certain deadlines allow a trial court to grant “shock-probation” (suspension of a partially executed prison sentence) after its statutorily defined 180-day jurisdiction expires.

Holding. No. Citing In re State ex rel. Ogg, 618 S.W.3d 361 (Tex. Crim. App. 2021) the court held that shock probation jurisdiction could not be enlarged.

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

Campbell v. State, No. 10-19-00191-CR (Tex. App.—Waco, May 19, 2021)

Issue. Is it harmful error to allow a jury to convict a person of murder by giving them four definitions of murder, one of which is not murder? 

Facts. The defendant strangled the victim to death. The two were friends and the defendant paid the victim for sex. The defendant testified at trial that the victim “engaged in erotic asphyxiation during sex.” In the application portion of the jury charge, the jury was instructed to convict the defendant “if they found beyond a reasonable doubt that he 1) intentionally caused the death of Wright, 2) knowingly caused the death of Wright, or 3) with intent to cause serious bodily injury, committed an act clearly dangerous to human life and caused the death of Wright.” In the abstract portion of the jury charge, the court defined intentionally as:

A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

The defendant objected and argued that “intentional murder is a result of conduct offense and that the charge was in error because it defined intentionally as it relates to both the ‘nature’ of his conduct as well as the ‘result’ of his conduct.”

Holding. The court assumes without deciding that Murder is a result-of-conduct offense and that it was erroneous to define “intentional” to include “nature of his conduct” language. A court will not reverse on objected-to jury charge error on the basis of theoretical harm – the defendant must have suffered actual harm. Here, the jury was charged on both knowing and intentional conduct. The jury was also given the option of finding that the defendant intended serious bodily injury that was clearly dangerous to human life. Because thee defendant cannot show the  jury utilized the erroneous definition, the defendant cannot show harm. Plus, the State’s evidence was really good evidence.

Dissent (Gray, C.J.). “Appellant choked Jade. Jade died as a result. Did appellant intend the result? That was one option in the charge available to the jury. There were at least five different ways, manner and means, that would allow an affirmative answer to that question.” “But the charge included an admittedly erroneous definition of ‘intentionally’ that allowed the jury to convict the appellant if he intended to choke Jade.” This erroneous definition allowed the jury to find him guilty of murder based on conduct that does not constitute murder. If this were a civil case, we’d reverse it.

Comment. Chief Justice Gray is correct. You cannot hold a person to proof of harm that is impossible to show. “If the jury is charged on both a proper and improper theory of liability . . . the error in the charge is harmful because the party is unable to know, and therefore unable to show on appeal, that the answer is based on the improper theory.”

Rodriguez v. State, No. 10-18-00253-CR (Tex. App.—Waco, May 20, 2021)

Issue. Must a defendant who made a pretrial discovery request pursuant to Texas Code of Criminal Procedure Article 39.14 move for a continuance mid-trial to preserve error when the State attempts to admit undisclosed evidence?

Facts. Defendant was convicted of hindering apprehension of a fugitive because she lied about the presence of a fugitive in her home when police came looking with an arrest warrant. At trial the defendant objected to testimony about a warrant because it had not been produced pursuant to defendant’s discovery request in compliance with Texas Code of Criminal Procedure Article 39.14. The State argued that they did not possess the warrant because it was in the custody of the district clerk, and that disclosure was not required because the district clerk is not under contract with the State.

Holding. Yes. [T]he record reflects that appellant did not request a continuance in response to the State’s proffer of the Lopez arrest warrant. In other words, appellant had the opportunity to avoid the prejudice and impairment but chose not to. Therefore, we hold that appellant has waived her article 39.14(a) complaint in this issue.”

Concurrence (Gray, C.J.).The error was harmless, but “I respectfully disagree that a motion for continuance should be required to preserve error of this issue.” The resolution of this case is “critical to whether the adoption of the Michael Morton Act is going to have any lasting meaning for the fair and efficient prosecution of criminal trials in Texas.”

Comment. No one should be surprised that I agree with Chief Justice Gray here again. Error preservation rules are judge-made rules and in this arena of prosecutors not doing what they are supposed to do, we add extra rules on top of the normal error preservation rules required in other contexts. I hope appellate counsel files a petition for discretionary review in this case.

11th District Eastland

Yoda v. State, No. 11-19-00191-CR (Tex. App.—Eastland, May 6, 2021)

Issue. Must an officer have training or expertise to render an opinion which informed his reasonable suspicion that an individual was speeding, potentially as much as 15-25 miles per hour over the speed limit?

Facts. Defendant was convicted by a jury of felony habitual Driving While Intoxicated and received an enhanced sentence of 35 years. This came after the trial court denied defendant’s motion to suppress challenging the arresting officer’s qualifications to determine he was speeding. The arresting officer observed the defendant cross in front of him moving at what he believed was a high rate of speed. The officer indicated “it took me a while to catch up and that he had to accelerate to approximately 73 miles per hour to catch up to Appellant.” He estimated defendant was traveling 60-70 miles per hour in a 45 mile per hour zone. The arresting officer admitted he lacked certification to activate and use radar, that he was not authorized to issue speeding tickets for this reason, and that he has no specialized training for estimating the speed of a vehicle crossing his path. The arresting officer testified that he based his conclusions about defendant’s speeds based on his own personal driving experiences.

Holding. “Experienced drivers may form and express a lay opinion about the speed of other vehicles they observe on a roadway based on the objective facts they describe, and depending on the facts the witness articulates, the facts described may be sufficient for a court to allow a lay witness to express a lay opinion about another vehicle’s speed.” Defendant’s criticisms are unpersuasive: (1) that speed was not measured by radar or pacing, (2) that no evidence showed defendant was passing vehicles going the speed limit, (3) that the officer lacked training in estimating speed, and (4) that the officer had no scientific method for gauging speed. These criticisms go to the weight that the trial court should choose to give to the officer’s testimony, a determination which must be given almost total deference. Guestimating that someone is speeding by four or five miles per hour might be suspect, but estimating that a person is speeding when appearing to be driving at twenty miles over the speed limit is within the capabilities of an experienced driver. Moreover, an actual speed is not necessary to making a determination that a person is speeding. It is an offense to “Drive at a speed greater than is reasonable and prudent under the circumstances then existing.” The posted speed acts only as prima facie evidence that greater speeds are not reasonable and prudent. If an officer believes, independent of the posted speed limit, that a person is driving at a speed not reasonable and prudent, that officer is justified in conducting a traffic stop.

Comment. “Suppress or suppress not. There is no try.” PDR has been filed because “these are not the rulings you are looking for.”  

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

Salinas v. State, No. 13-19-00504-CR (Tex. App.—Corpus Christi-Edinburg, May 13, 2021)

Issue. (1) does a vehicle owner have a subjective and objective expectation of privacy in a USB drive found in his vehicle by technicians performing maintenance at the request of the owner? (2) Did vehicle technicians commit Breach of Computer Security by looking at files on the USB drive and thus trigger Texas’s exclusionary rule (applicable to both state actors and private citizens)? (3) Did the police unlawfully perform a confirmatory search after technicians informed them that the USB drive contained child pornography?

Facts. Defendant dropped his truck off at the dealership to receive service on a check engine light, the air conditioner, and a problem with the glove compartment. The two technicians working on the vehicle discovered a USB drive in the vehicle and decided to plug it into one of their computers to see what they could find. They found child pornography. They called the police. Initially, they lied about their reasons for looking through the defendant’s USB drive, but they ultimately settled on a story in which they were both curious whether they would find any music on it.  The police performed a confirmatory search to discover the child pornography themselves.

Holding. (1) Yes. The defendant demonstrated his subjective expectation of privacy by hiding his files on a USB drive. The defendant’s expectation was not diminished by dropping a vehicle off for service that was totally unrelated to the USB drive. Because the defendant had a property interest in the USB drive, did not give permission to access it, and the accessing the USB drive by technicians was outside of the scope of the repairs he requested, his expectation of privacy was also objectively reasonable. (2) No. The USB drive must be a “computer” before the actions of the technicians constitute “Breach of Computer Security.” A “computer” is defined as “an electronic, magnetic, optical, electromechanical, or other high speed data processing device that performs logical, arithmetic, or memory functions by the . . . and includes all . . . storage . . . facilities that are connected or related to the device.” Under this definition, a USB drive is not a computer because it only stores data. It does not perform data processing. Had the USB been connected to a computer, then it might have fallen within that definition’s concept of devices that are “connected or related to the device.” But here it was merely sitting loosely in a door compartment.  (3) No. The private search doctrine, an exception to the warrant requirement, provides that the Fourth Amendment is inapplicable to a search or seizure, even an unreasonable one, conducted by a private individual not acting at the direction of or participating with the government. Law enforcement may examine evidence that a private party has unearthed and made available. Here, when the technicians accessed the child pornography, they obliterated the defendant’s expectation of privacy. “Therefore, there was no Fourth Amendment violation when the officers searched later.”

Comment. There is nuance here that is ignored. Of course police can view what has been put on display by a private citizen’s search. But the private search doctrine isn’t one which diminishes expectations of privacy as suggested by the court, it merely exculpates the police from the wrongfulness of the search. Here, when the private citizen went to the police and said “look what I found,” all that could be seen was a piece of plastic and metal that could be plugged into a computer. The police had to conduct an independent search to discover what had been previously discovered by the technicians. The Court’s rationale is no different than holding that the police may enter and search a person’s home upon a report from a former houseguest that they saw marijuana inside a sock drawer. They can’t do that, so they shouldn’t be able to do this.  

14th District Houston

Hart v. State, No. 14-19-00591-CR (Tex. App.—Houston [14th Dist.] May 13, 2021)

Issue. (1) Was trial counsel ineffective by not moving to suppress video evidence which he believed was obtained unlawfully but lacked factual support to substantiate his belief? (2) Was trial counsel ineffective by declining the trial court’s offer to include sudden passion in a punishment charge based on his  incorrect understanding of the law?

Facts. Defendant shot his daughter’s abusive boyfriend in front of his home. Defendant had surveillance cameras on the front of the house which captured defendant’s confrontation with the boyfriend and the shooting. The video was the foundation of the State’s case. They obtained it through a broadly worded consent form executed by defendant’s wife allowing officers to seize “any and all letters, papers, materials and other property, which they desire.” Defense counsel represented to the trial court that defendant’s wife did not know what she was signing, but also represented that he did not have evidence to support a suppression of the video. After the jury convicted the defendant, the trial court crafted a jury charge on punishment. During this process, the trial court offered an instruction on sudden passion to the defendant. Counsel rejected this offer.  He stated that he did not believe the facts supported it after reviewing case law.

Holding. (1) No. Evidence did not support the suppression. Counsel thought defendant’s wife might have been confused by the consent she had provided. However, defendant’s wife testified in punishment and never stated she was confused. The consent forms were clear. Officers gave her plenty of time to sign it. (1) Yes. “[T]his is not a situation in which Hart’s counsel elected to pursue an alternative defensive strategy instead of seeking a sudden-passion instruction. The decision to decline the trial court’s offer was not strategic. Counsel explicitly stated that he believed the law did not permit such an instruction under these facts. He was wrong. At least some evidence showed that the defendant was acting out of “terror or rage, or both” at his daughter’s boyfriend returning to the home to abuse his daughter. Some evidence also showed that he lost his capacity for cool reflection. The jury sentenced the defendant to 30 years, but they might have otherwise found themselves limited by the lesser sentencing range of 2-20 years under a sudden-passion finding.

Dissent (Wise, J.). “The majority eviscerates any discretion that seasoned criminal defense attorneys may exercise to pursue one defensive strategy over another. I must respectfully dissent.” “If the record in this case reveals anything about counsel’s reason for not requesting a sudden passion instruction, it is that counsel affirmatively considered the merits of requesting the instruction and rejected it.” Sudden passion did not fit with counsel’s theory of the defendant as “a considerate family-man who wanted to protect his daughter from a persistent problematic boyfriend.”

Comment. It is a stretch for the dissent to convert “Q: As you’ve discussed with the State, you don’t believe the facts support it; is that correct? A: That is correct, Judge. I went through about six pieces of case law, and there was one that was directly on point and it just—it wasn’t supported by the facts.” Into: “No, its not that I don’t think the defendant is legally entitled to the instruction, it’s just that it doesn’t fit with my theory of the case.”

Moore v. State, No. 14-19-00466-CR (Tex. App.—Houston [14th Dist.] May 18, 2021)

Issue. Did the trial court improperly comment on the weight of the evidence by offering hypotheticals corroborating a complaining witnesses’ account when that witness was under cross examination about the truthfulness of her allegation?

Facts. The jury convicted the defendant of Assault Family Violence. The evidence at trial was “he-said / she-said.” The complainant said that the defendant pinched her nose, covered her mouth, pushed her face into the couch for fifteen seconds. During cross-examination, the trial court repeatedly came to the rescue of the complainant by “fabricating hypotheticals in support of the complainant’s account.”

[DEFENSE COUNSEL:]                  And again, 6:28:46 [a.m. on the video], here we go again, light is—
[THE STATE]:                                   Objection, Your Honor, to the relevance of where the cell phone light is.
THE COURT:                                     I’m hoping you’re going to go somewhere with this. Where is the relevance?
[DEFENSE COUNSEL]:                  The relevance, Your Honor, is if she’s being attacked from behind by [appellant] and she’s presumably the only one holding the cell phone and it’s remaining in relatively the same place, it’s inconsistent.
THE COURT:                                     It could be on a table or something over there.
[DEFENSE COUNSEL]:                  Well, but it does move, Your Honor. It does move in the video.
THE COURT:                                     Maybe shook the room or the table or something—
[DEFENSE COUNSEL]:                  Judge, I object to the commentary on the evidence—
THE COURT:                                     I’m just saying, I don’t understand where you’re going with this.
[DEFENSE COUNSEL]:                  I object on the Court’s commentary as it comments on the weight of the evidence.
THE COURT:                                     You—you keep asking her that. You’ve asked her this question so many times.
[DEFENSE COUNSEL]:                  Well, I understand the Court’s position; but I object to what the Court has now said to the jury. I object to it and I ask that it be stricken from the record.
THE COURT:                                     It will be stricken from the record. It’s just rhetorical. But please ask a question and get an answer and let’s move on.
[DEFENSE COUNSEL]:                  And I ask that the jury be instructed to disregard.
THE COURT:                                     And please disregard my statement.
[DEFENSE COUNSEL]:                  Thank you, Your Honor.

Holding. Yes. Texas Code of Criminal Procedure Article 38.05 provides:

In ruling on the admissibility of evidence, the judge shall not discuss or comment on the weight of the same or its bearing on the case . . . nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.”

A comment on the weight of evidence occurs when the trial court: (1) makes a statement that implies approval of the State’s argument, (2) indicates disbelief in the defense’s position, or (3) diminishes the credibility of the defense’s approach to the case. Here the trial court’s invented factual scenarios implied approval of the State’s case in a way that made the trial court “an advocate for the State.” This was improper comment on the evidence under Article 38.05. Because the defense’s theory was that the complainant orchestrated and fabricated an assault, the State’s case hinged on the complainant’s credibility and the trial court’s commentary weighing in on this ultimate issue was harmful and given the pivotal nature of the testimony, the limiting instruction did not sufficiently cure this harm.

Comment. Kudos to trial counsel for preserving this record under fire. It took three objections to get the trial court to stop inventing hypotheticals before the trial court ultimately ruled on the objection. Then, as he should have, he asked for a limiting instruction and requested a mistrial.

June 2021 SDR – Voice for the Defense Vol. 50, No. 5

Voice for the Defense Volume 50, No. 5 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

The Court of Criminal Appeals removed two people from death row this month. But it remains possible that one of them might have preferred to stay there. The Eighth Court of Appeals explores what happens when you mix marijuana with toilet water. Harris County defense lawyers are not letting up on District Attorney Ogg… and this month’s musical reference is brought to you by Madonna. This is my sixth month as SDR editor, and it has thus been a lot of work and a lot of fun! Let me know if you see anything I have missed or that needs more attention.

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 on the online edition.

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

United States Supreme Court

Jones v. Mississippi, 141 S. Ct. 1307 (2021)

Issue. Miller v. Alabama and Montgomery v. Louisiana prohibit a trial court from imposing a mandatory life-without-parole sentence on children who committed their offense while under the age of 18 and may only do so after determining the defendant is permanently incorrigible. Does this requirement (1) impose a duty to make written findings of incorrigibility? (2) impose a duty to make an on-the-record sentencing explanation with an implicit finding of incorrigibility?

Facts. When the defendant was 15 years old, he got into an argument with his grandfather and stabbed him to death. At the time of his conviction, the State of Mississippi required, and the trial judged imposed, a mandatory life without parole sentence. This sentence was reversed when the Supreme Court handed down Miller v. Alabama, 567 U.S. 460 (2012), which provided that the Eighth Amendment prohibits mandatory life-without-parole sentences for defendants under the age of 18. The Mississippi Supreme Court ordered new sentencing and instructed the trial judge to exercise discretion in selecting an appropriate sentence. The trial court heard argument on why not to impose life-without-parole, then, acknowledging its discretion, imposed a life-without-parole sentence. The instant appeal pertains to the trial court’s failure to make a specific fact finding that the child is “permanently incorrigible.” According to the defendant, this factual finding is mandated by Montgomery v. Louisiana, 577 U.S. 190 (2016).

Holding. (1) No. Neither Miller nor Montgomery requires an explicit factual finding that a child is permanently incorrigible prior to imposing a life-without-parole sentence. They explicitly state the contrary. “Miller mandated only that a sentencer follow a certain process—considering an offender’s youth and attendant characteristics—before imposing a life-without-parole sentence.” “Montgomery then flatly stated that Miller did not impose a formal factfinding requirement and that a finding of fact regarding the child’s incorrigibility . . . is not required.” Incorrigibility is not an “eligibility factor” akin to cases involving potential insanity or lack of intellectual disability where the court must make specific findings of eligibility for death sentencing. Incorrigibility is a mitigating circumstance akin to individualized mitigating circumstances which must be considered in capital cases which are done without the requirement of factual findings. (2) No. Defendant’s argument that pronounced on-the-record findings is required to assure actual consideration of incorrigibility assumes a distinction which does not exist. “But if the sentencer has discretion to consider the defendant’s youth, the sentencer necessarily will consider the defendant’s youth, especially if defense counsel advances an argument based on the defendant’s youth.” Neither Miller nor Montgomery requires recorded findings. Again, this is akin to the consideration of individual mitigating circumstances in a death sentence case where the fact finder does not need to articulate their rationale. The Defendant has a lot of good arguments for why he shouldn’t be sentenced to life-without-parole and he should present them to the state legislature or the governor.

Concurrence (Thomas, J.). The majority reaches the correct result through a strained reading of Montgomery and Miller. “If Montgomery is correct about the existence of a concrete class of offenders who—as a matter of fundamental constitutional law—are categorically exempt from a sentence of life without parole, then there must be a determination as to whether Jones falls within that protected class. Otherwise, the “line” Miller ostensibly drew . . . between children whose crimes reflect transient immaturity and those rare children whose crimes reflect irreparable corruption is more fanciful than real.” The Court should either follow Montgomery, “[o]r we could just acknowledge that Montgomery had no basis in law or the Constitution.” Thomas would do the latter and allow states to execute more children because that is their prerogative.

Dissent (Sotomayor, J.). “In the Court’s view, a sentencer never need determine, even implicitly, whether a juvenile convicted of homicide is one of those rare children whose crimes reflect irreparable corruption. Even if the juvenile’s crime reflects unfortunate yet transient immaturity, he can be sentenced to die in prison.” This is contrary to the explicit holdings of Miller and Montgomery where the court determined the rule, a substantive rule, for which mere sentencing discretion provides inadequate protection. “How low this Court’s respect for stare decisis has sunk. Not long ago, that doctrine was recognized as a pillar of the ‘rule of law,’ ‘critical to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion.’” Ramos v. Louisiana, 590 U.S. —- (2020)(opinion of Kavanaugh).

Comment. Some have found Justice Kavanaugh’s authorship of this opinion ironic after he presented himself as the poster child for how a person can change after high school when he faced a senate confirmation focused almost entirely on conduct as a young man.

Fifth Circuit

United States v. Navarro-Jusino, 993 F.3d 360 (5th Cir. 2021)

Issue. Is a sentence 87 months above the sentencing guideline range unreasonable for a defendant who stole $500,000 from a victim through a fraudulent investment fund, who caused his victim exceptional hardship, and who minimized his conduct in an allocution by describing his conduct basically as bad business decisions?

Facts. Defendant defrauded his victim and stole his $500,000 of life savings through a fake investment fund. The victim was forced to sell his possessions and to live in government housing. Defendant pleaded guilty, and during sentencing the victim gave a victim impact statement. The trial judge asked what the victim wanted, and the victim’s response was “I hope he gets enough where . . . I’ll feel justified in your sentencing.” The trial court informed the parties he was considering an upward variance (an above-sentencing-guideline sentence) and asked for argument. The defendant addressed the court and characterized his crime as “misusing funds and making a mistake, by mingling business with personal on that account,” he explained that he invested the money in a gym that failed and concluded his statements by promising to pay the victim back. The government challenged the defendant’s minimization as just a different version of fraud – investing the victim’s money in something he didn’t authorize. The trial court sentenced the defendant to 120 months (an 87-month upward variance).

Holding. No. An above-guidelines sentence is unreasonable if it (1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing the sentencing factors. The defendant is correct to characterize his 87-month variance as large, but it was justified. His conduct devastated the victim and he tried to minimize his crime, “essentially pure theft,” as a mistake and as bad business decisions. This is enough to justify the upward variance of 87 months.

Comment. This is a short read for any client who thinks it’s a good idea to use their allocution to explain what really happened in their case.

United States v. Shkambi, 993 F.3d 388 (5th Cir. 2021)

Issue. Now that prisoners may file their own motions for compassionate release through the First Step Act, is a U.S. district court bound by the U.S. Sentencing Commission’s pre-First Step Act policy statement regarding Bureau of Prison (“BOP”) compassionate release motions when the compassionate release motion is filed by a prisoner, instead?

Facts. Defendant filed a request for compassionate release describing the prison in which he was held as “a cauldron of disease and death” during the COVID-19 pandemic. He indicated that one in four inmates at FCI Elkton has been infected with COVID-19. He also indicated that he had been infected, taken to a hospital to recover, and now fears reinfection as an at-risk inmate with a weakened immune system. The district court pointed to a pre-First Step Act policy statement of the U.S. Sentencing Commission to determine it did not have jurisdiction to consider the prisoner’s motion for compassionate release.

Holding. No. First, the trial court did have jurisdiction. Statutorily mandated factors for consideration in the exercise of judicial discretion are not congressional delineations of district court jurisdiction. To the extent the trial court would have applied the same rationale in considering the merits of the prisoner’s compassionate release motion under 18 U.S.C. § 3582, the trial court further erred by relying on a pre-First Step Act policy statement by the U.S. Sentencing Commission. Congress has provided that compassionate release is appropriate where: (1) extraordinary and compelling reasons warrant such a reduction, (2) such a reduction is consistent with applicable policy statements issued by the Sentencing Commission, and (3) such a reduction is appropriate after considering the factors set forth in 18 USC 3553(a) (factors of consideration for discretionary sentencing). Congress delegated to the Sentencing Commission the obligation to define “extraordinary and compelling reasons.” The Sentencing Commission has seen fit to do so only once, and during a time when only the BOP could bring a compassionate release motion. In that statement, the Sentencing Commission explained that extraordinary and compelling reasons could include: (A) medical conditions, (B) age, (C) family circumstances, and (D) other reasons. But, again, his policy statement explicitly applied to motions brought by the BOP. The First Step Act changed this dynamic by allowing a prisoner to file a compassionate release motion under certain circumstances. This is what occurred here. And because this was a prisoner motion and not a BOP motion, the Sentencing Commission’s policy statement is irrelevant. On remand the trial court should consider the merits of the defendant’s motion based on the normal factors of judicial discretion in sentencing under 18 U.S.C. § 3553 and statutory guidance for compassionate release under 18 U.S.C. 3582.

Comment. On remand, this motion will most assuredly be denied as there does not appear to be much that a trial court would logically consider in absence of the Sentencing Commission policy statement.

United States v. Huerta, No. 20-50343 (5th Cir. Apr. 21, 2021)

Issue. Can a U.S. district court apply the four-point sentencing guideline enhancement applicable to possession of a firearm “in connection with another felony offense” when a defendant is convicted of possession of a firearm as a felon, but evidence showed the defendant’s possession coincided with uncharged conduct indicative of drug trafficking?

Facts. Police responded to a called about a person with a gun at the Super 8 Motel and found the defendant to be that person. They also discovered several associates of the defendant to have guns and drugs in their possession, as well. One associate indicated that he and the defendant had come to motel to inquire about their purchase of 15 pounds of methamphetamine. One individual, who had not come to the motel with the defendant, and her associate was found to be in possession of 81.6 grams of methamphetamine.

Holding. The sentencing guideline enhancement for possession of firearm “in connection with another felony offense” applies where the firearm is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia. In considering this enhancement the district court may consider “(A) all acts and omissions committed, aided, abetted, [etc], willfully caused by the defendant; and (B) in the case of a jointly undertaken criminal activity . . . all acts and omissions of others that were . . . reasonably foreseeable in connection with that criminal activity.” USSG § 1B1.3(a)(1). The defendant came armed with the tools of the trade of drug trafficking and was found with a firearm near 81.6 grams of methamphetamine discarded by her associate near another associate who had nearly $10,000 in cash. Although the associate who possessed the methamphetamine did not come to the motel with the defendant, the defendant came to the motel to engage in conduct pertaining to drug trafficking. This was sufficient to justify the four-level enhancement.

Texas Court of Criminal Appeals

Martin v. State, No. PD-0563-19 (Tex. Crim. App. 2021)

Issue. When firefighters put out a stovetop fire and observe drugs and guns in the course of ventilating an apartment, do exigent circumstances and community caretaking justify police entry to keep firefighters safe from the drugs and guns?

Facts. Firefighters responded to a small stovetop fire in defendant’s apartment. During efforts to ventilate the apartment firefighters observed in plain view: (1) a torch, (2) little plastic baggies, (3) an unmarked jar of pills, (4) a glass object with some residue inside it, (5) numerous lighters and/or butane lighter fluid, and (6) multiple firearms. Concerned for their safety, the firefighters contacted law enforcement. When law enforcement arrived, firefighters indicated that they would be unable to finish ventilating the apartment until police performed a “safety check.” The responding officer entered the apartment without consent and performed a protective sweep to check for threats. During the protective sweep the responding officer observed the same items observed by firefighters. He also observed a baggie with a white crystal-like substance. Moments later, narcotics officers arrived, and they too went into the apartment to see all the things. The narcotics officers applied for and obtained a search warrant leading to the discovery of methamphetamine. Appellant filed a motion to suppress arguing that the fire had been extinguished, the apartment had been fully ventilated before the officers’ arrival, and the exigency had subsided.

Holding. It is an exception to the warrant requirement that “the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment. Kentucky v. King, 563 U.S. 452 (2011). A fire creates an exigency, and that exigency does not end “with the dousing of the last flame.” “[W]here fire or police officials enter a structure during or in the immediate aftermath of a fire to conduct legitimate duties connected to the original exigency of the fire, no search warrant is required. Here the exigency was ongoing. The fire chief informed the responding officer of “various safety concerns that had arisen while firefighters were still working on the scene” and asked for a safety check. Objectively, and from the officer’s vantage point, the safety check was necessary to assist firefighters in their completion of ventilating the apartment. The Court declined to extend the “step into the shoes” doctrine where an officer may step into the shoes of the firefighter who observed contraband and then seize that contraband. The court of appeals expanded this doctrine to the present scenario where the officer stepped into the shoes of the firefighter not to seize evidence, but rather to make an observation for the purpose of preparing a search warrant. The Court also declined to invalidate the search warrant based on the argument that it was completed by a much-later-arriving narcotics officer who entered seemingly without justification and made his own observations. When excising from the warrant affidavit that officer’s observations, the affidavit still contained probable cause. 

Comment. This is a logical result, but it blurs the lines of exigent circumstances and community caretaking exceptions. There are two elements to the exigent circumstances exception: (1) exigency and (2) probable cause. If the State does not adequately establish both probable cause and exigent circumstances, then the warrantless entry will not withstand judicial scrutiny. Guitierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007). Community caretaking on the other hand permits an officer to conduct community caretaking functions, “totally divorced from the detection, investigation or acquisition of evidence.” Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528, 37 L. Ed. 2d 706 (1973). An exigency may inform the necessity of community caretaking, but an exigency by itself does not justify warrantless search and seizure.

Curlee v. State, No. PD-0624-20 (Tex. Crim. App. 2021)

Issue. Does a playground on the premises of a church and surrounded by a chain link fence constitute a “public” playground for the purposes of a drug-free zone enhancement to a drug possession charge?

Facts. Defendant was visiting a friend at the jail when a series of events lead to a vehicle inventory search producing methamphetamine. The jail parking lot where the vehicle was parked was located 547.38 feet from a church with a playground. The playground was surrounded by a chain link fence with some locked gates some unlocked gates. Defendant was convicted of possession of a controlled substance in a drug free zone (a playground). His challenge to the sufficiency of the evidence focused on whether the playground was “open to the public” as required by the statutory definition. The playground in question was on the premises of a church, was surrounded by a chain link fence, with some locked gates and some unlocked gates.

Holding. A playground for purposes of a drug-free zone enhancement must be “open to the public.” Whether a playground is fenced-in is not dispositive of this analysis. Nor is the existence of locks on gates. The apparent expectation of the playground owner when objectively viewing the property is dispositive. Fences and gates inform the analysis. “Absent other evidence, the presence of a fence tends to show that the playground is closed to the public. If other evidence is presented showing, directly or circumstantially, that the fence serves a purpose other than keeping the public out, the fence may be probative evidence tending to show that the playground is ‘open to the public.’” Here, multiple gates were locked, including the gate adjacent to the public sidewalk. The Court was unpersuaded by several of the State’s arguments and theories:

    • Analogies to the definitions of “public” under the trespass and burglary statutes.
    • The police officer’s lay witness but conclusory opinion that the playground was open to the public.
    • The open welcoming nature of churches (mini-comment: this made me laugh).
    • The attractive nuisance doctrine.
    • Legislative history suggesting the intent of the legislature was to enhance possession of drugs in places “where children are known to gather.”

Concurrence (Keller, P.J.). The court digs too deep. Would hold that public playgrounds are open to the public and private playgrounds are not open to the public.

Dissent (Yeary, J.). The cops said it was open to the public. The exhibits showing locked gates were taken after the offense. The evidence was not monolithic, and the jury was free to determine this playground was open to the public.

Comment. I’m picturing a prosecutor lamenting this loss; crumpling up trial exhibits and throwing them into a fire while comforting himself with the memories of a simpler time—finding solace of the nostalgic melody of Madonna’s “This used to be my Playground.”

This used to be my playground [enhancement] This used to be my childhood dream
This used to be the place I ran to
Whenever I was in need of a friend
Why did it have to end?

Madonna, This Used to be my Playground (Sire Records, 1992).

Becerra v. State, No. PD-0804-19 (Tex. Crim. App. 2021)

Issue. Does trial counsel waive objection to the participation of a thirteenth juror in deliberations by failing to object when the alternate juror entered the jury deliberation room unbeknownst to trial counsel?

Facts. The bailiff discovered that the alternate juror had entered the jury deliberation room and participated in jury deliberations. Further hearing showed that the juror also voted with the other jurors on their verdict. The trial court removed the juror, admonished the remaining jurors to disregard his participation, and to resume deliberations. Defendant moved for a mistrial which the trial court denied because he failed to object at the moment the juror entered the room (before anyone knew that the juror had entered the room). The jury returned a guilty verdict 40 minutes later.

Holding. Article V, Section 13 of the Texas Constitution and Articles 33.01, 33.011, and 36.22 of the Code of Criminal Procedure prohibit an alternate juror to participate in deliberations with the jury as a thirteenth juror. The defendant need only object when a violation comes to his or her attention. “Requiring otherwise would compel a defense attorney, after closing arguments, to follow the jury outside the courtroom, through doors, hallways, and perhaps other architectural features depending on how the particular courthouse is designed, finally reaching the jury room door for the purpose of counting the number of jurors before the jury begins deliberations.”

Comment. When the trial court informed counsel that he had to object to the fact before he knew about it, counsel said “well there goes another waiver on my part.” I feel ya’ brother. We all do.

Martinez v. State, No. PD-1215-19 (Tex. Crim. App. 2021)

Issue. Is a confession sufficiently attenuated from statutorily deficient warrantless arrest when the surrounding circumstances show that the police arrested the defendant in the middle of the night, cuffed him when he requested counsel, and the defendant reengaged in interrogation seemingly in response to his unlawful arrest?

Facts. Defendant was 18 years old and suspected of involvement in a murder. Investigators came to his home in the middle of the night and took him to the police station for interrogation. Defendant’s mother informed him that she would get him a lawyer to represent him during interrogation. After reading defendant his Miranda rights, defendant invoked his right to an attorney. Officers immediately arrested him, without a warrant, and cuffed him to a bench in a holding cell. 15 minutes later, while handcuffed to a bench in a holding cell, defendant decided he would tell officers details about his involvement in the murder. At a hearing on defendant’s motion to suppress, officers testified vaguely that they believed they had probable cause without defendant’s statements. Defendant testified he was terrified, he didn’t know what was going on, and he thought his lawyer was on the way when he decided to reengage in the interrogation. On appeal, the State conceded that the arrest of the defendant did not meet the statutory requirements for warrantless arrests under Chapter 14 Code of Criminal Procedure. The court of appeals determined that the defendant’s confession was sufficiently attenuated from this statutorily unlawful arrest.

Holding. No. “Even when a statement is found to be voluntary under the Fifth Amendment, its admissibility under the Fourth Amendment must still be considered.” Here, the arrest was illegal—it failed to satisfy the pre-requisites of warrantless arrest under Article 14. To determine whether a confession is “sufficiently attenuated” from an illegal arrest, four factors apply: “(1) the giving of Miranda warnings, (2) the temporal proximity of the arrest and the confession, (3) the presence of intervening circumstances, and (4) the flagrancy of the official misconduct.” Citing, Brown v. Illinois, 422 U.S. 590 (1975). The court of appeals misapplied the third factor (finding defendant’s re-initiation of interrogation a significant circumstance) and the fourth factor (finding lack of flagrancy in violating a mere Article 14 statutory arrest requirement and not a constitutional one). The record here shows that the defendant was motivated to reengage in interrogation by the fact that he was arrested for murder. Defendant’s arrest was unlawful and surrounded by flagrantly abusive misconduct. The existence of probable cause can attenuate the egregiousness of police misconduct, but here the only evidence of probable cause flows from statements by the accused that were rendered ineligible for consideration by virtue of his unlawful arrest. Defendant’s arrest and handcuffing to a bench immediately upon his invocation of counsel and the middle-of-the-night circumstances “seemed designed to cause fear, surprise, and confusion for the purpose of getting a confession.” Because it was a result of misconduct, defendant’s act of reengaging was not of his own free will and not an intervening circumstance.

Ex parte Riles, WR-11,312-01 (Tex. Crim. App. 2021)

Issue. Must a death sentence be reversed because the jury did not receive a separate mitigation instruction regarding the Defendant’s mental health.

Facts. This is a fourth post-conviction writ of a death row inmate who raised an insanity defense at trial. He presented evidence at trial from family members detailing his mental illness and schizophrenia. The jury sentenced him to death, without receiving a mental health mitigation instruction. Before the State could kill him, he was found incompetent, and the Court of Criminal Appeals stayed his execution.

Holding. Yes. Penry v. Lynaugh requires that a jury receive a separate mitigation-focused instruction regarding mental health when called for by the evidence. 492 U.S. 302. This did not occur in the instant case. Habeas is granted and the sentence of death reversed.

Dissent (Slaughter, J.). Removing Riles from death row violates his personal autonomy. Riles has been living on death row for forty years, incapable of execution due to his incompetence. There is no indication that, with his diminished capacity, Riles has knowingly consented to representation of an attorney trying to reverse his sentence of execution. “While I recognize that mentally incompetent applicants deserve zealous representation and it seems unfair if they are unable to obtain such representation because they lack the capacity to give informed consent, it nevertheless is highly improper and potentially violative of personal autonomy to permit litigation to proceed when it is unclear whether an applicant has any awareness whatsoever of the filing or of its possible consequences.” Riles might prefer to stay on death row with the hope this court never finds him competent enough to kill than face the alternative of going back to Harris County Jail and bounce back and forth between the jail and the state hospital. Riles might also prefer to stay on death row than be released and potentially be jobless or homeless.

Comment. Umm . . .

Ex parte Garza, No. WR-78, 113-01 (Tex. Crim. App. 2021)

Issue. Did counsel render ineffective assistance of counsel by delegating the duty to investigate punishment evidence to the defendant’s mother and failing to uncover substantial evidence of childhood trauma and mental health issues?

Facts. Habeas applicant was sentenced to death for a gang-v.-gang robbery turned murder. He presented evidence in this writ of habeas corpus that his attorneys at trial were ineffective for not conducting adequate punishment investigation. The applicant presented evidence showing his first attorney did not conduct any mitigation investigation and his second attorney delegated the duty to investigate to his mother who called some witnesses and arranged their meetings with the attorney. The various failures of counsel, as alleged, included: not hiring a mitigation expert, not hiring an investigator, not hiring a mental health expert for investigation, not gathering social history documents, not uncovering incidents of significant and complex childhood trauma, not reviewing available psychological evaluations conducted in his teens. According to the applicant he suffered an extremely traumatic childhood with serious mental health disorders. Applicant presented substantial evidence corroborating his claims. Applicant also presented evidence showing most of this information was contained in readily available documents at the time of trial. Trial attorneys presented affidavits indicating that their punishment strategy was to show that applicant, as a captain in his gang, planned a drug robbery which resulted in trigger-happy gang members shooting and killing other rival gang members. This, according to the trial attorneys, together with the fact that the applicant was not present at the shootings, mitigated his culpability. Trial attorneys stated they interviewed applicant and his family members and reviewed the prosecutor’s file which included psychological and medical evaluations. Through their investigation they saw no evidence of childhood trauma or mental health disorders, but they also made minimal or no inquiry into the matter. Applicant’s lead attorney indicated that he did not feel the case required much mitigation in light of the defense he intended to pursue.

Holding. Yes. “Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Wiggins v. Smith, 539 U.S. 510 (2003). Here, counsel relied almost completely on the applicant’s mother to conduct a mitigation investigation. She told a story of applicant’s upbringing in a light favorable to herself. Nobody investigated on applicant’s father’s side of the family. Counsel plowed forward after mother failed to produce school records and after several red flags presented in psychological and medical records contained in the State’s file. Counsel’s open-ended questions of family members in group settings were not sufficient to develop mitigation evidence. No evidence suggests that either counsel was qualified to decide for themselves whether applicant had mental illness or dysfunction without the expert assistance. “[A]n attorney’s failure to uncover and present voluminous mitigating evidence at sentencing is not a reasonable tactical decision where counsel has not ‘fulfilled their obligation to conduct a thorough investigation of the applicant’s background’” Citing Wiggins. Applicant was prejudiced by trial counsel’s failure. However, “[t]his is a close case.” “Trial counsel’s punishment case was underwhelming.” There is a stark contrast between the voluminous evidence of childhood trauma now before the court and that alluded to by trial counsel in opening but not proven. The jury may have been persuaded by evidence of applicant’s PTSD, his chronic depression, his suicidal ideations, and his Fetal Alcohol Spectrum Disorder.  On the other hand, aggravating evidence including criminal and disciplinary history and gang leadership was substantial, but the balance of considerations favor granting relief.

Dissent (Keller, J.). The mitigating evidence not presented at trial but shown now does not overcome the significant aggravating evidence. “If the evidence Applicant has now presented is enough to entitle this gang-leading, lifelong-criminal, murderer of six to a new punishment hearing, it is hard to imagine it being insufficient in any case.”

Ex parte Mallet, No. WR-90, 986-01 (Tex. Crim. App. 2021)

Issue. Did defendant establish his actual innocence sufficient to merit habeas corpus relief?

Facts. [None stated in the majority opinion].

Holding. Yes.

Concurrence (Richardson, J.). Detective Gerald Goines of the Houston Police Department committed perjury in this case and in others. Based on the detective’s expense reports and testimony of other officers, there is compelling evidence that this purported pre-arranged drug-buy with the defendant never occurred. It is also telling that Detective Gerald Goines invoked his Fifth Amendment privilege against self-incrimination in a connected case. “While Applicant did enter a guilty plea, this Court has explained that ‘[t]he decision to plead guilty . . . may be influenced by factors that have nothing to do with the defendant’s guilt.” “A police officer’s deceit, perjury, and continued wrongdoing lie at the heart of this case. This Court’s precedent and complete lack of evidence here demand actual innocence relief. Anything less will subject Applicant to further unfair treatment, including but not limited to potential enhancements on other charges and difficulties obtaining employment. As the final arbiter of criminal cases in Texas, this Court cannot stay silent in the face of such unmistakable injustice.”

Comment. Should dirty cops be named in appellate opinions? Judge Richardson appears to believe they should. So do I.

Allen v. State, No. PD-0203-19 (Tex. Crim. App. 2021)

Issue. (1) Is the statutory prohibition against dual convictions for a Continuous Sexual Abuse of a Young Child and an individual sexual offense of the same child occurring in the same period a prohibition tethered to the time-period of continuous abuse alleged in the indictment? (2) Was it appropriate for the court of appeals to try and make both convictions work by shortening the period of continuous abuse based on an intervening period where abuse happened out-of-state?

Facts. Defendant was convicted of Continuous Sexual Abuse of a Young Child (COA affirmed), Indecency with a Child by Contact (COA affirmed), and Indecency with a Child by Exposure (COA reversed). The State alleged the Continuous offense occurred between October 1, 2009 and August 15, 2012. The State alleged the Indecency by Exposure occurred on October 1, 2012. The State alleged the Indecency by Contact occurred on September 25, 2009. The State showed at trial that defendant made his step-daughter touch his genitals over his clothes about once a month until Summer of 2009 before the family moved to Iowa. The abuse escalated to digital penetration, but this occurred in Iowa. The family moved back to Texas in 2011, and defendant made the victim touch his genitals over his clothes a couple more times and then the abuse stopped. The court of appeals found no evidence in the record to support Indecency by Exposure. The court of appeals also modified the trial court’s judgment to reflect what it believed the accurate offense date for Indecency by Contact—December 2011 (instead of the October 2009 offense date entered by the trial court). Because this placed the Indecency by Contact offense within the period of Continuous Sexual Abuse alleged by the State, both the State and the defendant filed motions for rehearing arguing that the conviction as reformed violated double jeopardy. Instead of changing the individual indecency by contact offense date a second time, the court of appeals issued a substitute opinion indicating that the Continuous Sexual Abuse offense was confined to the period of time between 2008-2009.

Holding. (1) No. The statute criminalizing Continuous Sexual Abuse of a Young Child provides:

(e) A defendant may not be convicted in the same criminal action of an [individual sexual offense] the victim of which is the same victim as a victim of the [Continuous Sexual Abuse offense] unless [individual sexual offense]:

(1) . . .
(2) occurred outside the period in which the offense alleged under [the Continuous Sexual Abuse provision] was committed; or
(3) . . .

The phrase “was committed” controls. It does not matter whether the individual sexual offense occurred inside or outside the period of time alleged in the indictment. “We hold that in determining whether a defendant may be convicted for a continuous abuse offense and an [individual sexual offense] in the same criminal action and against the same victim, the proper consideration is whether the evidence shows the [individual offense] occurred outside the period that the continuous abuse offense was committed.” (2) No. “The court of appeals improperly excluded the December 2011 incident from the continuing abuse period.” The fact that the family moved to another state where abuse continued and then only a little bit of abuse occurred on their return to Texas does not break the “continuous” nature of the abuse—much of which occurred in 2008-2009 and some of which occurred in December 2011. This was “the same long, continuous offense.” Thus, the conviction for the individual offense falling within the proven continuous period violates the statutory prohibition. The individual sexual offense conviction—Indecency by Contact—is vacated.

Comment. The TDCAA summary on this same case indicates that this is not a double jeopardy case but merely a violation of Penal Code § 21.02. I would think it is both. Under a double jeopardy analysis, legislative intent controls whether a person can be convicted under two separate provisions for the same conduct. The double-dipping in this case being explicitly prohibited by the Penal Code it is both a violation of both the statute and the Constitution.

Harrell v. State, No. PD-0985-19 (Tex. Crim. App. 2021)

Issue. Does the corpus delicti rule which prevents convictions based on confessions to imaginary crimes require the State to prove the identity of the driver in the DWI case with non-confession evidence?

Facts. A 911 caller reported a minivan driving erratically. The caller followed the minivan to a gas station, told the dispatcher where the vehicle parked, relayed the license plate information, but did not describe the driver. When police arrived minutes later, the engine was off, defendant was in the driver seat with the seatbelt buckled, and two intoxicated passengers in the back. Neither passenger implicated the defendant, but the defendant admitted he had been driving.

Holding. No. “In cases involving extrajudicial confessions when ‘beyond a reasonable doubt’ is the burden, not only must the evidence be legally sufficient under Jackson but also it must tend to show the corpus delicti of the offense.” The corpus delicti rule requires the court to look at non-confession evidence to determine whether there is evidence that ‘essential nature’ of alleged offense was committed. “The purpose of the corpus delicti rule is to prevent convictions based on confessions to imaginary crimes.” Here, the court of appeals erred in using the corpus delicti rule to render acquittal based on the lack of non-confession evidence establishing the defendant was the driver of the minivan. Identity of the driver is not part of the corpus delicti of a DWI. The fact that the non-confession evidence tended to show that someone in the minivan was operating the vehicle when 911 was called and defendant—later determined to be intoxicated—was discovered in the driver seat with the vehicle turned off was sufficient corpus delicti of DWI.

Miranda v. State, No. PD-1340-18 (Tex. Crim. App. 2021)

Issue. Where a teacher admitted to sexually assaulting three of his students over the course of a year, but the State only presents corroborating evidence at trial he sexually assaulted two of them, may the State maintain their conviction in the case of the third student under the “closely-related offenses” exception to the corpus delicti rule (prohibiting convictions based on confessions to imaginary crimes)?

Facts. Defendant, a high school teacher and coach, admitted to the school’s investigator that he had sex with PV, KR, and IG. At trial, the only victim to testify was KR. IG’s father testified about a love letter he found from defendant to his daughter. The jury acquitted the defendant of charges relating to IG, but convicted on charges relating to PV and KR, including the charges of sexual assault pertaining to each minor. The court of appeals reversed the convictions pertaining to PV pursuant to the corpus delicti rule requiring some corroboration of the defendant’s extra-judicial confession.

Holding. Yes. The corpus delicti rule is a sufficiency of evidence rule pertaining to a defendant’s extra-judicial confession. It requires evidence corroborating a defendant’s confession sufficient to show the “essential nature” of the offense is somewhat more probable than it would be with defendant’s confession alone. One exception to the strict application of the corpus delicti rule arises when the defendant is charged with multiple, closely-related offenses. In this scenario, the corpus delicti rule is not applied in an individual case if the corpus delicti is shown in some of the cases. The Court of Criminal Appeals has applied the “closely-related offenses” exception only once previously in Miller v. State, 457 S.W.3d 919 (Tex. Crim. App. 2015). Miller involved a series of offenses spanning 27 days. The court of appeals declined to apply the exception in the instant case because defendant’s conduct spans nearly a year. However, temporal relationship is not the only consideration in this analysis. “The sine qua non of the inquiry is whether the relationship between the crimes is sufficiently close to avoid admitting a confession for a crime that did not occur.” Here the evidence showed that the defendant engaged in a course of conduct involving the use of his position of authority and grooming female students. He used the same tactics and modus operandi in each offense. “[W]e are satisfied that the offenses are sufficiently closely related to alleviate any concern that the crimes against P.V. were never committed.”

Concurrence (Yeary, J.). “Today the Court continues along a jurisprudential course of extending, yet again, a court-invented common-law exception to the court-invented common-law doctrine known as the corpus delicti rule . . .” Jackson v. Virginia is the standard for sufficiency. “I would exercise our prerogative to simply jettison [corpus delicti].”

Comment. Judge Yeary made it clear last month in his concurrence in Ex parte Thomas that stare decisis is not a particularly high priority. But, how far does a fidelity to a philosophy of judicial restraint which abhors court-invented rules go? Complex and unforgiving rules of error preservation and harm analysis which sometimes unjustly penalize the accused are “court-invented rules.” The same which can be said about corpus delicti can be said about waiver of error which occurs when trial counsel fails to move for a mistrial after a sustained objection, doesn’t object using the right words, or whose objection is overruled but fails to request a running objection. “Neither Texas statutes nor any recognized constitutional principle of due process or due course of law requires the rule.” Food for thought.

Loch v. State, No. PD-0894-18 (Tex. Crim. App. 2021)

Issue. Is a defendant’s plea involuntary when the trial court fails to admonish him on immigration consequences where evidence strongly corroborated guilt and the instant conviction probably didn’t make him any more susceptible to deportation than he already was?

Facts. Defendant pleaded guilty to murder before a jury and was sentenced to life imprisonment after a jury trial on punishment. The trial court only gave defendant perfunctory pre-plea admonishments and completely omitted any reference to the possibility that immigration consequences could arise from his conviction. At the time he entered his plea, defendant had six prior convictions, including Aggravated Assault with Deadly Weapon, Burglary of Habitation, and Neglect of Child. Defendant stipulated to these prior convictions in the punishment trial. Penitentiary packet evidence also reflected that immigration had previously filed an ICE detainer against him in Florida in 2005. The record was unclear what ever came of the government’s previous attempt to deport the defendant.

Holding. No. Texas Code of Criminal Procedure Article 26.13(a)(4) requires the trial court, prior to accepting a guilty plea, to admonish the defendant that a conviction could result in potential immigration consequences. However, the failure to give such an admonishment is subject to harmless error review. This analysis is informed, but not controlled by the “fair assurance” rule. “The Court has said in the past that the important question . . . is, considering the record as a whole, do we have a fair assurance that the defendant’s decision to plead guilty would not have changed had the court admonished him?” A “fair assurance” inquiry looks to: (1) whether an appellant knew the consequences of his plea; (2) the strength of the evidence of an appellant’s guilt; and (3) an appellant’s citizenship and immigration status. Here, the evidence of defendant’s guilt was quite strong—multiple witnesses testified that defendant had confessed to them. And the existence of multiple prior felonies probably means that the defendant is not “appreciably more susceptible to deportation now than he was before he entered his guilty plea in the instant case.” Despite the trial court’s failure to admonish the defendant, the other considerations weighed sufficiently in favor of finding a fair assurance that defendant’s decision to plead guilty would not have changed with the benefit of proper admonishments. The trial court’s failure to admonish the defendant was harmless.

Comment. I guess that answers my previous question.

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

James v. State, No. 02-19-00427-CR (Tex. App.—Ft. Worth, Apr. 22, 2021)

Issue. (1) In a family violence prosecution may the State detail a history of violence between the defendant and the victim without violating Texas Rule of Evidence 404(b) (prohibiting use of crimes and other bad acts to show character conformity)? (2) Is detailing the history of violence by the defendant upon the victim substantially more prejudicial than probative? (3) Is a social worker sufficiently qualified to testify as an expert on the cycle of violence when that social worker has never met the victim, never published or reviewed scholarly articles on domestic violence, never testified as an expert, and does not provide counseling to domestic violence victims and rarely meets with them in her profession? (4) When a domestic violence victim has been consistent in her accusation, is present for trial and testifies, and has not recanted, is expert testimony on the “cycle of violence” relevant?

Facts. Defendant was convicted of Violation of Protective Order and a felony Assault Family Violence. At trial, the State introduced extraneous offense evidence over defendant’s objection. The victim’s sister testified that she had seen indications of abuse in the past, that the defendant broke out her front door and windows to get into her home where her sister had sought shelter and had once discovered her with her hands and feet bound by the defendant. The officer responding to the forcible entry testified to confirm the police department’s investigation into the sister’s allegations matter. Another officer testified regarding an occasion where the victim had flagged him down in a gas station and sought help getting away from the defendant. And yet another officer testified to a previous incident involving the defendant punching the victim in the temple multiple times at a restaurant. The victim testified about the escalation of verbal, emotional, physical and extreme sexual abuse she suffered during her relationship with the defendant. She testified that the defendant forced her to become addicted to crack cocaine and forced her to steal things to sell for drug money. The victim shared specific instances of conduct detailing her experiences with the defendant. The State also introduced expert testimony on the “cycle of violence” and “power-and-control wheel” over defendant’s objection.

Holding. (1) Yes. Texas Code of Criminal Procedure Article 38.371 permits either party to offer evidence of relevant facts and circumstances to determine whether a family violence offense occurred, “including testimony or evidence regarding the nature of the relationship between the actor and the alleged victim.” Article 38.371 acts as an additional non-character-conformity purpose for which evidence of other crimes and bad acts is admissible under Texas Rule of Evidence 404(b). (2) No. The court applies the Gigliobianco v. State factors when considering a challenge to the trial court’s 403 balancing: (1) probative force, (2) need for evidence, (3) tendency to suggest decision on improper basis, (4) tendency to confuse or distract, (5) tendency that the jury will give undue weight, (6) time consumption. 210 S.W.3d 637. Here the evidence was probative because it was all in close time proximity to the alleged offense, showed the defendant’s intent, and rebutted his theory of fabrication. Because no one witnessed the instant offense there was a particularized need to show other similar offenses that were witnessed. The seriousness of the other bad acts (rape, sodomy, torture) did pale in comparison to the offense of prosecution and may have suggested an improper decision by the jury, but this problem was cured by a limiting instruction. There was no suggestion that the evidence misled the jury or caused undue delay. (3) Yes. Despite the deficiencies noted by the defendant, the domestic violence expert had a master’s degree in social work, was the director of various departments of a domestic violence victim advocacy organization, had worked with approximately 1,000 domestic violence victims, taught “domestic violence 101” and other courses, and indicated that she understood the cycle of violence and power-and-control wheel. This is good enough to satisfy the requirements of expert qualification under Rule 702. (4) Yes. “James’s arguments that the evidence is not relevant are unavailing. He cites no authority for the proposition that experts can testify about domestic violence only when the victims refuse to testify, recant, or reunite with their abusers.” Here the evidence was relevant to show the dynamics involved in all of the bad things that the defendant did to the victim over time.

Comment. Although the evidence in this case seems to strongly suggest that the victim was in a cycle of domestic violence, and the cycle of violence testimony offered relevant value to the prosecution, the precedent of allowing cycle of violence experts becomes problematic in much weaker prosecutions. It is common to see a domestic violence expert offered to clean up the testimony of a legitimately discredited complaining witness, or one who didn’t even testify. Here, the defendant makes a novel argument that a victim who testifies, and who has never recanted or changed his or her story, renders cycle of violence evidence irrelevant. That makes sense to me. Here, the cycle of violence evidence provided a lot of expert evidence to help jurors contextualize defendant’s other bad acts and crimes and put even more undue focus on the offenses which the defendant was not charged with. The court validates this problem as a pro and not a con.

Fuller v. State, No. 02-20-00101-CR (Tex. App.—Ft. Worth, Apr. 29, 2021)

Issue. When the State causes 34 months of delay waiting on DNA testing and a defendant asserts speedy trial rights but ultimately acquiesces in trial resets, is a defendant’s right to speedy trial denied?

Facts. Defendant was convicted by a jury of capital murder. The facts at trial showed the defendant and co-defendant entered the home of the victim in the evening of October 9, 2016, shot and killed the homeowner and a guest, then returned the next day, seemingly to clean up the scene. A car chase ensued following the defendant’s flight from the victim’s home on the second day and the defendant was captured. On him was a firearm matching the caliber of the bullets used to kill the victims and $4,000 in cash. After his arrest, the defendant made several inculpatory statements on jail phone calls during the pendency of his case. The case then proceeded as follows:

    • December 2016 – indicted
    • December 2016 – State and defendant announced ready for trial
    • November 2017 – potentially favorable defense witness died
    • May 2018 – first trial setting (without objection from defendant)
    • March 2018 – State discovered untested DNA and requests continuance
    • Unknown – second trial setting
    • November 2018 – defendant demanded then withdrew speedy trial demand
    • February 2019 – third trial setting
    • February 2019 – DNA testing incomplete State and defendant announced not ready
    • March 2019 – defendant reasserted his desire for speedy trial
    • March 2019 – State represented DNA testing will be complete by July 2019
    • October 2019 – fourth trial setting
    • July 2019 – State represented DNA testing would be complete by August 2019
    • October 2019 – defendant requests continuance based on newly provided evidence
    • March 2020 – fifth trial setting
    • February 2020 – defendant urged motion to dismiss for speedy trial violation

Holding. A speedy trial claim is analyzed pursuant to the Barker v. Wingo factors: (1) length of delay, (2) reason for delay, (3) defendant’s assertion of right, (4) prejudice. 407 U.S. 514. The court found the three years of delay more than adequate. The State was to blame for 34 months of delay due to unreasonable delays in DNA testing, but the Defendant was to blame for 6 months of delay due to the need to evaluate undisclosed evidence. The delay attributed to the State was mere negligence and not willful delay by the prosecution. Defendant’s assertion of the right is murky. On several occasions he demanded a speedy trial, but then never urged a ruling, never objected to the trial court’s failure to rule, and acquiesced multiple times to the trial court’s reset. The defendant could not claim prejudice from the loss of a witness in 2017, prior to any demand for speedy trial. Nor was the fact that this witness could offer one inconsistency in the case particularly important. Defendant was recorded confessing to his girlfriend and the evidence was damning.

Comment. The opinion is internally inconsistent. The court notes in its analysis of prejudice how damning the non-DNA evidence was. Then the court finds that the delay by the prosecution to wait on the seemingly unnecessary DNA evidence was mere negligence. If the non-DNA evidence was damning, then the need to wait on DNA evidence was minimal or non-existent. This is the definition of willful delay: “I choose to delay because I want to put a little cherry on top of this prosecution.”  

3rd District Austin

Navarro v. State, No. 03-19-00278-CR (Tex. App.—Austin, Apr. 29, 2021)

Issue. (1) Does a trial court err by explaining reasonable doubt in its charge as a standard which does not require the prosecution to prove guilt beyond all possible doubt? (2) Is a defendant entitled to an accomplice witness instruction in a prosecution for engaging in prohibited but compelled sexual conduct with his daughter?

Facts. Defendant was convicted of sexually assaulting his older daughter when she was a child and convicted of prohibited sexual conduct with his younger daughter when she was 17 years old. Testimony showed that the defendant physically and psychologically abused both daughters throughout their childhood and that they acquiesced to his assault in fear. The trial court explained reasonable doubt in its jury charge by telling the jury that the prosecution did not have to prove its case beyond all possible doubt. Absent from the charge was a discussion about the accomplice witness rule’s prohibition on convicting a defendant based solely on the testimony of an accomplice. The defendant neither objected to the reasonable doubt explanation nor the purported omission of the accomplice witness rule from the jury charge.

Holding. (1) No. Although precedent from this Court previously found reversible error in a case involving the inclusion of an identical not-all-possible-doubt instruction, the precedent has been implicitly overruled by the Court of Criminal Appeals in Woods v. State, 152 S.W.3d 105 (Tex. Crim. App. 2004). Woods explicitly sanctioned the use of a not-all-possible-doubt explanation of the beyond-a-reasonable-doubt standard. Even independently of the Woods decision, the court would not find that the “definition” constituted an improper comment on the weight of evidence as the defendant characterizes it. The Court of Criminal Appeals has declined to find that a trial judge improperly comments on evidence absent the trial judge singling out a particular piece of evidence for special attention. Here the trial judge did not single out any evidence, but merely explained the reasonable doubt standard. (2) No. The accomplice witness rule prohibits conviction based on the testimony of an accomplice witness without some additional evidence tending to connect the defendant to the offense. A person who consents to incestuous intercourse is an accomplice witness. Bolin v. State, 505 S.W.2d 912 (Tex. Crim. App. 1944). However, if the intercourse is the result of force, threats, fraud, or undue influence, there is no accomplice relationship. Here, the evidence showed that the defendant was psychologically and physically abusive toward his daughters and that they lived in fear of him. Although Defendant’s younger daughter was 17 years old at the time the intercourse occurred, evidence did not establish that she was an accomplice because she did not engage in the intercourse voluntarily.

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

Osorio-Lopez v. State, No. 16-18-00197 (Tex. App.—Texarkana, Apr. 23, 2021)

Issue. Can a criminal defendant represent himself pro se in a competency trial?

Facts. After a six-month period of competency restoration, the trial court found the defendant competent to stand trial based on a psychiatric evaluation. Three days prior to trial, counsel filed a motion to withdraw indicating his inability to communicate with the defendant. In a hearing on the motion to withdraw, the defendant remained fixated on the fact that counsel did a bad job representing him previously in Ft. Worth. Neither counsel nor the trial court could convince the defendant that his present counsel was a different person than the one about which he was complaining. Nonetheless, the trial court denied the motion to withdraw and proceeded to trial. Following voir dire, trial counsel filed a motion for continuance, again citing an inability to communicate, and made a new request for a competency evaluation. The trial court denied both requests, proceeded to trial, and got reversed in an opinion where this court abated the instant appeal with an order conduct a retrospective competency trial. On remand, the trial court permitted the defendant to proceed without counsel after the defendant made several confusing statements which were variations of the following: “I want to be my own judge, my own attorney to listen to the rules to see if I’m competent for that to return under oath.” In the competency trial, the trial court admitted the competency evaluation indicating that the defendant was competent to stand trial. The trial court heard testimony from the defendant’s translator who indicated that defendant’s behavior was a product of his Honduran culture. And finally, the trial court heard testimony from the elected district attorney who indicated that from his observations he believed the defendant was competent. The defendant had two questions for the district attorney: “are you competent to say in court that you were accusing me with Mr. Michael that was in Fort Worth when he had the last court in Fort Worth?” and “Are you competent here to stand here to say that you were competent to say that I had a hearing in Fort Worth, a hearing there in Fort Worth?”

Holding. No. The Sixth Amendment and Article I Section 10 of the Texas Constitution guarantees the right to counsel in criminal proceedings, including competency hearings. A defendant similarly has the right to self-representation after certain strict admonishments. However, that right to self-representation is inapplicable to a competency trial. The trial court was not in error to permit counsel to withdraw, but new counsel should have been appointed.

Comment. I wonder if the district attorney forgot that the pro se potentially incompetent defendant got a chance to cross-examine him after giving Leslie Nielsen-esque “nothing to see here move along” direct examination testimony.

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

David v. State, No. 08-18-00059-CR (Tex. App.—El Paso, Apr. 12, 2021)

Issue. (1) Is a person’s mere presence in a locked bathroom where drugs have been dumped into the toilet sufficient to hold that person criminally responsible for the act of tampering with evidence? (2) Does mixing marijuana with feces and urine by throwing it into the toilet and not flushing constitute “alter” for the purpose of tampering with evidence?

Facts. Narcotics agents obtained a no-knock warrant for defendant’s hotel room. After making entry they discovered two individuals and they could hear the defendant in the locked bathroom shuffling around. They forced the bathroom door open and discovered defendant fully clothed standing between the shower and the toilet. Officers observed what appeared to be marijuana in the toilet but declined to collect it. Officers neither collected the marijuana nor the toilet water and instead claimed the marijuana was contaminated with urine and fecal matter.

Holding. No. In a tampering with evidence prosecution the State must prove that the defendant altered, destroyed, or concealed evidence while knowing an investigation was in progress or that an offense had been committed. The act must be done with intent to impair its use for subsequent investigation or proceeding. Here, the State charged the three individuals inside the hotel room with the same tampering offense. No officer observed anyone throw the marijuana into the toilet. All three individuals had access to the bathroom. Officers did not hear flushing while the defendant was in the bathroom despite ample opportunity for the defendant to have flushed. Officers did not know how long the marijuana had been in the toilet, but they did know the defendant had only been in the hotel room for a matter of minutes prior to their execution of the search warrant. (2) No “We have not uncovered any case that has found marijuana mixed with water, albeit toilet water, has modified the marijuana and rendered it useless.” And here the State failed to present expert testimony to indicate this is the case. “Common sense tells us that water does not necessarily alter everything it touches.” The cops just didn’t want to pick it out of the gross toilet. This does not meet the definition of “altered.”

Comment. Is this what Snoop Dogg meant by “real sticky-icky-icky?”

9th District Beaumont

Dugar v. State, No. 09-19-00098-CR (Tex. App.—Beaumont, Apr. 7, 2021)

Issue. Is an officer objectively reasonable in conducting a maintain-a-single-lane stop when he observes a driver fail to maintain a single lane but does not observe anything unsafe about it.

Facts. Defendant was stopped for at 1:40 AM for straddling two lanes. The arresting officer who conducted the traffic stop testified that no other vehicles were on the road and given this fact, the defendant’s drifting across his lane did not pose a danger to anyone. Defendant moved to suppress the resulting DWI investigation arguing that the Texas Transportation Code’s requirement to maintain-a-single-lane provision is not violated until a lane divider is crossed and it is done unsafely. Tex. Transp. Code § 545.060(a).

Holding. Yes. In a plurality opinion, the Court of Criminal Appeals interpreted Texas’s maintain-a-single-lane statute as a law which is violated when either: (1) a driver does not maintain a single lane, or (2) when a driver changes lanes when conditions are not safe to do so. Leming v. State, 493 S.W.3d 552 (Tex. Crim. App. 2016)(plurality opinion). Because this is merely a plurality opinion, and the intermediate courts are split on what proof is required to establish a maintain-a-single-lane violation, the relevant question is whether the stopping officer was reasonable.

Comment. The court discusses its own precedent in Erhart v. State, 9 S.W.3d 929 (Tex. App.—Beaumont 2000). In Erhart the court unequivocally stated that the maintain-a-single-lane statute requires proof of failure to maintain a lane and unsafe conditions. The court cites this fact, taken together with the fact that the Court of Criminal Appeals subsequently did nothing to disrupt the Erhart holding as proof of muddy waters. This is confusing logic.

10th District Waco

In re Fields, No. 10-21-00066-CR (Tex. App.—Waco, Apr. 7, 2021)(not designated for publication)

Facts. Defendant, a TDCJ inmate, needs paperwork for his pro se post-conviction defense and the trial court won’t give it to him. He filed this mandamus.

Holding. Denied.

Concurrence (Gray, C.J.). Defendant is requesting the search warrant and blood alcohol report used to convict him. He claims they were not provided to him in discovery prior to his conviction. He has asked the district clerk, he has asked the district attorney, and he has asked the district judge (who is now a justice on this court of appeal). He has offered to pay for copies. “In sum, this mandamus proceeding appears to involve about a dollar’s worth of copies and postage. Yet here we are.” “The former trial court judge is now a justice on this court and was required to recuse himself from participating in this proceeding. Thus, this Court had to assign another justice to sit as a member of the panel to decide this proceeding. At a minimum, the cost will likely be about 500 times what the copies and postage would have been. And yet, based on this petition and record, we cannot compel anyone to provide Fields with the copies of the two documents he has been trying to get for over a year. There has to be a better way than this for an inmate to get copies related to his prosecution and incarceration.” Fields is not entitled to mandamus relief. “But that ruling does not stop my plea. Would someone, anyone, please provide Fields a copy of the two documents?”

Comment. I generally will always write about courts neglecting the requests of pro se post-conviction litigants.  

11th District Eastland

Barron v. State, No. 11-19-00125-CR (Tex. App.—Eastland, Apr. 15, 2021)

Issue: (1) Can a defendant negate or justify her offense of tampering with evidence through evidence showing she reasonably believed that the evidence she concealed (dead bodies) was evidence of a justifiable murder (committed in self-defense)? (2) Is the defense of renunciation appropriate where a person who concealed evidence tells the police where to find it before they know an offense was committed?

Facts. Two men dressed in black and wearing ski masks came to the door of defendant’s trailer. Her husband attacked them on sight, stabbing one in the face and neck and shooting the other. They both died. Defendant and her husband concealed the bodies under their trailer, cleaned up the dirt around the area where they bled, cleaned the trailer with bleach and water, hit bloody rags behind a shed, and put the gun in a pizza box. After taking the evening to sober up, defendant and her husband turned themselves into the police. Defendant informed the police where they could find the bodies and other hidden evidence. Independent of her interview, other officers discovered all the hidden evidence and both of the dead bodies.

Holding. No. “[J]ustification defenses only apply to conduct for which the defendant is currently being prosecuted.” The defendant here was not prosecuted for murder, she was prosecuted for tampering with evidence of the murder. She cannot avail herself to justifications which would apply in the murder case. “As a matter of law, self-defense does not change the nature of the underlying conduct—murder. . . . Further, that the underlying offense may be justified is of no consequence in determining whether the defendant had knowledge of its commission.” Self-defense is a confession and avoidance defense, meaning the offense, albeit justified, still occurred. No. The defense of renunciation applies only to criminal attempt. A criminal attempt occurs where an affirmative act rises to the level of more than mere preparation that tends but fails to effect the commission of the intended offense. “[A]n actor engaging in a criminal attempt may abandon her criminal conduct at any time before performing the last proximate act tending to effect the commission of the offense.” With this in mind, defendant’s logic is circular. She “cannot assert that her conduct only constituted attempted tampering because she renunciated . . . while simultaneously contending that the law of renunciation applies because her conduct only constituted attempted tampering.” Here, the defendant had fully completed the act of tampering by concealing bodies under the trailer. She could have abandoned her conduct only at a point before the bodies went under the trailer.

Comment. The court seems to indicate that a renunciation defense is only appropriate where the state charges a defendant with an inchoate offense such as criminal attempt and not where the evidence at trial shows a criminal attempt of the greater charged offense. I don’t follow the logic.

Templeton v. State, No. 11-19-00192-CR (Tex. App.—Eastland, Apr. 30, 2021)

Issue. (1) Is the requirement of jury unanimity violated by the common jury charge language permitting the jury to convict on an offense date occurring between the statute of limitations and the alleged date of offense? (2) Can the state present hearsay evidence under the excited utterance exception when the declarant is reporting an incident that occurred several days prior to the utterance?

Facts. Bruised and beaten, defendant’s girlfriend and her son fled to her parents’ house who lived six blocks from her home. When she arrived, her parents noticed both had been crying, were sweating profusely, and were out of breath. They noted bruises and lacerations on their daughter’s face, both her eyes were swollen, and that she was holding her neck. At trial “[o]ver hearsay objection [her father] testified that she told him that Appellant, her boyfriend, had threatened to kill her and [her son].” The father added that he was told that the defendant had beaten her and put his knee on her neck, holding her to the floor. Police were called and a responding officer conducted interviews. The responding officer testified that he was told by the victim that she had been assaulted a few days prior. But at trial the victim testified that the defendant’s ex-girlfriend beat her up and that her parents refused to accept this explanation when she told them and instructed her to tell the police that the defendant had assaulted her. The victim’s father added that he had listened in on a butt-dial phone call from his daughter where the defendant was telling the victim that his abuse was none of anyone’s business.

Holding. (1) No. Unanimity “means that each and every juror agrees that the defendant committed the same single specific criminal act.” Ngo v. State, 129 S.W.3d 198 (Tex. App.—Eastland 2004). Unlike in Ngo where the defendant was charged with three offenses and the court’s charge permitted the jury to convict by a general verdict if it found any of those offense had been committed, this case involved a single alleged offense. Although the date of offense was disputed at trial, this did not give rise to a scenario where the jury was presented with “alternatives upon which the jury may base its verdict.” (2) Yes. An excited utterance must meet three requirements in order to qualify as an exception to hearsay: “(1) the ‘exiting event’ should be startling enough to evoke a truly spontaneous reaction from the declarant; (2) the reaction to the startling event should be quick enough to avoid the possibility of fabrication; and (3) the resulting statement should be sufficiently ‘related to’ the starting event, to ensure the reliability and trustworthiness of that statement.” McCarty v. State, 257 S.W.3d 238, 241 (Tex. Crim. App. 2008). The startling event may trigger a spontaneous statement relating to a much earlier incident. The fact that the purported event the declarant was reporting happened days prior and under circumstances where she was no longer in the defendant’s presence do not matter. She was crying and exasperated when she made the statement, and the statement was purportedly triggered by the defendant’s death threat. This was good enough.

Comment. There is not much guidance on where the outer limits of McCarty lie. Certainly, there has to be an event that is too stale to excitedly utter.  

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. Yakushkin, No. 14-20-00256-CR (Tex. App.—Houston [14th Dist], Apr. 22, 2021)

Issue. (1) Does the Harris County District Attorney have authority to represent the State in appeals from county-level criminal courts in Harris County? (2) Must a criminal information be accompanied by an affidavit sworn by the officer who brought the allegation to the attention of the district attorney?

Facts. The court consolidated several appeals raising the exact same issues. In each the defendants raise issues pertaining to the sufficiency of the sworn complaint accompanying the State’s information. One alleged that the State’s complaint was not sworn by a credible person, the rest alleged that the allegations contained in the complaint fail to establish probable cause or meet the requirements of the Code of Criminal Procedure. Defendants challenged the Harris County District Attorney’s authority to file appeals on behalf of the State in appeals from the Harris County criminal courts at law.

Holding. (1) Yes. Harris County has both a county attorney and a district attorney. The Texas Constitution provides “the respective duties of the District Attorneys and County Attorneys in such counties [shall] be regulated by the Legislature.” Tex. Const. art. V sec. 21. Texas Code of Criminal Procedure Article 2.01 gives authority to the district attorney to represent the State in appeals from district courts but is silent on who has the authority to represent the State in appeals from county courts. Defendants contend that in this silence, the duty to represent the State fell to the State Prosecuting Attorney and that Harris County DA’s notice of appeal is defective. However, Texas Government Code § 43.180 empowers the Harris County District Attorney to represent the state “in criminal cases pending in the district and inferior courts of the county” and grants “all powers . . . relating to criminal matters . . . that are conferred on district attorneys in the various counties and districts.” This provision, taken together with Texas Code of Criminal Procedure Article 44.01 which authorizes “the prosecuting attorney” to file an appeal grants the Harris County District Attorney authority to file appeals arising from the county criminal courts. (2) No. Texas Code of Criminal Procedure Article 15.05 requires that an affiant swear out a criminal complaint. Article 21.02 requires the accompanying affidavit be sworn by “some credible person.” The defendants point to Article 2.04 of the Code of Criminal Procedure which requires the complaint reduced to writing and “sworn to by the complainant.” Defendants indicate that this should be done by the police officers submitting the case to the district attorney. However, no statutory authority supports the position that the complaint referenced in Article 2.04 must be the same document as the affidavit referenced in Article 21.02. Typically, they are, and typically the affidavit referenced in Article 21.02 is in the form of the complaint, but this is not statutorily mandated. “Accordingly, we hold that article 21.22 imposes no requirement that the person signing the affidavit referenced in that article be the person who first reported the alleged offense to the district attorney.”