Browse Category

SDR

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?

March 2020 SDR – Voice for the Defense Vol. 49, No. 2

Voice for the Defense Volume 49, No. 2 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: No significant criminal cases were handed down by the SCOTUS since the last SDR.

United States Court of Appeals for the Fifth Circuit

United States v. Foley, No. 19-20129, 2020 U.S.App.LEXIS 61 (5th Cir. Jan. 3, 2019) (designated for publication)[Bare allegations in revocation petitions] 

  • A sentence imposed on revocation of supervised release is reviewed under a “plainly unreasonable” standard: (1) ensure that the district court committed no significant procedural error (failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, failing to adequately explain the sentence, including explaining deviations from the Guidelines range; then (2) consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard (A sentence is substantively unreasonable if it (1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrelevant or improper factor that a dominant factor in the sentence, or (3) represents a clear error of judgment in balancing the sentencing factors. Even if a sentence is substantively unreasonable, it is vacated it if the error is obvious under existing law so it must be plainly unreasonable.  
  • No limitation is placed on information about the background, character, and conduct of a person convicted of an offense that a district court may consider for imposing a sentence. But it is improper to rely on a bare arrest record. An arrest record is bare if it refers to the mere fact of an arrest—date, charge, jurisdiction and disposition—without information about the underlying facts. An arrest record is not bare and may be relied on when accompanied by facts that gave rise to an unadjudicated arrest and has an adequate evidentiary basis with sufficient indicia of reliability. A district court errs when it relies on a bare allegation of a criminal violation in a revocation petition unless it is supported by evidence adduced at a hearing or contains other indicia of reliability. 

Editor’s note: although all factors of an impermissible upward-variance exist because the petition contained “bare allegations” of new criminal violations, the error was “not clear under existing law because the court has never held in a published opinion that it is impermissible for it to rely on ‘bare allegations’ of new criminal violations.” Circular reasoning?  

United States v. Tapia, No. 18-10161, 2020 U.S.App.LEXIS 206 (5th Cir. Jan. 6, 2019) (designated for publication) [Preservation of error and 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.

United States v. Varner, No. 19-40016, 2020 U.S.App.LEXIS 1346 (5th Cir. Jan. 15, 2019) (designated for publication) [Jurisdiction of district courts; postconviction means to amend a judgment] 

  • Absent jurisdiction conferred by statute, district courts lack power to consider claims and appellate courts may only correct the error of the district court in entertaining the suit. 
  • Postconviction statutes to amend a judgment are: Fed. Rule Crim. Proc. 35 (14 days post-sentencing to correct arithmetical, technical, or other clear error; or government motion for sentence reduction); Fed. Rule Crim. Proc. 36 (correction of a clerical error); 18 U.S.C. § 3582(c)(2) (amendment to guidelines for modification of sentence based on a range lowered by the Sentencing Commission per 28 U.S.C. § 994(o)); 18 U.S.C. § 3742 (modification during direct appeal); and 28 U.S.C. § 2255 (writ of habeas corpus challenging the validity of conviction or sentence).

United States v. Mazkouri, No. 18-20650, 2019 U.S.App.LEXIS 37167 (5th Cir. Dec. 16, 2019) (designated for publication) [Healthcare Fraud per 18 U.S.C. § 1347; Fed. Rule Evid. 1006; deliberate-ignorance instruction; factual basis for a sentence under Gall v. United States, 552 U.S. 38 (2007); financial loss caused by fraud under U.S.S.G. § 2B1.1(b)(1); vulnerable victims under U.S.S.G. § 3A1.1(b)] 

  • Under Fed. Rule Evid. 1006, a summary, chart, or calculation to prove the content of voluminous writings that cannot be conveniently examined in court is allowed. A summary’s proponent must make the originals or duplicates available at a reasonable time and place but there is no rule about when the summary itself must be disclosed. The essential requirement of summaries is not that they be free from reliance on any assumptions but rather that the assumptions be supported by evidence in the record. 
  • A district court’s evidentiary rulings are reviewed for an abuse of discretion. Mistakes are subject to harmless-error review.  
  • A witness-accomplice’s guilty plea may generally be admitted into evidence if it serves a legitimate purpose and a proper limiting instruction is given. Legitimate purposes include blunting the potential effects of impeachment and clarifying the nature of the arrangement between the Government and the witness for determining credibility.  
  • Jury instructions are reviewed for an abuse of discretion, affording substantial latitude in describing the law to the jury. The 5th Circuit assesses whether the charge was a correct statement of the law applicable to the factual issues confronting the jury. The district court may not instruct the jury on a charge the evidence does not support. The evidence is viewed in the light most favorable to the Government.  
  • A deliberate-ignorance instruction informs the jury that it may consider evidence of the defendant’s charade of ignorance as circumstantial proof of guilty knowledge. Under United States v. Threadgill, 172 F.3d 357, 368 (5th Cir. 1999), it is appropriate when the evidence shows: (1) subjective awareness of a high probability of the existence of illegal conduct, and (2) purposeful contrivance to avoid learning of the illegal conduct. Even if the district court erred by instructing the jury on deliberate ignorance, substantial evidence of actual knowledge renders error harmless.  
  • Under Gall v. United States, 552 U.S. 38, 51 (2007), when the factual basis for a sentence is challenged, the 5th Circuit considers whether the district court relied on clearly erroneous facts. A factual finding is clearly erroneous only if after reviewing all the evidence the court has a definite and firm conviction that the district court erred. The district court’s factual findings at sentencing must be found by a preponderance of the evidence.  
  • Generally, a PSR bears sufficient indicia of reliability to be considered as evidence by the sentencing judge in making factual determinations. A district court may adopt facts contained in the PSR without further inquiry if those facts have an adequate evidentiary basis with sufficient indicia of reliability and the defendant does not present rebuttal evidence or otherwise demonstrate that the information in the PSR is unreliable. 
  • Under U.S.S.G. § 2B1.1(b)(1) & cmt. n.3(C), an increase is allowed in the offense level based on the amount of financial loss caused by fraud. The district court need only make a reasonable estimate of the loss, which is the greater of actual loss or intended loss.  
  • The amount fraudulently billed to Medicare is prima facie evidence of the intended loss, but the parties may introduce evidence showing the amount billed overstates or understates the billing party’s intent.  
  • When fraud is so pervasive that separating legitimate from fraudulent conduct is not reasonably practicable, the burden shifts to the defendant to show that certain amounts are legitimate. Absent such evidence, the district court may treat the entire claim for benefits as intended loss.  
  • Under U.S.S.G. § 3A1.1(b)(1) and § 1B1.3, a 2-point increase applies when the defendant knew or should have known that a victim was vulnerable due to age, physical or mental condition, or otherwise particularly susceptible to the criminal conduct. Under U.S.S.G. § 3A1.1(b)(1) and § 1B1.3, another 2-point increase applies if the offense involved many vulnerable victims.  

Editor’s note: Defendant “sometimes billed more than 24 hours of services in one day, and in one case 58.9 hours for 106 patients in a day.”    

United States v. Noria, No. 19-20286, 2019 U.S.App.LEXIS 37514 (5th Cir. Dec. 18, 2019) (designated for publication) [First page of Immigration Form I-213s; Confrontation clause, public records exception under Fed. Rule Evid. 803(8)] 

  • The first page of I-213s are not testimonial because it contains only routine biographical information and is primarily used as a record for tracking the entry of aliens.  
  • Under Crawford v. Washington, 541 U.S. 36, 53-54 (2004), a defendant’s confrontation right is violated when the government introduces testimonial statements of a witness who did not appear at trial unless that witness was unavailable to testify and the defendant had a prior opportunity for cross-examination. Under Davis v. Washington, 547 U.S. 813, 821 (2006), “testimony” means a declaration or affirmation made for establishing or proving some fact and includes prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and interrogations. The testimonial character of the statement separates it from other hearsay that while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause. The “testimonial” statement must have a primary purpose of establishing or proving past events potentially relevant to later prosecution. Thus, business and public records are generally not testimonial because they are created for the administration of an entity’s affairs and not for establishing or proving some fact at trial. But if a public record is prepared for use at trial, it is testimonial and inadmissible absent its creator’s testimony. 
  • Under Fed. Rule Evid. 803(8), public records are not excluded by the rule against hearsay regardless of whether the declarant is available as a witness. A “record or statement of a public office” qualifies: (A) it sets out: (i) the office’s activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and (B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness. This exception permits the admission of public records prepared for reasons independent of specific litigation. It assumes that the lack of motivation on the part of the official to do other than mechanically register an unambiguous factual matter makes such records inherently reliable. 
  • Under Fed. Rule Evid. 803(8)(A)(ii), the prohibition against public records of matters observed by law enforcement in criminal cases does not prevent the admission of all reports prepared by officers. Reports prepared in a routine, nonadversarial setting are allowed by those resulting from the subjective endeavor of investigating a crime and evaluating the results of that investigation are not. 
  • Under Idaho v. Wright, 497 U.S. 805, 814 (1990), although hearsay rules and the Confrontation Clause are generally designed to protect similar values, they are not wholly congruent. Even if evidence is sufficiently reliable to qualify for admission under a recognized exception to the hearsay rule, it cannot be admitted if it violates the Confrontation Clause. 

United States v. Ramirez-Cortinas, No. 19-50182, 2019 U.S.App.LEXIS 36958 (5th Cir. Dec. 13, 2019) (designated for publication) [Illegal reentry under 8 U.S.C. § 1326(a); review of the dismissal of an indictment; asylum under 8 U.S.C. § 1101(a)(42)(A); & withholding of deportation under 8 U.S.C. § 1231(b)(3)(A)] 

  • Under 8 U.S.C. § 1326(a), it is a crime for aliens who have been previously deported from the United States to reenter the country unlawfully. Under 8 U.S.C. § 1326(d) and United States v. Mendoza-Lopez, 481 U.S. 828, 838-839 (1987), an alien charged under § 1326(a) may collaterally attack the validity of the underlying deportation order by showing: (1) exhaustion of administrative remedies available; (2) deportation proceedings at which the order was issued improperly deprived him the opportunity for judicial review; and (3) entry of the order was fundamentally unfair. A showing of actual prejudice is required, meaning that the defendant has the burden to show there was a reasonable likelihood that but-for the errors, he would not have been deported. 
  • Under INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) and 8 U.S.C. § 1101(a)(42)(A), asylum is available to an alien who is unable or unwilling to return to his home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a social group or political opinion.  
  • Under 8 U.S.C. § 1231(b)(3)(A), to be eligible of withholding of deportation, the alien must demonstrate a clear probability of persecution upon return. 

United States v. Thompson, No. 18-11224, 2019 U.S.App.LEXIS 37512 (5th Cir. Dec. 18, 2019) (designated for publication) [Sufficiency of the evidence; but-for causation; penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C)] 

  • Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), when reviewing the sufficiency of the evidence, a court views all evidence whether circumstantial or direct in the light most favorable to the government, with all reasonable inferences and credibility choices to be made in support of the jury’s verdict. The jury has the sole authority to weigh conflicting evidence and evaluate the credibility of witnesses. Evidence is sufficient to support a conviction if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The inquiry is limited to whether the jury’s verdict was reasonable, not whether the reviewing court believes it to be correct. A preserved sufficiency claim is reviewed de novo but with substantial deference to the jury verdict.  
  • If a defendant fails to file motions for judgment of acquittal under Fed. Rule Crim. Proc. 29 after the close of the government’s evidence and after the verdict, review is under the manifest miscarriage of justice standard, in which a claim of insufficiency is rejected unless the record is devoid of evidence pointing to guilt or if the evidence is so tenuous that a conviction is shocking. 
  • Under Burrage v. United States, 571 U.S. 204, 218-219 (2014), where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless such use is a but-for cause of the death or injury. It does not require that the defendant directly distribute the drugs to the end-user or that another be the final link in the causal chain.  
  • Under United States v. Salinas, 918 F.3d 463, 466 (5th Cir. 2019), but-for causation requires the Government to show merely that the harm would not have occurred but-for (in the absence of) the defendant’s conduct. The standard is not difficult to meet because it asks whether the outcome would have occurred in the absence of the action. There may be many but-for causes of any given event.  

Editor’s note: Despite four other dangerous drugs in her system (meth, cocaine, opiates, and benzodiazepine), and Mason alone injecting heroin into Myers, per the government’s expert it was Myers’s use of heroin that was the but-for cause of her “serious bodily injury” even though it’s not clear whether it was Thompson’s heroin that Mason injected into Myers. This gives special meaning to a rule of statistics known as “correlation does not imply causation,” the false cause-and-effect relationship between two variables solely based on an observed association or correlation between them.    

Texas Court of Criminal Appeals

Burg v. State, No. PD-0527-18, 2020 Tex.Crim.App. LEXIS 55 (Tex.Crim.App. Jan. 29, 2020) (designated for publication) (DWI, Montgomery Co.) [License-suspension by a court for DWI is not part of the sentence; waivable error cannot be raised for the first time on appeal] 

  • A license-suspension by a trial court for DWI is not part of a sentence that can render a sentence “illegal” because it is a collateral consequence rather than a punishment.  
  • Under Tex. Rule App. Proc. 33.1, a contemporaneous objection must be made to preserve error. Rule 33.1 applies to category-three “forfeitable” Marin rights and not to category-one “absolute” or category-two “waivable-only” Marin rights—once that are fundamental to the proper functioning of the system.  
  • The right to be sentenced legally is an absolute or waivable-only right. The right to be free of an unauthorized collateral consequence of a criminal conviction is a forfeitable right.  

A person does not have the “right” to be free from a license-suspension because driving is a privilege, not a right. License-suspensions upon conviction are not a “punishment” required in a judgment as part of a sentence. An unauthorized suspension falls outside of an “illegal sentence.” 

Jordan v. State, No. PD-0899-18, 2020 Tex.Crim.App. LEXIS 101 (Tex.Crim.App. Feb. 5, 2020) (designated for publication) (Deadly Conduct, Bowie Co.) [Jury instruction for deadly force in self-defense; multiple aggressors] 

  • Under Tex. Penal Code § 9.31(a), a person is justified in using force when and to the degree he reasonably believes necessary to protect against another’s use or attempted use of unlawful force. Under Tex. Penal Code § 9.32(a), a person is justified in using deadly force if he would be justified in using force per § 9.31(a) and reasonably believes deadly force is immediately necessary to protect himself against the another’s use or attempted use of unlawful deadly force. The evidence does not have to show that the complainant was using or attempting to use unlawful deadly force because a person has the right to defend himself from apparent danger as he reasonably apprehends it. Self-defense is a confession-and-avoidance defense requiring the defendant to admit his otherwise illegal conduct so he cannot invoke it and deny the conduct.  
  • Regardless of the strength or credibility of the evidence, a defendant is entitled to an instruction on any defensive issue that raised by the evidence. A defensive issue is raised by the evidence if there is sufficient evidence to support a rational jury finding on each element of the defense. The evidence is viewed in the light most favorable to the defendant’s requested instruction.  
  • If the evidence viewed from the defendant’s standpoint shows an attack or threatened attack by more than one assailant, the defendant is entitled to a multiple-assailants instruction. The issue may be raised against nonaggressors if they seem to be encouraging, aiding, or advising the aggressor.  

Under Ngo v. State, 175 S.W.3d 738, 743-744 (Tex.Crim.App. 2005) and Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994), if a timely objection is made to jury-charge error, the finding of “some harm” requires reversal. Under Cornet v. State, 417 S.W.3d 446, 449 (Tex.Crim.App. 2013), “some harm” means actual and not theoretical harm. Reversal is required if the error was calculated to injure the rights of the defendant. If error is urged for the first time on appeal, the reviewing court may reverse only upon the finding of “egregious harm.” Under Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) and Stuhler v. State, 218 S.W.3d 706, 719 (Tex.Crim.App. 2007), jury-charge error is egregiously harmful if it affects the basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. To determine whether error was so egregious that a defendant was denied a fair and impartial trial, a reviewing court must examine: (1) the entire jury charge; (2) the state of the evidence; (3) the arguments of counsel; and (4) other relevant information in the record. Under Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App. 1996), direct evidence of harm is not required to establish egregious harm.  

Dixon v. State, No. PD-0048-19, 2020 Tex.Crim.App. LEXIS 2 (Tex.Crim.App. Jan. 15, 2020) (designated for publication) (Murder, Lubbock Co.) [Constitutional error and harm] 

  • Under Tex. Rule App. Proc. 44.2(a) (Constitutional error in criminal cases), if the appellate record reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. 

Facts

  • Appellant Dixon was a plastic surgeon in Amarillo. Sonnier was a physician in Lubbock. Shepherd was a friend of Dixon’s. 
  • On July 10, 2012, Shepard killed Sonnier. The State’s theory was that Dixon hired Shepard to kill Sonnier.
  • Sonnier was dating Dixon’s former girlfriend and Dixon wanted her back. Shepard’s roommate said that Shepard told him that Dixon paid him to kill Sonnier. 
  • The State introduced 55 pages of cellphone records that showed numerous phone calls and text messages between Dixon and Shepard in the months leading up to the murder and on the day of the murder. These records also included cell-site location information. 51 of the pages were from Shepard’s cellphone provider. From the records, the State showed that Dixon and Shepard exchanged hundreds of texts in the months leading up to the murder and some of them were about the victim. 
  • The day before the murder, Shepard texted, “Perfect day to travel to hub city” and Dixon responded, “Need it done ASAP.”
  • On the day of the murder, Dixon and Shepard exchanged 41 texts. •CSLI from Shepard’s cellphone showed him in Lubbock when he was communicating with Dixon on March 12, 2012.
  • CSLI from Dixon’s phone showed that he was in Lubbock on March 12, 2012.
  • The State did not obtain a warrant for the CSLI for Dixon’s phone.
  • Dixon told the police that he was not in Lubbock on March 12 but at trial he conceded that he must have traveled to Lubbock because the cellphone records showed him there. A gas-station receipt showed that Dixon had bought gasoline in Plainview on March 12.
  • Although Dixon told the police that he knew nothing about Sonnier, he admitted at trial that he had hired Shepard to track and photograph Sonnier—hoping to obtain photos that would cause Dixon’s former girlfriend to break up with Sonnier—and he understood that Shepard would plant a camera at Sonnier’s house for this purpose. 
  • Shepard’s phone records showed that Dixon called Shepard within minutes after the police finished speaking to Dixon.
  • On appeal, relying on Carpenter v. United States, 1138 S.Ct. 2206 (2018), the court of appeals held that the trial court erred in failing to suppress CSLI from Dixon’s cellphone records and that Dixon was harmed by the error. 

The error was harmless

  • Under Tex. Rule App. Proc. 44.2(a) (Constitutional error in criminal cases), if the appellate record reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.
  • The CSLI evidence showed that Dixon was in Lubbock on March 12, 2012, but the victim was killed on July 10, 2012. Because this was a murder-for-hire case, the evidence did not have to show that Dixon was in Lubbock at all. The evidence showed that Dixon was not in Lubbock on the day of the murder. His presence in Lubbock on some other day, even coupled with Shepard’s presence and their conversation, was not important to the prosecution.
  • Of the 55 pages of cellphone records introduced by the State, only 4 pages were from Dixon’s cellphone provider. The other 51 pages were records from Shepard’s cellphone provider, the admission of which is not challenged. Shepard’s records provided plenty of evidence that Dixon and Shepard were working together. 
  • Thus, the March 12 CSLI information was not significant considering the evidence from Shepard’s phone.
  • Dixon’s whereabouts on March 12 and deception about those whereabouts were not a significant part of the State’s case. 

Simpson v. State, No. PD-0578-18, 2020 Tex.Crim.App. LEXIS 5 (Tex.Crim.App. Jan. 15, 2020) (designated for publication) (Abandoning or Endangering a Child, Houston Co.) [collateral estoppel does not apply when in an earlier revocation proceeding the defendant could have claimed self-defense but instead pleaded “true.”] 

  • The State cannot invoke collateral estoppel offensively to prevent a defendant from claiming self-defense when in an earlier revocation proceeding the defendant could have claimed self-defense but instead pleaded “true.”  
  • Under State v. Waters, 560 S.W.3d 651, 663 (Tex.Crim.App. 2018), jeopardy does not attach in revocation proceedings for an offense alleged as a violation of the terms of community supervision. Collateral estoppel applies only when facts in the first proceeding were necessarily decided and essential to the judgment, a criterion not satisfied by a finding of “not true” in a revocation proceeding. 
  • A trial carries substantial procedural consequences, including the right to a determination of guilt or innocence. There is a notable difference in the quality and extensiveness of the procedures followed in a motion to revoke as compared to a trial, weighed against the application of collateral estoppel.  

Facts

  • Simpson pleaded guilty in 2015 to abandoning or endangering a child and was placed on one year of deferred adjudication. 
  • While still on probation, during a fight Simpson hit her roommate in the head with an ashtray. Simpson was arrested for assault. 
  • While being taken to jail, Simpson assaulted an officer.
  • The state moved to adjudicate Simpson, alleging that she: (1) assaulted her roommate with a deadly weapon; (2) assaulted a public servant lawfully discharging an official duty; (3) tested positive for marijuana use once; and (4) admitted to using marijuana another time. Simpson pleaded true to these allegations. 
  • The trial court convicted Simpson of abandoning or endangering a child, revoked her probation, and sentenced her to 6 months in SJ.
  • Simpson was later tried for Aggravated Assault on a public servant (Count 1) and Aggravated Assault with a deadly weapon against the roommate (Count 2). Simpson testified and admitted that she hit her roommate with the ashtray but did so in self-defense. She claimed to have attacked the officer in self-defense. 
  • Simpson requested a self-defense instruction for both offenses.
  • The trial court denied the requested self-defense instruction based on res judicata based on the prior plea of “true” to the assaults.
  • On Count 1, the jury found Simpson guilty of the lesser-included offense of assault on a public servant and sentenced her to 10 years.
  • On Count 1, the jury found Simpson guilty of aggravated assault and sentenced her to 11 years in TDCJ.
  • Simpson did not appeal Count 1. Simpson appealed Count 2, arguing that the trial judge erred to deny her a self-defense instruction as to that count. The court of appeals thus decided that despite her earlier plea of true” in the revocation proceeding, Simpson’s self-defense claim was not barred by collateral estoppel and that she was harmed.
  • The State filed a PDR. 

The State cannot invoke collateral estoppel offensively to prevent a defendant from claiming self-defense when in an earlier revocation proceeding the defendant could have claimed self-defense but instead pleaded “true.” 

  • Under State v. Waters, 560 S.W.3d 651, 663 (Tex.Crim.App. 2018), jeopardy does not attach in revocation proceedings for an offense alleged as a violation of the terms of community supervision.
  • Collateral estoppel applies only when facts in the first proceeding were necessarily decided and essential to the judgment, a criterion not satisfied by a finding of “not true” in a revocation proceeding.
  • The motion to proceed against Simpson alleged that Simpson: (1) assaulted her roommate (offense underlying this appeal); (2) assaulted a public servant; (3) tested positive for marijuana use on one occasion; and (4) admitted to using marijuana on another occasion. Any of these allegations, alone or in any combination, would have authorized the judge to proceed to an adjudication of guilt. Thus, the necessary or essential requirement for common law estoppel is not established.
  • A trial carries substantial procedural consequences, including the right to a determination of guilt or innocence. There is a notable difference in the quality and extensiveness of the procedures followed in a motion to revoke as compared to a trial, weighed against the application of collateral estoppel. 
  • The judgment of the court of appeals is affirmed.

Texas Courts of Appeals

State v. Hodges, No. 07-19-00237-CR, 2020 Tex.App.-LEXIS 250 (Tex.App.-Amarillo, Jan. 8, 2020) (designated for publication) (DWI, Lubbock Co.) [What is a sworn affidavit supporting a search warrant] 

  • Under Marcopoulos v. State, 538 S.W.3d 596, 600 (Tex.Crim.App. 2017), review of a ruling on a MTS is for abuse of discretion: the reviewing court considers the evidence in the light most favorable to the trial court’s ruling—with almost complete deference to the trial court’s express or implied findings of historical fact—and de novo on the application of the law to those facts.  
  • Under Tex. Code Crim. Proc. Art. 18.01(b) and Clay v. State, 391 S.W.3d 94 (Tex.Crim.App. 2013), no search warrant shall issue unless sufficient facts are presented to satisfy the magistrate that probable cause exists for its issuance. A sworn affidavit setting forth substantial facts establishing probable cause shall be filed if a search warrant is requested. The affidavit must be administered before a magistrate or other qualified officer before it becomes a valid sworn affidavit.

Mendoza v. State, No. 01-18-01140-CR, 2019 Tex.App.-LEXIS 8654 (Tex.App.-Houston [1st Dist.] Sep. 26, 2019) (designated for publication) (Sexual Assault, Brazoria Co.) [Withdrawal of a guilty plea] 

  • Under Mendez v. State, 138 S.W.3d 334, 336, 345 (Tex.Crim.App. 2004), a defendant may withdraw a guilty plea if he does so before the jury retires to deliberate its verdict. His right is unqualified, and the trial court has no discretion to deny the request.  
  • Under Payne v. State, 790 S.W.2d 649, 651 (Tex.Crim.App. 1990), when a trial court errs by refusing a defendant’s timely request to withdraw a guilty plea, the error is harmless if there is no evidence suggesting that the defendant is not guilty or is guilty only of a lesser-included offense. The defendant’s testimony denying guilt is sufficient to raise a fact issue rendering the error harmful. 

Perez-Mancha v. State, No. 14-18-00713-CR, 2019 Tex.App.-LEXIS 10110 (Tex.App.-Houston [14th Dist.] Nov. 21, 2019) (Continuous Sexual Abuse of a Child, Harris Co.) [Jury charge with a “broader chronological perimeter” than the statute permits is error] 

A jury charge with a “broader chronological perimeter” than the statute permits is error. 

Porras v. State, No. 05-18-01108-CR, 2020 Tex.App.-LEXIS 678 (Tex.App.-Dallas Jan. 24, 2020) (designated for publication) (probation revocation, Dallas Co.) [Trial court’s jurisdiction to hear a motion to revoke community supervision after community supervision is expired] 

  • Under Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App. 2006), Review of an order revoking probation is for an abuse of discretion standard. The State must prove by a preponderance of the evidence that a defendant violated the terms. The trial court is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. The evidence is reviewed in the light most favorable to the trial court’s ruling.  
  • Under Garcia v. State, 387 S.W.3d 20, 26 (Tex.Crim.App. 2012), any violation of a condition is sufficient to support revoking probation.  
  • Under Ex parte Moss, 446 S.W.3d 786, 792 (Tex.Crim.App. 2014), a probation revocation proceeding is an administrative hearing, not civil or criminal. It is an extension of the original sentencing and is subject to the continuing jurisdiction of the trial court. The trial court maintains its jurisdiction to hear a motion to adjudicate guilt if the motion is filed, and a capias is issued before the end of the probationary period.  
  • Under Tex. Code Crim. Proc. Art. 42A.103(a), in a felony case the period of deferred adjudication may not exceed ten years. For a defendant charged under Tex. Penal Code §§ 21.11, 22.011, or 22.021, regardless of the age of the victim the period of deferred adjudication may not be less than 5 years. A court may extend deferred adjudication per Arts. 42A.753 or 42A.757 as frequently as it determines necessary but for no more than 10 years.

Prestiano v. State, No. 01-17-00763-CR, 2019 Tex.App.-LEXIS 7326 (Tex.App.-Houston [1st Dist.] Aug. 20, 2019) (op. on reh.) (designated for publication) (Aggravated Sexual Assault under Tex. Penal Code § 22.021, Tom Green Co.) [Legal sufficiency; Aggravated Sexual Assault by contact and Aggravated Sexual Assault by penetration] 

  • Under Villalon v. State, 791 S.W.2d 130, 133-335 (Tex.Crim.App. 1990), the uncorroborated testimony of the child is sufficient to support a conviction and the child need not directly and explicitly testify as to contact or penetration with the same clarity and ability of an adult. 
  • Under Green v. State, 476 S.W.3d 440, 447 (Tex.Crim.App. 2015), because “penetration” is not defined by statute, its ordinary meaning in the context of aggravated sexual assault is assigned, which means “to enter into” or “to pass through.” This definition distinguishes penetration from “mere contact with the outside of an object” per Vernon v. State, 841 S.W.2d 407, 409 (Tex.Crim.App. 1992). 
  • Under Lee v. State, 537 S.W.3d 924, 927 (Tex.Crim.App. 2017), when an appellate court finds the evidence legally insufficient to prove an element of the charged offense but finds the defendant guilty of a lesser-included offense, the court must reform the judgment to reflect conviction for the lesser-included offense.  
  • Aggravated Sexual Assault by contact and Aggravated Sexual Assault by penetration differ only in the degree of physical invasion involved, with the latter factually subsuming the former. Though criminalized by the same statute and subject to the same range of punishment, Aggravated Sexual Assault by contact is a lesser-included offense of Aggravated Sexual Assault by penetration.

Privette v. State, No. 06-19-00162-CR, 2019 Tex.App.-LEXIS 10213 (Tex.App.-Texarkana, Nov. 26, 2019) (designated for publication) (Aggravated Assault, Hopkins Co.) [Deferred adjudication stacked on sentence for crime arising out of the same criminal episode] 

  • When a defendant is charged with more than one offense arising out of the same criminal episode—and guilt for one of the offenses is deferred through deferred adjudication—the probation for the deferred adjudication may be stacked on any sentence for the other convicted offenses 
  • Under LaPorte v. State, 840 S.W.2d 412, 415 (Tex.Crim.App. 1992) and Tex. Penal Code § 3.03(a), when the defendant is convicted of more than one offense arising out of the same criminal episode—and prosecuted in a single criminal action—a sentence for each shall run concurrently unless one of the § 3.03 exceptions apply. A defendant is prosecuted in “a single criminal action” if allegations and evidence of more than one offense arising out of the same criminal episode are presented in a single trial whether under one or several charging instruments.  
  • Under Tex. Penal Code § 3.01(1), criminal episode means the commission of two or more offenses—regardless of whether the harm is directed toward more than one person—that are committed during the same transaction.  
  • Under Donovan v. State, 68 S.W.3d 633, 636 (Tex.Crim.App. 2002), when a defendant receives deferred adjudication, there is no finding of guilt—instead the court finds that the evidence substantiates guilt and then defers adjudication. 

Alcoser v. State, No. 07-18-00032-CR, 2019 Tex.App.-LEXIS 11107 (Tex.App.-Amarillo Dec. 20, 2019) (designated for publication) (Assault family violence, McLennan Co) [Egregious harm in the jury charge] 

  • Under Tex. Code Crim. Proc. Art. 36.14 and Beltran De La Torre v. State, 583 S.W.3d 613, 617 (Tex.Crim.App. 2019), the trial court shall deliver to the jury a written charge distinctly setting forth the law applicable to the case. A jury charge: (1) must be in writing; (2) must distinctly set forth the law applicable to the case; (3) cannot express any opinion as to the weight of the evidence; (4) may not sum up the testimony; and (5) cannot discuss the facts or use any argument calculated to arouse sympathy or excite the passions of the jury. The abstract paragraph of a jury charge serves as a guide to help the jury understand the meaning of concepts and terms used in the application paragraph. The failure to give an abstract instruction is reversible error it is necessary to correct or complete the jury’s understanding of concepts or terms in the application paragraph. A trial court must maintain neutrality in providing such information and guidance and avoid any special allusion to a certain fact as the jury might construe this as judicial endorsement or imprimatur. An instruction is improper if it impermissibly guides a jury’s consideration of the evidence or focuses the jury on certain evidence because it amounts to an impermissible comment on the weight of the evidence.  
  • Under Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985), a reviewing court must: (1) determine whether charge error occurred; and (2) analyze the error for harm. Charge error requires reversal when a proper objection has been made and a reviewing court finds some harm (error calculated to injure the rights of the defendant). If the alleged error was not preserved, only egregious harmed allows reversal, which is error that affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. The harm must be determined considering: (1) the instructions, (2) the state of the evidence, (3) the arguments of counsel, and (4) any other relevant information in the record. There is no burden of proof or persuasion in a harm analysis conducted under Almanza.  
  • When trying multiple offenses in the same proceeding, a trial court must distinguish in the jury charge the culpable mental states applicable to each offense because the failure to do so is error. Under Tex. Penal Code § 6.03, the culpable mental states are intentionally, knowingly, recklessly, and criminally negligent. Under Young v. State, 341 S.W.3d 417, 423 (Tex.Crim.App. 2011), offenses must be distinguished into three categories based on the offense-defining statute’s gravamen or focus: (1) result-of-conduct offenses (result or product of the complained-of conduct), (2) nature-of-conduct offenses (defined by the act or conduct that is prohibited regardless of the result that occurs), and (3) circumstances-of-conduct offenses (prohibit otherwise innocent behavior that becomes criminal only under specific circumstances like failure to register as a sex-offender it is criminalized only if one must register). A trial court errs by failing to limit the definitions of the culpable mental states to the conduct element or elements of the offense to which they apply.  
  • Under Medina v. State, 7 S.W.3d 633, 640 (Tex.Crim.App. 1999), generally no egregious harm results from an erroneous abstract paragraph when the application paragraph is correct.  

Davis v. State, No. 01-18-00519-CR, 2019 Tex.App.-LEXIS 9073 (Tex.App.-Houston [1st. Dist.] Oct. 15, 2019) (designated for publication) (Theft & probation revocation, Harris Co.) [Factors under Tex. Code Crim. Proc. Art. 42.037(h) supporting revocation] 

  • Under Hacker v. State, 389 S.W.3d 860, 865 (Tex.Crim.App. 2013, when reviewing an order revoking community supervision, the sole question is whether the trial court abused its discretion. Under DeGay v. State, 741 S.W.2d 445, 450 (Tex.Crim.App. 1987), The central issue to be determined in reviewing a trial court’s discretion in a community supervision revocation is whether the defendant was afforded due process of law. 
  • Under Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App. 1984), the limits to a trial court’s discretion to revoke supervision are: (1) the State must prove at least one violation of the terms and conditions; (2) an appellate court reviews the trial court’s decision for an abuse of discretion; and (3) federal due process requires that a trial court consider alternatives to imprisonment before incarcerating an indigent defendant who is unable to pay amounts due under community supervision. The State has the burden to establish by a preponderance of the evidence that appellant committed a violation. The standard is met when the greater weight of credible evidence supports a reasonable belief that a condition was violated.  
  • Under Tex. Code Crim. Proc. Art. 42.037(h), in determining whether to revoke community supervision, parole, or mandatory supervision, the court or parole panel shall consider: (1) the defendant’s employment status; (2) the defendant’s current and future earning ability (the amount and frequency of earnings compared to the frequency of court-ordered restitution should be considered with this factor); (3) the defendant’s current and future financial resources (If defendant has the ability to borrow money but unreasonably fails to employ this option, this factor weighs in favor of revocation); (4) the willfulness of the defendant’s failure to pay; (5) any special circumstances that affects the defendant’s ability to pay; and (6) the victim’s financial resources or ability to pay expenses incurred by the victim because of the offense. Under Bryant v. State, 391 S.W.3d 86, 93 (Tex.Crim.App. 2012), Art. 42.037(h) is a mandatory evidentiary provision. So long as a trial court considers the factors in its decision whether to revoke, a court is not required to weigh the factors in any particular manner. No element is necessary to justify revocation or alone is sufficient to justify revocation. Under Carreon v. State, 548 S.W.3d 71, 78 (Tex.App.-Corpus Christi-Edinburg 2018, no pet.), there must be some evidence of each Art. 42.037(h) for the trial court to consider. 
  • Under Tex. Code Crim. Proc. Art. 42A.751(i), in a revocation hearing at which it is alleged only that the defendant violated conditions by failing to pay fees or court costs or by failing to pay the costs of legal services under Art. 42A.301(11), the state must prove by a preponderance of the evidence that the defendant was able to pay and did not pay as ordered by the judge. 
  • Usually a plea of true to any alleged violation is sufficient to support a revocation order. But if all alleged violations are based on financial obligations, imprisonment is allowed only when the failure to pay was willful. 

Ex parte Edwards, No. 01-19-00100-CR, 2019 Tex.App.-LEXIS 7755 (Tex.App.-Houston [1st Dist.] Aug. 27, 2019) (designated for publication) (Habeas corpus, Harris Co.) [Pretrial habeas corpus attacking running of the statute of limitations; tolling of the statute of limitations for prosecution of sexual assault under Tex. Code Crim. Proc. Art. 12.01(1)(C)(i)] 

  • Under Ex parte Smith, 178 S.W.3d 797, 802 (Tex.Crim.App. 2005) and Ex parte Tamez, 38 S.W.3d 159, 160 (Tex.Crim.App. 2001), a defendant may use a pretrial writ of habeas corpus to challenge a court’s jurisdiction if the face of the indictment shows that the statute of limitations bars prosecution.  
  • Under Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App. 2006, the applicant for a writ of habeas corpus has the burden to establish entitlement to relief by preponderance of the evidence. Review is for an abuse of discretion. The reviewing court considers the facts in the light most favorable to the ruling and defers to the trial court’s implied factual findings that are supported by the record. When resolution of the ultimate issue turns on an application of purely legal standards, review is de novo.  
  • Under Tex. Code Crim. Proc. Arts. 12.01(2)(E), 12.03(d), and Ex parte Goodbread, 967 S.W.2d 859, 865 (Tex.Crim.App. 1998), the statute of limitations for Aggravated Sexual Assault (adult) is 10 years from the offense. Under Tex. Code Crim. Proc. Art. 12.01(1)(C)(i), there is no statute of limitations if during the investigation biological matter is collected and subjected to DNA-testing and the results show that the matter does not match complainant or another whose identity is readily ascertained. 

Espino-Cruz v. State, 586 S.W.3d 538, 2019 Tex.App.-LEXIS 8560 (Tex.App.-Houston [14th Dist.] Sep. 24, 2019) (designated for publication) (Possession with Intent to Deliver a Controlled Substance, Harris Co.) [Sufficient evidence to prove possession with intent to deliver contraband; affirmative links] 

  • Under Blackman v. State, 350 S.W.3d 588, 594 (Tex.Crim.App. 2011), to support a defendant’s conviction as a principal actor, the State must prove that the defendant knowingly possessed the contraband, which requires proof that the defendant: (1) exercised actual care, custody, control, or management over the substance; and (2) knew the substance was contraband. Under Tex. Health & Safety Code § 481.002(8), “deliver” means to transfer—actually or constructively—to another a controlled substance, including an offer to sell a controlled substance. The State need not show exclusive possession to support conviction as a principal actor because control may be exercised by more than one person.  
  • To prove possession of a controlled substance as a party, the State must show: (1) that another possessed the contraband; and (2) with the intent that the offense be committed, the defendant solicited, encouraged, directed, aided, or attempted to aid the other’s possession. Events occurring before, during, and after the commission of the offense may be considered, including the defendant’s actions that show an understanding or common design to commit the offense. Mere presence or knowledge of an offense does not make one a party to possession. The evidence must show that at the time of the offense, the parties were acting together, each contributing towards the execution of their common purpose.  
  • Under Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App. 2005), when a defendant is not in exclusive possession of the place where the contraband is found, the defendant is not considered to have knowledge of and control over it unless the State establishes an affirmative link between the defendant and the contraband. A link generates a reasonable inference that the defendant knew of the contraband’s existence and exercised control over it. It may be proven through direct or circumstantial evidence. The evidence must establish that the defendant’s connection with the contraband was more than fortuitous. The nonexclusive factors are: (1) whether defendant was present when a search is conducted; (2) whether the contraband was in plain view; (3) defendant’s proximity to and the accessibility of the contraband; (4) whether defendant was under the influence of narcotics when arrested; (5) whether defendant possessed other contraband when arrested; (6) whether defendant made incriminating statements when arrested; (7) whether defendant attempted to flee; (8) whether defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the drugs were found; (12) whether the place where the drugs were found was enclosed; (13) whether the defendant was found with a large amount of cash; (14) whether the conduct of defendant indicated a consciousness of guilt; (15) the quantity of contraband found. The number of factors is not as important as the logical force they collectively create to prove that a crime has been committed. The absence of links does not constitute evidence of innocence to be weighed against the links present.  
  • Intent to deliver contraband may be proved by circumstantial evidence, including evidence that the defendant possessed the contraband and the quantity of the drugs possessed. Intent can be inferred from the acts, words, and conduct of the defendant: (1) the nature of the location at which defendant was arrested, (2) the quantity of contraband in the defendant’s possession, (3) the manner of the packaging of the contraband, (4) the presence of or lack of narcotics paraphernalia for either use or sale, (5) large amounts of cash, or (6) defendant’s status as a narcotics user. The quantity of the factors is not as important as the logical force the factors have in establishing the elements of the offense. Expert testimony by experienced officers may be used to establish a defendant’s intent to deliver. 

State v. Fikes, No. 03-19-00338-CR, 2019 Tex.App.-LEXIS 8157 (Tex.App.-Austin Sep. 6, 2019) (designated for publication) (DWI, Travis Co.) [Reasonableness of the procedures of a blood-draw] 

  • Under Schmerber v. California, 384 U.S. 757, 769 (1966) and Missouri v. McNeely, 569 U.S. 141, 148 (2013), a blood-draw is a Fourth Amendment search and an invasion of bodily integrity that implicates an individual’s most personal and deep-rooted expectations of privacy.  
  • Under State v. Johnston, 336 S.W.3d 649, 658 (Tex.Crim.App. 2011), a blood-draw is reasonable if police had justification for requiring it and reasonable means and procedures were used in obtaining the sample. When assessing whether the means and procedures were reasonable, courts must consider whether the test was reasonable and was performed in a reasonable manner.  
  • 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. 

Fraser v. State, No. 07-15-00267-CR, 2019 Tex.App.-LEXIS 11105 (Tex.App.-Amarillo Dec. 20, 2019) (designated for publication) (Murder, McLennan Co.) [Egregious harm; jury charge for felony murder] 

  • Under Tex. Code Crim. Proc. Art. 36.14 and Beltran De La Torre v. State, 583 S.W.3d 613, 617 (Tex.Crim.App. 2019), the trial court shall deliver to the jury a written charge distinctly setting forth the law applicable to the case. The charge: (1) must be in writing; (2) must distinctly set forth the law applicable to the case; (3) cannot express any opinion as to the weight of the evidence; (4) may not sum up the testimony; and (5) cannot discuss the facts or use any argument calculated to arouse sympathy or excite the passions of the jury. The abstract paragraph of a jury charge serves as a guide to help the jury understand the meaning of concepts and terms used in the application paragraph. The failure to give an abstract instruction is reversible error it is necessary to correct or complete the jury’s understanding of concepts or terms in the application paragraph. A trial court must maintain neutrality in providing such information and guidance and avoid any special allusion to a certain fact as the jury might construe this as judicial endorsement or imprimatur. An instruction is improper if it impermissibly guides a jury’s consideration of the evidence or focuses the jury on certain evidence because it amounts to an impermissible comment on the weight of the evidence.  
  • Under Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985), a reviewing court must: (1) determine whether charge error occurred; and (2) analyze the error for harm. Charge error requires reversal when a proper objection has been made and a reviewing court finds some harm (error calculated to injure the rights of the defendant). If the alleged error was not preserved, only egregious harmed allows reversal, which is error that affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. The harm must be determined considering: (1) the instructions, (2) the state of the evidence, (3) the arguments of counsel, and (4) any other relevant information in the record. There is no burden of proof or persuasion in a harm analysis conducted under Almanza.
  • Under Tex. Penal Code § 19.02(b), a person commits Murder if she intentionally or knowingly causes death ; intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes death; or commits or attempts to commit a felony other than manslaughter and during the commission, attempt, or in immediate flight from the commission or attempt, commits or attempts to commit an act clearly dangerous to human life that causes death. Under Schroeder v. State, 123 S.W.3d 398, 400 (Tex.Crim.App. 2003), the statutory focus (gravamen) of Murder is causing death so Murder is a result-of-conduct or result-oriented offense (the proscribed conduct must have caused the death) as opposed to simply engaging in conduct that results in death. For felony murder, the factfinder must determine that the act clearly dangerous to human life must have caused death. 

Analysis:

  • The entire charge: was affected because the definition of reckless was not properly tailored to Murder. This error was emphasized by the failure of the application paragraphs to include an application of the law concerning the elements of injury to a child and child endangerment to the facts of the case. 
  • State of the evidence: no one maintains that Appellant intended to cause the infant’s death. When it comes to intent, the State’s evidence at best shows that Appellant intentionally engaged in conduct that ultimately caused the infant’s death, but this alone is not Murder. 
  • Arguments of counsel: The prosecution pursued a conviction based in part upon the theory that Appellant recklessly or with criminal negligence committed either injury to a child or child endangerment. During the entire trial the prosecution emphasized the reckless nature of the alleged conduct. It seems apparent that the prosecution did not understand the distinction between a result-of-conduct offense and a nature-of-conduct offense. The prosecutor repeatedly told the jury that a conviction could be based on reckless conduct alone. 
  • Any other information in the record: A review of the record illustrates the inherent risks of relying upon reckless or criminally negligent injury to a child or endangerment as the underlying felony offense for felony murder.
  • The judgment is reversed, and the case is remanded for a new trial.

January/February 2020 SDR – Voice for the Defense Vol. 49, No. 1

Voice for the Defense Volume 49, No. 1 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: There have been no significant decisions handed down yet by the SCOTUS this term.

United States Court of Appeals for the Fifth Circuit

United States v. Beverly, No. 18-20729, 2019 U.S.App.LEXIS 33977 (5th Cir. Nov. 14, 2019) (designated for publication) [Good-faith exception; Stored Communications Act]

        Under Davis v. United States, 564 U.S. 229, 238 (2011), the good-faith exception provides an exception to the exclusionary rule if investigators acted with an objectively reasonable, good-faith belief that their conduct was lawful. Where official action is pursued in complete good faith, the deterrence rationale loses much of its force. The exclusionary rule exists to deter willful or flagrant actions by police, not reasonable, good-faith ones.

        The good-faith exception does not apply if the: (1) issuing magistrate was misled by information in an affidavit that the affiant knew or reasonably should have known was false; (2) issuing magistrate wholly abandoned his judicial role; (3) warrant affidavit is so lacking in indicia of probable cause as to render official belief in its existence unreasonable; and (4) warrant is so facially deficient in failing to particularize the place to be searched or things to be seized that executing officers cannot reasonably presume it valid.

        Under United States v. Leon, 468 U.S. 897, 906 (1984), the good-faith exception applies to evidence obtained from warrants that were obtained without probable cause.

        Under Illinois v. Krull, 480 U.S. 340, 342 (1987), the good-faith exception applies to evidence obtained from warrantless searches later held to be unconstitutional. It applies where officers acted in objectively reasonable reliance upon a statute authorizing warrantless administrative searches, but the statute was after found to violate the Fourth Amendment. Excluding evidence obtained prior to a judicial declaration will not deter future Fourth Amendment violations by an officer who fulfilled his responsibility to enforce the statute as written.

        Under the Stored Communications Act (SCA), 18 U.S.C. §§ 2701–2711, law enforcement may obtain a court order compelling the disclosure of certain telecommunications records when the agency offers specific and articulable facts showing that there are reasonable grounds to believe that the records sought are relevant and material to an ongoing criminal investigation. 18 U.S.C. § 2703(d). This is the reasonable suspicion standard under Terry v. Ohio, 392 U.S. 1 (1968), and is less stringent than the probable-cause standard required for a search warrant.

        Under Carpenter v. United States, 138 S.Ct. 2206 (2018), obtaining historical cell-site location information (CSLI) from a wireless carrier is a search under the Fourth Amendment because an individual has a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.

United States v. Gentry, No. 17-10165, 2019 U.S.App.LEXIS 32238 (5th Cir. Oct. 28, 2019) (designated for publication) [Conflict of interest for breakdown in communication; enhancement under U.S.S.G. § 3C1.1 for obstruction of justice; sufficient indicia of reliability of information in a PSR]

        An attorney’s conflict of interest may be so flagrant that it violates the Sixth Amendment. Where the alleged conflict is due to a conflict between the attorney’s personal interest and his client’s (rather than multiple client representation), Strickland v. Washington, 466 U.S. 668 (1984), applies: A defendant must show that counsel’s performance was deficient and it prejudiced the defense.

        A district court is constitutionally required to provide substitute counsel if there is a complete breakdown in communication. Reversal is inappropriate if the breakdown is attributed to the defendant’s intransigence and not to the neglect of defense counsel or the trial court.

        Under U.S.S.G. § 3C1.1, a 2-level increase to a defendant’s offense level is added if: (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant’s offense of conviction and any relevant conduct; or (B) a closely related offense. A finding of obstruction of justice under U.S.S.G. § 3C1.1 is a factual finding that is reviewed for clear error.

        Requests to substitute counsel alone do not amount to obstruction of justice under U.S.S.G. § 3C1.1. A defendant’s failure to work in harmony with court-appointed counsel may occur for reasons like anxiety related to the consequences of a criminal conviction, differences in personality, and incompatible communication styles. District courts must be cautious not to punish defendants for their distrust of the criminal justice system or lack of knowledge related to the procedures applied. District courts must avoid applying the obstruction-of-justice sentence enhancement in a way that discourages defendants from actively participating in their defenses and asserting their constitutional right to effective assistance of counsel.

        Sentences based upon erroneous and material information or assumptions violate due process.

        A district court’s calculation of the quantity of drugs involved in an offense is a factual determination. Factual findings regarding sentencing factors are entitled to considerable deference and will be reversed only if they are clearly erroneous. The remedy where a trial court relies upon erroneous information or assumptions is to remand for a new sentencing hearing.

        A district court may extrapolate the quantity of drugs from any information that has sufficient indicia of reliability to support its probable accuracy.

        Information in a PSR generally bears a sufficient indicia of reliability to be considered evidence for making factual determinations. But mere inclusion in the PSR does not convert facts lacking an adequate evidentiary basis with sufficient indicia of reliability into facts that may be relied upon. If the facts lack sufficient indicia of reliability, it is error for the district court to consider it. When facts contained in the PSR are supported by an adequate evidentiary basis with sufficient indicia of reliability, a defendant must offer rebuttal evidence demonstrating that the facts are materially untrue, inaccurate, or unreliable.

Editor’s note: This case presents a good example of ways to deal with very difficult clients while maintaining client confidentiality and protecting the attorney-client privilege.

United States v. Johnson, No. 18-50826, 2019 U.S.App.LEXIS 35005 (5th Cir. Nov. 22, 2019) (designated for publication) [Plain error review; counting a prior sentence as part of criminal history under U.S.S.G. § 4A1.2(e)]

        Under Gall v. United States, 552 U.S. 38, 51 (2007), a district court commits a significant procedural error at sentencing if it improperly calculates the Guidelines range or selects a sentence based on clearly erroneous facts.

        When the defendant does not object to error before the district court, plain error review applies. Under Fed. Rule Crim. Proc. 52(b), a court of appeals may consider errors that are plain and affect substantial rights even though they are raised for the first time on appeal. Under Molina-Martinez v. United States, 136 S.Ct. 1338 (2016), and United States v. Olano, 507 U.S. 725 (1993), these conditions must be met before a court may consider plain error: (1) error that has not been intentionally relinquished or abandoned; (2) the error must be plain (clear or obvious); (3) the error must have affected the defendant’s substantial rights, which requires the defendant to show a reasonable probability that but for the error, the outcome of the proceeding would have been different; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

        Under U.S.S.G. § 4A1.2(e), a prior sentence is not counted unless: (1) it was a prison sentence exceeding 1 year and 1 month that was imposed within 15 years of the defendant’s commencement of the present offense, or (2) it was any other sentence that was imposed within 10 years of the defendant’s commencement of the present offense.

United States v. Kearby, No. 18-10874, 2019 U.S.App.LEXIS 35280 (5th Cir. Nov. 25, 2019) (designated for publication) [Calculation of drug-quantity; 2-level increase for importing meth per U.S.S.G. § 2D1.1(b)(5); 2-level reduction per U.S.S.G. § 3B1.2(b) for being a minor participant]

        Under Gall v. United States, 552 U.S. 38, 46 (2007), sentences are reviewed per bifurcated process: (1) examine whether the district court committed significant procedural error, and if not, (2) consider the substantive reasonableness of the sentence.

        Calculation of drug-quantity is a factual determination that is not reversed unless implausible considering the entire record. A district court may consider estimates of quantity for sentencing purposes. A court may consider statements of coconspirators even they are somewhat imprecise in calculating drug quantity.

        When making factual findings for sentencing purposes, the district court may consider any information that bears a sufficient indicia of reliability to support its probable accuracy. It may adopt facts in a PSR without inquiry if the facts had an adequate evidentiary basis and the defendant does not present rebuttal evidence.

        If uncorroborated hearsay is sufficiently reliable, a district court may rely on it in making sentencing findings.

        Under U.S.S.G. § 2D1.1(b)(5), a 2-level increase is allowed if the offense involved the importation or manufacture of meth of meth from listed chemicals that the defendant knew were imported unlawfully and the defendant is not subject to an adjustment under § 3B1.2 (Mitigating Role). The distribution or possession with intent to distribute of imported meth alone may subject a defendant to the § 2D1.1(b)(5) enhancement. It applies even if the distributor doesn’t know of the foreign origins.

        Under U.S.S.G. § 3B1.2(b), a 2-level reduction is allowed if the defendant was a minor participant in the criminal activity—substantially less culpable than the average participant but whose role was not minimal. Whether the reduction applies is based on the totality of the circumstances. The district court should consider these factors: knowledge, planning, authority, responsibility, and benefit from the scheme. The court need not expressly weigh each factor but may address them if the parties cite them and proffer facts and contentions relating to them.

United States v. Sparks, No. 18-50225, 2019 U.S.App.LEXIS 31900 (5th Cir. Oct. 24, 2019) (designated for publication) [Miller v. Alabama does not add procedural requirements above 18 U.S.C. § 3553(a)]

        Under Miller v. Alabama, 567 U.S. 460 (2012), the SCOTUS held that juveniles may not receive mandatory LWOP sentences. Under Montgomery v. Louisiana, 136 S.Ct. 718 (2016), Miller is retroactive to cases on collateral review. Miller does not foreclose life without parole on a discretionary basis. Miller has no relevance to sentences less than LWOP, so sentences of life with the possibility of parole or early release are allowed. A term-of-years sentence cannot be characterized as a de facto life sentence.

        The procedural component of Miller requires a sentencer to consider a juvenile’s youth and attendant characteristics before determining that life without parole is a proportionate sentence.

        Under 18 U.S.C. § 3553(a), a court shall impose a sentence sufficient to comply with the purposes of sentencing. The court must examine the nature and circumstances of the offense and the history and characteristics of the defendant, and consider the policy statements of the Sentencing Commission, which allow for consideration of age. Miller does not add procedural requirements above 18 U.S.C. § 3553(a).

Texas Court of Criminal Appeals

Allen v. State, No. PD-1042-18, 2019 Tex.Crim.App. LEXIS 1172 (Tex.Crim.App. Nov. 20, 2019) (designated for publication) (Aggravated Robbery, Harris Co.) [Summoning witness/mileage fee in Tex. Code Crim. Proc. Art. 102.011(a)(3), (b) does not violate separation of powers principles]

        The summoning witness/mileage fee in Tex. Code Crim. Proc. Art. 102.011(a)(3), (b) does not violate separation of powers principles.

        Under Tex. Gov. Code § 311.021, there is a presumption that a statute is valid. In a challenge to the constitutionality of a statute, a court must interpret the statute such that its constitutionality is supported and upheld and must make every reasonable presumption in favor of its constitutionality, unless the contrary is clearly shown.

        Under City of Los Angeles v. Patel, 135 S.Ct. 2443, 2449 (2015), a facial challenge is an attack on a statute itself as opposed to a particular application. Such a challenge requires the challenger to establish that no set of circumstances exists under which the statute would be valid.

        Under Tex. Const. Art. II, § 1, and Ex parte Lo, 424 S.W.3d 10, 28 (Tex.Crim.App. 2013) (op. on State’s motion for reh.), the three branches of government—legislative, executive, and judicial—are separate and distinct branches, and no person or collection of persons being of one of these departments shall exercise any power properly attached to either of the others unless expressly permitted in the Constitution. This division ensures that power granted one branch may be exercised by only that branch, to the exclusion of the others. One way the separation of powers provision is violated is when one branch of government assumes or is delegated a power more properly attached to another branch.

        The authority to impose taxes is vested in the legislative branch, and the authority to collect taxes is delegated to the executive branch. The courts are delegated a power more properly attached to the executive branch if a statute turns the courts into tax gatherers. But under certain circumstances, a court’s collection of fees in a criminal case is a proper part of the judicial function and does not constitute an impermissible tax.

        Constitutionally permissible court costs are those that: (1) reimburse criminal justice expenses incurred in connection with the defendant’s criminal prosecution, and (2) are to be expended to offset future criminal justice costs.

        A statute assessing costs for future expenses or an interconnected statute must expressly direct the collected fees to be expended for a legitimate criminal justice purpose. Such costs are legitimate when imposed to recoup expenses incurred during a prosecution.

Garcia v. State, No. PD-0035-18, 2019 Tex.Crim.App.LEXIS 1112 (Tex.Crim.App. Nov. 20, 2019) (designated for publication) (Aggravated Sexual Assault of a child, Harris Co.) [Election rule in sexual assault cases]

        In a sexual assault trial where one act is alleged in the indictment and more than one act is shown by the evidence, the State must elect the act upon which it would rely for conviction. The trial court has discretion to order the State to make an election at any time before the State rests its case-in-chief. Once the State rests, if the defendant makes a timely request the trial court must order the State to decide. Failure to do so constitutes constitutional error subject to a Tex. Rule App. Proc. 44.2(a) harm analysis.

        The purpose of the election rule is to: (1) protect the defendant from the introduction of extraneous offenses; (2) minimize the risk that the jury might convict not because one or more crimes were proved beyond a reasonable doubt but because all of them convinced the jury that the defendant was guilty; (3) ensure a unanimous verdict on one incident that constituted the offense charged; and (4) give the defendant notice of the offense the State intends to rely upon for prosecution and afford the defendant an opportunity to defend.

Texas Courts of Appeals

August v. State, No. 14-18-00448-CR, 2019 Tex. App.—LEXIS 9672 (Tex.App.—Houston [14th Dist.] Nov. 5, 2019) (designated for publication) (Burglary of a habitation, Waller Co.) [Show-up identifications]

        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 an 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 Barley v. State, 906 S.W.2d 27, 32–33 (Tex.Crim.App. 1995), a pretrial identification procedure may be so suggestive and conducive to mistaken identification that use of it at trial is a denial of due process. The question is reviewed de novo. The Appellant must show by clear and convincing evidence that the pretrial identification procedure: (1) was impermissibly suggestive, and (2) gave rise to a substantial likelihood of irreparable misidentification.

        The five nonexclusive factors to determine whether an impermissibly suggestive identification procedure gave rise to a substantial likelihood of irreparable misidentification are the: (1) witness’ opportunity to view the suspect at the time of the crime; (2) witness’ degree of attention; (3) accuracy of the witness’ prior description of the suspect; (4) level of certainty demonstrated by the witness at the confrontation; and (5) time between the crime and the confrontation.

        “Show up” identifications do not necessarily violate a defendant’s right to due process but tend to be suggestive. The totality of the circumstances is considered to determine whether a show-up was impermissibly suggestive. If the totality of the circumstances indicates that a substantial likelihood of irreparable misidentification exists, due process is violated.

Editor’s note: This is the complete law on the standard of review for motions to suppress:

  • 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 an 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 Barley v. State, 906 S.W.2d 27, 32–33 (Tex.Crim.App. 1995), a pretrial identification procedure may be so suggestive and conducive to mistaken identification that use of it at trial is a denial of due process. The question is reviewed de novo. The Appellant must show by clear and convincing evidence that the pretrial identification procedure: (1) was impermissibly suggestive, and (2) gave rise to a substantial likelihood of irreparable misidentification.
  • The five nonexclusive factors to determine whether an impermissibly suggestive identification procedure gave rise to a substantial likelihood of irreparable misidentification are the: (1) witness’ opportunity to view the suspect at the time of the crime; (2) witness’ degree of attention; (3) accuracy of the witness’ prior description of the suspect; (4) level of certainty demonstrated by the witness at the confrontation; and (5) time between the crime and the confrontation.
  • “Show up” identifications do not necessarily violate a defendant’s right to due process but tend to be suggestive. The totality of the circumstances is considered to determine whether a show-up was impermissibly suggestive. If the totality of the circumstances indicates that a substantial likelihood of irreparable misidentification exists, due process is violated.

Editor’s note: Suggestive lineups and show-ups do nothing other than either confirm what the police already know or pin a crime on the wrong person. The police wouldn’t like it if the tables were turned on them.

State v. Castanedanieto, Nos. 05-18-00870-CR, 05-18-00871-CR, & 05-18-00872-CR, 2019 Tex.App.—LEXIS 8884 (Tex.App.—Dallas Oct. 3, 2019) (designated for publication) (Aggravated Robbery, Dallas Co.) [Later confession tainted a prior one]

        Under Sterling v. State, 800 S.W.2d 513, 519–520 (Tex.Crim.App. 1990), to determine whether a later confession is tainted by a prior one, courts must consider: (1) whether the condition rendering the first confession inadmissible persisted through later questioning; (2) the length of the break between the two confessions; (3) whether the defendant was given renewed Miranda warnings; (4) whether the defendant initiated the interrogation that resulted in the later confession; and (5) any other relevant circumstances, including whether a magistrate warned the defendant of his rights between confessions, the defendant’s latter confession was motivated by earlier improper influences brought to bear on him, the defendant remained in custody between the confessions, the defendant conferred with counsel between confessions or requested counsel, and the defendant gave the second confession when he otherwise might not have because he had already given the first one.

Cole v. State, Nos. 09-18-00124-CR & 09-18-00125-CR, 2019 Tex.App.—LEXIS 9873 (Tex.App.—Beaumont, Nov. 13, 2019) (designated for publication) (Aggravated Robbery, Jefferson Co.) [Self-representation under Faretta v. California, 422 U.S. 806 (1975)]

        Under Faretta v. California, 422 U.S. 806, 835–836 (1975), a criminal defendant has a constitutional right to conduct his own defense if the defendant has voluntarily, knowingly, and intelligently elected to do so. Forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so. When the defendant elects to represent himself, he waives his right to assistance of counsel. Due to the consequences likely to result from the election, trial courts must conduct an inquiry and determine whether the defendant is voluntarily, knowingly, and intelligently waiving his right to counsel. The trial court must inform the defendant of the disadvantages and dangers of proceeding without counsel. This inquiry is required so the record shows the defendant “knows what he is doing” and making the choice with his “eyes open.”

        Under Scarborough v. State, 777 S.W.2d 83, 92 (Tex.Crim.App. 1989), if a defendant’s valid election to represent himself must be honored even if it causes inconvenience that may be somewhat disruptive of the trial. If the disruption is not a calculated effort to obstruct the trial, the fact that some inconvenience results is insufficient to allow a court to reject a defendant’s valid election of his right to represent himself.

State v. Couch, No. 03-16-00727-CR, 2019 Tex.App.—LEXIS 7867 (Tex.App.—Austin Aug. 29, 2019) (designated for publication) (DWI, Comal Co.) (McNeely, Garcia, and the elimination rate in blood of substances other than alcohol]

        Under Missouri v. McNeely, 569 U.S. 141, 148 (2013), and State v. Garcia, 569 S.W.3d 142, 148 (Tex.Crim.App. 2018), the exigent-circumstances exception applies when exigencies make the needs of law enforcement so compelling that a warrantless search is objectively reasonable. An officer may be justified in conducting a warrantless search to prevent the imminent destruction of evidence. The natural dissipation of alcohol in the blood may support a finding of exigency but does not do so categorically. An exigent-circumstances review is informed by the totality of the facts and circumstances available to the officer and analyzed under an objective standard of reasonableness. In investigations where officers can reasonably obtain a warrant before blood can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. Relevant factors are: (1) the officer’s knowledge of the body’s natural metabolic process and the attendant evidence destruction over time; (2) procedures in place for obtaining a warrant; (3) the availability of a magistrate; and (4) the practical problems of obtaining a warrant within a timeframe that preserves the opportunity to obtain reliable evidence. When the circumstances include an auto accident, additional considerations are: (1) the time required to complete the investigation;, (2) the lack of available law enforcement to assist in the investigation; (3) the accident’s severity; and (4) the potential medical intervention that the circumstances require.

        Under State v. Garcia, 569 S.W.3d 142, 148 (Tex.Crim.App. 2018), the TCCA clarified how courts are to apply the bifurcated standard of review where the State claims that exigent circumstances existed: (1) if supported by the record, findings are entitled to deference; (2) whether an exigency justifies a warrantless search depends on what facts were available to the officer when he conducts the search; (3) in assessing the reasonableness of an officer’s actions, a court should consider the facts known to the officer and reasonable inferences that he is entitled to draw from the facts considering his experience (the determination of whether the inferences are reasonable is a legal conclusion not entitled to deference); and (4) an officer’s subjective motivation for conducting a warrantless search is irrelevant to the exigency analysis (it is irrelevant if the officer did not infer that he was faced with an exigency—if the known facts objectively support an exigency, the search is upheld—but if the officer subjectively inferred that he was faced with an exigency but facts objectively counter that inference, the search should be suppressed. Once (1)–(4) are settled, the court determines whether considering the known facts and reasonable inferences from those facts an objectively reasonable officer would conclude that in the time it would take to secure a warrant the efficacy of the search would be significantly undermined. This Fourth-Amendment reasonableness inquiry is reviewed de novo.

        Under State v. Garcia, 569 S.W.3d 142, 154 (Tex.Crim.App. 2018), the possible presence of substances other than alcohol in blood can support a finding of exigency even if the substance lacks a known elimination rate because without such a rate, officers face inevitable evidence destruction without the ability to know—unlike alcohol’s widely accepted rate—how much evidence it was losing as time passed. But for the other substance to be considered in the exigency analysis, the record must show how or why the officer might reasonably have suspected that the person was using the other substance.

In re Fletcher, No. 01-18-01109-CR, 2019 Tex.App.—LEXIS 7079 (Tex.App.—Houston [1st Dist.] Aug. 13, 2019) (designated for publication) (Mandamus, Chambers Co.) (Right to keep appointed counsel)

        Under State ex rel. Young v. Sixth Judicial District Court of Appeals, 236 S.W.3d 207, 210 (Tex.Crim.App. 2007), to be entitled to mandamus relief, a relator must show: (1) no adequate remedy at law to redress the alleged harm; and (2) must have a clear right to the relief sought (must show that what he seeks to compel is a ministerial act not involving a discretionary or judicial decision—can satisfy if he can show he has a clear right to the relief sought—that the facts and circumstances dictate only one rational decision under unequivocal, well-settled (statutory, constitutional, or caselaw), and clearly controlling legal principles.

        Under Stearnes v. Clinton, 780 S.W.2d 216, 219 (Tex.Crim.App. 1989), in a case involving the arbitrary disqualification of appointed counsel rather than retained counsel of choice, the regular appellate process does not provide an adequate remedy even if it results in a reversal and new trial. Although an indigent defendant does not have the right to counsel of his own choosing, once counsel is appointed, the trial judge is obliged to respect the attorney-client relationship created through the appointment. To overcome the presumption against the removal of appointed counsel after an attorney-client relationship has been established, there must be a “principled reason” for the removal.

        It may be proper for a court to remove counsel over the client’s objection where the integrity of the judicial process and orderly administration of justice is impeded. But even the judge’s opinion that counsel is incompetent may not justify removing the attorney. Nor may the appearance of a conflict of interest show good cause for removal.

Rodriguez-Cruz v. State, No. 04-18-00905-CR, 2019 Tex.App.—LEXIS 7810 (Tex.App.—San Antonio Aug. 28, 2019) (designated for publication) (DWI under Tex. Penal Code § 49.04(a), Bexar Co.) [Motion for continuance based on a missing witness and after trial begins under Tex. Code Crim. Proc. Art. 29.13]

        Under Tex. Code Crim. Proc. Art. 29.13, after trial has begun, a continuance may be granted on motion when the trial court is satisfied that by some unexpected occurrence since the trial began, which no reasonable diligence could have anticipated, the movant is so taken by surprise that a fair trial cannot be had.

            Under Harrison v. State, 187 S.W.3d 429, 434 (Tex.Crim.App. 2005), when a defendant’s motion for continuance is based on an absent witness, the defendant must show that (1) he has exercised diligence to procure the witness’ attendance; (2) the witness was not absent by the procurement or consent of the defense; (3) the motion was not made for delay; and (4) the facts expected to be proved by the witness are material. Review of a trial court’s denial of a mid-trial continuance is for an abuse of discretion.

December 2019 SDR – Voice for the Defense Vol. 48, No. 10

Voice for the Defense Volume 48, No. 10 Edition

Editor: Michael Mowla

From Editor Michael Mowla:

        1. I summarize each opinion in a manner that allows readers to generally use this SDR instead of reading every opinion.

        2. If you determine that a summarized opinion is relevant to one of your cases, I urge you to read the opinion and not rely solely upon these summaries.

        3. The summaries reflect the facts and relevant holdings and do not reflect my opinion of whether the cases correctly: (1) recite the facts presented at trial; or (2) apply the law. My opinions (if any) are preceded by “Editor’s Note.”

        4. This SDR is for you. Send me suggestions on how I may improve it.

Supreme Court of the United States

Editor’s note: no relevant opinions have been handed down by the SCOTUS yet during the new term.

United States Court of Appeals for the Fifth Circuit

United States v. Dean, No. 18-50509, 2019 U.S.App.LEXIS 30393 (5th Cir. Oct. 10, 2019) (designated for publication) [Conditions of supervised release; plain error review; search-condition of supervised release]

        Under 18 U.S.C. § 3583(d), a district court may order any condition set forth as a discretionary condition of supervised release in 18 U.S.C. § 3563(b) and any other condition it considers appropriate.

        When a defendant objects to a special condition of supervised release, review is for abuse of discretion. Failure to object causes review for plain error.

        When the defendant does not object to error before the district court, plain error review applies. Under Fed. Rule Crim. Proc. 52(b), a court of appeals may consider errors that are plain and affect substantial rights even though they are raised for the first time on appeal. Under Molina-Martinez v. United States, 136 S.Ct. 1338 (2016), and United States v. Olano, 507 U.S. 725 (1993), these conditions must be met before a court may consider plain error: (1) error that has not been intentionally relinquished or abandoned; (2) the error must be plain (clear or obvious); (3) the error must have affected the defendant’s substantial rights, which requires the defendant to show a reasonable probability that but for the error, the outcome of the proceeding would have been different; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

        District courts have wide discretion in imposing terms and conditions of supervised release. District courts may impose any condition provided the condition is reasonably related to at least one of four factors: (1) the nature and characteristics of the offense and the history and characteristics of the defendant, (2) the deterrence of criminal conduct, (3) the protection of the public from further crimes of the defendant, and (4) the provision of needed educational or vocational training, medical care, or other correctional treatment to the defendant. The condition must be narrowly tailored such that it does not involve a greater deprivation of liberty than is reasonably necessary to fulfill the purposes set forth in § 3553(a).

Facts:

  • Dean pleaded guilty to felon in possession of a firearm per 18 U.S.C. § 922(g)(1).
  • The PSR showed a criminal history category of VI and offense level of 12.
  • The district court sentenced him to 37 months in BOP.
  • A term of supervised release was: “The defendant shall submit his person, property, house, residence, vehicle, papers, computers, other electronic communications or data storage devices or media, or office to a search conducted by a United States probation officer. Failure to submit to a search may be grounds for revocation of release. The defendant shall warn any other occupants that the premises may be subject to searches pursuant to this condition. The probation officer may conduct a search under this condition only when reasonable suspicion exists that the defendant has violated a condition of supervision and that the areas to be searched contain evidence of this violation. Any search shall be conducted at a reasonable time and in a reasonable manner.”
  • Dean did not object to the condition.

The record sufficiently supports the special search condition

  • Under 18 U.S.C. § 3583(d), a district court may order any condition set forth as a discretionary condition of probation in 18 U.S.C. § 3563(b) and any other condition it considers appropriate.
  • When a defendant objects at sentencing to a special condition of supervised release, review is for abuse of discretion. Failure to object causes review for plain error only.

Editor’s note: the full relevant law on plain error review:

  • When the defendant does not object to error before the district court, plain error review applies. Under Fed. Rule Crim. Proc. 52(b), a court of appeals may consider errors that are plain and affect substantial rights even though they are raised for the first time on appeal. Under Molina-Martinez v. United States, 136 S.Ct. 1338 (2016), and United States v. Olano, 507 U.S. 725 (1993), these conditions must be met before a court may consider plain error: (1) error that has not been intentionally relinquished or abandoned; (2) the error must be plain (clear or obvious); (3) the error must have affected the defendant’s substantial rights, which requires the defendant to show a reasonable probability that but for the error, the outcome of the proceeding would have been different; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.
  • No factual finding was made by the district court about the condition.
  • In the absence of a factual finding, the 5th Circuit may affirm a special condition of supervised release if the district court’s reasoning can be inferred after an examination of the record.
  • The PSR reflects an extensive criminal history ranging from drug possession to burglary to firearm possession. The condition is a mechanism for enforcing other conditions prohibiting Dean’s possession of drugs or firearms by facilitating the detection of evidence of other supervised release violations.
  • The condition is also narrowly tailored because Dean will be subject to the condition only if the probation officer reasonably suspects Dean has violated a condition of supervision and any search may be conducted only at a reasonable time and in a reasonable manner.
  • There was no clear error. The judgment is affirmed.

United States v. James, No. 19-30049, 2019 U.S.App.LEXIS 27847 (5th Cir. Sep. 16, 2019) (designated for publication) [Government’s standard of proof in a Sell-hearing is clear and convincing]

        Under Drope v. Missouri, 420 U.S. 162, 171 (1975), mental competence is a prerequisite to stand trial. A person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial. A defendant is competent if he has a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings.

        Under Sell v. United States, 539 U.S. 166 (2003), the four-prong test to determine whether a defendant may be forcibly medicated to restore his competency for trial is whether: (1) im­portant governmental interests are at stake; (2) involuntary medication will significantly further those interests; (3) involuntary medication is necessary to further those interests; and (4) the administration of the drugs is medically appro­priate.

        The government’s evidentiary burden under Sell is by clear and convincing evidence before a defendant may be forcibly medicated.

United States v. Khan, No. 18-20519, 2019 U.S.App.LEXIS 27846 (5th Cir. Sep. 16, 2019) (designated for pub­li­cation) [Procedurally and substantively unreasonable sentences; U.S.S.G. § 3A1.4 enhancement for terrorism]

        Sentences are reviewed for procedural reasonableness and substantive reasonableness: A bifurcated review process reviews for procedural reasonableness and if there is no procedural error, for substantive reasonableness. Procedural reasonableness requires a determination whether the district court committed a significant procedural error at sentencing. Failing to calculate (or improperly calculating) the Guidelines range is significant procedural error.

        Under U.S.S.G. § 3A1.4, a terrorism enhancement makes the Guidelines range 180 months, the statutory maximum, and allows a 12-level increase and criminal history score of VI if it involved or was intended to promote a federal crime of terrorism (crime enumerated in 18 U.S.C. § 2332b(g)(5) that influences or affects the conduct of government by intimidation or coercion or to retaliate against government conduct).

        The Guidelines do not contain a general prohibition against double-counting. It is prohibited only if it is specifically forbidden by the guideline at issue.

Texas Court of Criminal Appeals

Ex parte Adams, No. PD-0711-18, 2019 Tex.Crim.App. LEXIS 979 (Tex.Crim.App. Oct. 9, 2019) (designated for publication) (Aggravated Assault with a deadly weapon and SBI, Taylor Co.) [Collateral estoppel]

        Under the Double Jeopardy Clause of the Fifth Amendment, North Carolina v. Pearce, 395 U.S. 711, 717 (1969), and Aekins v. State, 447 S.W.3d 270, 274 (Tex.Crim.App. 2014), a person is protected against: (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.

        Under Ashe v. Swenson, 397 U.S. 436, 445 (1970), collateral estoppel applies in criminal cases, so when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Under Rollerson v. State, 227 S.W.3d 718, 730 (Tex.Crim.App. 2007), and Currier v. Virginia, 138 S.Ct. 2144, 2150 (2018), the government may not litigate a specific elemental fact to a factfinder, receive an adverse finding on the specific fact, learn from its mistakes, hone its prosecutorial performance, and relitigate that same factual element already decided against the government. For collateral estoppel to apply: The factfinder had to have determined a specific fact (how broad—in terms of time, space and content—was the scope of its finding) that was decided in favor of the defendant in the first trial.

        When a defendant is acquitted on a defense of a third person theory after stabbing a person engaged in a fight, collateral estoppel does not bar a subsequent prosecution for stabbing another person who was not fighting.

Curry v. State, No. PD-0577-18, 2019 Tex.Crim.App. LEXIS 1088 (Tex.Crim.App. Oct. 30, 2019) (designated for publication) (Failure to Stop and Render Aid per Tex. Transp. Code § 550.021(a) & (c)(1), Harris Co.) [Legal sufficiency; mistake of fact under Tex. Penal Code § 8.02]

        Statutory construction is a question of law reviewed de novo. If the language is plain, the court will effectuate the plain language. If the language is ambiguous or effectuating the plain language would lead to absurd results, the court may resort to extra-textual sources to determine the intent of the legislators.

        Under Tex. Transp. Code § 550.021(a)(1)–(4) (Failure to Stop and Render Aid), the operator of a vehicle involved in an accident that results or is reasonably likely to result in injury or death shall: (1) immediately stop the vehicle at the scene of the accident or as close to the scene as possible; (2) immediately return to the scene of the accident if the vehicle is not stopped at the scene of the accident; (3) immediately determine whether a person is involved in the accident, and if a person is involved in the accident, whether that person requires aid; and (4) remain at the scene of the accident until the operator complies with the requirements of § 550.023.

        To prove Tex. Transp. Code § 550.021(a)(1)–(4) (Failure to Stop and Render Aid), the State need not prove that the driver knew a person involved in the accident was injured or killed (al­though such proof will suffice). The State may allege that a driver failed to stop and render aid because he knew that he was involved in an accident that was reasonably likely to injure or kill another person, if another person was involved. A driver does not have to stop and render aid if he does not know that he was involved in an accident; if he knows that he was involved in an accident and knows that it did not result in injury to or the death of a person; or if he knows that he was involved in an accident but it was not reasonably likely that the accident would result in injury to or the death of another.

        A defendant is entitled to a mistake-of-fact instruction if the issue is raised by the evidence even if that evidence is weak or controverted. Under Tex. Penal Code § 8.02(a), it is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.

Facts:

  • Curry was indicted for Failure to Stop and Render Aid to bicyclist Ambrose per Tex. Transp. Code § 550.021(a), (c)(1). Curry did not dispute that he struck Ambrose and failed to stop and render aid and conceded that Ambrose died from complications arising from the medical treatment. Curry contended that he did not know that he had struck a person who required his assistance.
  • The investigation showed that a vehicle struck Ambrose from behind while he was bicycling in the northbound lane of a narrow, two-lane road, a driver traveling in the northbound lane could have seen Ambrose because his bicycle had reflectors that were visible at night, and the driver who struck Ambrose was aware that the collision had occurred because the debris path showed that the driver had swerved.
  • A citizen’s tip lead deputies to Curry. The front passenger side of his truck was damaged.
  • Curry testified that he did not think that he had been in an accident. It was dark and the surrounding lighting was poor. Curry said he did not see anything in the roadway and the passenger-side headlight suddenly burst. He believed that somebody threw something, something hit his truck, or that it was something that had just came up off the road. Curry conceded that he knew there had been a collision of some sort. Curry braked but did not stop, explaining that it was dark, and he feared the possibility of an “altercation” with someone.
  • Curry’s girlfriend San Felipo testified that she and Curry were returning from dinner that evening. San Felipo was following him in her car. They were traveling 30–40 mph. San Felipo could see the roadway beyond Curry’s truck. She did not see a bicyclist in the road. Curry’s headlight shattered, his truck “jerked a little bit,” and he braked. She thought somebody threw a bottle at him. San Felipo did not see Ambrose after the impact.
  • Curry and San Felipo drove to his home where they inspected the truck. Immediately afterward, they then returned to the scene in San Felipo’s car to determine what had happened. They slowly drove by the area, but they did not stop there. San Felipo saw the silhouette of a man, whom she thought might have thrown the bottle. Aside from the remains of his headlight, Curry said that he did not see debris in the road. Nor did he see Ambrose or his bike. Curry conceded that he would have found Ambrose and known that Ambrose needed help if he and San Felipo had stopped and looked around for a few minutes.
  • Rooke (accident reconstructionist and defense expert) opined that Ambrose was not in the roadway immediately before the accident; Ambrose, whose BAC was more than 2× the legal limit, had pulled out onto the road just as Curry’s truck passed by; Ambrose and his bike would have come to rest elsewhere if Curry had struck him from directly behind; the bicycle’s rear tire was too low to damage the truck’s headlight; because Curry’s truck sustained so little damage, a reasonable person could have believed that it struck something other than a person or another vehicle.
  • Rooke conceded that his testimony about Ambrose’s sudden entry onto the road was based on Curry’s and San Felipo’s statements and not physical evidence; the physical evidence was consistent with the police reconstruction; and if Ambrose was already on the road when Curry approached, Curry would have been able to see Ambrose from a distance.

The trial court erred by refusing the mistake-of-fact instruction

  • A defendant is entitled to a mistake-of-fact instruction if the issue is raised by the evidence even if that evidence is weak or controverted. Under Tex. Penal Code § 8.02(a), it is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.
  • The question is not whether Curry knew that he was involved in an accident (he admitted that he was). It is whether he made a reasonable mistake in thinking that no one involved in the accident was injured or killed or in thinking that the accident was not reasonably likely to have injured or killed another person.
  • Curry and his girlfriend testified that they never saw Ambrose or anyone else riding a bicycle. This testimony was sufficient to raise the mistake-of-fact issue when viewing the evidence in the light most favorable to the defense. If the jury concluded that Curry reasonably believed that he was not involved in an accident that injured or killed someone, or that he reasonably believed he was not involved in an accident that was reasonably likely to injure or kill someone, that would negate the necessary mens rea to find Curry guilty.
  • Because the court of appeals did not reach the issue of whether Curry was harmed by the failure to include a mistake-of-fact instruction, the case is reversed and remanded to determine if Curry was harmed by the absence of the instruction.

International Fidelity Ins. Co. (A-1 Bonding) v. State, No. PD-0642-18 to PD-0644-18, 2019 Tex.Crim.App.LEXIS 1082 (Tex.Crim.App. Oct. 30, 2019) (designated for publication) (Bond Forfeiture, Harris Co.) [Tex. Rule App. Proc. 34.6(f)]

        Review of a trial court’s ruling on an MNT is for an abuse of discretion, a deferential standard that requires appellate courts to view the evidence in the light most favorable to the trial court’s ruling. A trial court abuses its discretion only when no reasonable view of the record could support its ruling.

        Under Tex. Rule App. Proc. 34.6(f), an appellant is entitled to a new trial if: (1) the appellant timely requested a reporter’s record; (2) without the appellant’s fault, a significant exhibit or a significant portion of the court reporter’s notes and records has been lost or destroyed or—if the proceedings were electronically recorded—a significant portion of the recording has been lost or destroyed or is inaudible; (3) the lost, destroyed, or inaudible portion of the reporter’s record or the lost or destroyed exhibit is necessary to the appeal’s resolution; and (4) the lost, destroyed, or inaudible portion of the reporter’s record cannot be replaced by agreement of the parties, or the lost or destroyed exhibit cannot be replaced either by agreement of the parties or with a copy determined by the trial court to accurately duplicate with reasonable certainty the original exhibit.

        Tex. Rule App. Proc. 34.6(f) places a burden on Appellant to prove that a record existed in the first place. Litigants have no way of knowing how to meet the hefty burden this rule places on them. Where litigants have taken all reasonable steps to ensure the creation of a record, their right to appeal should be protected. But Rule 36.6(f) offers no remedy when through no fault of the appellant a record was never created.

Editor’s note: This is too strict of a reading of Rule 34.6(f)’s “lost or destroyed” language. It allows an incompetent court reporter to not make a record at all, leaving parties with no recourse. Certainly, judges may remove incompetent court reporters. But even if they do, cases are still destroyed, and parties are left without recourse through no fault of their own.

Williams v. State, No. PD-1199-17, 2019 Tex.Crim.App. LEXIS 980 (Tex.Crim.App. Oct. 9, 2019) (designated for publication) [Manslaughter and Accident Involving Personal Injury or Death, Brazoria Co.; Tex. Code Crim. Proc. Art. 38.41’s constitutionally permissible notice-and-demand provision for laboratory reports]

        The Confrontation Clause allows the accused the right to confront witnesses against him. When the State offers a testimonial statement into evidence, the accused has a right to insist that the person making the statement appear in court and be subject to cross-examination.

        Forensic laboratory reports created solely for an evidentiary purpose in aid of a police investigation are testimonial. Ordinarily a defendant has a right to insist that an analyst making incriminating claims in a laboratory report explain and defend her findings in person at trial.

        The State may—without offending the Confrontation Clause—adopt procedural rules governing confrontation-based objections like a notice-and-demand statute that requires the prosecution to notify the defendant of its intent to use an analyst’s report as evidence, after which the defendant is given time in which he may object to its admission absent the analyst’s appearance live at trial.

        Tex. Code Crim. Proc. Art. 38.41 is a constitutionally permissible notice-and-demand provision that provides: (§ 1) a certificate of analysis that complies with this article is admissible in evidence to establish the results of a laboratory analysis of physical evidence conducted by or for a law enforcement agency without the necessity of the analyst personally appearing in court; (§ 3) a certificate of analysis must contain this information certified under oath: (1) analyst’s name and the name of the lab employing her; (2) statement that the lab is properly accredited; (3) description of the analyst’s education, training, and experience; (4) statement that the analyst’s duties include analyzing evidence for law enforcement agencies; (5) description of the tests or procedures conducted by the analyst; (6) statement that the tests or procedures were reliable and approved by the lab; and (7) the results of the analysis; (§ 4) offering party must file the certificate with the trial court and provide a copy to the opposing party not later than the 20th day before the trial. The certificate is not admissible if not later than the 10th day before trial the opposing party files a written objection to the use of the certificate; (§ 5) a certificate is sufficient if it substantially complies with Art. 38.41 with an affidavit worded in the first person.

        “Substantial compliance” under Art. 38.41 does not require particular words but only that information be communicated in some effective way. It is irrelevant if the affiant is someone who could not over a Sixth Amendment confrontation-objection serve as a sponsoring witness for the laboratory results at trial. The affiant need not be the same person as the analyst. Whoever the affiant is, she must provide information that is responsive to § 3, including information pertinent to the analyst. Regardless of who the affiant is, the defendant can assert his right of confrontation if he is diligent about it. If the defendant does not promptly object to a timely filed and substantially compliant certificate, his confrontation objection will be forfeited.

Texas Courts of Appeals

Barnes v. State, No. 06-19-00045-CR, 2019 Tex.App.—LEXIS 8578 (Tex.App.—Texarkana, Sep. 25, 2019) (designated for publication) (Burglary of a Habitation, Gregg Co.) [Sufficiency of the evidence on the law of parties; proving prior convictions for enhancement purposes; nonconstitutional harm under Tex. Rule App. Proc. 44.2(b)]

        Under Tex. Penal Code § 7.01(a), a person is criminally responsible as a party if the offense is committed by his conduct, the conduct of another for which he is criminally responsible, or by both. A person is criminally responsible for the conduct of another if acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other to commit the offense.

        Under Beardsley v. State, 738 S.W.2d 681, 684 (Tex.Crim.App. 1987), while an agreement to act together in a common design seldom is proved by direct evidence, a trier of fact may rely on the actions of the parties, showing by direct or circumstantial evidence an understanding and common design to do an act. Circumstantial evidence may be sufficient to show that a person is a party. When determining whether an individual is a party to an offense and bears criminal responsibility, the court may look to events before, during, and after the commission of the offense.

        Under Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App. 1994) (op. on reh.), evidence is sufficient to convict under the law of parties if the defendant is physically present at the commission of the offense and encourages its commission by words or other agreement.

        Under Rollerson v. State, 227 S.W.3d 718, 725–726 (Tex.Crim.App. 2007), a defendant’s unexplained possession of property recently stolen in a burglary permits an inference that the defendant is the one who committed the burglary. Where the possession of stolen property is not exclusive, the permitted inference by the factfinder is that the person in possession of the property was a party to the offense even where there is no evidence that the person entered the burglarized premises.

        Under Flowers v. State, 220 S.W.3d 919, 921 (Tex.Crim.App. 2007), and Wood v. State, 486 S.W.3d 583, 589 (Tex.Crim.App. 2016), to establish that a defendant was convicted of a prior offense, the State must prove beyond a reasonable doubt that: (1) a prior conviction exists; and (2) the defendant is linked to that conviction. No specific mode of proof is required to prove the elements. Identity often includes the use of a combination of identifiers. The totality of the circumstances determines whether the State met its burden. The evidence resembles a jigsaw puzzle: Pieces standing alone usually have little meaning, but when fitted together, they usually form the picture of the person who committed the alleged prior conviction. The trier of fact must fit the pieces together and weigh the credibility of each piece. The standard of review for evaluating the sufficiency of evidence is consideration of all the evidence in the light most favorable to the finding.

        Under Beck v. State, 719 S.W.2d 205, 210 (Tex.Crim.App. 1986), unless the defendant’s name is unique, a name and signature are insufficient by themselves to link a defendant to a prior conviction.

        The erroneous admission of extraneous-offense evidence is not constitutional error.

        Under Tex. Rule App. Proc. 44.2(b), an appellate court must disregard a nonconstitutional error that does not affect a criminal defendant’s substantial rights. An error affects a substantial right when it has a substantial and injurious effect or influence on the jury’s verdict. Nonconstitutional error does not allow a reversal if when the court looks at the entire record it concludes that there is fair assurance that the error did not influence the factfinder or had only slight effect. A harm analysis may include overwhelming evidence of guilt.

Ex parte Barton, No. 02-17-00188-CR, 2019 Tex.App.—LEXIS 8859 (Tex.App.—Fort Worth Oct. 3, 2019) (designated for publication) (Pretrial Habeas Corpus, Tarrant Co.) [Constitutionality of Tex. Penal Code § 42.07(a)(7), Online Harassment]

        Tex. Penal Code 42.07(a)(7) is facially unconstitutional because it is vague and overbroad. The criminalization of “annoying” behavior—without any objective measurement or standard—is unconstitutionally vague.

        Under Scott v. State, 322 S.W.3d 662, 668 (Tex.Crim.App. 2010), Red Lion Broad. Co. v. F.C.C., 395 U.S. 367, 390 (1969), and Cohen v. California, 403 U.S. 15, 21 (1971), the protection of free speech includes the free communication and receipt of ideas, opinions, and information. The guarantee of free speech is not absolute, and the State may lawfully proscribe communicative conduct that invades the substantial privacy interests of another in an essentially intolerable manner.

        A person who communicates with the intent to harass, annoy, alarm, abuse, torment, or embarrass can also have an intent to engage in the legitimate communication of ideas, opinions, information, or grievances.

        A phone call by the appellant (complainant’s neighbor) had both a facially legitimate reason behind it—to inform the complainant of construction issues—and could also have been made with an intent to harass or annoy the complainant when viewed in the context of other harassing phone calls made by the appellant.

        Under May v. State, 765 S.W.2d 438, 439 (Tex.Crim.App. 1989), vague laws violate the Constitution by: (1) allowing arbitrary and discriminatory enforcement, (2) failing to provide fair warning, and (3) inhibiting the exercise of First Amendment freedoms. When examining the vagueness of a statute, a court must focus on the statute’s ability to provide fair notice of the prohibited conduct. A law imposing criminal liability must be sufficiently clear to: (1) give a person of ordinary intelligence a reasonable opportunity to know what is prohibited; and (2) establish determinate guidelines for law enforcement. A law that implicates First Amendment freedoms requires even greater specificity to avoid chilling protected expression. Specificity and clarity are important to prevent citizens from steering far wider of the unlawful zone than if the boundaries of the forbidden areas are clearly marked.

            Under Long v. State, 931 S.W.2d 285, 288 (Tex.Crim.App. 1996), and State v. Johnson, 475 S.W.3d 860, 865 (Tex.Crim.App. 2015), vagueness and overbreadth are intertwined. A statute is overbroad and if in addition to proscribing activity that may be forbidden it sweeps a substantial amount of expressive activity that is protected. The statute’s oppressive affect cannot be minor—it must prohibit a substantial amount of protected expression and the danger that the statute will be unconstitutionally applied must be realistic and not based on fanciful hypotheticals.

November 2019 SDR – Voice for the Defense Vol. 48, No. 9

Voice for the Defense Volume 48, No. 9 Edition

Editor: Michael Mowla

From Editor Michael Mowla:

        1. I summarize each opinion in a manner that allows readers to generally use this SDR instead of reading every opinion.

        2. If you determine that a summarized opinion is relevant to one of your cases, I urge you to read the opinion and not rely solely upon these summaries.

        3. The summaries reflect the facts and relevant holdings and do not reflect my opinion of whether the cases correctly: (1) recite the facts presented at trial; or (2) apply the law. My opinions (if any) are preceded by “Editor’s Note.”

        4. This SDR is for you. Send me suggestions on how I may improve it.

Supreme Court of the United States

Editor’s note: The SCOTUS’ term began on October 1, 2019.

United States Court of Appeals for the Fifth Circuit

United States v. Aguilar-Alonzo, No. 18-50627, 2019 U.S. App. LEXIS 25856 (5th Cir. Aug. 27, 2019) (designated for publication) [The ordinary and natural meaning of the verb “use” requires active employment of something]

        A district court’s interpretation and application of the U.S.S.G.s are reviewed de novo and factual findings for clear error. A finding is clearly erroneous when although there is evidence to support it, the entire evidence shows a definite and firm conviction that a mistake occurred.

        The proponent of an adjustment to the defendant’s base offense level bears the burden of establishing the factual predicate by a preponderance of the relevant and sufficiently reliable evidence.

        If a district court commits a significant procedural error like miscalculating the U.S.S.G. range, the sentence must be vacated unless the error did not affect the sentence imposed. The proponent of the sentence has the burden of establishing that the error was harmless.

        Under U.S.S.G. § 2D1.1(b)(15)(A), if a defendant receives a 2-level increase in offense level under § 3B1.1 if the: (i) defendant used fear, impulse, friendship, affection, or some combination to involve another individual in the illegal purchase, sale, transport, or storage of controlled substances; (ii) individual received little or no compensation from the enterprise; and (iii) individual had minimal knowledge of the scope and structure of the enterprise. To show that a defendant “used” fear, impulse, friendship, affection, or some combination, a defendant must actively employ or play upon affection to induce another.

        The ordinary and natural meaning of the verb “use” requires active employment of something.

Facts:

  • Aguilar-Alonzo, his girlfriend Chavez-Hernandez, and others were indicted for aiding and abetting the possession with intent to distribute > 100 kg and < 1000 kg of marijuana per 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
  • Aguilar-Alonzo pleaded guilty without a plea agreement.
  • Chavez-Hernandez told investigators that she had been dating Aguilar-Alonzo for a year and knew he was involved in drug trafficking but never participated prior to the offense. Aguilar-Alonzo asked her to accompany him to pick up the marijuana. She agreed “out of fear he would break up with her.”
  • The PSR calculated a base offense level of 24 per §§ 2D1.1(a)(5) and (c)(8). It recommended a 2-level enhancement under § 3B1.1(c) because Aguilar-Alonzo was an organizer, leader, manager, or supervisor and a second 2-level enhancement because: (1) per U.S.S.G. § 2D1.1(b)(15)(A), Aguilar-Alonzo “used friendship or affection” to involve Chavez-Hernandez in the transport of controlled substances, Chavez-Hernandez received little compensation, and Chavez-Hernandez had minimal knowledge of the scope and structure of the enterprise; and (2) per § 2D1.1(b)(15)(B)(iii), knowing that Chavez-Hernandez was pregnant, Aguilar-Alonzo involved her in the offense.
  • With a 3-level reduction for acceptance of responsibility under § 3E1.1(a) and (b), Aguilar-Alonzo’s total offense level was 25.
  • Based on the offense level of 25 and a criminal history category of II, the Guidelines range was 63 to 78 months.
  • Aguilar-Alonzo objected to the 2-level enhancement for use of affection, asserting that Chavez-Hernandez had more than minimal knowledge of the scope of the criminal enterprise and that merely being in a dating relationship does not trigger the enhancement. Aguilar-Alonzo contended that there was no evidence that he suggested he would end the relationship if she refused to participate. Aguilar-Alonzo also objected to the § 2D1.1(b)(15)(B) enhancement because it was unclear whether Aguilar-Alonzo knew at the time of the offense that Chavez-Hernandez was pregnant.
  • The district court found that the facts did not establish whether Aguilar-Alonzo knew that Chavez-Hernandez was pregnant and declined to sustain the enhancement under § 2D1.1(b)(15)(B).
  • The district court determined that the enhancement was warranted under § 2D1.1(b)(15)(A) because it was apparent that Aguilar-Alonzo used fear, impulse, friendship, or affection to involve Chavez-Hernandez.
  • The district court overruled Aguilar-Alonzo’s objection to the enhancement for a leadership role.
  • The district court sentenced Aguilar-Alonzo to 70 months.

The ordinary and natural meaning of the verb “use” requires active employment of something.

  • Under Welch v. United States, 136 S.Ct. 1257 (2016), 18 U.S.C. § 844’s requirement that a building be “used” in an activity affecting commerce means active employment for commercial purposes and not merely a passive, passing, or past connection to commerce.
  • The ordinary and natural meaning of the verb “use” requires active employment of something. No evidence was presented that Aguilar-Alonzo “used” or “actively employed” fear, impulse, friendship, affection, or some combination thereof.
  • The sentence is vacated, and the case is remanded.

United States v. Hegwood, No. 19-40117, 2019 U.S. App. LEXIS 23714 (5th Cir. Aug. 8, 2019) (designated for publication) [First Step Act does not allow plenary resentencing but allows a new sentence for a “covered offense” (an offense covered by the Fair Sentencing Act of 2010]

        The First Step Act of 2018 (enacted December 21, 2018) made the application of the Fair Sentencing Act of 2010 retroactive. It amends statutes like 21 U.S.C. § 841(b)(1)(B)(iii) by increasing the cocaine-base amount for 5 to 40 years from 5 grams to 28 grams.

        The First Step Act’s application allows a court to reduce a sentence for a “covered offense” (those modified by the Fair Sentencing Act of 2010) as if the 2010 act was in effect when the covered offense was committed. The new sentence substitutes for the original sentence.

United States v. Pedroza-Rocha, No. 18-50828, 2019 U.S. App. LEXIS 23688 (5th Cir. August 8, 2019) (designated for publication) [Deportation during the pendency of an appeal does not moot the case; the subsequent serving of a notice of hearing in a deportation case that includes a date and time cured any defect that might have existed in the notice to appear]

        The 5th Circuit has a continuing obligation to assure itself of its jurisdiction, sua sponte if necessary. Under Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663, 669 (2016), Article III’s grant of federal jurisdiction requires a live controversy at all stages of a case. If the controversy between the parties is extinguished while a case is pending on appeal, this court must dismiss it as moot. A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.

        The initiation of removal proceedings under the Immigration and Nationality Act is governed by 8 U.S.C. § 1229, which provides that in such proceedings, written notice (notice to appear) shall be given in person to the alien and must include the time and place of the hearing. Under 8 C.F.R. § 1003.14 (Jurisdiction and commencement of proceedings), jurisdiction vests and proceedings before an immigration judge commence when a charging document is filed with the Immigration Court by INS. The charging document is the written instrument that initiates the proceeding and a notice to appear, Notice of Referral to Immigration Judge, and Notice of Intention to Rescind and Request for Hearing by Alien, and requires that the notice to appear contain the time and place “where practicable.”

        Under the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA), and specifically 8 U.S.C. § 1229b(b)(1), the AG has discretion to cancel the removal of certain nonpermanent residents so long as they meet certain criteria, one of which is that the noncitizen must have been physically present in the U.S. continuously of at least 10 years immediately preceding the date of an application for cancellation of removal. Under this stop-time rule, the period ends when the alien is served a notice to appear. Under Pereira v. Sessions, 138 S.Ct. 2105 (2018), the service of a notice to appear that lacked the information required did not stop the clock on the period of continued presence.

        The subsequent serving of a notice of hearing that includes a date and time cured any defect that might have existed in the notice to appear.

        8 C.F.R. § 1003.14 is not jurisdictional because the failure to serve a valid notice to appear is a ministerial defect and not a jurisdictional one.

United States v. Reece, No. 17-11078, 2019 U.S. App. LEXIS 27134 (5th Cir. Sep. 9, 2019) [Application of the holding in United States v. Davis, 139 S.Ct. 2319 (2019), that 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague]

        The residual clause of 18 U.S.C. § 924(c)(3)(B) (defining a crime of violence as an offense that is a felony and that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense) is unconstitutionally vague.

18 U.S.C. §924(c)(3)(B) is unconstitutionally vague per Davis

  • Under 18 U.S.C. § 924(c)(1)(A), consecutive penalties are imposed for using or carrying a firearm “during and in relation to” or possessing a firearm “in furtherance of” any “crime of violence or drug trafficking crime”: 5 years minimum; 7 years if brandished; 10 years if discharged; minimum of 10 years if a short-barreled shotgun is used; and minimum of 25 years for repeat violations of § 924(c).
  • A vague law is no law at all. Only . . . Congress (has) the power to write new federal criminal laws. And when Congress exercises that power, it must write statutes that give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements. They hand off the legislature’s responsibility for defining criminal behavior to unelected prosecutors and judges . . . and . . . leave people with no sure way to know what consequences will attach to their conduct. When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.
  • Under 18 U.S.C. § 924(c)(3), a crime of violence is an offense that is a felony and (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another (elements clause), or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense (residual clause).
  • Vague laws contravene the first essential of due process of law that statutes must give people of common intelligence fair notice of what the law demands of them and undermine the Constitution’s separation of powers and the democratic self-governance it aims to protect. Vague statutes hand responsibility for defining crimes to unaccountable police, prosecutors, and judges, eroding the people’s ability to oversee the creation of the laws they are expected to abide.
  • The residual clause of 18 U.S.C. § 924(c)(3)(B) (defining a crime of violence as an offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense) is unconstitutionally vague.
  • Reece’s case is remanded for resentencing without consideration of the residual clause of 18 U.S.C. § 924(c)(3)(B).

Texas Court of Criminal Appeals

Beltran de la Torre v. State, No. PD-0561-18, 2019 Tex.Crim.App.LEXIS 939 (Tex.Crim.App. Sep. 18, 2019) (designated for publication) [Generally, a party is not entitled to a special jury instruction relating to a statutory offense or defense if the instruction: (1) is not grounded in the Tex. Penal Code, (2) is covered by the general charge, and (3) focuses the jury’s attention on specific evidence that may support an element of an offense or a defense]

        The purpose of the jury charge is to inform the jury of the applicable law and guide them in its application to the case. A trial judge must maintain neutrality in providing such information and guidance and may not express any opinion on the weight of the evidence or draw the jury’s attention to particular facts.

        Under Tex. Code Crim. Proc. Art. 36.14, a jury charge: (1) must be in writing; (2) must distinctly set forth the law applicable to the case; (3) cannot express any opinion as to the weight of the evidence; (4) may not sum up the testimony; and (5) cannot discuss the facts or use any argument in the charge calculated to arouse the sympathy or excite the passions of the jury. This is designed to prevent a jury from interpreting a judge’s comments as a judicial endorsement or imprimatur for a particular outcome. A trial court should avoid any allusion in the jury charge to a particular fact in evidence, as the jury might construe this as judicial endorsement or imprimatur.

        To ensure compliance with Tex. Code Crim. Proc. Art. 36.14, generally a trial judge should avoid including nonstatutory instructions in the charge because such instructions frequently constitute impermissible comments on the weight of the evidence. Special, nonstatutory instructions, even when they relate to statutory offenses or defenses, generally have no place in the jury charge. Even an innocent attempt to provide clarity for the jury by including a neutral instruction can result in an impermissible comment on the weight of the evidence because the instruction singles out a particular piece of evidence for special attention, which the jury may then focus on as guidance from the judge.

        Generally, a party is not entitled to a special jury instruction relating to a statutory offense or defense if the instruction: (1) is not grounded in the Tex. Penal Code, (2) is covered by the general charge, and (3) focuses the jury’s attention on specific evidence that may support an element of an offense or a defense. In such a case, the nonstatutory instruction is a prohibited comment on the weight of the evidence.

        A jury charge may properly include definitions for nonstatutorily-defined terms that have a known and established legal meaning or have acquired a peculiar and appropriate meaning in the law, as where the words used have a well-known common law meaning. Such terms are considered as having been used in their technical sense, and it is not error for the trial court to include a precise, uniform definition to guide the jury’s deliberations. An instruction is appropriate when there is a risk that the jurors may arbitrarily apply an inaccurate definition to the term or where an express definition of the term is required to assure a fair understanding of the evidence. Thus, in a trial for Escape, a definition of “arrest” should be included in the charge despite the lack of a statutory definition because “arrest” is a technical term with a long, established history in the common law and it would be inappropriate if jurors arbitrarily applied their personal definitions of arrest.

Facts:

  • Officers Axel and Lara of Columbus PD responded to a mid-morning call about people drinking alcohol inside a parked car at the DPS driver’s license office. The officers approached and observed Appellant in the driver’s seat, a female in the front passenger seat, and a second female in the back seat.
  • The officers saw a man standing outside the vehicle on the pas­senger’s side who was asked to sit down nearby, but who then walked away.
  • Officer Lara noticed a small plastic bag containing a powdery substance on the car’s center console. Suspecting that the bag contained a controlled substance, Lara asked Appellant and the passengers to exit the car. Lara detained the female passengers while Axel detained Appellant behind the vehicle.
  • Axel noticed that Appellant smelled of alcohol, had bloodshot eyes, and appeared to have not slept in a day or more. Both officers noticed that Appellant had dilated pupils, which they believed based on their training and experience indicated the use of narcotics.
  • The officers removed the bag and field-tested it, which yielded positive for cocaine.
  • Appellant and the passengers were arrested for possession of a controlled substance.
  • Lab testing revealed showed 0.02 grams of cocaine.
  • Appellant was indicted for possession of less than a gram of cocaine.
  • At trial the State put on evidence of possession by showing that Appellant was the registered owner of the vehicle; was in the driver’s seat and had direct access to the cocaine located on the car’s center console; and showed signs of having ingested narcotics. The State argued that even if Appellant was not in sole possession of the cocaine, he could have jointly possessed it along with the other occupants of the vehicle.
  • Appellant testified that the cocaine was not his and he had no knowledge of it being in his car.
  • The jury was charged on the statutory elements of possession of a controlled substance (“A person commits an offense if the person intentionally or knowingly possesses a controlled substance”) and the statutory definition of “possession” (“Possession means actual care, custody, control, or management”). After the statutory definition of “possession” the charge included the nonstatutory instruction on joint possession (“Two or more people can possess the same controlled substance at the same time”). Because the joint-possession instruction was included in the charge, at the charge conference Appellant requested an instruction on “mere presence,” which was not reduced to writing but the trial court understood this as a request to include: “Mere presence at a place where narcotics are found is not enough to constitute possession.”
  • The trial court denied Appellant’s request and the mere-presence instruction was excluded.
  • The jury convicted Appellant and the trial court sentenced him to two years in state jail, probated for three years.
  • The court of appeals affirmed.

Both the joint-possession and mere-presence instructions were improper.

  • Both the joint-possession and mere-presence instructions were improper comments on the weight of the evidence because each was unnecessary to clarify the applicable law and drew the jury’s attention to evidence supporting a party’s theory of the case.
  • The joint-possession instruction was an improper comment on the weight of the evidence because it: (1) was unnecessary because the statutory definition of “possession” is broad enough to encompass the concept of joint possession; and (2) drew the jury’s attention to evidence that would support the State’s argument that Appellant possessed the drugs along with the other individuals in the vehicle.
  • Although the nonstatutory instruction was substantively correct, it was unnecessary because the general charge left ample room for the parties to argue the concept of joint possession. The jury charge included the statutory definition of possession per Tex. Health & Safety Code § 481.002(38) (Possession means actual care, custody, control, or management”). Although it does not expressly mention the possibility of simultaneous possession of the same narcotics by multiple people, it does not preclude such a theory of joint possession. The State was free to argue the concept of joint possession (that Appellant exercised “actual care, custody, control, or management” over the drugs with the other individuals). The State was not entitled to a special, nonstatutory instruction emphasizing that such a conclusion is permissible. The instruction was unnecessary to clarify the applicable law on possession, which was adequately covered by the statutory definition of possession.
  • The joint-possession instruction drew the jury’s attention to evidence that would support a finding that Appellant jointly possessed the drugs along with the others. By highlighting one path to establishing the element of possession (through a finding of joint possession by multiple individuals), the instruction focused the jury’s attention on that type of evidence and impermissibly guided the jury’s assessment of the evidence of possession. This instruction could have been viewed by the jury as “obliquely or indirectly” conveying the court’s opinion of the evidence by “singling out” the State’s theory of joint possession and “inviting the jury to pay particular attention to it.” The nonstatutory instruction was both unnecessary to clarify the applicable law and impermissibly focused the jury’s attention on a theory of the evidence, violating the prohibition against comments on the weight of the evidence.
  • The joint-possession instruction does not fall within the type of permissible nonstatutory instructions for undefined statutory terms that have acquired a technical meaning in the law.
  • For the same reasons, Appellant’s requested instruction on mere presence would have been improper because it: (1) was unnecessary to clarify the applicable law when the statutory definition of “possession” (actual care, custody, control, or management) adequately informed the jury that mere presence is not enough to establish the element of possession; and (2) focused the jury’s attention on Appellant’s defensive evidence that he did not possess the drugs.
  • The judgment of the court of appeals is reversed and the case is remanded for a harm analysis on the joint-possession instruction.

Diruzzo v. State, No. PD-0745-18, 2019 Tex.Crim.App.LEXIS 860 (Tex.Crim.App. Sep. 11, 2019) (designated for publication) [Construction of the statutes concerning practicing medicine without a license, Tex. Occ. Code §§ 155.001, 165.151–165.153]

        Under Tex. Occ. Code § 155.001, a person may not practice medicine unless the person holds a Texas medical license. Under Tex. Occ. Code § 165.151, practicing medicine by a nonphysician without a license is a class A misdemeanor. Under Tex. Occ. Code § 161.152, if a physician practices medicine without a license, he commits an F-3, and each day he does so is a separate offense. Under Tex. Occ. Code § 165.153, it is an F-3 if any defendant causes another person physical or psychological harm and a SJF if the defendant causes another person financial harm.

Editor’s note: This opinion goes into detail regarding statutory construction and the legislative history of the laws against practicing medicine without a license.

Fraser v. State, No. PD-0711-17, 2019 Tex.Crim.App.LEXIS 857 (Tex.Crim.App. Sep. 11, 2019) (designated for publication) [Felony Murder, Cognate-Pleadings Test, Injury to a Child, and Endangering a Child are never lesser-included offenses of Manslaughter]

        Under the cognate-pleadings test, the statutory elements of an offense and nonstatutory allegations in the indictment combine to describe the charged offense. It allows a court to look to nonstatutory elements only for the charged offense while lesser offenses are examined only for their statutory elements. If all the elements of a lesser-offense are contained or deducible from what is contained in the indictment, the lesser-offense is a “lesser-included” offense of the indicted offense. This allows a defendant broader ability to obtain the submission of a lesser-included instruction than if he were limited to the statutory elements of the charged offense.

        Under the cognate-pleadings test, if a manslaughter indictment contains extra averments that cause it to encompass an offense that would not otherwise be a lesser-included offense under manslaughter’s statutory elements, a defendant could obtain a lesser-included instruction on the encompassed offense.

        Injury to a Child and Endangering a Child are never lesser-included offenses of Manslaughter

Hughitt v. State, No. PD-0275-18 & PD-0276-18, 2019 Tex.Crim.App.LEXIS 940 (Tex.Crim.App. Sep. 25, 2019) (designated for publication) [Possession of a controlled substance with the intent to deliver it is not a predicate offense under Tex. Penal Code § 71.02 because it is not enumerated in § 71.02]

        Under Tex. Penal Code § 71.02, a person engages in organized criminal activity if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination, he commits or conspires to commit one or more [enumerated offenses]. A conviction requires an offense enumerated in the statute. Possession of a controlled substance with the intent to deliver it is not a predicate offense under Tex. Penal Code § 71.02 because it is not enumerated in § 71.02.

Ruiz v. State, No. PD-0176-18, 2019 Tex.Crim.App.LEXIS 856 (Tex.Crim.App. Sep. 11, 2019) (designated for publication) [Irrevocable implied consent is not free and voluntary and does not satisfy the consent exception to the Fourth Amendment warrant requirement]

        Under Tex. Transp. Code § 724.011, a person who uses the public roadways is deemed to have consented to having his blood drawn or breath taken if the person is arrested for an offense arising out of acts alleged to have been committed while operating a motor vehicle or watercraft intoxicated. Under Tex. Transp. Code § 724.014, an unconscious DWI suspect may have his specimen taken by an authorized person per §§ 724.016 or 724.017.

        Under Missouri v. McNeely, 569 U.S. 141, 149 (2013), and State v. Villarreal, 475 S.W.3d 784, 795 (Tex.Crim.App. 2014), the Fourth Amendment requires that a search occur per a warrant or a recognized exception to the warrant requirement. The totality of the circumstances dictates whether a warrantless search is reasonable. A warrantless search may be reasonable if the police obtain consent. When the State relies on consent, it must prove that the consent was freely and voluntarily given. Under Schneck­loth v. Bustamonte, 412 U.S. 218, 233 (1973), voluntariness depends on the totality of the circumstances and means more than a knowing choice. The question is whether the person’s will has been overborne and his capacity for self-determination critically impaired such that his consent must have been involuntary. Relevant considerations include the defendant’s sophistication in the law, mental acuity, and ability to exercise a free choice when facing arrest, and whether he was advised of his Miranda rights or advised that the results of the search could be used against him. Under Florida v. Jimeno, 500 U.S. 248, 252 (1991), a defendant may limit the scope of his consent or revoke it. Per Villarreal, 475 S.W.3d at 799, the ability to limit or revoke is a necessary element of valid consent.

        Irrevocable implied consent is not free and voluntary and does not satisfy the consent exception to the Fourth Amendment warrant requirement.

Facts:

  • Appellee fled a car wreck. He may have been driving while intoxicated.
  • Officers found Appellee unresponsive nearby. ER responders tried to revive him, but he remained unresponsive.
  • Appellee was taken to a hospital.
  • Officer McBride arrested Appellee at the hospital. Although Appellee was unconscious, she read the DWI statutory warnings to him and ordered a warrantless blood draw per Tex. Transp. Code §§ 724.011 and 724.014.

Irrevocable implied consent is not free and voluntary and does not satisfy the consent exception to the Fourth Amendment warrant requirement.

  • Appellee was unconscious throughout his encounter with law enforcement and had no capacity for self-determination. He could not make a choice or hear McBride read warnings to him. Drawing his blood was an unreasonable application of the consent exception.

Texas Courts of Appeals

Najar v. State, No. 14-17-00785-CR, 2019 Tex. App. LEXIS 7930 (Tex.App.—Houston [14th Dist.] Aug. 29, 2019) (designated for publication) [Tex. Rule App. Proc. 21.3(f) requires a new trial when during deliberations the: (1) jury received other evidence; and (2) evidence was detrimental]

                Under McQuarrie v. State, 380 S.W.3d 145, 150 (Tex.Crim.App. 2012), a ruling on an MNT is reviewed for an abuse of discretion. A motion for new trial is committed to the discretion of the trial court. McQuarrie v. State, 380 S.W.3d 145, 150 (Tex.Crim.App. 2012). But under Tex. Rule App. Proc. 21.3(f), a defendant must be granted a new trial when during deliberations the: (1) jury received other evidence; and (2) evidence was detrimental (appellate courts will not speculate on the probable effects on the jury or the question of injury). The trial judge is the trier of fact and the sole judge of the credibility of the witnesses. Under Rogers v. State, 551 S.W.2d 369, 370 (Tex.Crim.App. 1977), if there is no fact issue that the jury received other evidence and it was adverse to the defendant, then reversal is required.