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.

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 I also found a really good unpublished opinion, and in a way, I like to think it’s now kind of published—thanks Voice for the Defense!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.”

May 2021 SDR – Voice for the Defense Vol. 50, No. 4

Voice for the Defense Volume 50, No. 4 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

Props are due this month. Jason Niehaus of Denton defended the Michael Morton Act in a case that should be added to all of our form requests for discovery under Article 39.14 of the Code of Criminal Procedure. Allison Clayton of Lubbock, and Lane Haygood of Odessa added their touch as drafters of the Texas Criminal Defense Lawyers Association Amicus Curiae brief. Several cases this month involve interpretations of the SCOTX Emergency Orders Regarding the COVID-19 Pandemic (just in time for the end of the pandemic)(knocking on all of the wood). Other than that, just some Boyz II Men trivia to look out for here. Enjoy!

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

Torres v. Madrid, 141 S. Ct. 989 (2021)

Issue. Does a Fourth Amendment seizure occur when the police shoot at a person evading arrest?

Facts. Officers were serving an arrest warrant at an apartment complex. Officers observed Torres standing with another person near a vehicle in the parking lot. Officers determined neither Torres nor the companion were the target of the warrant. Officers tried to speak with Torres as she attempted to drive away. One officer attempted to open her door. Torres was experiencing methamphetamine withdrawals and thought the officers were carjackers. As she sped away, officers fired their guns at her 13 times striking her twice and paralyzing her left arm. Torres sued the officers under 42 USC 1983 claiming a deprivation of her constitutional rights and that the officers “applied excessive force, making the shooting an unreasonable seizure under the Fourth Amendment.” The district court granted summary judgment in favor of the officers. The Tenth Circuit affirmed, indicating “no seizure can occur unless there is physical touch or show of authority and that such physical touch (or force) must terminate the suspect’s movement or otherwise give rise to physical control over the suspect.”

Holding. At common law, an officer’s application of physical force, of any amount, with the intent to apprehend was sufficient to find a seizure exists, also known as “the mere touch” rule. The Court finds no principled reason to find that shooting a person—a greater intrusion—does not constitute a seizure. The rule announced by the court is narrow. “In addition to the requirement of intent to restrain, a seizure by force—absent submission—lasts only as long as the application of force.”

Texas Court of Criminal Appeals

Watkins v. State, No. PD-1015-18 (Tex. Crim. App. 2021)

Issue. Where in Article 39.14 of the Code of Criminal Procedure the legislature mandates the prosecution’s disclosure of “evidence material to any matter involved in the case,” does the legislature mean what it says?

Facts. Defendant was sentenced to 70 years confinement as a habitual felony offender. In the punishment phase of trial, the State entered 34 exhibits comprised of “booking records, pen packets, and judgments of prior convictions for enhancement and other extraneous offenses that Appellant had committed.” Defendant had previously made two requests pertaining to this evidence: (1) a request for notice of State’s intent to offer extraneous offenses, and (2) a discovery request pursuant to Texas Code of Criminal Procedure Article 39.14 (“Michael Morton Act”), wherein he requested “any other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the case.” The State provided notice but did not produce to the defense any of the extraneous offense evidence until they introduced it at trial. At trial, the prosecutor argued that he did not believe Article 39.14 applied to punishment. The trial court initially sustained an objection to the punishment evidence but then reversed its decision. On Appeal the State conceded that Article 39.14 applies to punishment evidence, but proof of extraneous offenses is not “material to any matter involved in the case.” The court of appeals agreed and explained that the Court of Criminal Appeals had interpreted the phrase “material to any matter involved in the case” prior to the Michael Morton Act amendments as meaning “there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different.” According to the court of appeals, this interpretation survived the 2013 Michael Morton amendments.

Holding. Yes. “Material” means the same thing as “relevant” and the prosecutor’s duty to disclose material evidence extends to evidence of guilt, punishment, and numerous subsidiary issues. Here the punishment evidence proving previous convictions was material to the punishment. “[W]e construe the amended statute as adopting the ordinary definition of ‘material.’ Evidence is ‘material’ if it has ‘some logical connection to a consequential fact.’ Whether evidence is ‘material’ is therefore determined by evaluating its relation to a particular subject matter rather than its impact upon the overall determination of guilt or punishment in light of the evidence introduced at trial.” Prior to the enactment of the Michael Morton Act, the Court of Criminal Appeals often held that Article 39.14 did not provide a general right to discovery and “[t]he decision on what was discoverable was left to the discretion of the trial court.” But the newly amended Article 39.14 exists against a considerable backdrop which informs the court’s interpretation of “material.”

The wrongful conviction of Michael Morton inspired the legislative amendments to Article 39.14 in 2013.

The wrongful conviction of Michael Morton was achieved by a prosecutor’s wrongful withholding of exculpatory evidence.

The Michael Morton Act was a comprehensive overhaul of criminal discovery practice.

The Michael Morton Act broadened the duty to disclose evidence which is ordinarily discoverable under due process and Brady v. Maryland.

The Michael Morton Act abandoned the requirement of a court order to obtain discovery.

The Michael Morton Act expanded the list of discoverable items and the number of people from whom evidence is discoverable.

The Michael Morton Act provided for an ongoing duty to disclose evidence even after the disposition of the case in the trial court.

The Michael Morton Act expanded the traditional due process / Brady v. Maryland duty to disclose.

“Nothing in the text suggests that the character of the evidence should be judged solely in relation to its consequential effect on the ultimate issues of guilt or punishment.” The defense need not make the case for good cause to the prosecution when demanding evidence, and the disclosure obligation exists notwithstanding a prosecution’s evaluation of defense theories and how that evidence might fit into the defense’s case. Despite this clear duty, harm analysis still remains a viable excuse for the State when they get caught not disclosing evidence.

Dissent (Keller, J.) The legislature rejected the use of the word “relevant” in the most recent amendments to Article 39.14 and used the term “material” which was previously interpreted by the Court to be limited to outcome determinative evidence. The Legislature could not have meant “material” to have meant “relevant” under these circumstances.

Dissent (Yeary, J.) Agrees with Judge Keller, but writes to emphasize that legislative intent should not be the end-all of statutory construction. “[T]he word ‘material’ simply means ‘material.’”

Comment. Kudos to appellate attorney Jason Niehaus of Denton, and TCDLA Amicus drafters Allison Clayton of Lubbock and Lane Haygood of Odessa. Update your form 39.14 requests with this case.

Najar v. State, No. PD-1049-19 (Tex. Crim. App. 2021)

Issues. (1) In a motion for new trial, is a trial court afforded “almost total deference” when it resolves uncontroverted defense-facts against the defendant? (2) Is a jury’s consideration of a siren heard outside the courthouse the type of evidence which can be used to impeach the jury’s verdict because it constitutes an “outside influence improperly brought to bear upon any juror?”

Facts. A jury convicted the defendant of evading arrest. He argued at trial he could not hear or see the police until they were directly behind him. After the trial, defense counsel learned from a juror that the jurors “heard a siren outside of the building, they made assumptions about the case based on that siren, and it affected their deliberations.” Trial counsel moved for a new trial on the basis of the jury’s consideration of an outside influence and presented affidavits sworn by trial counsel in support. When trial counsel admitted the affidavits counsel stated “I think the State agrees with the factual basis of that affidavit, which is, this conversation with the jury took place. . . .” The prosecution responded: “[t]hat’s correct.” Counsel requested findings of fact from the trial court, but none were made. The Court of Appeals reversed the trial court’s denial of defendant’s motion for new trial.

Holding. (1) Yes. An old since-recodified statute provided that a judge shall hear evidence and determine the issue presented in a motion for new trial when the State takes issue with the “truth of the causes set forth in the motion for new trial.” Somehow courts developed a corollary to this rule: that when the matter is uncontested, the trial court must accept the factual assertions as true. Texas Rule of Appellate Procedure 31(b) removed the State’s duty to controvert the truth of the allegations. “A trial court is not bound to believe a particular fact unless it is conclusively established.” (2) No. Texas Rule of Evidence 606(b) does not permit the juror testimony to impeach a verdict absent two exceptions. One exception is testimony “about whether an outside influence was improperly brought to bear on any juror.” Because no juror was responsible for the sounding of the siren and the siren was not intentionally broadcast to impact the jury’s deliberation, it was not “brought to bear” on their deliberations. It just happened.

Comment. Appellant noted that the State failed to argue in the trial court that Rule 606(b) limits jury deliberation evidence. The Court explains that an appellee need not preserve arguments for appellate purposes because rulings are upheld under any supportive theory. The Court explains, “[p]reservation rules are ‘judge-protecting’ rules.” None of this is wrong, but we should just get rid of this justification. We didn’t enter a social contract and create a criminal justice system in order to protect the interests of lawyers who ascend to the judiciary. Rules of Appellate Procedure which mandate the citizen lose his or her appeal based on unlitigated legal theories should be limited in scope and tailored to litigant fairness (not judge fairness). If the unlitigated issue indisputably reaches the same result on the known facts, and the defendant would unlikely produce new outcome-determinative facts if given an opportunity, then it would seem warranted to uphold a ruling based on so many better justifications such as judicial economy or harm analysis.

Brown v. State, No. PD-1292-19 (Tex. Crim. App. 2021)

Issue. Does dishonesty to a process server and a prior assault against the same victim constitute sufficient facts to find that the defendant waived his right to confrontation of the alleged victim in his assault case via the doctrine of forfeiture by wrongdoing?

Facts. Defendant was charged with assault family violence by strangulation and had once been previously convicted of assaulting the same victim. Defendant set his case for trial which resulted in a DA investigator attempting to serve a subpoena on the alleged victim at the victim and defendant’s mutual home. Defendant answered the door and said that he and the victim had split up, hadn’t seen her for a long time, and didn’t know where to find her. The investigator would later find pictures of the victim and the defendant on Facebook hanging out during the period of time the defendant indicated he hadn’t seen her. Ultimately the investigator was able to locate the victim at the mutual home and serve the victim with a subpoena. The victim did not show for trial. The State convinced the trial court to admit hearsay statements of the victim made on the day of the arrest under the exception to Sixth Amendment confrontation whereby a defendant waives his or her right to confrontation by procuring the witnesses unavailability through wrongdoing. The court of appeals found that defendant’s deception which thwarted the attempt at serving the subpoena constituted sufficient wrongdoing under the rule.

Holding. No. The Common Law doctrine of forfeiture by wrongdoing, codified by Article 38.49 of the Code of Criminal Procedure, provides that a defendant waives and forfeits his right to confrontation when, through his wrongful conduct, he procures the unavailability of a witness. The doctrine requires conduct that is calculated to prevent a witness from testifying and there must be a causal connection between the witness’s unavailability (decision not to testify) and the defendant’s conduct. The Court highlights cases from multiple states which hold that the causal connection is far closer to tort law’s requirement of proximate causation rather than but-for causation. Here, the fact that the defendant lied to an investigator about the alleged victim’s whereabouts and continued living with her during the pendency of his case was not sufficient evidence to satisfy the forfeiture by wrongdoing doctrine. “[N]o one has pointed to anything Appellant did during his post-offense, pretrial period that might have influenced Hutzelman’s decision, and in fact, there is no evidence that Appellant did anything to try exert such influence.”

Dissent (Yeary, J.) Would hold the misleading conduct sufficient wrongdoing to satisfy the doctrine, but questions whether the State has shown that the witness was truly unavailable. Would send the case back to the court of appeals for further analysis on this issue.

Comment. A witness isn’t unavailable until compulsory process has failed. If a defendant wishes to preserve error in the denial of compulsory process, he or she must follow a three-step process to preserve error: (1) seeking a writ of attachment, which the trial court must deny; (2) showing the court what the witness would have testified to; and (3) demonstrating that the witness’s testimony would have been relevant and material. Shouldn’t the State have to follow this process, at a minimum, before extinguishing a person’s constitutional right? Both the majority and the dissent have good points on whether the defendant’s wrongful conduct constituted sufficient wrongdoing under the doctrine of forfeiture by wrongdoing. The overwhelming majority of Texas cases on the issue, however, involve threats or violence directed at a witness.

In re State ex Rel. Ogg, No. WR-91,936-01

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

Facts. This is the appeal of the 14th District Court of Appeal opinion authorizing trial courts to suspend the State’s authority to demand a jury trial during the pandemic. The facts from the previous SDR are copied here. Kim Ogg is the Harris County District Attorney. Ogg filed petitions for writs of mandamus and prohibition challenging a Harris County court at law judge’s authority to conduct a bench trial without the consent and waiver of jury trial by the State. The defendant had moved for speedy trial on his misdemeanor charges following removal from a pretrial intervention (or pretrial diversion) program. The defendant requested a trial before the court (bench trial) because jury trial was prohibited under the current orders of the Texas Supreme Court regulating court proceedings during the COVID-19 pandemic. In his request for a bench trial, the defendant requested the trial court waive the requirements of Texas Code of Criminal

Holding. No. The Supreme Court Emergency Orders (and the underlying statute permitting such orders) give trial courts the authority to modify deadlines and procedures. The orders presuppose a pre-existing power or authority over the proceedings. Here, the trial court’s authority to preside over a proceeding as the fact-finder is not a mere procedural matter. The trial court and the court of appeals improperly used the Supreme Court Order to enlarge the trial court’s jurisdiction to try a case without a jury and without the State’s consent.

Comment. I sang praises of the defense attorneys involved in this case when they won at the court of appeals. I still do. Bench trials are the natural pandemic-era solution to a careful balance between health and public safety and the Sixth Amendment right to a speedy trial. The fact that this person’s offense and background initially merited admission into a diversion program but then his case became a tooth-and-nail fight all the way to the Court of Criminal Appeals certainly lends credence to the appearance that the district attorney made this case personal. I don’t know if it would be fair to weigh against the State this purely optional appellate litigation into the “reason for the delay” prong of a Barker v. Wingo speedy trial dismissal argument, but, quite literally, the only reason this person cannot not have a speedy trial is because the State prohibits it.

Barrett v. State, No. PD-1362-18 (Tex. Crim. App. 2021)

Issue. Is bodily-injury assault a lesser-included offense of occlusion assault (strangulation/impeding organ)?

Facts. These are consolidated cases involving the prosecution of “occlusion assault” (strangulation). Both defendants were denied a lesser-included instruction at trial on bodily-injury assault.

Holding. No. The relevant statutory definition of a lesser-included offense provides: an offense “established by proof of the same or less than all the facts required to prove the offense charged.” Tex. Code Crim. Proc. art. 37.09. A two-step analysis is used to determine whether a lesser-included instruction is appropriate: (1) compare the elements of the purported lesser-included offense (defined by the allowable unit of prosecution) with the statutory elements of the charged offense (defined by the allowable unit of prosecution), and (2) determine whether there is some evidence that would permit the jury to find the defendant guilty of only the purported lesser-included offense.

[T]he allowable unit of prosecution for occlusion assault is impeding the breathing or circulation of blood. An injury other than impeding is established by different or additional facts than those required to establish impeding, so bodily injury assault that results in a non-impeding injury is not an included offense of occlusion assault.”

* * *

Impeding is a “form of bodily injury.” Marshall v. State, 479 S.W.3d 840, 844 (Tex. Crim. App. 2016). Since the statute specifies impeding, it excludes other injuries. Impeding is exclusive of other injuries in the same way that a square is exclusive of other rectangles: A square is a rectangle, but other rectangles are not squares; specifying ‘square’ excludes non-square rectangles; and specifying “impeding” excludes non-impeding injuries.”

Unlike assault offenses with aggravating factors (i.e. upon a public servant or using deadly weapon) you cannot excise the conduct of occlusion and leave the offense of assault remaining. Occlusion is the gravamen of the offense. The court overrules by implication. Irving v. State, 176 S.W.3d 842 (Tex. Crim. App. 2005). In Irving the court provided that a lesser-included offense must involve the same alleged manner and means as that contained in the charging instrument. The Irving analysis is faulty because non-statutory manner and means are not the unit of prosecution, their nonproof would not give rise to a material variance at trial, and therefore should not restrict theories of lesser-included criminal conduct.

Concurrence and Dissent (Yeary, J.).

“I simply cannot agree that, as a matter of law, simple assault may never be a lesser-included of ‘occlusion assault.’” You can’t commit an occlusion assault without first causing bodily injury. You can apply pressure to the throat or neck and fail to impede breath or blood and still have committed an assault.  Judge Yeary declines to join Judge Keller’s dissent. Judge Keller would hold that bodily injury assault would include all physical injuries sustained in an assaultive transaction. Judge Yeary is inclined to hold that every punch, kick, or pinch is an individual assault.

Dissent (Keller, J. joined by Walker and Slaughter, JJ.).

Bodily injury includes all physical injuries sustained in a single transaction. Occlusion is not the unit of prosecution. Family violence assault appears in the assault statute among a list of things that make an assault extra bad. If the court holds that the other four in the list do not constitute separate and distinct offenses, then family violence cannot constitute a separate and distinct offense. Occlusion is a subsection of the family violence aggravator. It appears parallel alongside another subsection for prior convictions. A prior conviction is clearly an aggravating element. So to must be occlusion.

Comment. Which of the following are not a methodology of defining elements of an offense:

(a) a hypothetically correct jury charge
(b) a theoretically well-crafted indictment
(c) allowable units of prosecution
(d) eighth-grade grammar tests
(e) ninth-grade grammar tests
(f) sixth-grade spelling bee
(g) gravaminas
(h) gravmen
(i) boys2men

Although technically incorrect, we will award points to anyone who answered: “ABCBBD.”

Harbin v. State, No. PD-0059-20 (Tex. Crim. App. 2021)

Issue. Was it proper for the court of appeals to require the application of the 1994 statute for sudden passion in a case of resentencing for an offense committed in 1991?

Facts. Defendant was granted a new punishment trial after successfully showing in a writ of habeas corpus that the prosecution failed to disclose mitigating information about the victim’s psychiatric history and defense counsel’s failure to sufficiently investigate and present mitigating evidence. At the time of defendant’s initial trial, the Penal Code permitted conviction for voluntary manslaughter in lieu of murder when sudden passion is found. The legislature repealed this option and replaced it with a jury option to sentence a defendant convicted of murder to a second-degree punishment range instead. This repeal occurred in 1994, after defendant’s offense date.

Holding. The legislature made the sudden passion statute prospective only. The Court of Appeals’ granting of a new trial to require the retroactive application the sudden passion statute was in error. The rule of retroactive application of newly announced U.S. Supreme Court decisions in the context of habeas proceedings is inapplicable here because this is not a habeas case, and the rule was not handed down from the U.S. Supreme Court.

Flores v. State, No. PD-0064-20 (Tex. Crim. App. 2021

Issue. When a defendant conceals an electric drill and causes someone to believe it is a gun, has he used or exhibited a deadly weapon?

Facts. Defendant was convicted of aggravated robbery by virtue of his use or exhibition of a deadly weapon. Defendant used an electric drill he concealed sufficiently to cause the store clerk he robbed to believe he had a gun. At trial, store clerk testified that the defendant never attempted to strike her with the drill or made any such threats that he would utilize a drill to cause her harm. The lead detective testified to all the ways a drill could be used as a deadly weapon. However, surveillance showed no such use by the defendant. 

Holding. No. Determining whether sufficient evidence supports a deadly weapon finding requires a two-step process: (1) whether the object in question could be a deadly weapon under the facts of the case, and if so, (2) determine whether the deadly weapon was used or exhibited. The court of appeals erroneously analyzed the first step as an issue of whether the drill could be used as a deadly weapon in the abstract. Because any object could qualify as a deadly weapon, it is meaningless to focus on the nature of the object. “[I]t is only the manner of the defendant’s use or intended use that provides any meaningful limitation to the broad statutory definition.” Defendant’s use of the drill was to threaten a shop owner by causing fear that he possessed a gun. No evidence support that he used or intended to use the drill in an actual deadly manner such as bludgeoning or stabbing with the drill bit.

Dissent (Hervey, J.).

Reasonable minds could differ on whether the defendant was close enough to bludgeon the store clerk with the drill. This is enough under Jackson v. Virginia.

Dissent (Keel, J.).

“Appellant intended to intimidate, manipulate, and steal from his victim, and he accomplished his objectives by brandishing a menacing-looking object that turned out to be a drill.” He indicated he would hurt the clerk if the clerk did not comply.

Comment. This is a tough call. I agree somewhat with the Keel dissent. But there is something to be said about the fact that the legislature did not define a deadly weapon as “anything that in the manner of its use or intended use is capable of placing another in fear of death or serious bodily injury.”

Carter v. State, No. PD-0575-19 (Tex. Crim. App. 2021)

Issue. To qualify as a synthetic drug under Penalty Group 2-A a substance must have certain components appearing in certain positions in a chemical compound. When the State presents testimony of an analyst who concludes that a substance satisfies the requisite compound structure, but doesn’t testify to the identify or positioning of specific components, has the State sufficiently shown that a substance in question is a synthetic drug?

Facts. Defendant operated smoke shops in Lubbock County and sold a leafy substance called “Chilly Willy.” In 2014 he received a letter from the Lubbock County District Attorney warning him that Chilly Willy was synthetic marijuana. In response, Defendant sent his Chilly Willy to a lab for testing (a DEA certified lab according to his briefing to the court). The DEA certified lab determined that Chilly Willy did not contain “fluoro-ADB” the relevant compound which purportedly has a prohibited chemical structure making it a synthetic drug. The State’s laboratory found otherwise, and the defendant was prosecuted. At trial, the State presented expert testimony through a controlled substance analyst. After testifying to his lab’s methodology for testing Chilly Willy, the analyst testified that he concluded that Chilly Willy contained fluoro-ADB. The analyst neither indicated what components were contained in fluoro-ADB nor their positioning in the chemical compound. The jury sentenced the defendant to 90 years.

Holding. “We conclude that, when looking at all of [the analyst’s] testimony, a rational trier of fact could reasonably infer that his analysis established that fluoro-ADB satisfied the criteria of Section 481.1031(b)(5): that indazole (The core component) was substituted at the 1-position to any extent, and substituted at the 3-position with carboxamide (the link component) attached to methoxy dimethyl oxobutane (the group A component)—even though he did not explicitly say so.” The analyst testified that fluoro-ADB contained indazole, carboxamide, and methoxy dimethyl oxobutane. When the analyst responded in the affirmative to the defense question “[a]nd that’s what makes a compound, the place where the molecules are stuck, correct?” the analyst effectively communicated to the jury that the molecular position of those components made it a synthetic drug prohibited under Penalty Group 2-A. The jury could rationally infer that the analyst looked at the compound and found the components to be in the necessary positions.

Comment. I have a serious problem that a DEA certified lab told this man that his substance was not a synthetic drug and now he is in prison for 90 years. This opinion, and the summary, are a tough read. Basically, the statute requires the existence of specific components in specific positions in a chemical compound. This opinion allows juries to trust that the expert saw the components in the right spots without explicitly stating it.

Holoman v. State, No. PD-1339-18 (Tex. Crim. App. 2021)

Issue. May the State prove a prior conviction for purposes of enhancing a class A assault family violence to a felony assault during the punishment phase of trial?

Facts. The State charged the defendant with assault family violence by strangulation / occlusion. The State only proved a misdemeanor assault at trial. At the punishment hearing, the State requested, and the trial court agreed, to use one of defendant’s prior assault family violence charges to enhance defendant’s offense to a third-degree felony. Defendant objected to the use of the prior assault conviction to enhance the jury’s conviction from a misdemeanor to a felony. The State conceded that ordinarily, such a fact is jurisdictional and must be proven during trial. But the State argued that their pleading of an alternative jurisdictional element (strangulation/occlusion) absolved them of proving the prior conviction during guilt-innocence. In essence, the prior assault was no longer jurisdictional by virtual of the strangulation pleading.

Holding. As it pertains to prior convictions, legislative intent determines whether proof of such fact constitutes an element of the offense or merely a punishment issue. Ordinarily, prior convictions are punishment facts. But courts also look to several factors in making this determination. Whether the enhancing provision appears within the same subsection as the primary offense is relevant. Whether the enhancing language uses a phrase such as “if it is shown on the trial of . . .” is relevant. However, in all cases where the fact is one necessary to confer jurisdiction on the court, the fact must operate as an element of the offense. There are two ways to enhance a misdemeanor assault family violence to a felony: a prior conviction for the same offense, or strangulation / occlusion. The court rejects the State’s invitation to adopt a complicated standard for this unusual case – a standard makes the treatment of a prior conviction as elemental dependent on whether they have the ability to allege the alternative jurisdictional fact of strangulation / occlusion.

Comment. Shouldn’t the result in this case be an acquittal according to the Court of Criminal Appeals Decision in Barrett v. State decided only 3 weeks prior which provides that Simple Assault Family Violence is not a lesser included offense of Assault Family Violence by Strangulation/Occlusion?

Ex parte Thomas, No. WR-89, 128-01 (Tex. Crim. App. 2021)

Issue. Should the Court continue to require adherence to the requirements of Moon v. State, that juvenile courts make “factually supported, case-specific findings” when waiving jurisdiction and transferring prosecution to district court, when those requirements are neither statutory nor constitutionally mandated?

Facts. Defendant was 16 when he committed capital murder. After defendant reached the age of adulthood, the juvenile court waived its jurisdiction and transferred the case to district court where defendant was prosecuted as an adult and plead guilty to the lesser offense of murder. The juvenile court did not include in its transfer order any “factually-supported, case-specific findings” which now, decades later, are required by case law to bestow jurisdiction on the district court. 

Holding. No. In Moon v. State the Court held that an order waiving juvenile jurisdiction must be accompanied by “factually-supported, case-specific findings,” otherwise the order is invalid. 451 S.W.3d 28 (Tex. Crim. App. 2014). According to Moon, without such an order, the district court never acquires jurisdiction. To successfully transfer and bestow jurisdiction on a district court, the juvenile court must satisfy only the terms of the statute. Moon is a court-made requirement not mandated by statute or United States Supreme Court precedent. The statutory obligation of the transferring court is to merely state the statutory reasons for the waiver, not any case specific factual findings upon which they rest. In Kent v. United States, The United States Supreme Court held that due process guarantees a juvenile the right to a hearing and an order stating reasons for the transfer to adult court. 383 U.S. 541 (1966). “But Kent’s ‘reasons requirement for juvenile-transfer orders did not impose the ‘show your work’ rule that this Court came up with in Moon.”

Comment. The opinion concludes with some strong language about stare decisis. “Our resolution of the cognizability issue in this case has implicitly overruled Moon. Stare decisis principles do not prevent us from doing so explicitly. True, this Court should not frivolously overrule established precedent. But stare decisis is not an inexorable command.”

Concurrence (Yeary, J.). Concludes with even stronger language about stare decisis. “The Court is right to overrule Moon . . . . I would not hesitate over the decision to do so on account of the court-made doctrine of stare decisis, which is compelled neither by constitution nor statute.” “There may well be other reasons to afford due respect and defference to judicial precedents. But judicial precedents are not ‘the law itself’ . . .”

Another Comment. What is happening to stare decisis?

1st District Houston

Howard v. State, No. 01-19-00083-CR (Tex. App.—Houston [1st Dist.] Mar. 23, 2021)

Issues. (1) When officers have a subjective investigative intent, does a knock-and-talk investigation violate the Fourth Amendment by virtue of invading the privacy of a defendant’s curtilage? (2) Would a reasonable person believe they were under arrest, and thus subject to Miranda, when officers wearing body armor and with hands on their guns gesture for a person to come out of their home to talk about their suspicion of drug activity? (3) When officers conduct an unconstitutional protective sweep of a home and discover drugs which amplify their motivation to obtain a search warrant, is their subsequently obtained search warrant relying only on pre-protective-sweep facts unconstitutionally derived from an improper search? (4) When a warrant authorizes with the support of probable cause a search for marijuana, but also authorizes searches for multitude of other things without probable cause, is the good authorization severable from the bad authorization? 

Facts. Special agents with the Department of Public Safety approached the front door of defendant’s home to perform a knock-and-talk investigation. While at the door with the defendant and his house guest, agents smelled marijuana. Defendant admitted there might be marijuana in the home. Agents requested, but were denied, consent to search the home. Agents sought counsel from the Harris County District Attorney’s Office and were apparently advised to enter the home to conduct a protective sweep. During the protective sweep agents discovered marijuana and ecstasy. Then, following the protective sweep, agents obtained a warrant, asserting only those facts they had learned prior to conducting the protective sweep referencing only the odor of marijuana and defendant’s admission. The magistrate authorized in his warrant a search for marijuana, other narcotics and illegal substances, scales, narcotics packaging material, and drug paraphernalia. With this warrant in-hand, officers searched the home for marijuana but also found other drugs in plain view. 

Holding. (1) No. Absent express orders such as “no trespass” officers may enter upon residential property following the usual path to the front door to conduct a knock-and-talk investigation without offending the Fourth Amendment. (2) No. The officers asked permission to talk; they eventually took their hands off their weapons when they realized the defendant was not a threat; their guns were never drawn; the questioning was done outside; defendant was not handcuffed or transported to another location; there were no threats; defendant was never compelled to answer their questions about drug activity. (3) No. While the exclusionary rule requires suppression of “both primary evidence obtained as a direct result of an illegal search or seizure, as well as derivative evidence acquired as an indirect result of unlawful conduct,” the independent source doctrine absolves police of suppression when the evidence they discover is derived “separate and apart from any illegal conduct.” Here, the police are absolved of suppression if they would have sought and obtained a warrant without the observations they made through an illegal protective sweep. The record supports this conclusion; officers testified they planned to get a warrant as soon as they had evidence of the odor of marijuana and defendant’s admission. These were the only facts they relied on to obtain the warrant. The unconstitutional protective sweep is irrelevant. (4) Yes. Unlawful warrant authorizations may be severed from the lawful ones. Severing may not be appropriate where the main thrust of the warrant is a general search and there are a few minor items meeting the particularity requirement. But here, the warrant lawfully authorized a search for marijuana – not a minor item.

Concurrence (Goodman, J.). Writes separately to condemn the dishonesty of one of the police officers who stated in his warrant affidavit that he believed he would discover “marijuana, firearms, [and] other narcotics and illegal substances” based on the odor of marijuana smelled from outside the house. “[H]e failed to mention that he had actually seen ‘other narcotics and illegal substances’ inside the apartment during the illegal search.” It was simply illogical for this officer to conclude that he would find other drugs based on the smell of marijuana – he knew there would be other drugs and gave a misleading indication why he had that belief.

Comment. Ends-justify-the-means policing is often whitewashed by ignoring troubling but legally immaterial conduct of the police. Justice Goodman often does as much as he can within the confines of judicial restraint to call out those who treat the criminal justice system as an obstacle to catching and punishing the bad guys.

2nd District Fort Worth

Redmond v. State, No. 02-19-00381-CR (Tex. App.—Ft. Worth, Mar. 25, 2021)

Issue. (1) When the defendant advances a theory that he did not assault his wife and denies having assaulted his extra-marital girlfriend, may the State introduce an email from his extra-marital girlfriend detailing his abuse? (2) May the State impeach a testifying defendant with unadjudicated offenses identical to the single offense he admits committing on direct examination with the impression that it was an isolated incident? (3) May the State admit lots of hearsay evidence as long as the declarant testifies at trial?

Facts. Defendant stabbed his wife in the neck and brutalized her until she nearly died. Eventually, he relented to cries by his wife and his son to take his wife to the hospital. While en route, they detoured to a fire station to receive quicker medical attention. As the victim exited she promised to tell everyone her injuries were an accident and the defendant admonished “don’t make me kill you.” Once in the ambulance with medics and an investigator, she pleaded for help and for law enforcement to save her son from her husband. In a four-hour standoff, SWAT surrounded defendant’s home where he had returned with their son. After defendant emerged from the home with their son, officers entered and learned that defendant had cleaned the crime scene. At trial, the defendant advanced a theory that the two had engaged in mutual combat and the victim was fabricating a story to gain child custody. In addition to the victim telling her story from the witness stand, the State showed, through hearsay, that her statement remained consistent when told to the SWAT officer, the paramedic, and the investigating officer. The trial court allowed the State to admit a video of the victim’s initial report as well as a medical report containing the victim’s statements. The State was also granted permission to explore two lines of extraneous offenses: an abusive relationship with an extra-marital girlfriend, and his history of bank robberies. When questioned on these issues, the defendant gave a false impression that his affair did not end violently, and robbery was an isolated indiscretion. The State introduced extraneous evidence in response: an email from the girlfriend detailing abuse and photographic evidence of him robbing a bank more than once.

Holding. (1) Probably not. Here it was okay because the only objection raised was whether the evidence was proper under Texas Rule of Evidence 404(b). Here the hearsay email was introduced to rebut a defense theory and prove intent – both permissible non-character-conformity uses for extraneous offenses. The defendant did not object to hearsay at trial and only intertwines hearsay arguments into his briefing. (2) Yes. Normally, a witness cannot be impeached with unadjudcated offenses, but an exception to this general rule applies when a defendant testifies and leaves a false impression on direct examination. The State cannot open the door for itself or manufacture the false impression. Here the defendant’s direct examination testimony that he committed a bank robbery as a “crazy decision” brought on by “a perfect storm of events” at
‘the lowest point” in his life left a false impression with the jury that this was an isolated incident, and the State was permitted to correct this false impression. Such evidence was not impermissible character-conformity evidence under Texas Rule of Evidence 404(b). (3) Yes. But the rule of hearsay is eviscerated by the rule of harmless error in most cases. “The improper admission of evidence does not constitute reversible error if the same facts are shown by other evidence which is not challenged.” Here the declarant in each hearsay statement, the victim, also testified to the same statements while on the witness stand. In addition, the defendant failed to object or continue to object on numerous occasions where other statements by the declarant-victim were admitted through the testimony of other witnesses.

Comment. The real problem with the State eliciting testimony from other witnesses showing the victim told them the same thing she is saying on the witness stand is bolstering under Rules 608 and 613. However, here, the defendant swung the door open by calling the victim a liar.

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

Ex parte Carter, No. 04-20-00396-CR (Tex. App.—San Antonio, Mar. 17, 2021)

Issue. (1) Does an intermediate appellate court have jurisdiction to hear an appeal from a motion to increase bail? (2) Does an intermediate appellate court have jurisdiction to hear a writ of habeas corpus? (3) Is Appellant’s bail set unreasonably high?

Facts. Defendant’s bail was initially set at $15,000. The trial court, at request of the state, entered an ex parte order increasing bail to $400,000 without affording the defendant notice, a hearing, or an opportunity to be heard. Defendant filed a writ of habeas corpus raising two grounds for his illegal confinement: (1) that it was ordered without due process (notice, hearing, opportunity to be heard), and (2) that his bail was set at an unreasonable amount. The trial court held a hearing on the writ of habeas corpus and reduced bail to $200,000.

Holding. (1) No. “[W]e do not have jurisdiction to consider an appeal from an in interlocutory pretrial order granting a motion to increase bail because such jurisdiction has not been expressly granted by statute.” (2) Yes. We do have jurisdiction to consider an interlocutory appeal from a denial of a writ of habeas corpus. (3) No. The trial court considers factors in setting bail. First are statutory factors: (1) assure appearance, (2) not an instrument of oppression, (3) nature and circumstances of the case, (4) ability to make bail, and (5) safety of the victim and community. Next are case law factors: (1) the nature of the offense and potential sentence, (2) ties to the community, (3) length of residency, (4) employment history, (5) criminal history, (6) previous bonds and compliance therewith, (7) aggravating circumstances. Evidence presented by the state was sufficient to show that the bail amount was necessary to assure appearance at trial and protect the community.

Comment. The court is wrong to refuse jurisdiction over a writ of habeas corpus challenging pretrial confinement without due process. The court disposes of the defendant’s issue by creating a legal fiction that he appealed from the trial court’s order to increase bail. He did not. He filed a writ of habeas corpus challenging the constitutionality of his confinement, he stated two reasons why his confinement was unconstitutional (no due process, and bail too high). The court readily acknowledges they have interlocutory jurisdiction to consider final rulings on writs of habeas corpus. The trial court denied relief under the writ of habeas corpus and the defendant filed an appeal pursuant to Texas Rule of Appellate Procedure 31.1 (“when written notice of appeal from a judgment or order in a habeas corpus or bail proceeding is filed . . . ). The defendant’s denial of due process may have been mooted or rendered harmless by the subsequent hearing, but this is now a published opinion which confuses the law.

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 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

Joe v. State, No. 10-18-00221-CR (Tex. App.—Waco, Mar. 3, 2021)

Issue. In a theft of cargo prosecution, is the element of possession sufficiently proven by showing a person connected his semi-truck to a trailer but has not completed several other steps required to a complete connection to the trailer?

Facts. A mattress manufacturer placed a shipment of mattresses into a shipping container inside of a trailer in their shipping yard. On the night in question, the warehouse supervisor for the mattress manufacturer witnessed the defendant hook his blue Volvo semi-truck up to the trailer with the company’s mattresses. He was not supposed to be taking possession of the mattresses. As the defendant was completing the steps necessary to hook his semi-truck to the trailer (connecting the air lines), he got caught and did not complete the process.

Holding. Yes. Connecting the semi-truck to the trailer is a sufficient act of possession to prove theft of cargo despite the need for further steps to complete the connection and drive away with the cargo. “It is irrelevant to our analysis that appellant was unable to move the trailer “even an inch.”

Dissent (Gray, C.J.). Taking possession of a trailer with a semi-truck is a multi-step process which involves: “1) fifth wheel positioned properly and the locking pin closed; 2) connection of air lines as necessary to release the brakes; 3) connection of the electrical plug to have the required trailer lights; and 4) some would argue, lifting the legs/jacks/levelers. This process was not completed. This is attempted cargo theft.

Comment. The legal equivalent of the Dez Bryant catch-no-catch; except the NFL has better defined rules for possession.

Busby v. State, No. 10-18-00262-CR (Tex. App.—Waco, Mar. 3, 2021)

Issue. Can a defendant attack the legitimacy of his prior conviction used by the State at trial for enhancement purposes?

Facts. Defendant was charged with assault family violence enhanced with a prior conviction for assault family violence. At trial, the State presented a certified copy of the defendant’s prior assault family violence conviction indicating that the defendant pleaded guilty to the prior offense. Defendant presented the testimony of the prior complainant at trial who indicated that the prior assault was not an assault.

Holding. No not here. This amounts to a collateral attack on the prior judgment. A defendant can collaterally attack a prior conviction used for enhancement “only if the earlier conviction is void or tainted by a severe constitutional defect.” The law distinguishes between collateral attacks which merely show insufficient evidence and attacks demonstrating the previous conviction is based on a complete lack of evidence. Only challenges to prior convictions based on a complete lack of evidence are cognizable. Here, there is more than a complete lack of evidence. The defendant pleaded guilty to the previous conviction, which presents some evidence that he committed the previous offense.

Concurrence (Gray, C.J.). A defendant should never be allowed to collaterally attack a prior conviction in the context of a trial involving enhancement by a prior conviction.

Comment. This court uses Court of Criminal Appeals precedent pertaining to collateral attacks in the revocation context and applies it in the context of a trial. In the revocation-collateral-attack line of cases, the defendant is assigned a higher burden than he would have in a habeas corpus proceeding. But the Court of Criminal Appeals also provides “[n]othing prevents the probationer from filing an Article 11.08 or 11.09 writ application after the State has filed a motion to revoke, and nothing prevents the trial court from considering the application along with the State’s motion to revoke probation. Jordan v. State, 54 S.W.3d 783, 786 (Tex. Crim. App. 2001). So, in the context of revocation, a strict “complete lack of evidence” comes with a safety valve: “unless you have a pending writ of habeas corpus.” How does that work here, in the context of trial?

11th District Eastland

Lira v. State, No. 11-20-00148-CR (Tex. App.—Eastland, Mar. 25, 2021)

Issue. Do the Supreme Court’s COVID-19 Emergency Orders authorize a trial court to conduct a plea hearing by videoconference over objection of the defendant who invokes his right to an in-person plea in open court?

Facts. The judge made the defendant do his plea by Zoom over his objection.

Holding. No. Citing to Ogg, briefed earlier in this S.D.R., the Court noted that the Supreme Court Emergency Orders authorize courts to modify only procedural rights, not substantive rights. Texas Code of Criminal Procedure Article 1.13 mandates that a waiver of jury trial rights occur in-person unless specifically waived by written consent.

Comment. Same facts and outcome in Huddleston v. State, No 11-20-00149-CR (Tex. App.—Eastland, Mar. 25, 2021).

State v. Watson, No. 11-19-00082-CR (Tex. App.—Eastland, Mar. 31, 2021)

Issue. (1) Does a trial court abuse its discretion by choosing to believe a defendant’s testimony establishing an ownership interest in the thing searched (in order to establish standing) during a motion to suppress hearing and simultaneously choosing to disbelieve contrary statements made by the defendant at the time of the search? (2) May law enforcement conduct a protective sweep because they knocked on a door until it came ajar?

Facts. Law enforcement received a request to assist an individual in retrieving items of personal property from a room the individual rented from a homeowner. An officer met the individual at the home and knocked on the door several times until it “came open.” The officer then completely opened the door and decided to “clear” the residence by going room-to-room to “insure that nobody else was left inside the room behind the door or whatever.” Officers discovered defendant in one of the bedrooms and removed him. Once removed, and after 20 seconds of loitering in the room, the Officer discovered drugs and paraphernalia. The defendant challenged the legitimacy of conducting a protective sweep of the residence. The trial court granted defendant’s motion to suppress. 

Holding. (1) No. The trial court is the sole trier of fact and the trial court’s resolution of conflicting statements won’t be disturbed on appeal. (2) No. A protective sweep is a “quick and limited search of premises, incident to an arrest [or who are lawfully present in a residence] and conducted to protect the safety of police officers or others.” A protective sweep is permitted only when “justified by a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene.” The State argues on appeal that the individual who contacted police to retrieve belongings from the home implicitly consented to their entry and, once inside, officers were justified to conduct the protective sweep. However, “consent to enter the residence, without more, does not provide consent to search the entire residence or objects therein.” Moreover, the officer’s articulated reason for entering the home was because the door was ajar. The officer did not articulate any belief that a person would be inside who presented danger to officers. No other theory of consent provided by the renting individual, implied or otherwise, authorized the search of a bedroom unrelated to the reason officers were present at the home.

Comment. I have made the mistake of routinely accepting the lawfulness of a protective sweep without considering whether there is a legitimate articulable suspicion of danger. I think many officers do, too. 

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

Cisneros v. State, No. 13-19-00652 (Tex. App. –Corpus Christi-Edinburg, Mar. 4, 2020)

Issue. (1) Do double jeopardy prohibitions prevent the State from convicting a defendant on counts of continuous sexual abuse together with unrelated or non-predicate sexual assault counts? (2) When the legislature defined continuous sexual abuse as “two or more acts” regardless of whether those acts are “committed against one or more victims,” did the legislature intend to prohibit multiple convictions when the State proves two or more acts committed each against two or more victims?

Facts. Defendant is convicted of multiple acts of sexual assault, each against two different children.

Holding. (1) Yes. Under Penal Code § 21.02(e), the legislature expressed:

A defendant may not be convicted in the same criminal action of [sexual assault offense] the victim of which is the same victim of [continuous sexual abuse] unless the [sexual assault offense]:

(1) is charged in the alternative;
(2) occurred outside the period in which the [continuous sexual abuse] was committed; or
(3) is considered by the trier of fact to be a lesser included offense of the offense of the [continuous sexual abuse].

The Court of Criminal Appeals has stated the clear legislative intent is “to disallow dual convictions for the offense of continuous sexual abuse and for offenses enumerated as ‘acts of sexual abuse’ when based on conduct against the same child during the same period of time.” This is true, even when the State does not use the relevant sexual assault conviction as a predicate offense to the continuous sexual abuse conviction. Based on this legislative intent, the offenses are the same for purposes of a double jeopardy analysis.  (2) No. Using grammar and syntax, the court determines the unit of prosecution to determine whether two charges of conviction are the same or separate offenses. Within the same statute the legislature provides that “a defendant may not be charged with more than one count [of continuous sexual abuse] if all of the specific acts of sexual abuse that are alleged to have been committed are alleged to have been committed against a single victim.” The corollary to this provision, then, is true, “a defendant may be charged with more than one count of continuous sexual abuse if multiple acts of sexual abuse are alleged to have been committed against each of multiple victims.”

State v. Ruiz, No. 13-13-00507-CR (Tex. App—Corpus Christi-Edinburg, Mar. 11, 2021)

Issue. Is a warrantless blood draw justified under exigent circumstances and probable cause when the driver of a vehicle involved in a collision flees the scene and is later discovered by police unconscious, unresponsive, and smelling like alcohol?

Facts. This case is on remand from the Court of Criminal Appeals after consideration of the United States Supreme Court’s opinion in Mitchell v. Wisconsin, ___ U.S. ___, 139 S.Ct. 2525 (2019). Defendant was the driver of a vehicle in a motor vehicle collision. When officers arrived, they discovered an empty vehicle with exploded Bud Light cans inside.  Witnesses indicated the defendant fled the scene. Officers found him in the exact location where witnesses indicated he fled.  Defendant smelled like alcohol, and he was unconscious, unresponsive, wouldn’t open his eyes, and unphased by EMS sternum rubs.

Holding. In Mitchell v. Wisconsin the U.S. Supreme Court indicated “the exigent-circumstances rule almost always permits a blood test without a warrant” in cases where the driver is unconscious and therefore cannot be given a breath test. An exigency exists when: (1) blood alcohol content is dissipating, and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. “Both conditions are met when a drunk-driving suspect is unconscious . . .” Mitchell at 2537.

Comment. The officer testified that it would not have been feasible to get a blood warrant as only two officers were on duty or that it would have taken her 2-3 hours to get one. A blood warrant can be faxed or emailed, but the officer testified that in Gonzales County there aren’t procedures to do this. The Court here accepts unspecified general “other police duties” which had to be done in the same night as satisfaction the pressing-needs requirement. It sounds like there is an argument that the exigency is one of law enforcement’s own making. Longstanding precedent provides that law enforcement cannot create their own exigencies. This is at least food for thought.

14th District Houston

Wiggins v. State, No. 14-20-00076-CR (Tex. App.—Houston [14th Dist.] Mar. 16, 2021)

Issue. Does the assignment of a senior judge to preside over a defendant’s trial violate the Texas Constitution when the elected district judge is not “absent,” “disabled,” or “disqualified from presiding?”

Facts. Defendant’s case was tried before a senior judge assigned by the regional administrative judge “for the primary purpose of hearing cases and disposing of any accumulated business requested by the court.”

Holding. Defendant relies on the last paragraph of Article V, § 7 of the Texas Constitution: “The legislature shall also provide for the holding of District Court when the Judge thereof is absent, or is from any cause disabled or disqualified from presiding.” However, nothing in the text indicates the legislature lacks additional authority to enact legislation allowing the assignment of judges to sit even when the elected judge is not absent, disabled or disqualified.

Comment. Expressio unius. Fellow nerds, are you with me?

Perales v. State, No. 14-19-00236-CR (Tex. App.—Houston [14th Dist.] Mar. 25, 2021)

Issues. (1) Can the State satisfy the element of solicitation of “an individual” when an adult detective poses as a fictional individual for purposes of an online solicitation of a minor sting operation? (2) Is a showing by the defendant that law enforcement created ambiguity regarding the age of a fictional individual sufficient to shift the burden to the State to disprove entrapment beyond a reasonable doubt in an online solicitation of a minor case?

Facts. Defendant started a conversation on the Plenty of Fish dating app with a user named Jennifer who identified herself as an 18-year-old. As the conversation progressed, Jennifer disclosed that she was actually only 16. Defendant acknowledged this fact and proceeded to discuss detailed plans for sexual intercourse. Jennifer suggested that defendant come over and meet her at her parent’s house. Defendant agreed. While en route, defendant told Jennifer that he felt like he was being set up, told her she sounded older than 16, and told her he was suspicious that Jennifer was a detective. Defendant was ultimately undeterred by his correct instincts. Jennifer was a detective. The defendant was arrested on arrival.

Holding. (1) Yes. “The statute is meant to permit police officers to pose as minors to intercept sexual predators.” (2) No. Entrapment requires a showing that the defendant was actually induced to commit a crime by the persuasiveness of police conduct, and (2) the persuasion was such as to cause an ordinarily law-abiding person of average resistance to commit the offense. Here the State presented evidence, through the detective posing as a minor, that ordinarily individuals would disengage in conversation once learning the age of the fictitious individual she posed as. Because the defendant failed to show he was objectively induced, the defendant did not adequately raise the defense of entrapment, and thus the burden never shifted to the State to disprove beyond a reasonable doubt.

Rodgers v. State, No. 14-19-00216-CR (Tex. App.—Houston [14th Dist.] Mar. 30, 2021)

Issue. (1) Does it mean anything when an officer says: “you are not arrested right now, you are detained?” (2) does the act of perpetuating a false identity constitute a refusal to identify under the Failure to Identify statute?

Facts. Despite the possible variations of the crime of failure to identify established by the facts of this case, defendant was prosecuted for failure to identify as a fugitive (while under custodial arrest). Defendant was detained by a loss prevention officer at Wal-Mart. When an officer arrived, he requested defendant’s name. Defendant gave a fictitious name. The officer testified at the moment of Appellant’s false identification he was not under arrest, but rather detained. The officer’s body camera video shows that after this exchange, and while the officer was searching defendant’s pockets, defendant asked why he was being detained. In response, the officer informed the defendant he was not under arrest. The officer then read defendant his Miranda rights in order to interrogate him about the theft. Mid-interrogation, loss prevention officers alerted the officer to the discovery of stolen property in defendant’s backpack. The officer confronted defendant about lying, ordered him to sit down, and reiterated he was not under arrest and instead merely detained.

Holding. (1) No. At least it was not significant here in a failure to identify as a fugitive case where the burden is on the State to establish a lawful arrest. When it is clear to a suspect that an officer has gained probable cause and then steps up his tone, demeanor, and commands, the admonishment of “you are not arrested right now, you are detained” would not lead a reasonable person to believe the officer’s assertion is an honest one. (2) Yes. Here, the court declines to accept Defendant’s post-Miranda silence as an act of refusing to identify, given that he had previously given a false name. Providing the officer with a correct name at this juncture would have been self-incriminating. However, defendant’s comments perpetuating the charade of a false name after being placed under arrest was sufficient evidence to sustain a conviction of Failure to Identify as a Fugitive while under custodial arrest.

Dissent (Spain, J.). He eventually identified himself during the purported criminal transaction. That was good enough to negate the offense.

Comment. We’ll let’s see if this logic holds up in a suppression hearing where the police fail to read a future suspect their Miranda rights. Something tells me this goose sauce will not taste as good on the gander.

 State v. Temple, No. 14-20-00388-CR (Tex. App.—Houston [14th Dist.], Mar. 30, 2021)

Issue. Do the Supreme Court Emergency Orders Regarding the COVID-19 State of Disaster which permit trial courts to “modify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order” allow a court to grant shock probation (order probation after having served partial sentence) after the trial court’s 180 deadline to exercise such jurisdiction expires?

Facts. The trial court granted shock probation on a drug case two weeks after the trial court’s 180 post-sentence jurisdiction expired. The court cited the Supreme Court order permitting the suspension or modification of deadlines.

Holding. No. Pursuant to this month’s Court of Criminal Appeals decision in In re State ex rel. Ogg, a trial court may not use the Supreme Court Emergency Orders Regarding the COVID-19 State of Disaster to grant itself jurisdiction where there would otherwise be none.

Comment. During this time in the pandemic—February through April of 2020— most of the government went on total shutdown without a clear plan for operation. In most jurisdictions, inmates were not being transferred between jails and prisons, nor were they being brought to court. The State argued in their briefing that physical presence is not required to grant shock probation. It is hard to tell whether the ball got dropped, or the pandemic prevented the resolution of this matter within the trial court’s 180-day post-sentence jurisdiction. This issue could potentially be resolved with a writ of habeas corpus, but the defendant is (or was) serving a ten-year sentence on a drug offense. He is likely on parole already. According to TDCJ’s offender lookup – he is not currently in TDCJ custody. So, the tree falling in the forest doctrine remains intact.

Ex parte Fusselman¸No. 14-20-00549-CR (Tex. App.—Houston [14th Dist.] Mar. 30, 2021)

Issue. Is Texas’s child pornography statute facially overbroad for any of the following reasons: (1) because it punishes the possession of pornography involving 17-year-olds who are adults for purposes of engaging in sexual conduct? (2) because it expands the definition of forbidden content beyond that explicitly accepted as child pornography by the United States Supreme Court? (3) because it prohibits possession of images depicting minors engaging in simulated sexual conduct?

Facts. Defendant was charged with possession of child pornography and filed a pretrial writ of habeas corpus raising a facial challenge to the First Amendment legitimacy of Texas’s child pornography statute.

Holding. A statute is facially overbroad and violates the First Amendment if “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” The government must justify content-based restrictions on speech by showing the prohibition is narrowly drawn and serves a compelling state interest. (1) No. That a 17-year-old can consent to sex “does not compel the conclusion that the same child can consent to participate in pornography.” Pornography is exploitative and the State has a compelling interest in protecting children from exploitation. Possession of child pornography is not an offense against the child, but rather an offense against the “public decency and order.” Like in the case of prostitution, a public decency and order offense, a prostitute’s consent to sexual conduct does not make the conduct legal. Sister courts have applied similar logic to reject challenges raised against the criminalization of sexual performance by a child which sets the relevant age of a minor at “younger than 18.” (2) No. “the crucial question is on whether the depiction is lewd . . .” Osborne v. Ohio, 495 U.S. 103 (1990). The fact that the Texas statute prohibits lewd exhibition of body parts not specifically contemplated by the Supreme Court in cases where it has analyzed statutes pertaining to lewd exhibition does not render it unconstitutionally infirm. (3) Virtual child pornography (adults who look like minors or computer-generated images of minors) is protected speech. However, the Texas statute does not prohibit virtual child pornography or depictions of individuals who appear to be minors. The Texas statute, instead, prohibits possession of material that depicts an actual child involved in simulated sexual acts.

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

Voice for the Defense Volume 50, No. 3 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

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

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

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

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

Kyle Therrian

United States Supreme Court

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

Fifth Circuit

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

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

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

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

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

Texas Court of Criminal Appeals

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1st District Houston

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

2nd District Fort Worth

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

3rd District Austin

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

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

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

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

[Rucker]: I am myself, Your Honor?

* * *

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

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

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

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

4th District San Antonio

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

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

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

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

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

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

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

5th District Dallas

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

6th District Texarkana

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

7th District Amarillo

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

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

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

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

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

8th District El Paso

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

9th District Beaumont

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

10th District Waco

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

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

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

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

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

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

11th District Eastland

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

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

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

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

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

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

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

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

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

12th District Tyler

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

13th District Corpus Christi/ Edinburg

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

14th District Houston

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Voice for the Defense Volume 50, No. 2 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

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

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

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

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

United States Supreme Court

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

Fifth Circuit

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Texas Court of Criminal Appeals

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

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

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

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

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

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

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

1st District Houston

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

2nd District Fort Worth

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

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

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

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

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

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

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

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

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

3rd District Austin

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

4th District San Antonio

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

5th District Dallas

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

6th District Texarkana

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

7th District Amarillo

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

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

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

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

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

8th District El Paso

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

9th District Beaumont

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

10th District Waco

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

11th District Eastland

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

12th District Tyler

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

13th District Corpus Christi/Edinburg

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

14th District Houston

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Voice for the Defense Volume 50, No. 1 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

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

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

Please do not rely solely on the summaries set forth below. The reader is advised to read the full text of each opinion in addition to the brief synopses provided. Cases are hyperlinked and can be accessed by clicking on the case name.

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

United States Supreme Court

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

Fifth Circuit

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

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

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

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

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

Texas Court of Criminal Appeals

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1st District Houston

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2nd District Fort Worth

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

3rd District Austin

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

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

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

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

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

4th District San Antonio

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

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

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

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

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

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

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

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

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

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

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

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

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

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

5th District Dallas

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

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

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

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

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

6th District Texarkana

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

7th District Amarillo

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

8th District El Paso

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

9th District Beaumont

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

10th District Waco

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

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

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

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

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

11th District Eastland

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

12th District Tyler

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

13th District Corpus Christi/Edinburg

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

14th District Houston

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

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

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

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

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

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

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

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

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

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

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

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

(b) In this section:

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

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

(B) a communication made to a pager.

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

Dissent (Zimmerer, J.). no opinion.

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

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

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

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

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

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

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

Voice for the Defense Volume 49, No. 10 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

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

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

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

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

United States Supreme Court

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

Fifth Circuit

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

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

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

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

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

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

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

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

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

Texas Court of Criminal Appeals

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1st District Houston

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2nd District Fort Worth

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

3rd District Austin

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

4th District San Antonio

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

5th District Dallas

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

6th District Texarkana

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

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

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

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

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

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

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

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

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

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

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

7th District Amarillo

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

8th District El Paso

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

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

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

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

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

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

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

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

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

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

9th District Beaumont

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

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

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

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

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

10th District Waco

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

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

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

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

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

11th District Eastland

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

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

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

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

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

12th District Tyler

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

13th District Corpus Christi/Edinburg

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

14th District Houston

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Voice for the Defense Volume 49, No. 9 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

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

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

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

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

United States Supreme Court

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

Fifth Circuit

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Texas Court of Criminal Appeals

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1st District Houston

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

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

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

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

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

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

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

Issue. Does the Texas Constitution prohibit plea bargaining?

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

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

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

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

2nd District Fort Worth

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

3rd District Austin

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

4th District San Antonio

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

5th District Dallas

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

6th District Texarkana

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

7th District Amarillo

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

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

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

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

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

8th District El Paso

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

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

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

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

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

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

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

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

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

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

9th District Beaumont

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

10th District Waco

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

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

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

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

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

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

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

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

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

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

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

11th District Eastland

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

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

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

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

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

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

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

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

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

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

12th District Tyler

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

13th District Corpus Christi/Edinburg

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

14th District Houston

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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