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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.

June 2020 SDR – Voice for the Defense Vol. 49, No. 5

Voice for the Defense Volume 49, No. 5 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

Kansas v. Glover, No. 18–556, 2020 U.S. LEXIS 2178  (U.S. April 6, 2020) [Investigative traffic stop after learning that the registered owner has a revoked license]

  • An officer does not violate the Fourth Amendment by initiating an investigative traffic stop after running a vehicle’s plate and learning that the registered owner has a revoked driver’s license. When the officer lacks information negating an inference that the owner is the driver of the vehicle, the stop is reasonable.
  • Under United States v. Cortez, 449 U.S. 411, 417-418 (1981) and Terry v. Ohio, 392 U.S. 1, 21-22 (1968), the Fourth Amendment permits an officer to initiate a brief investigative traffic stop if has a particularized and objective basis for suspecting the particular person stopped of criminal activity. Although a mere hunch does not create reasonable suspicion, the level of suspicion the standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause. Reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause. The standard depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Courts must permit officers to make commonsense judgments and inferences about human behavior.
  • Under Delaware v. Prouse, 440 U.S. 648, 658 (1979), States have a vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles and that licensing, registration, and vehicle inspection requirements are being observed.

Facts:

  • Deputy Mehrer was on routine patrol when he observed a 1995 truck with KS plate 295ATJ. He ran it and discovered that it was registered to Glover, who had a revoked DL.
  • Mehrer assumed the registered owner Glover was also the driver.
  • Mehrer did not observe any traffic infractions. Nor did he attempt to identify the driver. Based solely on the information that the registered owner’s DL was revoked, Mehrer initiated a traffic stop.
  • The driver of the truck was Glover.
  • Kansas charged Glover with driving as a habitual violator.
  • Glover filed a motion MTS, arguing that the officer lacked reasonable suspicion. The District Court granted the MTS.
  • The Court of Appeals reversed, holding that it was reasonable for Mehrer to infer that the driver was the owner of the vehicle because “there were specific and articulable facts from which the officer’s common-sense inference gave rise to a reasonable suspicion.”
  • The Kansas Supreme Court reversed, holding that Mehrer did not have reasonable suspicion because his inference that Glover was driving was “only a hunch” that Glover was committing a crime.

An officer does not violate the Fourth Amendment by initiating an investigative traffic stop after running a vehicle’s plate and learning that the registered owner has a revoked driver’s license. When the officer lacks information negating an inference that the owner is the driver of the vehicle, the stop is reasonable.

  • Under United States v. Cortez, 449 U.S. 411, 417-418 (1981) and Terry v. Ohio, 392 U.S. 1, 21-22 (1968), the Fourth Amendment permits an officer to initiate a brief investigative traffic stop if has a particularized and objective basis for suspecting the particular person stopped of criminal activity. Although a mere
  • hunch does not create reasonable suspicion, the level of suspicion the standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause. Reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause. The standard depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Courts must permit officers to make commonsense judgments and inferences about human behavior.
  • Under Delaware v. Prouse, 440 U.S. 648, 658 (1979), States have a vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles and that licensing, registration, and vehicle inspection requirements are being observed.
  • The fact that the 1995 Chevrolet truck with Kansas plate 295ATJ was registered to Glover allowed Mehrer to draw the “commonsense inference” that Glover was likely the driver of the vehicle and provided “more than reasonable suspicion” to initiate the stop. The fact that the registered owner is not always the driver does not negate the reasonableness of this inference.
  • Under Heien v. North Carolina, 574 U.S. 54, 60 (2014), the reasonable suspicion inquiry “falls considerably short” of 51% accuracy since “to be reasonable is not to be perfect.” 
  • The judgment below is reversed, and the case is remanded.

Editor’s note: this opinion allows officers to make stops with impunity based solely on information they receive from databases, which are only as reliable as the information inputted into them. This greatly expands the definition of a Terry-stop.                                                        

Ramos v. Louisiana, No. 18–5924, 2020 U.S. LEXIS 2407 (U.S. April 20, 2020) [Right to unanimous jury verdicts; stare decisis]

  • Under the Sixth Amendment, defendants charged with felonies are entitled to trial by a unanimous, impartial jury. 
  • Stare decisis is not “an inexorable command.” The doctrine is at its weakest when the Constitution is interpreted because a mistaken judicial interpretation is practically impossible to correct through other means. When the SCOTUS revisits a precedent, it considers the quality of the decision’s reasoning, its consistency with related decisions, legal developments since the decision; and reliance on the decision.

Facts:

  • In a 10-2 verdict, Ramos was convicted of murder committed during a rape. He was sentenced to life without parole.

Defendants charged with felonies are entitled to trial by a unanimous, impartial jury

  • Under the Sixth Amendment, defendants charged with felonies are entitled to trial by a unanimous, impartial jury. 
  • Stare decisis is not “an inexorable command.” The doctrine is at its weakest when the Constitution is interpreted because a mistaken judicial interpretation is practically impossible to correct through other means. When the SCOTUS revisits a precedent, it considers the quality of the decision’s reasoning, its consistency with related decisions, legal developments since the decision; and reliance on the decision.

Editor’s note: the jury problem fixed by the SCOTUS:

United States Court  of Appeals for the Fifth Circuit

United States v.  Alvarado-Palacio, 951 F.3d 337  (5th Cir. March 2, 2020) [Waiver of Miranda and waiver forms]

  • In reviewing a ruling on a MTS, the 5th Circuit defers to factfinding by the district court unless clearly erroneous—definite and firm conviction that a mistake was made. The ultimate issue of voluntariness is a legal question reviewed de novo. The evidence is viewed in the light most favorable to the prevailing party.
  • Under Moran v. Burbine, 475 U.S. 412 (1986), Miranda, 384 U.S. at 444, 475, and United States v. Cardenas, 410 F.3d 287, 293 (5th Cir. 2005), a suspect can waive Miranda rights if it is voluntarily, knowingly, and intelligently. A voluntary waiver is the product of a free and deliberate choice rather than intimidation, coercion, or deception. Trickery or deceit is prohibited only to the extent that it deprives the suspect of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them. The voluntariness determination is made case-by-case and is viewed under the totality of the circumstances surrounding the interrogation.
  • Under North Carolina v. Butler, 441 U.S. 369, 373 (1979), though not conclusive, a signed waiver form is strong proof of a knowing and voluntary waiver.
  • Waivers may be direct or may be inferred from the actions and words of the person interrogated. A failure to pay attention to the waiver form a suspect signed is insufficient to show that a waiver was made involuntarily or unknowingly. 

Facts:

  • In March 2017, Alvarado-Palacio—a Mexican citizen—attempted to drive a vehicle containing 9.98 kilograms of meth into the United States. He was detained at a port of entry in El Paso, where CBP found the meth following a secondary inspection of the car. He was arrested for questioning.
  • Homeland Security Investigations (HSI) Agents Hernandez and Flores interrogated him. Hernandez read him his Miranda rights in Spanish. Hernandez asked Alvarado-Palacio in Spanish if he understood his rights, and Alvarado-Palacio said yes.
  • Hernandez informed Alvarado-Palacio that the interrogation was being recorded as “protection for everyone” and Alvarado-Palacio needed to include his name, signature, and date on a Spanish version of a DHS form including a “Declaration of [Miranda] Rights” and “Waiver.” While Alvarado-Palacio picked up the pen to sign, Flores informed him that he can read the rights again if he wants. Alvarado-Palacio filled out the form. Alvarado-Palacio looked at the form again for about 15 seconds, appearing to read its contents and repeat some of it under his breath.
  • Alvarado-Palacio handed the form to Hernandez and said, “…I may have an attorney, it says?” Hernandez answered while holding the signed rights and waiver form, “Yes, you may have an attorney, but right now is when we can speak with you.” Alvarado-Palacio responded, “Ah, ok.”
  • Alvarado-Palacio gave a confession admitting that he knew the drugs were in the car even though he did not know what kind. Alvarado-Palacio admitted he was offered $800 to take the drugs to a delivery point in the United States.
  • Alvarado-Palacio was indicted for importing and possessing with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of meth per 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii) and 21 U.S.C. § 952(a), and 21 U.S.C. § 960(a)(1), (b)(1)(H).
  • Alvarado-Palacio filed a MTS his confession, arguing that he did not voluntarily and knowingly waive Miranda  because Hernandez mischaracterized his right to an attorney.
  • The district court denied the MTS, finding that Alvarado-Palacio was subject to a custodial interrogation but knowingly, intelligently and voluntarily waived those rights. The court also found that Alvarado-Palacio stated rather than asked for clarification when he said, “…I may have an attorney, it says?”
  • The district court found Alvarado-Palacio guilty after a bench trial based on stipulated facts and sentenced him to 46 months in BOP.

The trial court did not err by denying the MTS

  • In reviewing a ruling on a MTS, the 5th Circuit defers to factfinding by the district court unless clearly erroneous—definite and firm conviction that a mistake was made. The ultimate issue of voluntariness is a legal question reviewed de novo. The evidence is viewed in the light most favorable to the prevailing party.
  • Under Moran v. Burbine, 475 U.S. 412 (1986), Miranda, 384 U.S. at 444, 475, and United States v. Cardenas, 410 F.3d 287, 293 (5th Cir. 2005), a suspect can waive Miranda rights if it is voluntarily, knowingly, and intelligently. A voluntary waiver is the product of a free and deliberate choice rather than intimidation, coercion, or deception. Trickery or deceit is prohibited only to the extent that it deprives the suspect of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them. The voluntariness determination is made case-by-case and is viewed under the totality of the circumstances surrounding the interrogation.
  • Under North Carolina v. Butler, 441 U.S. 369, 373 (1979), though not conclusive, a signed waiver form is strong proof of a knowing and voluntary waiver.
  • Waivers may be direct or may be inferred from the actions and words of the person interrogated. A failure to pay attention to the waiver form a suspect signed is insufficient to show that a waiver was made involuntarily or unknowingly. 
  • After Alvarado-Palacio reviewed the form, the agents asked him if he understood it and he responded, “Yes, that I may have an attorney, it says?”
  • Nothing indicates that Alvarado-Palacio did not make a free and deliberate choice to waive his right to counsel. The totality of circumstances shows that the district court’s finding that he knew and understood his rights is not clearly erroneous.                          

United States v. Moton, 951 F.3d 639 (5th Cir. March 2, 2020) [Base offense level; conversion rate for a synthetic cannabinoid]

  • The Controlled Substances Act (CSA) makes it unlawful to knowingly manufacture, distribute, or possess with the intent to distribute controlled substances. The Controlled Substance Analogue Enforcement Act of 1986 (Analogue Act) identifies a category of substances substantially like those listed on the federal controlled substance schedules and instructs courts to treat those analogues—if intended for human consumption—as controlled substances listed on schedule I.
  • The Government must establish that the defendant knew he was dealing with a controlled substance. When the substance is an analogue, knowledge is proven if the defendant knew that the substance was controlled under the CSA or Analogue Act even if he did not know its identity. Knowledge can be established by evidence that a defendant knew: (1) that the substance is a listed controlled substance—regardless of whether he knew the identity of the substance—and circumstantial evidence may suffice showing concealment of activities, evasive behavior with law enforcement, knowledge that a substance produces a “high” like that produced by controlled substances, and knowledge that a substance is subject to seizure at customs; or (2) the analogue he was dealing with, even if he did not know its legal status as an analogue.
  • When a defendant preserved sentencing error, review of the factual findings is for clear error and its application of the U.S.S.G. is de novo. Even if error is established, it must be disregarded if it is harmless—does not affect substantial rights. On clear error review, the Government has the burden to prove the error is harmless.
  • The base offense level reflects the offense of conviction and relevant conduct, which includes acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction. Only criminal conduct is relevant, but the conduct need not have resulted in a conviction. Relevant conduct must be proven by a preponderance of the relevant and sufficiently reliable evidence. The district court may consider any relevant information—without regard to admissibility under the rules of evidence—provided the information has sufficient indicia of reliability to support its probable accuracy. A PSR generally has sufficient indicia of reliability. A defendant’s objections do not cast doubt on the PSR. The defendant must demonstrate its inaccuracy through rebuttal evidence.
  • For a drug offense, the base offense level reflects the amounts of drugs with quantities from multiple transactions added. Where there is no drug seizure or the amount seized does not reflect the scale of the offense, the district court shall approximate the quantity of the controlled substance.
  • To determine the appropriate conversion rate for a synthetic cannabinoid, the equivalency of THC is used—the most closely related controlled substance: 167 grams marijuana per one-gram substance.

Facts:

  • In 2016, Houston PD received a tip regarding narcotics activity at a storage facility. They observed Moton unloading boxes from a minivan into a unit flagged by the facility’s manager. Moton drove to a gas station a few miles away where he deposited a box and two black trash bags into a dumpster. Police recovered the box and trash bags, which contained materials used to produce and tested positive for synthetic cannabinoid: baggies, receipts for acetone, a box for a digital scale, a package for a respirator, bottles of Tasty Puff flavoring, and labels of various “herbal incense.”
  • The police surveilled Moton as he visited other storage facilities and a house on Mulholland Drive in Houston (“House”). Moton was the only person seen visiting the House, regularly dropping off trash bags at storage units for pickup by codefendant Malik. Moton put trash bags in the trunk of Malik’s car. Malik transferred the bags to another vehicle, which was stopped for a traffic violation, and contained 800 baggies of synthetic cannabinoids.
  • Officers arrested Moton at the House, which was not used as a home. It had unfurnished rooms and empty kitchen cabinets. It was a manufacturing lab, with chemical flavoring in a bedroom, acetone in the garage, tubs filled with packaged synthetic cannabinoids, fans blowing chemical odors out of the chimney, and a machine used to seal the drugs. 580 pounds of synthetic cannabinoids were found, along with Moton’s utility bill for the House.
  • Police advised Moton of his rights and interrogated him. Moton described the process for delivering synthetic cannabinoids. He was paid by cash left for him in the units. Police searched the units, including one listed in Moton’s name, and found materials used to produce synthetic cannabinoids.
  • Moton claimed at trial that although he mixed artificial flavoring with dry green leaves, having packaged up to 200,000 bags, he had no idea any aspect of the business was illegal, saying that his difficulty with English left him unaware.
  • The jury found Moton guilty of two counts of possession with intent to distribute synthetic cannabinoids and not guilty on the remaining conspiracy charge.
  • The PSR attributed to him $107,940 in drug proceeds discovered in Malik’s safety deposit box and 434,319 grams of cannabinoids seized at different locations. The drug proceeds and seized cannabinoid totaled 2,593,119 grams. Using an unstated multiplier, the PSR converted this figure to 409,274 kg marijuana, base offense level of 38. The PSR added a two-level enhancement under U.S.S.G. § 2D1.1(b)(12) for maintaining premises for manufacturing or distributing a controlled substance analogue. With a total offense level of 40 and a criminal history category of I, the advisory range was 292-365 months, capped by statute at 240 months. Varying downward, the district court sentenced Moton to 186 months in BOP.

There was sufficient evidence to sustain the jury’s finding that Moton acted with the requisite mens rea

  • The Controlled Substances Act (CSA) makes it unlawful to knowingly manufacture, distribute, or possess with the intent to distribute controlled substances. The Controlled Substance Analogue Enforcement Act of 1986 (Analogue Act) identifies a category of substances substantially like those listed on the federal controlled substance schedules and instructs courts to treat those analogues—if intended for human consumption—as controlled substances listed on schedule I.
  • The Government must establish that the defendant knew he was dealing with a controlled substance. When the substance is an analogue, knowledge is proven if the defendant knew that the substance was controlled under the CSA or Analogue Act even if he did not know its identity. Knowledge can be established by evidence that a defendant knew: (1) that the substance is a listed controlled substance—regardless of whether he knew the identity of the substance—and circumstantial evidence may suffice showing concealment of activities, evasive behavior with law enforcement, knowledge that a substance produces a “high” like that produced by controlled substances, and knowledge that a substance is subject to seizure at customs; or (2) the analogue he was dealing with, even if he did not know its legal status as an analogue.
  • The jury had enough circumstantial evidence to convict Moton.

Any sentencing error was harmless

  • When a defendant preserved sentencing error, review of the factual findings is for clear error and its application of the U.S.S.G. is de novo. Even if error is established, it must be disregarded if it is harmless—does not affect substantial rights. On clear error review, the Government has the burden to prove the error is harmless.
  • The base offense level reflects the offense of conviction and relevant conduct, which includes acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction. Only criminal conduct is relevant, but the conduct need not have resulted in a conviction. Relevant conduct must be proven by a preponderance of the relevant and sufficiently reliable evidence. The district court may consider any relevant information—without regard to admissibility under the rules of evidence—provided the information has sufficient indicia of reliability to support its probable accuracy. A PSR generally has sufficient indicia of reliability. A defendant’s objections do not cast doubt on the PSR. The defendant must demonstrate its inaccuracy by introducing rebuttal evidence.
  • For a drug offense, the base offense level reflects the amount of drugs involved with quantities of drugs from multiple transactions added together. Where there is no drug seizure or the amount seized does not reflect the scale of the offense, the district court shall approximate the quantity of the controlled substance.
  • Because Moton admitted to packaging 750,000-2,000,000 grams of synthetic cannabinoid, which exceeds the minimum weight for a base offense level of 38, any sentencing error was harmless.
  • To determine the appropriate conversion rate for a synthetic cannabinoid, the equivalency of THC is used—the most closely related controlled substance: 167 grams marijuana per one-gram substance.
  • Applying the conversion rate—167 grams marijuana per one-gram substance—to the 2,000,000 grams of synthetic cannabinoid packed by Moton—yields 334,000 kg marijuana. This far exceeds the 90,000 kg of marijuana needed for a base offense level of 38. Thus, errors in the PSR did not affect Moton’s sentence and are harmless.
  • The district court’s judgment is affirmed.

Editor’s note: herbal incense is not “good” for you. Pumping chemicals or smoke into your lungs is not “good” for you. But the similar-harm-comparisons between herbal incense versus meth, cocaine, and pharmaceutical drugs that killed 70,000 Americans in 2017 alone (68% of which by pharmaceuticals) are nonsense.

https://www.cdc.gov/injury/features/prescription-drug-overdose/index.html

United States v. Phea, No. 17-50671, 2020 U.S.App.LEXIS 10101 (5th Cir. March 31, 2020) (designated for publication) [IAC for failing to object to a constructive amendment]

  • When evaluating the denial of a motion under 28 U.S.C. § 2255, the 5th Circuit reviews factual findings for clear error and conclusions of law de novo. A claim of IAC is a mixed question of law and fact that is reviewed de novo. The court independently applies the law to the facts found by the district court provided the factual determinations are not clearly erroneous.
  • Under Strickland v. Washington, 466 U.S. 668, 686 (1984), a defendant claiming IAC must prove: (1) representation that fell below an objective standard of reasonableness; and (2) prejudice to the defense: but-for the errors, the result of the proceeding would have been different. The defendant need only show a probability sufficient to undermine confidence in the outcome. The objective standard of reasonableness is viewed considering the circumstances as they appeared at the time of the conduct and is measured by prevailing professional norms. A strong presumption is made that counsel’s conduct falls within the wide range of reasonable professional assistance. While counsel need not anticipate changes in the law, the absence of directly controlling precedent does not preclude a finding of deficient performance.
  • A constructive amendment of the indictment occurs when the trial court—through its instructions and facts allowed into evidence—allows proof of an essential element of the crime on an alternative basis provided by statute but not charged in the indictment.

Facts:

  • Phea located K.R. (14-year-old girl) on Tagged.com. where her profile stated that she was 18.  K.R. testified Phea thought she was 18, and she told him she was under 18 only after the crime.
  • The indictment alleged: (Count 1) that per 18 U.S.C. § 1591(a), Phea knowingly recruited, enticed, harbored, transported, provided, obtained, and maintained by any means in and affecting interstate commerce K.R.—knowing that K.R. was not 18 and would be caused to engage in a commercial sex act; and (Count 2) per 18 U.S.C. § 1952(a)(3), aiding and abetting the promotion of a business enterprise involving prostitution.
  • The jury instructions for Count 2 did not contain “knowing”: “if the Government proves beyond a reasonable doubt that the defendant had a reasonable opportunity to observe the person… then the Government does not have to prove that the defendant knew that the person had not attained the age of 18 years.” This language tracks § 1591(c): (if) the defendant had a reasonable opportunity to observe the person recruited… transported…the Government need not prove that the defendant knew that the person had not attained…18 years.
  • For Count 1, the district court instructed the jury using language that did not appear in the indictment: “If the Government proves beyond a reasonable doubt that the defendant had a reasonable opportunity to observe the person recruited… transported…the Government does not have to prove that the defendant knew the person (was not 18).
  • Trial counsel did not object to the instruction, which was a constructive amendment to the indictment
  • The jury convicted Phea on both counts.
  • The district court sentenced Phea to 312 months for Count 2 and 60 months for Count 1.
  • On appeal, the 5th Circuit rejected the plain-error argument on the constructive indictment because the court had not yet addressed whether § 1591 permits a conviction based solely on a finding that the defendant had a reasonable opportunity to observe the victim.
  • Phea filed a motion under 28 U.S.C. § 2255, arguing IAC by failing to argue the indictment was constructively amended. The district court denied the motion.

Phea received IAC

  • When evaluating the denial of a motion under 28 U.S.C. § 2255, the 5th Circuit reviews factual findings for clear error and conclusions of law de novo. A claim of IAC is a mixed question of law and fact that is reviewed de novo. The court independently applies the law to the facts found by the district court provided the factual determinations are not clearly erroneous.
  • Under Strickland v. Washington, 466 U.S. 668, 686 (1984), a defendant claiming IAC must prove: (1) representation that fell below an objective standard of reasonableness; and (2) prejudice to the defense: but-for the errors, the result of the proceeding would have been different. The defendant need only show a probability sufficient to undermine confidence in the outcome. The objective standard of reasonableness is viewed considering the circumstances as they appeared at the time of the conduct and is measured by prevailing professional norms. A strong presumption is made that counsel’s conduct falls within the wide range of reasonable professional assistance. While counsel need not anticipate changes in the law, the absence of directly controlling precedent does not preclude a finding of deficient performance.
  • A constructive amendment of the indictment occurs when the trial court—through its instructions and facts allowed into evidence—allows proof of an essential element of the crime on an alternative basis provided by statute but not charged in the indictment.
  • Count 1 of the indictment charged under 18 U.S.C. § 1591(a) and alleged Phea knew K.R. was under 18. But the indictment made no reference to § 1591(c) or its “reasonable opportunity to observe” language. The district court instructed the jury on both the actual-knowledge theory alleged in the indictment and the “reasonable opportunity to observe” language in § 1591(c). The trial court eliminated the scienter requirement of actual knowledge—the element Phea was indicted under—but lowered the factual basis required to prove this essential element from what Phea knew to what he had the reasonable opportunity to observe. 
  • Because no objection was made, trial counsel’s performance was deficient. Phea was also prejudiced since even K.R. believed that Phea thought she was 18, and she was willing to engage in “adult” activities. There is a reasonable probability a jury would have had reasonable doubt that Phea knew K.R. was under 18.
  • The judgment is REVERSED, the conviction under § 1591(a) is VACATED, and the case remanded for further proceedings.

Editor’s note: this clearly was a constructive amendment that should have been objected to.  It is also critical that Phea pleaded not guilty to knowingly trafficking a 14-year-old girl. Had he pleaded guilty, Phea could have still filed a § 2255 motion arguing IAC. But when a defendant pleads guilty, generally the only viable claim of IAC is that counsel was so deficient that the plea was “involuntary and uninformed.” This is a claim under Hill v. Lockhart, 474 U.S. 52, 59 (1985): counsel’s deficient performance “led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of a proceeding itself.” 

When a defendant alleges that IAC led him to accept a guilty plea rather than go to trial, the question is not if he had gone to trial that the result would have been different from the result of the plea, but although a strong presumption of reliability is given to judicial proceedings, the presumption cannot apply to judicial proceedings that never took place. However, a Lockhart claim generally works only if counsel misinformed on a material issue of law or counsel’s failure to investigate caused a critical fact to not be discovered. 

In Lockhart, counsel told Hill that if he pleaded guilty, he would become eligible after serving 1/3 of his sentence, but in fact he was required to serve 1/2. This was bad advice on a material issue of law that prejudiced Hill. See also Lee v. United States, 137 S.Ct. 1958, 1966-1967 (2017): if a noncitizen proves defective advice regarding the risk of deportation if the noncitizen pleads guilty to an offense for which deportation is presumably mandatory, he need not prove that he would have likely prevailed at trial, but only that he would have gone to trial.

Thus, had Phea admitted to knowingly trafficking a 14-year-old girl, to prevail on a Lockhart claim, he must prove far more than a variation of “I didn’t really know that she was only 14 years old.”  That the girl was 14 is a fact that may not implicate trial counsel’s advice since Phea either knew or did not know her real age. Phea would have to show that counsel misled him on a material issue of law or that counsel’s failure to investigate caused a critical fact to not be discovered.  

In re Ray, 951 F.3d 650 (5th Cir. March 3, 2020) [Sanctions against an attorney for bad faith or fraud]

  • Sanctions imposed against an attorney by a district court are reviewed for abuse of discretion. The district court abuses its discretion if its ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence. Disbarment of an attorney by a federal court is proper only upon presentation of clear and convincing evidence sufficient to support the finding of one or more violations warranting the sanction.
  • When acting under an inherent power to disbar an attorney, a district court must make a specific finding that an attorney’s conduct constituted or was tantamount to bad faith. When bad faith is patent from the record and specific findings are unnecessary to understand the misconduct giving rise to the sanction, the necessary finding of bad faith may be inferred.

Facts:

  • Hernandez (Army reservist) worked for RSI. He failed to report to work because he went to the ER, complaining of a headache and back pain. RSI fired Hernandez for violating a policy of failing to report four hours prior to a shift if he is unable to appear. 
  • Hernandez hired Ray to file suit against RSI alleging violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). Hernandez alleged that his ER-visit was for treatment of an aggravation of a back condition he suffered while on military duty the preceding weekend. Under USERRA’s convalescence provision, his reporting period was extended because he sustained injury during military service.
  • During discovery, RSI served Hernandez with requests for production of medical records since the injury, including those from the ER trip. In response, Hernandez turned over a doctor’s note stating that Hernandez was under his care that day and could return to work the next day. RSI obtained Hernandez’s signature on an authorization to obtain relevant medical records but did nothing with the document. 
  • At some point, Ray received copies of records from the ER trip and claimed to have faxed them to opposing counsel. Ray later discovered that the fax failed to transmit. Ray never revealed prior to trial that he had the records.
  • After a bench trial, the district court denied Hernandez’s claims and rendered judgment for RSI. Hernandez appealed, and the 5th Circuit reversed and rendered judgment in his favor, remanding for a calculation of damages. 
  • While the case was pending on remand, RSI learned that Ray had Hernandez’s ER records in his possession prior to trial but failed to disclose them. RSI also contended that Hernandez gave false testimony at trial about the true reason for the ER trip. 
  • RSI filed a motion for relief from judgment under Fed. Rule Civ. Proc. 60(b), attaching the ER records, which revealed that Hernandez visited the ER complaining of a migraine-type headache, with back pain an associated symptom from a chronic nondisabling condition. RSI argued that the records proved that the ER trip was not for treatment of an aggravation of a back condition suffered while on military duty the previous weekend as he had testified at trial and argued on appeal. 
  • The district court granted the Rule 60(b) motion, determined that Hernandez intentionally gave false testimony to mislead RSI in its trial preparation, and this testimony misled the Fifth Circuit. 
  • The district court also concluded that Ray failed to take appropriate steps to supplement an incomplete discovery response by providing the ER records to opposing counsel once he received them.
  • The district court ordered Ray to file a response about his conduct and the possibility that the court might issue an order imposing discipline, directing the clerk to remove Ray’s name from the role of attorneys authorized to practice law before the court (disbarment). Ray filed a response arguing against the imposition of sanctions but declined the court’s offer of a hearing.
  • The district court filed a memorandum opinion and order directing the clerk to remove Ray’s name from the list of attorneys authorized to practice law in the N.D. Tex., finding that his conduct unnecessarily cost RSI $340,000 in litigation. Ray’s behavior was of a pattern that tended to be destructive of the administration of justice. He engaged in fraud, misrepresentation, and misconduct that created a false record and provided fodder for false arguments by Hernandez. Ray sat silently when at oral argument in the Fifth Circuit, the court asked the attorney for RSI if there was any evidence in rebuttal to Hernandez’s claim that his trip to the ER was to receive medical attention for a back injury sustained during military duty, to which the RSI attorney responded “there is no other real evidence one way or the other.” Only an attorney completely devoid of an ethical or moral sense of right and wrong would have sat quietly by as the RSI attorney said that, bearing in mind that Ray had in his possession documents showing the real reason Hernandez went to the ER.

The district court did not abuse its discretion by sanctioning Ray

  • Sanctions imposed against an attorney by a district court are reviewed for abuse of discretion. The district court abuses its discretion if its ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence. Disbarment of an attorney by a federal court is proper only upon presentation of clear and convincing evidence sufficient to support the finding of one or more violations warranting the sanction.
  • On appeal, Ray argued that he withheld “significant evidence” from opposing counsel prior to trial because he was “an inexperienced attorney, and not due to fraud.”
  • When acting under an inherent power to disbar an attorney, a district court must make a specific finding that an attorney’s conduct constituted or was tantamount to bad faith. When bad faith is patent from the record and specific findings are unnecessary to understand the misconduct giving rise to the sanction, the necessary finding of bad faith may be inferred.
  • The order imposing disbarment from the N.D. Tex. is affirmed.

Editor’s note: although this proceeding arose from a civil case on the issue of disclosure of discovery, I summarized it to address the importance of candor the court. But it is interesting that an attorney can be disbarred if he fails to abide by civil discovery rules under Fed. Rule Civ. Proc. 26, while prosecutors who violate criminal discovery rules under Fed. Rule Crim. Proc. 16, Tex. Code Crim. Proc. Art. 39.14, and Brady suffer few—if any—consequences. If courts were as hard on prosecutors who fail to disclose material evidence as these courts were on Mr. Ray, prosecutors who cheat or think about cheating may have a whole new attitude towards their duty of candor to the court.

United States v. Rodriguez-Leos, 953 F.3d 320 (5th Cir. March 16, 2020) [Review of the district court’s interpretation of the U.S.S.G.; how an issue is preserved for appeal; U.S.S.G. § 2X1.1(b)(1) (attempt-offenses)]

  • Review of the district court’s interpretation of the U.S.S.G. is de novo and its factual findings is clear error. If an objection is raised for the first time on appeal or raises an objection that is different from what he raised in district court, review is for plain error. 
  • There is no bright-line rule for determining whether an issue is preserved for appeal. A party must press the issue and not merely intimate it in the district court. The objection must be sufficiently specific to alert the district court to the nature of the alleged error and to provide an opportunity for correction. Key is whether the objection is specific enough to allow the court to take evidence and receive argument on the issue. The objection and argument on appeal need not be identical; the objection must merely give the district court the opportunity to address the gravamen of the argument presented on appeal. Once a party raises an objection in writing and receives a ruling, if he subsequently fails to make an oral objection, the error is still preserved because it is about the specificity and clarity of the initial objection, not the defendant’s persistence in seeking relief.
  • An objection is preserved if the defendant made a written objection and did not specifically cite the U.S.S.G.-section to which the PSR applied but used terminology identical to that used in the part the defendant was challenging. 
  • Under U.S.S.G. § 2X1.1(b)(1), for an attempt-offense, the  offense level should be decreased by 3 unless the defendant completed all the acts he believed necessary for successful completion of the substantive offense or the circumstances show that he was about to complete all acts but-for apprehension or interruption by some event beyond his control. Whether a reduction is warranted considers these factors: (1) focus on the substantive offense and the defendant’s conduct in relation to it; (2) no reduction required for a conspirator who has made substantial progress in his criminal endeavor simply because a significant step remains before commission of the substantive offense; (3) a defendant is entitled to the reduction unless the circumstances demonstrate that the balance of the significant acts completed and those remaining tips toward completion of the substantive offense, considering the quality—not just the quantity—of the completed and remaining acts; and (4) the temporal frame of the scheme and the time the defendant would have needed to finish his plan had he not been interrupted because as completion of the offense becomes imminent, the reduction is less appropriate.

Facts:

  • Rodriguez-Leos pleaded guilty to unlawful possession of ammunition by a person admitted to the U.S. under a nonimmigrant visa.
  • Per the PSR, federal agents conducting surveillance operations at an Academy Sports in McAllen observed Rodriguez-Leos purchase 520 rounds of 7.62 x 39mm caliber ammunition. A record-check of the vehicle driven by Rodriguez-Leos revealed that he entered the country at the Hidalgo Port of Entry earlier that day. Agents followed him to a residence in McAllen. Rodriguez-Leos got out of his vehicle with the box of ammunition, walked toward the front of the home out of sight of the agents, and returned to his vehicle without the box. The homeowner consented to a search, which revealed the ammunition concealed underneath a bush near the front entrance of the home.
  • Agents followed Rodriguez-Leos to a store in Hidalgo where they questioned him about the ammunition. After waiving Miranda, he admitted that he purchased the ammunition for one “El Chivo” (“the goat”) and left it at the McAllen home because he did not want it in his vehicle. He also admitted he purchased ammunition for El Chivo twice recently and received $50 each time. He met El Chivo at the port of entry and  received money to purchase ammunition. El Chivo would call him and tell him to meet an unknown male at a Whataburger in Hidalgo, where he delivered the ammunition to the unknown male. Later he understood that the male would smuggle the ammunition into Mexico.
  • The PSR assigned a base offense level of 14 and a 4-level enhancement because he possessed the ammunition with knowledge, intent, or reason to believe that it would be transported out of the U.S., making the offense level 18. Because he possessed it in connection with another offense—exportation of ammunition without a valid export license—the PSR applied the cross reference in § 2K2.1(c)(1), which directs the use of § 2X1.1 if the resulting offense level is greater than previously determined. This made the base offense level 26. 
  • A 3-level reduction is allowed under § 2X1.1(b)(1) if the defendant attempted but did not complete the substantive offense unless he completed all acts he believed necessary for successful completion of it or the circumstances demonstrate he was about to complete all acts but-for apprehension or interruption by some event beyond his control. The PSR stated the decrease was not warranted because he completed all acts necessary but-for the apprehension.
  • Rodriguez-Leos objected in writing to the PSR, arguing that he did not know that El Chivo was involved in organized crime or that the ammunition would be smuggled into Mexico.
  • The district court applied a 3-level reduction for acceptance of responsibility for a total offense level of 23, making the range 46-57 months. The court overruled Rodriguez’s objection, stating it was clear that he knew the ammunition was going to be smuggled to Mexico. The district court did not address Rodriguez’s objections to the application of the cross-reference, the minor participant objection; or the 3-level decrease, and instead implicitly overruled them by adopting the PSR.
  • The court sentenced Rodriguez-Leos to 50 months.

The district court erred by failing to assign him a three-level reduction for attempt under § 2X1.1(b)(1) because there was no evidence that before his arrest, he completed or was about to complete all acts he believed were necessary for the successful completion of the substantive exportation-of-ammunition offense

  • Review of the district court’s interpretation of the U.S.S.G. is de novo and its factual findings is clear error. If an objection is raised for the first time on appeal or raises an objection that is different from what he raised in district court, review is for plain error. 
  • There is no bright-line rule for determining whether an issue is preserved for appeal. A party must press the issue and not merely intimate it in the district court. The objection must be sufficiently specific to alert the district court to the nature of the alleged error and to provide an opportunity for correction. Key is whether the objection is specific enough to allow the court to take evidence and receive argument on the issue. The objection and argument on appeal need not be identical; the objection must merely give the district court the opportunity to address the gravamen of the argument presented on appeal. Once a party raises an objection in writing and receives a ruling, if he subsequently fails to make an oral objection, the error is still preserved because it is about the specificity and clarity of the initial objection, not the defendant’s persistence in seeking relief.
  • An objection is preserved if the defendant made a written objection and did not specifically cite the U.S.S.G.-section to which the PSR applied but used terminology identical to that used in the part the defendant was challenging. 
  • Rodriguez-Leos properly cited U.S.S.G. § 2X1.1 even though he cited subsection (a) when (b) was the subsection that is central to his argument. His written objection that “it can’t be said that defendant completed all necessary acts under [§] 2X1.1(a)” was sufficiently specific to alert the court to the nature of the alleged error and to provide an opportunity for correction.
  • Under U.S.S.G. § 2X1.1(b)(1), for an attempt-offense, the  offense level should be decreased by 3 unless the defendant completed all the acts he believed necessary for successful completion of the substantive offense or the circumstances show that he was about to complete all acts but-for apprehension or interruption by some event beyond his control. Whether a reduction is warranted considers these factors: (1) focus on the substantive offense and the defendant’s conduct in relation to it; (2) no reduction required for a conspirator who has made substantial progress in his criminal endeavor simply because a significant step remains before commission of the substantive offense; (3) a defendant is entitled to the reduction unless the circumstances demonstrate that the balance of the significant acts completed and those remaining tips toward completion of the substantive offense, considering the quality—not just the quantity—of the completed and remaining acts; and (4) the temporal frame of the scheme and the time the defendant would have needed to finish his plan had he not been interrupted because as completion of the offense becomes imminent, the reduction is less appropriate.
  • At the time of his arrest, Rodriguez-Leos was not on his way to deliver the ammo. He was shopping and did not have possession of the ammunition. There is no definitive evidence of a temporal timeframe because it is unclear when El Chivo would have called Rodriguez-Leos or when the crime would have been completed had the officers not seized the ammunition and arrested him.
  • The district court clearly erred in finding that Rodriguez-Leos completed all acts necessary and but-for the apprehension, was able to complete all the acts necessary for completion of the substantive offense of the exportation of ammunition. He did not have possession of the ammunition, nor was on his way to deliver it. The agents apprehended Rodriguez-Leos well before he or any co-conspirator had completed the acts necessary for the substantive offense, so the offense was not on the verge of completion. In both quantity and quality, the balance of the significant acts completed and those remaining does not tip toward completion of the substantive offense. 
  • The sentence is vacated and remanded for resentencing.

Editor’s note: the mystery of “El Chivo” remains. Hopefully Mr. Rodriguez-Leos learned his lesson and will never again traffic with a person known only as “The Goat.”

Texas Court of Criminal Appeals

Metcalf v. State, No. PD-1246-18, 2020 Tex.Crim.App. LEXIS 277 (Tex.Crim.App. April 1, 2020) (designated for publication)  (Sexual Assault of a child) [Party liability under Tex. Penal Code § 7.02(a)(3)]

  • Under Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997), the sufficiency of the evidence is measured by comparing the evidence produced at trial to the essential elements of the offense as defined by the hypothetically correct jury charge, which accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict theories of liability, and adequately describes the offense for which the defendant was tried. The law authorized by the indictment are the statutory elements as modified by indictment allegations. 
  • Under Tex. Penal Code § 7.02(a)(3), a person is criminally responsible for an offense committed by the conduct of another if…having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense. To prove the intent-to-promote-or-assist element, the State must show that it was the defendant’s conscious objective or desire for the primary actor to commit the crime. For evidence of intent, a court looks to events before, during and after the commission. Although a court may look to events after its commission, the intent to promote or assist must have been formed contemporaneously with—or before—the alleged crime was committed.  Circumstantial evidence is as probative as direct evidence when determining whether a person was a party to an offense. Party liability is as much an element of an offense as the enumerated elements prescribed in a statute that defines a crime.
  • Under Gonzales v. State, 304 S.W.3d 838 (Tex.Crim.App. 2010), “penetration of the anus or sexual organ” in the aggravated-sexual-assault statute defined two offenses because Aggravated Sexual Assault is a nature-of-conduct offense, penetration of the anus and penetration of the sexual organ are distinct acts, and “anus” and “sexual organ” are written in the disjunctive. The analysis is the same for Sexual Assault under Tex. Penal Code § 22.011(a)(1)(A), and “penetration of the anus or sexual organ” are different offenses and not merely two ways of committing the same offense.
  • A conviction must be reformed if: (1) in finding a defendant guilty of the greater offense, the jury necessarily found that the defendant committed the lesser offense, and (2) the evidence is legally sufficient to support the defendant’s conviction for the lesser offense. 

Facts:

  • Metcalf’s husband Allen began sexually abusing their daughter Amber when she was 13. In a voluntary statement, Metcalf said that once she woke at 2:30 a.m. when Allen came back to bed, claiming to be “checking on the kids,” which Metcalf found strange.
  • Amber did not tell anyone about the abuse at the time because Allen threatened to hurt her young siblings, and she believed him since he was already sexually abusing her.
  • Amber said that sometimes when she cried out at night, Metcalf would stand by her bedroom door and ask, “What’s going on?” When Allen left Amber’s room, he would tell Metcalf that Amber was having a nightmare. Amber stopped crying out because she thought that Metcalf was “letting it happen.”
  • When she was 15, Amber told Metcalf that Allen was a “monster” who was doing “bad things,” but she gave no details, and Metcalf did not ask what she meant.
  • When Amber was 16, she came home from jogging with Allen and was crying. Amber told Metcalf that Allen had slapped her and tried to pull down her shorts. Allen admitted to slapping Amber and trying to pull down her shorts but denied that it was sexual. He said that Amber started “whining about having to use the bathroom” a few minutes after they left the house, “so he took her behind a tree and pulled at her shorts.” Metcalf did not believe Allen that it was not sexual and kicked him out of the house, but she let him return later that day. She told police that even though she did not believe Allen, she had no proof. Metcalf gave Amber a cellphone and a whistle “in case Allen did something.” Metcalf told Amber to call her—not the police—if something happened. Metcalf also put up a beaded curtain on Amber’s bedroom door.
  • Once Metcalf left the house to stay at a motel for a night. Amber asked to go with her, but Metcalf would not let her. Amber did not know why, but it was suggested that it was because Metcalf had a migraine that day. Allen raped Amber that night.
  • A year later, Metcalf walked into Amber’s room and saw Allen on top of her, touching her vagina. Metcalf kicked him out of the house again. Allen repeatedly called Metcalf, begging to return. Metcalf called Amber and asked if Allen could return. She told her that she should think about the kids because they “need their dad.” Amber finally relented and agreed to let him return. Amber and Metcalf slept in the master bedroom while Allen slept on the couch. Allen never sexually assaulted her again.
  • When Amber was 19, she moved into her great aunt Emma’s house to work towards earning her GED. Blakeman learned of Allen’s sexual abuse a couple of years later when Amber was 22. Emma contacted Metcalf, and this was the first time Amber told Metcalf that Allen began sexually abusing her when she was 13. Emma and Amber went to the Sheriff’s Office and reported the abuse.
  • Allen pled guilty to 12 counts of second-degree Sexual Assault and three counts of Indecency with a Child.
  • Metcalf was indicted for Sexual Assault of a child for a 2010 alleged assault. She was charged as the primary actor, but the jury was instructed that it could convict her as a party.
  • The jury convicted Metcalf as a party, and she was sentenced to three years in prison.
  • The court of appeals reversed based on legal insufficiency, finding that to prove intent to promote or assist, the evidence must show that the parties were acting together, each doing some part of the execution of the common purpose, and the agreement to act must be made before or contemporaneous with the criminal event.
  • The court of appeals also found that the conviction cannot be reformed to Indecency with a Child because the evidence was insufficient to show that Metcalf had the intent to promote or assist the commission  of Indecency with a Child.

The Evidence was insufficient to prove that Metcalf had intent to promote or assist

  • Under Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997), the sufficiency of the evidence is measured by comparing the evidence produced at trial to the essential elements of the offense as defined by the hypothetically correct jury charge, which accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict theories of liability, and adequately describes the offense for which the defendant was tried. The law authorized by the indictment are the statutory elements as modified by indictment allegations. 
  • Under Tex. Penal Code § 7.02(a)(3), a person is criminally responsible for an offense committed by the conduct of another if…having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense. To prove the intent-to-promote-or-assist element, the State must show that it was the defendant’s conscious objective or desire for the primary actor to commit the crime. For evidence of intent, a court looks to events before, during and after the commission. Although a court may look to events after its commission, the intent to promote or assist must have been formed contemporaneously with—or before—the alleged crime was committed.  Circumstantial evidence is as probative as direct evidence when determining whether a person was a party to an offense. Party liability is as much an element of an offense as the enumerated elements prescribed in a statute that defines a crime.
  • Under Gonzales v. State, 304 S.W.3d 838 (Tex.Crim.App. 2010), “penetration of the anus or sexual organ” in the aggravated-sexual-assault statute defined two offenses because Aggravated Sexual Assault is a nature-of-conduct offense, penetration of the anus and penetration of the sexual organ are distinct acts, and “anus” and “sexual organ” are written in the disjunctive. The analysis is the same for Sexual Assault under Tex. Penal Code § 22.011(a)(1)(A), and “penetration of the anus or sexual organ” are different offenses and not merely two ways of committing the same offense.
  • A rational jury could have believed or disbelieved Amber’s testimony that she heard Allen tell Metcalf that Amber was just having nightmares, but there is no evidence from which a rational jury could have reasonably inferred that Metcalf did not believe Allen and that she knew he was sexually assaulting Amber.
  • While Amber’s statements to Metcalf that Allen was a “monster” and was doing “bad things” are incredibly troubling, they were too ambiguous to support a reasonable inference that Metcalf knew that Allen was sexually assaulting Amber. Amber never told Metcalf what she meant, and Metcalf never asked.
  • With respect to the jogging incident, the evidence was sufficient to show that Metcalf thought that Allen was sexually interested in Amber, but Metcalf’s belief does not support a reasonable inference that because Metcalf thought that it was sexual for Allen, she must have known that Allen had been sexually assaulting Amber or that he would in the future.
  • Although the whistle, cellphone, and beaded curtain that Metcalf gave to Amber were woefully inadequate, it tends to show that it was not Metcalf’s intent to promote or assist Allen in sexually assaulting Amber.  While a rational jury did not have to believe that Metcalf gave Amber the cellphone and whistle and put up the beaded curtain to protect her, there is no other evidence showing why Metcalf gave Amber those items and put the curtain up. Even if the jury disbelieved Metcalf, it could not have reasonably inferred from the disbelief that Metcalf gave Amber the cellphone and whistle because it was her intention to promote or assist in the commission of sexual assaults.
  • It is clear that Metcalf knew that Allen was sexually assaulting Amber when she walked into Amber’s room and saw Allen with his hand on Amber’s vagina a year after the charged offense, but it does not prove that Metcalf knew Allen was sexually assaulting Amber at the time of the charged offense, and there is no other evidence showing that it was Metcalf’s conscious objective or desire for Allen to sexually assault Amber, so she could not have intended to promote or assist the commission of that offense.
  • A conviction must be reformed if: (1) in finding a defendant guilty of the greater offense, the jury necessarily found that the defendant committed the lesser offense, and (2) the evidence is legally sufficient to support the defendant’s conviction for the lesser offense. 
  • The court of appeals was correct that the evidence did not show that Metcalf intended to promote or assist in the commission of Indecency with a Child. 
  • The evidence is insufficient to sustain Metcalf’s conviction for Sexual Assault of a child and the conviction cannot be reformed to reflect a lesser-included offense. The judgment of the court of appeals is affirmed, rendering an acquittal.

Ex parte Rodgers, No. WR-89,477-01, 2020 Tex.Crim.App.LEXIS 286 (Tex.Crim.App. April 8, 2020) (designated for publication) (Art. 11.07-proceeding) [Illegal sentence claim raised for the first time on habeas corpus; waiver by not objecting to a defective indictment; Parrott harmless error]

  • A defendant may raise an illegal sentence claim at any time, including for the first time in an initial application for writ of habeas corpus.
  • A defective indictment that purports to charge an offense and is facially an indictment, per Tex. Const. Art. V, § 12(b) is a valid indictment that is sufficient to vest the district court with subject-matter jurisdiction. 
  • When a defendant does not object to even a defective indictment that is facially an indictment, the defendant cannot later challenge its efficacy to invoke the jurisdiction of the district court. This follows Tex. Code Crim. Proc. Art. 1.14(b), which provides that if a defendant does not object to a defect, error, or irregularity of form or substance in an indictment before the date on which the trial on the merits commences, he waives the right to object to the defect, error, or irregularity and may not raise the objection on appeal or in any other postconviction proceeding.
  • Under Ex parte Parrott, 396 S.W.3d 531 (Tex.Crim.App. 2013), even errors that might affect jurisdiction are not automatically insulated from a harm analysis. Generally, an applicant must show harm to obtain habeas relief for an illegal sentence-claim based on the improper use of a prior conviction to enhance punishment. 
  • Under Flowers v. State, 220 S.W.3d 919, 921 (Tex.Crim.App. 2007), to prove up a prior conviction, the State must prove beyond a reasonable doubt: (1) its existence; and (2) that the defendant is linked to the conviction. Evidence linking a defendant to a prior conviction may be circumstantial and may be proved in different ways, including by the defendant’s admission.

Facts:

  • Applicant was indicted for DWI per Tex. Penal Code § 49.04, enhanced to an F-3 per Tex. Penal Code § 49.09(b)(2) because of two prior alleged DWI convictions, enhanced to habitual-offender status under Tex. Penal Code § 12.42(d) to 25-99 years because of two additional DWI convictions, both of which were felonies.
  • Under a plea-agreement in which the State abandoned one of the alleged convictions to obtain habitual-offender status, Applicant pleaded guilty to an F-2. He was admonished about the range of punishment for an F-2 and was sentenced to 15 years TDCJ. Applicant did not appeal.
  • Applicant filed an application for writ of habeas corpus under Tex. Code Crim. Proc. Art. 11.07, arguing that the indictment authorized only a misdemeanor DWI because the State made a mistake in its allegation of the second jurisdictional prior DWI by alleging the same prior conviction twice with a slight variation in the cause numbers: F-9652378-IW, which was genuine, and F-9652378-HW, which did not exist.
  • Applicant’s trial counsel provided an affidavit—found credible by the trial court—explaining that his pretrial investigation revealed that the State had indeed used the nonexistent cause number, but Applicant had two other DWI convictions not alleged in the indictment: F-9949146 and F-9553407. Applicant was on probation in F-9553407 when on November 10, 1999, he was convicted in F-9949146, and his probation in F-9553407 was revoked. Trial counsel believed that either unpled priors would have been available for use as jurisdictional enhancements and could have been alleged in place of the nonexistent F-9652378-HW to raise Applicant’s present offense to an F-3. Thus, filing a motion to quash the indictment would have been poor strategy because the unpled priors would have been available to be substituted as jurisdictional-enhancement allegations and Applicant had the plea-offer in which the State agreed to abandon one of the enhancement-paragraphs and seek only 15 years. Ultimately, despite knowing about the flaw in the indictment, Applicant accepted the State’s offer.

Applicant failed to show harm in the defective indictment

  • A defendant may raise an illegal sentence claim at any time, including for the first time in an initial application for writ of habeas corpus.
  • A defective indictment that purports to charge an offense and is facially an indictment, per Tex. Const. Art. V, § 12(b) it is a valid indictment that is sufficient to vest the district court with subject-matter jurisdiction. 
  • When a defendant does not object to even a defective indictment that is facially an indictment, the defendant cannot later challenge its efficacy to invoke the jurisdiction of the district court. This follows Tex. Code Crim. Proc. Art. 1.14(b), which provides that if a defendant does not object to a defect, error, or irregularity of form or substance in an indictment before the date on which the trial on the merits commences, he waives the right to object to the defect, error, or irregularity and may not raise the objection on appeal or in any other postconviction proceeding.
  • Under Ex parte Parrott, 396 S.W.3d 531 (Tex.Crim.App. 2013), even errors that might affect jurisdiction are not automatically insulated from a harm analysis. Generally, an applicant must show harm to obtain habeas relief for an illegal sentence-claim based on the improper use of a prior conviction to enhance punishment. 
  • Under Flowers v. State, 220 S.W.3d 919, 921 (Tex.Crim.App. 2007), to prove up a prior conviction, the State must prove beyond a reasonable doubt: (1) its existence; and (2) that the defendant is linked to the conviction. Evidence linking a defendant to a prior conviction may be circumstantial and may be proved in different ways, including by the defendant’s admission.
  • The circumstantial evidence supports the convicting court’s finding that the State could have used F-9949146 or F-9553407 in place of the nonexistent F-9652378-HW to cross the jurisdictional divide from misdemeanor DWI to F-3 DWI.
  • Despite having knowledge of the problems with the indictment, Applicant accepted the State’s plea-offer and did not challenge the prior convictions pretrial.
  • The Parrott harmless-error analysis applies, and Applicant failed to meet his burden to show that he was harmed by the invalid enhancement. Relief is denied.

Tracy v. State, No. AP-77,076, 2020 Tex.Crim.App. LEXIS 276 (Tex.Crim.App. April 1, 2020) (designated for publication) (Capital Murder) [No hybrid representation under the Texas Const.; change of venue]

  • Under Tex. Const. Art. I, § 10, the constitutional right of a defendant to be “heard” is to assure the right to testify, not to engage in hybrid representation, and was not intended to encompass the right to self-representation as held in Faretta v. California, 422 U.S. 806 (1975).
  • A change of venue may be granted if the defendant establishes that there exists in the county where the prosecution is commenced so great a prejudice against him that he cannot obtain a fair and impartial trial. A change of venue based on media attention requires a showing that the publicity was “pervasive, prejudicial, and inflammatory.” Widespread publicity by itself is not inherently prejudicial. A defendant must demonstrate an actual, identifiable prejudice attributable to pretrial publicity on the part of the community from which members of the jury will come. A ruling on a motion for change of venue is for an abuse of discretion and will be upheld if it falls within the zone of reasonable disagreement. The primary means of discerning whether publicity is pervasive are a hearing on the motion to change venue and testimony during voir dire.

Facts:

  • Appellant was in prison because in 1998, he entered the home of 16-year-old Kasey Kuhn through an open window and demanded sex. Biting and hitting him, Kuhn refused. Appellant covered her face with a pillow and choked her until he thought she was dead. Appellant dropped her out of her window, put her in his car, and drove around. When Kuhn regained consciousness, Appellant beat her until she lost consciousness. He pulled her out of the car and dragged her into the woods.
  • Officer Britt noticed Appellant’s car on the side of the road, found the situation suspicious, got out of his car, and heard “help me help me.” He saw Appellant on the ground by the car with blood on his hands and believed that he was drunk. Britt pulled his weapon and approached Appellant. Appellant ran away and broke into and hid in several homes, stealing cash and jewelry.
  • Britt noticed Kuhn, covered in blood with her throat slit. Kuhn was transported to the hospital where she was treated for a broken orbital bone, broken nose, and lost teeth. She underwent surgery to have a plate inserted in her face to hold the bones together. She suffered debilitating migraines and permanent injury to her vision.
  • While awaiting trial, Appellant was involved in numerous incidents at Rockwall County Jail, including throwing feces and urine at officers, threatening inmates and officers, attacking inmates, and possessing contraband. One officer described him as “the most difficult inmate he ever had to deal with.” Appellant also attempted to escape by slipping his handcuffs off, taking an officer’s gun, firing, and missing.
  • Appellant was convicted of Aggravated Assault, Assault on a public servant, and Burglary of a habitation. He was sentenced to life.
  • At the Allred Unit, Appellant committed 27 assaults on officers, threatened to kill them, threw darts at them, and was caught in possession of contraband so often that his cell was searched every 4 hours. Chemical agents were used many times to subdue him. Appellant converted a welding rod into a shank and stabbed an officer in the shoulder, causing his transfer to the Clements Unit.
  • At the Clements Unit, Appellant attacked Officer Katie Stanley with a metal shank, kicked her in the head, and unsuccessfully tried to throw her over the railing of the 3rd floor. A video of this assault was created to show new officers during training. Appellant pleaded guilty to Aggravated Assault with a deadly weapon on a public servant, Aggravated Assault causing SBI on a public servant, and Possession of a Deadly Weapon in a Penal Institution. He received 45 years and was transferred to the Robertson Unit.
  • At the Robertson Unit, Appellant was found in possession of contraband like needles, screwdrivers, protractors, sandpaper, razor blades, and sharpened metal. He tampered with a lock and threatened officers. He slashed the face of Officer Lomas with a weapon made from razor blades, requiring 200 stitches. Appellant received a 10-year sentence for Assault on a public servant and was transferred to the Hughes Unit.
  • At the Hughes Unit, Appellant was found in possession of contraband, defeated the facility’s x-ray machine, planned an escape, was found in possession of escape-tools like sandpaper, saw blades, and a homemade Dremel tool. Appellant was transferred to the Telford Unit.
  • At the Telford Unit, Appellant was in administrative segregation. He was escorted by an officer to recreation, where he stretched to prepare his assault on Officer Davison, an officer in segregation. Appellant was escorted back to his cell by Davison, who had chemical spray and a metal slot bar used to open cell doors and food tray slots. As Appellant was escorted, he manipulated his hand restraints and placed them both on his right wrist. When Davison opened Appellant’s cell door, Appellant struck him with his fists until Davison was knocked to the floor. Appellant grabbed the metal slot bar and struck him in the head until he became incapacitated. Appellant continued to strike Davison with the metal bar after he lost consciousness. Appellant  removed the chemical spray from Davison’s belt, grabbed him by his legs, and threw him down the staircase. Appellant threw the slot bar down the stairs and sprayed the spray towards Davison before walking back to his cell and closing the door behind him. Davidson died shortly later at a hospital. DNA-analysis of the slot bar and Appellant’s shoes show a mixture profile that was 3.24 sextillion times more likely to be DNA from Davison and Appellant than two unrelated, unknown individuals. The assault was on video.
  • An extraction team removed Appellant from his cell, and he was placed in a separate holding cell. Appellant made numerous comments to officers about how the staff were “stupid” for not having a lieutenant guard his cell and that this is “just what [he] does.” He told one officer, “yeah I beat [Davison’s] ass why do you care it’s not like y’all are friends,” and said “maybe next time” it would be another officer. Appellant claimed that he could hurt anyone in prison any time he wanted. Officers described Appellant as extremely violent, unpredictable, manipulative, problematic, and resistant to authority.
  • Before trial, Appellant filed a motion to transfer venue from Bowie County, arguing that the Telford Unit is an important economic entity in the county, creating a likelihood that a fair and impartial trial would be impossible.
  • At the hearing, the defense investigator testified to media coverage by print and digital newspapers and social media, including online comments made by correctional employees and other county residents. He acknowledged that he could not estimate how many people saw or read these articles and comments. He also agreed that the facts reported accurately depicted the incident between Appellant and Davison.
  • The Bowie County Judge testified that there are nearly 100,000 residents in Bowie County, and none had contacted him about the case. He also believed Appellant could receive a fair and impartial trial in Bowie County, that there was not excessive prejudicial opinion among county citizens, and the news coverage was not prejudicial or inflammatory.
  • The motion to transfer venue was denied.
  • Appellant filed numerous pro se pretrial motions. At a hearing, the trial court said that Appellant was not entitled to hybrid representation and refused to rule on any of the pro se motions that appointed counsel had not reviewed.
  • The jury found Appellant guilty of Capital Murder, then returned the special verdict answering “yes” to special issue 1 and “no” to special issue 2. The judge sentenced Appellant to death.

The trial court did not commit structural error by denying Appellant’s request for hybrid representation in violation of the Texas Constitution

  • Under Tex. Const. Art. I, § 10, the constitutional right of a defendant to be “heard” is to assure the right to testify, not to engage in hybrid representation, and was not intended to encompass the right to self-representation as held in Faretta v. California, 422 U.S. 806 (1975).
  • There was no structural error in the trial court denying Appellant’s request for hybrid representation.

The trial court did not err in denying the motion to change venue

  • A change of venue may be granted if the defendant establishes that there exists in the county where the prosecution is commenced so great a prejudice against him that he cannot obtain a fair and impartial trial. A change of venue based on media attention requires a showing that the publicity was “pervasive, prejudicial, and inflammatory.” Widespread publicity by itself is not inherently prejudicial. A defendant must demonstrate an actual, identifiable prejudice attributable to pretrial publicity on the part of the community from which members of the jury will come. A ruling on a motion for change of venue is for an abuse of discretion and will be upheld if it falls within the zone of reasonable disagreement. The primary means of discerning whether publicity is pervasive are a hearing on the motion to change venue and testimony during voir dire.
  • Evidence supports the conclusion that the media coverage was not extensive, inflammatory, or prejudicial to such an extent that a fair and impartial trial would be impossible. Although there were print and digital newspaper articles and social media posts relating to the case, there was no estimate of how many people in Bowie County received or read those articles. Testimony showed that many commenting, posting, and responding to the articles were not county residents and would not be in the jury pool. Furthermore, news stories that are accurate and objective in their coverage are generally considered not to be prejudicial or inflammatory.
  • A large part of the jury pool lives in the Texarkana area, so those summoned would not necessarily live near the prison.
  • The trial judge acted within the zone of reasonable disagreement in denying the motion to change venue.
  • The judgment of the trial court is affirmed.

Editor’s note: not included are several death-penalty-specific issues regarding voir dire and punishment that may be of interest to death-penalty practitioners.

Texas Courts of Appeals

Ex parte Moon, No. 01-18-01014-CR, 2020 Tex.App.-LEXIS 1397 (Tex.App.-Houston [1st Dist.] Feb. 20, 2020) (designated for publication) (Pretrial habeas corpus) [Juvenile discretionary transfers; sufficiency of the evidence in habeas cases; double jeopardy]

  • Under Tex. Fam. Code §§ 51.02(2)(A) & 51.04(a), juvenile courts have exclusive original jurisdiction over cases involving delinquent conduct by children ages 10-17 under the Juvenile Justice Code (Tex. Fam. Code §§ 51.01-61.107).
  • Under Tex. Fam. Code  § 54.02(a), a juvenile court may waive its exclusive original jurisdiction and allow transfer of the proceeding to a district court. 
  • If the juvenile is under 18, the court must find: (1) a felony was committed; (2) the child was: (A) 14 or older when the offense was committed if it is a capital, aggravated controlled substance, or F-1, and no adjudication hearing was conducted; or (B) 15 or older when the offense was committed if it is an F-2, F-3, or SJF, and no adjudication hearing was conducted; and (3) after investigation and hearing, the court determines there is probable cause to believe that the child committed the offense and because of its seriousness or his background, the welfare of the community requires transfer, which requires consideration of:
  • (i) whether the offense was against person or property, with greater weight given to offenses against the person;
  • (ii) sophistication and maturity of the child;
  • (iii) previous history of the child; and
  • (iv) prospects of adequate protection of the public and the likelihood of rehabilitation by use of procedures, services, and facilities available to the juvenile court.
  • If he is 18 or older, the court may waive jurisdiction if it finds:
  • (1) he 18 or older;
  • (2) he was: (A) 10 or older and under 17 when a capital felony or Murder was committed; (B) 14 or older and under 17 when an aggravated controlled substance or F-1 other than Murder was committed; or (C) 15 or older and under 17 when an F-2, F-3, or SJF was committed;
  • (3) no adjudication was made, and no hearing was conducted;
  • (4) the court finds from a preponderance of the evidence that: (A) for a reason beyond the control of the state it was not practicable to proceed in juvenile court before his 18th birthday; or (B) after due diligence of the state it was not practicable to proceed in juvenile court before his 18th birthday because: (i) the state did not have probable cause to proceed in juvenile court and new evidence was found after he turned 18; (ii) he could not be found; or (iii) a previous transfer order was reversed by an appellate court or set aside by a district court; and (5) the court determines there is probable cause to believe that the child committed the offense alleged.
  • An attack on the sufficiency of the evidence to support transfer under Tex. Fam. Code  § § 54.02(j) is not cognizable on pretrial writ of habeas corpus because there is an adequate remedy by appeal if the transfer order was entered on or after September 1, 2015, so Tex. Code Crim. Proc. Art. 44.47 applies, which requires the transfer-decision to be reviewed on direct appeal. 
  • Under the Double Jeopardy Clause of the Fifth Amendment, applicable to the states through the Due Process Clause of the Fourteenth Amendment, protects an accused from being placed twice in jeopardy for the same offense. Under Lockhart v. Nelson, 488 U.S. 33, 40-41 (1988), the Double Jeopardy Clause protects defendants from: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. Although the Double Jeopardy Clause precludes retrial of a defendant whose conviction is reversed on appeal because of insufficient evidence, it does not preclude retrial when the conviction is reversed on appeal for trial error. 

Facts:

  • On November 19, 2008 when Moon was 16, the State filed a petition alleging that Moon engaged in delinquent conduct by committing Murder. The State also filed a motion under Tex. Fam. Code § 54.02(a) and (f) asking the juvenile court to waive its exclusive original jurisdiction and transfer Moon to the district court, alleging that because of the seriousness of the offense, the welfare of the community required waiver of juvenile jurisdiction.
  • On December 17, 2008, the juvenile court held a certification hearing and granted the State’s motion to waive jurisdiction.
  • On December 18, 2008, the juvenile court signed an order waiving jurisdiction and transferring the case to the District Court. The order stated that the court determined that there is probable cause to believe that the child committed Murder and because of the seriousness of it, the welfare of the community requires it. The order also found that the offense was against a person, the sophistication and maturity of Moon, his record and previous history, and prospects of adequate protection of the public and likelihood of reasonable rehabilitation.
  • On April 19, 2010, the jury convicted Moon of Murder and assessed punishment at 30 years.
  • On direct appeal, the court of appeals held that the juvenile court abused its discretion in waiving jurisdiction and certifying Moon, vacated the judgment, and dismissed the criminal proceedings. 
  • The TCCA affirmed, holding that to waive original jurisdiction, a juvenile court must state the reasons for waiving and the findings of fact that support the reasons. Failure to do so may result in a finding of insufficient evidence to support the waiver. The only reason stated in the juvenile court’s order to justify waiver was that the offense alleged was serious, and the only fact supporting it was that the offense alleged was committed against a person. 
  • Upon remand to the juvenile court, the State filed a second motion to waive jurisdiction, this time per Tex. Fam. Code § 54.02(j), which applies to those who are 18 or older at the time of the certification hearing. Moon moved to dismiss the juvenile proceeding.
  • At the certification hearing on April 9, 2015, Moon argued that the State could not prove the elements of § 54.02(j) and it violated his constitutional rights to due process, equal protection, and double jeopardy. The juvenile court granted the State’s second motion, recertified Moon, and denied Moon’s motion to dismiss. 
  • On May 7, 2015, the juvenile court signed an order waiving jurisdiction, transferring the case to district court, and found: (1) Moon is 18 years or older; (2) Moon was 10 or older and under 17 when he allegedly committed Murder; (3) no adjudication has been made and no hearing has been conducted; (4) by a preponderance of the evidence after due diligence of the State, it was not practicable to proceed in juvenile court before his 18th birthday because a previous transfer order was reversed; and (5) that there is probable cause to believe that Moon committed Murder.
  • On September 23, 2015, a grand jury indicted Moon for Murder.
  • On June 7, 2018, Moon filed an application for a pretrial writ of habeas corpus challenging the constitutionality of Tex. Fam. Code § 54.02(j) and Tex. Code Crim. Proc. Art. 44.47.
  • On October 24, 2018, the district court denied the application.

Law on discretionary transfers

  • Under Tex. Fam. Code §§ 51.02(2)(A) & 51.04(a), juvenile courts have exclusive original jurisdiction over cases involving delinquent conduct by children ages 10-17 under the Juvenile Justice Code (Tex. Fam. Code §§ 51.01-61.107).
  • Under Tex. Fam. Code  § 54.02(a), a juvenile court may waive its exclusive original jurisdiction and allow transfer of the proceeding to a district court. 
  • If the juvenile is under 18, the court must find: (1) a felony was committed; (2) the child was: (A) 14 or older when the offense was committed if it is a capital, aggravated controlled substance, or F-1, and no adjudication hearing was conducted; or (B) 15 or older when the offense was committed if it is an F-2, F-3, or SJF, and no adjudication hearing was conducted; and (3) after investigation and hearing, the court determines there is probable cause to believe that the child committed the offense and because of its seriousness or his background, the welfare of the community requires transfer, which requires consideration of:
  • (i) whether the offense was against person or property, with greater weight given to offenses against the person;
  • (ii) sophistication and maturity of the child;
  • (iii) previous history of the child; and
  • (iv) prospects of adequate protection of the public and the likelihood of rehabilitation by use of procedures, services, and facilities available to the juvenile court.
  • If he is 18 or older, the court may waive jurisdiction if it finds:
  • (1) he 18 or older;
  • (2) he was: (A) 10 or older and under 17 when a capital felony or Murder was committed; (B) 14 or older and under 17 when an aggravated controlled substance or F-1 other than Murder was committed; or (C) 15 or older and under 17 when an F-2, F-3, or SJF was committed;
  • (3) no adjudication was made, and no hearing was conducted;
  • (4) the court finds from a preponderance of the evidence that: (A) for a reason beyond the control of the state it was not practicable to proceed in juvenile court before his 18th birthday; or (B) after due diligence of the state it was not practicable to proceed in juvenile court before his 18th birthday because: (i) the state did not have probable cause to proceed in juvenile court and new evidence was found after he turned 18; (ii) he could not be found; or (iii) a previous transfer order was reversed by an appellate court or set aside by a district court; and (5) the court determines there is probable cause to believe that the child committed the offense alleged.
  • Under Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App. 2006), review a trial court’s ruling on a pretrial writ of habeas corpus is for an abuse of discretion. Facts are viewed in the light most favorable to the trial court’s ruling. 

An attack on the sufficiency of a discretionary transfer is not cognizable on habeas corpus

  • An attack on the sufficiency of the evidence to support transfer under Tex. Fam. Code  § § 54.02(j) is not cognizable on pretrial writ of habeas corpus because there is an adequate remedy by appeal if the transfer order was entered on or after September 1, 2015, so Tex. Code Crim. Proc. Art. 44.47 applies, which requires the transfer-decision to be reviewed on direct appeal. 
  • Because Moon has an adequate remedy by direct appeal of the discretionary transfer decision under Art. 44.47, he may not use a pretrial writ of habeas corpus to appeal prematurely sufficiency challenges.

Double jeopardy was not violated

  • Under the Double Jeopardy Clause of the Fifth Amendment, applicable to the states through the Due Process Clause of the Fourteenth Amendment, protects an accused from being placed twice in jeopardy for the same offense. Under Lockhart v. Nelson, 488 U.S. 33, 40-41 (1988), the Double Jeopardy Clause protects defendants from: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. Although the Double Jeopardy Clause precludes retrial of a defendant whose conviction is reversed on appeal because of insufficient evidence, it does not preclude retrial when the conviction is reversed on appeal for trial error. 
  • Here, the first order certifying Moon was reversed because the transfer order itself was defective and not because the evidence against him was insufficient. Because Moon’s prior conviction for Murder was reversed due to trial error and not insufficient evidence, double jeopardy does not preclude the juvenile court from waiving jurisdiction and recertifying Moon as an adult. 
  • The denial of Moon’s pretrial writ of habeas corpus is affirmed.

In re M.T.R., No. 01-18-00938-CV, 2020 Tex.App.-LEXIS 1649 (Tex.App.-Houston [1st Dist.] Feb. 27, 2020) (designated for publication) (Expunction proceedings) [Same criminal episode in expunction proceedings]

  • Under State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018), a ruling on a petition for expunction is reviewed for an abuse of discretion. A trial court abuses its discretion if it acts arbitrarily or unreasonably without reference to guiding rules and principles of law. Legal determinations are reviewed de novo. Deference is afforded to factual issues resolved by the trial court.
  • Under State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018), statutes are analyzed as a cohesive, contextual whole with the goal of effectuating Legislative intent and employing the presumption that the Legislature intended a just and reasonable result. Appellate analysis is limited to application of the plain meaning of the statutory language unless a different meaning is apparent from the context or the plain meaning leads to absurd or nonsensical results.
  • Under Tex. Code Crim. Proc. Art. 55.01(c), a court may not order the expunction of records relating to an arrest for an offense for which a person is subsequently acquitted—whether by the trial court appellate court—if the offense arose out of a criminal episode per Tex. Penal Code § 3.01, and was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode.  Under Tex. Penal Code § 3.01, criminal episode means the commission of two or more offenses—regardless of whether the harm is directed toward or inflicted upon more than one person or property—if they are: (1) committed in the same transaction that are connected or constitute a common scheme or plan; or (2) the repeated commission of the same or similar offenses.
  • Tex. Penal Code § 3.01(2) does not impose a time frame within which the same or similar offenses must be repeated. A criminal episode may include multiple arrests or transactions. Nor does it require that the offenses be committed within a geographic location or jurisdiction or that they be committed in the same or similar fashion. It requires only that they are repeated commission of the same or similar offense. The court presumes that the Legislature chose this language “with care” and its decision to omit language imposing a time frame or other limitations on the definition of a criminal episode was purposeful. 

Facts:

  • In 2012, M.T.R. was arrested for BWI. He pleaded guilty, was convicted, and served 3 days in jail.
  • In 2015, M.T.R. was arrested and charged with DWI-2nd. A jury found M.T.R. not guilty.
  • In 2018, M.T.R. filed a petition for expunction seeking to have records of the 2015 DWI-arrest expunged.
  • DPS answered that M.T.R. is barred from expunging those records because M.T.R. was convicted of an offense arising out of the “same criminal episode.”
  • The trial court granted M.T.R.’s petition and DPS appealed.

M.T.R. is not entitled to expunge his 2015 DWI arrest

  • Under State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018), a ruling on a petition for expunction is reviewed for an abuse of discretion. A trial court abuses its discretion if it acts arbitrarily or unreasonably without reference to guiding rules and principles of law. Legal determinations are reviewed de novo. Deference is afforded to factual issues resolved by the trial court.
  • Under State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018), statutes are analyzed as a cohesive, contextual whole with the goal of effectuating Legislative intent and employing the presumption that the Legislature intended a just and reasonable result. Appellate analysis is limited to application of the plain meaning of the statutory language unless a different meaning is apparent from the context or the plain meaning leads to absurd or nonsensical results.
  • Under Tex. Code Crim. Proc. Art. 55.01(c), a court may not order the expunction of records relating to an arrest for an offense for which a person is subsequently acquitted—whether by the trial court appellate court—if the offense for which the person was acquitted arose out of a criminal episode per Tex. Penal Code § 3.01, and was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode.  Under Tex. Penal Code § 3.01, criminal episode means the commission of two or more offenses—regardless of whether the harm is directed toward or inflicted upon more than one person or property—if they are: (1) committed in the same transaction that are connected or constitute a common scheme or plan; or (2) the repeated commission of the same or similar offenses.
  • Tex. Penal Code § 3.01(2)’s plain language does not impose a time frame within which the same or similar offenses must be repeated. A criminal episode may include multiple arrests or transactions. Nor does it require that the offenses be committed within a geographic location or jurisdiction or that they be committed in the same or similar fashion. It requires only that they are repeated commission of the same or similar offense. The court presumes that the Legislature chose this language “with care” and its decision to omit language imposing a time frame or other limitations on the definition of a criminal episode was purposeful. 
  • M.T.R.’s 2015 DWI arrest is the repeated commission of the same or similar offense as his 2012 BWI conviction. 
  • M.T.R. is not entitled to an expunction. The trial court’s expunction order is reversed, and judgment is rendered denying M.T.R.’s petition for expunction related to his 2015 DWI arrest.

Editor’s note: opinions like this ensure continued employment in DPS’s expunction-opposition division.

Spielbauer v. State, No. 07-18-00028-CR, 2020 Tex.App.-LEXIS 591 (Tex.App.-Amarillo Jan. 22, 2020) (Murder) [Preservation of challenges for cause]

  • Under Thomas v. State, 408 S.W.3d 877, 884 (Tex.Crim.App. 2013) and Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App. 1992), preservation of error is not an inflexible concept and should not be mechanically applied. The standards of procedural default are not to be implemented by splitting hairs. All a party must do to avoid forfeiture of a complaint is to let the trial judge know what he wants and why he thinks he is entitled to it clearly enough for the judge to understand him at a time when the trial court is in a position to do something about it.
  • Under Tex. Code Crim. Proc. Art. 35.16(a), a prospective juror may be challenged for cause by making an objection alleging some fact that renders the juror incapable or unfit to serve on the jury. Per Art. 35.16(a)(10), a challenge for cause may be made by either party alleging that from hearsay or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant that influences the juror in finding a verdict. To ascertain whether this cause of challenge exists, the juror must first be asked whether in his opinion the conclusion influences his verdict. If the juror answers yes, he shall be discharged without further interrogation by either party or the court. If the juror answers no, he shall be further examined as to how his conclusion was formed and the extent to which it will affect his action.
  • Under Johnson v. State, 43 S.W.3d 1, 5 (Tex.Crim.App. 2001), failure to discharge a venire member subject to a proper challenge for cause results in error as a matter of law.  
  • Under Tex. Code Crim. Proc. Art. 35.14, a peremptory challenge is a challenge to a member of the jury panel without assigning a reason. It may be made for any reason or for no reason at all. In a noncapital felony case or in a capital case that the State does not seek death, the parties are each entitled to 10 peremptory challenges. After voir dire is complete, the parties shall strike the name of such juror from the list. Each party’s list is delivered to the clerk who calls off the first 12 names not stricken. 
  • Under Buntion v. State, 482 S.W.3d 58, 83 (Tex.Crim.App. 2016), if the trial court errs in overruling a challenge for cause, the appellant must show that he was harmed because he was forced to use a peremptory challenge to remove that member and he suffered a detriment from the loss of that peremptory challenge. To preserve the issue and show harm, the defendant must: (1) make challenges for cause, (2) use peremptory strikes on the complained-of venire members, (3) exhaust all peremptory strikes, (4) request and be denied additional peremptory strikes, and (5) identify the objectionable jurors who sat  on the jury. 

Facts

  • Appellant and Robin were married in 2005. Years later they befriended Katie with whom Appellant began having an affair.
  • In 2012, Robin divorced Appellant. A year later, he married Katie.
  • In 2014, Katie suspected that Appellant and Robin were having an affair. Robin and Katie’s relationship was acrimonious.
  • On April 8, 2014, Robin’s body was discovered by passers-by near her Tahoe on a dirt road.
  • Robin suffered blunt-force trauma and was shot in the back of the head. Pink plastic pieces found at the scene and pink smears transferred onto the window of the Tahoe matched a pink gun owned by Katie.
  • Forensics confirmed that Katie’s pink gun was the murder weapon.
  • Katie was charged with the murder.
  • Before Appellant became a suspect, he retained attorneys to enter into a Use Immunity Agreement with the DA’s Office regarding the case against Katie. Under it, if Appellant gave truthful and complete information about Robin’s death, the information would not be used against him in a prosecution. Otherwise, the agreement would be void. Based on this Agreement, Appellant cooperated.
  • More than a year after Katie was arrested, she was ruled out as a suspect by cellphone forensics, which determined that Katie could not have been where Robin was killed.
  • Appellant became the suspect when experts placed his cellphone near the scene at about the time of Robin’s death, and they located an image of Appellant’s vehicle on a bank’s security camera near the scene and close to the time of death.
  • This evidence contradicted statements Appellant made and showed that he had the opportunity to commit the murder and return home even though he claimed he never left home that night.
  • Authorities theorized Appellant killed Robin with Katie’s pink gun to frame her. Investigators obtained text messages suggesting that Appellant and Robin had planned to meet that night where her body was discovered. When the investigators confronted Appellant, his stories and timelines varied from earlier statements.
  • The grand jury indicted Appellant for capital murder with an underlying felony of Robbery.
  • Venire members were given a questionnaire containing 32 questions that began with a section captioned “AWARENESS OF CASE” with this agreed summary: “It is alleged that…Robin…was shot to death by (Appellant). Robin… was found the next day lying next to an SUV…”  The questionnaire then asked: “(1) Do you think you heard about this case? If yes, give details; and (2) If you heard about this case, based upon what you heard, have you formed an opinion as to (Appellant’s) guilt or innocence that would influence you in finding a verdict?”
  • Six members answered “yes” in response to question 2. Trial counsel argued they were “automatically disqualified” from serving and no further questioning is to be had. The State was not opposed to excusing members who held the position but argued that they could not tell from a simple “yes or no” answer.
  • The trial court requested the clerk to summon the 6 venire members, including Freethy and Havlik. 4 of them were excused by agreement.
  • Freethy said he watches news every day and heard about it but doesn’t remember much. He was not sure why he answered “yes” to question 2. Appellant made an Art. 35.16(a)(10) objection, but the trial court did not provide a ruling.
  • Havlik answered “No” when asked if he had already “formed an opinion. No further questions were permitted to be asked and Havlik was excused from the courtroom. Appellant made an Art. 35.16(a)(10) objection but was overruled. At this point, the trial court also overruled the objection as to Freethy.
  • Appellant renewed his challenge to Freethy and Havlik, which were overruled. He asked for two additional peremptory challenges for the overruled objections, which was denied. Appellant was forced to use two peremptory challenges to strike Freethy and Havlik.
  • Stoffle and Cooper were also objectionable to Appellant, but he was unable to strike them because he did not receive the two additional peremptory challenges.
  • Appellant was convicted and sentenced to life.

Appellant preserved the issue for appeal

  • Under Thomas v. State, 408 S.W.3d 877, 884 (Tex.Crim.App. 2013) and Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App. 1992), preservation of error is not an inflexible concept and should not be mechanically applied. The standards of procedural default are not to be implemented by splitting hairs. All a party must do to avoid forfeiture of a complaint is to let the trial judge know what he wants and why he thinks he is entitled to it clearly enough for the judge to understand him at a time when the trial court is in a position to do something about it.
  • When the objections were made, the members selected had not been sworn and empaneled and the pool was not released. Additional jurors were available, and the trial court could have avoided reversible error by granting the two additional peremptory challenges.
  • Requiring a defendant to identify the venire members he would strike through the use of additional peremptory challenges prior to the exercise of peremptory challenges places him at a disadvantage to the State by requiring that he “tip his hand” as to which members he might find objectionable.
  • Appellant was not attempting to exercise peremptory challenges against Stoffle and Cooper after the clerk called the names of the seated members. He was merely advising the trial court of the objectionable jurors he was forced to accept because he was required to use two peremptory challenges to strike jurors who should have excused for cause. The trial court was aware of the objection at a time and in a manner when it could have been corrected. Appellant preserved the complaint. 

The trial court abused its discretion in denying his challenges for cause as to Freethy and Havlik

  • Under Tex. Code Crim. Proc. Art. 35.16(a), a prospective juror may be challenged for cause by making an objection alleging some fact that renders the juror incapable or unfit to serve on the jury. Per Art. 35.16(a)(10), a challenge for cause may be made by either party alleging that from hearsay or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant that influences the juror in finding a verdict. To ascertain whether this cause of challenge exists, the juror must first be asked whether in his opinion the conclusion influences his verdict. If the juror answers yes, he shall be discharged without further interrogation by either party or the court. If the juror answers no, he shall be further examined as to how his conclusion was formed and the extent to which it will affect his action.
  • Under Johnson v. State, 43 S.W.3d 1, 5 (Tex.Crim.App. 2001), failure to discharge a venire member subject to a proper challenge for cause results in error as a matter of law.  
  • Under Tex. Code Crim. Proc. Art. 35.14, a peremptory challenge is a challenge to a member of the jury panel without assigning a reason. It may be made for any reason or for no reason at all. In a noncapital felony case or in a capital case in which the State does not seek the death, the parties are each entitled to 10 peremptory challenges. After voir dire is complete, the parties shall strike the name of such juror from the list. Each party’s list is delivered to the clerk who calls off the first 12 names not stricken. 
  • Under Buntion v. State, 482 S.W.3d 58, 83 (Tex.Crim.App. 2016), if the trial court errs in overruling a challenge for cause, the appellant must show that he was harmed because he was forced to use a peremptory challenge to remove that member and he suffered a detriment from the loss of that peremptory challenge. To preserve the issue and show harm, the defendant must: (1) make challenges for cause, (2) use peremptory strikes on the complained-of venire members, (3) exhaust all peremptory strikes, (4) request and be denied additional peremptory strikes, and (5) identify the objectionable jurors who sat  on the jury. 
  • The record shows that prior to the petit jury being seated and sworn, Appellant: (1) requested two additional peremptory challenges for the peremptory challenges he was forced to use on Freethy and Havlik, (2) was denied any peremptory challenges, (3) used peremptory challenges on Freethy and Havlik, (4) exhausted his remaining 8 peremptory challenges, and (5) was forced to accept Stoffle and Cooper whom he would have otherwise struck had he been given the 2 additional peremptory challenges.
  • Appellant was harmed by the trial court’s error.

The trial court’s judgment is reversed, and the case is remanded to the trial court for further proceedings.

May 2020 SDR – Voice for the Defense Vol. 49, No. 4

Voice for the Defense Volume 49, No. 4 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

Holguin-Hernandez v. United States, No. 18-7739, 206 L.Ed.2d 95,  2020 U.S. LEXIS 1365 (U.S. Feb. 26, 2020) (Slip Op.) (5th Cir.) [Specificity required for preserving error]

A defendant who wishes a court of appeals to consider a claim that a ruling of a trial court was in error must make his objection known to the trial-court judge. Per Fed. Rule Crim. Proc. 51(b), a party preserves error by informing the court of the action the party wishes the court to take, or the party’s objection to the court’s action and the grounds for that objection. Per Rule 52(b), errors not brought to the court’s attention in these ways are subject to only plain-error review. Parties need not use certain language or even to wait until a court issues its ruling. Defendants must only bring the error “to the court’s attention.” 

To preserve sentencing error, defendants are not required to refer to the “reasonableness” of a sentence.

Facts:

Petitioner was convicted of drug-trafficking and sentenced to 60 months BOP. At the time of conviction, he was also serving supervised release related to an earlier crime.

  • The Government asked the court to find that petitioner had violated the conditions of supervised release, revoke it, and impose a consecutive prison term per USSG §§ 7B1.4(a) & 7B1.3(f).
  • Petitioner argued that under 18 U.S.C. § 3553,a consecutive sentence would not get Petitioner’s attention “any better than” the 60 months imposed.
  • The district court imposed a consecutive term of 12 months, a sentence at the bottom of the USSG-range.
  • Petitioner appealed, arguing that under Kimbrough v. United States, 552 U.S. 85, 101 (2007) and Gall v. United States, 552 U.S. 38, 49-50 the 12-month sentence was unreasonably long because it was greater than necessary to accomplish the goals of sentencing.
  • The Court of Appeals held petitioner forfeited this argument by failing to object to the “reasonableness” of the sentence imposed and it found no plain error.

The defendant’s district-court argument for a specific sentence—nothing or less than 12 months—preserved his claim on appeal that the 12-month sentence was unreasonably long

  • A defendant who wishes a court of appeals to consider a claim that a ruling of a trial court was in error must make his objection known to the trial-court judge. Per Fed. Rule Crim. Proc. 51(b), a party preserveserrorby informing the court of the action the party wishes the court to take, or the party’s objection to the court’s action and the grounds for that objection. Per Rule 52(b),errors not brought to the court’s attention in these ways are subject to only plain-error review. Parties need not use certain language or even to wait until a court issues its ruling. Defendants must only bring the error “to the court’s attention.” 
  • To preserve sentencing error, defendants are not required to refer to the “reasonableness” of a sentence.
  • Petitioner properly preserved the claim that his 12-month sentence was unreasonably long by advocating for a shorter sentence and in effect arguing that this shorter sentence would have proved “sufficient” while a sentence of 12 months or more was “greater than necessary” to “comply with” 18 U.S.C. § 3553(a).
  • The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings.

McKinney v. Arizona, 140 S.Ct. 702, 2020 U.S. LEXIS 1363 (U.S. Feb. 25, 2020) (Supreme Court of Arizona) [After Eddings error is identified, an appellate court may resentence a capital defendant]

  • Under Eddings v. Oklahoma, 455 U.S. 104, 113-114 (1982), a capital sentencer may not refuse as a matter of law to consider mitigating evidence. After Eddingserror is identified, an appellate court may resentence a capital defendant.
  • Under Clemons v. Mississippi, 494 U.S. 738, 745-750 (1990), an appellate court can reweigh permissible aggravating and mitigating evidence. This reweighing is not a resentencing but instead is like harmless-error review that may be conducted by an appellate court. Appellate courts can fully consider and give effect to the mitigating evidence at the sentencing phase.

Facts:

  • In 1991, McKinney and Hedlund burglarized five residences in the Phoenix area. During one, they beat, stabbed, and shot Mertens in the back of the head, killing her. In another, they killed McClain by shooting him in the back of the head with a sawed-off rifle.
  • An Arizona jury convicted McKinney of two counts of first-degree murder. The trial judge found that McKinney killed Mertens for pecuniary gain and in an especially heinous, cruel, or depraved manner and that McKinney killed McClain for pecuniary gain and had been convicted of another offense with a potential sentence of life imprisonment or death (Mertens murder). The trial judge sentenced McKinney to death for both murders. The Arizona Supreme Court affirmed.
  • 20 years later, on federal habeas corpus review, an en banc panel of the 9th Circuit decided 6-5 that in sentencing McKinney, the Arizona courts failed to properly consider McKinney’s PTSD and had thus violated Eddings v. Oklahoma (capital sentencer may not refuse as a matter of law to consider mitigating evidence).
  • The Arizona Supreme Court reviewed the evidence and reweighed the relevant aggravating and mitigating circumstances, including McKinney’s PTSD, and upheld both death sentences. 

After Eddings error is identified, an appellate court may resentence a capital defendant

  • Under Tuilaepa v. California, 512 U.S. 967 (1994), Zantv. Stephens, 462 U.S. 862 (1983), and Gregg v. Georgia, 428 U.S. 153 (1976), a defendant convicted of murder is eligible for a death sentence if at least one aggravating circumstance is found.
  • Under Eddings v. Oklahoma, 455 U.S. 104, 113-114 (1982), a capital sentencer may not refuse as a matter of law to consider mitigating evidence. After an Eddings error is identified, an appellate court may resentence a capital defendant.
  • Under Clemons v. Mississippi, 494 U.S. 738, 745-750 (1990), an appellate court can reweigh permissible aggravating and mitigating evidence. This reweighing is not a resentencing but instead is like harmless-error review that may be conducted by an appellate court. Appellate courts can fully consider and give effect to the mitigating evidence at the sentencing phase.
  • The judgment of the Arizona Supreme Court is affirmed.

Shular v. United States, No. 206 L.Ed.2d 81, 2020 U.S. LEXIS 1366  (U.S. Feb. 26, 2020) (11th Cir.) [“Serious drug offense” definition of the ACCA]

  • The “serious drug offense” definition under the ACCA [18 U.S.C. § 924(e)(2)(A)(ii)] does not require a comparison to a generic offense. It requires only that the prior offense involve the conduct specified in the federal statute.
  • Under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), a 15-year minimum sentence is mandated for defendants with prior convictions for “serious drug offenses,” which involve manufacturing, distributing, or possessing with intent to manufacture or distribute a controlled substance.
  • The “serious drug offense” definition under the ACCA [18 U.S.C. § 924(e)(2)(A)(ii)] does not require a comparison to a generic offense. It requires only that the prior offense involve the conduct specified in the federal statute.
  • Under Mathis v. United States, 136 S.Ct. 2243, 2251 (2016), to determine whether a prior conviction qualifies for ACCA-enhancement, the “categorical approach” is used: a court looks to the statutory definitions of the prior and not the underlying facts nor the label a State assigns to the prior. To apply the ACCA’s definition of “violent felony” to burglary, the court asks only whether the elements of the prior constitute burglary, not about the facts or whether it was called “burglary.” Sometimes the categorical approach requires a court to come up with a “generic” version of a crime—elements as commonly understood—if the statute refers to an offense without specifying its elements. The court must define the offense so that it can compare elements, not labels.  Other times the categorical approach requires a court to determine whether the prior meets some other criterion rather than determining whether it was for a certain offense.

Facts:

  • Shular pleaded guilty to felon in possession of a firearm per 18 U.S.C. § 922(g)(1) and possessing with intent to distribute cocaine and cocaine base per 21 U.S.C. § 841(a)(1) and (b)(1)(C).
  • The District Court sentenced Shular to 15 years, the mandatory minimum under  the ACCA, taking into account Shular’s prior six Florida convictions for selling controlled substances and finding that they qualified as “serious drug offenses” triggering the ACCA under 18 U.S.C. § 924(e)(2)(A)(ii).
  • The 11th Circuit affirmed, finding that a court applying § 924(e)(2)(A)(ii) need not search for the elements of “generic definitions” of any offense because the ACCA requires only that the predicate offense involve certain activities.
  • The conflict between Courts of Appeals is whether § 924(e)(2)(A)(ii)’s “serious drug offense” definition requires a comparison to a generic offense.

The “serious drug offense” definition under the ACCA [18 U.S.C. § 924(e)(2)(A)(ii)] does not require a comparison to a generic offense. It requires only that the prior offense involve the conduct specified in the federal statute.

  • Under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), a 15-year minimum sentence is mandated for defendants with prior convictions for “serious drug offenses,” which involve manufacturing, distributing, or possessing with intent to manufacture or distribute a controlled substance.
  • The “serious drug offense” definition under the ACCA [18 U.S.C. § 924(e)(2)(A)(ii)] does not require a comparison to a generic offense. It requires only that the prior offense involve the conduct specified in the federal statute.
  • Under Mathis v. United States, 136 S.Ct. 2243, 2251 (2016), to determine whether a prior conviction qualifies for ACCA-enhancement, the “categorical approach” is used: a court looks to the statutory definitions of the prior and not the underlying facts nor the label a State assigns to the prior. To apply the ACCA’s definition of “violent felony” to burglary, the court asks only whether the elements of the prior constitute burglary, not about the facts or whether it was called “burglary.” Sometimes the categorical approach requires a court to come up with a “generic” version of a crime—elements as commonly understood—if the statute refers to an offense without specifying its elements. The court must define the offense so that it can compare elements, not labels.  Other times the categorical approach requires a court to determine whether the prior meets some other criterion rather than determining whether it was for a certain offense.
  • The terms in § 924(e)(2)(A)(ii)—”manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance”—are unlikely names for generic offenses. They can be used to describe conduct. They are not universal names of offenses. States define drug offenses with trafficking, selling, giving, dispensing, distributing, delivering, promoting, and producing.
  • But § 924(e)(2)(B)(ii), the enumerated-offense clause of ACCA’s “violent felony” definition, refers to the Career Criminals Amendment Act of 1986, which refers to “burglary, arson, or extortion” and requires a generic-offense analysis. These terms unambiguously name offenses.
  • § 924(e)(2)(A)(ii)’s text and context refer to an offense involving the conduct of “manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.” Because they describe conduct and do not name offenses, a court applying § 924(e)(2)(A)(ii) need not delineate the elements of generic offenses. 
  • The judgment of the 11th Circuit is affirmed.

Editor’s note: Does hoarding and reselling toilet paper and toiletries at scumbag prices fall under “manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance” under the ACCA?

 

United States Court of Appeals for the 5th Circuit

United States v. Butler, No. 19-10065, 2020 U.S.App.LEXIS 3444 (5th Cir. Feb. 4, 2020) (designated for publication) [ACCA, Bank Robbery is divisible under Mathis]

  • Under 18 U.S.C. § 924(e)(2)(B)(i) and Welch v. United States, 136 S.Ct. 1257, 1261 (2016), the Armed Career Criminal Act (ACCA) imposes a 15-year-minimum if the defendant has 3 prior convictions for violent felonies or serious drug offenses. “Violent felony” means a crime punishable by more than one year of prison that has as an element the use, attempted use, or threatened use of physical force against another person (elements clause). 
  • Under Mathis v. United States, 136 S.Ct. 2243, 2248 (2016), whether a conviction satisfies the elements clause of the ACCA depends on whether the offense-statute is divisible. An indivisible statute lays out a single set of elements to define a single crime. Indivisible statutes are evaluated using the categorical approach, assessing whether the elements include the use of force. The facts of the case are ignored, and the question is whether the defendant’s conviction means he must have used, attempted to use, or threatened to use physical force to commit it. A divisible statute lists its elements in the alternative and defines multiple crimes. When a statute describes multiple crimes, the modified categorical approach permits courts to look to certain documents (indictment, jury instructions, plea agreement and colloquy) to figure out which of the statute’s crimes the defendant was convicted of.  Once the court has narrowed the crime of conviction to a specific offense, it applies the same analysis as the categorical approach, asking whether the elements of that crime include the use of force. The modified approach makes a difference when a statute describes one offense that qualifies as a violent felony and another that does not. Any doubt about whether a defendant committed a violent felony allows him to avoid the ACCA-punishment for armed career criminals because the categorical approach requires certainty. 

Facts:

  • Butler pleaded guilty to felon in possession of a firearm per 18 U.S.C. § 922(g)(1), punishable by up to 10 years per § 924(a)(2). Butler had four convictions for federal bank robbery and two Texas convictions for robbery.
  • The indictments for federal bank robbery show that Butler committed bank robbery by intimidation.
  • The district court concluded that the federal bank robbery convictions were violent felonies, qualifying Butler under the ACCA, so Butler was sentenced to the 15 year-minimum.

Bank Robbery is divisible under Mathis because it lists elements in the alternative and thus defines multiple crimes

  • Under 18 U.S.C. § 924(e)(2)(B)(i) and Welch v. United States, 136 S.Ct. 1257, 1261 (2016), the Armed Career Criminal Act (ACCA) imposes a 15-year-minimum if the defendant has 3 prior convictions for violent felonies or serious drug offenses. “Violent felony” means a crime punishable by more than one year of prison that has as an element the use, attempted use, or threatened use of physical force against another person (elements clause). 
  • Under Mathis v. United States, 136 S.Ct. 2243, 2248 (2016), whether a conviction satisfies the elements clause of the ACCA depends on whether the offense-statute is divisible. An indivisible statute lays out a single set of elements to define a single crime. Indivisible statutes are evaluated using the categorical approach, assessing whether the elements include the use of force. The facts of the case are ignored, and the question is whether the defendant’s conviction means he must have used, attempted to use, or threatened to use physical force to commit it. A divisible statute lists its elements in the alternative and defines multiple crimes. When a statute describes multiple crimes, the modified categorical approach permits courts to look to certain documents (indictment, jury instructions, plea agreement and colloquy) to figure out which of the statute’s crimes the defendant was convicted of.  Once the court has narrowed the crime of conviction to a specific offense, it applies the same analysis as the categorical approach, asking whether the elements of that crime include the use of force. The modified approach makes a difference when a statute describes one offense that qualifies as a violent felony and another that does not. Any doubt about whether a defendant committed a violent felony allows him to avoid the ACCA-punishment for armed career criminals because the categorical approach requires certainty. 
  • 18 U.S.C. § 2113(a) (Bank Robbery) is divisible because it lists elements in the alternative and thus defines multiple crimes: Whoever: “(1) by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or (attempts to or extorts)…property or money…in the…possession of, any bank, credit union…or (2) enters or attempts to enter any bank, credit union…or any building used in whole or in part as a bank, credit union…with intent to commit in such bank, credit union…or building, or part thereof…any felony affecting such bank…or (3) takes and carries away, with intent to steal or purloin, any property or money…exceeding $1,000 belonging to…or in the possession of any bank, credit union…”
  • 18 U.S.C. § 2113(a) (Bank Robbery) could mean traditional bank robbery or burglary of a bank.
  • Because § 2113(a) is divisible, the district court properly used the indictments showing bank robbery by intimidation to narrow the convictions to the violent felonies of taking bank property from another through intimidation. With at least three such violent felonies, he was properly sentenced as an armed career criminal.
  • The judgment is AFFIRMED.

United States v. Mecham, No. 19-40319, 2020 U.S.App.LEXIS 4768 (5th Cir. Feb. 14, 2020) (designated for publication) [Morphed porn; enhancement under U.S.S.G. § 2G2.2(b)(4)(A) for child porn that involves material that depicts violence]

  • Under Osborne v. Ohio, 495 U.S. 103 (1990) and New York v. Ferber, 458 U.S. 747 (1982), “real” child porn is not protected speech.  Under Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002), “virtual” child porn—sexually explicit images created by using adults who “look like” minors or using computer imaging—is protected speech. 
  • Under Miller v. California, 413 U.S. 15, 16, 24 (1973), the government must prove that an allegedly obscene work appeals to the prurient interest, is offensive considering community standards, and lacks serious literary, artistic, political, or scientific value. 
  • The First Amendment does not protect “morphed” child porn, which uses an image of a real child who is not involved in a sex act and falls between “real” and “virtual” child porn.
  • Under U.S.S.G. § 2G2.2(b)(4)(A), 4-levels are added for child porn that involves material that portrays sadistic or masochistic conduct or other depictions of violence. 
  • An image is sadistic if it depicts conduct that an objective observer perceives as causing the victim physical or emotional pain contemporaneously with the image’s creation. This ensures that not every child-porn conviction receives the enhancement as all victim-children are likely to experience emotional pain once they learn that porn depicting them exists. Without contemporaneous emotional harm, an image must portray physical pain to be sadistic. Sexual penetration of an actual prepubescent child qualifies.  But for morphed porn involving the use of an adult body, intercourse alone does not involve the requisite pain.
  • Morphed porn can qualify for the sadism-or-masochism enhancement if the body image is of a prepubescent child, just not the one whose face is shown, the body image shows conduct that is painful or cruel even for an adult (i.e., forced sex), or it reasonably appears that the body image is of a prepubescent child—even though it is not—for whom the sex act is painful.  The inquiry is whether a reasonable viewer would conclude that the image depicts the contemporaneous infliction of pain. 

Facts:

  • Mecham took his computer to a tech for repairs, who discovered thousands of images of nude adult bodies with faces of children superimposed. The tech called the police, who executed a search warrant and seized electronic devices.
  • Mecham waived his Miranda rights and admitted he added the faces of his four granddaughters to photos and videos of adults engaged in sex because after years interacting with his grandchildren, his daughter denied him contact. By creating the images, he sought to get back at his family for cutting him off.
  • A forensic analysis revealed over 30,000 of morphed child-porn of faces of Mecham’s grandchildren, ages 4, 5, and 16.
  • Mecham emailed videos to his oldest granddaughter, one of which—lasting over 9 minutes—showing her face on an adult female having sex and Mecham’s face superimposed on the male. The video uses animation to show the male ejaculating, with semen shooting to the granddaughter’s mouth. All show Mecham’s face morphed into the face of the men.
  • Mecham was indicted for possession of child porn.
  • Mecham filed a motion to dismiss the indictment, arguing that the First Amendment protects morphed child porn. The district court denied the motion.
  • After a stipulated bench trial, the district court found Mecham guilty and sentenced him to 97 months in BOP.

The First Amendment does not protect “morphed” child porn, which uses an image of a real child who is not actually involved in a sex act and is porn that falls between “real” and “virtual” child porn.

  • Under Osborne v. Ohio, 495 U.S. 103 (1990) and New York v. Ferber, 458 U.S. 747 (1982), “real” child porn is not protected speech.  Under Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002), “virtual” child porn—sexually explicit images created by using adults who “look like” minors or using computer imaging—is protected speech. 
  • Under Miller v. California, 413 U.S. 15, 16, 24 (1973), the government must prove that an allegedly obscene work appeals to the prurient interest, is offensive considering community standards, and lacks serious literary, artistic, political, or scientific value. 
  • The First Amendment does not protect “morphed” child porn, which uses an image of a real child who is not involved in a sex act and falls between “real” and “virtual” child porn.
  • Because the porn was created without a child in a sex act means that a sentencing enhancement for images that display sadistic or masochistic conduct does not apply.

The district court erred in applying the 4-level enhancement for child porn that involves material that portrays sadistic or masochistic conduct or other depictions of violence. 

  • Under U.S.S.G. § 2G2.2(b)(4)(A), 4-levels are added for child porn that involves material that portrays sadistic or masochistic conduct or other depictions of violence. 
  • The 4 points meant Mecham’s advisory range was 97-121 months instead of 63-78 months.
  • An image is sadistic if it depicts conduct that an objective observer perceives as causing the victim physical or emotional pain contemporaneously with the image’s creation. This ensures that not every child-porn conviction receives the enhancement as all victim-children are likely to experience emotional pain once they learn that porn depicting them exists. Without contemporaneous emotional harm, an image must portray physical pain to be sadistic. Sexual penetration of an actual prepubescent child qualifies.  But for morphed porn involving the use of an adult body, intercourse alone does not involve the requisite pain.
  • Morphed porn can qualify for the sadism-or-masochism enhancement if the body image is of a prepubescent child, just not the one whose face is shown, the body image shows conduct that is painful or cruel even for an adult (i.e., forced sex), or it reasonably appears that the body image is of a prepubescent child—even though it is not—for whom the sex act is painful.  The inquiry is whether a reasonable viewer would conclude that the image depicts the contemporaneous infliction of pain. 
  • The district court did not make this finding and the record does not support the sadism enhancement, so the district court erred in including the four points.
  • To show a sentencing error is harmless, the government must convincingly demonstrate that the district court would have: (1) imposed the same sentence had it not made the error, and (2) done so for the same reasons it gave at the prior sentencing.
  • The government argues harmlessness but fails the first step. The district court did not say it would have given the same 97-month sentence without the enhancement, which is the most straightforward way to prove harmlessness. 
  • The sentence is vacated, and the case is remanded for Mecham to be sentenced with an advisory range of 63-78 months.

 

Texas Court of Criminal Appeals

Holder v. State, No. PD-1269-16, 2020 Tex.Crim.App.LEXIS 180 (Tex.Crim.App. March 11, 2020) (designated for publication)  (Capital Murder, Collin Co.) [Tex. Const. Art. I, § 9, third-party doctrine, and CSLI records]

  • Under Tex. Const. Art. I, § 9, the third-party doctrine does not apply to CSLI records
  • Under Sims v. State, 569 S.W.3d 634, 642 (Tex.Crim.App. 2019), suppression is not an available remedy for nonconstitutional violations of the Stored Communications Act. Even if the State did not meet the SCA’s “specific and articulable facts” standard, the CSLI should not be suppressed on that basis. 
  • Under Tex. Const. Art. I, § 9, the people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches and no warrant to search shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation. A person has an expectation of privacy if he has a subjective privacy interest that society recognizes as objectively reasonable. There is no implicit warrant requirement in Article I, § 9.
  • A warrant is generally needed under the Fourth Amendment to access seven or more days of CSLI information.

Facts:

  • In 2012, Appellant, his girlfriend Casey James, and her children moved into Tanner’s home, who was James’s ex-stepfather.
  • The relationship between Appellant and James soured, so Tanner asked Appellant to move out, which he did.
  • A month later, James told Appellant that her daughter C.J. told her that Tanner was “nasty” and slept without his underwear. James asked Appellant if he had ever seen Tanner act inappropriately around C.J., and he said yes. Appellant hadn’t said anything to James because James was in the room when it happened.
  • James concluded that Tanner had not been inappropriate after she spoke to C.J.
  • James told Appellant that she would be out of town November 9-11 and her kids were going to be with one of her friends.
  • When James returned to Tanner’s home on November 11 at about 8:00 p.m., the garage-door opener did not work, and Tanner’s truck was not at the house. James entered the house through a sliding glass door, it was pitch black, which was unusual, and there was a horrible smell. Someone had hung a blanket over the sliding glass door and there was liquid running down the hallway. James was afraid and went back to her vehicle where her children were sleeping. James called the police.
  • Police found Tanner’s body in the house. It looked like the body had been there awhile. Tanner had suffered blunt-force trauma to the head, was stabbed 20 times, and had defensive-wounds on his hands. There was blood all over his body and around it.
  • Police concluded that the murder was a crime of passion, not a burglary gone wrong even though Tanner’s wallet was stolen. They found two black latex gloves on the kitchen table, which James said were not there when she left. James had never seen black latex gloves at the house or seen Tanner with black latex gloves.
  • On Facebook there was a picture of Appellant wearing black latex gloves while tattooing someone. DNA-testing on three glove swabs showed it was extremely unlikely that anyone other than Appellant was a major contributor.
  • On November 12, police obtained a court order directing AT&T to disclose call log and CSLI (Cell Site Location Information) records showing the location of Appellant’s cellphone between October 20 to November 12, but AT&T declined to produce them because they said the order had to be based on probable cause.
  • The second petition claimed authority under Tex. Code Crim. Proc. Art. 18.21 § 5, seeking all records regarding the identification of Appellant’s account including name, address, date of birth, status of account, history, call detail records, tower information for all calls for October 20, 2012 to November 12, 2012, service and billing address, ANI, method of payment, information on all other numbers ever assigned to the account or user. The officer changed “reasonable suspicion” to “probable cause” for an investigation into a violation of Tex. Penal Code § 19.03. A judge signed the new order.
  • Police interviewed Appellant and asked him where he was the weekend of November 9 and whether he had his cellphone. Appellant said he was in Irving and that he had his cellphone. Police confronted Appellant with the CSLI showing that he was in Tanner’s coverage area multiple times that weekend, which contradicted his story that he was out of town. Appellant remembered that he was near Tanner’s house that weekend, but he was there to buy drugs and never went to Tanner’s house. The police asked Appellant about Tanner and C.J., and Appellant told them that “children shouldn’t be molested.”
  • Call log records showed that Tanner was alive until at least 2:35 p.m. on November 10 because that is when he ended a call with his parents. The records showed that between 3:28 p.m. and 4:16 p.m. the same day, Appellant’s cellphone connected to the tower that best served Tanner’s home. By 4:16 p.m., Appellant’s cellphone had left the area but reentered at 12:41 a.m. on November 11. Appellant’s phone was pinging in Tanner’s coverage area until 12:44 a.m. From 12:44 a.m. to 2:11 a.m., there was no activity on Appellant’s phone. At 2:11 a.m., it pinged a tower near the parking garage where police found Tanner’s abandoned truck.
  • An inmate named Uselton contacted Plano detectives and told them that he knew Appellant for a few years. Appellant called him on November 10 around 3:00 p.m. because he wanted to buy drugs. Appellant sounded hysterical. Appellant called back later that day and asked him to help with “something.” Appellant and his ex-girlfriend picked up Uselton. She drove them to Appellant’s tattoo parlor, where Appellant picked up bleach and black latex gloves, then to Tanner’s house. When they entered, Appellant told him “he’s dead.” Uselton saw Tanner’s body around the corner. Appellant said that Tanner molested a little girl. Appellant’s ex-girlfriend drove them back to Appellant’s tattoo shop. Uselton went to a store to buy cigarettes. When he returned, he overheard Appellant’s ex-girlfriend ask Appellant, “Why did you do it?” Appellant replied, “I had to.” Uselton told police other details that were not public: Appellant unplugged the garage-door opener and Uselton helped Appellant cover up windows and the sliding glass door with blankets and pour gas around the house.

Under Tex. Const. Art. I, § 9, the third-party doctrine does not apply to CSLI records

  • Under Sims v. State, 569 S.W.3d 634, 642 (Tex.Crim.App. 2019), suppression is not an available remedy for nonconstitutional violations of the Stored Communications Act. Even if the State did not meet the SCA’s “specific and articulable facts” standard, the CSLI should not be suppressed on that basis. 
  • Under Tex. Const. Art. I, § 9, the people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches and no warrant to search shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation. A person has an expectation of privacy if he has a subjective privacy interest that society recognizes as objectively reasonable. There is no implicit warrant requirement in Article I, § 9.
  • A warrant is generally needed under the Fourth Amendment to access seven or more days of CSLI information.
  • Under Ford v. State, 477 S.W.3d 321 (Tex.Crim.App. 2015), the Fourth Amendment third-party doctrine applies to CSLI under Tex. Const. Art. I, § 9.
  • Under Carpenter, 138 S.Ct. at 2218, CSLI presents great privacy concerns because cellphones are “almost a feature of human anatomy” that track nearly exactly with the movements of its owner, and while individuals regularly leave their vehicles, they carry cellphones with them all the time. A cellphone follows its owner beyond public thoroughfares and into buildings, homes, doctor’s offices, and other potentially revealing locales. When the Government tracks the location of a cellphone, it achieves near perfect surveillance as if it had attached an ankle monitor to the user. Giving the Government access to such records contravenes society’s expectation that law enforcement cannot secretly monitor and catalogue every movement of an individual’s car for long period.
  • Under Tex. Const. Art. I, § 9, the third-party doctrine does not apply to CSLI records
  • The petition did not support a probable cause finding.
  • Appellant had a reasonable expectation of privacy under Tex. Const. Art. I, § 9 in the 23 days of his CSLI accessed by the State. The judgment of the court of appeals is reversed and the case is remanded for a harm analysis.

Walker v. State, No. PD-0399-17, 2020 Tex.Crim.App.LEXIS 176 (Tex.Crim.App. Feb. 26, 2020) (designated for publication)  (Engaging in Organized Criminal Activity, Orange Co.) [Reformation to a lesser-included offense when the greater-inclusive offense is nonexistent]

  • A court may reform a judgment after an acquittal of a greater-inclusive offense to a lesser-included offense if: (1) the jury necessarily found every element necessary to convict of the lesser-included offense when it convicted of the greater-inclusive offense, and (2) there is sufficient evidence to support a conviction for the lesser-included offense. Where the greater-inclusive offense is nonexistent, a court may reform to a lesser-offense authorized by the indictment. A conviction for a charged but nonexistent offense can be reformed to a subsumed and proven offense that exists.
  • Under Hughitt v. State, 583 S.W.3d 623 (Tex.Crim.App. 2019), Possession of a Controlled Substance with intent to deliver is not a predicate offense for Engaging in Organized Criminal Activity

Facts:

  • Appellant, her two daughters, and a man nicknamed “Pill” lived in a house that was a major distribution point for drugs. Two times, a CI purchased marijuana and synthetic marijuana there. People known to the police made short, frequent stops when Appellant was believed to be present.
  • One night, three intruders broke in through the front door and a shootout occurred. One escaped, another limped away, and the third crawled out and died on the lawn.
  • Surveillance cameras showed that after the shootout—but before the police arrived—Appellant made several trips to an Infiniti parked outside carrying a bag of more than 400 grams of dihydrocodeinone pills, sprayed Febreze in the air, and gave a pistol to “Pill,” who left.
  • Police arrived to find the dead body, and occasional guest Brian Grant, who had been shot, sitting near the porch. A search of the house uncovered large amounts of marijuana, cocaine, PCP, Xanax, codeine syrup in a baby bottle, and paraphernalia including digital scales, resealable plastic bags, and cash. The pills Appellant placed in the Infiniti were also found.
  • Appellant was indicted for Engaging in Organized Criminal Activity with the predicate offense of Possession of a Controlled Substance with intent to deliver. Appellant did not object to the indictment for alleging a nonexistent offense.
  • The jury charge tracked the indictment and instructed the jury to determine whether Appellant or another member of a criminal combination possessed at least 400 grams of dihydrocodeinone with intent to deliver. Appellant was convicted.

A conviction for a charged but nonexistent offense can be reformed to a subsumed and proven offense that exists

  • Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), to determine legal sufficiency, after viewing the evidence in the light most favorable to the verdict, a reviewing court considers whether the factfinder was rationally justified in finding the essential elements of the crime beyond a reasonable doubt. The reviewing court does not substitute its judgment for that of the factfinder by reevaluating the weight or credibility of the evidence but defers to the factfinder’s resolution of conflicts in testimony, weighing of evidence, and drawing reasonable inferences from the facts. The evidence is measured by the elements of the offense as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). Circumstantial evidence and direct evidence can be equally probative in establishing the guilt of a defendant, and guilt can be established by circumstantial evidence alone. Under Hart v. State, 89 S.W.3d 61, 64 (Tex.Crim.App. 2002), proof of mental state will almost always depend upon circumstantial evidence, and knowledge may be inferred from the person’s acts, words, and conduct. The standard of review is the same for direct and circumstantial evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). A factfinder is allowed to draw reasonable inferences that are supported by evidence, Jackson, 443 U.S. at 319 (emphasis supplied), but “[t]heorizing or guessing as to the meaning of the evidence is never adequate to uphold a conviction because it is insufficiently based on the evidence to support a belief beyond a reasonable doubt.” Cary v. State, 507 S.W.3d 761, 766 (Tex.Crim.App. 2016).
  • Sufficiency of the evidence may turn on the meaning of the statute. Alfaro-Jimenez v. State, 577 S.W.3d 240, 244 (Tex.Crim.App. 2019); Liverman v. State, 470 S.W.3d 831, 836 (Tex.Crim.App. 2015). A reviewing court must consider whether certain conduct constitutes an offense under the relevant statute. A court must conduct a statutory construction analysis de novo.
  • Under Hughitt v. State, 583 S.W.3d 623 (Tex.Crim.App. 2019), Possession of a Controlled Substance with intent to deliver is not a predicate offense for Engaging in Organized Criminal Activity
  • Measuring the evidence against the hypothetically correct jury charge, more than some evidence existed to enable a rational jury to find that Appellant was part of a criminal combination and that Appellant—or a member of the combination—possessed the alleged controlled substance in the requisite amount.
  • A court may reform a judgment after an acquittal of a greater-inclusive offense to a lesser-included offense if: (1) the jury necessarily found every element necessary to convict of the lesser-included offense when it convicted of the greater-inclusive offense, and (2) there is sufficient evidence to support a conviction for the lesser-included offense. Where the greater-inclusive offense is nonexistent, a court may reform to a lesser-offense authorized by the indictment. A conviction for a charged but nonexistent offense can be reformed to a subsumed and proven offense that exists.
  • Appellant is acquitted of EOCA. Reformation to possession of a controlled substance with the intent to deliver is authorized by the indictment. The case is remanded to the court of appeals to determine if the remaining conditions for reformation are met.

 

Texas Courts of Appeals

In re Cook, No. 14-19-00664-CR, 2020 Tex.App.-LEXIS 1563 (Tex.App.-Houston [14th Dist.] Feb. 25, 2020) (designated for publication) (Mandamus, Harris Co.) [Standing in attorney-client casefiles, attorney-client privilege, work-product privilege]

  • Under In re Powell, 516 S.W.3d 488, 494-495 (Tex.Crim.App. 2017) (orig. proceeding), to be entitled to mandamus relief, a relator must show: (1) that he has no adequate remedy at law for obtaining the relief; and (2) what he seeks to compel involves a ministerial act and not a discretionary act. A ministerial act does not involve judicial discretion and is plainly prescribed under the law. The relator must have a clear right to the relief sought and its merits of are beyond dispute. The facts and circumstances dictate only one rational decision under unequivocal, well-settled, and clearly controlling legal principles. A relator can show that no adequate legal remedy exists if it is too uncertain, tedious, burdensome, inappropriate, or ineffective to be deemed inadequate.
  • Under Bailey v. State, 507 S.W.3d 740, 745 (Tex.Crim.App. 2016), the attorney-client privilege is personal to the client and the right to waive the privilege belongs solely to the client. Under In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 221-222 (Tex. 2004) (orig. proceeding), Cook has the right to assert the work-product privilege to prevent documents falling within the scope of the privilege from being produced to another party. Under In re McCann, 422 S.W.3d 701, 705 (Tex.Crim.App. 2013), a client owns the contents of his file. 
  • Under Tex. Rule Evid. 503(b), confidential communications between client and counsel made to facilitate legal services are generally insulated from disclosure. Under Upjohn Co. v. United States, 449 U.S. 383, 389 (1981), the purpose of the privilege is to encourage full and frank communication between attorneys and their clients and promote broader public interests in the observance of law and administration of justice.
  • Under In re Bexar Co. Crim. Dist. Attorney’s Office, 224 S.W.3d 182, 186 (Tex. 2007) (orig. proceeding), the primary purpose of the work product rule is to shelter the mental processes, conclusions, and legal theories of the attorney, providing a privileged area within which the lawyer can analyze and prepare his case. The work-product privilege is broader than the attorney-client privilege because it includes all communications made in preparation for trial, including an attorney’s interviews with witnesses. 

Facts:

  • Amy Castillo was a client of attorney Woodfill. Castillo alleged that Woodfillmisapplied funds from her divorce by using unearned funds for services rendered for other clients.
  • Vaclavik, chief fraud examiner for the DA’s Office, investigated Castillo’s allegations by obtaining IOTLA statements.
  • During the investigation, it appeared funds belonging to another Woodfill’s client, Cook, were used contrary to her attorney-client agreement, which required a $75,000 retainer. The $75,000 was deposited into the IOLTA on June 13, 2013. A day before, the account was overdrawn by $49,679.18. Cook’s funds were used to offset the negative balance and to cover a check payable to a party unrelated to the representation of Cook.
  • Cook’s billing for June 6-12, 2013, showed that the firm had only earned $1,313.29 of Cook’s retainer.
  • On June 13, 2013, the IOLTA balance was $25,320.82, indicating that Woodfillhad used more than $45,000 of Cook’s retainer for purposes unrelated to her case.
  • In his affidavit in support of the search warrant, Vaclavik stated that he had reason to believe the firm had had evidence of felony misapplication of fiduciary property, theft, and money laundering.
  • Vaclavik asked permission to seize “Any and all financial, legal files, documents, records, books, ledgers and correspondence containing the names of Amy Castillo and Teresa Cook.”
  • The trial court signed a search warrant, authorizing the seizure of all files pertaining to Castillo and Cook; and logins and passwords for computers, software, file sharing access, telephones, and communication devices owned by Woodfilland the firm.
  • The search warrant was executed, and police PD took 127 boxes.
  • Cook refused to waive her privileges to her files. Cook filed a brief asking the trial court to order the DA to return her files to her. The trial court held an in-chambers hearing during which the ADA advised the court that the taint team (ADAs not involved in the case) was ready to start going through Cook’s files. Cook argued that permitting the taint team to look at her files violates her constitutional right to privacy and evidentiary privileges. The trial court urged the parties to reach an agreement.
  • The DA filed a motion for protective order and procedure for review of confidential or privileged discovery materials, which would allow the taint team to conduct the review.
  • Cook filed a brief regarding the validity of the search warrant.
  • The trial court held another hearing and signed an order allowing the taint team to review the alleged confidential or privileged materials but forbad them from discussing their content with other members of the DA’s office or law enforcement. The United States Secret Service forensic services team was necessary to image or format electronically stored data for review. Their review was limited to that task and they were forbidden from discussing the content with prosecutors or law enforcement not members of the taint team. The materials are to be assigned three categories: (1) evidence that the State and Cook agree is not subject to the attorney-client privilege, (2) evidence that the State and Cook agree is subject to the attorney-client privilege, and (3) evidence that the State and Cook do not agree is subject to the attorney-client privilege, which will be designated for in-camera review.
  • Cook filed mandamus, alleging a clear abuse of discretion.

Requirements for mandamus

  • Under In re Powell, 516 S.W.3d 488, 494-495 (Tex.Crim.App. 2017) (orig. proceeding), to be entitled to mandamus relief, a relator must show: (1) that he has no adequate remedy at law for obtaining the relief; and (2) what he seeks to compel involves a ministerial act and not a discretionary act. A ministerial act does not involve judicial discretion and is plainly prescribed under the law. The relator must have a clear right to the relief sought and its merits of are beyond dispute. The facts and circumstances dictate only one rational decision under unequivocal, well-settled, and clearly controlling legal principles. A relator can show that noadequatelegal remedy exists if it is too uncertain, tedious, burdensome, inappropriate, or ineffective to be deemed inadequate.

Cook has standing

  • Under Bailey v. State, 507 S.W.3d 740, 745 (Tex.Crim.App. 2016), the attorney-client privilege is personal to the client and the right to waive the privilege belongs solely to the client. Under In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 221-222 (Tex. 2004) (orig. proceeding), Cook has the right to assert the work-product privilege to prevent documents falling within the scope of the privilege from being produced to another party. Under In re McCann, 422 S.W.3d 701, 705 (Tex.Crim.App. 2013), a client owns the contents of his file. 
  • Cook owns her files, and she has standing to assert her rights to her property and the attorney-client and work-product privileges.

There was probable cause that evidence of the felonies would be found in the files. 

  • Vaclavik’s affidavit described the deposit of Cook’s check into IOLTA and the use of it to cover a negative balance in the account. The affidavit described the retainer and that it was expended for reasons unrelated to Cook’s case. The trial court could have inferred that evidence related to the allegations could have been found in Cook’s files. Deferring to all reasonable inferences the trial court could have made, it could have found probable cause.

The taint team is allowed but work product documents must be included

  • Under Tex. Rule Evid. 503(b), confidential communications between client and counsel made to facilitate legal services are generally insulated from disclosure. Under Upjohn Co. v. United States, 449 U.S. 383, 389 (1981), the purpose of the privilege is to encourage full and frank communication between attorneys and their clients and promote broader public interests in the observance of law and administration of justice.
  • Under In re Bexar Co. Crim. Dist. Attorney’s Office, 224 S.W.3d 182, 186 (Tex. 2007) (orig. proceeding), the primary purpose of the work product rule is to shelter the mental processes, conclusions, and legal theories of the attorney, providing a privileged area within which the lawyer can analyze and prepare his case. The work-product privilege is broader than the attorney-client privilege because it includes all communications made in preparation for trial, including an attorney’s interviews with witnesses. 
  • Cook has the right to assert the work-product privilege to prevent discovery of it. But Cook’s right must be balanced against the DA’s Office’s interest in conducting a criminal investigation. The use of taint teams has been authorized by courts based on the expectation and presumption that the team and prosecutors will conduct themselves with integrity.
  • When Cook sought mandamus relief, the parties and the taint team had not started reviewing Cook’s files. Thus, the parties have not decided what materials are privileged, not privileged, or disputed and require an in-camera review. Thus, Cook’s request for relief as to privileged documents is premature.
  • The trial court abused its discretion by not including work product materials as part of the taint team procedures. The petition for writ of mandamus was conditionally granted in part, and the trial court is directed to modify the order so that the review also applies to work product. After the review process, the DA’s Office: (1) must expeditiously return to Cook documents the parties agree are covered by the attorney-client and work-product privileges; (2) may retain copies of documents necessary to prosecute the alleged offenses committed by Woodfill that the parties agree are not privileged but must promptly return the original nonprivileged documents to Cook; and (3) must return all disputed documents on which the trial court rules in Cook’s favor.

Editor’s note: members of a “taint team” answer to the same DA or U.S. Attorney who supervise the case prosecutors. Should we be skeptical?

 

Fernandez v. State, No. 08-17-00217-CR, 2020 Tex.App.-LEXIS 1482 (Tex.App.-El Paso Feb. 20, 2020) (designated for publication) (Aggravated Assault and Assault family violence, El Paso Co.) [Ex parte communications; writ of attachment; lack of notice of extraneous offenses; less than 12 jurors under Art. 36.29]

  • To determine whether a violation of the Code of Judicial Conduct is reversible error, a court examines the entire record to determine whether the trial judge engaged in impropriety that was harmful. Under Tex. Code Jud. Conduct Canon 3(B)(8), a judge “shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex partecommunications or other communications made to the judge outside the presence of the parties between the judge and a party, an attorney…or any…court appointee concerning the merits of a pending or impending judicial proceeding. A judge shall require compliance by court personnel subject to the judge’s direction and control. This does not prohibit communications concerning uncontested procedural matters. The purpose of prohibiting ex partecommunications is to ensure all legally interested parties are given their full right to be heard under the law and to ensure equal treatment of all parties. 
  • Under Wesbrook v. State, 29 S.W.3d 103, 121 (Tex.Crim.App. 2000), mere violations of the Code of Judicial Conduct alone are not reversible error, and even unethical conduct is not necessarily grounds for reversal. The Code is designed to provide guidance to judges and a structure for regulating conduct through the State Commission on Judicial Conduct. For reversal, there must be judicial impropriety plus probable prejudice to the complaining party plus rendition of an improper verdict. For complaints regarding ex partecommunications, no prejudice is shown if the appellant fails to point to record support showing that the communications influenced the court’s decision-making. 
  • Under Tex. Code Crim. Proc. Arts. 24.11 & 24.12, an attachment is a writ issued by the clerk in a criminal action commanding a peace officer to bring the witness to court to testify for either the State or the defendant. When a witness  resides in the county of prosecution has been duly served with a subpoena to appear and testify in any criminal action or proceeding fails to appear, the requesting party may request that the court issue an attachment for the witness. The request must be filed with the clerk and must include an affidavit of the requesting party stating that the affiant has good reason to believe and does believe that the witness is a material witness.
  • Under Tex. Code Crim. Proc. Art. 24.011(a), (b-1), if issuance of an attachment is requested for a witness younger than 18, the request must include the applicable affidavit from the requesting party described by Art. 24.12. 
  • The court shall appoint an attorney to represent the witness at the hearing under subsection (b), to include representing the witness at a hearing conducted outside the presence of the witness. Tex. Code Crim. Proc. Art. 24.111(d).
  • Under Chavez v. State, 9 S.W.3d 817, 819 (Tex.Crim.App. 2000), the right to complain about an illegal search and seizure is a privilege personal to the injured party and is not available to others. This includes complaints about Tex. Code Crim. Proc. Art. 38.23(a).
  • Under Tex. Rule Evid. 404(b) and Hernandez v. State, 176 S.W.3d 821, 822 (Tex.Crim.App. 2005), extraneous-offense evidence may be admissible for limited, noncharacter conformity purposes provided that upon timely request by the defendant, the State gives reasonable notice before trial of its intent to use such evidence during its case-in-chief. The admission of extraneous offenses when the State failed to provide reasonable notice is nonconstitutional error, reversable only if it affected the defendant’s substantial rights per Tex. Rule App. Proc. 44.2(b). To determine harm, a court must analyze whether and how the notice deficiency affected the defendant’s ability to prepare for the evidence. To determine this, a court looks at whether the defendant was surprised by the substance of the testimony and if it affected his ability to prepare cross-examination or to mitigate against the evidence. A defendant may demonstrate surprise by showing how his defense strategy might have been different had the State notified him that it intended to offer the extraneous-offense evidence. Error in admitting the evidence does not have an injurious effect on the verdict if the defendant was not surprised by its admission. If the trial court allows a continuance or recess to mitigate unreasonable notice, it can be harmless where the defendant fails to request additional time to address it or object based on having a potentially different strategy foreclosed by an already undertaken one. 
  • Under Tex. Code Crim. Proc. Art. 36.29(a), and Scales v. State, 380 S.W.3d 780, 784 (Tex.Crim.App. 2012), not less than 12 jurors can render a verdict in a felony case. However, 11 jurors may render the verdict where—after the trial of any felony case begins and before the charge of the court is read to the jury—the trial court determines that a juror has become disabled from sitting—and in such case, the verdict shall be signed by every member of the jury. A disabled juror is one who suffers from a physical illness, mental condition, or emotional state that would hinder the juror from performing duties as a juror or the juror was suffering from a condition that inhibited him from fully and fairly performing the functions of a juror. The determination of a juror’s disability is reviewed for an abuse of discretion.  The trial court is the sole factfinder and judge of the credibility of the evidence. Although the record must show the basis of the trial court’s reason, there is no requirement that the disabled juror testify regarding the disability. The burden is on the complaining party to develop a sufficient record to show the nature of the error on appeal regarding a ruling on juror disability. 

Facts:

  • Fernandez was indicted for Aggravated Assault with a deadly weapon and felony Assault family-violence after a previous conviction for allegedly striking Cynthia Flores with a clothing iron.
  • The trial court entered a pretrial discovery order requiring the State to give written notice 7 days before trial of extraneous acts it intended to introduce in its case-in-chief. Fernandez also filed a request for the same be given not later than 7 days before trial.
  • Prior to trial, the State filed a series of notices to the defense that detailed extraneous acts it would potentially use during its case-in-chief, alleging a dozen unreported bad acts committed against Flores characterized as demonstrating “continuous physical, verbal and emotional abuse.”
  • After the jury and an alternate were empaneled and sworn, the jurors received preliminary instructions and departed for lunch.
  • Outside the jury’s presence, the State requested a forfeiture-by-wrongdoing hearing under Tex. Code Crim. Proc. Art. 38.49, informing that Flores failed to appear for trial despite having being served with a subpoena compelling her attendance, which included a duces tecum to bring her daughter A.F. The State asserted it could establish through witnesses that wrongdoing by Fernandez led to Flores’s nonappearance. The State argued that Fernandez should forfeit his right to object to the admissibility of prior statements by Flores so he could not benefit from his alleged wrongdoing.
  • Defense counsel suggested that the State could request a writ of attachment to address Flores’s absence. The trial court acknowledged having earlier signed a writ of attachment as requested by the State. Defense counsel objected to the prolonged delay caused by the proposed hearing given that the State had earlier announced ready for trial. The trial court asked whether defense counsel thought that the State had witnesses ready for trial. Counsel responded that he knew there was a possibility that Flores would not cooperate because she had expressed to him her not wanting to go through with the case and was afraid to appear because she had given a false statement to the police about the events in question.
  • At the hearing, the State called a DA employee assigned to victims’ assistance and others to establish that Fernandez engaged in conduct designed to cause Flores to not be present for trial. The victim assistance witness testified that Flores had 5-10 contacts with her over many months and had described ongoing incidents of abuse against her, but at times recanted allegations of abuse. The witness described that she received an email purportedly from Flores but with Fernandez’s email stating that she wanted the charges dropped since she was back with Fernandez and they were doing great. Later, when Flores came into her office, she denied sending the email and said it had been sent by Fernandez. The witness testified that Flores signed an affidavit attesting that she had not sent the email. The last contact with Flores 11 months prior.
  • During the hearing, when the trial court asked defense counsel if he objected to admitting the copy of the writ of attachment that had been issued (State’s Exhibit 2), counsel expressed his concern at how the writ had been signed by the court without counsel’s knowledge and outside his presence, but he sought no ruling from the court nor lodged an objection for the hearing but stated he will have an objection later.
  • The trial court denied the State’s request for forfeiture based on insufficient evidence to show conduct by defendant designed to keep the complainant from appearing, but recessed the case until the next morning to give the State time to attach Flores per the writ.
  • The next morning, the defense announced ready but the State did not, requesting a 3-day continuance to locate Flores and A.F. Defense counsel objected, but the trial court, noting concern about jeopardy attaching if it declared a mistrial, granted the recess.
  • 3 days later, the defense announced ready for trial, but the State announced it would again need a continuance for more time to locate Flores and A.F. A detective appeared to inform the court that El Paso PD had just then found Flores and A.F. at a hotel. The court excused the detective to allow him to proceed with the writ of attachment. Defense counsel renewed his concern about the trial court’s issuance of the writ of attachment and objected that proper procedures under Art. 24.12 were not followed because the State should have articulated on the record grounds for its motion for writ of attachment and sufficient information about the expected testimony to show materiality. The State asserted that Fernandez had no standing to contest or question any subpoena issued by the State for its witnesses or for a writ of attachment. The trial court overruled defense counsel’s objection to the issuance of the writ.
  • The State informed the court that Flores expressed anger at being brought to court and claimed that the allegations against Fernandez were based on lies she had made up.
  • The State indicated that A.F.—who was 13—had divulged that her mother and Fernandez had been trying to keep her and her mother hidden so that they would not be available to testify and her mother asked her to lie if called as a witness. The State also disclosed that A.F. described a series of bad acts committed by Fernandez against her and her mother. The State acknowledged that neither side was previously aware of the alleged incidents. Defense counsel responded that the timing of any disclosures would be “unbelievably disadvantageous” because it caught him by “utter surprise” and would not give him opportunity to prepare a defense.
  • Defense counsel requested a continuance, which the trial court denied based on the impact of the continuance on the “victims.”
  • The trial court brought A.F. to the witness stand to give both sides an opportunity to determine how she might testify by examining her outside the presence of the jury.
  • A.F. testified about how Flores, Fernandez, and two of Fernandez’s children, conspired to keep A.F. and Flores hidden so they could not be brought to court, believing that “if they don’t find us until Friday, this case is going to be dropped.” Flores told A.F. to lie and not say anything about the allegations against Fernandez. After testifying about her knowledge of Fernandez’s charged offenses, A.F. testified about numerous bad acts committed by Fernandez against her mother, and defense counsel cross-examined her.
  • The trial court recessed for the weekend, but excused a juror for medical reasons without objections, and replaced that juror with the alternate who was sworn with the other jurors.
  • Pending the resumption of trial, the trial court detained Flores in the County Jail per the writ of attachment and allowed A.F. to leave with Flores’s sister.
  • When trial began, Juror Garcia expressed that he was feeling a “little sick.” The trial court retired the jury. The trial court stated on the record that Garcia said he had gotten lightheaded and felt like he was going to faint. When the trial court asked Garcia if he wanted to go home, Garcia said that he did not. After another recess, the trial court stated that the court staff made a call to EMS to check on Garcia’s vitals because he was not feeling better. After yet another recess, the trial court stated that Garcia felt “shaky, nervousness and wanting to faint.” The trial court informed Garcia would be excused as disabled. Garcia could not drive himself from the courthouse.
  • Defense counsel objected to only 11 jurors and requested a mistrial because he believed that not less than 12 jurors can render and return a verdict in a felony case, citing Art. 36.29. The trial court overruled the objection.
  • Flores testified that she and Fernandez had “ups and downs” and that her history of mental health issues of bipolar and had post-traumatic stress disorder, anxiety, and depression caused the problems. Flores claimed that she made a false police report after getting drunk, and lied about Fernandez hitting her with an iron, which led to Fernandez’s arrest. Flores claimed that she did not come to court because A.F. was sick and had cramps and that she and A.F. got a hotel room “because I wanted to.”
  • A.F. testified that they stayed in the hotel because her mother was trying to avoid being tracked down and brought to court. Fernandez initially treated her mother well, but Fernandez changed and became abusive to her mother. A.F. also heard Fernandez threaten to kill her mother multiple times during fights. A.F. said that on the day the alleged offense occurred, her mother called her and said, “[Fernandez] beat me and he hit me with an iron. I’m at my friend’s house and I need someone to come pick me up right now.”
  • A.F. hung up and told her grandmother about the call. Later that same evening, A.F. testified that her uncle Pat came to her grandmother’s home, but she was excluded from their conversation and had no further contact that day from her mother.
  • Patrick, Flores’s brother, also testified that Flores told him, “He beat me. He hit me with an iron.”
  • Fernandez admitted a copy of a 911 call he made that day in which he claimed that Flores had stolen his vehicle and phone about 40 minutes prior to him calling 911. The two had gotten into an argument he reported that neither had struck the other.
  • The jury convicted Fernandez of both counts as charged.
  • Fernandez pleaded true to felony enhancements alleged in the indictment, so he was subject to first-degree felony punishment range for the aggravated-assault count and to second-degree felony punishment range for the family-violence count per Tex. Penal Code §§ 12.42(a), (b); 22.01(a)(1), (b)(2)(A); 22.02(a)(2), (b).
  • A.F. and Flores’s sister testified about how Fernandez threatened to rape and kill A.F., kept A.F. in fear, and kept Flores in an isolated, abusive situation.
  • Flores acknowledged that she should have protected A.F., but always put Fernandez first. While she did not acknowledge having lied in the guilt phase, Flores testified that though she loved Fernandez, she was tired of hiding and going through pain caused by his abusive conduct.
  • The jury sentenced Fernandez to 40 years for Aggravated Assault and 20 years for Assault family violence. The trial court sentenced and ordered the sentences to run concurrently.

The ex parte communication did not violate due process

  • To determine whether a violation of the Code of Judicial Conduct is reversible error, a court examines the entire record to determine whether the trial judge engaged in impropriety that was harmful. 
  • Under Tex. Code Jud. Conduct Canon 3(B)(8), a judge “shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex partecommunications or other communications made to the judge outside the presence of the parties between the judge and a party, an attorney…or any…court appointee concerning the merits of a pending or impending judicial proceeding. A judge shall require compliance by court personnel subject to the judge’s direction and control. This does not prohibit communications concerning uncontested procedural matters.
  • The purpose of prohibiting ex partecommunications is to ensure all legally interested parties are given their full right to be heard under the law and to ensure equal treatment of all parties. 
  • Under Wesbrook v. State, 29 S.W.3d 103, 121 (Tex.Crim.App. 2000), mere violations of the Code of Judicial Conduct alone are not reversible error, and even unethical conduct is not necessarily grounds for reversal. The Code is designed to provide guidance to judges and a structure for regulating conduct through the State Commission on Judicial Conduct. For reversal, there must be judicial impropriety plus probable prejudice to the complaining party plus rendition of an improper verdict. For complaints regarding ex partecommunications, no prejudice is shown if the appellant fails to point to record support showing that the communications influenced the court’s decision-making. 
  • Even if an improper ex partecommunication occurred, Fernandez cannot show judicial impropriety plus probable prejudice to the complaining party plus rendition of an improper verdict.  Fernandez did not show how his lack of presence at the time of the alleged communication regarding the noncompliance of a complaining witness in responding to a subpoena had caused prejudicial harm or how his presence would have made a difference in the trial court’s ruling. 

The trial court did not err in granting the writ of attachment, and Fernandez has no standing to complain

  • Under Tex. Code Crim. Proc. Arts. 24.11 & 24.12, an attachment is a writ issued by the clerk in a criminal action commanding a peace officer to bring the witness to court to testify for either the State or the defendant. When a witness resides in the county of prosecution has been duly served with a subpoena to appear and testify in any criminal action or proceeding fails to appear, the requesting party may request that the court issue an attachment for the witness. The request must be filed with the clerk and must include an affidavit of the requesting party stating that the affiant has good reason to believe and does believe that the witness is a material witness.
  • Under Tex. Code Crim. Proc. Art. 24.011(a), (b-1), if issuance of an attachment is requested for a witness younger than 18, the request must include the applicable affidavit from the requesting party described by Art. 24.12. 
  • The court shall appoint an attorney to represent the witness at the hearing under subsection (b), to include representing the witness at a hearing conducted outside the presence of the witness. Tex. Code Crim. Proc. Art. 24.111(d).
  • Under Tex. Code Crim. Proc. Art. 38.23(a) and Wilson v. State, 311 S.W.3d 452, 459 (Tex.Crim.App. 2010), no evidence obtained by an officer or other person in violation of the laws or Constitutions of Texas or the United States shall be admitted in evidence against the accused. This protects a person’s privacy, property, and liberty rights against overzealous law enforcement. 
  • Under Chavez v. State, 9 S.W.3d 817, 819 (Tex.Crim.App. 2000), the right to complain about an illegal search and seizure is a privilege personal to the injured party and is not available to others. This includes complaints about Tex. Code Crim. Proc. Art. 38.23(a).

Fernandez received reasonable notice of the extraneous offenses

  • Under Tex. Rule Evid. 404(b) and Hernandez v. State, 176 S.W.3d 821, 822 (Tex.Crim.App. 2005), extraneous-offense evidence may be admissible for limited, noncharacter conformity purposes provided that upon timely request by the defendant, the State gives reasonable notice before trial of its intent to use such evidence during its case-in-chief. The admission of extraneous offenses when the State failed to provide reasonable notice is nonconstitutional error, reversable only if it affected the defendant’s substantial rights per Tex. Rule App. Proc.44.2(b). To determine harm, a court must analyze whether and how the notice deficiency affected the defendant’s ability to prepare for the evidence. To determine this, a court looks at whether the defendant was surprised by the substance of the testimony and if it affected his ability to prepare cross-examination or to mitigate against the evidence. A defendant may demonstrate surprise by showing how his defense strategy might have been different had the State notified him that it intended to offer the extraneous-offense evidence. Error in admitting the evidence does not have an injurious effect on the verdict if the defendant was not surprised by its admission. If the trial court allows a continuance or recess to mitigate unreasonable notice, it can be harmless where the defendant fails to request additional time to address it or object based on having a potentially different strategy foreclosed by an already undertaken one. 
  • Even assuming that the State’s notice of intent was unreasonable, its admission was harmless because once the State informed Fernandez of its intent to introduce extraneous-offense evidence that it had newly gained knowledge from A.F., Fernandez objected because the timing of the disclosure was disadvantageous, caught him by surprise, and would not give him adequate opportunity to prepare a defense against the evidence. The trial court brought A.F. into the courtroom so that both sides had the opportunity to explore the content of her potential testimony. The court afforded Fernandez recess until Monday. When trial resumed and A.F. took the stand, Fernandez neither requested additional time to prepare a defense to the extraneous offenses nor made an objection that his defensive theory was hamstrung.

The trial court did not abuse his discretion in finding that Juror Garcia was disabled under Art. 36.29

  • Under Tex. Code Crim. Proc. Art. 36.29(a), and Scales v. State, 380 S.W.3d 780, 784 (Tex.Crim.App. 2012), not less than 12 jurors can render a verdict in a felony case. However, 11 jurors may render the verdict where—after the trial of any felony case begins and before the charge of the court is read to the jury—the trial court determines that a juror has become disabled from sitting—and in such case, the verdict shall be signed by every member of the jury. A disabled juror is one who suffers from a physical illness, mental condition, or emotional state that would hinder the juror from performing duties as a juror or the juror was suffering from a condition that inhibited him from fully and fairly performing the functions of a juror. The determination of a juror’s disability is reviewed for an abuse of discretion.  The trial court is the sole factfinder and judge of the credibility of the evidence. Although the record must show the basis of the trial court’s reason, there is no requirement that the disabled juror testify regarding the disability. The burden is on the complaining party to develop a sufficient record to show the nature of the error on appeal regarding a ruling on juror disability. 
  • Fernandez did not ask for a hearing to elicit live testimony from any witnesses and did not object on that basis even when given the opportunity to do so after he was interrupted by the court.
  • Before excusing Juror Garcia for being disabled, the trial court informed the parties of Garcia’s condition: (1) Garcia said he was lightheaded and felt like he was going to faint; (2) EMS was called upon to check his vitals; (3) although he did not want to leave, he felt shaky and faint; (4) he did not feel better after eating and having his vitals checked; and (5) he was in such an ill state that he did not feel he could drive himself from the courthouse. The trial court acted within its discretion to determine that Garcia was disabled due to a physical illness that would inhibit him from fully and fairly performing the functions of a juror. 
  • The conviction and sentence are affirmed.

Editor’s note: A judge should not issue a writ of attachment without defense counsel knowing about it. What’s next, rulings on the State’s motion in limine without defense counsel present? Still, I save complaints about judicial misconduct for when it may make a difference. I decide whether my presence would have made a difference. Here, the writ of attachment would have issued even if trial counsel was given notice. If a witness disobeys a subpoena, a writ of attachment should issue once it is determined that the testimony is material, and this witness’s testimony was material. It does not make such behavior less irritating, and fortunately, most judges do not allow ex parte communications like this. Pick your battles carefully.

Harrison v. State, No. 14-18-00372-CR, 2020 Tex.App.-LEXIS 728 (Tex.App.-Houston [14th Dist.] Jan. 28, 2020) (designated for publication) (Injury to a Child, Williamson Co.) [Standard of review for MNT; McCoy v. Louisiana and requirement to inform the defendant of facts that go to the decision to plead or withdraw a guilty plea]

  • If an attorney withholds information from the client relevant to the client’s decision to withdraw her plea and maintain her innocence, the attorney is ineffective. The likelihood of a better outcome from a waived or forfeited proceeding is not the correct prejudice standard because one cannot accord any presumption of reliability on judicial proceedings that never took place. The proper remedy is to give the defendant an opportunity to reject her plea agreement and opt for a jury trial.
  • Under Burch v. State, 541 S.W.3d 816, 820 (Tex.Crim.App. 2017), review of the denial of a MNT is for an abuse of discretion and is reversed only if no reasonable view of the record could support the trial court’s ruling.  Evidence is viewed in the light most favorable to the trial court’s ruling and the trial court’s ruling must be upheld if it is within the zone of reasonable disagreement, which occurs when there are two reasonable views of the evidence. 
  • Under Strickland v. Washington, 466 U.S. 668, 684-686 (1984), the Sixth Amendment guarantees a defendant the right to effective assistance of counsel. A defendant must prove by a preponderance of an evidence that: (1) trial counsel’s representation fell below an objective standard of reasonableness; and (2) prejudice. Trial counsel’s actions are presumed to have fallen within the wide range of reasonable and professional assistance. A defendant must overcome the presumption that under the circumstances, the challenged action might be considered sound trial strategy. 
  • Under McCoy v. Louisiana, 138 S.Ct. 1500, 1508 (2018) and Turner v. State, 570 S.W.3d 250, 274 (Tex.Crim.App. 2018), some decisions belong to the defendant and are not a matter of trial strategy, including to plead guilty or waive the right to a jury trial. These are not strategic choices about how best to achieve a client’s objectives but are choices about what the client’s objectives are. The Sixth Amendment guarantees that a defendant has the right to insist that counsel refrain from admitting guilt even when counsel’s experienced-based view is that confessing guilt is in the defendant’s best interest.

Facts:

  • While Appellant was working in her in-home daycare, a five-month-old baby stopped breathing. Appellant did not immediately call 911 and instead called an employee, who told her to call 911. Appellant called the other parents and asked them to pick up their children.
  • When the employee arrived 10-15 minutes later, appellant still had not called 911. The employee insisted and appellant finally did. Appellant destroyed phone logs showing calls made and text messages sent before she called 911.
  • Appellant pleaded no contest to injury to a child by omission and guilty to tampering with evidence. The trial judge initially said he would find appellant guilty of injury to a child. Defense counsel replied that deferred adjudication was available, so the judge did not make a finding of guilt and reset the case for sentencing.
  • After appellant made her plea, Defense Counsel went to the judge’s chambers where the judge was with the court coordinator and asked the judge whether he wanted her to provide caselaw show that deferred adjudication was allowed. The judge replied, “A deferred on an injury to a child case where there’s a dead baby? I don’t think so.” Defense Counsel consulted with Cocounsel and they decided not to tell appellant about the comment.
  • After sentencing, appellant retained new counsel and filed a MNT with a supporting affidavit stating that the possibility of deferred adjudication was the only she went to the judge for punishment.
  • At the MNT-hearing presided over by a different judge, it was established that the comment was made. The trial judge admitted that his comment was “absolutely not appropriate” yet claimed it to be a “smart-aleck comment,” and that he did consider the full range of punishment. Cocounsel testified that Defense Counsel texted him after she heard the comment, “We’re fucked,” yet they did not tell appellant since the same judge “was still the best option” and it was better to go with “the devil you know than the devil you don’t.”
  • The judge found the trial judge to be credible, believed that he considered the full range of punishment, and denied the MNT, finding that there was no IAC since the appellant failed to show that a favorable ruling on the MNT would have changed the outcome of the case.

The trial court abused its discretion in denying the MNT because her attorneys failed to advise her of the judge’s comment, thus depriving her of the right to ask to withdraw her plea, ask for a jury trial, or move to recuse the sentencing judge

  • Under Burch v. State, 541 S.W.3d 816, 820 (Tex.Crim.App. 2017), review of the denial of a MNT is for an abuse of discretion and is reversed only if no reasonable view of the record could support the trial court’s ruling.  Evidence is viewed in the light most favorable to the trial court’s ruling and the trial court’s ruling must be upheld if it is within the zone of reasonable disagreement, which occurs when there are two reasonable views of the evidence. 
  • Under Strickland v. Washington, 466 U.S. 668, 684-686 (1984), the Sixth Amendment guarantees a defendant the right to effective assistance of counsel. A defendant must prove by a preponderance of an evidence that: (1) trial counsel’s representation fell below an objective standard of reasonableness; and (2) prejudice. Trial counsel’s actions are presumed to have fallen within the wide range of reasonable and professional assistance. A defendant must overcome the presumption that under the circumstances, the challenged action might be considered sound trial strategy. 
  • Under McCoy v. Louisiana, 138 S.Ct. 1500, 1508 (2018) and Turner v. State, 570 S.W.3d 250, 274 (Tex.Crim.App. 2018), some decisions belong to the defendant and are not a matter of trial strategy, including to plead guilty or waive the right to a jury trial. These are not strategic choices about how best to achieve a client’s objectives but are choices about what the client’s objectives are. The Sixth Amendment guarantees that a defendant has the right to insist that counsel refrain from admitting guilt even when counsel’s experienced-based view is that confessing guilt is in the defendant’s best interest.
  • The record shows that counsel understood the seriousness of the judge’s comment and the impact that learning this information would have had on their client (telling cocounsel, “We’re fucked”). Counsel was aware that appellant likely would have changed her position had she known about the comment. The decision not to tell appellant about the judge’s statement was not a strategic choice.
  • Appellant adequately preserved her IAC claim and defense counsel were deficient when they failed to tell appellant of the judge’s statement implicating his ability to consider the full range of punishment, thus depriving appellant of the opportunity to maintain her innocence.
  • If an attorney withholds information from the client relevant to the client’s decision to withdraw her plea and maintain her innocence, the attorney is ineffective. The likelihood of a better outcome from a waived or forfeited proceeding is not the correct prejudice standard because one cannot accord any presumption of reliability on judicial proceedings that never took place. The proper remedy is to give the defendant an opportunity to reject her plea agreement and opt for a jury trial.
  • The trial court abused its discretion in denying the MNT.

Editor’s note: How did the judge of the 368th Dist. Ct., Williamson Co. REALLY feel about this defendant?