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October 2022 SDR – Voice for the Defense Vol. 51, No. 8

Voice for the Defense Volume 51, No. 8 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

I’ve begun giving a significant decisions CLE presented in interactive trivia fashion using a program called Slido. It’s about as much fun you can have with case law (outside of reading the SDR, of course). It’s been an eye-opening exercise of how unpredictable our case law outcomes can be, even to well-trained lawyers. Answers often evenly split among multiple choice options on how courts ruled on a particular issue. I think it is an indictment of the common law aspects of our criminal justice system. Perhaps it’s not living up to lofty ideals. Let’s try one here: how many days in a year? I highly doubt you will get this one right. Keep reading to get mad. 

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 significant or published opinions since the last Significant Decisions Report. See my comment above.

Fifth Circuit

U.S. v. Harbarger, 46 F.4th — (5th Cir. 2022)

Issue & Answer. Is a 7.5-inch piece of bamboo with a fuse that is designed to blow up beaver dams an illegal explosive device? No.

Facts. Defendant possessed a 7.5-inch piece of bamboo with a short fuse that apparently explodes when lit. It is used to help him remove beaver dams. The U.S. Attorney for the Eastern District of Texas indicted him for having an explosive device. After the Government proved these facts together with conclusory statements that the device has no commercial application, the defendant moved for a judgment of acquittal. The trial court denied the defendant’s motion.

Analysis. The National Firearms Act prohibits the possession of an unregistered firearm. This includes a destructive device, defined as “any explosive, incendiary, or poison gas . . . bomb.” However, excluded from this definition is “any device which is neither designed nor redesigned for use as a weapon.” When there is doubt whether the device has some social value and legal use, there must be proof of scienter (defendant’s intent or knowledge) or proof the device can only be used for illegal purposes in order to sustain a conviction.

Comment. I mean why are we going after the beaver dam guy? I have clients in EDTX being shipped to northern Oklahoma for jailing. If holding beaver dam guy locally is the reason . . .

Texas Court of Criminal Appeals

Haskell v. State, No. AP-77,091 (Tex. Crim. App. 2022)

Issue & Answer. A party who loses a motion to suppress is entitled to findings of fact upon request.  When a party makes a request but fails to inform the trial judge his findings were overdue, has the party forfeited this right? Sort of. It’s a failure to preserve error rather than forfeiture.

Facts. The State secured a sentence to kill the defendant. The defendant lost his suppression hearing and requested findings of fact. Two months after his request the trial court sentenced the defendant without making the requested findings. Five months later the trial judge lost his primary election. Ten months later the trial judge left the bench. Appellate counsel (presumably appointed after sentencing) took no steps to secure findings until after the trial judge left the bench.

Analysis. The case providing for remand upon a trial judge’s failure to issue requested findings of fact and conclusions of law is State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006). Cullen turns on a civil rule. The civil rule requires a party requesting findings to notify a trial judge that the findings were past due within ten days after they were due. “But we need not adopt and apply the balance of that civil rule today and hold that the Cullen request here has been forfeited. More basic principles of error preservation come into play.” When a judge makes a favorable ruling, a party must object when that ruling is not enforced. Here the trial judge’s agreement to issue findings was a favorable ruling and the defendant needed to object when the trial judge did not issue them.

Comment. More judge protection rules in a system supposedly designed to strike a balance between the interests of society and the interests of individuals. Someone tell Thomas Hobbes and Jean-Jacques Rousseau they had the social contract all wrong; they forgot about the judges.

Ex parte Richardson, No. PD-0284-21 (Tex. Crim. App. 2022)

Issue & Answer. A jury could have convicted a defendant of murder under a theory of party liability but didn’t. The facts established that the defendant’s associate opened fire on Victim 1 and Victim 2 at two different locations. Victim 1 died but the evidence did not show which shooting caused the result. After a jury acquitted the defendant of all offenses relating to Victim 1, was the State collaterally estopped (under double jeopardy) from prosecuting the defendant for aggravated assault upon Victim 2? No.  

Facts. Defendant and a guy named Polk met with two guys at a gas station to sell them a gun (Victim 1 and Victim 2). Unbeknownst to Victim 1 and Victim 2, Defendant and Polk had sold the gun to another buyer before arriving at the gas station. Polk converted the meeting into an armed robbery. It was unclear whether the defendant knew Polk planned to rob the victims, but the defendant did hand Polk a gun before the two got into the backseat of the victims’ car. After successfully taking the victims’ money, Polk shot Victim 1 through the back. The defendant freaked out and ultimately offered to have the victims follow him to the nearest hospital. Trial testimony provided some indication that Victim 1 had died before the group departed for the hospital. All the same, they never made it. The defendant slowed his vehicle down somewhere in a residential area and Polk opened fire on the victims’ vehicle. Victim 1 received another bullet wound through the head and thigh. First responders found Victim 1 deceased upon arrival and took Victim 2 to the hospital where he eventually recovered from Polk’s gunfire. The State charged the defendant and Polk with capital murder (of Victim 1), murder (of Victim 1), and aggravated robbery (of Victim 1). A jury convicted Polk of capital murder but acquitted the defendant on all three charges (as a principal and as a party). After trial the State charged the defendant with aggravated robbery and aggravated assault of Victim 2. The defendant filed a pretrial writ of habeas corpus challenging the later prosecution on collateral estoppel double jeopardy grounds. The court of appeals reversed and held that “because [Victim 1] received fatal gunshot wounds during both shootings, to acquit, the jury must have found that Appellant was neither the shooter nor a party to either of the shootings.” In other words, the defendant argues that the jury necessarily found that he was merely present for all shootings.

Analysis. Protection against double jeopardy includes collateral estoppel. “[W]hen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” The court “must first determine whether the jury determined a specific fact, and if so, how broad—in terms of time, space and content—was the scope of its finding.” Because jury verdicts are general, the court must examine the pleadings, evidence, charge and other relevant matter.” If the record reveals a possibility that the jury based its verdict on an issue other than what the defendant seeks to foreclose from consideration, there is no collateral estoppel problem.  The touchstone case is Ashe v. Swenson, 397 U.S. 436 (1970). In Ashe, the State accused the defendant of robbing a poker game. When a jury acquitted Ashe of robbing one of the poker players the state brought charges against Ashe for robbing one of the other poker players. The logical issue before the jury in Ashe was whether the defendant was the person who committed the robberies, and so the State was collaterally estopped from trying to prove identity in a subsequent trial after a jury previously acquitted him. This case is slightly different than Ashe. Here, the State would be collaterally estopped if the jury found that Victim 1 was still alive when Polk opened fire in the residential neighborhood (the second shooting). Under this theory the jury would have acquitted the defendant as a principal or party to all the assaultive conduct resulting in the death of Victim 1. But the jury could have potentially found that Victim 1 had died before Polk opened fire in the residential area and treated the second shooting as superfluous information. In this scenario the jury’s acquittal would have been a finding absolving the defendant only of assaultive conduct occurring at the first location.

Comment. Did the State have an epiphany after trial that shooting someone with a gun is aggravated assault with a deadly weapon? Doubtful. I think this kind of strategic crap should be poured out on speedy trial grounds. Try the case and let justice prevail. It seems the State chose to delay the new prosecution for no other reason than to have a second bite at the apple if they lost the first case.

Lynch v. State, No. PD-1089-20 (Tex. Crim. App. 2022)(not designated for publication)

Issue & Answer. When a co-conspirator testifies and attempts to take full credit for drug possession, does a defendant open the door to the State’s use of the defendant’s prior convictions for drug possession under Rule 404(b)(limiting use of prior bad acts)? Yes. Is such evidence excludable under Rule 403 (unfair prejudice substantially outweighing probative value)? Not here.

Facts. When officers raided the defendant’s house and discovered a large quantity of cocaine, his girlfriend (“Girlfriend”) attempted to take responsibility. However, Girlfriend was unfamiliar with certain drug terms and ultimately implicated the defendant when she learned the potential penalty for the ownership she was attempting to claim. Girlfriend signed multiple post-arrest statements and ultimately testified at trial attempting again to take ownership of the cocaine. The trial court ruled that Girlfriend’s testimony opened the door to the State’s use of two of the defendants four prior drug convictions. The trial court agreed with the State that Girlfriend’s testimony advanced a defensive theory that the defendant did not have the intent to possess, nor did he know about the possession taking place in his own home. The court of appeals reversed the defendant’s conviction after finding the prior convictions substantially more prejudicial than probative. The court of appeals found it significant that the State waited to admit the prior convictions as standalone exhibits after Girlfriend testified rather than questioning girlfriend about the exhibits on cross-examination. Moreover, the court of appeals found that, without context, the convictions did little more than show that the defendant was a drug dealer, generally.

Analysis. Under Texas Rule of Evidence 404(b), evidence of prior bad acts is inadmissible to prove character conformity. But prior bad acts are admissible to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. When a defendant opens the door, he does so by placing one of these issues into question. If evidence of a prior bad acts contributes even incrementally to proving an issue other than character conformity, the prior bad act is admissible. Relevant prior bad acts admissible under 404(b) may still be inadmissible under Texas Rule of Evidence 403 if probative value is substantially outweighed by unfair prejudice. Trial judges are afforded broad discretion in making Rule 403 determinations. Contrary to the opinion of the court of appeals, the absence of context surrounding the prior bad acts worked to minimize the prejudicial impact of the evidence. The trial court also gave two limiting instructions to the jury prohibiting character conformity use of the evidence. This minimal prejudice existed against the backdrop of the State’s need after Girlfriend essentially took the wind out of prosecution’s sails. The trial court’s admission of prior bad acts did not violate Rule 404(b) or Rule 403.

Concurring (Yeary, J.). The limited issue on appeal is whether the evidence was substantially more prejudicial than probative under Rule 403.

Comment. I mean at this point the only surefire way to not open the door is to abscond.

Lang v. State, No. PD-1124-19 (Tex. Crim. App. 2022)

Issue & Answer. Organized Retail Theft (ORT) does not require the State to identify an owner in the charging instrument—a conviction may rest on the mere possession of stolen property. With this being true, can ordinary theft (requiring proof of owner identity) serve as a lesser included offense of ORT? Yes.

Facts. The defendant stole items from HEB. The State charged her with organized retail theft (ORT). The indictment alleged that the defendant “conducted, promoted, or facilitated an activity in which she received, possessed, concealed, or stored stolen retail merchandise . . .” Evidence showed the owner of the merchandise was HEB, but the indictment did not allege an owner. Defendant acted alone and did nothing distinctive from committing typical shoplifting. Defendant previously appealed her conviction challenging the ORT statute as impermissibly allowing a conviction for “ordinary shoplifting of retail items by a single actor.” The Court of Criminal Appeals previously reversed her conviction upon a finding that the ORT statute must require some proof of activity distinct from an ordinary theft. Upon reversal the Court of Criminal Appeals instructed the court of appeals to consider whether her conviction could be reformed from ORT to ordinary theft. The court of appeals held that Theft is not a lesser included offense of ORT and this appeal ensued.

Analysis. The distinct question here is whether the appellate court, after finding an ORT conviction is inappropriate, can reform the judgment and convict the defendant of theft instead. The court sets out a four-step process for making this determination:

    1. The reviewing court finds the evidence insufficient to support the appellant’s conviction.
    2. The reviewing court determines that there is a lesser-included offense of the greater offense the defendant was convicted of.
    3. The reviewing court determines that the trial court, in convicting the appellant of the greater offense, necessarily found every element required to convict the appellant of the lesser-included offense.
    4. The reviewing court conducts a sufficiency analysis as though the appellant was convicted of the lesser-included offense at trial and finds the evidence sufficient to support the hypothetical conviction.

Whether an offense is a lesser-included of another requires a “cognate-pleadings approach.” This approach requires a comparison of the elements of the greater charged offense as stated in the indictment to the purported lesser-included offense. If the greater charged offense (1) alleges all the elements of the lesser-included offense, or (2) alleges elements plus facts from which all the elements of the lesser-included offense may be deduced, the purported lesser-included offense is appropriate. The elements of the lesser included offense need only be functionally the same as the allegations in the indictment. Appellant contends that because the name of the owner is an essential element of theft, the State having proven all elements of ORT does not necessarily mean they proved all elements of theft. But Appellant is using this court’s standard for determining elements of an offense which applies to sufficiency of evidence challenges (the hypothetically correct jury charge). When conducting the cognate pleadings approach to determining a lesser-included offense, the elements of the lesser-offense are only those defined by the statute. Here, theft requires proof of appropriation and appropriation can be deduced from the ORT allegation of exercising control over stolen property. Here, theft requires proof of intentional deprivation and intentional deprivation can be deduced from the ORT allegation of exercising control over stolen property. Contrary to the reasoning of the court of appeals, to satisfy the statutory elements of theft the State must only prove an owner existed and not the identity of the owner. And here the existence of an owner can be deduced from the ORT allegation of exercising control over stolen property that came from a retail establishment.

Dissenting (Yeary, J.)

Comment. What a journey. When it takes 2-3 pages to explain what a lesser-included offense is and 29 pages to apply the facts to the law, I don’t see how we can expect trial attorneys to adequately prepare for the eventualities of trial. Imagine yourself sitting down with a client who says, “what are the risks of trial?” and the first thing out of your mouth is “well, under the cognate pleadings approach . . .”

1st District Houston

Fields v. State, No. 01-20-00280 (Tex. App.—Houston [1st Dist.], Aug. 11, 2022)

Issue & Answer. This is a capital murder for committing multiple murders in a single transaction. The defendant was a driver, and his accomplices were the triggermen. The State’s theory of the defendant’s guilt is his party liability for the murder occurring within the scope of the robbery he agreed to participate in. The indictment did not mention robbery. Was it proper for the trial court to instruct the jury on party liability to an unindicted robbery without giving the jury a definition or the elements of robbery? No, but the error was harmless.

Facts. A jury convicted the defendant of capital murder (for the death of more than one person in the same transaction). The State’s theory and the jury’s conviction rest on the defendant’s party liability to a robbery turned murder. The defendant was not the shooter, but he was the driver and was involved. The State did not indict the defendant for robbery nor did their indictment for capital murder reference robbery. The trial court instructed the jury it could find the defendant guilty on a theory of party liability to a robbery. The trial court denied the defendant’s request to include the elements of robbery and denied the defendant’s request to include a lesser-included offense instruction on robbery.

Analysis. Generally, when the State intends to rely on party liability to a robbery as the basis for capital murder, they either indict the person as having committed murder in the course of a robbery or they indict the person for capital murder and a separate count of robbery. What the state did here is weird. They indicted the defendant for murdering more than one person (a distinct ground of capital murder), did not refer to robbery, then relied on defendant’s party liability to a robbery to convict. Only two cases appear to exist where a trial court instructed the jury that it could convict on a primary offense based on party liability to an unindicted offense. In both cases, the trial court defined the elements of the unindicted offense. Given that it is the trial court’s obligation to “deliver to the jury . . . a written charge distinctly setting forth the law applicable to the case,” the omission of a definition for robbery “derail[s]” the process. The court’s omission was charge error, but it did not cause harm. The defendant was clearly a party to robbery. Witnesses saw the three men at the scene of the murder, the defendant admitted to planning a robbery, and counsel basically conceded the point in closing argument.

Comment. This case exposes how the rules of appellate review violate the Sixth Amendment (in my opinion). This was a trial before the appellate court. No juror determined whether the defendant committed robbery or was a party to a robbery—not even close. An appellate court just decided that he did in the name of an efficient judicial system.

Ex parte Vieira, No. 01-21-00464 (Tex. App.—Houston [1st Dist.], Aug. 16, 2022)

Issue & Answer. How many years is July 7, 2019 to July 9, 2021? Exactly two. 

Facts. The State charged the defendant with aggravated assault by a public servant. Because the underlying offense is an assault, the statute of limitations is 2 years. The State alleged the offense occurred on July 7, 2019 and filed their indictment on July 9, 2021. Defendant filed a pretrial writ of habeas corpus asking that the case be dismissed and alleging that the prosecution was time barred. The trial court denied relief.

Analysis. Article 12 of the Code of Criminal Procedure governs limitations. The computation of time does not include the date of the offense or the date of the indictment or information. The limitations period here is 2 years. The alleged offense day is July 7, 2019, therefore the first day of the limitations period counted is July 8, 2019. So, the two-year date was July 8, 2021. The State was required to file their indictment by the end of the day on the next calendar day: July 9, 2021. They did this, the trial court properly denied relief.

Comment. A year is:

    1. Twelve calendar months beginning January 1 and ending December 31. — Also termed calendar year.
    2. A consecutive 365-day period beginning at any point; a span of twelve months.

YEAR, Black’s Law Dictionary (11th ed. 2019). 2 years is 730 days (365 x 2). July 8, 2019 to July 8, 2021 is 732 days. The State filed an indictment for an assault offense occurring on July 7, 2019 on July 9, 2021. That’s 734 days. Subtract 2 (first day and last day don’t count statutorily). That’s 732 days (or 2 years and 2 days). What am I doing wrong? Is there some exception written in the Mayan codices? Was the crime committed on a leap year?

Thomson v. State, No. 01-20-00434-CR (Tex. App.—Houston [1st Dist.] Aug. 18, 2022)

Issue & Answer 1. A defendant gave consent to an officer to access his phone and verify it cannot make a phone calls. Did the defendant’s scope of consent include the assumption of risk that the officer might misnavigate to the images on the phone and discovery illegal activity? Yes.

Issue & Answer 2. When a jury suppression issue is raised at trial focusing on whether an officer intentionally accessed the photo gallery or misnavigated to the photo gallery, does the post-trial disclosure of the officer’s prior termination from the district attorney’s office for using a government database for unauthorized investigations of a personal nature require the granting of a new trial? Yes.

Facts. An officer stopped the defendant who was out after midnight. The defendant appeared to be over 40 years old, and he had a passenger in his vehicle that appeared to be a minor (actually 18). The officer quizzed the defendant and the passenger until their stories did not match. He removed the defendant from the vehicle, conducted a Terry frisk, and discovered a marijuana pipe and a cell phone. The officer searched the defendant’s vehicle and discovered knives, duct tape, bungie cords, screwdrivers, binoculars, powdered Benadryl, bar soap, and another cell phone. The defendant told the officer he used these items working as a chicken farmer. The defendant told the officer that the second cell phone stored pictures only and that it did not have cellular service. The officer was suspicious of this claim because the home screen had a 3G icon as though it was connected to cellular service. The defendant unlocked his phone so the officer could confirm the phone was not working by attempting to make a phone call. The officer’s body camera went silent for 15 seconds and then the officer confronted the defendant with the following statement: “Dude, I’m trying to shut your phone, and there’s pictures of naked little girls and little girls in sexually explicit positions. What’s up with that? The officer testified in a suppression hearing that his personal phone was an iPhone with a center button that you press to go back to the home screen. Defendant’s phone was an Android and didn’t function the same way. The officer attempted to return the phone back to the home screen to store it and because it was an android it just pulled up all of the defendant’s child pornography. Experts testified at trial regarding the operation of the defendant’s phone. The experts explained how the stored images are accessed by hitting the gallery button located one row above where the officer may have been legitimately clicking to lock out the phone. The State’s expert showed how the crack in the defendant’s screen could permit access to the photo gallery by only clicking near the icon. The defendant’s expert testified that the officer should have never been on the icon screen if all he was doing was making a phone call and then trying to lock the phone as the officer described. After trial, the district attorney discovered Brady material pertaining to the officer. The officer had resigned from the Grimes County District Attorney’s Office after being confronted about his unauthorized use of a government database to spy on his wife and his new girlfriend’s lover during their divorce proceedings. The defendant moved for new trial and after a hearing the trial court denied relief.

Analysis 1. The trial court’s ruling is best upheld by characterizing the defendant’s consent as broad enough to include inadvertent misnavigation. An officer may inadvertently cause things to fall into plain view. Consent to use a certain function on the phone is consent to inadvertently misnavigate to other areas of the phone. Thus, the officer discovered images of child pornography within his legitimate plain view of the phone.

Analysis 2. Texas Code of Criminal Procedure Article 40.001 requires a trial court to grant a new trial “where material evidence favorable to the accused has been discovered since trial.” Here, because the defendant requested and received a jury evidentiary suppression instruction under Texas Code of Criminal Procedure Article 38.23, the question of whether the officer truly stumbled upon the defendant’s child pornography by accident was important. Evidence that he once perused a government database without authorization in the past was therefore material. Article 40.001 has additional requirements, though. The newly discovered evidence must be admissible. Here the parties focused their arguments on the permissible use of prior bad acts. Rule of Evidence 404(a) prohibits the use of character evidence to prove conduct conformity. The State argued in the trial court that the use of prior bad acts is limited by the Rule itself to proving bias, self-interest, or a motive to lie. The State further argued that the defendant may not rely on Rule 404(b) “for a pathway to admissibility independent of admissibility through Rules 607 through 609.” The trial court erred to rely on this articulation of the rule. The State’s analysis of the interplay between Rules 404, 607, 608, and 609 is unsupported in the law. It is true that Rule 404(a) provides a limited mechanism for the use of character evidence to prove certain things. That said, Rule 404(b) is a thing unto itself—it provides a mechanism for using prior bad acts to prove something other than character conformity. Here the evidence had probative value on a point in controversy: whether the officer’s access of the defendant’s pictures was truly inadvertent.

Comment. What kind of weapon feels like a marijuana pipe or a cell phone? I mean that’s what a Terry frisk is, right? To find weapons?

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 Bornhop, No. 03-22-00033 (Tex. App.—Austin, Aug 11, 2022)

Issue & Answer. Extradition rules require the production of certain documents supported by affidavit. Must the supporting affidavit comply with technical requirements of the Rules of Civil Procedure? No.

Facts. The defendant had warrants in Missouri for burglary and theft. When he was arrested in Austin, he demanded the State produce a governor’s warrant for his extradition. The Texas Governor issued a governor’s warrant upon the documentation provided by the State of Missouri. The defendant filed a writ of habeas corpus challenging the sufficiency of the documentation provided by Missouri. The defendant argued that the request by Missouri did not coincide with an affidavit sworn before a magistrate as required by Texas Code of Criminal Procedure Article 51.13 § 3.

Analysis. Article 51.13 § 3 describes the documents that the requesting state must send to the Texas Governor. The list includes things like an affidavit sworn before a magistrate and a copy of the indictment. The list is disjunctive, meaning the requesting state need not provide every item on the list. Here the State of Missouri provided certified copies of the felony complaints. The State of Missouri also included a statement of probable cause signed by an officer before a magistrate who notated his finding of probable cause. An affidavit is merely a sworn statement before a person authorized to administer oaths. The strict civil rule of affixing a seal of office by the oath administrator is not required here.

Borders v. State, No. 03-21-00545-CR (Tex. App.—Austin, Aug. 18, 2022)

Issue & Answer. When a defendant is engaged in both legitimate and illegitimate financial transactions over a long period of time, does an indictment which fails to identify the illegitimate transactions on which the State intends to rely provide sufficient notice? No. Does the State cure the lack of notice by appending a response to a motion to quash with specific transactions? Yes.

Facts. The defendant worked for the volunteer fire department. He had a fire department credit card. He used that credit card to purchase personal items and to withdraw cash. The defendant admitted to using the credit card for cash withdrawals but explained to detectives that he used the cash for fire department purchases. Investigators discovered $30,000 in cash deposits at the defendant’s bank but estimated combined withdrawals and purchases for approximately $45,000. The State alleged an aggregated theft amount of $30,000 to $150,000 and only generically explained the basis of its accusation (appropriated currency belonging to the fire department). The defendant filed a motion to quash. In his motion he conceded that the State need not allege every fact upon which it intends to rely. But the defendant argued that the discovery was voluminous, unorganized, and provided an insufficient basis for preparing his defense. The State took exception to this characterization. The State explained that it intended to focus on the debit card withdrawals during the relevant time period and attached to its response evidence contained within the discovery purporting to prove the allegation. The State also pointed to the bank records provided to the defendant in discovery with relevant transactions highlighted.

Analysis. Sufficient notice may be provided by means other than the indictment. Here the State responded in writing to the defendant’s motion to quash and attached supporting documentation. The defendant contends that he should not have to “ferret out the illegitimate from the legitimate transactions” combined in the State’s supporting documents. The State should be compelled to specifically list the illegitimate transactions on which they intend to rely. The defendant was correct to file a motion to quash. Case law supports the contention that a defendant accused of mixing legitimate financial transactions with illegitimate ones should not be forced to prepare a defense for every single transaction. But when the defendant filed his motion to quash the State pointed to the discovery it had provided the defendant and pinpointed the transactions it planned to prove were illegitimate.

Comment. Here’s my beef with the rule that the State can provide notice through documents other than the indictment. The indictment serves many purposes, notice being one of them. But the indictment can serve (should serve) to limit the issues at trial and hone what the defendant must prepare for. If a defendant accused under a generic or broadly worded indictment cannot raise an objection to testimony adding incriminating conduct outside the scope of the discovery, then courts should not be able to point to the discovery and say “there’s your notice.”

Melton v. State, No. 03-21-00416-CR (Tex. App.—Austin, Aug 31, 2022)

Issue & Answer 1. In a murder prosecution, when a defendant testifies that he did not mean to shoot the victim, did not know the gun was loaded, and did not put his finger on the trigger, is he entitled to a lesser-included instruction on criminally negligent homicide? Yes. Was the error harmless because the jury received and rejected an instruction on the lesser-included offense of manslaughter? Yes.

Issue & Answer 2. Self-defense is a confession and avoidance defense where the defendant must essentially admit to the conduct of the offense (though not necessarily every element). Is a defendant entitled to a self-defense instruction where he admits to retrieving and wielding a gun, but denies putting his finger on the trigger and maintains that the shooting was an accident? No.

Facts. The state charged the defendant with murder. The defendant and three other individuals were talking on his front porch. A fight broke out and, according to the defendant, the victim held a knife to him. The defendant explained that he went inside, retrieved a shotgun, pointed it at the victim, and told him to never pull a knife on him again. According to the defendant the shotgun went off and struck the victim in a “freak accident.” The defendant indicated that he did not intend to shoot, did not put his finger on the trigger, and did not personally load the gun. Witnesses at trial refuted the defendant’s story and law enforcement explained how they were unable to make the gun misfire in their investigation. The defendant and another member of the altercation testified that the shooting was accidental. The defendant requested but the trial court denied jury instructions on criminally negligent homicide and self-defense.

Analysis 1. “The key to criminal negligence is the failure of the actor to perceive the risk created by his conduct.” Here the defendant testified that the gun discharged accidentally, he never touched the trigger, that he did not check to see if the gun was loaded, that he did not think it was loaded, and that he did not intend to shoot the victim. “Evidence suggesting accidental discharge of a firearm does not necessarily raise the issue of criminally negligent homicide.” But there are several cases where a charge on criminal negligence was required. Here it was an error to deny the requested instruction. Typically, a denied lesser-included offense instruction will result in sufficient harm to warrant a reversal because it forces the jury to convict or acquit on the greater charge without the lesser third option. But here the jury was provided a third option, a lesser included offense with a culpable mental state between the one requested and the offense of conviction. Because the jury rejected the lesser offense it was provided, there is no logical reason to conclude they would have accepted an even-lesser offense. 

Analysis 2. Though the defendant testified that he felt he was endangered, he repeatedly and consistently denied shooting the victim. He also denied pointing the gun at the victim. He did not sufficiently admit to the alleged conduct.

Comment. I think the courts of appeal are lagging significantly behind the Court of Criminal Appeals’ trends in the area of confession and avoidance. Some on the high court have indicated in the past several years that they don’t hold the doctrine in the highest regard. Recently in Rodriguez v. State, No. PD-1130-19 (Tex. Crim. App. 2021) the court reversed the denial of a self-defense instruction where the a defendant claimed nearly the same thing as the defendant in this case – that he pulled a gun in the middle of a fight, he only meant to scare everyone away, but the gun went off by accident. I’m not sure this case holds up if PDR is sought.

4th District San Antonio

Martinez v. State, No. 04-19-00745-CR (Tex. App.—San Antonio, Aug. 31, 2022)

Issue & Answer 1. Investigators could not locate a murder weapon but two days before trial a witness disclosed information suggesting that it could have belonged to the father of the State’s key witness. Under these circumstances, was the trial court required to grant a continuance for purposes of defense investigation? No.

Issue & Answer 2. Is there probable cause for murder if you make a cell phone call to the murder victim moments before the murder? Yes. Is there probable cause to obtain 74 days’ worth of GPS location data? No. Is it harmless? Yes.

Facts. A jury convicted the defendant of murder. The State showed the defendant to be a heroin dealer who had conscripted the victim, a college student and heroin user, to help him finance his heroin business. The defendant’s friend Dalton testified that he picked the defendant up from the location of the murder shortly after it occurred. Investigators used cell phone location and call logs to link the defendant to the location of the murder and the victim herself. The defendant also met the vague description of an eyewitness who had seen a Hispanic male at the location of the murder moments before the murder occurred. During an interview with investigators, the defendant confirmed that he was a heroin dealer, that he sold the victim heroin, that he was friends with Dalton, and that the cell phone police were investigating belonged to him. Days before trial the prosecutor learned and disclosed to defense counsel that the yet-to-be-recovered murder weapon may have belonged Dalton’s father. The defendant requested and the trial court denied a continuance to investigate. The trial court asked counsel what he intended to investigate, and counsel requested to provide that information ex parte so as to not disclose his strategy. The trial court declined to conduct an ex parte proceeding. In a motion for new trial counsel revealed his intended strategy. He explained that “investigation of the information in the Brady notice was critical because it could either place a weapon of the same type used in the murder in Dalton’s hands or, if the statement were proven untrue, impeach Dalton’s credibility.” Dalton’s father testified at the motion for new trial hearing that Dalton is a liar and the bulk of what Dalton had told the prosecutor shortly before trial was untrue.

Analysis 1. The defendant raised the specter of the murder weapon potentially belonging to Dalton’s father. The defendant contends that the trial court’s denial of continuance denied him the ability to investigate. His argument follows “the inability to investigate could have had a significant impact on the trial because it could have shown that Dalton had physical possession of the type of weapon used in the murder.” However, investigators determined that the murder weapon was a revolver and Dalton’s father testified he had never owned a revolver. The defendant’s denied investigation would not have been fruitful. Nor was he entitled more time to develop impeachment evidence of Dalton or Dalton’s father. “[A] trial court does not abuse its discretion by denying a continuance to allow a party to discover impeachment evidence.”

Analysis 2. There is no reasonable expectation of privacy in the numbers a person texts or calls as such information is disclosed to that person’s cell phone provider. This disclosure belies a claim of privacy under the third-party doctrine. However, cell phone location data is not subject to such a waiver of privacy. Cell phone location data must be acquired pursuant to a warrant supported by probable cause. Here the investigating officer articulated phone calls between the victim and the defendant just before the murder occurred and nobody in the victim’s family was familiar with the defendant’s phone number. Defendant contends this is not probable cause, however “[t]he magistrate could have reasonably concluded there was a fair probability that the location of the device involved in those communications would provide evidence of the crime in the investigation of the murder described in the affidavit.” Probable cause notwithstanding, the 74-day period of cell phone data was too broad and not supported by sufficient evidence. But still the warrant was too broad. This error was inconsequential, however. The investigator relied in good faith on his warrant. At the time he applied, neither Texas nor the Fifth Circuit recognized a reasonable expectation of privacy in cell phone location data. Thus, the investigator was fine to obtain permission to seize evidence outside the scope of the probable cause he articulated. Moreover, the information obtained which exceeded probable cause was minimal. The investigator rightfully obtained information which put the defendant’s cell phone at the scene of the murder. Any error in the court’s denial of suppression was harmless.

Comment. This is a weak case for probable cause. And I can usually chalk opinions like this up to any number of agree-to-disagree reasons. But I become suspicious of potentially result-oriented judicial analysis when the judge describes the exclusionary rule (which has existed since 1789) as “the so-called exclusionary rule,” or the “judicially created federal exclusionary rule” as Justice Chapa does in her opinion. None of the rules of error preservation or harmlessness used to reject the defendant’s appeal were described in the opinion as “judicially created.” Either tell us why the exclusionary rule shouldn’t be a rule or just call it the “exclusionary rule.” Otherwise, it just looks like you hate it and wrote an opinion to get around it.

Traylor v. State, No. 04-21-00258-CR (Tex. App.—San Antonio, Aug 31, 2022)

Issue & Answer. When the state impeaches a defendant’s testimony using a prior conviction identical to the offense of prosecution and already has strong evidence supporting their allegation, does the trial court err when overruling the defendant’s Rule 403 undue prejudice objection? Yes, but harmless.

Facts. A jury convicted the defendant of aggravated robbery. The defendant and his daughter testified that at the time of the robbery he was dropping his daughter off at school. The trial court permitted the State to impeach the defendant with a prior conviction for aggravated robbery over the defendant’s Rule 403 undue prejudice objection. The State did nothing more with the defendant’s prior aggravated robbery conviction than represent that it existed.

Analysis. Under Rule 609 a party can impeach a witness using a prior conviction to the extent the prior conviction is probative of truthfulness. The offense must be a felony or crime of moral turpitude. Rule 609 has an inverse Rule 403 balancing test where exclusion is favored over admissibility—probative value must outweigh prejudicial effect. Here the defendant only objected under Rule 403, but the trial court’s ruling was error under either balancing test. Violent offenses are less probative of untruthfulness than those involving deception. The impeachment offense being identical to the offense of prosecution raises some concern about the jury’s improper use. But ultimately, the fact that the State had ample other evidence establishing guilt militated most strongly against admission. The State had the defendant’s palm print at the scene of the offense, law enforcement discovered clothing matching the perpetrator’s disguise at the defendant’s home, the defendant gave a faulty alibi, and an eyewitness identified him. The fact that the State’s case was so strong also made the trial court’s Rule 403 error harmless.

Concurrence (Rios, J.). Wouldn’t even entertain whether the trial court erred if it were harmless.

Comment. The opinion writes the final prong of a 403 balancing analysis out of existence: “the force of the proponent’s need for the evidence.” If the existence of already strong evidence cuts against admissibility but also renders erroneous admission harmless, then is it really even a factor for consideration anymore?

5th District Dallas

Dies v. State, No. 05-20-00951-CR (Tex. App.—Dallas, Aug 4. 2022)

Issue & Answer. When a State’s witness had COVID-19 and both the State and the defendant moved for continuance before trial in response, does the trial court violate the defendant’s confrontation rights by forcing him to confront his accuser by Zoom? No. Not in this case.

Facts. On October 15, 2020, the State announced at a pretrial conference that two of its witnesses could not testify in-person. The State’s forensic interviewer had been exposed to and would later contract COVID-19. The State’s extraneous abuse witness was 38 weeks pregnant and the State articulated concern for her health and safety. The court suggested Zoom testimony and the defendant objected. The State moved for continuance and the trial court denied the request. The trial court cited the need to “get the cases moving” and the defendant’s right to a speedy trial which he did not appear to have even invoked. The defendant then moved for a continuance and expressly cited his need to preserve his right to conduct in-person confrontation. The trial court called its own technology witness who put on the record how amazing the technology in the courtroom was. Both witnesses ultimately testified via Zoom. The extraneous abuse witness covered the defendant up on her screen, so she did not have to see him completely. The forensic interviewer could not see the defendant at all.

Analysis. “[T]he right to a physical face-to-face [confrontation] is not absolute and must occasionally give way to considerations of public policy and the necessities of the case.” The Court of Criminal Appeals recently described face-to-face confrontation as not easily disregarded and a right which exists “at the core of the Confrontation Clause.” But, applying the touchstone case of Maryland v. Craig, 497 U.S. 836 (1990), Texas Courts have permitted virtual testimony in the following scenarios: child witnesses, a witness on active military duty, a seriously ill witness, and a witness with high-risk pregnancy. Whether virtual testimony is “necessary” is a case-by-case determination. It must satisfy an important public policy interest and the “reliability of the testimony [must] otherwise assured.” Here the public policy interest was sufficient. The pandemic was ongoing and a vaccine had not yet become available. Reliability was assured because the procedure for remote testimony met the “salutary effects” requirements of confrontation, namely: there was an oath, there was an opportunity for cross-examination, the factfinder could observe the witness’s demeanor, and there was no increased risk of false accusation or identification.  The defendant contends that there could be no necessity when a continuance could have cured the problem, but at the time there was no way to stay safe from the virus except by wearing masks, social distancing, and good hygiene. A vaccine would not be available to the public until two months later and the trial court had no way of knowing about the rollout of the vaccine.

Comment. In my opinion, the Fifth Court of Appeals just gets this wrong, as does probably several cases it cited in support. There can’t be a necessity if there was another solution such as a continuance. That the witnesses partially or completely could not see the defendant was significant as well. The court relies on very thin logic to dismiss the defendant’s contention that a continuance would have cured the necessity. The contention that trial courts in October of 2020 could not have known the vaccine would soon be available is just a legal fiction.

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

Carbajal v. State, No. 08-20-00069-CR (Tex. App.—El Paso, Aug. 5, 2022)

Issue & Answer. If the State alleges two counts of sexual assault, committed in the same statutory manner, committed on the same on-or-about date, without distinguishing either count, does it violate double jeopardy for the State to convict on both counts? Yes.

Facts. The State prosecuted the defendant under a 13-count indictment. The jury convicted on all 13 counts. There appeared to be 4 offenses underlying the various counts: (1) continuous sexual abuse of a child under 14, (2) sexual assault of a child, (3) indecency with a child by sexual contact, and (4) sexual assault. As it related to two of these offenses, the State alleged the exact same offense on the exact same on-or-about date. Prior to trial the defendant filed a motion to quash the multi-count indictment and insisted the State be compelled to elect the which of the seemingly overlapping offenses it intended to rely upon for conviction. The trial court denied the defendant’s motion.

Analysis. All but two of the State’s 13 counts can be logically separated based on the age of the victim or the on-or-about date. However, the State alleged the same on-or-about date for two counts that allege the same offense. Because the State did nothing to distinguish these two offenses, both convictions cannot stand under double jeopardy.

9th District Beaumont

Rafiq v. State, No. 09-20-00094-CR (Tex. App.—Beaumont, Aug 31, 2022)

Issue & Answer. When officers seize a phone without a warrant and hold it pending acquisition of a search warrant, is the seizure analyzed as one requiring probable cause and exigent circumstances or as reasonable suspicion? In the Ninth Court of Appeals, reasonable suspicion.

Facts. A jury convicted the defendant of murder. Before trial the defendant filed a motion to suppress the seizure of his cell phone. Officers suspected the defendant and set up a missing person interview with him. During the interview the defendant gave a detective consent to look through his phone, requested it back, then gave it to the detective again at which point the detective declared he was seizing the phone. The detective testified he was not prepared to arrest the defendant during the interview and was concerned [based on the context of the interview] the defendant would erase the contents of the phone. After seizing the phone, the detective obtained a search warrant to search the phone.

Analysis. The parties argued exigent circumstances at trial, but the seizure is not properly analyzed under the exigent circumstances exception. This was a brief seizure lasting only long enough to obtain a search warrant. The United States Supreme Court has “frequently approved warrantless seizures of property . . . for the time necessary to secure a warrant, where a warrantless search was either held to be likely or likely would have been held impermissible.” The detective only needed reasonable suspicion to seize the phone. Here they had an accusation against the defendant, the defendant confirmed some details of the accusation, the defendant nervously scrolled his phone when asked about his phone, and the defendant admitted he used his phone to communicate with a person the police believed to be a co-conspirator at or around the time of the offense.

Comment. The court acknowledges that not all courts of appeal follow this rationale. I don’t think if the court analyzed the issue of exigent circumstances the seizure would stand. Police can’t create their own exigency. Police had a witness who had accused the defendant of killing the victim. They ultimately found that witness credible and they corroborated details of that witness’s accusation. They had probable cause to arrest the defendant at the same time they seized the phone. Also, by virtue of the State’s exigent circumstances argument, the police had to have probable cause—probable cause is a necessary element of the exigent circumstances exception. The police created their own exigency by alerting the defendant they believed he was a suspect and then by not arresting him at the end of the interview.

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

State v. Garcia, No. 14-20-00801-CR (Tex. App.—Houston [14 the Dist], Aug. 23, 2022)

Issue & Answer. Does a court of appeals have jurisdiction over a State appeal raising erroneous award of jail-time credit? No.

Facts. The defendant punched the head coach of the Houston Rockets [I think they mean New Orleans Pelicans] in the face during a game. The defendant entered a guilty plea and received a 365-day sentence with jail time credit for 365 days. According to the State, the State did not indicate in the plea paperwork that the defendant had 365 days credit, nobody represented to the trial court that the defendant had 365 days credit, and the defendant did not in fact have 365 days credit. The State filed a motion for judgment nun pro tunc but the trial court declined to rule. This appeal followed.

Analysis. Appellate court jurisdiction in State appeals is defined by statute. The State can appeal an illegal sentence, but this is not an illegal sentence. “A sentence is that part of the judgment, or order revoking a suspension of the imposition of a sentence, that orders that the punishment be carried into execution in the manner prescribed by law.” This includes the facts of the punishment itself, the commencement date, the duration, the concurrent or consecutive nature, and the fine if any. If the State is correct, what the trial court did was unlawful. But here the appellate court has no jurisdiction. Credit for time served is a factor that affects the sentence, not the sentence itself.

Concurrence (Spain, J.) The State should have the ability to review a judgment and object.

Comment. Houdini!

September 2022 SDR – Voice for the Defense Vol. 51, No. 7

Voice for the Defense Volume 51, No. 7 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

“We aren’t going to reverse this case, but we do want to send a message to the State . . . don’t do this anymore.” If you read enough cases, you’ll see dicta to this effect. I can guarantee the relevant prosecutor’s office is not holding a meeting to discuss how to avoid strong admonishments in future successful appeals. We have a justice system predicated on an assumption that changed behavior can’t be achieved without the infliction of consequences, yet too often we hope to change the State’s behavior without any.

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 significant or published opinions since the last Significant Decisions Report. See my comment above.

Fifth Circuit

United States. v. Valas, 40 F.4th 253 (5th Cir. 2022)

Issue & Answer. The government failed to produce an FBI report generated after an interview of the Government’s key witness (“302” report). When the 302 report revealed details of the sexual encounter with the defendant (the basis of the prosecution) which varied from the testimony, was the 302 report sufficiently material to warrant habeas relief under Brady? No.

Facts. The Government accused the defendant of engaging in a commercial sex act with a minor. During its investigation of the offense, an FBI agent conducted an interview with the fifteen-year-old runaway turned prostitute. As agents do in most cases, this agent prepared an FD-302 (“302”) memorializing his conversation with the interviewee. The defendant, in a post-conviction habeas claim, was able to correctly hypothesize that this report existed and that the Government did not turn it over. The Government confirmed the defendant’s hypothesis and claimed that it inadvertently failed to produce the document before the defendant’s trial.

Analysis. “To prove a claim under Brady, a petitioner must show: (1) the evidence at issue was favorable to the accused, either because it was exculpatory or impeaching; (2) the evidence was suppressed by the prosecution; and (3) the evidence was material.” Evidence is material when there exists a reasonable probability that the outcome would have been different had the evidence been disclosed. The 302 provided details of the sexual encounter that were different than the testimony at trial “but the differences are in magnitude of detail rather than substance.” The variances between the report and the testimony were hardly “gotchas.”

Comment. The court notes that the Government’s claim of inadvertence is “troubling.” “It is difficult to grasp how a document as routine as a 302 would be overlooked, particularly in this instance.” I’ve seen State prosecutor offices with problematic entitled-to-win cultures. I can only imagine how a federal system of justice calibrated to produce a 99% conviction rate exacerbates this. The court ends with the following: “We note that, unfortunately, this is not the first time something like this has happened, e.g., United States v. Perea, 625 F. Supp. 2d 327 (W.D. Tex. 2009). We admonish the Government to endeavor to make it the last.” I guess we’ll see if this tongue-lashing works. I won’t hold my breath.

United States v. Alvarez, 40 F.4th 339 (5th Cir. 2022).

Issue & Answer. “Hispanic male who had run from officers on a bicycle with large handlebars in the area of Leopard and Up River at some unspecified time in the past.” Are these descriptors sufficient to detain any Hispanic man riding a bicycle with large handlebars in the relevant area? No.

Facts. The officers were conducting a warrant roundup. They had no other physical description of the bicycle or the suspect. Apparently, the guy they were looking for was Jose Morales—very much not the same person as Andres Alvarez.

Analysis. “Reasonable suspicion to stop someone suspected of criminal activity is a low threshold, but not this low.” A report made in close proximity to police detention can bolster otherwise generalized descriptions, but here there is no indication of when the report was made. Here the description consisted of “a Hispanic male who had once ridden a bicycle with large handlebars in a general area at some unknown time in the past.”

Dissenting (Jones, J.). The dissent gives insufficient weight to the fact that the officers were in the correct location, that the defendant was evasive when officers attempted contact, and that this was a gang warrant round-up which makes the Fourth Amendment analysis more pro-Government.

Comment. I really do hate being a killjoy, but there is a case that says that a court can ignore the unlawful detention if the officer gets lucky and discovers a warrant he did not know existed before conducting the stop. See Utah v. Strieff, 579 U.S. 232 (2016). Why do prosecutors never cite this case? Maybe because they aren’t Sig Heads (t-shirts coming).

Texas Court of Criminal Appeals

Parker v. State, No. PD-0388-21 (Tex. Crim. App. 2022)

Issue & Answer. An anticipatory search warrant is a warrant based on an affidavit showing probable cause that at some future time (but not presently) certain evidence of a crime will be located at a specified place. Are anticipatory search warrants for fruits, instrumentalities, or contraband prohibited under Article 18 of the Code of Criminal Procedure? No.

Facts. The UPS store in Oregon intercepted a package with psilocybin (mushrooms). They alerted Oregon law enforcement. Oregon law enforcement corresponded with Texas law enforcement to have the package shipped to the recipient. Texas law enforcement prepared a search warrant affidavit stating that evidence of a crime would be discovered at the shipping destination on a future date—the expected delivery date. A magistrate issued a warrant for that future delivery date. Texas officers discovered incriminating evidence as a result of the anticipatory search warrant. The defendant filed a motion to suppress, the trial court denied the defendant’s motion, and the court of appeals affirmed.

Analysis. The defendant concedes that anticipatory search warrants are valid under the Fourth Amendment but contends that Article 18 of the Code of Criminal Procedure requires that evidence sought be present at the designated location at the time the search warrant is issued. Specifically, Article 18.01(b) provides that a magistrate must confirm before issuing a warrant that “probable cause does in fact exist for its issuance.” The defendant incorrectly interprets this to mean that the probable cause must exist at the designated place to be searched at the time the warrant is issued. Probable cause deals with probabilities. The standard requires a probability that evidence will be present at a particular location. All search warrants are technically anticipatory—they anticipate that the evidence will not be removed from the identified location in the time it takes to seize it. Article 18.01(b) does not have any “present possession” requirement (a requirement that the evidence is presently at the identified location). An Article 18.01(c)(3) warrant does (a warrant for “mere evidence” as opposed to fruits, instrumentalities, or contraband). Article 18.01(c)(3) imposes the requirement that “property or items constituting evidence to be searched or seized are located at or on the particular person, place, or thing to be searched.” This case does not involve an Article 18.01(c)(3) warrant. The warrant was specifically issued for the seizure of narcotics. It thereby invoked Article 18.02(a)(7) (not mere evidence).

Concurring (Yeary, J.). The court’s analysis of mere evidence search warrants is questionable and unnecessary.

Comment. The year is 2054. The government plans to implement a prototype “Precrime” program consisting of three clairvoyant humans known as precogs who visualize impending crime permitting officers to arrest offenders before the commission of their heinous offenses.

Jefferson v. State, No. PD-0677-21 (Tex. Crim. App. 2022)

Issue & Answer. When the State amends an indictment to add new counts, is the grand jury procedure triggered because the State has added new criminal offenses to the indictment (thus rendering counsel ineffective for failing to object)? Yes.

Facts. The State originally charged the defendant in a two-count indictment. The State amended the indictment and added two more counts. The State obtained four convictions at trial. At a hearing on the defendant’s motion for new trial, trial counsel testified that he objected to the State’s addition of new counts to the indictment. The reporter’s record did not reflect any such objection.

Analysis. Adding new counts to an indictment constitutes the addition of new crimes to the indictment. A felony criminal offense must be charged by a grand jury indictment. However, the grand jury process may be waived by inaction (failure to object). Here counsel failed to object and thus waived the grand jury process as it relates to the two new counts (new crimes). The court of appeals incorrectly assumes the possibility trial counsel waived the defendant’s objection strategically. Trial counsel testified that he did object, despite the record’s failure to reflect it. A non-objection trial strategy could not have existed here where counsel took the position that he believed he did object. If counsel did object, he failed to memorialize his objection. The failure to memorialize an objection is not a sound trial strategy.

Concurring (Yeary, J.). It is unfortunate that the defendant did not raise his void indictment/void conviction argument before this Court. It would have been a better way to dispose of this case, potentially.

Comment. There was an unpublished opinion in another jurisdiction holding that the State can add counts to the indictment without a grand jury sanctioning it. The Court of Criminal Appeals explained that it is ineffective for an attorney to rely on an unpublished opinion where the law is otherwise settled. I don’t love this because many of our courts of appeal give us nothing but unpublished opinions in criminal cases. Judges and practitioners routinely rely on unpublished opinions in such jurisdictions because they are indicative of what their relevant court of appeals will do. “A lawyer ought to be able to tell a court what it has done.” Tony Mauru, Judicial Conference Supports Citing Unpublished Opinions (Legal Times Sep. 21, 2005).

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

Blankenship v. State, No. 02-20-00157-CR (Tex. App.—Ft. Worth, Jul. 14, 2022)

Issue & Answer. You get in zero trouble for burning plain wood. You get in a little trouble if you burn treated lumber, and you get in a lot of trouble if you burn chemical waste. Plywood has glue. Does this make it both treated lumber and chemical waste? No, just treated lumber.

Facts. The defendant burned plywood. Officers arrested him for illegal burning. The State enhanced the offense to a Class A misdemeanor due to their belief the plywood constituted “chemical waste.” As they understood the concept, chemical waste was “anything not natural to the earth.” Prosecutors advanced the argument that the glue binding to the plywood together constituted a chemical waste and that if the plywood were “treated” it would necessarily contain even more substances constituting chemical waste. Notwithstanding their arguments, the State did not offer any evidence that the plywood had been treated.

Analysis. It would be hard to summarize the “not-straightforward” statutes regulating burning better than the Second Court:

The legislature grouped prohibited items into three punishment tiers: (1) “heavy oils, asphaltic materials, potentially explosive materials, [and] chemical wastes,” the burning of which is punished with the most severity; (2) “insulation on electrical wire or cable, treated lumber, plastics, non-wood construction [and] demolition materials, furniture, carpet, [and] items containing natural or synthetic rubber,” the burning of which is punished with moderate severity; and (3) all other items, the burning of which is punished with the lowest degree of severity. Unlawful burning is

(1) a Class C misdemeanor if the violation is a first violation and does not involve the burning of [high-severity items];

(2) a Class B misdemeanor if the violation is a second or subsequent violation and:

(A) the violation does not involve the burning of: (i) [high-severity items]; or (ii) [moderate-severity items]; or

(B) the violation involves the burning of [moderate severity items] and none of the prior violations involved the burning of [high-severity items] or [moderate-severity items]; or

(3) a Class A misdemeanor if the violation:

(A) involves the burning of [high-severity items]; or

(B) is a second or subsequent violation and involves the burning of [moderate-severity items] and one or more of the prior violations involved the burning of [high-severity items] or [moderate-severity items].

The basic dispute between the parties here is “whether the adhesives used to manufacture the plywood qualify as ‘treatments’ and whether such alleged ‘treatments convert the plywood into not only ‘treated lumber’ but also ‘chemical waste.” The plain meaning of “treated” is to enhance or improve the condition of [wood]. Thus, the glue binding the plywood together rendered it “treated.” However, the same quality that makes plywood “treated” cannot also render it a “chemical waste.” The legislature meant to distinguish between treated lumber and chemical waste. If the State were correct and the very treatment that rendered the wood “treated lumber” also rendered it a “chemical waste” then no distinction would exist. Defendant’s conviction must be reformed to a Class C violation reflecting that he only burned treated lumber and not chemical waste.

Concurring and Dissenting (Walker, J.). Treated lumber has a technical meaning, not a dictionary one. It does not mean all plywood because all plywood is glued.

Comment. I agree with the court’s legislature-made-a-distinction analysis. But I can’t say I agree with its plain meaning interpretation of “treated lumber.” I think the best way to determine the plain meaning of “treated plywood” is by walking into Lowes and asking where the “treated plywood” is. If the associate opens a dictionary, you’re in trouble.

McCreary v. State, No. 02-21-00114-CR (Tex. App.—Ft. Worth, Jul. 21, 2022)

Issue & Answer. An officer obtained statements from a complainant that he knew were plainly false. Before this interview the officer had reviewed a video and knew exactly what happened. In this scenario, are the false statements sufficiently “material” to an investigation to sustain a conviction for false report to an officer? Yes.

Facts. The defendant falsely accused her ex-husband of domestic violence. The defendant’s ex-husband recorded the events giving rise to the purported domestic violence on a GoPro. The complainant’s report and subsequent statements were contradicted by the video evidence.

Analysis. To convict a person for false report to an officer, the State must show the person’s statements were material to a criminal investigation. The defendant contends that her statements concocting a fake family violence offense were not “material” to an investigation because they did not result in a “reasonable probability that the outcome of the family-violence-assault investigation would have been different had the statements not been made.” This is the Brady standard for materiality. In assessing sufficiency of the evidence, the reviewing court does not apply technical or specialized definitions to words unless statutorily required. Instead, the court considers the plain meaning. The plain meaning of “material” is “important” or “of consequence.” In some contexts, it also means “relevant.” Though the defendant’s statements did not affect the ultimate outcome of the investigation, they were an essential component of the investigation and the officers’ pursuit of obtaining the “full story of what happened.”

3rd District Austin

Ex parte Reyes-Martinez, No. 03-21-00268-CR (Tex. App.—Austin, Jul. 15, 2022)

Issue & Answer 1. A couple guys selling drugs were shot when they tried to rob or assault their buyer. The buyer shot and wounded the defendant and shot and killed the defendant’s partner. In this scenario is it excessive to set the wounded drug dealer’s bond at $300,000? No.

Issue & Answer 2. Is the felony murder statute unconstitutional because it can be applied to punish a person without a culpable mental state and for acts committed by a third person who is not a co-conspirator? No.  

Facts. Defendant and his partner were selling drugs from the defendant’s vehicle. A potential buyer got into the back seat of the vehicle to conduct a transaction, and something went awry. A fight ensued. The defendant and his partner pistol whipped the buyer. The buyer shot at defendant and his partner as they drove away. The buyer wounded the defendant and killed his partner. The State charged the defendant with aggravated assault with deadly weapon and felony murder. The court set his bonds at $30,000 and $300,000 respectively. The defendant filed the instant pretrial writ of habeas corpus challenging the constitutionality of the felony murder statute and seeking a reduced bond amount.

Analysis 1. The most significant factors in determining bond are the severity of the offense and the potential punishment. The defendant is charged with serious offenses. Although he maintains that he is a victim, the evidence in favor of the trial court’s ruling shows he is a pistol-whipping drug dealer. The ability to make bail is less important and it is a consideration which requires a fully developed record of a defendant’s financial resources. The record was not sufficiently developed in this regard.

Analysis 2. Pretrial habeas is generally unavailable for an as-applied constitutional challenge. The novel arguments the defendant raises here are not persuasive, nor can an intermediate court of appeals take an approach inconsistent with precedent from the Court of Criminal Appeals. In defendant’s facial challenge to the validity of the felony murder statute he claims the statute’s strict liability scheme violates due process. The defendant is correct to note that strict liability offenses are generally disfavored. However, the United States Supreme Court has never held that a legislature cannot impose strict liability in crafting a criminal offense. Courts may uphold a strict liability statute if it is the clear intent of the legislature to impose strict liability. Here, strict liability was the clear intent of the legislature when it crafted the felony murder statute. Instead of requiring proof that the defendant intended the death, the legislature sought to punish the result of a death occurring in the course of a person’s other voluntary criminal acts.

Comment. Can’t blame him for trying. It does seem kind of disproportionate to prosecute the defendant for the felony murder of a person he was selling drugs with who was shot by a third party because that drug deal went awry.

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

Taherzadeh v. State, No. 05-20-00587 (Tex. App.—Dallas, Jul. 18, 2022)

Issue & Answer. A recused judge signed an order of deferred adjudication she probably shouldn’t have. The order reflected the oral pronouncement of an assigned judge who granted deferred adjudication. The assigned judge later signed and adopted a substantially similar deferred adjudication order. Can the assigned judge fix the potential signature error in this manner—by replacing the potentially defective orders with new orders but without conducting a new hearing? Yes.

Facts. The defendant stalked a criminal district judge in Dallas. After the defendant pled guilty, the assigned judge ordered the defendant placed on deferred adjudication probation. The assigned judge issued probation orders and made a docket entry reflecting the same. Shortly afterward, the regular presiding judge signed a written order of deferred adjudication. Months later, the assigned judge returned to fix the order erroneously signed by the regular presiding judge. The assigned judge signed a second order of deferred adjudication with the same conditions plus an additional requirement that the defendant participate in a psychological/psychiatric evaluation.

Analysis. The defendant’s basic contention is that, until the court held a new sentencing hearing, he was never sentenced. However, numerous documents reflect that the assigned judge placed the defendant on deferred adjudication probation. The defendant mistakenly treats deferred adjudication as a sentence. Deferred adjudication is neither a judgment of guilt nor a sentence. The judge “pauses the proceedings and takes the case under a sort of advisement, with the defendant having the opportunity to complete a probationary period and have the case dismissed.” There was nothing defective for the assigned judge to cure, but if there were, there was nothing defective about the way he attempted to cure it.

6th District Texarkana

Auld v. State, No. 06-21-00079-CR (Tex. App.—Texarkana, Jul. 21, 2022)

Issue & Answer. The State charged the defendant with eight instances of sexual assault occurring on specific dates, but the victim could not identify instances of sexual abuse occurring on specific dates. She couldn’t even identify a specific number of instances. Can a verdict on multiple counts of sexual assault rest upon the question-and-answer phrasing as “times” (plural—at least two) it occurred and multiplied by a sufficient number of distinctly identified periods of time? Yes.

Facts. The state accused the defendant of sexually assaulting a child on eight occasions. Save for one incident, the child testified that the instances of abuse occurred when the defendant drove her home from where he lived to the home where she lived, when it was dark, and when they were alone in the car. Though the victim could not identify how many times he drove her home she was able to testify that the defendant abused her on about half of the occasions he drove her home.

Analysis. The State alleged eight instances of sexual abuse occurring on specific dates. Because the State is not bound by the dates alleged in the indictment, for purposes of reviewing sufficiency of the evidence, the court simply looks to whether the State established at least eight instances of sexual abuse (here: six instances where the defendant touched the victim and two instances where the defendant caused the victim to touch him). “One difficulty the State has on this record is that, though it asked Kate frequently how many times Auld drove her home in the dark, alone with her, Kate invariably answered that she did not remember.” The State asked the victim about instances of sexual abuse and framed the question as “times” it occurred while the defendant “lived at” specific locations. The victim confirmed that there were “times” (plural) the defendant touched her and “times” (plural) the defendant caused her to touch him during each period he lived at each of three different locations. This evidence supports at least 6 instances of the defendant touching the victim and at least 2 instances of the defendant causing the victim to touch him. The victim also confirmed instances of the defendant touching her “at times” (plural) when he babysat her.

Comment. In a footnote the court references a previous reversal by the Court of Criminal Appeals in the Witcher 5-4 opinion. In that case, the Court of Criminal Appeals found imprecise language such as “give or take” and “around that time” as legally sufficient to establish two or more acts of sexual abuse occurring over a period of 30 days or more.

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. Villaloboz, No. 08-21-00037-CR (Tex. App.—El Paso, Jul. 22, 2022)

Issue & Answer. Article 32.01 of the Code of Criminal Procedure requires the State to formally file a criminal charge within a specified time period or face the penalty of a dismissal without prejudice. Can the State file a criminal information as a placeholder in a felony case to avoid this penalty? No.

Facts. After 17 months without indictment, the defendant filed a motion to dismiss invoking his speedy indictment right under Texas Code of Criminal Procedure Article 32.01. At the beginning of this period the state filed an information charging the defendant with felony offenses. In response to the defendant’s arguments, the State cited the ongoing pandemic as justification for not returning an indictment. The trial court dismissed without prejudice. The timeline is set out below.

    • August 8, 2019: the State charged the defendant by information with felony criminal mischief and felony repeated violations of protective order. The defendant secured release on bond initially.
    • December 10, 2019: the trial court revoked the defendant’s bond after he failed to submit to court-ordered competency evaluations. Counsel for the defendant requested a competency trial.
    • January 11, 2021: the trial court scheduled the defendant’s competency trial to begin after numerous resets.
    • January 21, 2021: the defendant filed a motion to dismiss for denial of speedy indictment.
    • February 2, 2021: the trial court held a hearing on the defendant’s motion to dismiss for denial of speedy indictment.

Analysis. Article 32.01 of the Code of Criminal Procedure “prevents citizens from being left in jail or on bail for periods of time without being indicted.” It provides that, absent good cause, the case shall be dismissed if indictment or information is not presented on or before the last day of the next term of the court held after the defendant’s commitment or admission to bail or the 180th day, whichever is later. The Texas Constitution requires the State to charge a felony by grand jury indictment unless waived by the defendant. The waiver procedure is specific—it requires a written and filed waiver, or an explicit statement in open court. Without a waiver, a district court cannot obtain jurisdiction by the filing of an information. The waiver-less information is void. Whether the State showed sufficient “good cause” to avoid dismissal is an issue analyzed under the Barker v. Wingo factors. The length of delay was substantial and the State’s articulated reason—that the pandemic complicated the grand jury process—was not supported by evidence. The grand jury met at least eight times during this period and the State did not articulate why this was an insufficient number of meetings to indict the defendant. Finally, the defendant’s detention during this period established prima facie showing of harm unrebutted by the State. It was appropriate for the trial court to dismiss the indictment.

Comment. According to the briefing in the case, the offense date was June 24, 2019. The statute of limitations during which the State was required to bring an indictment expired on June 23, 2022. The case was dismissed without prejudice. Rather than simply filing the darn thing with a grand jury indictment, the State appears to have blown its limitations period just to argue about why the trial court was wrong.

Hernandez v. State, No. 08-19-00152-CR (Tex. App.—El Paso, May 31, 2022)(not designated for publication)

Issue & Answer. Can the State impeach an expert witness about a judicial finding in a previous case in which a court found the expert witness committed perjury if the State’s purpose for the impeachment is only to show that the witness is a liar? No.

Facts. A man was shot and killed in his apartment. The defendant and his girlfriend were the only other people in the home. The girlfriend implicated the defendant. The defendant contested her allegation and presented substantial physical evidence showing it was impossible for him to have fired the gun. Defendant presented a blood spatter expert to match spattering of blood in the apartment to the blood on the defendant’s pants. The blood patterns proved that the defendant was standing behind the victim when the victim was shot in the front of his head. Substantial evidence also showed the defendant’s girlfriend making odd statements and having conversations with other people that showed a potentially guilty conscience. The State impeached the defendant’s expert using a judicial opinion from Mississippi containing a finding that the defendant’s expert committed perjury. The defendant objected to the State’s use of a specific instance of conduct to impeach the expert.

Analysis. Under Rule 608 a witness’s credibility can be challenged through testimony about the witness’s reputation for truthfulness or truthfulness. However, Rule 609 prohibits the use of extrinsic non-criminal-conviction evidence to attack or support truthfulness. In simple terms, “the Rule rejects the notion that ‘once a liar, always a liar.” The trial court analogizing this impeachment to impeachment by prior conviction is unpersuasive. The rule permitting such impeachment assumes the witness had their day in court and was adjudicated using criminal standards and burdens. This is not the case in a judicial finding that a witness perjured himself. Equally unpersuasive is the State’s theory that the Missouri court opinion was admissible to show bias. The purpose of the State’s questioning was to show that the expert was a liar. Given how close the evidence was in this case, the trial court’s error in admitting evidence of the Missouri court opinion was harmful.

Comment. Excellent lawyering by a good buddy! It’s an unpublished case, but I get to decide what goes into the S.D.R. Atta boy, Jeep!

9th District Beaumont

Ex parte Lott, No. 09-21-00256-CR (Tex. App.—Beaumont, Jul. 13, 2022)

Issue & Answer. Article 17.151 of the Code of Criminal Procedure requires a trial court to release an arrested person on personal bond or a reduced bond that person can afford when the State is not ready for trial and a statutorily specified number of days have expired (90 in a felony). Should the clock begin running only after the arrestee files a motion (or writ) invoking the arrestee’s Article 17.151 rights? No. The clock begins running from the moment of arrest.

Facts. The State arrested the defendant for murder. After 100 days of incarceration the State was not ready for trial. The defendant demanded release pursuant to Article 17.151 and the trial court denied her request on the State’s contention that the 90-day period did not begin to run until after the defendant invoked her Article 17.151 rights.

Analysis. The Statute simply does not comport with the “State’s unique interpretation of the language the Legislature used in Article 17.151.” “While the State lobbies the Court for an uncodified exception to article 17.151, we decline its invitation . . .”

Comment. The Ninth Court portrays the State’s argument as so frivolous that it made me read their briefing. Having now done so, I think the Court misinterpreted the State’s argument. The defendant did not file her Article 17.151 writ until after the State filed an indictment and announced ready. The State did not argue as the court suggested. The State argued that the State may announce ready and prevent automatic release under 17.151 until the later of: (1) 90 days, or (2) the defendant demanding release. This is an interesting issue not addressed by the court. The language of Article 17.151 does appear to impose an obligation on the trial court to release at the 90-day mark, regardless of whether the defendant makes a request. Admittedly, I’ve always understood the statute to operate the way the State suggests in its briefing.

Latimer v. State, No. 09-21-00275-CR (Tex. App.—Beaumont, Jul. 13, 2022)

Issue & Answer. Texas statute prohibits possession or use of substances or devices that are designed to falsify a drug test while simultaneously intending to use such the substance or device for falsification. Is the statute unconstitutional because it criminalizes thoughts and thus unduly burdens free speech? No. Is the statute unconstitutionally overbroad or vague? No.

Facts. The defendant was on probation. The State filed a motion to revoke that probation raising 17 allegations. One of them was that he possessed or used a substance to falsify a drug test. Defendant pled true to 16 of the State’s allegations and contested the State’s drug-test-falsification allegation.

Analysis. Certain types of conduct can implicate free speech when the conduct is sufficiently expressive in nature. “Appellant’s attempt to categorize the statute as a content-based regulation by characterizing it as ‘thought-policing’ and characterizing his conduct as ‘speech’ is unpersuasive. The statute focuses on conduct that is not inherently expressive or designed to convey a particular message. The defendant’s vagueness and overbreadth arguments are similarly unpersuasive. The defendant contends that nearly any possession of urine could be criminalized by this statute and that the prohibition is not limited to probation-based drug tests. Rather the statute targets all drug tests conducted for any reason. Contrary to the defendant’s argument, the possession of the prohibited device or substance must coincide with intent—specifically an intent to falsify. Moreover, the relevant type of drug test which the defendant must intend to circumvent are “lawfully administered test[s] designed to detect the presence of a controlled substance or marijuana.” Thus, the statute is not as open-ended as the defendant suggests and his hypotheticals do not present a realistic danger of unconstitutional application.

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

Alaniz v. State, No. 11-19-00399-CR (Tex. App.—Eastland, Jul. 14, 2022)

Issue & Answer. Article 37.07 of the Code of Criminal Procedure provides the mandatory language regarding parole and good time credits. Applicable to a first-degree murder offense, the legislature has repealed the language permitting the trial court to instruct the jury regarding eligibility for good time credit. When the trial court nonetheless informs the jury that a person convicted of first-degree murder is eligible for good time credit, has the trial court committed an error rising to the level of egregious harm (standard for unobjected-to jury charge error)? No.

Facts. The defendant killed her mother who had Alzheimer’s disease. She suffocated her with a pillow after inflicting several bruises and lacerations. The defendant was supposed to be her mother’s caretaker but instead she used her for social security benefits. When family members suggested an assisted care facility, the defendant resisted and isolated her mother from family members. The trial court instructed the jury that the defendant “may earn time off the period of incarceration imposed through the award of good conduct time” but also instructed the jury that it may not take into account the potential award of good conduct time.

Analysis. It is an error to include instructions on the operation of good-time credit if not specifically provided for under Article 37.07. Here, the applicable provision of Article 37.07 (pertaining to first degree murder) does not permit the trial court to instruct the jury on good-time credit. Because the defendant did not object to the erroneous charge, a reviewing court can only reverse when the record reveals egregious harm. Egregious harm was not established because the charge, as a whole, instructed the jury not to consider good-time credit in determining its sentence and the parties did not focus on the erroneous instruction in argument. Moreover, the facts of the case were sufficiently egregious to have justified the punishment notwithstanding the erroneous instruction.

Comment. Why do we tell juries anything about parole?

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

Dewitt v. State, No. 14-21-00440-CR (Tex. App.—Houston [14th Dist.] Jul. 21, 2022)

Issue & Answer. When a trial attorney attempts to exclude evidence by hearsay objection but fails to raise a potentially meritorious confrontation objection, has he performed deficiently under the two-prong Strickland test for ineffective assistance of counsel (deficient performance + harm)? No, not here.

Issue & Answer 2. When a trial attorney says, “objection relevance” and “objection improper predicate,” has he sufficiently preserved a trial court’s erroneous rulings on relevance and predicate? No, not here.

Facts. The State charged the defendant with aggravated robbery by threat with a deadly weapon. The indictment contained one punishment-enhancement allegation. After the jury found the defendant guilty of robbing a person at gunpoint, the trial court conducted a punishment hearing. The trial court admitted the defendant’s jail disciplinary records and the defendant’s parole records. In articulating reasons for the court to deliver a harsh punishment the State referenced the defendant’s jail disciplinary records and parole records. The State specifically argued that these records showed that the defendant had no interest in taking advantage of yet another chance at leniency: he violated the law on bail, he violated the law on parole, and he misbehaved while in custody. Defendant’s attorney objected to the admission of jail disciplinary records based on relevance and improper predicate. The defendant’s attorney raised the same objections to the defendant’s parole records but added a hearsay objection, as well. The trial court overruled the defendant’s objections and admitted the State’s exhibits. The defendant’s attorney did not explain his objections, nor did he raise the defendant’s confrontation rights under the Sixth Amendment.

Analysis 1. Ineffective assistance of counsel is established by a two-prong showing: (1) deficient performance—performance falling below the standard of prevailing professional norms, and (2) harm—a reasonable probability that, but for counsel’s deficiency, the result would have been different. The analysis begins with a “strong presumption” that counsel’s conduct was reasonably professional and pursuant to sound strategy. Ordinarily, ineffective claims should not be raised on direct appeal because counsel should be afforded an opportunity to give explanations for his or her decisions. Absent such an explanation, the record must reveal that no reasonable strategy could justify counsel’s conduct. As it pertains the defendant’s complaints about counsel’s failure to raise a confrontation objection, ample case law supports the proposition that jail disciplinary records may have mixed confrontation evidence (testimonial in nature) and non-confrontation evidence (non-testimonial in nature). Counsel may have been satisfied that all of the evidence in the disciplinary records was non-testimonial, therefore rendering any confrontation objection under the Sixth Amendment meritless.

Analysis 2. Trial counsel said “objection . . . improper lack of predicate, to hearsay, and to relevance.” But he didn’t say what he meant by that. “A general or imprecise objection will not preserve error for appeal unless it is clear from the record that the legal basis for the objection was obvious to the trial court and opposing counsel.”

Comment. I’m sorry, counsel made a relevance objection to punishment evidence showing his client misbehaved during the pendency of his case. I don’t think potential frivolity was a guiding post in raising or not raising trial objections. Whether the disciplinary records were or were not testimonial in nature could be resolved in this appeal (after all, they are exhibits and there is law on the issue). Before the court brushes this appeal aside by relying on what trial counsel maybe thought about the Confrontation Clause, they should tell us what they think about the Confrontation Clause as arbiters of the law. If it is clear that a Confrontation Clause objection was needed, then speculation about what counsel might have thought about the Confrontation Clause is irrelevant. I know I’m droning on, but I’m also not a big fan of “you got to say more than objection-plus-the-grounds” to preserve error. I mean hell, if the trial judge doesn’t understand an  objection, why is it incumbent on counsel to explain it without at least some indication from the trial judge that he or she didn’t understand it. When a witness says “I heard him say . . .” and I shout “objection hearsay” do I really have to say “and your honor, of course, you know hearsay is an out-of-court statement offered to prove the truth of the matter asserted, and I believe what the witness is about to utter is that of an out-of-court-statement and the State intends to use it to prove the truth of what the declarant said. That is what I meant by “objection hearsay.”

July/August 2022 SDR – Voice for the Defense Vol. 51, No. 6

Voice for the Defense Volume 51, No. 6 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

I have political opinions. You know this well if you know me. And if you ever want to know them you can call me—I share them freely. TCDLA announced after the Dobbs opinion that it takes no position on abortion, and this makes sense. I say “samesies” in the SDR. We are an organization of conservative, liberal, and in‑between criminal lawyers. Whatever position an organization like ours could take would leave many asking, “what does the Dobbs opinion have to do with criminal defense?” But this begs a less rhetorical form of the same question “does it have anything to do with criminal defense?” If you haven’t read all 213 pages of the Court’s historic opinion, you should, and consider it in the context of its implications for criminal law.

Now, granted, Justice Alito proclaims throughout his opinion that the Court’s rationale doesn’t apply to anything other than abortion. But it doesn’t until it does. And other Justices on the Court are eager to say that it does. So, I say, back to the original question: “what does the Dobbs case have to do with criminal defense?” Well, the answer may be contingent on how many of our clients’ rights were “entirely unknown” “[u]ntil the latter part of the 20th century” and not “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty.”

I have a few concerns as a criminal defense lawyer right off the top of my head.

Is the judge‑made exclusionary rule that has long been regarded as “implicit in the concept of ordered liberty” safe? Some judges had already begun giving it the Voldemort treatment well before a shift in the Supreme Court’s makeup. They refuse to call it by its actual name, and instead coined the phrase “the so‑called exclusionary rule.” See e.g. United States v. Beaudion, 979 F.3d 1092, 1097 (5th Cir. 2020); United States v. Fiseku, 915 F.3d 863, 869 (2d Cir. 2018); Gutierrez-Berdin v. Holder, 618 F.3d 647, 652 (7th Cir. 2010). And I have the same question about the prophylactic rule created in Miranda v. Arizona. Does it stand on sufficiently firm footing for our new Court or is it merely a previous Court’s “own ardent views about the liberty that Americans should [but don’t necessarily] enjoy.”

Gideon v. Wainwright incorporated the Sixth Amendment right to counsel into the due process clause of the Fourteenth Amendment and made that right applicable to the States because it was implicit in the concept of ordered liberty. 372 U.S. 335, 342 (1963). Is Gideon safe? Is the right against self‑incrimination safe? Is double jeopardy? Is speedy and public trial, impartial jury, is confrontation? These were all incorporated as implicitly guaranteed to a citizen prosecuted by the State through the enactment of the Fourteenth Amendment. They were considered implicit in the concept of ordered liberty. But some of them were incorporated in opinions lacking the kind of historical reference the Court now demands.

I’m usually careful not to be an alarmist (sort of). But I am cautiously watching to see if Dobbs is more than just the end of a constitutional right and potentially the end of several. It is certainly a once‑in‑a‑generation case marking not only the end of the right to abortion, but also the beginning of an entirely new judicial attitude to‑ ward what courts have previously treated as settled and perhaps even sacrosanct.

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 significant or published opinions related to criminal law since the last Significant Decisions Report. See my comment above.

Fifth Circuit

Willson v. Stroman, 33 F. 4th 202 (5th Cir. 2022)

Issue & Answer. Are the officials involved in the false arrest of Twin Peak bikers absolved of civil liability because a grand jury ultimately indicted some of the Twin Peak bikers? No. Not necessarily. 

Facts. This is an appeal arising from the civil rights lawsuit filed by bikers arrested following the Twin Peaks shootout in Waco, Texas. The plaintiffs are some of the 177 bikers arrested using a fill-in-the-name form affidavit presented to a magistrate. Some of the plaintiffs are also among the many bikers who were subsequently indicted by a grand jury for engaging in organized criminal activity (EIOCA). This appeal is similar to the appeal in Terwilliger v. Reyna, 4 F.4th 270 (5th Cir. 2021) brought by bikers who were arrested but not subsequently indicted. The federal district court distinguished between the two groups of bikers. Those arrested but not indicted in Terwilliger survived summary judgment. Those arrested and subsequently indicted in the instant case did not. The district court found “pursuant to the independent intermediary doctrine, the grand jury’s indictment served to break the chain of causation for any false arrest claim pertaining to the form affidavit and the arrest warrant issued by the magistrate.” In the trial court and in the instant appeal the plaintiffs argue that the independent intermediary doctrine should not apply because the grand jury was misled in the very same way as the magistrate who issued the arrest warrants. With respect to the two groups of bikers—arrested and indicted—arrested and not indicted—the district court found the instant group of indicted defendants not capable of sustaining their claims.  

Analysis. In Malley v. Briggs, 475 U.S. 335 (1986) the Supreme Court held that an officer can be liable for false arrest despite the issuance of an arrest warrant by a magistrate, if the officer presented an affidavit “so lacking in indicia of probable cause as to render official belief in its existence unreasonable.” The “Malley wrong” is not false evidence, but the presentment of clearly insufficient evidence as probable cause. 

In Franks v. Delaware, 438 U.S. 154 (1978) the Supreme Court held that an officer can be liable for false arrest despite the presentment of a warrant affidavit facially establishing probable cause when the officer “deliberately or recklessly provides false, material information for use in an affidavit in support of [a warrant]” or “makes knowing and intentional omissions that result in a warrant being issued without probable cause.” 

The form affidavits in the instant case contain several key allegations: (1) members of the Bandidos or Cossacks instigated and were involved in the Twin Peaks shootout, (2) their conduct rose to the level of EIOCA, and (3) each individually named [filled into the blank] was a member or associate of the Bandidos or Cossacks involved in the shootout. In Terwilliger, the Fifth Circuit determined that the third allegation involved a deliberately reckless or intentional materially false statement and omission. Plaintiffs had denied affiliation with Bandidos or Cossacks, denied involvement with criminal street gangs, and denied wearing signs or symbols that would identify them as Bandido, Cossack, or any other criminal street gang. Plaintiffs alleged that law enforcement also withheld information about their actual affiliation in different motorcycle clubs as well as other video evidence and interviews that would have weighed against a probable cause determination. The Terwilliger court found that the plaintiffs had adequately presented a Franks (false/misleading information) false arrest claim. 

For a third-party intermediary [a magistrate] to act as a break the chain of causation in a false arrest, the third-party intermediary must be truly independent. He or she cannot be tainted by the actions of the defendant in his or her finding of probable cause. Both Franks and Malley are exceptions to the application of the third-party intermediary rule. When a second intermediary is involved—in this case, a grand jury— “a plaintiff need only show that the deliberations of the intermediary were tainted such that the second intermediary, like the first, did not have all of the facts before it necessary to render an independent determination of probable cause.” To survive summary judgment the plaintiff must show that all defendants are liable for the false arrest, but they need not show that all defendants also tainted the secret grand jury deliberations. Nor must the plaintiff show that the taint was malicious. The mens rea requirement applicable to taint exception is “deliberate or reckless.” In essence, if a plaintiff has adequately pled a Malley or Franks claim, the plaintiff has sufficiently pled the taint exception to the third-party intermediary rule whether applicable to a magistrate or grand jury. 

Here, the facts necessary to establish wrongdoing in the grand jury room are shrouded in secrecy, by law. The facts alleged will necessarily be speculation supported by facts supporting an inference. To support an inference that the defendants lied in the grand jury room, the plaintiffs alleged facts showing that they lied in their testimony during examining trials. Ultimately, the resolution of whether Franks violations occurred will depend on whether what was said about each individual defendant was true—they are not all similarly situated in this regard. This is a task for the district court to perform. 

Comment. The named defendants are Brent Stroman (Chief of Waco PD, individually), Manuel Chavez (Waco PD Detective, individually), Abel Reyna (McClennan County DA, individually), City of Waco, Texas, McClennan County, Texas, Robert Lanning, Jeffrey Rogers, Sergeant Patrick Swanton, Christopher Frost. 

Wearry v. Foster, 33 F.4th 260 (5th Cir. 2022)

Issue & Answer. Is a prosecutor entitled to absolute immunity in a civil suit alleging he participated in coercing and threatening a witness to adopt false testimony? No. 

Facts. In 1998 a high school honor student was brutally murdered in Livingston Parish. National media criticized local law enforcement for its inability to solve the murder for several years. Investigators initially ruled Wearry out as a suspect based on his alibi. But they later charged and convicted him based on informant testimony and without any physical evidence linking him to the offense. The United States Supreme Court overturned Wearry’s Louisiana capital murder conviction 16 years later based on undisclosed Brady evidence undermining the State’s case “which resembled a house of cards.” Wearry brought this civil rights suit alleging that the sheriff’s detective and the prosecutor fabricated evidence and intimidated and coerced a juvenile to adopt a false narrative. Wearry asserted that the prosecutor and detective concocted a fake story and, over the course of six meetings where they pulled a child from his classes, intimidated and coerced the child to adopt their story implicating Wearry. At one meeting the prosecutor and detective falsified the results of a photo array in which the child denied recognizing Wearry. At another meeting the prosecutor and detective took the child to the victim’s bloodstained car. After each meeting, the prosecutor and detective would confer on their efforts to persuade the child to adopt their fake story. The fake story was that the child saw Wearry get into the victim’s car moments before the murder. In reality, the child was somewhere else entirely and witnessed nothing. After the Supreme Court reversed Wearry’s conviction, the same prosecutor and Sheriff’s Office attempted to re-prosecute Wearry. The prosecutor and investigators again pressured their witness adhere to the false story and to avoid talking to Wearry’s defense attorneys or investigators. Ultimately the witness testified that his story was made up by the prosecutor and detective and he adopted it because he feared that he or his family would be harmed. 

The prosecutor’s name is Scott Perrilloux and the detective’s name is Marlon Foster. They both moved to dismiss Wearry’s civil rights suit claiming prosecutorial immunity. The district judge denied their motions. 

Analysis. “When a prosecutor joins police in the initial gathering of evidence in the field, he acts outside his quasi-judicial role as an advocate; instead he acts only in an investigatory role for which absolute immunity is not warranted.” Nor is the detective immune. As it pertains to the detective, the Supreme Court has made clear a police officer is not entitled to the same immunity as a prosecutor. 

Absolute immunity is a common law doctrine grafted into 42 U.S.C. 1983 by interpreting legislative intent. Historically it protected the prosecutor’s charging decision, but not the prosecutor’s investigative activities. The Supreme Court extends prosecutorial immunity to all of a prosecutor’s advocatory functions. There is a further distinction within investigative functions. Some investigatory functions involve organizing, evaluating, and presenting evidence. Others involve pure acquisition of evidence. Acquisition is investigation whereas management of already-gathered evidence remains advocatory and within the legitimate scope of prosecutorial functions. “There is a difference between the advocate’s role in evaluating evidence and interviewing witnesses as he prepares for trial, on one hand, and the detective’s role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested, on the other hand.” Buckley v. Fitsimmons, 509 U.S. 259 (1993). Participating in the search for false evidence, altering evidence, and concealing evidence are all acts unprotected by absolute prosecutorial immunity. The facts alleged in the instant case are far worse than those in cases which lend the guiding principles in rejecting the prosecutor’s claim. As it pertains to the detective, “the common law has never granted police officers an absolute and unqualified immunity.” Pierson v. Ray, 386 U.S. 547, 555 (1967). 

Dissent (Ho, J.). Agrees with the result but the law does not permit the majority’s result. Unfortunately, the law protects a prosecutor seeking false testimony. A prosecutor is entitled absolute immunity in conduct of investigating a witness if he does so after indictment or he intends to present the testimony of that witness at trial. 

United States v. Hamann, 33 F.4th 759 (5th Cir. 2022)

Issue & Answer. Should a trial court exclude under the Confrontation Clause incriminating hearsay testimony offered to give context for a warrant execution, but which also helps establish a defendant’s guilt? Yes. 

Facts. A jury convicted the defendant of conspiracy to possess with intent to distribute methamphetamine. The jury heard from seven government witnesses, including four investigators. One of the investigators testified to the facts giving rise to the probable cause for a warrant execution. Among those facts were accusations of a confidential source that he had conducted a controlled purchase from the defendant. The investigator gave details of the controlled purchase as they were described to him by other officers over radio transmission. The same investigator also testified that he had received information from different confidential sources that an individual named “Cali” was “moving multiple ounces of meth.” This investigator explained to the jury that other members of law enforcement knew the defendant by the nickname “Cali.” In closing the prosecutor emphasized the existence of the confidential informant, the reliability of the confidential informant, and the importance of the confidential informant. 

Analysis. “Today’s decision marks no sea change in our Confrontation Clause jurisprudence. In the last fifteen years, we have vacated at least six convictions and affirmed at least two writs of habeas corpus for kindred reasons. The most recent of those cases was decided just a year before Hamann’s trial. There, we reaffirmed what we had said many times: If the government elects to introduce out-of-court statements to attempt to provide context for its investigation, its use must be ‘circumspect’ and ‘limited.’ Trial courts must be ‘vigilant in preventing . . . abuse’ to avoid ‘the backdoor introduction of highly inculpatory statements.’ We affirm those principles today.” 

The Confrontation Clause analysis involves three questions: (1) did evidence introduce a testimonial statement by a nontestifying witness? (2) was the statement offered to prove the truth of the matter asserted, (3) was the nontestifying witness available to testify, or was the defendant deprived of an opportunity to cross-examine him? If the answer is yes to all three, then the Confrontation Clause is violated. “A statement is testimonial if its primary purpose is to establish or prove past events potentially relevant to later criminal prosecution.” Here the detective’s testimony that “Cali was moving multiple ounces,” as well as his testimony about the circumstances of the controlled purchase, both violated the defendant’s right to confrontation. The government may offer hearsay evidence to provide context and a basis for the action of law enforcement but when that evidence links the defendant to the crime, “we have not been easily misguided” by the “government’s purported desire to give the jury context.” 

Comment. Confrontation objections are neglected by many trial attorneys. If you find yourself objecting to hearsay without objecting to confrontation, just know, hearsay is not getting reversed. Confrontation might.

Texas Supreme Court

Ex parte K.T., No. 20-0977 (Tex. 2022)

Issue & Answer. The Texas expunction statute prohibits the granting of an otherwise-eligible expunction if the offense for which the person was acquitted arose out of a criminal episode that are somehow connected or constitute the repeated commission of the same or similar offense. The Penal Code defines a criminal episode as the commission of two or more offenses. When a person is acquitted of an offense but has previously been convicted of the same or similar offense, can the State use the “same criminal episode” prohibition to prevent the granting of an expunction? No. 

Analysis. An acquittal cannot formulate the basis of a committed offense. “Absent clear language to the contrary, we cannot agree that the legislature would define “criminal episode” as the “commission” of multiple offenses if it wanted to include offenses where a jury has acquitted the defendant.” 

Comment. This was a dumb fight for the State to pick. As the Court described the State’s rationale: “[i]t would lead to results that would startle not just legislators but ordinary Texans.”

Texas Court of Criminal Appeals

Ex parte Edwards, No. PD-1092-20 (Tex. Crim. App. 2022)

Issue & Answer.  Is a statute-of-limitations challenge to a sexual assault indictment cognizable in a pretrial habeas writ? No.

Facts. In 2017 the State indicted the defendant for an aggravated sexual assault alleged to have been committed in 2003. The defendant filed an application for a pretrial writ of habeas corpus requesting dismissal of the case pursuant to a 10-year statute of limitations. The State argued that the 10-year limitations period was inapplicable because DNA evidence was collected, and it did not match the victim or any other person whose identity is readily ascertained. This meant it met an exception to the limitations period under Texas Code of Criminal Procedure Article 12.01(a)(C)(i)(b). The trial court denied habeas relief, but the court of appeals reversed citing the State’s failure to present evidence supporting the statute of limitation exception. 

Analysis. Pretrial habeas is unavailable when the resolution of a claim may be aided by the development of a record at trial. Pretrial habeas is generally not appropriate to challenge the sufficiency of the charging instrument. It is, however, available for claims involving a constitutional right to avoid trial. Pretrial habeas has also historically served as a mechanism to challenge an indictment that is shown barred by the statute of limitations, on its face. In 1985 the Texas Constitution was amended to define an indictment as “a written instrument presented to a court by a grand jury charging a person with the commission of an offense” which upon presentment to a court “invests the court with jurisdiction of the cause.” Tex. Const. art. V, § 12(b). The effect: an indictment is still an indictment even if it has a defect of substance (including an apparent limitation bar). After this amendment, the Court decided Proctor v. State, 967 S.W.2d 840 (Tex. Crim. App. 1998). Proctor eliminated the requirement that the State must always disprove a limitation bar to prosecution. Instead, according to Proctor, a defendant may raise a limitation claim by motion to dismiss under Texas Code of Criminal Procedure Article 27.08, he may raise it at trial as a defense, or he may waive it. There are certain statutes of limitation which require the development of a factual record, such as here where the general statute is inapplicable when DNA evidence is collected in a sexual assault and produces no readily identifiable suspect. “An indictment returned outside a general statute of limitation may be reparable by resort to an exception [by way of amending the indictment]. When this is the case, then the statute-of-limitation claim is not cognizable on pretrial habeas.” It must be raised by motion to quash or defense at trial.

Dissenting (Yeary, J.). The indictment, on its face, does not appear to meet the statute of limitations. It contains no tolling language. It makes sense to permit pretrial habeas challenges in this instance because the law prohibits prosecution if the limitations period has expired. “[I]t is completely irrational to force a criminal defendant to endure a full-blown trial before he may be afforded an opportunity to vindicate his lawful right to avoid having to endure a full-blown trial.” The State is at no more disadvantage to prove facts that establish a limitations exception in the context of a pretrial writ of habeas corpus than any other mechanism preferred by the majority opinion. 

Comment. So sometimes a pretrial writ can be filed? Only if there exists no factual-based exception to a statute of limitations. I agree with Judge Yeary on this. What’s messed up? Did you tell everyone what’s messed up? Did they know how to un-mess it up when they went to court? 

State v. Baldwin, No. PD-0027-21 (Tex. Crim. App. 2022)

Issue & Answer. “Is generic, boilerplate language about cell phone use among criminals sufficient to establish probable cause to search a cell phone?” No. 

Facts. This is a State’s interlocutory appeal from a motion to suppress cell phone evidence in a capital murder prosecution. When investigating the murder, law enforcement received several tips that residents had seen two black men in a white four-door sedan “casing” the area of the murder and then ultimately drive away at a high rate of speed shortly after the murder. Investigators learned the vehicle was registered to the defendant’s father-in-law who informed investigators he had sold the vehicle to the defendant. After locating the suspect vehicle, law enforcement conducted a pretextual traffic stop and contacted the defendant. Police located the defendant’s cell phone during a consent search of the vehicle. Investigators applied for a warrant to search the defendant’s cell phone. That application detailed the basis of suspecting the defendant and contained only a boilerplate recitation regarding the evidentiary value of the cellphone: 

Based on your Affiant’s training and experience, Affiant knows that phones and “smartphones” such as the one listed herein, are capable of [storing evidence of crimes]. 

Additionally, . . . it is common for suspects to communicate about their plans via text messaging, phone calls, or through other communication applications. Further, Affiant knows from training and experiences that someone who commits the offense of aggravated assault or murder often makes phone calls and/or text messages immediately prior and after the crime. 

Affiant further knows based on training and experience, often times, in a moment of panic and in an attempt to cover up an assault or murder that suspects utilize the internet via their cellular telephone to search for information. Additionally, based on your Affiant’s training and experience, Affiant knows from other cases he has investigated and from training and experiences that searching a suspect’s phone will allow law enforcement officers to learn the cellular telephone number and service provider for the device. Affiant knows that law enforcement officers can then obtain a subsequent search warrant from the cellular telephone provider to obtain any and all cell site data records, including any and all available geo-location information for the dates of an offense, which may show the approximate location of a suspect at or near the time of an offense. 

The trial court suppressed the cell phone evidence based on the affidavit’s failure to establish probable cause. The Fourteenth Court of Appeals affirmed, en banc. 

Analysis. “[C]onclusory allegations alone are insufficient to support a finding of probable cause . . . . an affidavit must provide the magistrate with a substantial basis for determining the existence of probable cause . . .” Citing Illinois v. Gates, 462 U.S. 213 (1983). Law enforcement must cite specific facts connecting the item to be searched to the alleged offense in order for a magistrate to find probable cause. “To hold otherwise would condone the search of a phone merely because a person is suspected to have committed a crime with another person.” Here, the only “other fact” accompanying boilerplate conclusions was the fact that two black men committed the offense together. That the two might have used phones to coordinate the offense is pure speculation. Though the affidavit indicates the two men may have stopped by the neighborhood multiple times over multiple days, there is no evidence suggesting they planned the offense over multiple days via cellular communication. 

Dissenting (Keller, J.). Boilerplate generalities about cell phone usage by criminals are insufficient. But here there was more. The offense was committed by two people and the facts establish their planning took place over the course of multiple days. “[I]t should not come as a surprise that a cell phone would be used in the planning and commission of a crime such as the one before us, at least when the defendant had an accomplice.” 

Dissenting (Yeary, J.). “‘Boilerplate’ is not a dirty word.” Presiding Judge Keller is correct. And the trial court should not have thrown out all of the evidence acquired from the phone. Nobody disputes the existence of probable cause to believe the defendant committed the offense. One of the items the officer sought from the phone was the cell phone service provider—the warrant affidavit explained this would assist him in establishing the defendant’s location at the time of the offense. 

Comment. Boilerplate is most certainly a dirty word if a defense lawyer uses boilerplate to raise an issue and preserve it for appeal. But I do think Judge Yeary has a good point on the GPS location issue.

David v. State, No. PD-0307-21 (Tex. Crim. App. 2022)

Issue & Answer. When a person combines marijuana with toilet water and human waste has he “altered” physical evidence even when that evidence can be separated, dried, and still used as evidence against him? Yes. 

Facts. Police received an informant tip that someone was selling drugs from a motel room. During surveillance, the activity seemed to shift to other rooms in the motel. Officers attempted a knock and talk at the defendant’s motel room. Before they could knock on the defendant’s door a woman saw them and alerted the defendant. When officers announced their presence, someone inside the defendant’s motel slammed the door shut. Officers could hear multiple people making quick movements. Officers breached the room. It smelled strongly of marijuana and there was paraphernalia everywhere. Police could hear the defendant in the locked bathroom. They announced their presence again, but the defendant did not come out. After hearing shuffling movements, police breached the bathroom door. The defendant was standing between the shower and the toilet. Inside the toilet was marijuana mixed with water and excrement. Police believed the bulk of the marijuana had already been flushed. At trial, the investigating officer agreed that the remaining marijuana could have been collected and potentially tested. The court of appeals found this evidence insufficient to establish the element of “alteration” to sustain tampering with evidence conviction. 

Analysis. “Alteration” is one of the many acts by which a person commits the offense of tampering with physical evidence. “‘Alter’ has an expansive meaning in common usage,” and the court of appeals erroneously narrowed the definition to an act resulting in the change in the chemical composition of marijuana. That the marijuana could potentially have been revived (separated from the human waste, dried, and measured) is not significant to this analysis. An alteration may be permanent or temporary. 

Comment. This is a crappy case. A random comment by the court which caught my attention: “it seems like Appellant is arguing that Lt. Nava’s and Agent Carrasco’s testimony that the substance in the toilet bowl was marijuana is insufficient and that expert testimony is required. We disagree.” The offense occurred prior to the passage of the Hemp Farming Act, a statute making marijuana with low THC concentrations lawful to possess. I don’t know if the court meant to signal where they might be headed when a post-Hemp-Farming-Act sufficiency case reaches them or if they just weren’t thinking about the newly-crafted distinction.

Mason v. State, No. PD-0881-020 (Tex. Crim. App. 2022)

Issue & Answer. Must the State prove that a person knew their conduct was a violation of the Election Code in order to convict that person for illegal voting? Yes.

Facts. Defendant submitted an “Affidavit of Provisional Voter” form in 2004. The ballot form contained the following affirmation: “the voter had not been finally convicted of a felony, or if a felon, had completed all punishment including any term of incarceration, parole, supervision, or period of probation, or had been pardoned.” The completion of this form registered Defendant as a Tarrant County voter. Later, in 2013, Defendant was convicted of the felony offense of “conspiracy to defraud the United States.” She was sentenced to five years imprisonment and three years of supervised release. The Tarrant County Elections Administration (TCEA) received notification of the defendant’s final felony conviction and ultimately canceled her voter registration. The TCEA sent notice of the cancellation to her home, but while she was incarcerated and serving her federal sentence. Defendant finished her prison term and began supervised release. Defendant’s supervision officer testified that they did not discuss the loss of voting rights while on supervision. While on supervised release, Defendant went to her designated polling place for the November 2016 election. When poll workers could not locate her name on the voter roll, they permitted her to cast a provisional ballot accompanied by another “Affidavit of Provisional Voter.” The election judge reported his concern about the defendant’s ballot to the defendant’s precinct election judge who then reported the matter to the Tarrant County District Attorney. The defendant’s ballot was never counted. Tarrant County District Attorney Sharen Wilson indicted her for voting in an election in which she knew she was ineligible to vote and alleged she had not been fully discharged from her sentence. The defendant had a trial before Tarrant County District Judge Ruben Gonzalez. She argued that she did not read the admonishments in the Affidavit of Provisional Voter, the government did not advise her she was ineligible to vote, and she would not have voted had she been aware of her ineligibility. The trial court convicted and issued two findings that the State had proved the essential elements of the offense: (1) the State proved the defendant was ineligible, and (2) the State proved the defendant voted. Judge Gonzalez sentenced the defendant to five years of incarceration. Defendant raised several arguments before the court of appeals, including that evidence was insufficient without proof that the defendant knew she was ineligible to vote. The Second Court of Appeals affirmed her conviction and found that knowledge was not an element of the offense. While the defendant’s case was pending PDR to the Court of Criminal Appeals, the Legislature passed a bill stating that a person may not be convicted “solely upon the fact that the person signed a provisional ballot . . .” and made this language retroactive to all individuals except those whose convictions had become final. 

Analysis. In the Election Code, when the requirement of knowledge is not explicitly tied to the circumstances making conduct illegal, the requirement of knowledge means “that the actor is aware, not just of the particular circumstances that render his otherwise innocuous conduct unlawful, but also of the fact that undertaking the conduct under those circumstances in fact constitutes a violation of the Election Code.” Delay v. State, 465 S.W.3d 232 250 (Tex. Crim. App. 2014)(construing “how far down the sentence the word knowingly is intended to travel” in an Election Code offense). Here, the relevant statute makes it an offense to “vote . . . in an election in which the person knows the person is not eligible to vote.” The court cannot presume a voter knew she was ineligible to vote, and the court of appeals’ opinion effectively converted the statute into one requiring only negligence about a person’s status as a voter. Moreover, in this case, the court of appeals contravened the legislative intent. In amending the statute in 2021, the Legislature expressly stated that the Second Court of Appeals erred in interpreting the statute to require strict liability:

REP. J. TURNER: I know her case is now on appeal. . . . But it seems to me that it is appropriate, given the fact that we adopted and then accepted the removal of the Cain amendment, to explain ourselves to some degree and express the sense of the house about the issue it dealt with. Do you agree that is appropriate here? 

REP. D. BURROWS: I think it is, and I think that we are reiterating and restating what is the current law. Obviously the courts are about to decide what it is, but my interpretation of current law is you have to have a mens rea element. As we said, this is not a strict liability-type issue. . . . 

Here it was not enough to show that Appellant was on supervised release and ineligible to vote. The State had to prove that she “actually realized that these circumstances in fact rendered her ineligible to vote.” 

Concurring & Dissenting (Yeary, J.). Agrees with the majority holding that the statute requires knowledge of voter ineligibility. There was no need to construe an ambiguous statute the way the Court did in Delay. The statute was not ambiguous. The State need not prove that the individual understood the nuances of the Election Code. They must merely prove the individual knew they were ineligible, from whatever source that may be. The Legislature’s determination to make their amendment retroactive may violate the Texas Constitutional prohibition on retroactive laws. Casting a provisional ballot does not constitute “voting” in an election. 

Dissenting (Slaughter, J.). The illegal voting statute merely requires knowledge of ineligibility to vote and allows the fact-finder to reasonably infer the defendant’s subjective knowledge based on the evidence. Here the evidence was sufficient to support this inference. When the defendant filled out her provisional ballot nine years preceding the instant offense, she swore that she was not a felon and thus learned of the requirements to vote, knowledge which should be imputed to her nine years later in the instant prosecution. 

Comment. This is a ridiculous prosecution by the Tarrant County District Attorney’s Office and I can’t say anything nice about the opinion from the Second Court of Appeals. I think it went to a whole different level when the DA continued prosecuting the appeal after the legislature (both Republican and Democrat) said “hey you’re wrong on this one.” This is a good opinion from the Court of Criminal Appeals. Though I can’t say I agree 100% with the notion that walking up to an election clerk and saying “I don’t know if I’m eligible can I cast this provisional and you guys figure it out” counts as a “vote” (as Judge Yeary put it, “a provisional ballot is . . . well, provisional). Had the Court not required the additional mens rea here, the implication of the Second Court’s holding would have been astounding: every person who ever cast a provisional ballot that was subsequently rejected (for whatever reason) is a felon. This was essentially the State’s theory and it kind of makes you wonder why we are prosecuting just this specific individual.

The Court addressed and rejected two additional issues in this case. First: whether the prosecution of an individual casting a provisional ballot violates the Help America Vote Act of 2002 (HAVA). HAVA tied the receipt of federal funds to the establishment of state procedures for casting provisional ballots. The Court found no conflict between the prosecution of a person accidentally casting a provisional ballot and the requirements of HAVA which are silent on whether a person can be prosecuted for accidentally casting a provisional ballot. Second: whether casting a provisional ballot that is rejected constitutes “voting.” The Court held that the plain meaning of “vote” means to express your choice in an election and does not depend on whether the “vote” was ultimately counted. 

Stredic v. State, No. PD-1035-20 (Tex. Crim. App. 2022)

Issue & Answer. Article 36.28 of the Code of Criminal Procedure permits a trial court to read testimony back to a jury that cannot agree on the testimony of a witness. May the trial court provide the jury with a transcript of the testimony as well? No. But harmless here. 

Facts. The defendant drove around in his car with three friends. They stopped at a gas station. The defendant retrieved a shotgun from his trunk and pointed it at the victim. The shotgun fired. The victim died. The defendant also shot and wounded his other friend. The wounded victim testified at trial and explained that the defendant intentionally shot the victim without any apparent provocation. The defendant testified that his friends were smoking PCP, he tried to get them out of the car, but they would not do so upon his demand, he retrieved the shotgun to scare them and to protect himself. The defendant explained that the shooting was an accident. According to the wounded friend, his injury was sustained after the defendant drove away and then returned to the scene. The defendant testified that he shot the wounded friend in self-defense when the wounded friend charged at him, and that this occurred immediately after he shot and killed the deceased victim. The video footage corroborates the wounded friend’s version of events. During the trial the jury had a disagreement about the “statement of a witness” and asked, “can we see the court reporter’s notes when Vincent Stredic was the witness, when the State Attorney was questioning him, regarding his statement on if Vincent felt threatened by Christopher Barrier and Rodrick Harris [deceased victim and wounded victim].” After reviewing this transcript, the jury convicted the defendant of murder. The court of appeals found that Article 36.28 of the Code of Criminal Procedure allows the oral readback of the reporter’s notes but does not authorize giving the jury a written transcript. The court of appeals reversed. 

Analysis. Article 36.28 of the Code of Criminal Procedure authorizes the trial court to read testimony to the jury if they cannot agree regarding the statement of a witness. It does not authorize the submission of a transcript to the jury. The State’s contention that the trial court retains discretion on how to conduct a trial absent a specific statutory prohibition is unpersuasive. The statute clearly prescribes the method of resolving a jury dispute–they “may” have the testimony “read to them.” Supplying a transcript draws more attention to a specific piece of evidence than the Legislature intended when it crafted the remedy for disputed testimony. However, the incremental harm did not rise to the level of affecting the defendant’s substantial rights such that the error was sufficiently harmful to warrant reversal. If the jury needed the defendant’s testimony to determine whether his testimony was inconsistent with the video, a readback would have accomplished this. If the jury needed the defendant’s testimony to determine whether the defendant’s testimony was internally inconsistent, the transcript actually established that it was not. It was beneficial to the defendant.

Concurring (Yeary, J.). The history of the statute suggests that providing the jury with a transcript is fine. Either way, it’s harmless. 

Dissenting (Walker, J.). Providing a jury with a transcript is structural error. “There is no way to evaluate the harm resulting from the violation.” Rule 606(b) prohibits juror testimony about deliberations.

Comment. This is a complicated issue. It gets even trickier when the jury is vague about what they want to hear. For instance, if the jury requests a witness’s testimony regarding XYZ, should they be provided only the direct examination testimony on XYZ? What if the cross-examination only covered X and Y but not Z? 

Martell v. State, No. PD-1234-20 (Tex. Crim. App. 2022)

Issue & Answer. Code of Criminal Procedure Article 42A.109 provides an affirmative defense to a failure-to-report probation violation when the defendant can show that the State failed to attempt in-person contact with the probationer. When the State permits a person to reside in Mexico during their probation, is that probationer estopped from arguing the State failed to attempt in-person contact? Not resolved, remanded for the court of appeals to answer.

Facts. A trial court placed the defendant on deferred adjudication probation and he “absconded” by failing to report while residing in Mexico. 20 years later the State found him and arrested him. The trial court revoked his probation and sentenced him to 10 years of incarceration. The court of appeals reversed, finding that the State violated its statutory duty of due diligence under Code of Criminal Procedure Article 42A.109, an argument raised by the defendant in the trial court. Article 42A.109 creates an affirmative defense to revocation based on failure to report if the State fails to attempt in-person contact with the probationer before seeking revocation. The State claims the court of appeals erred by failing to consider its estoppel argument–that the defendant cannot raise the statutory requirement of due diligence in this case because the State permitted him to move to Mexico and report in-person in El Paso. The State contends on appeal that it was impossible for the State to make in-person contact with him. 

Analysis. The State did not clearly raise the issue of estoppel in the court of appeals. Nonetheless, they raised it by implication by arguing that the rule of in-person contact should not apply in cases where they permit a defendant to live outside of the country. Because a trial court’s ruling should be upheld when it is the right ruling for the wrong reason, the State’s argument should be considered on appeal. The case is remanded to the court of appeals to consider the State’s estoppel argument. 

Comment. His probation was running the entire time, meaning he could not receive an extension of probation (statutorily there is no additional time left to add). Upon a filing of a speedy trial motion, the case should have been dismissed. See Carney v. State, 573 S.W.2d 24 (Tex. Crim. app. 1978). 

Ex parte Rivers, No. WR-44,786-06 (Tex. Crim. App. 2022)

Issue & Answer. Before 1996 the Parole Board was required to release all eligible inmates on mandatory supervision after good time and actual time equaled their total sentence. After 1996 the Legislature added some discretion to deny mandatory supervision. In a case where an inmate is serving both a pre-1996 mandatory supervision sentence and a post-1996 discretionary mandatory supervision sentence, can TDCJ deny release on the mandatory supervision case because the inmate has not become eligible on the discretionary mandatory supervision case? No. 

Facts. The defendant is serving two sentences. One involves automatic mandatory supervision (based on pre-1996 offense date). The other involves discretionary mandatory supervision (based on post-1996 offense date). Prior to 1996, the Parole Board was required to release all eligible inmates whose good time plus actual time in prison equaled their total sentence. This requirement was nondiscretionary and applied even when the Parole Board thought an inmate was a danger to society. In 1996 the Legislature repealed the mandatory supervision statute and replaced it with discretionary mandatory supervision whereby the Parole Board could reject mandatory supervision upon two findings: (1) the inmate’s good conduct time is not an accurate reflection of the inmate’s potential for rehabilitation, and (2) release would endanger the public. Pursuant to mandatory supervision, the Parole Board released the defendant on his pre-1996 sentence. While on supervised release, the defendant committed a new offense in 2013. A trial court sentenced the defendant on his new offense to 10 years confinement to run concurrent with his pre-1996 offense. When an inmate is serving concurrent sentences, TDCJ must identify a “holding offense” for purposes of determining eligibility for parole–the holding offense affects the outcome of parole eligibility. In 2020 the Parole Board reviewed the post-1996 offense for discretionary mandatory supervision and denied defendant’s release. Later that year the defendant’s pre-1996 offense became eligible for mandatory supervision. TDCJ notified the defendant that he would not be released until he became eligible on all sentences running concurrently. TDCJ had originally identified the defendant’s holding offense as the pre-1996 mandatory supervision offense. However, when evaluating his pre-1996 mandatory supervision offense, TDCJ switched the holding offense to the post-1996 discretionary mandatory supervision offense. 

Analysis. TDCJ has no discretion to deny release on the pre-1996 mandatory supervision offense. The statute is unequivocal—“an eligible inmate whose actual calendar time plus accrued good conduct time equaled the term of his sentence is automatically released on mandatory supervision.” By switching the defendant’s holding offense from the pre-1996 mandatory supervision offense to the post-1996 discretionary mandatory supervision offense, “TDCJ is delaying [mandatory supervision] release on the first sentence until the entire period of the second sentence has passed.” The holding offense should be defendant’s pre-1996 mandatory supervision offense. TDCJ’s refusal to release the defendant on that charge has resulted in a punishment longer than the law at the time permitted. “This will be a ‘paper parole’–a designation by TDCJ that Applicant is on mandatory supervision release on one of his convictions–but is not an actual, physical release of Applicant from TDCJ custody.” 

Concurring & Dissenting (Yeary, J.). “Paper parole” is not relief. Habeas corpus is the “great writ” for freeing individuals restrained of their liberty. 

Comment. I get such a tired head when I think of concepts defined by internally inconsistent phrases . . . “discretionary mandatory.” I fully and incompletely understand this case. 

Romo v. State, No. PD-0456-21 (Tex. Crim. App. 2022)

Issue & Answer. Defendant possessed a video labeled as documentary in nature and “fully legal.” It depicted underaged girls in some sort of nudist community partaking in a beauty pageant. Did the portrayals of genitals in this video constitute a lewd exhibition? Yes. 

Facts. Defendant was under investigation for sexually abusing his daughter. Law enforcement discovered a DVD in his office title “Nudist HDV.” It was entirely in French and labeled “100 percent genuine, fully-legal nudist documentary, Miss Jr. Teen Beauty Competition.” Prior to the opening scene a caption appears stating “Portrays Nudist Life in Simplicity; Violates No Federal Laws!!; From European Camps, Clubs and Areas; Depicts Entire Families; Is Not Sexually Oriented or Adult in Nature; Documentary and Educational Material.” The scenes portray naked children participating in a nudist beauty pageant. Several shots capture the genitals of young girls participating in the beauty pageant. Some of them have partially shaved pubic hair. At least once the cameraman panned his shot downward to show a child’s genitals. The youngest girl won the competition. She did not appear to have reached the age of puberty. Most of the girls looked nervous and uncomfortable. The court of appeals found the video sufficiently documentary in nature to not constitute a “lewd exhibition of genitals.” 

Analysis. To determine whether depictions of naked children are “lewd” for the purposes of child pornography, the court relies on six factors articulated in United States v. Dost, 636 F.Supp. 828 (S.D.Cal. 1986):

    1. whether the focal point of the visual depiction is on the child’s genitilia or pubic 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.

A child does not have to be engaging in sexual activity for the depiction to constitute a lewd exhibition. This Court has found that when a defendant took a picture of a famous painting of a nude girl and cropped his copy to focus on the child’s genitals, he converted a piece of art into child pornography. Here there were several attempts to focus on the genitals of children but not enough to state the video’s focus is specifically on the genitals. The girls’ poses do not suggest sexual activity. The setting–an outdoor picnic area–is not sexually suggestive. All of the girls in the competition were naked and thus their attire was inappropriate. Nothing about their depictions suggested sexual coyness. Notwithstanding this analysis, the court of appeals failed to analyze whether sufficient evidence suggested that the video was designed to elicit a sexual response from a pedophile viewer. “The video is not what one would normally think of as child pornography. . . . It is not overtly ‘nasty.’ But the video’s exhibition of naked girls does appear to be designed to elicit a sexual response in a viewer who is specifically looking for videos featuring young, naked girls.” The fact that the video portrays a beauty pageant designed for the sole purpose of judging the naked bodies of underaged girls is significant, as well. The evidence sufficiently supported a finding of lewd exhibition. 

Comment. Well now I have to call all the clients I told to label their drugs “100% Not Drugs.”

 Joe v. State, No. PD-0268-21 (Tex. Crim. App. 2022)

First Issue & Answer. Cargo is defined as goods moving in commerce anywhere between the point of origin and final destination. If goods are in the originating shipping yard, have they become cargo? Yes. 

Second Issue & Answer When a person completes some but not all the steps of hooking a truck to a trailer to steal cargo, but has not completed sufficient steps to carry that cargo away, has that person taken sufficient possession to constitute theft of cargo? Yes. 

Facts. The defendant drove his semi-truck to a loading dock and began the process of connecting it to a shipment of mattresses. The mattress company uses JB Hunt to ship their mattresses to retailers. Sometimes the mattress company uses independent contractors, but those contractors still use JB Hunt trucks. Defendant does not work for JB Hunt and was not in a JB Hunt truck. He entered the loading dock area by tailgating another truck through a gate which required a code to gain entry. When the loading dock security guards became suspicious, they confronted the defendant. The noted he did not have a license plate on his truck and the information identify the truck had been concealed. Defendant claimed he was a contractor handling a shipment, but he could not produce any paperwork for his purported shipment. Prior to this confrontation with the security guard, the defendant had not completed the process of hooking his truck to the trailer. Defendant argued that the goods did not constitute cargo and that he did not exercise control or appropriate the goods because he never completed hooking his truck to the trailer. The court of appeals affirmed his conviction finding that the goods were “moving in commerce” and that it was irrelevant whether defendant had completed all the necessary steps to drive away with the cargo because “asportation” is not an element of theft in Texas. 

First Analysis. Were the mattresses “cargo?” Cargo is defined as “a commercial shipment of freight moving in commerce.” A shipment is “moving in commerce if it is located at any point between the point of origin and the final point of destination regardless of any temporary stop that is made for the purpose of transshipment or otherwise.” Defendant contends the mattresses never left their point of origin and therefore never became cargo. This argument assumes that the shipping yard is necessarily part of the “point of origin.” A rational jury could have found the point of origin to be the factory in which the mattresses were manufactured and the shipping yard a temporary stop. 

Second Analysis. A rational jury could conclude that possession occurred when the defendant backed his truck under the trailer. Possession does not require exclusive control or removal. 

Nawaz v. State, No. PD-0408-21 (Tex. Crim. App. 2022)

Issue & Answer. A defendant inflicted a single blow or assault upon a child, and it caused brain damage, retinal damage, and developmental delays. The injury to a child statute defines the offense in three different ways. One way is by the infliction of serious bodily injury. Another way is by the infliction of serious mental injury. If the defendant’s single blow or assault causes both serious mental injury and serious bodily injury, may the State obtain a conviction on both results? Yes. 

Facts. A jury convicted the defendant of two counts of injury to a child. One count alleged an injury of serious bodily injury, the other count alleged an injury of serious mental deficiency, impairment, or injury. Evidence at trial showed the child suffered abusive head trauma from a whiplash type of mechanism, potentially involving violent shaking or slamming her into a soft surface. The child suffered brain bleeding which caused developmental delays. She also suffered retinal bleeding in both eyes causing near blindness. The State could not establish the specific act(s) causing the child’s injuries. Defendant argued his two convictions were barred by double jeopardy because the jury found he caused one head injury which resulted in both physical and mental damage. The Court of appeals agreed and reversed the defendant’s conviction. 

Analysis. When a defendant is convicted under different subsections of the same statute, the Court does not employ the Blockburger one-different-element test. “Instead, the Court simply conducts an allowable units of prosecution analysis.” The gravamen or focus of the offense is what controls and defines whether individual subsections constitute distinct allowable units of prosecution. Injury to a child (disabled or elderly) is a result-of-conduct offense. The Legislature was unconcerned with how the offense is committed; its focus was on the types of harm it sought to avert. Thus, each subsection of the injury to the child statute (serious bodily injury, serious mental injury, bodily injury) are different theories of criminal liability constituting distinct units of prosecution. In Ervin v. State, 991 S.W.2d 804 (Tex. Crim. App. 1999), the court set out a factor test for determining whether an offense should be regarded as the same or different for multiple punishments double-jeopardy purposes. But this factor test accounts for a gravamen analysis of distinct offenses appearing in different subsections of the same statute. Despite the existence of eight factors, the gravamen of the offense has always controlled when analyzing same-statute/different-subsection cases. 

Comment. If you see the word “gravamen” in a case, the defendant loses. I think the word means, something like “this is about to get unnecessarily complicated.” Look it up, I’m not 100 percent sure that’s right. What ever happened to actus reus and mens rea? If you did one thing there should be one crime. If the one bad thing you did caused lots of bad results, there should be enhancements to the punishment.

1st District Houston

Ex parte Moon, No. 01-18-01014-CR (Tex. App.— Houston [1st Dist.], May 12, 2022)

Issue & Answer. A juvenile court cannot transfer an adult juvenile offender to district court if there has been an adjudication on the alleged offense. If a district court previously convicted a juvenile certified to stand trial as an adult and that certification (and transfer order) is later found insufficient, can the juvenile certify again on remand after the defendant’s 18th birthday? No.

Bullet-point Procedural history. [because it’s complicated]

    • Juvenile court waived jurisdiction over the defendant when he was 16. 
    • Juvenile court certified the defendant to stand trial as an adult
    • A jury convicted the defendant and the defendant appealed.
    • Court of appeals reversed on the basis of an invalid transfer order.
    • The Court of Criminal Appeals affirmed. 
    • Juvenile court certified again on remand after juvenile’s 18th birthday.
    • Defendant filed the instant writ of habeas corpus. Trial court denied.

Facts. The defendant was accused of a murder he committed when he was 16. When the juvenile court originally certified him to stand trial as an adult, it stated minimal facts in its transfer order. A jury convicted the defendant in district court and the defendant appealed. The First Court of Appeals found transfer order was not supported by sufficient evidence. The Court of Criminal Appeals affirmed finding the error to be one in the order itself–it failed to sufficiently state the facts upon which it relied. Both courts found the juvenile case remained pending in the juvenile court upon entering their judgments. The Court of Criminal Appeals suggested the juvenile court might cure its defect, but only upon the outcome of the direct appeal declaring the juvenile court never lost jurisdiction. On remand, the State filed a second motion to waive jurisdiction under a different provision applicable to those who are 18 or older at the time of the certification hearing. The defendant contested the new certification and transfer on various grounds. Ultimately the juvenile court certified and issued a transfer order with several findings, including: no adjudication concerning the offense has been made, the state exercised due diligence to certify the defendant before the age of 18, certification before the age of 18 was impracticable because of the appellate reversal. As it pertained to the finding of “no adjudication” the juvenile court reasoned that its original defective transfer order meant that it never effectively transferred jurisdiction to the district court and the district court’s adjudication was a nullity. 

Analysis. As applicable to this case, to obtain a transfer to district court, the Family Code required the State to prove, among other things, that there has been no adjudication or hearing of the alleged offense. While the instant appeal was pending the Court of Criminal Appeals reversed its holding in Moon I and issued several pieces of rationale which impact the instant proceeding: (1) review of jurisdictional claims are cognizable on habeas corpus, (2) a juvenile transfer order without factual findings does not render the order void or deprive the district court of jurisdiction, and (3) a transfer order entered after a transfer hearing that comports with the Family Code constitutes a valid waiver of jurisdiction by the juvenile court. When the State fails to establish the appropriate criteria for transferring a now-adult juvenile offender to district court the juvenile court lacks jurisdiction to transfer a case to district court. Here the issue is whether the district court’s adjudication (conviction and sentence) was a nullity because it never acquired jurisdiction. The State contends that Moon I stands for the proposition that it did not ever acquire jurisdiction and that this was part of the rationale for the reversal. But now that Moon I is overruled by Thomas, Thomas controls. And, according to Thomas, the district court did acquire jurisdiction and its adjudication (conviction and sentence) was not a nullity, but rather a reversible conviction. 

Comment. Where am I? I think I blacked out. This summary may be wrong, but you’ll never be able to explain to me how. I re-read this summary many days after writing it, and I have to admit, I feel sorry for anyone who got as far as this comment.

McField v. State, No. 01-20-00739-CR, (Tex. App.— Houston [1st Dist.], May 24, 2022)

Issue & Answer. Must the individual who swears to a misdemeanor complaint and information be the person who made the complaint to the district attorney and have personal knowledge of the facts underlying the accusation? No. 

Facts. The complaint attached to the defendant’s information charging him with a misdemeanor offense was sworn to by the district attorney’s administrative assistant. The administrative assistant did not have firsthand knowledge of the facts underlying the accusation. The trial court granted the defendant’s motion to quash and set aside the information after a hearing at which the administrative assistant testified. The administrative assistant explained that she swears to each and every complaint individually and swears that everything is correct. However, the administrative assistant had no personal knowledge of the facts underlying the accusation or which appeared in the district attorney’s case management software. 

Analysis. A complaint’s affiant does not have to be the person who originally complained about the alleged offense to the district attorney. Nor does the affiant need first-hand knowledge of the underlying facts. Texas Code of Criminal Procedure Article 15.05 provides that a complaint is sufficient if it states the name of the defendant, shows that the defendant has committed some offense, states the time and place of commission of the offense, and is signed by the affiant by writing their name or affixing their mark. As such, the court of appeals reversed the trial court’s decision and remanded it for further proceedings. The complaint must be sworn by a credible person and may be done before an assistant district attorney. 

Ledford v. State, No. 01-19-00967-CR, (Tex. App.— Houston [1st Dist.], May 26, 2022)

Issue & Answer. Does a defendant’s Batson challenge fail if the defendant offers no rebuttal to a prosecutor’s race-neutral reasons for excluding a juror? Yes.

Facts. The State exercised its peremptory challenges to remove what appears to be the only African Americans on the jury panel with a potential to sit as jurors. Defendant raised a Batson challenge under the Equal Protection Clause. The State offered an explanation as to each of their strikes. As to the first juror, the State articulated concern with her perspective on the law of parties. As to the second juror, the State cited the juror’s responses to several ranked agree-disagree type responses asked by defense counsel. The second juror’s ranked agree-disagree responses indicated that he would be a neutral juror and the State articulated a concern about neutrality resulting in a non-unanimous jury. Some non-minority jurors had the same ranked responses or ones less favorable to the State who were not struck.

Analysis.  A Batson challenge is valid if the defendant can prove that the state improperly used peremptory strikes against members of the jury pool based on their race. The defendant has an initial burden to make a prima-facie showing of racial discrimination. Then the State must articulate a race-neutral explanation for its peremptory strike. The trial court then must consider several factors in evaluating whether the strike was based on purposeful discrimination: (1) statistical disparity in jurors race, (2) whether the record supports the purported race-neutral reason, (3) whether the race-neutral reason relates to the facts of the case, (4) whether the attorney questioned the struck minority panelists, (5) whether there was disparate questioning of the minority panelists (whether they were targeted with questions other jurors were not), and (6) whether there was disparate treatment for minority panelists (whether the attorney’s purported race-neutral reason equally applied to non-minority jurors). Here the defendant made a prima facie case. The State’s concern for the neutrality of the African American juror is legitimate and the defendant did not offer any rebuttal to the State’s concern for this juror’s neutrality. The defendant cannot argue for the first time on appeal that the State’s articulated reason is bogus. 

Comment. I don’t buy it. “We struck this juror because we were concerned he was too neutral.” I guess, according to this prosecutor, nothing is more pernicious in judging evidence than neutrality. Come on.

Munoz v. State, No. 01-20-00469-CR (Tex. App.–Houston [1st Dist.] Jun. 28, 2022)

Issue & Answer. In the First Court of Appeals, does failing to maintain a single lane require the State to prove both that the defendant (1) did not drive as nearly as practical within a single lane, and (2) that the movement was unsafe? Yes. But they did here.

Facts. Law enforcement stopped the defendant for failing to maintain a single lane. He left his lane of travel and straddled two lanes for several seconds. He returned to his lane of travel and drove on the fog line for several seconds. He drove through an intersection with his turn signal activated. He veered and crossed the lane divider again and straddled the two lanes briefly. The defendant signaled all of his maneuvers even though he failed to ever constitute a complete lane change. 

Analysis. Texas Transportation Code 545.060 provides that “[a]n operator on a roadway divided into two or more clearly marked lanes for traffic: (1) shall drive as nearly as practical entirely within a single lane; and (2) may not move from the lane unless that movement can be made safely.” In a plurality opinion, four judges on the Court of Criminal Appeals held that each clause—the maintain lane clause and the safe movement clause—constitute independent bases for a traffic violation. Leming v. State, 493 S.W.3d 552 (Tex. Crim. App. 2016). This Court disagrees. “The two clauses are joined by the conjunctive ‘and,’ which means that to violate the section, a motorist must both fail to drive as nearly as practical within a single lane and fail to make that movement safely.” Here, the State satisfied that burden. The record established that there was traffic on the road on which the defendant was traveling. The defendant’s erratic driving prevented the arresting officer from passing him. The arresting officer also had concern that the defendant would veer off the road. 

Dissent (Landau, J.). Section 545.060 does require proof of both of its elemental clauses. However, the arresting officer did not articulate anything unsafe about the defendant’s driving – just a hunch that something bad might happen in the future. 

Comment. This may not constitute a comprehensive list, but it appears the courts following the Leming plurality (maintain lane and safe movement are independent infractions) are: El Paso, Waco, Tyler, Fort Worth, Eastland, Amarillo. Those declining to follow the Leming plurality (State required to show both failure to maintain lane and unsafe movement) are:  Corpus Christi, Houston [1st Dist.], Houston [14th Dist.].

2nd District Fort Worth

Hallman v. State, No. 02-18-00434-CR (Tex. App.–Fort Worth, Jun. 16, 2022)

Issue & Answer. In a classic he-said she-said prosecution, is the State’s failure to disclose prior inconsistent statements of a key witness that directly refute that witness’s trial testimony sufficiently harmful to warrant a mistrial? Yes. 

Facts. The defendant and his ex-wife (“Ex-Wife”) were married for 20 years. During this period, they had several children together. They also took turns calling the police on one another. Their tumultuous relationship involved restraining orders and CPS intervention.  Two years before their daughter (“Original Victim”) made a delayed sexual assault outcry, the defendant and Ex-Wife were involved in an altercation which resulted in domestic violence charges against the defendant. At that time, several witnesses gave statements, and none of them expressed concern for sexual abuse. Two years later a different child got upset with Ex-Wife and decided to live with her dad, the defendant. Three days later Original Victim purportedly made her outcry of sexual assault. Several months later Ex-Wife filed for divorce but did not mention the purported outcry of sexual assault. After Original Victim became reluctant to testify, a different daughter (“New Victim”) made an outcry of sexual assault. This occurred three days before the defendant’s trial. The defendant’s trial was delayed to accommodate for the new accusation. The jury acquitted the defendant of continuous sexual abuse of Original Victim and New Victim but convicted the defendant of numerous sexual offenses involving New Victim. At the trial on punishment, the State disclosed for the first time a family-violence packet completed by Ex-Wife in the domestic violence arrest. Ex-Wife was a key witness for the State at trial. Ex-Wife’s statements in the family-violence packet contradicted her trial testimony in which she indicated that she told the police on the night of the defendant’s domestic violence arrest that she had concerns the defendant had been sexually abusing New Victim. The defendant asked the elected judge presiding over punishment to declare a mistrial. Upon the State’s late disclosure, the defendant made an oral motion for mistrial and specifically asked that the elected judge either review the record or assign the motion for mistrial to the visiting judge. The elected judge would only permit the defendant recall the Ex-Wife in punishment trial and ruled that that nothing could be done about the jury’s guilty verdict. Defendant filed a post-trial motion for mistrial. 

This court previously reversed the defendant’s conviction and held that a mistrial should have been granted because of the State’s discovery violation under Texas Code of Criminal Procedure Article 39.14. The Court of Criminal Appeals remanded the case to the court of appeals for reconsideration of the materiality of the State’s failure to disclose in light of Watkins v. State, 619 S.W.3d 265 (Tex. Crim. App. 2021)(setting an even more defendant friendly standard for materiality). This court requested supplemental briefing on “the proper harm analysis.” 

Analysis. At the outset the court notes that it cannot conduct a de novo review of the facts simply because the judge making the call on the mistrial was a different judge than the one who presided over the trial. The absentee judge is still entitled deference despite not viewing facts from the vantage point of a judge who actually observed the witnesses and their demeanor. 

To show an abuse of discretion in denying a mistrial premised on the prosecutor’s failure to disclose evidence, the defendant must show: (1) pretrial prejudice, (2) substantial impairment to his defensive posture at trial, (3) an explanation of how his defensive posture would have been materially improved with the undisclosed evidence. An Article 39.14 violation is evaluated as statutory error and subject to Texas Rule of Appellate Procedure 44.2(b)—it is disregarded unless it affected the defendant’s substantial rights (causing a substantial and injurious effect on the verdict). The trial court should grant a mistrial in rare cases after considering: (1) the severity of the misconduct, (2) measures adopted to cure the misconduct, and (3) the certainty of conviction absent the misconduct. 

This case is a classic he-said, she-said sexual abuse allegation which turned entirely on witness credibility. There is no indication in the record that the judges took any steps to mitigate the harm associated with the State’s failure to disclose evidence. Nor is there any suggestion in the record that the elected judge took any steps to familiarize herself with the guilt-innocence proceedings before denying the defendant’s mistrial. “The objective facts, viewed in the light most favorable to the trial judge’s ruling, show that the elected judge did not appreciate the size of the shadow cast by the [allegations reported to police during the earlier domestic violence arrest].” The State interwove the importance of credibility from voir dire to closing arguments. Credibility ultimately controlled the outcome. There was no better evidence to impeach Ex-Wife’s testimony than her own written words which the State failed to disclose. 

Concurring (Walker, J.). The majority opinion seems to suggest that 39.14(a) is not at issue (involving statements of witnesses). This is not correct. The majority uses this distinction to navigate around the Watkins materiality requirement but then declare the evidence material anyway. The error is on the State and is statutory error analyzed under Texas Rule of Appellate Procedure 44.2(b) and not the standards for denying mistrial. 

Dissenting (Womack, J.). Rule 44.2(b) applies to the State’s discovery error, not the standards for mistrial. The defendant already impeached the credibility of Ex-Wife through the testimony of the investigating detective who explained that he did not recall her saying anything about sexual abuse. The value of her own written statements is minimal. 

Comment. There should be zero tolerance when it comes to material discovery violations. Where enhanced scrutiny should apply is to the question of whether subsequent prosecution should be barred under double jeopardy. The rules of harm analysis are judge-made rules, and they can be judge-unmade just as easily. The interests in finality of judgments and burdens of retrial should not be foisted above that of the implementation of rules to ensure the fairness of the proceedings and the ability to defend oneself against an opponent with near limitless resources.

3rd District Austin

Clifford v. State, No. 03-21-00040-CR, (Tex. App.— Austin, May 12, 2022)

Issue & Answer. None of the witnesses to the instant robbery case could identify the defendant, yet the defendant never raised the issue of identity before the jury. The State offered an extraneous offense occurring one hour prior where a witness could identify the defendant’s unique tattoo. (1) Was the admission of this extraneous offense erroneously admitted to rebut the defense of mistaken identity? No. (2) Was the probative value of this extraneous offense evidence substantially outweighed by its prejudicial effect? No. 

Facts. A jury convicted the defendant of robbing a convenience store. He entered wearing a green hoodie with a skull facemask and wielding a handgun. Witnesses were not able to identify the defendant. The State presented evidence of another robbery committed 65 miles away in Midland an hour prior. The suspect in that case was wearing a green hoodie with a skull face mask and was accompanied by a man wielding a handgun. A witness to the Midland robbery described the man wearing the green hoodie as a white guy with tattoos resembling spikes around his eyes. The State called a co-defendant who testified that he committed both the instant robbery and the Midland robbery with the defendant. The State also offered a photo of the robbers taken by the co-defendant before the robberies. The defendant was wearing clothes matching those of the robbery suspect in both cases. However, a different co-defendant testified that he drove the suspect vehicle to the locations of the robberies but that he was alone when he did so. Before the State offered the extraneous Midland robbery, the Defendant had not argued misidentification. He made no opening statement and had not cross-examined the State’s witnesses on the issue of identity. 

Analysis 1. Texas Rule of Evidence 404(b) prohibits the use of prior bad acts to show that a defendant acted in conformity in the instant prosecution. The exceptions almost swallow the rule, and they include permissible use to establish the identity of the defendant as the person who committed the offense in question. The exceptions are all triggered by the advancement of a defensive issue which necessitates the use of such evidence (they are triggered by the defendant opening the door). Despite the defendant having not raised the issue of identity before the jury (either in opening or cross-examination of the State’s witnesses), the Defendant did raise the issue in a hearing outside of the presence of the jury. He explained to the trial court that the main defense was “going to be a simple question of identity.” Moreover, the State’s witnesses were really struggling to identify the defendant as the robber. Thus, the defendant sufficiently raised the issue of identity to justify the State’s use of extraneous offense evidence. But this is only half of the equation. “When the extraneous offense is introduced to prove the identity by comparing common characteristics, it must be so similar to the charged offense that the offenses illustrate the defendant’s distinctive and idiosyncratic manner of committing criminal acts.” Here the instant offense and the Midland offense shared significant similarities: green hoodie, skull mask, black gloves, light colored jeans, black shoes, pointing pistols at victims, threatening to shoot, multiple perpetrators, and proximity. 

Analysis 2. There were significant similarities between the instant offense and the Midland offense. They happened in close proximity. The suspect in the instant case wore the same clothes as the suspect from the Midland offense and a witness of the Midland offense was able to describe the Midland suspect as a white man with spike-looking tattoos around his eye. The defendant was white and had spike-looking tattoos around his eye. The State needed this evidence because none of the instant offense witnesses could identify the defendant. Nothing made the evidence unfairly prejudicial. 

Comment. One step closer to “the look on counsel’s face opened the door.” 

Sample v. State, No. 03-19-00817-CR, (Tex. App.— Austin, May 25, 2022)

Issue & Answer: Defendant had two cases pending simultaneously for arrests which occurred within a month of one another. After more than 40 months of delay the trial court granted a speedy trial dismissal in one of the cases but denied the same relief in the other. With this near-identical delay, was the trial court’s denial of speedy trial relief in error? No. 

Facts. The timeline of prosecution is as follows:

    • July 2015: arrested for digital penetration of 15 year old (“First Arrest”)
    • August 2015: released from jail
    • September 2015: Indicted on First Arrest
    • August 2015: arrested for a June 2015 sexual assault of an adult (“Second Arrest”)
    • August 2015: released from custody
    • November 2016: DNA negative result
    • February 2017: further DNA discovery produced
    • June 2017: indicted on Second Arrest
    • August 2017: Defense expert report produced
    • October 2018: arraigned on both arrests. 
    • October 2018: New counsel substituted. 
    • November 2018: New counsel moved to dismiss both cases on speedy trial grounds. 
    • February 2019: Trial court dismisses the Second Arrest (sexual assault of an adult) but denies motion to dismiss the First Arrest because the defendant did not request a trial, used delay strategically, and engaged in plea bargaining.
    • September 2019 Trial on the instant case (First Arrest) began.

Analysis. The Barker v. Wingo factors for analyzing speedy trial claims are: (1) length of delay, (2) reason for the delay, (3) assertion of the right, and (4) prejudice to the accused. No single factor is necessary or sufficient to establish a violation–it is a balancing test combined with common sense. The length of delay acts both as a triggering mechanism for considering the remaining factors, and as a factor in its own right. “A lengthy delay reduces defendants’ burden to show prejudice but increases their burden to show that they timely asserted the right.” Courts can weigh differently a defendant’s knowing choice not to object to delay and an attorney’s acquiescence to delay without adequately informing the defendant. The prejudice the right is designed to prevent is (1) oppressive pretrial incarceration, (2) minimization of anxiety and concern, (3) impairment of defense. 

Defendant’s main contention with the trial court ruling is that trial counsel did not inform him of his speedy trial right, and thus the failure to assert it should not be weighed heavily against him. 40 months of delay was the product of DNA testing challenges, original trial counsel’s unease with setting the case for any disposition without full discovery, and prosecutors’ unwillingness to set the case for arraignment without the defendant’s agreement. Original counsel sought more details on the exculpatory DNA test as a plea bargain strategy. Defendant sought a plea deal that would not require him to register as a sex offender. New counsel did not demand a trial, but instead moved to dismiss. Because it is unclear whether defendant was an active participant in this strategy, the “assertion of the right” factor weighs only somewhat against the defendant. The defendant ultimately did not show significant prejudice, however. He cited several ways the case has impacted him but failed to show how a speedier process would have mitigated his articulated prejudice. 

Comment. This is a good all-around blueprint demonstrating all the moving parts of a speedy trial issue.

Ex parte Ramirez, No. 03-21-00409-CR (Tex. App.–Austin, Jun. 30, 2022)

Issue & Answer. Was counsel ineffective in his representation of a defendant who insisted on entering a guilty plea after three weeks of representation and in the face of counsel’s insistence that the defendant not enter a guilty plea? No. 

Facts. Defendant pled guilty to a felony DWI. Three weeks before his guilty plea the court granted a substitution of attorney. Defendant’s new attorney made a record at the guilty plea hearing consisting of his informing the trial court that he had yet to review discovery, that was not aware of what the previous attorney had done in the case, that he recommended not pleading guilty until after he had an opportunity to review discovery, and that entering a plea of guilty could result in his revocation of parole in a separate case. The defendant insisted on proceeding and entering his guilty plea. Several months later the defendant filed the instant writ of habeas corpus claiming involuntary plea and ineffective assistance of counsel. The defendant claimed that his counsel should have sought a continuance and should have filed a motion to suppress. 

Analysis. “As an initial matter, we note that Ramirez’s claims regarding certain acts that his trial attorney allegedly failed to perform do not address how his decision to plead guilty affected the ability of his trial attorney to perform those acts.” The record establishes that the defendant entered a guilty plea against the advice of counsel. Whether to plead guilty is a client decision. The court cannot conclude that when a defendant enters a plea against the advice of counsel, that counsel’s performance is deficient under the Strickland standard. 

Ex parte Highsmith, No. 03-22-00074-CR (Tex. App.–Austin, Jun. 30, 2022)

Issue & Answer. If the State has yet to fully comply with its discovery obligations, can the State casually announce “ready” for trial to defeat a defendant’s request for release under Texas Code of Criminal Procedure Article 17.151 (mandatory release for delay in prosecution)? Yes. 

Facts. The State indicted the defendant for murder in January 2021. In May 2021 Defendant filed a writ of habeas corpus seeking release for delay in prosecution under Texas Code of Criminal Procedure Article 17.151 (mandating release when the State is not ready for trial within statutorily prescribed 90 days). The defendant’s contention was that the State could not announce ready for trial because the State had not fully complied with its discovery obligations under the Michael Morton Act, Texas Code of Criminal Procedure Article 39.14. Specifically, the State had not yet produced the medical examiner report. 

Highsmith argues that the Act’s purpose of preventing wrongful convictions would be undermined by a system that allows the State to “casually announce ‘ready’ for trial” but withhold discovery because it would force defendants to choose between proceeding to trial without effective assistance of counsel or enduring additional confinement after requesting a continuance. Highsmith also asserts that if prosecutors can disregard timely disclosure requirements before the expiration of the 90-dayreadiness deadline, then the State will be “running a patchwork discovery system in which some defendants get more justice than others,” resulting potentially in wrongfully convicted individuals.

Analysis. The defendant contends that Article 17.151 readiness for trial is read in pari materia (as though of the same subject matter) with Article 39.14 discovery rules. But nothing in Article 39.14 indicates that discovery obligations are a component of the State’s readiness for trial. Moreover, the State cannot be faulted for not producing a medical examiner report that did not yet exist because the medical examiner (editorial comment: who is a state actor) had not yet prepared it. 

Comment. If the State does not produce discovery, it likely results in a mistrial. A mistrial is not a trial. If the State does not produce discovery but announces ready for trial, it has announced ready for a mistrial and therefore has not announced ready for trial. Man . . . I’d write some pretty simple one-pagers if I were on the court.

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

State v. Conatser, No. 05-21-00061-CR (Tex. App.–Dallas, Jun. 6, 2022)

Issue & Answer. In a speedy trial analysis, can the trial court attribute pandemic-related delays to the State? No. 

Facts. This case is a run-of-the-mill Barker v. Wingo speedy trial case which incorporates the impact of the COVID-19 pandemic. The defendant claims that the blame for delay in proceeding to trial should be attributed to the State. The defendant identified some additional non-COVID-19 delays and provided some minimal testimony regarding the prejudice caused by delay. The trial court granted his motion to dismiss on speedy trial grounds. 

Analysis. The resolution of this case is not strictly dependent on whether blame for pandemic delay can be laid at the feet of the State. Defendant failed to identify sufficient prejudice. However, as it pertains to the pandemic delay: 

These months in 2020 were dominated by the unforeseeable initial impact of the Covid-19 pandemic. Conatser argues that “[t]he existence of a threat to public health does nothing to offset the interests of one accused of a crime” and contends that videoconferencing “became prevalent for the conduct of business well before September 2020.” Of course conducting “business” and conducting jury trials are very different undertakings. Indeed, Conatser himself acknowledges that “even if [he] wanted a contested trial, the Covid-19 pandemic effectively demanded that in order to get one he would have to waive his right to a jury trial, as no jury trials were occurring between April 8, 2020 and September 17, 2020.” Delay caused by the onset of a pandemic cannot be attributed as fault to the State.

Comment. I don’t think this is a black-and-white issue. First, I think there is a tendency to limit the guarantee of a speedy trial to a consideration of whether the prosecution did something to cause delay. Speedy trial is a right which must be guaranteed by the justice system, regardless of who is responsible for its denial. As early as three months into the pandemic the Office of Court Administration developed procedures for conducting safe jury trials. Many courts just decided it was easier to have none. It was either deemed too difficult/costly to implement or in some cases involved the implementation of procedures that judges and politicians were politically unwilling to implement. This included, in some jurisdictions, complications with adopting procedures that mandated the wearing of facemasks. In these cases, if a defendant was sufficiently insistent and the courts did not make an attempt to accommodate, I think the State failed to afford a citizen a guaranteed right.

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

Cummins v. State, No. 10-21-00303-CR (Tex. App.–Waco, May 11, 2022). 

Issue & Answer. What’s the deal with Anders briefs in the Tenth Court of Appeals? 

Analysis. In Anders v. California, 386 U.S. 738 (1967) The U.S. Supreme Court explained the duties of appointed appellate counsel: “if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw.” Counsel’s brief must cite to the portions of the record that might arguably support the appeal. The brief must be accompanied by a motion to withdraw. With this in mind, the court outlines the history of its holdings implementing the Anders requirements: 

    • One brief per judgment is required
    • Historically, counsel could request a nonreversible modification of judgment while still filing an Anders But this procedure denies the State an opportunity to reply.
    • To address the preceding problem the court began reviewing these hybrid Anders briefs in hybrid fashion: “this Court will conduct an independent review of the record for reversible error involving the defendant’s conviction and sentence and treat the briefed nonreversible error as a merits issue.” This hybrid Anders brief is referred to as an Allison Allison v. State 609 S.W.3d 624 (Tex. App.–Waco 2020, order). 
    • Sometimes appointed appellate attorneys file briefs raising only nonreversible judgment-reform issues and fail to accompany the brief with an Anders brief and motion to withdraw. This prevents the appellate court from performing its Anders duty to conduct an independent review of the record for reversible error. This also prevents the appellant from raising a pro se brief raising issues rejected by counsel as frivolous. To resolve this dilemma, appellate counsel should file an Allison
    • In a hybrid/Allison brief (raising nonreversible judgment-reform accompanied by Anders briefing) the appellant cannot file a pro se brief regarding the nonreversible judgment-reform issues because hybrid representation is prohibited.  
    • The State can respond to the nonreversible judgment-reform issues raised in a hybrid/Allison brief
    • The court of appeals can review the record for nonreversible judgment-reform issues sua sponte when an Anders brief or Allison brief is filed–so long as it is the type of error which can be reviewed as unassigned error or reviewed without an objection. 
    • An Allison brief is still accompanied by a motion to withdraw and when appropriate, the court of appeals must grant the motion to withdraw, notwithstanding counsel having raised legitimate nonreversible judgment-reform issues. 

Comment. Someday I am going to open a legal-themed restaurant with references nobody gets. In fact, it will be so high-brow, people probably won’t even know it has a legal theme. The bathrooms won’t be “Men” and “Women” it will be “Anders” and “Allison.” I’ll be wetting my pants in laughter. Everyone else will be wetting them because they don’t know what bathroom to go into. 

Deggs v. State, No. 10-20-00068-CR (Tex. App.–Waco, May 18, 2022)

Issue & Answer. Do the illusory protections of Article 38.37 of the Code of Criminal Procedure render that statute unconstitutional as applied to a defendant who was convicted after the State relied on Article 38.37 to present evidence of a 22-year-old extraneous offense? No.

Facts. The defendant sexually assaulted two young girls over a six-month period. At trial the State offered evidence of a 22-year-old extraneous offense. The State relied on Article 38.37 of the Code of Criminal Procedure—a legislative override to the operation of Texas Rule of Evidence 404(b)(excluding extraneous offense evidence to prove character conformity). Article 38.37 permits the admission of extraneous offenses upon a showing of relevance. 

Analysis. “This Court has held that Article 38.37, Section 2(b) is facially constitutional because of the protects set forth both in Article 38.37, Sections 2-a and 3 requiring timely notice prior to trial and a hearing conducted outside the presence of the jury for the trial court to determine that the evidence would be sufficient for a reasonable juror to find that the extraneous offense was committed beyond a reasonable doubt, with the requirement to conduct a Rule 403 balancing test upon request by the defendant.” The defendant claims that Article 38.37 is unconstitutional as applied to him in this case because the Rule 403 protection is illusory and that only one court of appeal has ever found that evidence admissible under Article 38.37 should have been excluded under Rule 403. Defendant argues that his 22-year-old offense should have been excluded under Rule 403. However, evidence of separate sexual offenses is probative of the defendant’s intent and propensity to commit sexual assaults on children. “[I]f sufficient evidence is provided regarding the extraneous offense, the probative value of sexual offenses committed against other children is generally not substantially outweighed by the danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” That the allegation is 22 years old does not sufficiently diminish the probative value of the prior offense that it should not survive Rule 403 scrutiny.

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

Ex parte K.W., No 13-20-00291-CR (Tex. App.— Corpus Christi / Edinburg, May 12, 2022)

Issue & Answer 1. Do the COVID-19 emergency orders issued by the Texas Supreme Court authorize remote grand jury proceedings, and is this constitutional? Yes and yes.

Issue and Answer 2. Do the COVID-19 emergency orders issued by the Texas Supreme Court permitting trial courts to extend deadlines also permit the trial court to extend the deadline for the State to return an indictment and announce ready for trial (and thus prevent a defendant’s release on personal bond) under Article 17.151? Yes.

Facts. The State arrested the defendant for capital murder. Before the expiration of 90 days of pretrial incarceration the State returned an indictment using a grand jury partially empaneled via Zoom. Immediately after the expiration of 90 days of pretrial incarceration the defendant filed a writ of habeas corpus seeking release for pretrial delay pursuant to Article 17.151 (release on PR bond mandatory if State is not ready for trial within 90 days of defendant’s arrest). The State cited three bases for why the defendant’s writ should be denied: (1) the Supreme Court lawfully and constitutionally authorized remote grand jury proceedings, (2) the trial court, relying on the Supreme Court order permitting the extension of deadlines, extended the Article 17.151 period from 90 days to 120 days by standing order, and (3) Governor Abbott suspended Article 17.151 by executive order. The defendant argued that the Texas Supreme Court COVID-19 emergency orders authorizing virtual “court proceedings” did not authorize virtual grand juries. The defendant also argued that modification of Article 17.151, by executive or judicial decree, violated the separation of powers and the Texas Constitutional prohibition on non-legislative suspension of statutes under Article 1 Section 28.

Analysis. Before the State can announce ready for trial and defeat a defendant’s Article 17.151 writ, the State must return an indictment. The defendant’s argument that the indictment in his case is void stems from his contention that the grand jury met remotely. The Supreme Court’s COVID-19 emergency orders authorized remote court proceedings, but according to the defendant, a grand jury proceeding is not a court proceeding because a judge does not preside over the grand jury and the grand jury operates independently from the judiciary. Contrary to the defendant’s argument, a grand jury does constitute a court proceeding. “The grand jurors were summoned and organized by the McClennan County court system to continue the administration of justice during a deadly pandemic.” Moreover, the defendant’s constitutional arguments against remote grand jury proceedings are unsupported by the law. If a witness can testify remotely without offending the confrontation clause in necessary scenarios, a grand jury should be able to meet remotely during a pandemic.

Analysis 2. Article 1 Section 28 of the Texas Constitution prohibits non-legislative branches from suspending laws. When the judicial branch uses emergency powers to extend a legislatively created deadline, they do not suspend the operation of the statute, they just stop it from being implemented as written. In the place of the law that the legislature wrote, the judicial branch rewrites it in a way the judicial branch deems appropriate under the circumstances of the emergency. This does not violate the separation of powers, because it is just an extension of a deadline. As it pertains to the constitutionality of Governor Abbott’s prohibition of automatic release under Article 17.151, defendant did not raise this issue in the trial court and this court will not consider it.

Comment. The Thirteenth Court bit off more than they should have chewed in this case and in the process gets the Texas Constitutional issue wrong. After deciding that the grand jury can convene remotely, there was no reason to address the constitutional issue.

14th District Houston

State v. Espinosa, No. 14-20-00751-CR (Tex. App.–Houston [14th Dist.] May 10, 2022)

Issue & Answer. People discovered the defendant passed out and drunk in her vehicle parked in the school pick-up line, but nobody saw her drive and nobody knew how long she had been there. Without any additional clues or circumstances, did there exist a sufficient temporal link between the time of driving and time of intoxication to justify a probable cause arrest? No.

Facts. The defendant was passed out in her vehicle in the school pick-up line. When parents and teachers discovered her, she was intoxicated with keys in the ignition and engine running. The vehicle was in park. Nobody saw the defendant drive the vehicle. The trial court granted the defendant’s motion to suppress her arrest because the State could not prove that the defendant operated the vehicle and if she had, whether she was intoxicated when operation occurred.

Analysis. The State failed to prove that the defendant operated a motor vehicle and that any such operation coincided with a period of intoxication. The State failed to produce evidence of when the defendant arrived at the location she was discovered and how long she had been there. Cases cited by the State finding probable cause where no witness observed a defendant operating a motor vehicle all involved some context clues that the operation was recent or probably overlapped with the period of intoxication. Here there were no such clues. There was no temporal link.

Dissenting (Jewell, J.). The majority conflates the probable cause standard with legal sufficiency. A reasonable person could conclude that the defendant had only recently operated her vehicle.

The following District Courts of Appeals did not hand down any significant or published opinions since the last Significant Decisions Report.

  • 4th District San Antonio
  • 6th District Texarkana
  • 7th District Amarillo
  • 8th District El Paso
  • 9th District Beaumont
  • 11th District Eastland
  • 12th District Tyler

June 2022 SDR – Voice for the Defense Vol. 51, No. 5

Voice for the Defense Volume 51, No. 5 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

Not many cases for the month of May, if you’re only counting non-leaked opinions. And that is officially the closest I think I’m allowed to get to that. What else might be going on this month you might ask? Well, I can report (significantly of course) that losing an earlobe worthy of kissing and nibbling is not that serious. Also, all the electronic harassment constitutional challenges got resolved. Considering that I maintain an electronic edition of this report, I am thoroughly petrified that my harassing, annoying, and alarming commentary is gonna get me jammed up. Good thing I know a few good lawyers.

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 significant or published opinions since the last Significant Decisions Report. See my comment above.

Fifth Circuit

United States v. Castelo-Palma, 40 F.4th 284 (5th Cir. 2022)

Issue & Answer. A defendant who transports illegal aliens for financial gain is subject to a Sentencing Guidelines enhancement for doing so in a manner that creates a substantial risk of death or serious bodily injury. Should this enhancement apply to an individual because he put more passengers in his vehicle than the manufacturer intended? No.

Facts. A drug cartel paid the defendant to smuggle eight individuals into the United States in a 2003 Ford Explorer. He pled guilty without a plea agreement to the charge of transportation of illegal aliens for financial gain. In calculating his federal sentencing guideline points, the probation officer assessed a three-level enhancement for “intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person.” In support of the enhancement, the probation officer cited the fact that nine individuals were inside a Ford Explorer with a rated capacity of seven passengers. The district court overruled the defendant’s objection to the assessment of the enhancement and sentenced the defendant to 24 months of imprisonment. 

Analysis. A 3-point enhancement under the sentencing guidelines applies in cases of alien smuggling conducted in a manner that creates a substantial risk of death or serious bodily injury. U.S.S.G. § 2L1.1(b)(6). The Fifth Circuit has identified five factors for consideration when applying this enhancement: (1) availability of oxygen, (2) exposure to extreme temperatures, (3) the aliens’ ability to communicate with the driver, (4) the aliens’ ability to exit the vehicle quickly, and (5) the danger to aliens if an accident occurs. The commentary to 2L1.1(b) suggests the enhancement should apply when “carrying substantially more passengers than the rated capacity of a motor vehicle or vessel.” The Government argues that the crowded vehicle rendered it difficult to exit and dangerous in the event of an accident. The government reaches this conclusion based on hypotheticals not supported by the evidence. Nothing in the record indicated a risk to passengers greater than that of an ordinary passenger, even when considering the fact that the passengers were not wearing seat belts.

Comment. A nailbiter to the end, I thought the answer would be yes. Not that it should be, just . . . I guess it’s a Pavlovian conditioning sort of thing.

Texas Court of Criminal Appeals

Wade v. State, No. PD-0157-20 (Tex. Crim. App. 2022)

Issue & Answer. A defendant is entitled to a lesser-included offense instruction when at least a scintilla of evidence establishes the lesser offense as a valid rational alternative to the charged offense. Can this scintilla of evidence come in the form of the defendant’s own lay opinion regarding the severity of his victim’s injury in an aggravated assault case? Yes.

Facts. Defendant was in a physical altercation with his ex-wife’s new boyfriend. He bit the guy’s earlobe off. The State charged him with aggravated assault with a deadly weapon (to wit: his teeth). They specifically alleged he caused serious permanent disfigurement. EMS took the lobe and the lobeless victim to the hospital where they sewed the earlobe back on. There was no serious bleeding, the injury was non-life-threatening, and the victim declined pain medication. Defendant testified that it was his personal opinion that biting the victim’s earlobe off may have caused some permanent disfigurement but that the disfigurement was not “serious” and was mostly unnoticeable. The victim testified that he considered his injury to constitute permanent disfigurement but said nothing about whether he considered it to be “serious.” The trial court denied the defendant’s request for a lesser-included assault charge to the jury.

Analysis. A lesser-included instruction is required when there is at least a scintilla of evidence from any source establishing a valid rational alternative to the charged offense. For a lesser included offense to be a valid rational alternative, there must be some evidence casting a reasonable doubt upon the charged offense. This analysis requires the court to look at the evidence in the light most favorable to the requested instruction. Here, the issue pertains to the degree of the injury: serious bodily injury versus bodily injury. Thus, for a lesser included instruction of bodily injury assault, there must be some evidence that would have permitted the jury to rationally doubt the injury to the victim’s earlobe constituted serious bodily injury—in this case, defined as serious permanent disfigurement. “The relevant issue in determining the degree of disfigurement is the damage caused by the wound when inflicted, not the disfigurement as exacerbated or ameliorated by medical treatment. However, bodily injury cannot be elevated to serious bodily injury by postulating potential complications that are not in evidence. There must be evidence of some significant cosmetic deformity caused by the injury.” Not every scar constitutes serious permanent disfigurement. A jury is free to apply its own logic in this regard. Appellant was entitled to rely on his own lay opinion testimony to cast doubt on the severity of the victim’s injury. His lay opinion regarding the seriousness of the victim’s injury was sufficient to obtain a lesser-included offense instruction.

Dissenting (Keller, J.). There is no dispute about what the victim’s injury was and therefore the issue of serious permanent disfigurement is a question of law, not fact.

Dissenting (Slaughter, J.). Losing the entirety of a named body part (earlobe) should constitute per se serious permanent disfigurement. People can wear earrings or intimately “kiss and nibble” on an earlobe and thus the loss of the earlobe is serious.

Comment. This case has an Amicus brief from the 105th Judicial District Attorney who basically says in fewer pages than take up the table of contents that a defendant’s opinion shouldn’t matter. Why was that necessary?

Chambers v. State, No. PD-0424-19 (Tex. Crim. App. 2022)

Issue & Answer. Texas Code of Criminal Procedure Article 38.23 requires a trial court to submit an instruction permitting a jury to suppress evidence obtained unlawfully. There must be a factual dispute before the right to such an instruction is triggered. Must the factual dispute rise to the level of affirmative proof contradicting the State’s evidence? No.

Facts. An officer stopped the defendant for driving without a rear license plate. The defendant did have a license plate. The State’s evidence showed definitively that a paper license was attached to the back of the defendant’s truck. During the stop, the officer found guns and drugs. The trial court denied a pretrial motion to suppress. At trial, the defendant requested an Article 38.23 instruction requiring the jury to disregard evidence obtained in violation of the Constitution. The trial court also denied this instruction. The Texarkana Court of Appeals affirmed the trial court’s denial.

Analysis. A defendant must meet three requirements for submission of an Article 38.23 instruction to the jury: (1) the evidence heard by the jury must raise an issue of fact; (2) the evidence on that fact must be affirmatively contested; and (3) that contested fact issue must be material to the lawfulness of the challenged conduct in obtaining the evidence. The defendant met these requirements. There existed an issue of fact about whether a license plate was affixed to the vehicle; the fact was contested by the parties; the fact was material to the stop. The court of appeals’ opinion suggests that a defendant must affirmatively prove the officer could see the license plate in order to get an Article 38.23 instruction. This is not the standard. “[T]he evidence need not prove the existence of the fact; it just has to raise the factual issue.”

Comment. I’m not 100 percent on the distinction between “affirmative proof” of a fact and injection of facts which raise a factual issue. In this case it seems to mean that the defendant did not have to prove that the officer could see a license plate despite the officer’s claims he could not. But that only became a factual issue by affirmative proof that a license plate was affixed to the vehicle. I think it would be easier to comprehend by stating: a defendant is entitled to a 38.23 instruction if some evidence from any source contradicts the State’s theory that evidence was lawfully obtained.

Ex parte Sanders, No. PD-0469-19 (Tex. Crim. App. 2022)

Issue & Answer. Is Texas’s electronic harassment statute facially invalid under the First Amendment? No.

Analysis. The statute at issue, Texas Penal Code § 42.07(a)(7), provides:

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, 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 party by a wire, radio, electromagnetic, photoelectronic, or photo-optical system . . .

The essential issue presented in this case is whether the Court’s precedent in Scott v. State should be overruled or whether it should stand, and its rationale in the context of telephonic harassment should be applied to electronic harassment statute (texts, emails, social media, etc.). 322 S.W.3d 662 (Tex. Crim. App. 2010) The Scott Court found that telephonic harassment (repeatedly ringing a person’s phone to annoy/harass/etc.) was not communicative conduct. Telephonic harassment was neither legitimate communication nor expressive. Telephonic harassment is the infliction of emotional distress for its own sake. The Scott Court also found that, even when communicative, speech which invades a substantial privacy interest of another in an essentially intolerable manner is outside the protection of the First Amendment.

Defendant argues the Court created a new category of unprotected speech by creation of the “invasion of substantial privacy interest” standard. But the core holding of Scott was not in the creation of a new category of protected speech. The core holding in Scott was a finding that the conduct proscribed was not speech at all—it was noncommunicative or pure harassment. The First Amendment forbids the abridgement only of speech, but it is not enough that the statute might touch on some potential kernel of expression. A statute must regulate conduct with a significant expressive element before it treads into First Amendment territory.  To this end the Supreme Court has permitted Congress to revoke funding from law schools that banned military recruiters in response to the military’s stance on homosexuality. The Supreme Court also green-lit Nevada legislation requiring the recusal of legislators on bills involving a matter of personal interest. The telephonic harassment statute does not target expression—it does not require the speaker to even use spoken words.

Ultimately, the electronic harassment provision is no different than the telephonic harassment provision. The statute does not target speech and does not require the electronic communication to be expressive. “A person intending to harass another could violate the statute by sending several e-mails containing only the letter “B” (arguably a “writing”) or e-mails containing nothing (some minimal level of “data”). Nor is there a requirement that the data be understandable by either man or machine.

Concurring (Yeary, J.). The electronic harassment statute protects individuals.

Dissenting (Keller, J.). Too many of the statute’s applications will affect speech and too many of those applications will affect protected speech. The statute is overly broad and thus violates the First Amendment.

Comment. The court is pretty well split on this one. A facial first amendment analysis is a three (maybe four or five, but we’ll keep it basic) step process: (1) does it target speech? (2) if yes, then do a substantial number of its applications target protected speech (i.e., is it narrowly tailored)? and (3) if yes, then is there a compelling government interest? The Court does not even get past step one. Step two is the alarming part of the statute because the answer is unquestionably “yes.” But the court’s position is that overbreadth doesn’t matter if the statute is not designed to target speech.

The Court signals throughout its opinion that the Statute is ripe for as-applied challenges—challenges to the constitutionality of the statute based on the specific nuances of a particular case. This was a facial challenge aiming to strike down the statute altogether because its application is unconstitutional in too many instances. Don’t give up your constitutional challenges, this is still a viable issue on a case-by-case basis.

Ex parte Barton, No. PD-1123-19 (Tex. Crim. App. 2022)

Issue & Answer. Same as Sanders

Analysis. This case reaches the Court of Criminal Appeals from the Second Court of Appeals. The Second Court of Appeals declared the electronic harassment statute unconstitutional by relying on the Court of Criminal Appeals post-Scott opinion of Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014). In Wilson, the Court of Criminal Appeals overruled an intermediate court holding that telephonic communications were not “repeated” under the statute because one of the phone calls relied upon by the State to achieve the repetitious nature of the phone calls had a legitimate purpose (other than to harass, annoy, etc.). The Court of Criminal Appeals explained “the existence of evidence that may support the conclusion that the call had a facially legitimate purpose does not legally negate the prohibited intent or manner of the call.” The court of appeals in the instant case took this to be an acknowledgement of facially legitimate reasons behind phone calls satisfying the elements of a harassment. This interpretation reads Wilson too expansively. What Wilson stands for is this:

[The telephonic harassment statute] makes it an offense to make repeated telephone communications, where those communications are made in a manner reasonably likely to harass, annoy, [etc.], so long as the person making said communications has an intent to harass, annoy, [etc.]. If the person harbors some extra intent in making those communications, he nevertheless still has an intent to harass, annoy, [etc.]. Unless the separate intent is specifically an intent not to harass, annoy, [etc.], the existence of a separate, facially legitimate intent to communicate does not negate the prohibited intent.”

The point of Wilson was not to declare that the harassment statute implicates expressive conduct.

Concurring (Yeary, J.). Same as in Sanders.

Dissenting (Keller, J.).

Suppose a citizen, unhappy with an opinion from this Court, sent repeated emails to a group of like-minded citizens, saying “Texas is in trouble” and “This is arguably the most devastating ruling I have ever received from a court” and “It’s time to get serious and get on the phone, write letters, etc. to EVERYONE YOU KNOW to make them aware of what’s happening. Name names on this court! If this stands we lose Texas. It’s do or die this time.” Has that citizen committed a crime? Under the Court’s decision today, the answer is “Yes.” At the risk of being prosecuted myself for violating § 42.07(a)(7) of the Texas Penal Code, let me say here that the people of Texas should be alarmed by this holding.

The statute unquestionably targets speech. The harassment statute is “far broader” than the telephonic harassment statute. What distinguishes the two statutes—if there must be a distinction—is that telephonic harassment will always involve a captive audience. Someone must endure their phone ringing, but the same cannot be said about a person being “harassed” electronically.

Comment. Judge Keller is right.

Ex parte Nuncio, No. PD-0478-19 (Tex. Crim. App. 2022)

Issue & Answer 1. Is Texas’s “obscene harassment statute” overly broad in violation of the First Amendment? It “will have to wait for another day”

Issue & Answer 2. Is Texas’s “obscene harassment statute” unconstitutionally vague under the First Amendment? No.

Analysis 1. The statute at issue, Texas Penal Code § 42.07(a)(1) provides:

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

(1) Initiates a communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene

(b) in this section:

(3) “Obscene” means containing a patently offensive description of or a solicitation to commit an ultimate sex act, including sexual intercourse, masturbation, cunnilingus, fellatio, or anilingus, or a description of excretory function.

The obscene harassment statute regulates speech and therefore Scott does not apply. The conduct in the instant case is entirely different than telephonic harassment. Telephonic harassment is committed by causing someone’s phone to ring irrespective of communicating anything. Obscene harassment criminalizes conduct specifically because of the content of the speech. Here, whether the statute targeting speech is overly broad depends on the definition of “obscene.” The court of appeals found the Legislature’s definition narrower than the description given by Miller v. California when defining obscenity as outside the limits of First Amendment protection. But the Legislature’s definition is broader than the court of appeals acknowledges. The Legislature’s definition does not incorporate a requirement that the comments appeal to “prurient interests” nor does it exclude comments with “serious literary, artistic, political, or scientific value. These are important prongs to the Miller standard for unprotected obscene speech. “We conclude, therefore, that obscenity defined by § 42.07(b)(3) and restricted by 42.07(a)(1) includes both unprotected speech and protected speech. However that is not the end of our analysis.” An overbroad statute must be substantially overbroad before invalidating it on First Amendment grounds. Here, the defendant mistakenly believed it was the State’s burden to show the statute is not overbroad and made no attempt to expound upon the hypotheticals in which the Law cannot be applied. “The answer to the overbreadth question will have to wait for another day.”

Analysis 2. Defendant targets the phrases “ultimate sex act” and “patently offensive” as used in the obscene harassment statute. “Ultimate sex act” is not vague because the statute provides an “exemplary list of ultimate sex acts” illustrating what it means to prohibit: more than a general allegation of sexual activity. “Patently offensive” is not vague because it is a phrase defined in a sister statute found to survive First Amendment vagueness scrutiny.

1st District Houston

Ex parte Mazuera, No. 01-21-00612-CR (Tex. App.—Houston [1st Dist.], Apr. 14, 2022)(not designated for publication)

Issue & Answer. When a trial court rejects an agreed bond amount as sufficient to satisfy the statutory factors in setting bond, must the trial court’s decision be supported by specific evidence pertaining to those factors? Yes.

Facts. The State indicted the defendant with ten child pornography offenses. For each offense a court set his bail at $100,000. Defendant filed a pretrial writ of habeas corpus and argued he is entitled to a bail amount he can afford. Defendant presented evidence of his significant ties to the community, his service in the United States Marines and National Guard, his college education, his employment, and his lack of prior criminal history. Defendant requested $10,000 bond in each of his cases and urged the trial court to set conditions that would satisfy any concerns regarding his flight risk or potential danger to the victim or community. The State requested bail reduced to $15,000 in each case. The trial court reduced bail to $75,000 in each case.

Analysis. A trial court’s determination in setting bail is reviewed for an abuse of discretion. “We acknowledge that an abuse-of-discretion review requires more of the appellate court than simply deciding that the trial court did not rule arbitrarily or capriciously. An appellate court must instead measure the trial court’s ruling against the relevant criteria by which the ruling was made.”

A court must consider certain statutory factors when determining an appropriate bond amount: (1) the bond must be sufficiently high to secure appearance and compliance with bond conditions, (2) bond may not serve as an instrument of oppression, (3) the nature and circumstances of offense, (4) the defendant’s ability to make bail, and (5) safety of victim and community. A court may also consider work record, family and community ties, residence, prior criminal history, conformity with previous bond conditions, aggravating factors alleged in the instant offense.

Here, no evidence suggested a risk of flight, an aggravated fact pattern, or public safety concerns. The State’s request for a $15,000 bond in each concern actually reflected the opposite of these particularized concerns. The defendant did not present evidence regarding “specific assets or financial resources [or] explain what efforts, if any, were made by appellant to furnish bail in the amounts set by the trial court.” However, in this case, the defendant’s failure to present financial evidence is easily remedied by his length of pretrial incarceration without securing release financially. Ultimately, the trial court’s setting bond without reference to guiding principles was indicative of an intent to keep the defendant locked up arbitrarily and as an instrument of oppression.

Comment. A 34-page opinion on pretrial habeas should be designated for publication. Or be shorter.

2nd District Fort Worth

Ex parte Hance, No. 02-19-00237-CR (Tex. App.—Fort Worth, Apr. 21, 2022)(not designated for publication)

Issue & Answer. When criminal investigators fail to turn over material evidence and only disclose its existence mid-trial, is it an abuse of discretion for a trial court to proceed with trial and deny a defendant’s motions for continuance, dismissal, and mistrial when the nature of the concealed evidence does not lend itself to quick review and usage by defense counsel? Yes.

Facts. A jury convicted the defendant of aggravated sexual assault of a child under six years of age. At trial, the defendant’s wife (mother of the child) testified regarding the defendant’s computer search history which included searches for information about daddy-daughter and toddler molestation. Nearly two years before trial began, the defendant’s wife provided the relevant laptop to law enforcement who in turn sent it to a specialty agency for forensic evaluation. A mirrored hard drive and forensic report were generated. While prosecutors were aware of the laptop seizure, they did not become aware of its forensic analysis until it was revealed mid-trial by their chief investigator. Defense counsel filed a verified combined motion for mistrial, dismissal and continuance. The trial granted a continuance for two weeks, appointed a defense forensic expert, and ordered the laptop produced to this forensic expert. However, the trial court changed course and reconvened trial when two jurors indicated their unavailability in the event of further delay. Before trial resumed the State announced it had refused to turn over the laptop to the defendant’s expert because it contained “nonchild pornography.” The prosecutor rationalized that nonchild pornography could be indicative of potential child pornography. The trial court again denied the defendant’s motions for mistrial, dismissal, and continuance. Instead, the trial court ordered the State to provide defense counsel with a mirrored hard drive for overnight review.

Analysis. “When the trial judge ordered the State to turn over the computer’s hard drive to the defense expert, the State decided the court’s order was infirm and should not be complied with.” The prosecutor raised concern about the possibility of child pornography which was not an objection the prosecutor made when the trial court ordered the laptop produced to the defendant’s expert. Notwithstanding the prosecutor’s ignorance of law enforcement’s investigation, the State—through its investigators—possessed the laptop, the forensic report, and material evidence for almost two years. “The rule is well established that the knowledge of one part of the prosecution team is imputed to all members of the prosecution team.” The trial court’s denial of further continuance and forcing trial to proceed instead of declaring a mistrial was “denial of counsel and denial of fair trial.” The defendant should have been afforded the ability to conduct an independent forensic analysis of the laptop for information which may have been relevant to impeaching the State’s theory regarding the defendant’s proclivities and search engine activity.

3rd District Austin

Ex parte Boyd, No. 03-20-00395-CR (Tex. App.—Austin, April 18, 2022)(not designated for publication)

Issue & Answer. Executive Order GA-13—which is still a thing—suspends the release of inmates on personal bond pursuant to Texas Code of Criminal Procedure Article 17.151. This provision requires release of an inmate after 90 days of pretrial incarceration without indictment. Is a trial court required to release an unindicted murder suspect after 90 days of delay, notwithstanding Executive Order GA-13? Yes. 

Analysis. The Court of Criminal Appeals determined in Ex parte Lanclos that, notwithstanding the existence of Executive Order GA-13, a trial court must at a minimum “release [] defendants on bonds they can afford” when Article 17.151 is properly invoked. The State’s attempt to circumvent the Lanclos decision by citing the Texas Supreme Court Emergency Orders authorizing trial courts to modify or suspend court proceedings is unpersuasive. An individual’s pre-indictment incarceration is not a court proceeding. Article 17.151 relief does not require a court-proceeding. The authority given by the legislature to the Texas Supreme Court to extend court proceeding deadlines was given in the wake of Hurricane Harvey. After Hurricane Harvey, courts were without infrastructure to conduct necessary business. There is nothing about the pandemic that prevents a trial court to review the basic facts material to an Article 17.151 determination and rule accordingly.

Comment. Also, GA-13 is unconstitutional. If I say it enough, it will be real. Right? It’s unconstitutional.

4th District San Antonio

Vitela v. State, No. 04-19-00737-CR (Tex. App.—San Antonio, Apr. 27, 2022)

Issue & Answer. Is it proper for an appellate court to rely on evidence produced at trial to uphold a pretrial ruling on a motion to suppress? Yes. 

Facts. This is an opinion on rehearing from the court’s November 2021 opinion. The motion to suppress arose from law enforcements search and seizure of the “black box” on defendant’s vehicle following a deadly vehicle collision. Defendant did not pay for the tow fee and failed to collect the wreckage of his vehicle from the impound lot. The State argued the property had been abandoned and the Defendant therefore relinquished his expectation of privacy. The Court of Appeals agreed and affirmed the trial court’s denial of defendant’s motion to suppress. On rehearing the defendant argued that the trial court improperly relied on facts presented at trial after the trial court had already denied his motion to suppress.

Analysis. For as long as the trial court has continuing jurisdiction over the case it is free to reconsider an earlier suppression ruling. “It is [only] the reviewing court that is generally limited to what was before the trial court when it made its ultimate decision.” Black v. State, 362 S.W.3d 626 (Tex. Crim. App. 2012).

Comment. The Fourth Court kind of picks some state-convenient quotes from the Black opinion and passes over the quote introduced with the phrase “the general rule.”

The general rule: In cases in which the trial court is never asked, or is asked but declines, to exercise its discretionary authority to reopen the suppression hearing, appellate review of its ruling on the motion to suppress is ordinarily limited to that evidence presented at the pretrial hearing—the evidence that was before the court at the time of its decision.  According to Vitela’s briefing, “Neither the prosecution nor the Appellant requested to reopen the suppression hearing.”

Williams v. State, No. -04-21-00486-CR (Tex. App.—San Antonio, Apr. 27, 2022)

Issue & Answer. Aggravated promotion of prostitution can be committed by various acts (“owns, invests in, finances, controls, supervises, or manages). When an indictment charging a person with aggravated promotion of prostitution merely tracks the statute and does not identify which of the various acts the State intends to prove, has that indictment provided sufficient notice? No.

Facts. The State alleged that the defendant promoted prostitution in Kerrville. Evidence showed that the defendant procured several women for a “rancher” “looking to party.” Defendant was explicit in the text messages regarding the sexual acts which the women could perform for a fee. The “rancher” turned out to be the police. Defendant and the prostitutes were arrested. The jury convicted.

Analysis. A person commits aggravated promotion of prostitution if he (1) knowingly, (2) owns, invests in, finances, controls, supervises, or manages, (3) a prostitution enterprise, (4) that uses two or more prostitutes. The indictment did nothing more than track the language of the statute. Both the Texas and US Constitutions require the State to provide a defendant with fair notice which conveys information sufficient to allow the accused to prepare a defense. Chapter 21 of the Code of Criminal Procedure explains how this should be done: with plain intelligible words stating everything the State must prove in a manner that identifies conduct which may not be re-prosecuted upon judgment. Normally an indictment that tracks the criminal statute will suffice, but not always. Statutory language may not be “completely descriptive of an offense.” This is especially true when the statute provides more than one manner and means for committing an offense. Because aggravated promotion of prostitution can be committed by acts of owning, investing, financing, controlling, supervising, or managing, there is more than one manner and means identified by the statute. The statute alone is not completely descriptive of the offense. The indictment did not provide sufficient notice, nor did any actual notice by the State cure the deficient indictment.

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

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

Turner v. State, No. 14-20-00041-CR (Tex. App.—Houston [14th Dist], Apr. 19, 2022)

Issue & Answer. An assault committed against a person “living together” in the “same dwelling” constitutes family violence because the victim is statutorily deemed a “member of the defendant’s household.” When a defendant sometimes stays overnight in a hotel room with a woman he has compelled into prostitution, are the two “living together” in the “same dwelling” for purposes of sustaining a family violence conviction? Yes.

Facts. The complainant met the defendant on a dating app. They texted each other for several months and eventually met in person. When the complainant was kicked out of her house, the defendant offered her a place to stay. The complainant attempted to move to Houston. She met with the defendant at a woman’s home, then went to a motel where she hung out with the defendant and other women. “The next day, appellant took [complainant’s] phone and posted Backpage ads offering [complainant] as a prostitute.” The complainant testified how the defendant compelled her into prostitution over the next several days. This three-week period ended in a violent assault where the defendant picked the complainant up by the throat and held her up, feet dangling, before throwing her to the ground. Defendant denied having a relationship with the complainant, but when he was arrested, officers found his clothes and personal property in the motel room the complainant used. He also denied living together and argued that he and the complainant only had “transient stays together in multiple motels for prostitution purposes.”

Analysis. Family violence can be established by proof that the victim is of the same household as the complainant. Proof is sufficient if it is shown the complainant and the defendant were “living together” in the same “dwelling.” “Living together” means to dwell, reside, or occupy a home together. A “dwelling” is a shelter to live in. The complainant testified that she and the defendant were constantly together, including overnight in various motels. The defendant’s personal belongings and clothing were found in the room where the assault occurred. The law does not require cohabitation for any specific period of time. The purported transient nature of the defendant’s cohabitation with the complainant is immaterial.

Comment. Considering that courts have considered homeless people sleeping in the same car as “living together” in the same “dwelling,” this result is not surprising.

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

Voice for the Defense Volume 51, No. 4 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

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

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

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

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

Kyle Therrian

United States Supreme Court

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

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

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

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

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

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

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

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

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

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

Fifth Circuit

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

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

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

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

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

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

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

Texas Court of Criminal Appeals

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1st District Houston

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

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

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

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

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

2nd District Fort Worth

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

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

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

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

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

3rd District Austin

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

4th District San Antonio

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

5th District Dallas

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

6th District Texarkana

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

7th District Amarillo

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

8th District El Paso

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

9th District Beaumont

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

10th District Waco

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

11th District Eastland

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

12th District Tyler

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

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

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

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

13th District Corpus Christi/Edinburg

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

14th District Houston

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Voice for the Defense Volume 51, No. 3 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

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

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

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

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

Kyle Therrian

United States Supreme Court

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

Fifth Circuit

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

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

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

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

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

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

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

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

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

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

Texas Court of Criminal Appeals

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1st District Houston

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

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

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

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

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

2nd District Fort Worth

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

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

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

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

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

3rd District Austin

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

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

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

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

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

4th District San Antonio

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

 5th District Dallas

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

 6th District Texarkana

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

 7th District Amarillo

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

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

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

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

8th District El Paso

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

9th District Beaumont

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

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

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

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

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

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

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

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

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

10th District Waco

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

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

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

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

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

11th District Eastland

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

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

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

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

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

12th District Tyler

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

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

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

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

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

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

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

13th District Corpus Christi/Edinburg

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

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

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

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

14th District Houston

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

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

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

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

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

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

Voice for the Defense Volume 51, No. 2 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

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

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

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

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

Kyle Therrian

United States Supreme Court

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

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

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

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

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

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

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

Fifth Circuit

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

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

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

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

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

Texas Court of Criminal Appeals

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dissent (Keller, P.J.).

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

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

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

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

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

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

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

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

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

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

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

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

1st District Houston

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

2nd District Fort Worth

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

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

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

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

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

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

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

3rd District Austin

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

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

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

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

4th District San Antonio

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

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

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

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

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

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

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

5th District Dallas

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

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

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

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

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

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

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

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

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

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

6th District Texarkana

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

7th District Amarillo

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

8th District El Paso

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

9th District Beaumont

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

10th District Waco

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

11th District Eastland

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

12th District Tyler

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

13th District Corpus Christi/Edinburg

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

14th District Houston

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

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

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

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

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

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

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

Voice for the Defense Volume 51, No. 1 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

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

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

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

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

Kyle Therrian

United States Supreme Court

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

Fifth Circuit

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

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

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

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

Texas Court of Criminal Appeals

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

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

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

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

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

Comment. The court gives a very open-ended definition to “same criminal episode.” In Ex parte Ferris, No. 05-19-00835 (Tex. App. Dallas, Oct. 2, 2020)(en banc) the Fifth Court of Appeals concluded that 2015 DWI conviction and a 2019 DWI acquittal were not part of the same criminal episode for purposes of denying an expunction of the 2019 DWI acquittal. In that case the trial judge stated, “I’ve never seen a case where, after the first case is disposed of via a plea and the second crime occurs after the first case is disposed of, that that is described or included within the phrase ‘same criminal episode.’” Ferris is now before the Supreme Court of Texas (expunction appeals are civil in nature). Though the length of time between the commission of the two offenses in Ferris is longer than it is here, this case presents a potential for disagreement between the Supreme Court and the Court of Criminal Appeals on what constitutes a “same criminal episode.” 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1st District Houston

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

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

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

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

2nd District Fort Worth

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3rd District Austin

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

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

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

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

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

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

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

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

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

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

4th District San Antonio

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

5th District Dallas

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

6th District Texarkana

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

7th District Amarillo

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

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

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

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

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

8th District El Paso

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

9th District Beaumont

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

10th District Waco

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

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

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

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

11th District Eastland

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

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

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

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

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

12th District Tyler

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

13th District Corpus Christi/Edinburg

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

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

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

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

14th District Houston

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

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

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

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

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

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

* * *

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Voice for the Defense Volume 50, No. 10 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

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

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

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

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

Kyle Therrian

United States Supreme Court

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

Fifth Circuit

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

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

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

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

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

Texas Court of Criminal Appeals

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1st District Houston

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2nd District Fort Worth

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

3rd District Austin

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

4th District San Antonio

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

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

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

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

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

5th District Dallas

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

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

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

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

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

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

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

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

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

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

6th District Texarkana

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

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

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

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

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

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

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

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

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

7th District Amarillo

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

8th District El Paso

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

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

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

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

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

9th District Beaumont

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

10th District Waco

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

11th District Eastland

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

12th District Tyler

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

13th District Corpus Christi/Edinburg

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

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

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

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

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

14th District Houston

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

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

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

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

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

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

Voice for the Defense Volume 50, No. 9 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

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

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

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

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

Kyle Therrian

United States Supreme Court

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

Fifth Circuit

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

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

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

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

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

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

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

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

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

Texas Court of Criminal Appeals

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Comment. Weird.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1st District Houston

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

2nd District Fort Worth

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

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

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

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

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

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

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

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

3rd District Austin

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

4th District San Antonio

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

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

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

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

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

5th District Dallas

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

6th District Texarkana

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

7th District Amarillo

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

8th District El Paso

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

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

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

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

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

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

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

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

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

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

9th District Beaumont

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

10th District Waco

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

11th District Eastland

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

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

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

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

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

12th District Tyler

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

13th District Corpus Christi/Edinburg

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

14th District Houston

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

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

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

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

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

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