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June 2021 SDR – Voice for the Defense Vol. 50, No. 5

Voice for the Defense Volume 50, No. 5 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

The Court of Criminal Appeals removed two people from death row this month. But it remains possible that one of them might have preferred to stay there. The Eighth Court of Appeals explores what happens when you mix marijuana with toilet water. Harris County defense lawyers are not letting up on District Attorney Ogg… and this month’s musical reference is brought to you by Madonna. This is my sixth month as SDR editor, and it has thus been a lot of work and a lot of fun! Let me know if you see anything I have missed or that needs more attention.

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

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

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

United States Supreme Court

Jones v. Mississippi, 141 S. Ct. 1307 (2021)

Issue. Miller v. Alabama and Montgomery v. Louisiana prohibit a trial court from imposing a mandatory life-without-parole sentence on children who committed their offense while under the age of 18 and may only do so after determining the defendant is permanently incorrigible. Does this requirement (1) impose a duty to make written findings of incorrigibility? (2) impose a duty to make an on-the-record sentencing explanation with an implicit finding of incorrigibility?

Facts. When the defendant was 15 years old, he got into an argument with his grandfather and stabbed him to death. At the time of his conviction, the State of Mississippi required, and the trial judged imposed, a mandatory life without parole sentence. This sentence was reversed when the Supreme Court handed down Miller v. Alabama, 567 U.S. 460 (2012), which provided that the Eighth Amendment prohibits mandatory life-without-parole sentences for defendants under the age of 18. The Mississippi Supreme Court ordered new sentencing and instructed the trial judge to exercise discretion in selecting an appropriate sentence. The trial court heard argument on why not to impose life-without-parole, then, acknowledging its discretion, imposed a life-without-parole sentence. The instant appeal pertains to the trial court’s failure to make a specific fact finding that the child is “permanently incorrigible.” According to the defendant, this factual finding is mandated by Montgomery v. Louisiana, 577 U.S. 190 (2016).

Holding. (1) No. Neither Miller nor Montgomery requires an explicit factual finding that a child is permanently incorrigible prior to imposing a life-without-parole sentence. They explicitly state the contrary. “Miller mandated only that a sentencer follow a certain process—considering an offender’s youth and attendant characteristics—before imposing a life-without-parole sentence.” “Montgomery then flatly stated that Miller did not impose a formal factfinding requirement and that a finding of fact regarding the child’s incorrigibility . . . is not required.” Incorrigibility is not an “eligibility factor” akin to cases involving potential insanity or lack of intellectual disability where the court must make specific findings of eligibility for death sentencing. Incorrigibility is a mitigating circumstance akin to individualized mitigating circumstances which must be considered in capital cases which are done without the requirement of factual findings. (2) No. Defendant’s argument that pronounced on-the-record findings is required to assure actual consideration of incorrigibility assumes a distinction which does not exist. “But if the sentencer has discretion to consider the defendant’s youth, the sentencer necessarily will consider the defendant’s youth, especially if defense counsel advances an argument based on the defendant’s youth.” Neither Miller nor Montgomery requires recorded findings. Again, this is akin to the consideration of individual mitigating circumstances in a death sentence case where the fact finder does not need to articulate their rationale. The Defendant has a lot of good arguments for why he shouldn’t be sentenced to life-without-parole and he should present them to the state legislature or the governor.

Concurrence (Thomas, J.). The majority reaches the correct result through a strained reading of Montgomery and Miller. “If Montgomery is correct about the existence of a concrete class of offenders who—as a matter of fundamental constitutional law—are categorically exempt from a sentence of life without parole, then there must be a determination as to whether Jones falls within that protected class. Otherwise, the “line” Miller ostensibly drew . . . between children whose crimes reflect transient immaturity and those rare children whose crimes reflect irreparable corruption is more fanciful than real.” The Court should either follow Montgomery, “[o]r we could just acknowledge that Montgomery had no basis in law or the Constitution.” Thomas would do the latter and allow states to execute more children because that is their prerogative.

Dissent (Sotomayor, J.). “In the Court’s view, a sentencer never need determine, even implicitly, whether a juvenile convicted of homicide is one of those rare children whose crimes reflect irreparable corruption. Even if the juvenile’s crime reflects unfortunate yet transient immaturity, he can be sentenced to die in prison.” This is contrary to the explicit holdings of Miller and Montgomery where the court determined the rule, a substantive rule, for which mere sentencing discretion provides inadequate protection. “How low this Court’s respect for stare decisis has sunk. Not long ago, that doctrine was recognized as a pillar of the ‘rule of law,’ ‘critical to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion.’” Ramos v. Louisiana, 590 U.S. —- (2020)(opinion of Kavanaugh).

Comment. Some have found Justice Kavanaugh’s authorship of this opinion ironic after he presented himself as the poster child for how a person can change after high school when he faced a senate confirmation focused almost entirely on conduct as a young man.

Fifth Circuit

United States v. Navarro-Jusino, 993 F.3d 360 (5th Cir. 2021)

Issue. Is a sentence 87 months above the sentencing guideline range unreasonable for a defendant who stole $500,000 from a victim through a fraudulent investment fund, who caused his victim exceptional hardship, and who minimized his conduct in an allocution by describing his conduct basically as bad business decisions?

Facts. Defendant defrauded his victim and stole his $500,000 of life savings through a fake investment fund. The victim was forced to sell his possessions and to live in government housing. Defendant pleaded guilty, and during sentencing the victim gave a victim impact statement. The trial judge asked what the victim wanted, and the victim’s response was “I hope he gets enough where . . . I’ll feel justified in your sentencing.” The trial court informed the parties he was considering an upward variance (an above-sentencing-guideline sentence) and asked for argument. The defendant addressed the court and characterized his crime as “misusing funds and making a mistake, by mingling business with personal on that account,” he explained that he invested the money in a gym that failed and concluded his statements by promising to pay the victim back. The government challenged the defendant’s minimization as just a different version of fraud – investing the victim’s money in something he didn’t authorize. The trial court sentenced the defendant to 120 months (an 87-month upward variance).

Holding. No. An above-guidelines sentence is unreasonable if it (1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing the sentencing factors. The defendant is correct to characterize his 87-month variance as large, but it was justified. His conduct devastated the victim and he tried to minimize his crime, “essentially pure theft,” as a mistake and as bad business decisions. This is enough to justify the upward variance of 87 months.

Comment. This is a short read for any client who thinks it’s a good idea to use their allocution to explain what really happened in their case.

United States v. Shkambi, 993 F.3d 388 (5th Cir. 2021)

Issue. Now that prisoners may file their own motions for compassionate release through the First Step Act, is a U.S. district court bound by the U.S. Sentencing Commission’s pre-First Step Act policy statement regarding Bureau of Prison (“BOP”) compassionate release motions when the compassionate release motion is filed by a prisoner, instead?

Facts. Defendant filed a request for compassionate release describing the prison in which he was held as “a cauldron of disease and death” during the COVID-19 pandemic. He indicated that one in four inmates at FCI Elkton has been infected with COVID-19. He also indicated that he had been infected, taken to a hospital to recover, and now fears reinfection as an at-risk inmate with a weakened immune system. The district court pointed to a pre-First Step Act policy statement of the U.S. Sentencing Commission to determine it did not have jurisdiction to consider the prisoner’s motion for compassionate release.

Holding. No. First, the trial court did have jurisdiction. Statutorily mandated factors for consideration in the exercise of judicial discretion are not congressional delineations of district court jurisdiction. To the extent the trial court would have applied the same rationale in considering the merits of the prisoner’s compassionate release motion under 18 U.S.C. § 3582, the trial court further erred by relying on a pre-First Step Act policy statement by the U.S. Sentencing Commission. Congress has provided that compassionate release is appropriate where: (1) extraordinary and compelling reasons warrant such a reduction, (2) such a reduction is consistent with applicable policy statements issued by the Sentencing Commission, and (3) such a reduction is appropriate after considering the factors set forth in 18 USC 3553(a) (factors of consideration for discretionary sentencing). Congress delegated to the Sentencing Commission the obligation to define “extraordinary and compelling reasons.” The Sentencing Commission has seen fit to do so only once, and during a time when only the BOP could bring a compassionate release motion. In that statement, the Sentencing Commission explained that extraordinary and compelling reasons could include: (A) medical conditions, (B) age, (C) family circumstances, and (D) other reasons. But, again, his policy statement explicitly applied to motions brought by the BOP. The First Step Act changed this dynamic by allowing a prisoner to file a compassionate release motion under certain circumstances. This is what occurred here. And because this was a prisoner motion and not a BOP motion, the Sentencing Commission’s policy statement is irrelevant. On remand the trial court should consider the merits of the defendant’s motion based on the normal factors of judicial discretion in sentencing under 18 U.S.C. § 3553 and statutory guidance for compassionate release under 18 U.S.C. 3582.

Comment. On remand, this motion will most assuredly be denied as there does not appear to be much that a trial court would logically consider in absence of the Sentencing Commission policy statement.

United States v. Huerta, No. 20-50343 (5th Cir. Apr. 21, 2021)

Issue. Can a U.S. district court apply the four-point sentencing guideline enhancement applicable to possession of a firearm “in connection with another felony offense” when a defendant is convicted of possession of a firearm as a felon, but evidence showed the defendant’s possession coincided with uncharged conduct indicative of drug trafficking?

Facts. Police responded to a called about a person with a gun at the Super 8 Motel and found the defendant to be that person. They also discovered several associates of the defendant to have guns and drugs in their possession, as well. One associate indicated that he and the defendant had come to motel to inquire about their purchase of 15 pounds of methamphetamine. One individual, who had not come to the motel with the defendant, and her associate was found to be in possession of 81.6 grams of methamphetamine.

Holding. The sentencing guideline enhancement for possession of firearm “in connection with another felony offense” applies where the firearm is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia. In considering this enhancement the district court may consider “(A) all acts and omissions committed, aided, abetted, [etc], willfully caused by the defendant; and (B) in the case of a jointly undertaken criminal activity . . . all acts and omissions of others that were . . . reasonably foreseeable in connection with that criminal activity.” USSG § 1B1.3(a)(1). The defendant came armed with the tools of the trade of drug trafficking and was found with a firearm near 81.6 grams of methamphetamine discarded by her associate near another associate who had nearly $10,000 in cash. Although the associate who possessed the methamphetamine did not come to the motel with the defendant, the defendant came to the motel to engage in conduct pertaining to drug trafficking. This was sufficient to justify the four-level enhancement.

Texas Court of Criminal Appeals

Martin v. State, No. PD-0563-19 (Tex. Crim. App. 2021)

Issue. When firefighters put out a stovetop fire and observe drugs and guns in the course of ventilating an apartment, do exigent circumstances and community caretaking justify police entry to keep firefighters safe from the drugs and guns?

Facts. Firefighters responded to a small stovetop fire in defendant’s apartment. During efforts to ventilate the apartment firefighters observed in plain view: (1) a torch, (2) little plastic baggies, (3) an unmarked jar of pills, (4) a glass object with some residue inside it, (5) numerous lighters and/or butane lighter fluid, and (6) multiple firearms. Concerned for their safety, the firefighters contacted law enforcement. When law enforcement arrived, firefighters indicated that they would be unable to finish ventilating the apartment until police performed a “safety check.” The responding officer entered the apartment without consent and performed a protective sweep to check for threats. During the protective sweep the responding officer observed the same items observed by firefighters. He also observed a baggie with a white crystal-like substance. Moments later, narcotics officers arrived, and they too went into the apartment to see all the things. The narcotics officers applied for and obtained a search warrant leading to the discovery of methamphetamine. Appellant filed a motion to suppress arguing that the fire had been extinguished, the apartment had been fully ventilated before the officers’ arrival, and the exigency had subsided.

Holding. It is an exception to the warrant requirement that “the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment. Kentucky v. King, 563 U.S. 452 (2011). A fire creates an exigency, and that exigency does not end “with the dousing of the last flame.” “[W]here fire or police officials enter a structure during or in the immediate aftermath of a fire to conduct legitimate duties connected to the original exigency of the fire, no search warrant is required. Here the exigency was ongoing. The fire chief informed the responding officer of “various safety concerns that had arisen while firefighters were still working on the scene” and asked for a safety check. Objectively, and from the officer’s vantage point, the safety check was necessary to assist firefighters in their completion of ventilating the apartment. The Court declined to extend the “step into the shoes” doctrine where an officer may step into the shoes of the firefighter who observed contraband and then seize that contraband. The court of appeals expanded this doctrine to the present scenario where the officer stepped into the shoes of the firefighter not to seize evidence, but rather to make an observation for the purpose of preparing a search warrant. The Court also declined to invalidate the search warrant based on the argument that it was completed by a much-later-arriving narcotics officer who entered seemingly without justification and made his own observations. When excising from the warrant affidavit that officer’s observations, the affidavit still contained probable cause. 

Comment. This is a logical result, but it blurs the lines of exigent circumstances and community caretaking exceptions. There are two elements to the exigent circumstances exception: (1) exigency and (2) probable cause. If the State does not adequately establish both probable cause and exigent circumstances, then the warrantless entry will not withstand judicial scrutiny. Guitierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007). Community caretaking on the other hand permits an officer to conduct community caretaking functions, “totally divorced from the detection, investigation or acquisition of evidence.” Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528, 37 L. Ed. 2d 706 (1973). An exigency may inform the necessity of community caretaking, but an exigency by itself does not justify warrantless search and seizure.

Curlee v. State, No. PD-0624-20 (Tex. Crim. App. 2021)

Issue. Does a playground on the premises of a church and surrounded by a chain link fence constitute a “public” playground for the purposes of a drug-free zone enhancement to a drug possession charge?

Facts. Defendant was visiting a friend at the jail when a series of events lead to a vehicle inventory search producing methamphetamine. The jail parking lot where the vehicle was parked was located 547.38 feet from a church with a playground. The playground was surrounded by a chain link fence with some locked gates some unlocked gates. Defendant was convicted of possession of a controlled substance in a drug free zone (a playground). His challenge to the sufficiency of the evidence focused on whether the playground was “open to the public” as required by the statutory definition. The playground in question was on the premises of a church, was surrounded by a chain link fence, with some locked gates and some unlocked gates.

Holding. A playground for purposes of a drug-free zone enhancement must be “open to the public.” Whether a playground is fenced-in is not dispositive of this analysis. Nor is the existence of locks on gates. The apparent expectation of the playground owner when objectively viewing the property is dispositive. Fences and gates inform the analysis. “Absent other evidence, the presence of a fence tends to show that the playground is closed to the public. If other evidence is presented showing, directly or circumstantially, that the fence serves a purpose other than keeping the public out, the fence may be probative evidence tending to show that the playground is ‘open to the public.’” Here, multiple gates were locked, including the gate adjacent to the public sidewalk. The Court was unpersuaded by several of the State’s arguments and theories:

    • Analogies to the definitions of “public” under the trespass and burglary statutes.
    • The police officer’s lay witness but conclusory opinion that the playground was open to the public.
    • The open welcoming nature of churches (mini-comment: this made me laugh).
    • The attractive nuisance doctrine.
    • Legislative history suggesting the intent of the legislature was to enhance possession of drugs in places “where children are known to gather.”

Concurrence (Keller, P.J.). The court digs too deep. Would hold that public playgrounds are open to the public and private playgrounds are not open to the public.

Dissent (Yeary, J.). The cops said it was open to the public. The exhibits showing locked gates were taken after the offense. The evidence was not monolithic, and the jury was free to determine this playground was open to the public.

Comment. I’m picturing a prosecutor lamenting this loss; crumpling up trial exhibits and throwing them into a fire while comforting himself with the memories of a simpler time—finding solace of the nostalgic melody of Madonna’s “This used to be my Playground.”

This used to be my playground [enhancement] This used to be my childhood dream
This used to be the place I ran to
Whenever I was in need of a friend
Why did it have to end?

Madonna, This Used to be my Playground (Sire Records, 1992).

Becerra v. State, No. PD-0804-19 (Tex. Crim. App. 2021)

Issue. Does trial counsel waive objection to the participation of a thirteenth juror in deliberations by failing to object when the alternate juror entered the jury deliberation room unbeknownst to trial counsel?

Facts. The bailiff discovered that the alternate juror had entered the jury deliberation room and participated in jury deliberations. Further hearing showed that the juror also voted with the other jurors on their verdict. The trial court removed the juror, admonished the remaining jurors to disregard his participation, and to resume deliberations. Defendant moved for a mistrial which the trial court denied because he failed to object at the moment the juror entered the room (before anyone knew that the juror had entered the room). The jury returned a guilty verdict 40 minutes later.

Holding. Article V, Section 13 of the Texas Constitution and Articles 33.01, 33.011, and 36.22 of the Code of Criminal Procedure prohibit an alternate juror to participate in deliberations with the jury as a thirteenth juror. The defendant need only object when a violation comes to his or her attention. “Requiring otherwise would compel a defense attorney, after closing arguments, to follow the jury outside the courtroom, through doors, hallways, and perhaps other architectural features depending on how the particular courthouse is designed, finally reaching the jury room door for the purpose of counting the number of jurors before the jury begins deliberations.”

Comment. When the trial court informed counsel that he had to object to the fact before he knew about it, counsel said “well there goes another waiver on my part.” I feel ya’ brother. We all do.

Martinez v. State, No. PD-1215-19 (Tex. Crim. App. 2021)

Issue. Is a confession sufficiently attenuated from statutorily deficient warrantless arrest when the surrounding circumstances show that the police arrested the defendant in the middle of the night, cuffed him when he requested counsel, and the defendant reengaged in interrogation seemingly in response to his unlawful arrest?

Facts. Defendant was 18 years old and suspected of involvement in a murder. Investigators came to his home in the middle of the night and took him to the police station for interrogation. Defendant’s mother informed him that she would get him a lawyer to represent him during interrogation. After reading defendant his Miranda rights, defendant invoked his right to an attorney. Officers immediately arrested him, without a warrant, and cuffed him to a bench in a holding cell. 15 minutes later, while handcuffed to a bench in a holding cell, defendant decided he would tell officers details about his involvement in the murder. At a hearing on defendant’s motion to suppress, officers testified vaguely that they believed they had probable cause without defendant’s statements. Defendant testified he was terrified, he didn’t know what was going on, and he thought his lawyer was on the way when he decided to reengage in the interrogation. On appeal, the State conceded that the arrest of the defendant did not meet the statutory requirements for warrantless arrests under Chapter 14 Code of Criminal Procedure. The court of appeals determined that the defendant’s confession was sufficiently attenuated from this statutorily unlawful arrest.

Holding. No. “Even when a statement is found to be voluntary under the Fifth Amendment, its admissibility under the Fourth Amendment must still be considered.” Here, the arrest was illegal—it failed to satisfy the pre-requisites of warrantless arrest under Article 14. To determine whether a confession is “sufficiently attenuated” from an illegal arrest, four factors apply: “(1) the giving of Miranda warnings, (2) the temporal proximity of the arrest and the confession, (3) the presence of intervening circumstances, and (4) the flagrancy of the official misconduct.” Citing, Brown v. Illinois, 422 U.S. 590 (1975). The court of appeals misapplied the third factor (finding defendant’s re-initiation of interrogation a significant circumstance) and the fourth factor (finding lack of flagrancy in violating a mere Article 14 statutory arrest requirement and not a constitutional one). The record here shows that the defendant was motivated to reengage in interrogation by the fact that he was arrested for murder. Defendant’s arrest was unlawful and surrounded by flagrantly abusive misconduct. The existence of probable cause can attenuate the egregiousness of police misconduct, but here the only evidence of probable cause flows from statements by the accused that were rendered ineligible for consideration by virtue of his unlawful arrest. Defendant’s arrest and handcuffing to a bench immediately upon his invocation of counsel and the middle-of-the-night circumstances “seemed designed to cause fear, surprise, and confusion for the purpose of getting a confession.” Because it was a result of misconduct, defendant’s act of reengaging was not of his own free will and not an intervening circumstance.

Ex parte Riles, WR-11,312-01 (Tex. Crim. App. 2021)

Issue. Must a death sentence be reversed because the jury did not receive a separate mitigation instruction regarding the Defendant’s mental health.

Facts. This is a fourth post-conviction writ of a death row inmate who raised an insanity defense at trial. He presented evidence at trial from family members detailing his mental illness and schizophrenia. The jury sentenced him to death, without receiving a mental health mitigation instruction. Before the State could kill him, he was found incompetent, and the Court of Criminal Appeals stayed his execution.

Holding. Yes. Penry v. Lynaugh requires that a jury receive a separate mitigation-focused instruction regarding mental health when called for by the evidence. 492 U.S. 302. This did not occur in the instant case. Habeas is granted and the sentence of death reversed.

Dissent (Slaughter, J.). Removing Riles from death row violates his personal autonomy. Riles has been living on death row for forty years, incapable of execution due to his incompetence. There is no indication that, with his diminished capacity, Riles has knowingly consented to representation of an attorney trying to reverse his sentence of execution. “While I recognize that mentally incompetent applicants deserve zealous representation and it seems unfair if they are unable to obtain such representation because they lack the capacity to give informed consent, it nevertheless is highly improper and potentially violative of personal autonomy to permit litigation to proceed when it is unclear whether an applicant has any awareness whatsoever of the filing or of its possible consequences.” Riles might prefer to stay on death row with the hope this court never finds him competent enough to kill than face the alternative of going back to Harris County Jail and bounce back and forth between the jail and the state hospital. Riles might also prefer to stay on death row than be released and potentially be jobless or homeless.

Comment. Umm . . .

Ex parte Garza, No. WR-78, 113-01 (Tex. Crim. App. 2021)

Issue. Did counsel render ineffective assistance of counsel by delegating the duty to investigate punishment evidence to the defendant’s mother and failing to uncover substantial evidence of childhood trauma and mental health issues?

Facts. Habeas applicant was sentenced to death for a gang-v.-gang robbery turned murder. He presented evidence in this writ of habeas corpus that his attorneys at trial were ineffective for not conducting adequate punishment investigation. The applicant presented evidence showing his first attorney did not conduct any mitigation investigation and his second attorney delegated the duty to investigate to his mother who called some witnesses and arranged their meetings with the attorney. The various failures of counsel, as alleged, included: not hiring a mitigation expert, not hiring an investigator, not hiring a mental health expert for investigation, not gathering social history documents, not uncovering incidents of significant and complex childhood trauma, not reviewing available psychological evaluations conducted in his teens. According to the applicant he suffered an extremely traumatic childhood with serious mental health disorders. Applicant presented substantial evidence corroborating his claims. Applicant also presented evidence showing most of this information was contained in readily available documents at the time of trial. Trial attorneys presented affidavits indicating that their punishment strategy was to show that applicant, as a captain in his gang, planned a drug robbery which resulted in trigger-happy gang members shooting and killing other rival gang members. This, according to the trial attorneys, together with the fact that the applicant was not present at the shootings, mitigated his culpability. Trial attorneys stated they interviewed applicant and his family members and reviewed the prosecutor’s file which included psychological and medical evaluations. Through their investigation they saw no evidence of childhood trauma or mental health disorders, but they also made minimal or no inquiry into the matter. Applicant’s lead attorney indicated that he did not feel the case required much mitigation in light of the defense he intended to pursue.

Holding. Yes. “Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Wiggins v. Smith, 539 U.S. 510 (2003). Here, counsel relied almost completely on the applicant’s mother to conduct a mitigation investigation. She told a story of applicant’s upbringing in a light favorable to herself. Nobody investigated on applicant’s father’s side of the family. Counsel plowed forward after mother failed to produce school records and after several red flags presented in psychological and medical records contained in the State’s file. Counsel’s open-ended questions of family members in group settings were not sufficient to develop mitigation evidence. No evidence suggests that either counsel was qualified to decide for themselves whether applicant had mental illness or dysfunction without the expert assistance. “[A]n attorney’s failure to uncover and present voluminous mitigating evidence at sentencing is not a reasonable tactical decision where counsel has not ‘fulfilled their obligation to conduct a thorough investigation of the applicant’s background’” Citing Wiggins. Applicant was prejudiced by trial counsel’s failure. However, “[t]his is a close case.” “Trial counsel’s punishment case was underwhelming.” There is a stark contrast between the voluminous evidence of childhood trauma now before the court and that alluded to by trial counsel in opening but not proven. The jury may have been persuaded by evidence of applicant’s PTSD, his chronic depression, his suicidal ideations, and his Fetal Alcohol Spectrum Disorder.  On the other hand, aggravating evidence including criminal and disciplinary history and gang leadership was substantial, but the balance of considerations favor granting relief.

Dissent (Keller, J.). The mitigating evidence not presented at trial but shown now does not overcome the significant aggravating evidence. “If the evidence Applicant has now presented is enough to entitle this gang-leading, lifelong-criminal, murderer of six to a new punishment hearing, it is hard to imagine it being insufficient in any case.”

Ex parte Mallet, No. WR-90, 986-01 (Tex. Crim. App. 2021)

Issue. Did defendant establish his actual innocence sufficient to merit habeas corpus relief?

Facts. [None stated in the majority opinion].

Holding. Yes.

Concurrence (Richardson, J.). Detective Gerald Goines of the Houston Police Department committed perjury in this case and in others. Based on the detective’s expense reports and testimony of other officers, there is compelling evidence that this purported pre-arranged drug-buy with the defendant never occurred. It is also telling that Detective Gerald Goines invoked his Fifth Amendment privilege against self-incrimination in a connected case. “While Applicant did enter a guilty plea, this Court has explained that ‘[t]he decision to plead guilty . . . may be influenced by factors that have nothing to do with the defendant’s guilt.” “A police officer’s deceit, perjury, and continued wrongdoing lie at the heart of this case. This Court’s precedent and complete lack of evidence here demand actual innocence relief. Anything less will subject Applicant to further unfair treatment, including but not limited to potential enhancements on other charges and difficulties obtaining employment. As the final arbiter of criminal cases in Texas, this Court cannot stay silent in the face of such unmistakable injustice.”

Comment. Should dirty cops be named in appellate opinions? Judge Richardson appears to believe they should. So do I.

Allen v. State, No. PD-0203-19 (Tex. Crim. App. 2021)

Issue. (1) Is the statutory prohibition against dual convictions for a Continuous Sexual Abuse of a Young Child and an individual sexual offense of the same child occurring in the same period a prohibition tethered to the time-period of continuous abuse alleged in the indictment? (2) Was it appropriate for the court of appeals to try and make both convictions work by shortening the period of continuous abuse based on an intervening period where abuse happened out-of-state?

Facts. Defendant was convicted of Continuous Sexual Abuse of a Young Child (COA affirmed), Indecency with a Child by Contact (COA affirmed), and Indecency with a Child by Exposure (COA reversed). The State alleged the Continuous offense occurred between October 1, 2009 and August 15, 2012. The State alleged the Indecency by Exposure occurred on October 1, 2012. The State alleged the Indecency by Contact occurred on September 25, 2009. The State showed at trial that defendant made his step-daughter touch his genitals over his clothes about once a month until Summer of 2009 before the family moved to Iowa. The abuse escalated to digital penetration, but this occurred in Iowa. The family moved back to Texas in 2011, and defendant made the victim touch his genitals over his clothes a couple more times and then the abuse stopped. The court of appeals found no evidence in the record to support Indecency by Exposure. The court of appeals also modified the trial court’s judgment to reflect what it believed the accurate offense date for Indecency by Contact—December 2011 (instead of the October 2009 offense date entered by the trial court). Because this placed the Indecency by Contact offense within the period of Continuous Sexual Abuse alleged by the State, both the State and the defendant filed motions for rehearing arguing that the conviction as reformed violated double jeopardy. Instead of changing the individual indecency by contact offense date a second time, the court of appeals issued a substitute opinion indicating that the Continuous Sexual Abuse offense was confined to the period of time between 2008-2009.

Holding. (1) No. The statute criminalizing Continuous Sexual Abuse of a Young Child provides:

(e) A defendant may not be convicted in the same criminal action of an [individual sexual offense] the victim of which is the same victim as a victim of the [Continuous Sexual Abuse offense] unless [individual sexual offense]:

(1) . . .
(2) occurred outside the period in which the offense alleged under [the Continuous Sexual Abuse provision] was committed; or
(3) . . .

The phrase “was committed” controls. It does not matter whether the individual sexual offense occurred inside or outside the period of time alleged in the indictment. “We hold that in determining whether a defendant may be convicted for a continuous abuse offense and an [individual sexual offense] in the same criminal action and against the same victim, the proper consideration is whether the evidence shows the [individual offense] occurred outside the period that the continuous abuse offense was committed.” (2) No. “The court of appeals improperly excluded the December 2011 incident from the continuing abuse period.” The fact that the family moved to another state where abuse continued and then only a little bit of abuse occurred on their return to Texas does not break the “continuous” nature of the abuse—much of which occurred in 2008-2009 and some of which occurred in December 2011. This was “the same long, continuous offense.” Thus, the conviction for the individual offense falling within the proven continuous period violates the statutory prohibition. The individual sexual offense conviction—Indecency by Contact—is vacated.

Comment. The TDCAA summary on this same case indicates that this is not a double jeopardy case but merely a violation of Penal Code § 21.02. I would think it is both. Under a double jeopardy analysis, legislative intent controls whether a person can be convicted under two separate provisions for the same conduct. The double-dipping in this case being explicitly prohibited by the Penal Code it is both a violation of both the statute and the Constitution.

Harrell v. State, No. PD-0985-19 (Tex. Crim. App. 2021)

Issue. Does the corpus delicti rule which prevents convictions based on confessions to imaginary crimes require the State to prove the identity of the driver in the DWI case with non-confession evidence?

Facts. A 911 caller reported a minivan driving erratically. The caller followed the minivan to a gas station, told the dispatcher where the vehicle parked, relayed the license plate information, but did not describe the driver. When police arrived minutes later, the engine was off, defendant was in the driver seat with the seatbelt buckled, and two intoxicated passengers in the back. Neither passenger implicated the defendant, but the defendant admitted he had been driving.

Holding. No. “In cases involving extrajudicial confessions when ‘beyond a reasonable doubt’ is the burden, not only must the evidence be legally sufficient under Jackson but also it must tend to show the corpus delicti of the offense.” The corpus delicti rule requires the court to look at non-confession evidence to determine whether there is evidence that ‘essential nature’ of alleged offense was committed. “The purpose of the corpus delicti rule is to prevent convictions based on confessions to imaginary crimes.” Here, the court of appeals erred in using the corpus delicti rule to render acquittal based on the lack of non-confession evidence establishing the defendant was the driver of the minivan. Identity of the driver is not part of the corpus delicti of a DWI. The fact that the non-confession evidence tended to show that someone in the minivan was operating the vehicle when 911 was called and defendant—later determined to be intoxicated—was discovered in the driver seat with the vehicle turned off was sufficient corpus delicti of DWI.

Miranda v. State, No. PD-1340-18 (Tex. Crim. App. 2021)

Issue. Where a teacher admitted to sexually assaulting three of his students over the course of a year, but the State only presents corroborating evidence at trial he sexually assaulted two of them, may the State maintain their conviction in the case of the third student under the “closely-related offenses” exception to the corpus delicti rule (prohibiting convictions based on confessions to imaginary crimes)?

Facts. Defendant, a high school teacher and coach, admitted to the school’s investigator that he had sex with PV, KR, and IG. At trial, the only victim to testify was KR. IG’s father testified about a love letter he found from defendant to his daughter. The jury acquitted the defendant of charges relating to IG, but convicted on charges relating to PV and KR, including the charges of sexual assault pertaining to each minor. The court of appeals reversed the convictions pertaining to PV pursuant to the corpus delicti rule requiring some corroboration of the defendant’s extra-judicial confession.

Holding. Yes. The corpus delicti rule is a sufficiency of evidence rule pertaining to a defendant’s extra-judicial confession. It requires evidence corroborating a defendant’s confession sufficient to show the “essential nature” of the offense is somewhat more probable than it would be with defendant’s confession alone. One exception to the strict application of the corpus delicti rule arises when the defendant is charged with multiple, closely-related offenses. In this scenario, the corpus delicti rule is not applied in an individual case if the corpus delicti is shown in some of the cases. The Court of Criminal Appeals has applied the “closely-related offenses” exception only once previously in Miller v. State, 457 S.W.3d 919 (Tex. Crim. App. 2015). Miller involved a series of offenses spanning 27 days. The court of appeals declined to apply the exception in the instant case because defendant’s conduct spans nearly a year. However, temporal relationship is not the only consideration in this analysis. “The sine qua non of the inquiry is whether the relationship between the crimes is sufficiently close to avoid admitting a confession for a crime that did not occur.” Here the evidence showed that the defendant engaged in a course of conduct involving the use of his position of authority and grooming female students. He used the same tactics and modus operandi in each offense. “[W]e are satisfied that the offenses are sufficiently closely related to alleviate any concern that the crimes against P.V. were never committed.”

Concurrence (Yeary, J.). “Today the Court continues along a jurisprudential course of extending, yet again, a court-invented common-law exception to the court-invented common-law doctrine known as the corpus delicti rule . . .” Jackson v. Virginia is the standard for sufficiency. “I would exercise our prerogative to simply jettison [corpus delicti].”

Comment. Judge Yeary made it clear last month in his concurrence in Ex parte Thomas that stare decisis is not a particularly high priority. But, how far does a fidelity to a philosophy of judicial restraint which abhors court-invented rules go? Complex and unforgiving rules of error preservation and harm analysis which sometimes unjustly penalize the accused are “court-invented rules.” The same which can be said about corpus delicti can be said about waiver of error which occurs when trial counsel fails to move for a mistrial after a sustained objection, doesn’t object using the right words, or whose objection is overruled but fails to request a running objection. “Neither Texas statutes nor any recognized constitutional principle of due process or due course of law requires the rule.” Food for thought.

Loch v. State, No. PD-0894-18 (Tex. Crim. App. 2021)

Issue. Is a defendant’s plea involuntary when the trial court fails to admonish him on immigration consequences where evidence strongly corroborated guilt and the instant conviction probably didn’t make him any more susceptible to deportation than he already was?

Facts. Defendant pleaded guilty to murder before a jury and was sentenced to life imprisonment after a jury trial on punishment. The trial court only gave defendant perfunctory pre-plea admonishments and completely omitted any reference to the possibility that immigration consequences could arise from his conviction. At the time he entered his plea, defendant had six prior convictions, including Aggravated Assault with Deadly Weapon, Burglary of Habitation, and Neglect of Child. Defendant stipulated to these prior convictions in the punishment trial. Penitentiary packet evidence also reflected that immigration had previously filed an ICE detainer against him in Florida in 2005. The record was unclear what ever came of the government’s previous attempt to deport the defendant.

Holding. No. Texas Code of Criminal Procedure Article 26.13(a)(4) requires the trial court, prior to accepting a guilty plea, to admonish the defendant that a conviction could result in potential immigration consequences. However, the failure to give such an admonishment is subject to harmless error review. This analysis is informed, but not controlled by the “fair assurance” rule. “The Court has said in the past that the important question . . . is, considering the record as a whole, do we have a fair assurance that the defendant’s decision to plead guilty would not have changed had the court admonished him?” A “fair assurance” inquiry looks to: (1) whether an appellant knew the consequences of his plea; (2) the strength of the evidence of an appellant’s guilt; and (3) an appellant’s citizenship and immigration status. Here, the evidence of defendant’s guilt was quite strong—multiple witnesses testified that defendant had confessed to them. And the existence of multiple prior felonies probably means that the defendant is not “appreciably more susceptible to deportation now than he was before he entered his guilty plea in the instant case.” Despite the trial court’s failure to admonish the defendant, the other considerations weighed sufficiently in favor of finding a fair assurance that defendant’s decision to plead guilty would not have changed with the benefit of proper admonishments. The trial court’s failure to admonish the defendant was harmless.

Comment. I guess that answers my previous question.

1st District Houston

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

2nd District Fort Worth

James v. State, No. 02-19-00427-CR (Tex. App.—Ft. Worth, Apr. 22, 2021)

Issue. (1) In a family violence prosecution may the State detail a history of violence between the defendant and the victim without violating Texas Rule of Evidence 404(b) (prohibiting use of crimes and other bad acts to show character conformity)? (2) Is detailing the history of violence by the defendant upon the victim substantially more prejudicial than probative? (3) Is a social worker sufficiently qualified to testify as an expert on the cycle of violence when that social worker has never met the victim, never published or reviewed scholarly articles on domestic violence, never testified as an expert, and does not provide counseling to domestic violence victims and rarely meets with them in her profession? (4) When a domestic violence victim has been consistent in her accusation, is present for trial and testifies, and has not recanted, is expert testimony on the “cycle of violence” relevant?

Facts. Defendant was convicted of Violation of Protective Order and a felony Assault Family Violence. At trial, the State introduced extraneous offense evidence over defendant’s objection. The victim’s sister testified that she had seen indications of abuse in the past, that the defendant broke out her front door and windows to get into her home where her sister had sought shelter and had once discovered her with her hands and feet bound by the defendant. The officer responding to the forcible entry testified to confirm the police department’s investigation into the sister’s allegations matter. Another officer testified regarding an occasion where the victim had flagged him down in a gas station and sought help getting away from the defendant. And yet another officer testified to a previous incident involving the defendant punching the victim in the temple multiple times at a restaurant. The victim testified about the escalation of verbal, emotional, physical and extreme sexual abuse she suffered during her relationship with the defendant. She testified that the defendant forced her to become addicted to crack cocaine and forced her to steal things to sell for drug money. The victim shared specific instances of conduct detailing her experiences with the defendant. The State also introduced expert testimony on the “cycle of violence” and “power-and-control wheel” over defendant’s objection.

Holding. (1) Yes. Texas Code of Criminal Procedure Article 38.371 permits either party to offer evidence of relevant facts and circumstances to determine whether a family violence offense occurred, “including testimony or evidence regarding the nature of the relationship between the actor and the alleged victim.” Article 38.371 acts as an additional non-character-conformity purpose for which evidence of other crimes and bad acts is admissible under Texas Rule of Evidence 404(b). (2) No. The court applies the Gigliobianco v. State factors when considering a challenge to the trial court’s 403 balancing: (1) probative force, (2) need for evidence, (3) tendency to suggest decision on improper basis, (4) tendency to confuse or distract, (5) tendency that the jury will give undue weight, (6) time consumption. 210 S.W.3d 637. Here the evidence was probative because it was all in close time proximity to the alleged offense, showed the defendant’s intent, and rebutted his theory of fabrication. Because no one witnessed the instant offense there was a particularized need to show other similar offenses that were witnessed. The seriousness of the other bad acts (rape, sodomy, torture) did pale in comparison to the offense of prosecution and may have suggested an improper decision by the jury, but this problem was cured by a limiting instruction. There was no suggestion that the evidence misled the jury or caused undue delay. (3) Yes. Despite the deficiencies noted by the defendant, the domestic violence expert had a master’s degree in social work, was the director of various departments of a domestic violence victim advocacy organization, had worked with approximately 1,000 domestic violence victims, taught “domestic violence 101” and other courses, and indicated that she understood the cycle of violence and power-and-control wheel. This is good enough to satisfy the requirements of expert qualification under Rule 702. (4) Yes. “James’s arguments that the evidence is not relevant are unavailing. He cites no authority for the proposition that experts can testify about domestic violence only when the victims refuse to testify, recant, or reunite with their abusers.” Here the evidence was relevant to show the dynamics involved in all of the bad things that the defendant did to the victim over time.

Comment. Although the evidence in this case seems to strongly suggest that the victim was in a cycle of domestic violence, and the cycle of violence testimony offered relevant value to the prosecution, the precedent of allowing cycle of violence experts becomes problematic in much weaker prosecutions. It is common to see a domestic violence expert offered to clean up the testimony of a legitimately discredited complaining witness, or one who didn’t even testify. Here, the defendant makes a novel argument that a victim who testifies, and who has never recanted or changed his or her story, renders cycle of violence evidence irrelevant. That makes sense to me. Here, the cycle of violence evidence provided a lot of expert evidence to help jurors contextualize defendant’s other bad acts and crimes and put even more undue focus on the offenses which the defendant was not charged with. The court validates this problem as a pro and not a con.

Fuller v. State, No. 02-20-00101-CR (Tex. App.—Ft. Worth, Apr. 29, 2021)

Issue. When the State causes 34 months of delay waiting on DNA testing and a defendant asserts speedy trial rights but ultimately acquiesces in trial resets, is a defendant’s right to speedy trial denied?

Facts. Defendant was convicted by a jury of capital murder. The facts at trial showed the defendant and co-defendant entered the home of the victim in the evening of October 9, 2016, shot and killed the homeowner and a guest, then returned the next day, seemingly to clean up the scene. A car chase ensued following the defendant’s flight from the victim’s home on the second day and the defendant was captured. On him was a firearm matching the caliber of the bullets used to kill the victims and $4,000 in cash. After his arrest, the defendant made several inculpatory statements on jail phone calls during the pendency of his case. The case then proceeded as follows:

    • December 2016 – indicted
    • December 2016 – State and defendant announced ready for trial
    • November 2017 – potentially favorable defense witness died
    • May 2018 – first trial setting (without objection from defendant)
    • March 2018 – State discovered untested DNA and requests continuance
    • Unknown – second trial setting
    • November 2018 – defendant demanded then withdrew speedy trial demand
    • February 2019 – third trial setting
    • February 2019 – DNA testing incomplete State and defendant announced not ready
    • March 2019 – defendant reasserted his desire for speedy trial
    • March 2019 – State represented DNA testing will be complete by July 2019
    • October 2019 – fourth trial setting
    • July 2019 – State represented DNA testing would be complete by August 2019
    • October 2019 – defendant requests continuance based on newly provided evidence
    • March 2020 – fifth trial setting
    • February 2020 – defendant urged motion to dismiss for speedy trial violation

Holding. A speedy trial claim is analyzed pursuant to the Barker v. Wingo factors: (1) length of delay, (2) reason for delay, (3) defendant’s assertion of right, (4) prejudice. 407 U.S. 514. The court found the three years of delay more than adequate. The State was to blame for 34 months of delay due to unreasonable delays in DNA testing, but the Defendant was to blame for 6 months of delay due to the need to evaluate undisclosed evidence. The delay attributed to the State was mere negligence and not willful delay by the prosecution. Defendant’s assertion of the right is murky. On several occasions he demanded a speedy trial, but then never urged a ruling, never objected to the trial court’s failure to rule, and acquiesced multiple times to the trial court’s reset. The defendant could not claim prejudice from the loss of a witness in 2017, prior to any demand for speedy trial. Nor was the fact that this witness could offer one inconsistency in the case particularly important. Defendant was recorded confessing to his girlfriend and the evidence was damning.

Comment. The opinion is internally inconsistent. The court notes in its analysis of prejudice how damning the non-DNA evidence was. Then the court finds that the delay by the prosecution to wait on the seemingly unnecessary DNA evidence was mere negligence. If the non-DNA evidence was damning, then the need to wait on DNA evidence was minimal or non-existent. This is the definition of willful delay: “I choose to delay because I want to put a little cherry on top of this prosecution.”  

3rd District Austin

Navarro v. State, No. 03-19-00278-CR (Tex. App.—Austin, Apr. 29, 2021)

Issue. (1) Does a trial court err by explaining reasonable doubt in its charge as a standard which does not require the prosecution to prove guilt beyond all possible doubt? (2) Is a defendant entitled to an accomplice witness instruction in a prosecution for engaging in prohibited but compelled sexual conduct with his daughter?

Facts. Defendant was convicted of sexually assaulting his older daughter when she was a child and convicted of prohibited sexual conduct with his younger daughter when she was 17 years old. Testimony showed that the defendant physically and psychologically abused both daughters throughout their childhood and that they acquiesced to his assault in fear. The trial court explained reasonable doubt in its jury charge by telling the jury that the prosecution did not have to prove its case beyond all possible doubt. Absent from the charge was a discussion about the accomplice witness rule’s prohibition on convicting a defendant based solely on the testimony of an accomplice. The defendant neither objected to the reasonable doubt explanation nor the purported omission of the accomplice witness rule from the jury charge.

Holding. (1) No. Although precedent from this Court previously found reversible error in a case involving the inclusion of an identical not-all-possible-doubt instruction, the precedent has been implicitly overruled by the Court of Criminal Appeals in Woods v. State, 152 S.W.3d 105 (Tex. Crim. App. 2004). Woods explicitly sanctioned the use of a not-all-possible-doubt explanation of the beyond-a-reasonable-doubt standard. Even independently of the Woods decision, the court would not find that the “definition” constituted an improper comment on the weight of evidence as the defendant characterizes it. The Court of Criminal Appeals has declined to find that a trial judge improperly comments on evidence absent the trial judge singling out a particular piece of evidence for special attention. Here the trial judge did not single out any evidence, but merely explained the reasonable doubt standard. (2) No. The accomplice witness rule prohibits conviction based on the testimony of an accomplice witness without some additional evidence tending to connect the defendant to the offense. A person who consents to incestuous intercourse is an accomplice witness. Bolin v. State, 505 S.W.2d 912 (Tex. Crim. App. 1944). However, if the intercourse is the result of force, threats, fraud, or undue influence, there is no accomplice relationship. Here, the evidence showed that the defendant was psychologically and physically abusive toward his daughters and that they lived in fear of him. Although Defendant’s younger daughter was 17 years old at the time the intercourse occurred, evidence did not establish that she was an accomplice because she did not engage in the intercourse voluntarily.

4th District San Antonio

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

5th District Dallas

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

6th District Texarkana

Osorio-Lopez v. State, No. 16-18-00197 (Tex. App.—Texarkana, Apr. 23, 2021)

Issue. Can a criminal defendant represent himself pro se in a competency trial?

Facts. After a six-month period of competency restoration, the trial court found the defendant competent to stand trial based on a psychiatric evaluation. Three days prior to trial, counsel filed a motion to withdraw indicating his inability to communicate with the defendant. In a hearing on the motion to withdraw, the defendant remained fixated on the fact that counsel did a bad job representing him previously in Ft. Worth. Neither counsel nor the trial court could convince the defendant that his present counsel was a different person than the one about which he was complaining. Nonetheless, the trial court denied the motion to withdraw and proceeded to trial. Following voir dire, trial counsel filed a motion for continuance, again citing an inability to communicate, and made a new request for a competency evaluation. The trial court denied both requests, proceeded to trial, and got reversed in an opinion where this court abated the instant appeal with an order conduct a retrospective competency trial. On remand, the trial court permitted the defendant to proceed without counsel after the defendant made several confusing statements which were variations of the following: “I want to be my own judge, my own attorney to listen to the rules to see if I’m competent for that to return under oath.” In the competency trial, the trial court admitted the competency evaluation indicating that the defendant was competent to stand trial. The trial court heard testimony from the defendant’s translator who indicated that defendant’s behavior was a product of his Honduran culture. And finally, the trial court heard testimony from the elected district attorney who indicated that from his observations he believed the defendant was competent. The defendant had two questions for the district attorney: “are you competent to say in court that you were accusing me with Mr. Michael that was in Fort Worth when he had the last court in Fort Worth?” and “Are you competent here to stand here to say that you were competent to say that I had a hearing in Fort Worth, a hearing there in Fort Worth?”

Holding. No. The Sixth Amendment and Article I Section 10 of the Texas Constitution guarantees the right to counsel in criminal proceedings, including competency hearings. A defendant similarly has the right to self-representation after certain strict admonishments. However, that right to self-representation is inapplicable to a competency trial. The trial court was not in error to permit counsel to withdraw, but new counsel should have been appointed.

Comment. I wonder if the district attorney forgot that the pro se potentially incompetent defendant got a chance to cross-examine him after giving Leslie Nielsen-esque “nothing to see here move along” direct examination testimony.

7th District Amarillo

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

8th District El Paso

David v. State, No. 08-18-00059-CR (Tex. App.—El Paso, Apr. 12, 2021)

Issue. (1) Is a person’s mere presence in a locked bathroom where drugs have been dumped into the toilet sufficient to hold that person criminally responsible for the act of tampering with evidence? (2) Does mixing marijuana with feces and urine by throwing it into the toilet and not flushing constitute “alter” for the purpose of tampering with evidence?

Facts. Narcotics agents obtained a no-knock warrant for defendant’s hotel room. After making entry they discovered two individuals and they could hear the defendant in the locked bathroom shuffling around. They forced the bathroom door open and discovered defendant fully clothed standing between the shower and the toilet. Officers observed what appeared to be marijuana in the toilet but declined to collect it. Officers neither collected the marijuana nor the toilet water and instead claimed the marijuana was contaminated with urine and fecal matter.

Holding. No. In a tampering with evidence prosecution the State must prove that the defendant altered, destroyed, or concealed evidence while knowing an investigation was in progress or that an offense had been committed. The act must be done with intent to impair its use for subsequent investigation or proceeding. Here, the State charged the three individuals inside the hotel room with the same tampering offense. No officer observed anyone throw the marijuana into the toilet. All three individuals had access to the bathroom. Officers did not hear flushing while the defendant was in the bathroom despite ample opportunity for the defendant to have flushed. Officers did not know how long the marijuana had been in the toilet, but they did know the defendant had only been in the hotel room for a matter of minutes prior to their execution of the search warrant. (2) No “We have not uncovered any case that has found marijuana mixed with water, albeit toilet water, has modified the marijuana and rendered it useless.” And here the State failed to present expert testimony to indicate this is the case. “Common sense tells us that water does not necessarily alter everything it touches.” The cops just didn’t want to pick it out of the gross toilet. This does not meet the definition of “altered.”

Comment. Is this what Snoop Dogg meant by “real sticky-icky-icky?”

9th District Beaumont

Dugar v. State, No. 09-19-00098-CR (Tex. App.—Beaumont, Apr. 7, 2021)

Issue. Is an officer objectively reasonable in conducting a maintain-a-single-lane stop when he observes a driver fail to maintain a single lane but does not observe anything unsafe about it.

Facts. Defendant was stopped for at 1:40 AM for straddling two lanes. The arresting officer who conducted the traffic stop testified that no other vehicles were on the road and given this fact, the defendant’s drifting across his lane did not pose a danger to anyone. Defendant moved to suppress the resulting DWI investigation arguing that the Texas Transportation Code’s requirement to maintain-a-single-lane provision is not violated until a lane divider is crossed and it is done unsafely. Tex. Transp. Code § 545.060(a).

Holding. Yes. In a plurality opinion, the Court of Criminal Appeals interpreted Texas’s maintain-a-single-lane statute as a law which is violated when either: (1) a driver does not maintain a single lane, or (2) when a driver changes lanes when conditions are not safe to do so. Leming v. State, 493 S.W.3d 552 (Tex. Crim. App. 2016)(plurality opinion). Because this is merely a plurality opinion, and the intermediate courts are split on what proof is required to establish a maintain-a-single-lane violation, the relevant question is whether the stopping officer was reasonable.

Comment. The court discusses its own precedent in Erhart v. State, 9 S.W.3d 929 (Tex. App.—Beaumont 2000). In Erhart the court unequivocally stated that the maintain-a-single-lane statute requires proof of failure to maintain a lane and unsafe conditions. The court cites this fact, taken together with the fact that the Court of Criminal Appeals subsequently did nothing to disrupt the Erhart holding as proof of muddy waters. This is confusing logic.

10th District Waco

In re Fields, No. 10-21-00066-CR (Tex. App.—Waco, Apr. 7, 2021)(not designated for publication)

Facts. Defendant, a TDCJ inmate, needs paperwork for his pro se post-conviction defense and the trial court won’t give it to him. He filed this mandamus.

Holding. Denied.

Concurrence (Gray, C.J.). Defendant is requesting the search warrant and blood alcohol report used to convict him. He claims they were not provided to him in discovery prior to his conviction. He has asked the district clerk, he has asked the district attorney, and he has asked the district judge (who is now a justice on this court of appeal). He has offered to pay for copies. “In sum, this mandamus proceeding appears to involve about a dollar’s worth of copies and postage. Yet here we are.” “The former trial court judge is now a justice on this court and was required to recuse himself from participating in this proceeding. Thus, this Court had to assign another justice to sit as a member of the panel to decide this proceeding. At a minimum, the cost will likely be about 500 times what the copies and postage would have been. And yet, based on this petition and record, we cannot compel anyone to provide Fields with the copies of the two documents he has been trying to get for over a year. There has to be a better way than this for an inmate to get copies related to his prosecution and incarceration.” Fields is not entitled to mandamus relief. “But that ruling does not stop my plea. Would someone, anyone, please provide Fields a copy of the two documents?”

Comment. I generally will always write about courts neglecting the requests of pro se post-conviction litigants.  

11th District Eastland

Barron v. State, No. 11-19-00125-CR (Tex. App.—Eastland, Apr. 15, 2021)

Issue: (1) Can a defendant negate or justify her offense of tampering with evidence through evidence showing she reasonably believed that the evidence she concealed (dead bodies) was evidence of a justifiable murder (committed in self-defense)? (2) Is the defense of renunciation appropriate where a person who concealed evidence tells the police where to find it before they know an offense was committed?

Facts. Two men dressed in black and wearing ski masks came to the door of defendant’s trailer. Her husband attacked them on sight, stabbing one in the face and neck and shooting the other. They both died. Defendant and her husband concealed the bodies under their trailer, cleaned up the dirt around the area where they bled, cleaned the trailer with bleach and water, hit bloody rags behind a shed, and put the gun in a pizza box. After taking the evening to sober up, defendant and her husband turned themselves into the police. Defendant informed the police where they could find the bodies and other hidden evidence. Independent of her interview, other officers discovered all the hidden evidence and both of the dead bodies.

Holding. No. “[J]ustification defenses only apply to conduct for which the defendant is currently being prosecuted.” The defendant here was not prosecuted for murder, she was prosecuted for tampering with evidence of the murder. She cannot avail herself to justifications which would apply in the murder case. “As a matter of law, self-defense does not change the nature of the underlying conduct—murder. . . . Further, that the underlying offense may be justified is of no consequence in determining whether the defendant had knowledge of its commission.” Self-defense is a confession and avoidance defense, meaning the offense, albeit justified, still occurred. No. The defense of renunciation applies only to criminal attempt. A criminal attempt occurs where an affirmative act rises to the level of more than mere preparation that tends but fails to effect the commission of the intended offense. “[A]n actor engaging in a criminal attempt may abandon her criminal conduct at any time before performing the last proximate act tending to effect the commission of the offense.” With this in mind, defendant’s logic is circular. She “cannot assert that her conduct only constituted attempted tampering because she renunciated . . . while simultaneously contending that the law of renunciation applies because her conduct only constituted attempted tampering.” Here, the defendant had fully completed the act of tampering by concealing bodies under the trailer. She could have abandoned her conduct only at a point before the bodies went under the trailer.

Comment. The court seems to indicate that a renunciation defense is only appropriate where the state charges a defendant with an inchoate offense such as criminal attempt and not where the evidence at trial shows a criminal attempt of the greater charged offense. I don’t follow the logic.

Templeton v. State, No. 11-19-00192-CR (Tex. App.—Eastland, Apr. 30, 2021)

Issue. (1) Is the requirement of jury unanimity violated by the common jury charge language permitting the jury to convict on an offense date occurring between the statute of limitations and the alleged date of offense? (2) Can the state present hearsay evidence under the excited utterance exception when the declarant is reporting an incident that occurred several days prior to the utterance?

Facts. Bruised and beaten, defendant’s girlfriend and her son fled to her parents’ house who lived six blocks from her home. When she arrived, her parents noticed both had been crying, were sweating profusely, and were out of breath. They noted bruises and lacerations on their daughter’s face, both her eyes were swollen, and that she was holding her neck. At trial “[o]ver hearsay objection [her father] testified that she told him that Appellant, her boyfriend, had threatened to kill her and [her son].” The father added that he was told that the defendant had beaten her and put his knee on her neck, holding her to the floor. Police were called and a responding officer conducted interviews. The responding officer testified that he was told by the victim that she had been assaulted a few days prior. But at trial the victim testified that the defendant’s ex-girlfriend beat her up and that her parents refused to accept this explanation when she told them and instructed her to tell the police that the defendant had assaulted her. The victim’s father added that he had listened in on a butt-dial phone call from his daughter where the defendant was telling the victim that his abuse was none of anyone’s business.

Holding. (1) No. Unanimity “means that each and every juror agrees that the defendant committed the same single specific criminal act.” Ngo v. State, 129 S.W.3d 198 (Tex. App.—Eastland 2004). Unlike in Ngo where the defendant was charged with three offenses and the court’s charge permitted the jury to convict by a general verdict if it found any of those offense had been committed, this case involved a single alleged offense. Although the date of offense was disputed at trial, this did not give rise to a scenario where the jury was presented with “alternatives upon which the jury may base its verdict.” (2) Yes. An excited utterance must meet three requirements in order to qualify as an exception to hearsay: “(1) the ‘exiting event’ should be startling enough to evoke a truly spontaneous reaction from the declarant; (2) the reaction to the startling event should be quick enough to avoid the possibility of fabrication; and (3) the resulting statement should be sufficiently ‘related to’ the starting event, to ensure the reliability and trustworthiness of that statement.” McCarty v. State, 257 S.W.3d 238, 241 (Tex. Crim. App. 2008). The startling event may trigger a spontaneous statement relating to a much earlier incident. The fact that the purported event the declarant was reporting happened days prior and under circumstances where she was no longer in the defendant’s presence do not matter. She was crying and exasperated when she made the statement, and the statement was purportedly triggered by the defendant’s death threat. This was good enough.

Comment. There is not much guidance on where the outer limits of McCarty lie. Certainly, there has to be an event that is too stale to excitedly utter.  

12th District Tyler

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

13th District Corpus Christi/Edinburg

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

14th District Houston

State v. Yakushkin, No. 14-20-00256-CR (Tex. App.—Houston [14th Dist], Apr. 22, 2021)

Issue. (1) Does the Harris County District Attorney have authority to represent the State in appeals from county-level criminal courts in Harris County? (2) Must a criminal information be accompanied by an affidavit sworn by the officer who brought the allegation to the attention of the district attorney?

Facts. The court consolidated several appeals raising the exact same issues. In each the defendants raise issues pertaining to the sufficiency of the sworn complaint accompanying the State’s information. One alleged that the State’s complaint was not sworn by a credible person, the rest alleged that the allegations contained in the complaint fail to establish probable cause or meet the requirements of the Code of Criminal Procedure. Defendants challenged the Harris County District Attorney’s authority to file appeals on behalf of the State in appeals from the Harris County criminal courts at law.

Holding. (1) Yes. Harris County has both a county attorney and a district attorney. The Texas Constitution provides “the respective duties of the District Attorneys and County Attorneys in such counties [shall] be regulated by the Legislature.” Tex. Const. art. V sec. 21. Texas Code of Criminal Procedure Article 2.01 gives authority to the district attorney to represent the State in appeals from district courts but is silent on who has the authority to represent the State in appeals from county courts. Defendants contend that in this silence, the duty to represent the State fell to the State Prosecuting Attorney and that Harris County DA’s notice of appeal is defective. However, Texas Government Code § 43.180 empowers the Harris County District Attorney to represent the state “in criminal cases pending in the district and inferior courts of the county” and grants “all powers . . . relating to criminal matters . . . that are conferred on district attorneys in the various counties and districts.” This provision, taken together with Texas Code of Criminal Procedure Article 44.01 which authorizes “the prosecuting attorney” to file an appeal grants the Harris County District Attorney authority to file appeals arising from the county criminal courts. (2) No. Texas Code of Criminal Procedure Article 15.05 requires that an affiant swear out a criminal complaint. Article 21.02 requires the accompanying affidavit be sworn by “some credible person.” The defendants point to Article 2.04 of the Code of Criminal Procedure which requires the complaint reduced to writing and “sworn to by the complainant.” Defendants indicate that this should be done by the police officers submitting the case to the district attorney. However, no statutory authority supports the position that the complaint referenced in Article 2.04 must be the same document as the affidavit referenced in Article 21.02. Typically, they are, and typically the affidavit referenced in Article 21.02 is in the form of the complaint, but this is not statutorily mandated. “Accordingly, we hold that article 21.22 imposes no requirement that the person signing the affidavit referenced in that article be the person who first reported the alleged offense to the district attorney.”

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

Voice for the Defense Volume 50, No. 4 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

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

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

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

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

Sincerely,
Kyle Therrian

United States Supreme Court

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

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

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

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

Texas Court of Criminal Appeals

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

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

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

Concurrence and Dissent (Yeary, J.).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dissent (Hervey, J.).

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

Dissent (Keel, J.).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Another Comment. What is happening to stare decisis?

1st District Houston

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

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

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

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

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

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

2nd District Fort Worth

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

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

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

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

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

3rd District Austin

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

4th District San Antonio

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

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

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

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

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

5th District Dallas

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

6th District Texarkana

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

7th District Amarillo

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

8th District El Paso

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

9th District Beaumont

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

10th District Waco

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

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

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

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

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

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

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

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

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

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

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

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

11th District Eastland

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

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

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

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

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

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

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

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

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

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

12th District Tyler

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

13th District Corpus Christi/Edinburg

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

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

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

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

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

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

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

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

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

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

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

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

14th District Houston

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Voice for the Defense Volume 50, No. 3 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

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

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

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

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

Sincerely,
Kyle Therrian

United States Supreme Court

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

Fifth Circuit

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

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

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

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

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

Texas Court of Criminal Appeals

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1st District Houston

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

2nd District Fort Worth

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

3rd District Austin

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

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

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

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

[Rucker]: I am myself, Your Honor?

* * *

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

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

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

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

4th District San Antonio

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

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

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

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

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

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

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

5th District Dallas

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

6th District Texarkana

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

7th District Amarillo

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

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

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

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

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

8th District El Paso

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

9th District Beaumont

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

10th District Waco

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

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

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

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

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

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

11th District Eastland

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

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

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

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

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

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

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

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

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

12th District Tyler

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

13th District Corpus Christi/ Edinburg

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

14th District Houston

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Voice for the Defense Volume 50, No. 2 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

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

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

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

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

United States Supreme Court

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

Fifth Circuit

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Texas Court of Criminal Appeals

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

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

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

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

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

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

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

1st District Houston

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

2nd District Fort Worth

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

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

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

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

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

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

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

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

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

3rd District Austin

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

4th District San Antonio

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

5th District Dallas

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

6th District Texarkana

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

7th District Amarillo

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

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

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

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

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

8th District El Paso

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

9th District Beaumont

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

10th District Waco

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

11th District Eastland

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

12th District Tyler

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

13th District Corpus Christi/Edinburg

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

14th District Houston

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Voice for the Defense Volume 50, No. 1 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

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

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

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

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

United States Supreme Court

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

Fifth Circuit

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

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

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

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

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

Texas Court of Criminal Appeals

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1st District Houston

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2nd District Fort Worth

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

3rd District Austin

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

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

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

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

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

4th District San Antonio

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

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

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

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

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

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

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

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

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

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

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

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

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

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

5th District Dallas

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

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

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

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

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

6th District Texarkana

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

7th District Amarillo

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

8th District El Paso

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

9th District Beaumont

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

10th District Waco

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

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

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

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

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

11th District Eastland

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

12th District Tyler

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

13th District Corpus Christi/Edinburg

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

14th District Houston

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

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

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

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

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

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

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

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

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

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

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

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

(b) In this section:

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

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

(B) a communication made to a pager.

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

Dissent (Zimmerer, J.). no opinion.

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

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

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

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

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

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

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

Voice for the Defense Volume 49, No. 10 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

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

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

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

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

United States Supreme Court

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

Fifth Circuit

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

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

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

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

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

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

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

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

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

Texas Court of Criminal Appeals

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1st District Houston

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2nd District Fort Worth

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

3rd District Austin

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

4th District San Antonio

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

5th District Dallas

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

6th District Texarkana

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

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

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

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

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

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

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

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

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

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

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

7th District Amarillo

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

8th District El Paso

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

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

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

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

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

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

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

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

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

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

9th District Beaumont

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

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

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

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

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

10th District Waco

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

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

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

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

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

11th District Eastland

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

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

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

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

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

12th District Tyler

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

13th District Corpus Christi/Edinburg

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

14th District Houston

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Voice for the Defense Volume 49, No. 9 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

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

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

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

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

United States Supreme Court

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

Fifth Circuit

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Texas Court of Criminal Appeals

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1st District Houston

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

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

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

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

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

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

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

Issue. Does the Texas Constitution prohibit plea bargaining?

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

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

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

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

2nd District Fort Worth

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

3rd District Austin

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

4th District San Antonio

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

5th District Dallas

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

6th District Texarkana

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

7th District Amarillo

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

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

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

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

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

8th District El Paso

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

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

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

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

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

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

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

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

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

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

9th District Beaumont

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

10th District Waco

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

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

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

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

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

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

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

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

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

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

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

11th District Eastland

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

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

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

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

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

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

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

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

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

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

12th District Tyler

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

13th District Corpus Christi/Edinburg

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

14th District Houston

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Voice for the Defense Volume 49, No. 8 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

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

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

Supreme Court of the United States

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

Fifth Circuit

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

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

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

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

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

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

1st District Houston

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

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

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

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

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

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

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

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

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

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

3rd District Austin

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

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

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

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

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

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

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

4th District San Antonio

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

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

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

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

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

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

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

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

5th District Dallas

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

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

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

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

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

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

6th District Texarkana

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

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

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

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

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

7th District Amarillo

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

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

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

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

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

8th District El Paso

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

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

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

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

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

10th District Waco

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

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

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

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

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

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

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

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

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

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

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

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

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

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

11th District Eastland

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

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

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

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

14th District Houston

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

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

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

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

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

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

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

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

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

Holding. Yes, rulings must be written if requested.

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

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

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

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

Concurring (Zimmerer, J.). Writes separately to stress the harmful nature of the error.

Dissenting (Wise, J.). Writes in dissent and would find error but no harm.

Comment. A long line of cases hold that reading and not supplying testimony strikes a balance between judicial comment on evidence and the jury’s need to resolve conflict. Judicial comments on the weight of the evidence are more harmful than those which merely affect a defendant’s substantial rights; they rise to the level of fundamental error, reviewable even without objection. Instead of providing the jury a single oral readback, it provided them with an exhibit available to be passed among the jury and to be read, considered, and scrutinized without restraint.

Fury v. State, No. 14-18-00935-CR (Tex. App.—Houston [14th Dist.], Aug. 25, 2020)

Issue. Was it improper for the trial court to permit mid-trial abandonment of language from an assault on public servant indictment which incorrectly described the reason a police officer was escorting a defendant through the jail when the assault occurred?

Facts. The indictment described a police officer as transporting the defendant-inmate in the jail “to be magistrate[d].” The testimony showed that the alleged assault occurred after the defendant had been magistrated. During a break in the State’s case-in-chief, the State moved to abandon the surplus language from the indictment: “to be magistrate[d].” The defendant objected and argued on appeal that the alteration constituted an amendment and not a mere abandonment.

Holding. While Article 28.10 of the Code of Criminal Procedure prohibits the State from amending an indictment during trial over the objection of the Defendant, an abandonment of surplusage is not an amendment. In some circumstances extra language which describes a necessary person, place or thing, with particularity is substantive and may not be abandoned, but here the reason why the officer was escorting the defendant was irrelevant.

Comment. Is it? The indictment after alteration described the officer’s performance of a duty as “escorting the defendant at the La Marque Jail.” Defendant testified at trial that jailers were physically assaulting him for attempting to raise alarm with the magistrate over jail conditions, the defense theory follows that not all “escorting” constitutes performance of an official duty.

September 2020 SDR – Voice for the Defense Vol. 49, No. 7

Voice for the Defense Volume 49, No. 7 Edition

Editor: Michael Mowla

From Editor Michael Mowla:

Please do not rely solely on the summaries set forth below. The reader is advised to read the full text of each opinion in addition to the brief synopses provided.

TCDLA thanks the Court of Criminal Appeals for graciously administering a grant which underwrites the majority of the costs of our Significant Decisions Report. We appreciate the Court’s continued support of our efforts to keep lawyers informed of significant appellate court decisions from Texas, the United States Court of Appeals for the Fifth Circuit, and the Supreme Court of the United States. However, the decision as to which cases are reported lies exclusively with our Significant Decisions editor. Likewise, any and all editorial comments are a reflection of the editor’s view of the case, and his alone.

Supreme Court of the United States

Editor’s note: the SCOTUS did not hand down any published criminal cases since the last SDR. 

United States Court  of Appeals for the Fifth Circuit

United States v. Alvear959 F.3d 185 (5th Cir. May 13, 2020) [Good cause to not allow confrontation during a revocation hearing; sufficient indicium of reliability of a declarant’s out-of-court statements]

  • Under Morrissey v. Brewer, 408 U.S. 471, 488-489 (1972), minimum requirements of due process in parole revocation hearings include the right to confront adverse witnesses unless the judge finds  good cause for not allowing confrontation. To determine whether error occurred, the factors are: (1) was the defendant’s right to confront witnesses implicated-was hearsay admitted; and (2) did the government show good cause to overcome the right to confront the hearsay declarant-the court must weigh the defendant’s interest in confrontation against the government’s reasons for pretermitting the confrontation. The Government may prevail when the hearsay testimony has strong indicia of reliability. A defendant’s interest in cross-examination during a supervised release revocation hearing is lessened when he had ample opportunity to refute the Government’s evidence via methods other than cross-examination or if he does not propose an alternative theory of events. 
  • Fear is a valid reason for an alleged domestic violence victim not to testify at a revocation hearing. 
  • A declarant’s out-of-court statements have a sufficient indicium of reliability if corroborated by physical evidence, when made under oath and penalty of perjury such as through a police report, and with no evidence of an ulterior motives.

Facts:

  • Alvear was convicted of drug crimes and was on supervised release.
  • Per the probation officer, Alvear violated the terms by: (1) choking his wife Alvarez, (2) failing to file a truthful and complete written report with his officer by falsely claiming he lived with his mom, and (3) failing to inform his officer that he moved in with Alvarez.
  • The probation officer alleged that Dallas officers responded to a call from Alvarez, who told them that Alvear had choked her the night before. An arrest warrant issued for Alvear for Assault of a family/household member by impeding breath/circulation, an F-3. Alvarez obtained a temporary protective order against Alvear, yet Alvear followed her home from her job for a few weeks, and repeatedly called and texted her.
  • At the revocation hearing, the court heard testimony from the probation officer and a police officer, which included out-of-court statements by Alvarez. Alvear objected, arguing that he had a right to cross-examine Alvarez. The government presented evidence that Alvarez had reached out to the probation officer multiple times with fears for her safety. The court overruled Alvear’s objection, finding good cause to not allow the cross-examination.
  • The court found that Alvear committed the supervised release violations by a preponderance of the evidence and sentenced him to 27 additional months in BOP.

The Government showed good cause to not allow the cross-examination

  • Because Alvear timely objected, review of the district court’s finding of good cause is de novo. 
  • Under Morrissey v. Brewer, 408 U.S. 471, 488-489 (1972), minimum requirements of due process in parole revocation hearings include the right to confront adverse witnesses unless the judge finds  good cause for not allowing confrontation. To determine whether error occurred, the factors are: (1) was the defendant’s right to confront witnesses implicated – was hearsay admitted; and (2) did the government show good cause to overcome the right to confront the hearsay declarant – the court must weigh the defendant’s interest in confrontation against the government’s reasons for pretermitting the confrontation. The Government may prevail when the hearsay testimony has strong indicia of reliability. A defendant’s interest in cross-examination during a supervised release revocation haring is lessened when he had ample opportunity to refute the Government’s evidence via methods other than cross-examination or if he does not propose an alternative theory of events. 
  • Still, the government concedes that Alvear’s right to cross-examine was implicated.
  • Fear is a valid reason for an alleged domestic violence victim not to testify at a revocation hearing. 
  • A declarant’s out-of-court statements have a sufficient indicium of reliability if corroborated by physical evidence, when made under oath and penalty of perjury such as through a police report, and with no evidence of an ulterior motives.
  • No one testified that they saw Alvarez’s injuries, but her statements were corroborated by physical manifestations of trauma because the police officer saw her the day after the alleged altercation and testified to Alvarez’s mannerisms , nervousness, and crying. Alvear told the probation officer that he physically injured Alvarez-from “passionate touching” rather than alleged choking. Alvear points to no evidence suggesting that Alvarez was motivated to lie. Alvarez’s statements had sufficient indicia of reliability.
  • There was good cause to forgo cross-examination of Alvarez, and the judgment is affirmed.

Editor’s noteno cross-examination of the complaining witness allowed.  How innovative. 

United States v. Aparicio-Leon, No. 19-50813, 2020 U.S.App.LEXIS 20413 (5th Cir. June 29, 2020) (designated for publication) [Calculation of base offense level per U.S.S.G. § 2D1.1(a)(5) & (c); meth versus ice; computation of a sentence per 18 U.S.C. § 3585 is BOP’s responsibility]

  • Under U.S.S.G. § 2D1.1(a)(5) & (c), a defendant convicted under 21 U.S.C. § 841(a) is sentenced based on the Drug Quantity Table in U.S.S.G. § 2D1.1(c).  For meth, the base offense level is determined by weight and purity.  “Ice” is a mixture or substance containing d-meth hydrochloride of at least 80% purity and is a purer, more potent form of meth. The choice of which multiplier to use is not determined by the indictment. With a mixture or substance containing meth, the offense level used is determined by the weight of the mixture or substance or by the weight of the meth (actual), whichever is greater.
  • Under United States v. Wilson, 503 U.S. 329, 335 (1992), After a district court sentences an offender, the AG-through BOP-must administer the sentence. Under 18 U.S.C. § 3585, The computation of a  sentence requires the BOP to determine its commencement date and the extent to which the defendant receives credit for time spent in custody prior to commencement. A federal sentence commences when the defendant is received in custody awaiting transportation to-or arrives voluntarily to commence service of sentence at-the official detention facility at which the sentence is to be served. In calculating a term of imprisonment, a defendant must be given credit for time he spent in official detention prior to commencement. Because the district court cannot determine the credit at sentencing, the AG must make the determination as an administrative matter. The BOP-not a court-is empowered to calculate 18 U.S.C. § 3585(b) credits after commencement.

Facts:

  • Aparicio was arrested on December 13, 2018 and indicted in McLennan Co. for Possession of a Controlled Substance (meth) and Evading Arrest. Out of the same incident, he was indicted in federal court under 21 U.S.C. § 841(a) for Possession of a Controlled Substance with intent to distribute at least 500 grams of a mixture or substance containing a detectable amount of meth.
  • A writ of habeas corpus ad prosequendum issued, ordering the McLennan Co. Sheriff to transfer Aparicio to the U.S. Marshal.
  • On August 28, 2019, Aparicio was sentenced to 165 months in federal court. Defense counsel requested that the federal sentence run concurrent with any state sentence to be imposed, which was granted per U.S.S.G. § 5G1.3(c). No other objections were made.
  • Aparicio was returned to Texas custody but has not been sentenced on those charges.

The district court did not error in the calculation of the base offense level

  • Because Aparicio did not raise these issues in the district court, review is for plain error.

Editor’s note: This is the full relevant law on plain error:

  • To preserve error, a party must raise an objection that is sufficiently specific to: (1) alert the court to the nature of the error and; (2) provide an opportunity for correction. A party is not required to object in ultra-precise terms but must provide the court an opportunity to adjudicate the issue and cure any alleged breach.
  • When the defendant does not object to error, plain error review applies. Under Fed. Rule Crim. Proc. 52(b),Molina-Martinez v. United States, 136 S.Ct. 1338 (2016) and United States v. Olano, 507 U.S. 725 (1993), a reviewing court may consider errors that are plain and affect substantial rights even though they are raised for the first time on appeal. The defendant must show that the error: (1) was not intentionally relinquished or abandoned; (2) is plain (clear or obvious); (3) affected substantial rights (must show a reasonable probability that but-for the error, the outcome of the proceeding would have been different); and (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.
  • Under Rosales-Mireles v. United States, 138 S.Ct. 1897, 1907 (2018), a U.S.S.G.-error that satisfies the first three Olanofactors satisfies the fourth and warrants relief because the plain error establishes a reasonable probability that a defendant will serve a sentence that is more than necessary to fulfill the purposes of incarceration. Additional factors favoring correction are: (1) resentencing is easy; and (2) U.S.S.G.-miscalculations result from judicial error rather than a defendant’s strategy. Where the record is silent as to what the district court might have done had it considered the correct U.S.S.G.-range, the district court’s reliance on an incorrect range in most instances will suffice to show an effect on the defendant’s substantial rights.
  • Aparicio argues that the district court erred by relying on U.S.S.G. § 2D1.1-characterizing the meth as ice-to calculate the base offense level of 34, and if the calculation were based on the meth mixture, his offense level would have been 30.
  • Under U.S.S.G. § 2D1.1(a)(5) & (c), a defendant convicted under 21 U.S.C. § 841(a) is sentenced based on the Drug Quantity Table in U.S.S.G. § 2D1.1(c).  For meth, the base offense level is determined by weight and purity.  “Ice” is a mixture or substance containing d-meth hydrochloride of at least 80% purity and is a purer, more potent form of meth. The choice of which multiplier to use is not determined by the indictment. With a mixture or substance containing meth, the offense level used is determined by the weight of the mixture or substance or by the weight of the meth (actual), whichever is greater.
  • The Table lists meth, meth (actual), and ice. At least 500 grams but less than 1.5 kg of ice equals a base offense level of 34.  The meth seized was d-meth hydrochloride with a net weight of 989 grams and a purity of 97%, so it was appropriately classified as ice.  The district court did not err-plainly or otherwise-in applying the undisputed pure meth weight to the Drug Quantity Table to determine Aparicio’s base offense level.
  • The district court did not err by failing to adjust his sentence to account for time he spent in custody prior to sentencing that he claims will not be credited to his federal sentence by BOP
  • Under United States v. Wilson, 503 U.S. 329, 335 (1992), After a district court sentences an offender, the AG-through BOP-must administer the sentence. Under 18 U.S.C. § 3585, The computation of a  sentence requires the BOP to determine its commencement date and the extent to which the defendant receives credit for time spent in custody prior to commencement. A federal sentence commences when the defendant is received in custody awaiting transportation to-or arrives voluntarily to commence service of sentence at-the official detention facility at which the sentence is to be served. In calculating a term of imprisonment, a defendant must be given credit for time he spent in official detention prior to commencement. Because the district court cannot determine the credit at sentencing, the AG must make the determination as an administrative matter. The BOP-not a court-is empowered to calculate 18 U.S.C. § 3585(b) credits after commencement.
  • Aparicio has not shown a clear or obvious error. Despite the colloquy about potential credit for time served, neither the oral pronouncement nor written judgment impermissibly attempted to award Aparicio credit for time served or to determine the commencement date.  At most, the record suggests that the court imposed a nonbinding recommendation to BOP to account for time. 
  • Aparicio’s sentence is AFFIRMED.

United States v. Burden, No. 19-30394, 2020 U.S.App.LEXIS 20802 (5th Cir. July 2, 2020) (designated for publication) [Severance under Fed. Rule Crim. Proc. 14; “knowingly” mens rea in 18 U.S.C. § 924(a)(2)]

  • The denial of severance under Fed. Rule Crim. Proc. 14 is reviewed for an abuse of discretion. The appellant must show that the: (1) joint trial prejudiced him to such an extent that the district court could not provide adequate protection; and (2) prejudice outweighed the government’s interest in economy of judicial administration.
  • Under Richardson v. Marsh, 481 U.S. 200, 206 (1987) and Bruton v. United States, 391 U.S. 123, 135-136 (1968), the Sixth Amendment’s Confrontation Clause requires that a witness whose testimony is introduced at a joint trial is not considered a “witness” against the defendant if the jury is instructed to consider that testimony only against a codefendant. An exception is that when the facially incriminating confession of a nontestifying codefendant is introduced, it is not enough for the jury to be instructed to consider the confession only against the codefendant. Otherwise, even if prejudice is shown, Fed. Rule Crim. Proc. 14 leaves the tailoring of the relief to be granted to the district court’s discretion. Per Zafiro v. United States, 506 U.S. 534, 538-539 (1993), a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial will compromise a specific trial right of a defendant or prevent the jury from making a reliable judgment about guilt or innocence. When the risk of prejudice is high, a district court may determine that separate trials are necessary, but less drastic measures like limiting instructions often suffice to cure risk of prejudice. Juries are presumed to follow instructions.
  • Under Rehaif v. United States, 139 S.Ct. 2191 (2019), the “knowingly” mens rea in 18 U.S.C. § 924(a)(2) applies to the conduct and status elements in § 922(g). The Government must show that the defendant knew he possessed a firearm and knew he had the status of felon when he possessed it.

Facts:

  • Officer Barcelona was approaching an intersection when he saw two black males in white t-shirts and blue jean shorts exit an SUV and begin shooting into a Mercedes. When the driver of the SUV saw Barcelona, he fled, leaving the shooters running after it. The occupants of the Mercedes were uninjured.
  • Barcelona saw that one of the shooters was armed with an AK-47 rifle and all had masks covering their faces. They then ran into a residential block, around which Barcelona and other officers secured a perimeter while awaiting a canine unit.
  • An officer at the perimeter spotted two black males, fully clothed, come out from behind a residence and run back in. Less than a minute later, two black men came back out naked and were sweating profusely. With hands raised, the men shouted, “we just got robbed.” The officers took them into custody and placed them in the back of a police car.
  • Inside the perimeter and assisted by a dog tracker, officers recovered plastic masks, a Smith & Wesson 9mm pistol, a Century Arms 7.62x39mm rifle (“AK-47”), two cellphones, a pair of blue jean shorts, a pair of white Nike shoes.
  • Upon returning to the perimeter, Barcelona went to the police car where he saw Burden wearing only black or dark-colored underwear and socks, and Scott was wearing only blue jean-style shorts. Based on their physical appearance, Barcelona believed they were the ones shooting, though he had not seen their faces uncovered.
  • DNA and forensic examination linked Burden to one of the weapons and Scott to both phones and a mask. The 19 rounds discharged came from the firearms.
  • Burden and Scott were charged in an indictment alleging that under 18 U.S.C. § 922(g)(1), they were felons in possession of firearms. The indictment did not allege that they knew of their felon status at the time of possession though both stipulated at trial that they were felons when arrested.
  • Days after arrest, Burden admitted to the Louisiana Parole Board that he violated conditions parole by possessing a firearm. Scott filed a severance motion, which was denied. The court instructed the jury that it was not to consider Burden’s admission as evidence against Scott. Burden’s statement did not mention Scott.
  • At trial, evidence was presented establishing that the defendants had claimed that they had been robbed of their clothing. The jury failed to reach a verdict.
  • Before the second trial, the district court ordered that the parties obtain approval before mentioning or eliciting testimony regarding the supposed robbery. No party objected or sought such approval. The second jury heard nothing about it.
  • The jury instructions provided that the government must prove that the defendant knew that he possessed a firearm, but not that he knew that he was a qualifying felon.
  • The second jury found both guilty.
  • The PSRs recommended finding that the defendants used and possessed the firearms in an attempted first-degree murder.
  • Neither defendant objected to the PSRs, whose findings the district court adopted.

The district court did not abuse its discretion by denying the motion to sever

  • The denial of severance is reviewed for an abuse of discretion. The appellant must show that the: (1) joint trial prejudiced him to such an extent that the district court could not provide adequate protection; and (2) prejudice outweighed the government’s interest in economy of judicial administration.
  • Under Richardson v. Marsh, 481 U.S. 200, 206 (1987) and Bruton v. United States, 391 U.S. 123, 135-136 (1968), the Sixth Amendment’s Confrontation Clause requires that a witness whose testimony is introduced at a joint trial is not considered a “witness” against the defendant if the jury is instructed to consider that testimony only against a codefendant. An exception is that when the facially incriminating confession of a nontestifying codefendant is introduced, it is not enough for the jury to be instructed to consider the confession only against the codefendant. Otherwise, even if prejudice is shown, Fed. Rule Crim. Proc. 14 leaves the tailoring of the relief to be granted to the district court’s discretion. Per Zafiro v. United States, 506 U.S. 534, 538-539 (1993), a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial will compromise a specific trial right of a defendant or prevent the jury from making a reliable judgment about guilt or innocence. When the risk of prejudice is high, a district court may determine that separate trials are necessary, but less drastic measures like limiting instructions often suffice to cure risk of prejudice. Juries are presumed to follow instructions.
  • The Confrontation Clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction when the confession is redacted to eliminate the defendant’s name and reference to his existence. Burden’s statement did not mention Scott, and other evidence was indeed needed to show the linkage to Scott.

There was no error relating to the defendants’ knowledge that they were felons at the time of the incident

  • Under Rehaif v. United States, 139 S.Ct. 2191 (2019), the “knowingly” mens rea in 18 U.S.C. § 924(a)(2) applies to the conduct and status elements in § 922(g). The Government must show that the defendant knew he possessed a firearm and knew he had the status of felon when he possessed it.
  • Burden’s arrest occurred days after he was released on parole for robbery. Scott had been paroled from a suspended prison sentence for burglary months earlier. Both stipulated at trial that they were felons. The notion that either was unaware that he had been convicted of a felony or that the government would have been unable to prove it, is unrealistic.
  • The judgments and sentences are AFFIRMED. 

United States v. Gratkowski, No. 19-50492, 2020 U.S.App.LEXIS 20501 (5th Cir. June 30, 2020) (designated for publication) [no expectation of privacy in Bitcoin blockchain records]

  • There is no expectation of privacy in Bitcoin blockchain records.
  • Under Smith v. Maryland, 442 U.S. 735, 743-744 (1979), for the Government to violate the Fourth Amendment, a person must have had a reasonable expectation of privacy in the items at issue. But per the third-party doctrine, a person generally has no legitimate expectation of privacy in information he voluntarily turns over to third parties.  Thus, the third-party doctrine applies to call logs because individuals have no expectation of privacy and voluntarily convey numbers to the phone company by placing a call.

Facts:

  • The FBI began investigating Gratkowski because of a child-porn website (“Website”). To download material, some like Gratkowski paid in Bitcoin, a virtual currency in which each user has at least one “address”-sort of like a bank account number-that is a string of letters and numbers. Users send Bitcoin to other users through addresses using a private key function that authorizes payments. Users download Bitcoin’s software or use a virtual currency exchange like Coinbase. When a user transfers Bitcoin to another address, he transmits a transaction announcement on Bitcoin’s public network-a blockchain. The blockchain contains only the addresses and amount of Bitcoin transferred. The owners of the addresses are anonymous on the blockchain, they can be uncovered by analyzing the blockchain. When an organization creates multiple Bitcoin addresses, it often combines them into a central address-a “cluster.” It is possible to identify a cluster of addresses held by one organization by analyzing the blockchain’s transaction history using open source tools and private software products.
  • Agents used an outside service to analyze the publicly viewable blockchain and identify a cluster of addresses controlled by the Website. Agents served a grand jury subpoena on Coinbase for information on the Coinbase customers whose accounts had sent Bitcoin to addresses in the Website’s cluster. Coinbase identified Gratkowski as a customer. Agents obtained a search warrant for Gratkowski’s house and found a hard drive containing child porn, and Gratkowski admitted to being a Website customer.
  • The Government charged Gratkowski with one count of receiving child porn and one count of accessing websites with intent to view child porn.
  • Gratkowski filed a MTS the warrant, arguing that the subpoena to Coinbase violated the Fourth Amendment. The district court denied the motion. Gratkowski entered a conditional guilty plea to both counts, reserving the right to appeal the denial of the MTS.

There is no expectation of privacy in Bitcoin blockchain records

  • A district court’s ruling on a MTS is reviewed de novo for questions of law and clear error for factual findings. A denial of a MTS is upheld if there is any reasonable view of the evidence to support it. The evidence is reviewed in the light most favorable to the prevailing party.
  • Under Smith v. Maryland, 442 U.S. 735, 743-744 (1979), for the Government to violate the Fourth Amendment, a person must have had a reasonable expectation of privacy in the items at issue. But per the third-party doctrine, a person generally has no legitimate expectation of privacy in information he voluntarily turns over to third parties.  Thus, the third-party doctrine applies to call logs because individuals have no expectation of privacy and voluntarily convey dialed numbers to the phone company by placing a call.
  • Under United States v. Miller, 425 U.S. 435, 439-440 (1976), bank records are not subject to Fourth Amendment protections because they are not confidential communications but negotiable instruments with information voluntarily conveyed to the banks.
  • An exception to the third-party doctrine exists with cellphones per Carpenter v. United States, 138 S.Ct. 2206, 2217 (2018) because unlike call logs, which reveal little identifying information, and checks, which are not confidential communications but negotiable instruments used in commercial transactions, CSLI provides officers with an all-encompassing record of the holder’s whereabouts and provides an intimate window into a person’s life, revealing movements and through them their familial, political, professional, religious, and sexual associations. Cellphones have become almost a feature of human anatomy because they are carried all the time.
  • There is no expectation of privacy in Bitcoin blockchain records because they reveal only: (1) the amount of Bitcoin transferred, (2) the Bitcoin address of the sending party, and (3) the Bitcoin address of the receiving party. The information is limited. Transacting through Bitcoin is not a pervasive or insistent part of daily life and requires an affirmative act by the Bitcoin address holder.  Bitcoin users are unlikely to expect that information published on the Bitcoin blockchain will be kept private. It is well known that Bitcoin transactions are recorded in a publicly available blockchain that is accessible to every Bitcoin user.
  • The district court’s denial of the MTS is affirmed.

United States v. Reyes960 F.3d 697 (5th Cir. June 5, 2020) [Reasonable suspicion to prolong a traffic stop to call a K9 unit; Miranda applies only to a formal arrest]

  • Under Rodriguez v. United States, 575 U.S. 348, 354 (2015), after lawfully stopping a driver for a traffic violation, an officer’s actions must be reasonably related in scope to the circumstances that justified the stop of the vehicle. The stop may last no longer than necessary to address the violation. Constitutional authority for the seizure ends when tasks tied to the traffic infraction are-or reasonably should have been-completed. Tasks include checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting registration and proof of insurance. Officers may ask questions unrelated to the stop while waiting for computer checks to process but must diligently pursue the investigation of the traffic violation. Investigation unrelated to the safe operation of the vehicle is allowed only if it does not lengthen the detention or is supported by reasonable suspicion of additional criminal activity. If the officer develops reasonable suspicion of such activity before the initial purpose of the stop is fulfilled, the detention may continue until the new reasonable suspicion has been dispelled or confirmed.
  • Under Kansas v. Glover, 140 S.Ct. 1183, 1187 (2020) and Terry v. Ohio, 392 U.S. 1, 21 (1968), a mere hunch doesnot create reasonable suspicion. The officer must point to specific and articulable facts which-taken together with rational inferences from those facts-reasonably warrant the intrusion. Courts look at the totality of the circumstances to determine whether an officer had a particularized and objective basis for suspecting criminal activity. Factors that by themselves appear innocent may in the aggregate rise to reasonable suspicion. Relevant are events leading up to the search and the decision of whether these events-viewed from the standpoint of an objectively reasonable police officer-amount to reasonable suspicion.
  • Under Berkemer v. McCarty, 468 U.S. 420, 440 (1984), a person detained in a routine traffic stop is not “in custody” for Miranda, which applies only once a suspect’s freedom of action is curtailed to a degree associated with formal arrest. 

Facts:

  • Officer Windham stopped Reyes, informed her she was speeding, and requested her driver’s license and registration. Reyes said that she was trying to get her kids to school. There were no passengers in her truck, which had a temporary Oklahoma tag. Reyes said the kids were in Abilene, 15 miles ahead.
  • Windham asked Reyes to accompany him to his patrol car while he looked her up. Reyes refused. Windham explained that he completes traffic stops in his patrol car for safety-to avoid being hit by vehicles and because he doesn’t know what may be inside the driver’s vehicle. And, it was very cold.
  • Reyes asked, “What about the truck”? Windham answered that it could stay parked where it was. As Reyes sat down in the passenger seat of the patrol car, she locked her truck. Windham-who had never seen anyone lock her vehicle during a traffic stop-suspected that Reyes was trying to hide something illegal.
  • Windham asked Reyes where she was heading, and she said “this address” as she scrolled through her phone to find it. Windham asked, “I thought you said you were taking the kids to school.” Reyes responded, “ Not my kids. My kids are in Grand Prairie. I’m helping a friend take her kids to school. She doesn’t have a car.” Reyes said that she started her trip in Grand Prairie, and Windham asked, “What time did you leave?” Reyes replied, “About three hours ago or so.” Because Reyes purported to travel three hours to take kids to school, Windham could tell something was “not right.”
  • Windham asked who owned the truck, and Reyes replied that it was her ex-husband’s. Based on his training, education, and experience, Windham knew that narcotics couriers often use vehicles registered to others to avoid forfeiture.
  • Windham asked Reyes if she had ever been arrested. She stated for DWI. Windham asked whether there was anything illegal in the truck. Reyes’s facial expressions changed dramatically, and her eyes shifted from Windham to the front windshield as she shook her head and said, “No. There shouldn’t be. It’s brand new.”
  • Windham asked, “you drove all the way from Prairie to take these kids to school for this lady?” Reyes replied that she previously had a relationship with the woman in prison and the woman’s husband was going to be at work. Windham told Reyes that she wasn’t going to make it in time to take the kids to school. Reyes changed her story again, claiming that she was going to Abilene just to see her.
  • Reyes refused to give consent to search the truck because it was not hers. Windham explained that she could grant consent because she had control of it. Reyes refused.
  • At that point-8:30 into the stop-Windham informed Reyes that he was going to call a K9 unit to perform a free-air sniff. If the dog detected, he would have probable cause to search inside. Windham asked Reyes whether she had weapons. She had only a wallet and pack of cigarettes in her pockets. She asked if she could smoke, and Windham agreed. Reyes said she didn’t have a lighter on her. He asked if she had one in the truck, and Reyes said she did not know. Windham found it odd that Reyes declined to retrieve her lighter because a smoker never turn down his offer to smoke.
  • Reyes admitted that in addition to the DWI, she had been arrested for warrants related to tickets, and for a pill found in her ex-girlfriend’s vehicle, a story that evolved into an arrest for meth.
  • Within minutes, a canine unit arrived and conducted the sniff. The dog alerted to a controlled substance. Windham searched and found 127.5 grams of meth and a loaded handgun.
  • A grand jury indicted Reyes. She filed a MTS, arguing that Windham did not have reasonable suspicion to extend the stop for the canine sniff, and that she was entitled to Miranda warnings when Windham directed her into his patrol car. The district court denied the MTS, finding that Windham had a reasonable suspicion to extend the traffic stop until a K-9 unit arrived, and that Reyes was not in custody for Miranda purposes.
  • Reyes pleaded guilty to Conspiracy to Distribute and Possess with Intent to Distribute 50 grams or more of meth in per 21 U.S.C. § 846 but reserved her right to appeal the denial of the MTS.

The officer had reasonable suspicion to extend the stop

  • A district court’s ruling on a MTS is reviewed de novo for questions of law and clear error for factual findings. A denial of a MTS is upheld if there is any reasonable view of the evidence to support it. The evidence is reviewed in the light most favorable to the prevailing party.
  • Under Rodriguez v. United States, 575 U.S. 348, 354 (2015), after lawfully stopping a driver for a traffic violation, an officer’s actions must be reasonably related in scope to the circumstances that justified the stop of the vehicle. The stop may last no longer than necessary to address the violation. Constitutional authority for the seizure ends when tasks tied to the traffic infraction are-or reasonably should have been-completed. Tasks include checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting registration and proof of insurance. Officers may ask questions unrelated to the stop while waiting for computer checks to process but must diligently pursue the investigation of the traffic violation. Investigation unrelated to the safe operation of the vehicle is allowed only if it does not lengthen the detention or is supported by reasonable suspicion of additional criminal activity. If the officer develops reasonable suspicion of such activity before the initial purpose of the stop is fulfilled, the detention may continue until the new reasonable suspicion has been dispelled or confirmed.
  • Under Kansas v. Glover, 140 S.Ct. 1183, 1187 (2020) and Terry v. Ohio, 392 U.S. 1, 21 (1968), a mere hunch does notcreate reasonable suspicion. The officer must point to specific and articulable facts which-taken together with rational inferences from those facts-reasonably warrant the intrusion. Courts look at the totality of the circumstances to determine whether an officer had a particularized and objective basis for suspecting criminal activity. Factors that by themselves appear innocent may in the aggregate rise to reasonable suspicion. Relevant are events leading up to the search and the decision of whether these events-viewed from the standpoint of an objectively reasonable police officer-amount to reasonable suspicion.
  • These specific and articulable facts support Windham’s suspicion: Reyes drove a truck registered in someone else’s name, with a temporary plate for a different state, and in Windham’s experience, couriers often drive vehicles registered to other people to avoid forfeiture; Reyes took unusual measures to protect the truck by first refusing to exit it and locking it even though an officer was immediately behind it; Reyes offered inconsistent and implausible stories about her travel; Reyes had a conviction for possession of meth; when Windham asked Reyes whether there was anything illegal in the truck-a “yes or no” question-her facial expressions changed dramatically and she said, “There shouldn’t be. It’s brand new.”; Windham drew on his training, education, and experience in narcotics interdiction to surmise his suspicion that Reyes was participating in a crime. These articulable facts combine to establish reasonable suspicion.

Reyes was not entitled to Miranda warnings

  • Under Berkemer v. McCarty, 468 U.S. 420, 440 (1984), a person detained in a routine traffic stop is not “in custody” for Miranda, which applies only once a suspect’s freedom of action is curtailed to a degree associated with formal arrest.
  • Because the traffic stop did not have the quality of a formal arrest, Miranda does not apply.
  • The conviction and sentence are affirmed.

Texas Court of  Criminal Appeals

Editor’s note: the TCCA did not hand down any published opinions since the last SDR.

Texas Courts of Appeals

State v. Colby, No. 03-19-00710-CR, 2020 Tex.App.-LEXIS 4890 (Tex.App.-Austin June 25, 2020) (DWI) [Warrantless traffic stops; stopping in an intersection under Tex. Transp. Code § 545.302]

  • Under State v. Cortez, 543 S.W.3d 198, 204 (Tex.Crim.App. 2018) and Abney v. State, 394 S.W.3d 542, 548 (Tex.Crim.App. 2013), when an officer stops a defendant without a warrant, the State has the burden of proving the reasonableness of the stop at a suppression hearing. An officer may make a warrantless traffic stop if the reasonable suspicion standard is satisfied. Reasonable suspicion exists if the officer has specific articulable facts that-when combined with rational inferences from those facts-would lead him to reasonably suspect that a person has engaged, is engaged, or soon will be engaging in criminal activity.
  • Under Tex. Transp. Code § 545.302(a)(3), an operator of a motor vehicle commits an offense if he stops in an intersection. But under Tex. Transp. Code § 545.302(f), drivers may stop in an intersection under certain circumstances, including when necessary to avoid conflict with other traffic. 

Facts:

  • The evidence at the MTS hearing showed that Officer Garza was on night patrol driving east on Blue Clearing Way towards the intersection with Highlands Boulevard, which had a stop sign. Highlands Boulevard is a four-lane road, with two northbound and two southbound lanes. Blue Clearing Way is a two-lane road, one eastbound and one westbound.
  • Garza did not come to a complete stop untilhe was beyond the stop sign and in the intersection because he claimed he wanted to get a better view of cross-traffic, which was obscured by foliage.
  • Garza observed a vehicle approaching the intersection from Highlands Boulevard, which did not have a stop sign. The vehicle came to a complete stop in the intersection and flashed his brights to signal to Garza that he can go ahead. When Garza did not, the driver proceeded through the intersection north on Highlands.
  • Garza turned onto Highlands Boulevard and initiated a traffic-stop. The basis was Tex. Transp. Code § 545.302(a)(3), which prohibits a driver from stopping in an intersection.
  • The trial court granted the MTS, concluding that Colby’s actions were reasonable under the circumstances since Colby attempted to yield to a marked police vehicle. 

The trial court did not abuse its discretion in granting the MTS

Editor’s note: this is the relevant law on the standard of review for a MTS:

  • Under State v. Cortez, 543 S.W.3d 198, 203 (Tex.Crim.App. 2018), review of a trial court’s ruling on a MTS is for an abuse of discretion. The record is viewed in the light most favorable to the trial court’s ruling and the judgment is reversed only if it is outside the zone of reasonable disagreement.
  • Under Crain v. State, 315 S.W.3d 43, 48 (Tex.Crim.App. 2010), Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000) and Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997), a ruling on a MTS is reviewed under a bifurcated standard of review: almost total deference to the trial court’s determination of historical facts that turn on credibility and demeanor, de novo on other application-of-law-to-fact issues, nearly total deference to application-of-law-to-fact questions (mixed questions of law and fact) if their resolution turns on an evaluation of credibility and demeanor, and de novo on mixed questions of law and fact if their resolution does not turn on an evaluation of credibility and demeanor. Under Osbourn v. State, 92 S.W.3d 531, 538 (Tex.Crim.App. 2002) and State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App. 2008), the trial court’s decision must be affirmed if it is correct on any theory of law that finds support in the record. 
  • Under State v. Cortez, 543 S.W.3d 198, 204 (Tex.Crim.App. 2018) and Abney v. State, 394 S.W.3d 542, 548 (Tex.Crim.App. 2013), when an officer stops a defendant without a warrant, the State has the burden of proving the reasonableness of the stop at a suppression hearing. An officer may make a warrantless traffic stop if the reasonable suspicion standard is satisfied. Reasonable suspicion exists if the officer has specific articulable facts that-when combined with rational inferences from those facts-would lead him to reasonably suspect that a person has engaged, is engaged, or soon will be engaging in criminal activity.
  • Under Tex. Transp. Code § 545.302(a)(3), an operator of a motor vehicle commits an offense if he stops in an intersection. But under Tex. Transp. Code § 545.302(f), drivers may stop in an intersection under certain circumstances, including when necessary to avoid conflict with other traffic. 
  • Colby’s action was reasonable under the circumstances because Garza’s patrol car was stopped in the intersection and Colby was attempting to yield to Garza’s marked police vehicle. The totality of the circumstances and the record supports the trial court’s finding that Colby’s stopping inside the intersection was an attempt to yield to Garza’s patrol vehicle, which Garza should have realized was permitted under the Transportation Code to avoid “conflict with other traffic.”
  • The trial court did not abuse its discretion in granting the MTS, and the State’s sole issue is overruled.

State v. Dean, No. 14-19-00306-CR to 14-19-00313-CR,  2020 Tex.App.-LEXIS 4195 (Tex.App.-Houston [14th Dist.] May 28, 2020) (designated for publication)  [State’s right to appeal under Tex. Code Crim. Proc. Art. 44.01(a)(1)]

  • Under Tex. Code Crim. Proc. Art. 44.01(a)(1) and State v. Rosseau, 396 S.W.3d 550, 555 (Tex.Crim.App. 2013), the State may appeal an order of a court if it dismisses an indictment, information, or complaint or any portion of an indictment, information, or complaint.
  • A trial court does not dismiss an indictment, information, or complaint or any portion of an indictment, information, or complaint if it grants a motion concluding that juvenile court abused its discretion by transferring the case to the district court.

Facts:

  • Dean was charged in juvenile court with Aggravated Robbery and Assault of a Public Servant. The State filed a petition for discretionary transfer to a district court per Tex. Fam. Code § 54.02, alleging probable cause that Dean committed the offenses and asked the juvenile court to waive its jurisdiction.
  • After a hearing, the juvenile court waived its exclusive jurisdiction and transferred Dean to the district court. Dean waived his right to immediately appeal the waiver of jurisdiction and discretionary transfer. Dean was indicted in district court for Aggravated Robbery and Assault of a Public Servant.
  • On March 11, 2019, Dean filed a Motion in Bar of Prosecution for Lack of Jurisdiction, arguing: the juvenile court’s stated reasons for waiver were supported by insufficient evidence so it abused its discretion by waiving jurisdiction; the State failed to prove that it was not practicable to prosecute Dean as a juvenile; the juvenile court abused its discretion by certifying Dean as an adult because of the lack of evidence underlying the decision, including the State’s failure to provide the juvenile court with all of Dean’s school records; the expert’s conclusions did not support the decision with respect to Dean’s lack of maturity given the failure to consider all education records; and Dean’s right to trial by jury was violated by the transfer contrary to Apprendi v. New Jersey, 530 U.S. 466 (2000) since the exposure to adult punishment greatly exceeds the maximum punishment as a juvenile.
  • The district court granted the motion in its entirety.
  • The State filed notices of appeal.

The court of appeals lacks jurisdiction over the appeal

  • Under Tex. Code Crim. Proc. Art. 44.01(a)(1) and State v. Rosseau, 396 S.W.3d 550, 555 (Tex.Crim.App. 2013), the State may appeal an order of a court if it dismisses an indictment, information, or complaint or any portion of an indictment, information, or complaint.
  • A trial court does not dismiss an indictment, information, or complaint or any portion of an indictment, information, or complaint if it grants a motion concluding that juvenile court abused its discretion by transferring the case to the district court.
  • The district court did not dismiss the indictments against Dean when it granted the Motion in Bar of Prosecution. It merely decided that the juvenile court abused its discretion by transferring the case to the district court. The State’s appeal is not permitted under Art. 44.01(a)(1). The appeal is dismissed for lack of jurisdiction.

Harvey v. State, No. 01-19-00032-CR, 2020 Tex.App.-LEXIS 4565 (Tex.App.-Houston [1st Dist.] June 18, 2020) (designated for publication) (Assault and Aggravated Sexual Assault) [Requirement of plea of “not guilty” or “guilty”; plea of guilty in open court per Tex. Code Crim. Proc. Arts. 27.13 & 27.17; presumption of regularity and truthfulness of final judgments per Tex. Rule App. Proc. 44.2(c)]

  • Under Lumsden v. State, 384 S.W.2d 143, 144 (Tex.Crim.App. 1964), a plea must be entered in every criminal case. If no plea is entered, the trial is a nullity because there is no issue for the jury or court. Under Tex. Code Crim. Proc. Arts. 27.13 & 27.17, a plea of guilty or nolo contendere in a felony case must be made in open court by the defendant in person. If the defendant refuses to plead, the plea of not guilty shall be entered for him by the court. A plea of not guilty is construed to be a denial of every material allegation in the indictment or information.
  • Under Breazeale v. State, 683 S.W.2d 446, 450-451 (Tex.Crim.App. 1984), recitals in a judgment create a presumption of regularity and truthfulness that are binding unless there is direct proof of falsity. The accused bears the burden of proving that the recital is false.
  • Under Tex. Rule App. Proc. 44.2(c), unless a matter was disputed in the trial court or the record affirmatively shows the contrary, the court of appeals presumes that the defendant pleaded to the charging instrument. 

Facts:

  • Harvey was indicted for 3 counts of felony Assault by strangulation and 1 count of Aggravated Sexual Assault against C.D. (ex-girlfriend). Harvey sent letters to the trial court indicating that he was willing to admit he assaulted C.D. but denied committing Aggravated Sexual Assault.
  • Harvey signed a waiver of arraignment. Harvey sent two mor letters to the trial court stating that he admitted to assaulting C.D. but denied sexually assaulting her.
  • At the plea hearing, Harvey pleaded guilty to the Assault in exchange for 8 years in TDCJ and not guilty to the Aggravated Sexual Assault. Harvey signed a waiver of jury trial for the Aggravated Sexual Assault and was admonished by the trial court. The record is silent as to whether Harvey entered a plea to the Aggravated Sexual Assault.
  • After the TBC on the Aggravated Sexual Assault, the trial court found Harvey guilty and sentenced him to 15 years in TDCJ to run concurrent with the sentence for the Assault. The judgment of conviction shows that Harvey pleaded “not guilty.”

Harvey failed to overcome the presumption of regularity and truthfulness in the judgment

  • Under Lumsden v. State, 384 S.W.2d 143, 144 (Tex.Crim.App. 1964), a plea must be entered in every criminal case. Ifno plea is entered, the trial is a nullity because there is no issue for the jury or court. Under Tex. Code Crim. Proc. Arts. 27.13 & 27.17, a plea of guilty or nolo contendere in a felony case must be made in open court by the defendant in person. If the defendant refuses to plead, the plea of not guilty shall be entered for him by the court. A plea of not guilty is construed to be a denial of every material allegation in the indictment or information.
  • Under Breazeale v. State, 683 S.W.2d 446, 450-451 (Tex.Crim.App. 1984), recitals in a judgment create a presumption of regularity and truthfulness that are binding unless there is direct proof of falsity. The accused bears the burden of proving that the recital is false.
  • Under Tex. Rule App. Proc. 44.2(c), unless a matter was disputed in the trial court or the record affirmatively shows the contrary, the court of appeals presumes that the defendant pleaded to the charging instrument.
  • The record shows that Harvey did not intend to plead guilty to Aggravated Sexual Assault and wished to have a TBC. The court must presume that the trial court’s written recital in the judgment that Harvey pleaded “not guilty” to aggravated sexual assault is truthful.  The record supports the presumption of regularity and truthfulness, and Harvey failed to carry his burden of proving that the trial court’s recital in the judgment was false.
  • The judgment of conviction is affirmed.

State v. Heredia, No. 03-19-00633-CR, 2020 Tex.App.-LEXIS 4177 (Tex.App.-Austin May 28, 2020) (designated for publication) (Pretrial Habeas Corpus, State’s appeal) [State’s preservation of a portion of a charging instrument; when jeopardy attaches; judicial estoppel]

  • Under Ex parte Preston, 833 S.W.2d 515, 518 (Tex.Crim.App. 1992), to preserve a portion of a charging instrument for a later trial, before jeopardy attaches the State must: (1) take affirmative action, (2) on the record, (3) to dismiss, waive or abandon that portion of the instrument, and (4) obtain permission from the trial court.
  • Under Crist v. Bretz, 437 U.S. 28, 38 (1978) and Hill v. State, 90 S.W.3d 308, 313 (Tex.Crim.App. 2002), in a jury trial, jeopardy attaches when the jury is impaneled. After jeopardy attaches, any charge that is dismissed, waived, abandoned-or which the jury returns an acquittal-may not be retried.
  • Under Johnson v. State, 436 S.W.2d 906, 908 (Tex.Crim.App. 1968), the State may-with the court’s consent-dismiss, waive, or abandon a portion of the indictment. If the dismissal, waiver, or abandonment occurs after jeopardy attaches, the State is barred from later litigating the allegations.
  • Under New Hampshire v. Maine, 532 U.S. 742, 749-750 (2001) and Schmidt v. State, 278 S.W.3d 353, 358 & n.9 (Tex.Crim.App. 2009), judicial estoppel is an equitable doctrine invoked by a court at its discretion to prevent a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase. Courts consider three factors when deciding whether to invoke judicial estoppel: (1) a party’s later position is clearly inconsistent with its earlier position; (2) whether the party succeeded in persuading a court to accept the earlier position, so judicial acceptance of an inconsistent position in a later proceeding creates the perception that either the first or the second court was misled. Absent success in a prior proceeding, a party’s later inconsistent position introduces no risk of inconsistent court determinations and poses little threat to judicial integrity; and (3) whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not Judicial estoppel is not intended to punish inadvertent omissions or inconsistencies but to prevent parties from playing fast and loose with the system for their benefit.

Facts:

  • Heredia was indicated for Murder (Count I), Tampering with a Corpse (Count II), and Tampering with Physical Evidence (Counts III- VIII). The State proceeded to trial only on the Murder. The jury acquitted Heredia and convicted him of the lesser-included offense of Manslaughter and assessed punishment at 20 years in TDCJ.
  • The State then sought to try Heredia for the Tampering. Heredia filed an application for writ of habeas corpus, asserting that the prosecution is barred by Double Jeopardy because to prosecute the Tampering charges, the State had to have abandoned or dismissed them prior to jeopardy attaching in the Murder trial.
  • At the hearing, the ADA admitted that it “held” the other cases for a later trial and defense counsel had not agreed to the severance but argued that all counts be tried together. The district court granted the application.

The district court did not err in granting Heredia’s application for writ of habeas corpus

  • Under Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex.Crim.App. 2006), a ruling on a habeas-corpus application is reviewed for an abuse of discretion. The evidence is considered in the light most favorable to the ruling with deference to the trial court’s resolution of factual disputes. When the facts are undisputed and the resolution of the ultimate question turns on an application of legal standards, review is de novo. 
  • Under Ex parte Preston, 833 S.W.2d 515, 518 (Tex.Crim.App. 1992), to preserve a portion of a charging instrument for a later trial, before jeopardy attaches the State must: (1) take affirmative action, (2) on the record, (3) to dismiss, waive or abandon that portion of the instrument, and (4) obtain permission from the trial court.
  • Under Crist v. Bretz, 437 U.S. 28, 38 (1978) and Hill v. State, 90 S.W.3d 308, 313 (Tex.Crim.App. 2002), in a jury trial, jeopardy attaches when the jury is impaneled. After jeopardy attaches, any charge that is dismissed, waived, abandoned-or which the jury returns an acquittal-may not be retried.
  • Under Johnson v. State, 436 S.W.2d 906, 908 (Tex.Crim.App. 1968), the State may-with the court’s consent-dismiss, waive, or abandon a portion of the indictment. If the dismissal, waiver, or abandonment occurs after jeopardy attaches, the State is barred from later litigating the allegations.
  • Here, nothing in the trial or habeas records show that the State took any affirmative action “on the record” to preserve the Tampering charges for a later prosecution. The discussion of the charges and the trial court’s informal grant of permission for the State to proceed only on the Murder charge took place off the record, in chambers, without the defendant present.
  • The district court did not err in granting Heredia’s application for writ of habeas corpus.

Judicial estoppel does not apply

  • Under New Hampshire v. Maine, 532 U.S. 742, 749-750 (2001) and Schmidt v. State, 278 S.W.3d 353, 358 & n.9 (Tex.Crim.App. 2009), judicial estoppel is an equitable doctrine invoked by a court at its discretion to prevent a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase. Courts consider three factors when deciding whether to invoke judicial estoppel: (1) a party’s later position is clearly inconsistent with its earlier position; (2) whether the party succeeded in persuading a court to accept the earlier position, so judicial acceptance of an inconsistent position in a later proceeding creates the perception that either the first or the second court was misled. Absent success in a prior proceeding, a party’s later inconsistent position introduces no risk of inconsistent court determinations and poses little threat to judicial integrity; and (3) whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not Judicial estoppel is not intended to punish inadvertent omissions or inconsistencies but to prevent parties from playing fast and loose with the system for their benefit.
  • During the Murder trial, the State presented extraneous-offense evidence related to the Tampering charges to prove Heredia’s state of mind during the alleged murder. Defense counsel responded by eliciting testimony and arguing that Heredia could be prosecuted for Tampering at a later trial, telling the jury that Tampering is not the case before it.
  • Defense counsel’s jury arguments cannot be said to have been successful or gave him an “unfair advantage” over the State. Nothing in the record suggests that the jury’s decision was influenced by arguments regarding the Tampering charges.

State v. Hunter, No. 03-18-00424-CR, 2020 Tex.App.-LEXIS 4420 (Tex.App.-Austin May 29, 2020) (designated for publication)  (Solicitation to Commit Capital Murder) [Death of an unborn child under Tex. Penal Code § 19.06 is not an offense; motion to quash indictment, statutory construction]

  • Under Tex. Penal Code § 19.06, and Lawrence v. State, 240 S.W.3d 912, 915 (Tex.Crim.App. 2007), Chapter 19 (homicide offenses) does not apply to the death of an unborn child if the conduct charged is: (1) conduct committed by the mother of the unborn child; (2) a lawful medical procedure performed by a licensed health care provider with consent, if the death was the intended result (abortion); (3) a lawful medical procedure performed by a licensed health care provider with consent as part of an assisted reproduction per Tex. Fam. Code § 160.102; or (4) the legal dispensation or administration of a drug.
  • The mother of an unborn child cannot commit homicide by ending the child’s life based on acts described in Tex. Penal Code § 19.06. Because such conduct is not a crime, another person cannot solicit the mother to commit conduct toward the unborn child that is capital murder. 
  • Under State v. Ross, 573 S.W.3d 817, 820 (Tex.Crim.App. 2019), the sufficiency of a charging instrument is a question of law that is reviewed de novo. The trial court’s ruling is upheld if correct under any theory of law applicable to the case. 
  • Under Lang v. State, 561 S.W.3d 174, 179-180 (Tex.Crim.App. 2018) and Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991), statutes are construed by looking to their literal text and attempting to discern its fair, objective meaning when enacted because this is the only definitive evidence of what the legislators intended. If the meaning of the statutory text-when read using established canons of construction-should have been plain to the legislators, a court gives effect to the plain meaning. A court presumes that every word is used for a purpose and that each word, phrase, clause, and sentence is given effect if reasonably possible. Words and phrases are read in context and construed using rules of grammar and common usage. If a statute’s language is ambiguous or application of the plain meaning would lead to an absurd result that the Legislature could not possibly have intended, only then may a court consider extratextual factors like executive or administrative interpretations or legislative history.  Statutory construction is a question of law reviewed de novo. 
  • Under Bien v. State, 550 S.W.3d 180, 186 (Tex.Crim.App. 2018), Criminal Solicitation of Capital Murder requires proof that-under the circumstances as the defendant believed them to be-the conduct solicited is Capital Murder.

Facts:

  • Hunter was indicted for Criminal Solicitation to commit Capital Murder per Tex. Penal Code § 15.03(a): with intent that a capital felony be committed (murder of the unborn child of [E.E.]), (Hunter) did request, command or attempt to induce [E.E.] to engage in conduct to cause the death by sending these texts to E.E.:
  • “I don’t have a kid motherfucker you have a kid try and give birth to it see what happens, so I will see you soon motherfucker…when you turn around one night when its really dark I’m going to be right there…Well [E.E.] like I said to you on the phone I’m going to enjoy doing it to you and you have no idea what I am. Anyway I sent your mother news of you and your text talking about the baby so she knows you’re pregnant have a nice evening bitch. And you and your family are not raising this kid guaranteed…if you had any clue does monsters under your fucking bed would look like fucking daisies if you knew what I’m capable of. [E.E.] you and never give birth I promise you”;
  • “I’ll cut that fucking baby i love you I’ll put in a fucking blender important your fucking throat if you fucking lied to me again you fucking piece of shit; Hey I told you not having that kid and I meant it bitch. You are not allowed to have my child it’s not going to happen get used to that fact now. I will go to the ends of this fucking earth to make sure you don’t”;
  • “I want to make this loud and clear your life is going to be miserable I do not want you raising that kid with his fucking nose turned up the way yours is it’s not going to happen in the only way that would be assure if you didn’t have that kid…Its my baby as well and yes you are going to kill it I promise you you won’t make it through a full term”;
  • “quit trying to buy time [E.E.]…And time is running out a lot quicker than you think it is…come one [E.E.] it’s just a little maggot inside of you. I know you are a sloth also but get up. While you’re sleeping I’ll be busy…You can go get it done or I will have you do it yourself you pick…Since you have chosen not to take me seriously the price for that will be paid shortly and this will be just a taste of what is to come”;
  • “It’s just a matter of a little pill right now not too much longer it’s a matter of putting a shop vac up your cunt and sucking the body parts out…Time is of the essence love; I assure you your family will not be raising our child…your own hand [E.E.] your own hand think about it…There’s not going to be a child [E.E.]…Cuz I’m going to spend a lot of time in jail for what I’m going to do; Oh you motherfuckers think you going to play me I will put every one of your fucking throats. You’re going to get it now bitch you’re dead…affecting what I’m not going to let you have the kid…It takes one half second to slash a throat didn’t f-k with me.”
  • Hunter filed a motion to quash, arguing that it does not appear from the indictment that an offense was committed, and no legislative intent or legal precedent exists for the State to interpret his words as criminal solicitation of capital murder. 
  • The district court granted the motion to quash, finding that the indictment does not allege an offense.

The district court did not err by granting the motion to quash

  • Under State v. Ross, 573 S.W.3d 817, 820 (Tex.Crim.App. 2019), the sufficiency of a charging instrument is a question of law that is reviewed de novo. The trial court’s ruling is upheld if correct under any theory of law applicable to the case. 
  • Under Lang v. State, 561 S.W.3d 174, 179-180 (Tex.Crim.App. 2018) and Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991), statutes are construed by looking to their literal text and attempting to discern its fair, objective meaning when enacted because this is the only definitive evidence of what the legislators intended. If the meaning of the statutory text-when read using established canons of construction-should have been plain to the legislators, a court gives effect to the plain meaning. A court presumes that every word is used for a purpose and that each word, phrase, clause, and sentence is given effect if reasonably possible. Words and phrases are read in context and construed using rules of grammar and common usage. If a statute’s language is ambiguous or application of the plain meaning would lead to an absurd result that the Legislature could not possibly have intended, only then may a court consider extratextual factors like executive or administrative interpretations or legislative history.  Statutory construction is a question of law reviewed de novo. 
  • Under Diruzzo v. State, 581 S.W.3d 788, 798 (Tex.Crim.App. 2019), a motion to quash tests the facial validity of the indictment as a matter of law. 
  • Under Tex. Code Crim. Proc. Art. 1.14(b), an exception to an indictment that fails to charge an offense must be raised pretrial.  Under Tex. Code Crim. Proc. Art. 27.08(1), a court may quash an indictment if it does not appear that it charges an offense. A defendant may seek construction of the statute under which the prosecution is brought. 
  • Under Penal Code § § 19.02(b)(1), Capital Murder is committed if a person intentionally or knowingly causes the death of an individual under 10 years of age. Under Tex. Penal Code § 15.03, Criminal Solicitation is committed if, with intent that a capital felony or felony of the first degree be committed, a person requests, commands, or attempts to induce another to engage in specific conduct that, under the circumstances surrounding his conduct as the actor believes them to be, constitutes the felony or make the other a party to its commission.
  • Under Bien v. State, 550 S.W.3d 180, 186 (Tex.Crim.App. 2018), Criminal Solicitation of Capital Murder requires proof that-under the circumstances as the defendant believed them to be-the conduct solicited is Capital Murder.
  • Under Tex. Penal Code § 19.06, and Lawrence v. State, 240 S.W.3d 912, 915 (Tex.Crim.App. 2007), Chapter 19 (homicide offenses) does not apply to the death of an unborn child if the conduct charged is: (1) conduct committed by the mother of the unborn child; (2) a lawful medical procedure performed by a licensed health care provider with consent, if the death was the intended result (abortion); (3) a lawful medical procedure performed by a licensed health care provider with consent as part of an assisted reproduction per Tex. Fam. Code § 160.102; or (4) the legal dispensation or administration of a drug.
  • The mother of an unborn child cannot commit homicide by ending the child’s life based on acts described in Tex. Penal Code § 19.06. Because such conduct is not a crime, another person cannot solicit the mother to commit conduct toward the unborn child that is capital murder. 
  • Under the plain language of § 19.06(1), if an unborn child’s death is charged to conduct committed by the unborn child’s mother, the mother’s conduct does is not a criminal offense under Chapter 19. And one cannot criminally solicit an act that is not an offense.
  • The district court’s order quashing the indictment is affirmed.

Johnson v. State, No. 14-18-00361-CR,  2020 Tex.App.-LEXIS 4189 (Tex.App.-Houston [14th Dist.] May 28, 2020) (designated for publication)  (Possession of Marijuana) [Police/citizen interactions]

  • Under Wade v. State, 422 S.W.3d 661, 667 (Tex.Crim.App. 2013), there are three types of police/citizen interactions: (1) consensual encounters that do not implicate the Fourth Amendment; (2) investigative detentions that are Fourth Amendment seizures of limited scope and duration that must be supported by a reasonable suspicion of criminal activity; and (3) arrests, which are reasonable only if supported by probable cause. Police officers are as free as any other citizen to approach citizens to ask for information or cooperation.  No bright-line rule governs when a consensual encounter becomes a detention.  Courts must consider the totality of the circumstances to decide whether a reasonable person would have felt free to ignore the officer’s request or terminate the consensual encounter.  Courts presume that a reasonable person has considerable fortitude. If ignoring the request or terminating the encounter is an option, no Fourth Amendment seizure has occurred. But if an officer-through force or a show of authority-sufficiently conveys the message that the citizen is not free to leave or to ignore the officer’s request, the encounter is not consensual.
  • Under State v. Garcia-Cantu, 253 S.W.3d 236, 243 (Tex.Crim.App. 2008), the mere approach and questioning of citizens seated in parked cars is not a seizure. Nor is it a seizure when the officer utilizes some generally accepted means of gaining the attention of the occupant or encouraging him to eliminate barriers to conversation. The officer may tap on the window or open the door if the occupant is asleep. A request that the suspect open the door or roll down the window is permissible, but not an order. The encounter becomes a seizure if the officer orders the suspect to “freeze” or exit the vehicle. Boxing the vehicle in, approaching it on all sides by many officers, pointing a gun at the suspect and giving orders, or using flashing lights as a show of authority are likely Fourth Amendment seizures. A restraint on liberty prompting a reasonable person to conclude that he is not free to leave or to ignore the officer’s request will vary with the police conduct at issue but the setting in which the conduct occurs.  The officer’s conduct is the primary focus, but time, place, and attendant circumstances matter. A court must step into the shoes of the defendant and determine from a common, objective perspective whether he would have felt free to leave or to ignore the officer’s request. 
  • Under McKenna v. State, 780 S.W.2d 797, 799-800 (Tex.Crim.App. 1989), appellate courts are not to speculate as to an appellant’s reasons for entering a guilty plea or as to whether the appellant would have done so if the MTS had been granted. As long as the evidence that should have been suppressed would in any measure inculpate the defendant, appellate courts must presume that the trial court’s denial of a MTS influenced the decision to plead guilty and is reversible error. 

Facts:

  • Johnson was charged with Possession of Marijuana 2 ounces or less, a Class B misdemeanor. 
  • At the MTS hearing, Officer Cox testified he was on patrol around midnight when he noticed a “suspicious vehicle” in a parking lot. Cox shined his spotlight twice across the vehicle, saw movement inside, and could tell two people occupied it. The vehicle had no lights on. Cox stopped his patrol car about 10-15 feet of the vehicle and activated his overhead lights. He approached the driver’s side. When the window came down, Cox detected the odor of marijuana and noticed that Johnson’s shorts were unbuttoned and unzipped.
  • The State offered the video from Cox’s patrol car, but Johnson objected to relevance, which was sustained. No other exhibit was admitted into evidence, so Cox’s testimony was the only evidence before the trial court for the MTS.
  • The trial court denied Johnson’s MTS with these FFCL: Cox was on routine patrol around midnight. As part of his routine patrol, he regularly checks the parking lot and spotlights vehicles parked overnight to deter drug activity and burglaries. That lot is a high crime area for burglaries of motor vehicles, drug crimes, and public lewdness. Cox had made several arrests in the months prior to this offense for such offenses in that lot. Cox spotted Johnson’s vehicle parked and observed movement inside. Cox did not block the vehicle from leaving. Cox observed the defendant’s pants were undone and detected the smell of marijuana. Officers do not need reasonable suspicion to initiate a consensual encounter. Cox’s initial encounter with Johnson was a proper consensual encounter that later evolved into an investigative detention. The fact that Cox activated his overhead lights alone did not elevate the consensual encounter into an investigative detention. If the initial encounter was a detention, it was supported by reasonable suspicion of criminal activity to detain Johnson based on specific, articulable facts of presence in the lot and a high crime area. 
  • Johnson pleaded guilty and was sentenced to three days in jail.

A Fourth Amendment seizure had occurred before the car window was lowered, so the denial of the MTS was error

  • Under Wade v. State, 422 S.W.3d 661, 667 (Tex.Crim.App. 2013), there are three types of police/citizen interactions: (1) consensual encounters that do not implicate the Fourth Amendment; (2) investigative detentions that are Fourth Amendment seizures of limited scope and duration that must be supported by a reasonable suspicion of criminal activity; and (3) arrests, which are reasonable only if supported by probable cause. Police officers are as free as any other citizen to approach citizens to ask for information or cooperation.  No bright-line rule governs when a consensual encounter becomes a detention.  Courts must consider the totality of the circumstances to decide whether a reasonable person would have felt free to ignore the officer’s request or terminate the consensual encounter.  Courts presume that a reasonable person has considerable fortitude. If ignoring the request or terminating the encounter is an option, noFourth Amendment seizure has occurred. But if an officer-through force or a show of authority-sufficiently conveys the message that the citizen is not free to leave or to ignore the officer’s request, the encounter is not consensual.
  • The question of whether the facts show that a consensual encounter evolved into a detention is a legal issue reviewed de novo.
  • Under State v. Garcia-Cantu, 253 S.W.3d 236, 243 (Tex.Crim.App. 2008), the mere approach and questioning of citizens seated in parked cars is not a seizure. Nor is it a seizure when the officer utilizes some generally accepted means of gaining the attention of the occupant or encouraging him to eliminate barriers to conversation. The officer may tap on the window or open the door if the occupant is asleep. A request that the suspect open the door or roll down the window is permissible, but not an order. The encounter becomes a seizure if the officer orders the suspect to “freeze” or exit the vehicle. Boxing the vehicle in, approaching it on all sides by many officers, pointing a gun at the suspect and giving orders, or using flashing lights as a show of authority are likely Fourth Amendment seizures. A restraint on liberty prompting a reasonable person to conclude that he is not free to leave or to ignore the officer’s request will vary with the police conduct at issue but the setting in which the conduct occurs.  The officer’s conduct is the primary focus, but time, place, and attendant circumstances matter. A court must step into the shoes of the defendant and determine from a common, objective perspective whether he would have felt free to leave or to ignore the officer’s request. 
  • Officer Cox-through a show of authority-sufficiently conveyed the message that Johnson was not free to leave or to ignore a request to lower the car window. 
  • The error violated Johnson’s federal constitutional rights. 
  • Under McKenna v. State, 780 S.W.2d 797, 799-800 (Tex.Crim.App. 1989), appellate courts are not to speculate as to an appellant’s reasons for entering a guilty plea or as to whether the appellant would have done so if the MTS had been granted. As long as the evidence that should have been suppressed would in any measure inculpate the defendant, appellate courts must presume that the trial court’s denial of a MTS influenced the decision to plead guilty and is reversible error. 
  • Because the evidence seized-marijuana-was inculpatory, the court presumes the trial court’s erroneous denial of the MTS influenced Johnson’s decision to plead guilty. 
  • The error is reversible. The trial court’s judgment is reversed, and the case is remanded for further proceedings.

Johnson v. State, No. 01-18-00897-CR, 2020 Tex.App.-LEXIS 4102 (Tex.App.-Houston [1st Dist.] May 28, 2020) (designated for publication)  (Theft $2,500-$30,000) [IAC; admission of business records under Tex. Rule Evid. 803(6)]

  • Under Strickland v. Washington, 466 U.S. 668, 694 (1984) and Rylander v. State, 101 S.W.3d 107, 110-111 (Tex.Crim.App. 2003), to establish ineffective assistance of counsel under the Sixth Amendment, a defendant must show that: (1) counsel’s performance was deficient (errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment); and (2) the deficient performance prejudiced his defense (a reasonable probability that but-for counsel’s unprofessional errors, the result of the proceeding would have been different). Deficient performance requires a showing that counsel’s performance fell below an objective standard of reasonableness. A reviewing court must presume that trial counsel acted within the proper range of reasonable and professional assistance and that his decisions at trial were based on sound trial strategy. Allegations of ineffectiveness must be firmly founded in the record. A court will not speculate as to the basis for counsel’s actions, so a record that is silent on the reasoning behind those actions is sufficient to deny relief. Absent evidence in the record, a reviewing court will not conclude that the challenged conduct is deficient unless it was so outrageous that no competent attorney would have engaged in it. The defendant must establish ineffective assistance by a preponderance of the evidence. Almost total deference is given to factual findings supported by record especially if based upon credibility and demeanor. A verdict or conclusion weakly supported by the record is more likely to have been affected by errors than one with overwhelming record-support.
  • Under Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex.Crim.App. 1982) and Ex parte Welch, 981 S.W.2d 183, 185 (Tex.Crim.App. 1998), defense counsel must have a firm command of facts and law before he can render reasonably effective counsel. A misunderstanding of the applicable law or facts is never a legitimate trial strategy. 
  • Under Tex. Rule Evid. 803(6), records kept in the course of regularly conducted activities are admissible. The proponent must prove that the records were made at or near the time of the events from information transmitted by a person with knowledge of the events and kept during a regularly conducted business activity. The predicate for admission may be established through testimony of the custodian of records, another qualified witness, or by an affidavit that complies with Tex. Rule Evid. 902(10), which provides a cost-effective method of authenticating business records by an affidavit that substantially conforms to the model in Rule 902(10) rather than by live testimony. The predicate witness does not have to be the record’s creator or have personal knowledge of the contents. The witness must only have personal knowledge of how the records were prepared. 

Facts:

  • Veronica and her husband Jorge Gonzalez arrived at a tire store in Gonzalez’s brown Chevrolet truck, which had tinted windows.
  • Upon arrival, Gonzalez parked in the back of the store’s lot and exited. Veronica remained inside the truck in the front passenger seat with the engine running. Veronica saw Johnson riding toward the truck on a bike. Johnson opened the unlocked door and entered. He had a screwdriver in his hand. Johnson did not hit or stab Veronica with the screwdriver or point it at her. Veronica first saw the screwdriver in his hand when his hand was on the gearshift.
  • Johnson put the truck into gear. Veronica felt scared and feared for her life. She opened her door and hung onto it while Johnson accelerated the truck backward and forward. Veronica landed on her feet and was not in the truck when Gonzalez appeared and threw a wrench at the truck, which broke its windshield. Gonzalez called 9-1-1. Johnson drove away. The truck was returned later that day.
  • Johnson was homeless. While driving his 1997 Dodge, he ran out of gas on a bridge late. Johnson locked his truck with his keys in the ignition. Officers arrived and a tow truck towed it. The officers took Johnson to a hospital for a psychological evaluation. He was discharged hours later. He remained on the property and was arrested for trespassing. Following release from jail, Johnson began hitchhiking to look for his truck. Johnson saw Gonzalez’s truck. Although it was not the same color and had tinted windows, because it was similar in brand and body style, Johnson’s “mind told [him]” that it was his. Johnson believed it had been stolen and someone altered its appearance. Johnson did not see anyone inside the truck because of the tinted windows. Johnson was going to open the truck using a multipurpose tool but entered without using the tool since it was unlocked. Upon entering, he saw a woman inside, which surprised him. The keys were in the ignition and the engine was running. Johnson held the tool in his hand while shifting gears, but he did not point it at the woman or threaten her. When the woman opened her door, Johnson hit the brake so that she could get out because he did not want her hurt. Johnson saw three men approaching the truck quickly, so he put it in drive. Someone threw something long and solid at the windshield.
  • Throughout trial, defense counsel argued that Johnson lacked the intent to commit theft because he believed that the truck was his. 
  • Johnson’s stepfather testified that shortly before the incident, Johnson was outside his home pulling grass and rubbing it on himself. When Johnson was called out, he “looked like he was not there” and did not answer; he just stared. Later, Johnson walked across a ditch in mud and water, went on railroad tracks, laid down on the tracks, and started throwing rocks. Other testimony about bizarre behavior by Johnson was presented.
  • During trial, trial counsel sought to have Johnson’s medical records admitted into evidence, which provided evidence of his schizophrenia, but did not have either the custodian of records or another qualified witness to testify that the records were made at or near the time of the events.

Johnson received ineffective assistance of counsel

  • Under Strickland v. Washington, 466 U.S. 668, 694 (1984) and Rylander v. State, 101 S.W.3d 107, 110-111 (Tex.Crim.App. 2003), to establish ineffective assistance of counsel under the Sixth Amendment, a defendant must show that: (1) counsel’s performance was deficient (errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment); and (2) the deficient performance prejudiced his defense (a reasonable probability that but-for counsel’s unprofessional errors, the result of the proceeding would have been different). Deficient performance requires a showing that counsel’s performance fell below an objective standard of reasonableness. A reviewing court must presume that trial counsel acted within the proper range of reasonable and professional assistance and that his decisions at trial were based on sound trial strategy. Allegations of ineffectiveness must be firmly founded in the record. A court will not speculate as to the basis for counsel’s actions, so a record that is silent on the reasoning behind those actions is sufficient to deny relief. Absent evidence in the record, a reviewing court will not conclude that the challenged conduct is deficient unless it was so outrageous that no competent attorney would have engaged in it. The defendant must establish ineffective assistance by a preponderance of the evidence. Almost total deference is given to factual findings supported by record especially if based upon credibility and demeanor. A verdict or conclusion weakly supported by the record is more likely to have been affected by errors than one with overwhelming record-support.
  • Under Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex.Crim.App. 1982) and Ex parte Welch, 981 S.W.2d 183, 185 (Tex.Crim.App. 1998), defense counsel must have a firm command of facts and law before he can render reasonably effective counsel. A misunderstanding of the applicable law or facts is never a legitimate trial strategy. 
  • Under Tex. Rule Evid. 803(6), records kept in the course of regularly conducted activities are admissible. The proponent must prove that the records were made at or near the time of the events from information transmitted by a person with knowledge of the events and kept during a regularly conducted business activity. The predicate for admission may be established through testimony of the custodian of records, another qualified witness, or by an affidavit that complies with Tex. Rule Evid. 902(10), which provides a cost-effective method of authenticating business records by an affidavit that substantially conforms to the model in Rule 902(10) rather than by live testimony. The predicate witness does nothave to be the record’s creator or have personal knowledge of the contents. The witness must only have personal knowledge of how the records were prepared. 
  • Trial counsel’s misunderstanding of the predicate for the introduction of medical records was not legitimate trial strategy, particularly where the records directly related to whether Johnson formed the requisite intent to commit theft. There wasno plausible, professional reason for the failure of trial counsel to properly prepare and offer the medical records into evidence in admissible form. There is sufficient evidence in the record establishing that trial counsel’s performance fell below an objective standard of reasonableness. 
  • The medical records reveal that Johnson was diagnosed with mental health disorders, including psychotic disorder with delusions, antisocial personality disorder, schizophrenia, paranoid schizophrenia, depression, and bipolar disorder, and has been prescribed many antipsychotic and antidepressant medications over the years. He has been committed numerous times. He suffered a head injury and low range of intellectual functioning. His issues are significant, severe, and chronic. The issues cause him to be unable to stay focused or recall why he is present at certain places, and to engage in inappropriate and bizarre behavior.
  • The medical records provide context for why Johnson-as trial counsel argued-would have believed that the truck was his. Because of trial counsel’s misunderstanding of the predicate for the introduction of the records, the jury did not get a full opportunity to consider the defensive argument at trial-that appellant did not form the requisite intent to commit theft. 
  • Johnson has shown a reasonable probability-sufficient to undermine confidence in the outcome-that but-for trial counsel’s deficiency, the result of the proceeding would have been different.
  • The judgment is reversed, and the case is remanded for a new trial.

July/August 2020 SDR – Voice for the Defense Vol. 49, No. 6

Voice for the Defense Volume 49, No. 6 Edition

Editor: Michael Mowla

From Editor Michael Mowla:

Please do not rely solely on the summaries set forth below. The reader is advised to read the full text of each opinion in addition to the brief synopses provided.

TCDLA thanks the Court of Criminal Appeals for graciously administering a grant which underwrites the majority of the costs of our Significant Decisions Report. We appreciate the Court’s continued support of our efforts to keep lawyers informed of significant appellate court decisions from Texas, the United States Court of Appeals for the Fifth Circuit, and the Supreme Court of the United States. However, the decision as to which cases are reported lies exclusively with our Significant Decisions editor. Likewise, any and all editorial comments are a reflection of the editor’s view of the case, and his alone.

Supreme Court of the United States

Andrus v. Texas, No. 18-9674, 2020 U.S.LEXIS 3250 (U.S. June 15, 2020) [IAC in mitigation cases of death penalty cases]

  • Under Strickland v. Washington, 466 U.S. 668, 688, 694 (1984), to prevail on a Sixth Amendment claim of IAC, a defendant must show that trial counsel’s performance was deficient and prejudiced him. To show deficiency, a defendant must show that counsel’s representation fell below an objective standard of reasonableness. To establish prejudice, a defendant must show that there is a reasonable probability that, but-for the unprofessional errors,  the result of the proceeding would have been different.
  • Under Porter v. McCollum, 558 U.S. 30, 39 (2009), under prevailing professional norms, trial counsel must conduct a thorough investigation of the defendant’s background. Under Rompilla v. Beard, 545 U.S. 374, 385 (2005), counsel must make all reasonable efforts to learn what he can about the offenses the prosecution intends to present as aggravating evidence.
  • Under Wiggins v. Smith, 539 U.S. 510, 521 (2003), in a death-penalty case, trial counsel must make reasonable investigations or a reasonable decision that makes particular investigations unnecessary. To assess whether counsel exercised objectively reasonable judgment under prevailing professional standards, a court asks whether the investigation supporting the decision not to introduce mitigating evidence was itself reasonable. A decision not to investigate must be assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.

Facts:

  • Andrus killed Diaz and Bui during a bungled carjacking. He was indicted and convicted of capital murder.
  • At the guilt phase, trial counsel did not make an opening statement. After the State rested, trial counsel immediately rested. In his closing, trial counsel conceded Andrus’s guilt and told the jury that the trial would “boil down to the punishment phase.”
  • During the punishment phase, trial counsel did not make an opening statement. The State presented evidence that Andrus was aggressive and hostile while in juvenile; had gang tattoos; had hit, kicked, and thrown excrement at prison officials pending trial, and committed an aggravated robbery of a dry-cleaning business. Trial counsel raised no material objections to the State’s evidence and cross-examined State witnesses briefly.
  • Trial counsel called Andrus’s mother, who testified about Andrus’s basic biographical information but did not reveal difficult circumstances in Andrus’s childhood. Mom testified that Andrus had an “excellent” relationship with siblings and grandparents, didn’t have access to drugs in her home, and she would have counseled him had she learned he was using drugs.
  • Andrus’s biological father Davis testified that Andrus had lived with him for a year when he was 15 and had behaved.
  • Trial counsel then announced that he rests and did not intend to call more witnesses. After the court questioned trial counsel about this choice during a sidebar, trial counsel called Dr. John Roache as the expert witness and examined him on the general effects of drug use on developing adolescent brains. On cross, the State quizzed Roache about the relevance and purpose of his testimony, asking whether he “drove 3 hours to tell the jury that people change their behavior when they use drugs.”
  • Trial counsel called prison counselor Martins, who testified that Andrus “started having remorse” in the past 2 months and was “making progress.”
  • Andrus testified that his mother started selling drugs when he was 6 and he and his siblings were often home alone. He started using drugs regularly around 15. On cross, the State declared, “I have not heard one mitigating circumstance in your life.” 
  • The jury sentenced Andrus to death. The conviction and sentence were affirmed on appeal.
  • Andrus filed a state habeas application, alleging that trial counsel was ineffective for failing to investigate or present available mitigation evidence, including extreme neglect, violence, abuse, and deprivation during his childhood, growing up in neighborhood with frequent shootings, gang fights, and drug overdoses, and a mother who sold drugs, used drugs at home, and engaged in prostitution. Per his siblings, Andrus was a protective older brother who was caring. When he was about 10, he was diagnosed with affective psychosis. The trial court concluded that trial counsel had been ineffective for failing to investigate and present mitigating evidence regarding his abusive and neglectful childhood. The TCCA rejected the trial court’s recommendation to grant habeas relief, finding that Andrus had failed to meet his burden under Strickland.

Trial counsel provided constitutionally deficient performance under Strickland

  • Under Strickland v. Washington, 466 U.S. 668, 688, 694 (1984), to prevail on a Sixth Amendment claim of IAC, a defendant must show that trial counsel’s performance was deficient and prejudiced him. To show deficiency, a defendant must show that counsel’s representation fell below an objective standard of reasonableness. To establish prejudice, a defendant must show that there is a reasonable probability that, but-for the unprofessional errors,  the result of the proceeding would have been different.
  • Under Porter v. McCollum, 558 U.S. 30, 39 (2009), under prevailing professional norms, trial counsel must conduct a thorough investigation of the defendant’s background. Under Rompilla v. Beard, 545 U.S. 374, 385 (2005), counsel must make all reasonable efforts to learn what he can about the offenses the prosecution intends to present as aggravating evidence.
  • Under Wiggins v. Smith, 539 U.S. 510, 521 (2003), in a death-penalty case, trial counsel must make reasonable investigations or a reasonable decision that makes particular investigations unnecessary. To assess whether counsel exercised objectively reasonable judgment under prevailing professional standards, a court asks whether the investigation supporting the decision not to introduce mitigating evidence was itself reasonable. A decision not to investigate must be assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.
  • Trial counsel fell short of his obligation because he: performed almost no mitigation investigation, overlooking vast mitigating evidence, due to his failure to investigate compelling mitigating evidence, what little evidence he presented backfired by bolstering the State’s aggravation case, and failed adequately to investigate the State’s aggravating evidence, forgoing critical opportunities to rebut the case in aggravation. Although counsel nominally put on mitigation, the record is clear that counsel’s investigation to support that case was an empty exercise.
  • The State presented Andrus’s alleged commission of a robbery at a dry-cleaning business. Although Andrus told counsel he did not commit the offense and the State did not charge, counsel did not attempt to exclude or rebut the State’s evidence. At the habeas hearing, it was shown that the only evidence tying Andrus to the crime was a witness statement later recanted. This is not the work of reasonable counsel. Under Tex. Code Crim. Proc. Art. 37.071 §2(b)(1), a jury cannot recommend a death sentence without unanimously finding future dangerousness to society. Only after a jury makes a finding of future dangerousness can it consider mitigating evidence. By failing to conduct even a marginally adequate investigation, counsel seriously compromised his opportunity to respond to a case for aggravation.
  • Andrus showed deficient performance under the first prong of Strickland, and by its one-sentence denial, it is unclear whether the TCCA considered  prejudice at all. The judgment is vacated, and the case is remanded so the TCCA can address the prejudice prong of Strickland in a manner not inconsistent with this opinion.

United States Court of Appeals for the Fifth Circuit

United States v. Diggles, 957 F.3d 551 (5th Cir. April 29, 2020) (en banc) [Pronouncement of required and discretionary conditions of supervised release per 18 U.S.C. § 3583(d)]

  • The district court must orally pronounce a sentence to respect the defendant’s right to be present. If the pronouncement differs from the judgment, the pronouncement controls. This rule applies to some supervised release conditions. Under U.S.S.G. § 5D1.3(b) & (d), pronouncement is not required for “mandatory” and “standard” conditions but required for “discretionary” and “special” conditions. 
  • Under United States v. Gagnon, 470 U.S. 522, 526 (1985) (per curiam), the right to be present at trial is per the Sixth Amendment’s Confrontation Clause, while the right to be present at proceedings that lack testimony is per the Fifth Amendment’s Due Process Clause. Under Snyder v. Massachusetts, 291 U.S. 97, 107-108 (1934), the defendant’s presence is a condition of due process to the extent that a fair and just hearing is thwarted by his absence. The right turns on whether a defendant’s presence has a reasonably substantial relation to the fullness of his opportunity to defend against the charge. Sentencing is a critical stage of a case.
  • 18 U.S.C. § 3583(d) distinguishes between required and discretionary conditions. “Shall” conditions include not committing a crime or unlawfully possessing a controlled substance, cooperating in DNA-collection, and paying restitution. “May” conditions must be “reasonably related” to statutory sentencing factors. The pronouncement requirement should be tied to § 3583(d)’s line between required and discretionary conditions. If a condition is required—making an objection futile—the court need not pronounce it. If a condition is discretionary, the court must pronounce it to allow for an objection. A sentencing court pronounces supervision conditions when it orally adopts a document recommending those conditions.
  • When a defendant fails to raise a pronouncement objection in the district court, review is for plain error if the defendant had notice of the conditions and an opportunity to object.

United States v. Jordan, No. 19-40499, 2020 U.S.App.LEXIS 14044 (5th Cir. May 1, 2020) [New trial under Fed. Rule Crim. Proc. 33]

  • To be entitled to a new trial under Fed. Rule Crim. Proc. 33 based on an extrinsic influence on the jury, a defendant must show that the influence likely caused prejudice. The government bears the burden of proving the lack of prejudice by showing there is no reasonable possibility that the jury’s verdict was influenced by the extrinsic evidence. Under Patterson v. Colorado, 205 U.S. 454, 462 (1907), courts must take allegations of outside influence seriously because the legal system requires that cases are decided only by evidence and argument in open court and not by any outside influence, whether private talk or public print.
  • Under Remmer v. United States, 347 U.S. 227, 229 (1954), when faced with (1) credible allegations of prejudicial outside influence on the jury and (2) a record devoid of information on which to evaluate those allegations, a hearing in which all parties are permitted to participate is necessary.

United States v. Longoria, No. 19-20201, 2020 U.S.App.LEXIS 14307 (5th Cir. April 27, 2020) (designated for publication) [Base offense level for felon-in-possession per U.S.S.G. § 2K2.1(a)(4)(B)(i)(I); government’s filing of motion for 1-level  acceptance of responsibility per U.S.S.G. § 3E1.1(b)]

  • Under U.S.S.G. § 2K2.1(a)(4)(B)(i)(I), the base offense level for felon-in-possession is 20 if it involves a semiautomatic firearm capable of accepting a large capacity magazine, which is one that had attached to it, or was in close proximity to, a magazine or similar that could accept more than 15 rounds.
  • A sentencing judge may properly find sufficient reliability on a PSR based on the results of a police investigation.
  • Under U.S.S.G. § 3E1.1(b), a defendant is eligible for one extra level for acceptance of responsibility if his offense level is at least 16 and the government files a motion stating that the defendant assisted in the investigation or prosecution of his misconduct by timely giving notice of intent to enter a plea of guilty, permitting the government to avoid preparing for trial and the government and the court to allocate their resources efficiently.
  • The government may withhold filing a motion under U.S.S.G. § 3E1.1(b) if it must litigate a suppression motion.

Editor’s note: The U.S.S.G. defines a “high capacity magazine” as one that “can accept more than 15 rounds.” Under this logic, a magazine that accepts 16 rounds is so much more dangerous than one that accepts 15 that a felon in possession must spend at least 37-46 additional months in prison for that one round, the range for a crime with base offense level 20 and Criminal History I. Thus, one extra round = 37-46 extra months. It does not matter whether he intended to fire the round or even held the weapon. Its nearby proximity is enough. This illogical nonsense pervades most laws that purport to “protect” us from “gun violence.”

United States v. McNabb, No. 19-50265, 2020 U.S.App.LEXIS 14076  (5th Cir. May 1, 2020) (designated for publication) [Government seeking an obstruction enhancement]

  • The government seeking an obstruction enhancement—whether based on pre-or post-plea conduct—is consistent with its promise to not oppose an acceptance reduction. 

United States v. Rodriguez-Pena, 18-40978, 2020 U.S. App. LEXIS 13403 (5th Cir. April 27, 2020) (designated for publication) [departing from the U.S.S.G.-range rather than apply the factors under 18 U.S.C. § 3553 for a variance is error; plain error review of sentencing issue] 

  • A district court errs if it assigns an incorrect criminal history to depart from the U.S.S.G. range rather than apply the factors under 18 U.S.C. § 3553 as the reasons for the departure.
  • When the defendant does not object to error, plain error review applies. Under Fed. Rule Crim. Proc. 52(b), Molina-Martinez v. United States, 136 S.Ct. 1338 (2016) and United States v. Olano, 507 U.S. 725 (1993), a reviewing court may consider errors that are plain and affect substantial rights even though they are raised for the first time on appeal. The defendant must show that the error: (1) was not intentionally relinquished or abandoned; (2) is plain (clear or obvious); (3) affected substantial rights (must show a reasonable probability that but-for the error, the outcome of the proceeding would have been different); and (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.
  • Under Rosales-Mireles v. United States, 138 S.Ct. 1897, 1907 (2018), a U.S.S.G.-error that satisfies the first three Olano factors satisfies the fourth and warrants relief because the plain error establishes a reasonable probability that a defendant will serve a sentence that is more than necessary to fulfill the purposes of incarceration. Additional factors favoring correction are: (1) resentencing is easy; and (2) U.S.S.G.-miscalculations result from judicial error rather than a defendant’s strategy. Where the record is silent as to what the district court might have done had it considered the correct U.S.S.G.-range, the district court’s reliance on an incorrect range in most instances will suffice to show an effect on the defendant’s substantial rights.

Editor’s note: this is the relevant law on plain error review:

  • To preserve error, a party must raise an objection that is sufficiently specific to: (1) alert the court to the nature of the error and; (2) provide an opportunity for correction. A party is not required to object in ultra-precise terms but must provide the court an opportunity to adjudicate the issue and cure any alleged breach.
  • When the defendant does not object to error, plain error review applies. Under Fed. Rule Crim. Proc. 52(b), Molina-Martinez v. United States, 136 S.Ct. 1338 (2016) and United States v. Olano, 507 U.S. 725 (1993), a reviewing court may consider errors that are plain and affect substantial rights even though they are raised for the first time on appeal. The defendant must show that the error: (1) was not intentionally relinquished or abandoned; (2) is plain (clear or obvious); (3) affected substantial rights (must show a reasonable probability that but-for the error, the outcome of the proceeding would have been different); and (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.
  • Under Rosales-Mireles v. United States, 138 S.Ct. 1897, 1907 (2018), a U.S.S.G.-error that satisfies the first three Olano factors satisfies the fourth and warrants relief because the plain error establishes a reasonable probability that a defendant will serve a sentence that is more than necessary to fulfill the purposes of incarceration. Additional factors favoring correction are: (1) resentencing is easy; and (2) U.S.S.G.-miscalculations result from judicial error rather than a defendant’s strategy. Where the record is silent as to what the district court might have done had it considered the correct U.S.S.G.-range, the district court’s reliance on an incorrect range in most instances will suffice to show an effect on the defendant’s substantial rights.

Taylor Lohmeyer Law Firm v. United States, 957 F.3d 505 (5th Cir. April 24, 2020) [Attorney-client privilege in an IRS summons]

  • Under Reisman v. Caplin, 375 U.S. 440, 449 (1964), a district court order enforcing an IRS summons is an appealable final order. The challenge may be on any appropriate ground including the information sought is protected by the attorney-client privilege. 
  • Review with respect to the attorney-client privilege is limited. The application of the attorney-client privilege is a question of fact to be determined considering the purpose of the privilege. In evaluating a claim of attorney-client privilege, factual findings are reviewed for clear error and the application of the law de novo.
  • For the attorney-client privilege to protect disclosure, an attorney must establish that the document contains a confidential communication with the client, made with the client’s primary purpose having been securing either a legal opinion or legal services. Because the attorney-client privilege withholds relevant information from the factfinder, it is interpreted narrowly and applies only where necessary to achieve its purpose. The party asserting privilege bears the burden of proof. Ambiguities about whether the elements of a privilege claim have been met are construed against the proponent. The privilege may not be tossed as a blanket over an undifferentiated group of documents but must be asserted to particular documents. Client identities and fee arrangements are not protected as privileged unless revealing them would reveal a confidential communication. 

Texas Court of  Criminal Appeals

Diamond v. State, No. PD-1299-18, 2020 Tex.Crim.App. LEXIS 405 (Tex.Crim.App. June 10, 2020) (designated for publication) (DWI) [materiality of Brady evidence; Art. 11.072 proceedings]

  • An appellate court reviewing a ruling in an Art. 11.072 proceeding must view the record evidence in the light most favorable to the ruling and uphold it absent an abuse of discretion. Almost total deference is given to factual and implied findings supported by the record, especially if based on credibility and demeanor. If the resolution of the ultimate question turns only on the application of law, review is de novo. The reviewing court upholds the ruling if it is correct under any theory of applicable law.
  • Determining whether evidence was material as part of a claimed Brady violation is a mixed question of law and fact. Deference is given to a habeas court’s factual findings underlying its decision, and review of ultimate legal conclusions of materiality is de novo.
  • In Art. 11.07  cases, the habeas court is the original fact finder but the TCCA is the ultimate factfinder. The habeas court’s findings are not automatically binding upon the TCCA, although it usually accepts them if supported by the record. In Art. 11.072 cases, the trial judge is the sole factfinder and the appellate courts are truly appellate courts.
  • To be entitled to relief because a Brady violation, a defendant must show that the: (1) State failed to disclose evidence, regardless of good or bad faith; (2) evidence is favorable; and (3) evidence is material. Favorable evidence is that which if disclosed and used effectively, may make a difference between conviction and acquittal. It includes exculpatory and impeachment evidence. Exculpatory evidence is that which may justify, excuse, or clear the defendant from fault, and impeachment evidence is that which disputes, disparages, denies, or contradicts other evidence. The nondisclosure of favorable evidence violates due process only if it is material to guilt or punishment. Evidence is material if there is a reasonable probability that had it been disclosed, the outcome of the trial would have been different. A “reasonable probability” is one sufficient to undermine confidence in the outcome. Materiality is determined by examining the alleged error in the context of the record and overall strength of the state’s case. The suppressed evidence is considered collectively, not item-by-item.

Facts:

  • Deputy Bounds saw Diamond speed past him. Bounds pursued, during which Diamond made several unsafe lane changes without signaling, which caused other drivers to slam on their brakes.
  • When Diamond stepped out of her vehicle, she staggered and could not keep balance. She appeared disoriented. She said that she was coming from a country club but was unable to identify it. She admitted she consumed three beers that day. There was one open can and two cold, unopened cans in her vehicle. She and her car smelled strongly of alcohol. She had red glassy eyes and slurred speech. She was unable to identify the medication she was taking. On the SFSTs, she showed 5 of 8 clues on the walk-and-turn and 4 of 4 clues on the one-leg-stand. Bounds determined she was intoxicated because she lost the normal use of her mental and physical faculties. Bounds arrested her for DWI. Diamond refused to give a sample of her breath or blood. Bounds secured a warrant to obtain a sample of her blood. A registered nurse drew it. The vials were delivered by Bounds to a secure lockbox at Houston PD.
  • Andrea Gooden, Houston Police Department Crime Lab analyst, retrieved the sealed envelope with Diamond’s blood. There did not appear to be tampering with the envelope. It appeared to be properly labeled.  The analysis revealed a BAC of 0.193.
  • Diamond was convicted of DWI. The jury also found that Diamond’s BAC was 0.15 or more at the time of the analysis.  Diamond was sentenced to 5 days in jail.  She did not appeal.
  • Gooden self-reported to the Texas Forensic Science Commission (TFSC) that the crime lab violated quality control and documentation protocols in an unrelated case.
  • Diamond filed an application for a writ of habeas corpus under Tex. Code Crim. Proc. Art. 11.072, arguing that the State suppressed impeachment evidence in violation of her right to due process because it failed to disclose that before Gooden’s testimony: (1) Gooden certified a mislabeled lab report in an unrelated case; and (2) Gooden’s supervisor Arnold temporarily removed Gooden from her casework because he lacked confidence in her skills. Diamond argued that the evidence would have enabled her to impeach Gooden and excluded or discredited her, resulting in an acquittal, or hung jury.
  • After hearing from Arnold and Gooden at the habeas hearing, the court denied Diamond’s writ application, finding that the undisclosed evidence was neither favorable nor material.
  • The court of appeals reversed, finding that the undisclosed evidence was material because Gooden’s testimony was necessary for the jury to make an affirmative finding on the special issue of whether Diamond’s BAC level was 0.15 or more.

The undisclosed evidence was not material

  • The habeas court was within its discretion to conclude that the undisclosed evidence was not material. There was overwhelming evidence of Diamond’s intoxication to support the guilty verdict regardless of Gooden’s testimony. The undisclosed evidence impeaching Gooden would not have impeached the evidence of Diamond’s intoxicated state.
  • Gooden’s error in the other case was a “protocol error” regarding the certification of the report as complete. It was not a mislabeling or analysis error. The officer—not Gooden—had mislabeled the submission form accompanying the blood. The correctness of Gooden’s analysis of it was not in question. Gooden’s certification only moved the report to the next stage of administrative and technical reviewed before it was released.
  • The judgment of the court of appeals is reversed, and the habeas court’s ruling is affirmed.

Moreno  v. State, No. PD-1044-19, 2020 Tex.Crim.App. LEXIS 412 (Tex.Crim.App. June 17, 2020) (designated for publication) (Kidnapping) [Duress under Tex. Penal Code § 8.05]

  • Under Tex. Penal Code § 8.05(a), it is an affirmative defense to prosecution that the actor engaged in the conduct because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another. This affirmative defense is limited by the meaning of “compulsion,” exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure. It is an objective standard that looks not at whether the defendant was rendered incapable of resisting the pressure, but the effect the pressure would have on a person of reasonable firmness, who is not someone who is more susceptible to coercion because of a traumatic event.

Timmins v. State, No. PD-0867-18,   2020 Tex.Crim.App. LEXIS 403 (Tex.Crim.App. June 10, 2020) (designated for publication) (Failure to Appear) [“Custody” under Tex. Penal Code § 38.01, bail jumping or failure to appear]

Facts:

  • Timmins was on bond for two felonies. At a hearing, the judge revoked bond for testing positive for meth. Timmins pleaded with the judge to let him escort his elderly mother home before custody. The judge agreed, allowing him to turn himself in by 3:00 p.m. Timmins never reported.
  • Timmins was indicted for Bail Jumping per Tex. Penal Code § 38.10(a). Timmins was convicted and sentenced to 20 years.
  • On appeal, Timmins argued that his conduct did not meet the statutory definition of bail jumping or failure to appear because he “was not a person lawfully released from custody” and his failure to report to jail did not amount a failure to “appear.” The court of appeals rejected both arguments and affirmed the conviction.

The evidence was legally sufficient

  • The judge’s order permitting Timmins to take his mother home was a furlough, not a “release.”
  • Under Tex. Penal Code § 38.01, “custody” means being under arrest by a peace officer or under restraint by a public servant per a court order of this state or another state. A person may be in “custody” even if he is not under physical restraint. A reviewing court must look at the legal status of the individual to determine whether he was in custody at the time of the alleged offense.
  • When he absconded, Timmins was a person lawfully released from custody. The evidence was legally sufficient. The judgment of the court of appeals is affirmed.

Ward v. State, No. AP-77,096, 2020 Tex.Crim.App. LEXIS 413 (Tex.Crim.App. June 17, 2020) (designated for publication)  (pretrial habeas corpus) [Jurisdiction of the appeal of death penalty cases]

  • A defendant who is confined after indictment—but not yet finally convicted—may file a writ of habeas corpus per Tex. Code Crim. Proc. Art. 11.08. If a trial court denies relief on the merits, the defendant may file an interlocutory appeal. Per Tex. Rule App. Proc. 31.1, the clerk must prepare and certify the clerk’s record and send it to the appellate court within 15 days after notice of appeal is filed. 
  • Under Tex. Const. Art. V § 5(b), the appeal of cases in which the death penalty is assessed is to the TCCA. The appeal of all other criminal cases is to the Courts of Appeal. This is a “jurisdictional distinction” based on whether the death penalty is assessed. A court of appeals has jurisdiction over a properly filed appeal of the denial of a capital murder defendant’s pretrial writ, not the TCCA.

Williams v. State, No.  PD-0870-18, 2020 Tex.Crim.App. LEXIS 500 (Tex.Crim.App. June 24, 2020) (designated for publication) (Attempted Kidnapping) [Nunc pro tunc orders; motion for new trial extends appellate filing deadlines]

  • Under Tex. Rule App. Proc. 23, nunc pro tunc orders or judgments are for actions taken outside a trial court’s plenary power, requiring the court to rely on its inherent authority to make the record reflect what actually occurred during its plenary power. A trial court may correct only clerical errors in a nunc pro tunc order or judgment because it lost plenary power and jurisdiction to correct judicial errors. A trial court may modify, correct, or set aside judgment and orders through motions for new trial, to arrest judgment, and judgment nunc pro tunc. Judgment nunc pro tunc—means “now for then”—may not be used to correct “judicial” errors, which are products of judicial reasoning or determination. Nunc pro tunc orders may be used only to correct clerical errors in which no judicial reasoning contributed to their entry and were not entered at the proper time.
  • The trial court continued to have plenary power over its October 6 judgment when it entered the first and second nunc pro tunc orders. The trial court’s two post-October 6 orders were not nunc pro tunc orders—despite being labeled as such—and were exercises of its plenary power over its judgment.
  • Under Tex. Rule App. Proc. 26.2, a notice of appeal must be filed within 30 days after the day sentence is imposed or suspended in open court. A notice of appeal must be filed within 30 days after the day the trial court enters an appealable order. If a defendant files a motion for new trial, a notice of appeal must be filed within 90 days after the day sentence is imposed or suspended in open court.

Facts:

  • Williams was indicted for Aggravated Kidnapping and Attempted Aggravated Kidnapping. He was convicted of the lesser-included Attempted Kidnapping, SJF and assessed a sentence of 2 years.
  • On October 6, 2016, the sentence was imposed. The trial court informed Williams that he had a right to appeal and he could do so by filing a notice of appeal within 30 days. The trial court told Williams that he would not receive credit for time in jail.
  • The judgment was signed on October 10, 2016. It did not include the time-credit and provided that sex offender registration did not apply and did not include the age of the victim at the time of the offense even though the evidence showed that she was 11.
  • On October 13, 2016, Williams filed a Motion for New Punishment Trial and Motion in Arrest of Judgment in which he argued that the punishment was contrary to the law and the evidence and that he was entitled to time credit. On October 24, 2016, Williams filed a Motion for New Trial and a Motion for Judgment Nunc Pro Tunc, asserting in both time-credit and a business records affidavit from the sheriff showing the time spent in jail.
  • On October 25, 2016, the trial court entered a Nunc Pro Tunc Order Correcting Minutes of the Court showing that the victim was under 14 at the time of the offense and sex-offender registration applied.
  • On October 26, 2016, the State filed a Response to Motion for Judgment Nunc Pro Tunc, agreeing that Williams was entitled to time credit.
  • On October 27, 2016, Williams filed a First Amended Motion for Judgment Nunc Pro Tunc again arguing for time-credit.
  • On October 28, 2016, the trial court entered a Judgment Nunc Pro Tunc amending the judgment with the time-credit.
  • On December 16, 2016, Williams filed a notice of appeal. The state argued that the notice of appeal was untimely.  The court of appeals affirmed the judgment, including the nunc pro tunc orders. The State filed a PDR claiming that the notice of appeal was untimely.

The notice of appeal was timely

  • The trial court imposed the sentence in open court on October 6. Williams filed his first motion for new trial on October 13 and second on October 24. Both were timely. Under Rule 26.2(a)(2), the 30-day deadline was extended to 90 days. Williams had until January 4, 2017, to file notice of appeal. The December 16 notice of appeal was timely.
  • The judgment of the court of appeals is affirmed.

In re Yeager, No. WR-89,018-02, 2020 Tex.Crim.App. LEXIS 406 (Tex.Crim.App. June 10, 2020) (designated for publication)  (Mandamus) [If requested by the defendant, a judge may assess punishment in a class C case after a guilty verdict by a jury without the State’s approval]

  • Mandamus lies when the: (1) relator has no other adequate legal remedy; and (2) act sought to be compelled is purely ministerial, which is one where the relator has a clear and indisputable right to the relief sought—the facts and circumstances dictate only one rational decision under unequivocal and clearly controlling legal principles.
  • When asked to issue a writ of mandamus requiring a lower court to rescind its mandamus order, a reviewing court undertakes a de novo review of the lower court’s application of the two-pronged test for mandamus. 
  • Under Tex. Code Crim. Proc. Art. 37.07 § 1(b), on a “not guilty” plea, a jury must return a verdict of guilty or not guilty. If it is guilty, except per § 2, the jury shall assess punishment if there is a range of punishment. Under § 2(a), juries decide guilt without reference to punishment in jailable cases. Bifurcation—dividing a trial into separate phases for guilt and punishment—is required for jailable offenses. § 2(b) states that if a defendant is found guilty of a noncapital crime, the judge shall assess punishment unless the defendant elected the jury to assess punishment. § 2(c) requires that punishment be assessed on each guilty count. Art. 37.07 does not clearly prohibit a judge from assessing punishment after a jury verdict of guilt on a not guilty plea in a Class C case.

Texas Courts of Appeals

Ex parte Hamilton, No. 14-18-00534-CR, 2020 Tex.App.-LEXIS 2547 (Tex.App.-Houston [14th Dist.] March 26, 2020) (designated for publication) (Invasive Visual Recording on pretrial habeas corpus) [Tex. Penal Code § 21.15(b)(1) meets strict scrutiny]

  • Tex. Penal Code § 21.15(b)(1) meets strict scrutiny because it is narrowly drawn to protect substantial privacy interests limited to where a person has a reasonable expectation that her intimate areas are not subject to public view.
  • Under Ex parte Lo, 424 S.W.3d 10, 13-14 (Tex.Crim.App. 2013) and Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126 (1989), a defendant may file a pretrial application for writ of habeas corpus to raise a facial challenge to the constitutionality of the charged statute. Whether a statute is facially unconstitutional is a question of law subject to de novo review. When the constitutionality of a statute is challenged, a court usually presumes that the statute is valid, and the legislature has not acted unreasonably or arbitrarily. Other than First Amendment challenges, a facial challenge will succeed only if the statute is unconstitutional in all of its applications. When the statute suppresses, disadvantages, or imposes differential burdens upon speech based on content, the presumption of constitutionality does not apply. Content-based regulations of protected speech are presumptively invalid, and the State bears the burden to rebut the presumption (strict scrutiny). Content-based laws—which target speech based on content—are presumptively unconstitutional and justified only if the government proves they are narrowly tailored to serve compelling state interests. The Government may regulate the content of constitutionally protected speech to promote a compelling interest if it chooses the least restrictive means. Under strict scrutiny, a regulation of expression is upheld only if it is narrowly drawn to serve a compelling government interest.
  • Tex. Penal Code § 21.15(b)(1) regulates conduct subject to First Amendment protection because photos and visual recordings are inherently expressive. It seeks to curtail nonconsensual taking and dissemination of photos and visual recordings of another person’s intimate area. The sexual subject matter sought to be proscribed renders the statute content based. 

Lamb v. State, No. 06-19-00203-CR, 2020 Tex.App.-LEXIS 3225 (Tex.App.-Texarkana April 17, 2020) (designated for publication)  (Online Solicitation of a Child) [Scope of a search warrant to premises and persons]

  • Under State v. Cortez, 543 S.W.3d 198, 203 (Tex.Crim.App. 2018), review of a trial court’s ruling on a MTS is for an abuse of discretion. The record is viewed in the light most favorable to the trial court’s ruling and the judgment is reversed only if it is outside the zone of reasonable disagreement.
  • Under Crain v. State, 315 S.W.3d 43, 48 (Tex.Crim.App. 2010), Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000) and Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997), a ruling on a MTS is reviewed under a bifurcated standard of review: almost total deference to the trial court’s determination of historical facts that turn on credibility and demeanor, de novo on other application-of-law-to-fact issues, nearly total deference to application-of-law-to-fact questions (mixed questions of law and fact) if their resolution turns on an evaluation of credibility and demeanor, and de novo on mixed questions of law and fact if their resolution does not turn on an evaluation of credibility and demeanor. Under Osbourn v. State, 92 S.W.3d 531, 538 (Tex.Crim.App. 2002) and State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App. 2008), the trial court’s decision must be affirmed if it is correct on any theory of law that finds support in the record. 
  • Under Long v. State, 132 S.W.3d 443, 448 (Tex.Crim.App. 2004), the scope of a search warrant is governed by the terms of the warrant, which includes spatial restrictions and items to be seized. A search under a warrant extends to the entire area covered by the warrant’s description. When courts examine the description of the place to be searched to determine the scope, they follow a common sense and practical approach, not a “Procrustean” or overly technical one. When the scope is challenged based on the location of the search, the officer must show that he was properly in the place where the item was found either on the basis of the warrant or under an exception to the warrant requirement. 
  • Under Illinois v. Rodriguez, 497 U.S. 177, 185 (1990), what is generally demanded of factual determinations that must made by the magistrate issuing a warrant or the officer executing it is not that they always be correct but they be reasonable. There is no Fourth Amendment violation if an officer makes a warrantless search of apartment based on reasonable belief that he had valid consent even if he did not. 
  • Under State v. Villarreal, 475 S.W.3d 784, 795 (Tex.Crim.App. 2014), to comply with the Fourth Amendment, a search of a person per a criminal investigation: (1) requires a search warrant or a recognized exception to the warrant requirement, and (2) must be reasonable under the totality of the circumstances.
  • Under Ybarra v. Illinois, 444 U.S. 85, 88 (1979), a premises warrant authorizes police to search any item that might contain the object of the search but does not  authorize the search of a person it does not name because searches of a person involve a higher degree of intrusiveness and require justification in addition to that provided by the probable cause that supports a premises warrant.
  • Under Tex. Rule App. Proc. 44.2(a), Williams v. State, 958 S.W.2d 186, 194 n.9 (Tex.Crim.App. 1997), and Chapman v. California, 386 U.S. 18, 24 (1967), an appellate court must reverse a conviction unless it concludes beyond a reasonable doubt that the error did not contribute to the conviction or the punishment. The burden is on the State to prove that the error was harmless—did not contribute to the conviction or punishment.
  • Under Holmes v. State, 323 S.W.3d 163, 173-174 (Tex.Crim.App. 2009), where a trial court’s failure to permit defendants to present a defense could not be determined beyond a reasonable doubt not to have contributed to decision to enter pleas, the conviction must be reversed.

Facts:

  • G.P. (a minor) was trading sexually explicit Instagram messages with 43-year old Lamb. G.P. attempted suicide after her mother confronted her about the messages.
  • Officer Massey of the Reno PD learned that G.P. told Lamb that she was 15. Lamb attempted to claim that his son sent the messages, but the timing of the messages precluded that likelihood
  • Massey executed an affidavit seeking a search warrant of Lamb’s property, including outbuildings and motor vehicles: “120 County Road 12550, Lamar County that has a brown wooden shop with the east side painted beige with a white camper trailer parked beside it. The address is displayed in front of the home on the mailbox…probable cause… that occupants…[was/were] in possession of cellphones, computers, and digital media storage devices that may contain sexually explicit material and messages with a minor child.” A search warrant issued as Massey requested.
  • Lamb filed a MTS two cellphones. At the hearing, Massey testified that no one was present when he and other officers arrived. Lamb arrived during the search, pulled off the road, and parked. Massey could not testify about the property line or say whether Lamb’s vehicle was on the property described in the warrant.
  • Lamb exited of his vehicle and asked the officers what was going on. Massey believed that Lamb was on the property described in the warrant and because Lamb parked his truck on the gravel, the truck was also on the premises. Although the search warrant did not authorize a search of Lamb’s person and Massey was aware of this, Massey removed Lamb’s cellphone from his pocket. Massey directed the other officers to search Lamb’s vehicle, in which they seized a second cellphone.
  • The trial court denied the MTS.

The trial court did not err by denying the MTS the seizure of the cellphone from Lamb’s truck.  The trial court erred by denying the MTS the seizure of the cellphone from Lamb’s person, and Lamb was harmed

Editor’s note: this is the standard for review of a MTS:

  • Under State v. Cortez, 543 S.W.3d 198, 203 (Tex.Crim.App. 2018), review of a trial court’s ruling on a MTS is for an abuse of discretion. The record is viewed in the light most favorable to the trial court’s ruling and the judgment is reversed only if it is outside the zone of reasonable disagreement.
  • Under Crain v. State, 315 S.W.3d 43, 48 (Tex.Crim.App. 2010), Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000) and Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997), a ruling on a MTS is reviewed under a bifurcated standard of review: almost total deference to the trial court’s determination of historical facts that turn on credibility and demeanor, de novo on other application-of-law-to-fact issues, nearly total deference to application-of-law-to-fact questions (mixed questions of law and fact) if their resolution turns on an evaluation of credibility and demeanor, and de novo on mixed questions of law and fact if their resolution does not turn on an evaluation of credibility and demeanor. Under Osbourn v. State, 92 S.W.3d 531, 538 (Tex.Crim.App. 2002) and State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App. 2008), the trial court’s decision must be affirmed if it is correct on any theory of law that finds support in the record. 
  • The search warrant authorized the search of any and all motor vehicles located on the premises of 120 County Road 12550. Massey did not know where the surveyed property line was located, but he believed that Lamb left the roadway. Massey believed that Lamb’s truck was on the premises or curtilage of his property. Even if Massey was mistaken in this belief, the search was valid because it was reasonable. 
  • The affidavit described Lamb as having a special connection with the premises because he was alleged to have been in control of it. Thus, Lamb was subject to detention incident to the execution of the search warrant. However, the warrant did not include authority to search Lamb. Lamb was not identified in the warrant as a subject of the search. Lamb met the initial burden to prove the search occurred without a warrant. The State had to justify the warrantless search by proving an exception. 
  • The exceptions to the rule that a search must be based on a warrant are voluntary consent and exigent circumstances. There is no evidence that Lamb consented to the removal of his cellphone from his person. The cellphone was not in plain view.
  • Because the State failed to carry its burden to prove that an exception to the requirement of a search warrant applies—and the record supports no such exception—the search of Lamb’s person was constitutionally impermissible.
  • Under Tex. Rule App. Proc. 44.2(a), Williams v. State, 958 S.W.2d 186, 194 n.9 (Tex.Crim.App. 1997), and Chapman v. California, 386 U.S. 18, 24 (1967), an appellate court must reverse a conviction unless it concludes beyond a reasonable doubt that the error did not contribute to the conviction or the punishment. The burden is on the State to prove that the error was harmless—did not contribute to the conviction or punishment.
  • The State had the burden to show that the trial court’s error in failing to suppress this cellphone was harmless. The record does not disclose what evidence was contained on the cellphone. After the trial court denied the MTS, Lamb pleaded guilty.
  • Under Holmes v. State, 323 S.W.3d 163, 173-174 (Tex.Crim.App. 2009), where a trial court’s failure to permit defendants to present a defense could not be determined beyond a reasonable doubt not to have contributed to decision to enter pleas, the conviction must be reversed.
  • Because the court of appeals cannot conclude beyond a reasonable doubt that the denial of the MTS did not contribute to Lamb’s guilty plea, the trial court’s judgment denial of the MTS is reversed.

In re Leger, 598 S.W.3d 469 (Tex.App.-Houston [14th Dist.], March 24, 2020) (per curium)  (Mandamus) [Tex. Code Crim. Proc. Art. 42A.111, dismissal and discharge from deferred adjudication]

  • Under In re McCann, 422 S.W.3d 701, 704 (Tex.Crim.App. 2013) (orig. proceeding), to be entitled to mandamus relief, a relator must show (1) that the relator has no adequate remedy at law for obtaining the relief the relator seeks; and (2) what he seeks to compel is a ministerial act rather than a discretionary act. A ministerial act does not involve judicial discretion but must be positively commanded and so plainly prescribed under the law as to be free from doubt. The relator must have a clear right to the relief sought. To show a clear right to the relief sought, a relator must show that the facts and circumstances of the case dictate but one rational decision under unequivocal, well-settled and clearly controlling legal principles. Even if there is a remedy at law, the relator can show that no adequate legal remedy exists if the remedy is so uncertain, tedious, burdensome, slow, inappropriate, or ineffective as to be deemed inadequate.
  • Under Tex. Code Crim. Proc. Art. 42A.111(a), on expiration of deferred adjudication community supervision, if the judge has not proceeded to adjudication of guilt, the judge shall dismiss the proceedings against the defendant and discharge him. Under this mandatory language, a trial court has a ministerial duty to dismiss the underlying criminal charges upon completion of deferred adjudication community supervision. 

Love v. State, No. 02-19-00052-CR, 2020 Tex.App.-LEXIS 2518 (Tex.App.-Fort Worth March 26, 2020) (designated for publication) (Engaging in Organized Criminal Activity) [Disqualification of defense counsel; Tex. Disciplinary Rules Prof. Conduct 3.08(b); Tex. Code Crim. Proc. Art. 39.14(f)]

  • Under Tex. Code Crim. Proc. Art. 39.14(f), defense counsel cannot let a client or witness have a copy of discovery materials tendered to counsel by the State under the MMA except for that person’s own statement, and before letting another view the discovery, counsel must redact identifying information. Tex. Code Crim. Proc. Art. 39.14 contains no built-in sanctions or remedial measures for counsel’s mishandling of the State’s discovery.
  • Under Tex. Disciplinary Rules Prof. Conduct 3.08(b), a lawyer shall not continue as an advocate in a pending adjudicatory proceeding if the lawyer believes that he will be compelled to furnish testimony that will be substantially adverse to the client unless the client consents after full disclosure. Comment 10 provides that a lawyer should not seek to disqualify opposing counsel under Rule 3.08 merely because the opposing lawyer’s dual roles may involve an improper conflict of interest with the opposing lawyer’s client because it is a matter to be resolved between lawyer and client or in a subsequent disciplinary proceeding. Rule 3.08 does not warrant disqualifying counsel unless his testimony is necessary to an essential fact; if so, the opposing party must show that it will be prejudiced if counsel is not removed. Mere allegations of unethical conduct or a remote possibility of a violation of the disciplinary rules do not merit disqualification. The fact that a lawyer serves as advocate and a witness does not by itself compel disqualification. Rule 3.08 is a disciplinary standard, not a procedural rule for attorney disqualification, but courts often reference it as a guideline when determining whether a lawyer should discontinue representation.
  • Under Landers v. State, 256 S.W.3d 295, 303 (Tex.Crim.App. 2008), when the trial court disqualifies an attorney, review is for an abuse of discretion.  When reviewing factual determinations, almost total deference is given to findings that the record supports, especially if they turn on evaluating credibility and demeanor. When reviewing how the trial court applied the law to the facts, review is de novo. 
  • Under United States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006), the erroneous deprivation of the right to counsel of choice, with consequences that are unquantifiable and indeterminate, is structural error. Under Gonzalez v. State, 117 S.W.3d at 831, 836-837 (Tex.Crim.App. 2003), although the right is not limitless, defendants have the right to choose retained counsel, and the State’s burden in getting him removed is a heavy one. The State must demonstrate actual prejudice and showing only a possible future disciplinary-rule violation does not suffice. While a strong presumption favors a defendant’s right to retain counsel of choice, the judicial process’s integrity and fair and orderly administration may override the presumption. 
  • Under Fuentes v. State, 664 S.W.2d 333, 335 (Tex.Crim.App. [Panel Op.] 1984), the State may not strike at a defendant over the shoulders of his counsel or accuse counsel of bad faith.

In re the State of Texas, No. 01-19-00688-CR, 2020 Tex.App.LEXIS 3420 (Tex.App.-Houston [1st Dist.] April 23, 2020) (designated for publication) [Mandamus] [Monetary sanctions under Art. 39.14(h) not authorized by statute]

  • Tex. Code Crim. Proc. Art. 39.14(h) does not provide for the imposition of monetary sanctions against prosecutors who violate it. Nor does it identify sanctions that can be imposed. A court cannot impose monetary sanctions for violations of Art. 39.14(h).

State v. Whitman, No. 11-18-00001-CR & 11-18-00002-CR, 2020 Tex.App.-LEXIS 1481 (Tex.App.-Eastland Feb. 21, 2020) (designated for publication)  (Theft) [Required proof to show intent to appropriate]

  • Under State v. Ford, 537 S.W.3d 19 (Tex.Crim.App. 2017), a defendant can commit theft before leaving a store with the property. Placing items in a personal bag is appropriation and shows the requisite intent to deprive. 
  • Under State v. Martinez, 569 S.W.3d 621, 623-624 (Tex.Crim.App. 2019), when a defendant seeks to suppress evidence per a Fourth Amendment violation, the defendant initially bears the burden of proof, which is met by establishing that a search or seizure occurred without a warrant. The burden shifts to the State to show the reasonableness of the search or seizure. 
  • Under State v. Steelman, 93 S.W.3d 102, 107 (Tex.Crim.App. 2002), an officer may arrest without a warrant only if probable cause exists with respect to the suspect, and the arrest falls within one of the exceptions set out in Tex. Code Crim. Proc. Art. 14.01. The State must show compliance with one of the exceptions for a warrantless arrest in addition to support by probable cause. Probable cause may be based on an officer’s prior knowledge and personal observations, and he may rely on reasonably trustworthy information provided by another in making the overall probable cause determination.