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November 2011 SDR – Voice for the Defense Vol. 40, No. 9

Voice for the Defense Volume 40, No. 9 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

Bullcoming v. New Mexico, 131 S. Ct. 2705 (U.S. 2011); Reversed, remanded (5–4)

        Bullcoming was sentenced to two years in prison for felony aggravated DWI/DUI. The State introduced a blood draw taken from him under a search warrant issued following his refusal of the breath alcohol test. Bullcoming argued that the laboratory report of his blood draw results was testimonial evidence subject to the Confrontation Clause. COA affirmed the conviction and upheld the trial court’s ruling that the forensic report was a business record. The court ruled that a blood alcohol report is admissible as a public record and that it presented no issue under the Confrontation Clause because the report was non-testimonial. While the case was pending in the New Mexico Supreme Court, Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (U.S. 2009), clarified that forensic laboratory reports are testimonial and therefore the Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits. In applying Melendez-Diaz, the New Mexico Supreme Court held that the blood alcohol report was testimonial evidence but that was admissible even though the forensic analyst who performed the test did not testify.

        HELD: A blood-alcohol test admitted without the testimony of the person who prepared the results can violate a criminal defendant’s Sixth Amendment rights under the Confrontation Clause. “The Confrontation Clause does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported[.]”

Bond v. United States, 131 S. Ct. 2355 (U.S. 2011); Reversed, remanded (9–0)

        Bond was found guilty of trying to poison her husband’s mistress, Haynes, with toxic chemicals at least 24 times. A grand jury charged Bond with two counts of possessing and using a chemical weapon, in violation of a criminal statute implementing the treaty obligations of the United States under the 1993 Chemical Weapons Convention. Bond’s attorneys argue that the statute was intended to deal with rogue states and terrorists, and that their client should have been prosecuted under state law instead. Bond, a laboratory technician, stole the chemicals from the company where she worked. Haynes was not injured. Haynes had contacted police and postal authorities after finding the chemicals at her home. The Third Circuit held that Bond lacked standing to challenge the constitutionality of the statute under the Tenth Amendment to the U.S. Constitution.

        HELD: A defendant who has been convicted under a federal statute has standing to challenge the conviction on grounds that the statute is beyond the federal government’s enumerated powers and inconsistent with the Tenth Amendment. “Bond has standing to challenge the federal statute on grounds that the measure interferes with the powers reserved to States.”

Davis v. United States, 131 S. Ct. 2419 (U.S. 2011); Affirmed (6–2)

        While conducting a routine vehicle stop, police arrested petitioner Davis, a passenger, for giving a false name. After handcuffing Davis and securing the scene, officers searched the vehicle and found a gun in his jacket. He was charged and convicted for possession of an illegal weapon. Following a jury trial, Davis was convicted and sentenced to 220 months in prison. But the Eleventh Circuit found that while the search was illegal under Arizona v. Gant, 556 U.S. 332 (2009), the evidence found in the vehicle was still admissible.

        HELD: The good-faith exception to the exclusionary rule applies to a search that was authorized by precedent at the time of the search but is subsequently ruled unconstitutional. “Searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” Justice Breyer dissented: “The Court finds a new ‘good faith’ exception which prevents application of the normal remedy for a Fourth Amendment violation, namely, suppression of the illegally seized evidence. . . . A new ‘good faith’ exception and this Court’s retroactivity decisions are incompatible.”

Fifth Circuit

United States v. Hernandez, 633 F.3d 370 (5th Cir. 2011)

        Defendant’s 97-month sentence—an upward departure from the Guideline range of 51 to 63 months—did not violate the Sixth Amendment as applied. Justice Scalia has continually recognized the possibility that even under an advisory Guideline scheme, a sentence could violate the Sixth Amendment if it could only be upheld as reasonable based on judge-found facts; that argument is, however, foreclosed by Fifth Circuit precedent. Moreover, the Fifth Circuit has repeatedly held that the sentencing court is entitled to find by a preponderance of the evidence all facts relevant to the determination of a sentence below the statutory maximum.

United States v. Doggins, 633 F.3d 379 (5th Cir. 2011)

        The Fair Sentencing Act of 2010, which lowered the statutory penalties for many crack cocaine offenses, does not apply retroactively to persons sentenced before its enactment date (August 3, 2010), notwithstanding the fact that their cases are still on direct appeal.

United States v. Caulfield, 634 F.3d 281 (5th Cir. 2011)

        District court did not err in ruling on defendant’s motion to reduce sentence under 18 U.S.C. § 3582(c)(2); particularly, defendant was not entitled to have the court consider only Amendment 706 to the Guidelines, without also considering Amendments 715 and 716, which were designed to correct anomalies in Amendment 706. Even though Amendment 706 was the only amendment in place at the time defendant brought his motion, there was no ex post facto violation in also applying Amendments 715 and 716, because these did not increase the possible punishment from those available at the time the offense was committed. That defendant might have been eligible for a greater discretionary reduction under Amendment 706 standing alone does not give rise to an ex post facto violation.

United States v. Burrell, 634 F.3d 284 (5th Cir. 2011)

        District court reversibly erred in denying defendant’s motion to dismiss under the Speedy Trial Act (STA), because defendant was not brought to trial within 70 days; particularly, the delay attributable to the alleged unavailability of a witness (a sheriff getting recertified) was not excludable under either 18 U.S.C. § 3161(h)(3) (dealing with the absence or unavailability of an essential witness) or 18 U.S.C. § 3161(h)(7) (the catch-all “ends of justice” exclusion) because the government failed to present any evidence to explain why the witness’ presence could not be obtained through reasonable efforts (for example, by working around the certification or by seeking rescheduling of the certification). The Fifth Circuit reversed defendant’s conviction and sentence and remanded to the district court for dismissal of the indictment with or without prejudice.

United States v. Jasso, 634 F.3d 305 (5th Cir. 2011)

        Where defendant was subject to a 10-year (120-month) statutory minimum sentence, district court reversibly erred in imposing a 70-month prison sentence; defendant was not eligible for the “safety valve” of 18 U.S.C. § 3553(f) and USSG § 5C1.2 be­cause he had more than one criminal history point. The greater discretion granted to sentencing courts in United States v. Booker, 543 U.S. 220 (2005), did not permit the district court to treat as advisory the Guideline provisions that are preconditions for the application of statutory “safety valve” relief under 18 U.S.C. § 3553(f). Because defendant had two criminal history points, the court had no discretion to do anything other than impose a sentence at or above the statutory minimum. The Fifth Circuit vacated defendant’s sentence and remanded for resentencing.

United States v. Hoang, 636 F.3d 677 (5th Cir. 2011), on denial of reh’g, 636 F.3d 746 (5th Cir. 3/25/11)

        Agreeing with the Fourth, Sixth, Seventh, and Eleventh circuits but disagreeing with the Eighth and Tenth circuits, the Fifth Circuit held that the registration requirement of the Sex Offender Registration and Notification Act (SORNA) became effective against state-law-registered pre-SORNA sex offenders only on the date the attorney general issued the Interim Rule declaring SORNA retroactive (Feb. 28, 2007), not on the date SORNA was enacted (July 27, 2006). Because defendant traveled in interstate commerce and failed to register in his new jurisdiction after SORNA’s enactment but before the attorney general issued the Interim Rule, SORNA did not apply to him. The Fifth Circuit remanded for dismissal of the indictment.

United States v. Ortiz-Mendez, 634 F.3d 837 (5th Cir. 2011).

        Agreeing with the Seventh and Tenth circuits but disagreeing with the First, Eighth, and Ninth circuits, the Fifth Circuit held that the offense of marriage fraud under 8 U.S.C. § 1325(c) does not require the government to prove that the defendant did not intend to establish a life together with his or her spouse; rather, the government need only show that the defendant entered into the marriage with the purpose of evading immigration laws. Accordingly, the district court did not abuse its discretion in refusing defendant’s requested instruction on intent (or lack of intent) to establish a life together. Nor did the court abuse its discretion in refusing to instruct the jury not to find defendant guilty of marriage fraud simply because the putative spouse intended to commit marriage fraud; defendant was sufficiently protected from such an imputation of guilt by the requirement that the jury had to find beyond a reasonable doubt that she “knowingly” entered into the marriage for the purpose of evading immigration laws.

United States v. Miller, 634 F.3d 841 (5th Cir. 2011)

        (1) Even after United States v. Booker, 543 U.S. 220 (2005), supervised release revocation sentences should be reviewed on appeal under a “plainly unreasonable” standard. Under this standard, the appellate court evaluates whether the district court procedurally erred before the appellate court considers the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard; if the sentence is unreasonable, then the appellate court considers whether the error was obvious under existing law.

        (2) Agreeing with the Fourth and Ninth circuits but disagreeing with the Sixth Circuit, the Fifth Circuit held that in modifying or revoking a supervised release term, a district court may not rely upon 18 U.S.C. § 3553(a)(2)(A), which directs a court initially imposing sentence to consider the need for the sen­tence imposed “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.” Accordingly, the district court erred by determining that defendant’s supervised release revocation sentence was appropriate due to the “seriousness of the offense” and defendant’s lack of “respect for the law.” Despite this mistake, the court’s error was not plainly unreasonable because when the court sentenced defendant, the Fifth Circuit’s law on this question was unclear. The Fifth Circuit affirmed the sentence.

United States v. Gutierrez, 635 F.3d 148 (5th Cir. 2011)

        In sentencing defendant on his conviction for escape from a halfway house, district court did not reversibly err in varying upward from a Guideline imprisonment range of 15 to 21 months to a sentence of 50 months; the court was not required to consider a departure under USSG § 4A1.3 (for underrepresentation of criminal history) prior to varying upward based on criminal history. Because the sentence was adequately explained, and because the length of the sentence was not unreasonable, the Fifth Circuit affirmed the sentence. Note: This holding seems contrary to USSG § 1B1.1 (Application Instructions), as amended on Nov. 1, 2010, which was not mentioned in this opinion.

Jones v. Joslin, 635 F.3d 673 (5th Cir. 2011)

        District court did not err in denying defendant’s 28 U.S.C. § 2241 habeas petition, challenging the Federal Bureau of Prisons’ (BOP’s) treatment of his federal sentence as consecutive to, rather than concurrent with, a previously imposed state sentence. When a sentencing court makes no mention of a prior state sentence, the federal sentence shall run consecutively to the state sentence. The federal judgment here, although inartfully worded and perhaps even ambiguous, never mentions the state sentence and therefore cannot be deemed to order the federal sentence to run concurrently with the state sentence. If the federal district court wanted to depart from the usual presumption of 18 U.S.C. § 3584(a) (that is, if it wanted the federal sentence to be concurrent), it should have discussed why this departure was justified with reference to the 18 U.S.C. § 3553(a) factors and the specific offenses for which defendant was convicted. Moreover, BOP fully complied with 18 U.S.C. § 3585(b) by crediting defendant with all his days in federal custody that were not credited toward the state sentence.

United States v. Curtis, 635 F.3d 704 (5th Cir. 2011)

        (1) District court did not err in refusing to suppress text messages uncovered as the result of a warrantless search of defendant’s cell phone. United States v. Finley, 477 F.3d 250 (5th Cir. 2007), established that police can search the contents of an arrestee’s cell phone incident to a valid arrest. Even if Finley was cast into doubt by Arizona v. Gant, 556 U.S. 332 (2009), suppression was not called for because the search was conducted in good faith reliance upon the pre-Gant precedent then in effect (i.e., Finley), which permitted such a search.

        (2) A defendant’s right to presence imposes two requirements on the exercise of peremptory challenges: First, the defendant must be present for the substantial majority of the jury-selection process; second, the defendant must be present when the court gives the exercise of peremptory challenges formal effect by reading into the record the list of jurors who were not struck. Under this rubric, defendant’s right to be present was not violated. He was present during voir dire and when the peremptory challenges were allotted; he was also present at the lunch recess when the defense’s peremptory challenges were submitted and when the challenges were given formal effect via the impaneling of the jury. He was absent only for a short time before the recess, apparently while his counsel was mulling over the peremptories; this did not constitute error, much less plain error (the standard applicable in the absence of an objection).

United States v. Jacobs, 635 F.3d 778 (5th Cir. 2011)

        Where district court sentenced defendant to 36 months’ imprisonment as an upward variance from the correct Guideline imprisonment range of 4 to 10 months, appeal of that sentence was barred by the appeal waiver provisions of defendant’s plea agreement, which allowed him to appeal only an upward departure not requested by the government. Sentencing departures are distinct from variances. If the parties had intended to allow defendant to appeal any sentence exceeding the high end of the Guideline range, they could have drafted the waiver of appeal to say so. Finding that the waiver barred defendant’s appeal, the Fifth Circuit granted the government’s motion to dismiss the appeal. The Fifth Circuit rejected the seemingly contrary decision in United States v. Manuel, 208 Fed. Appx. 713 (11th Cir. 2006) (unpublished).

Court of Criminal Appeals

Direct Appeal

Leza v. State, No. 76,157 (Tex.Crim.App. 10/12/11); Affirmed (9–0)

        Appellant was convicted of intentional murder committed in the course of a robbery, and the jury answered the statutory special issues in such a way that the trial court was obliged to assess the death penalty.

        HELD: CCA rejected Appellant’s 14 points of error, notably the following. Appellant claimed the trial court erred in failing to suppress his video-recorded oral statement. He argued that admission of the statement violated federal Miranda law and state law under Tex. Code Crim. Proc. art. 38.22. While Appellant was not made aware that the interrogation would be outside the scope of his initial traffic violation, was under the influence of heroin, and did not provide the police with an express waiver, the State met its burden of establishing that Appellant waived his Miranda rights.

        Appellant urged CCA to order a new punishment hearing, arguing that the court erred in failing to grant his request for a mistrial at that stage of trial. Having found that testimony of a prison guard was admitted erroneously, the court instructed the jury in no uncertain terms to disregard it; but Appellant argues that the testimony was so inflammatory that no instruction to disregard it could prove efficacious. The State responds that no instruction to disregard was called for because the testimony was properly admitted; CCA agreed.

        Appellant attached two letters that his appellate counsel received from an assistant district attorney, apparently in relation to another case and sent by mistake regarding a sheriff who was charged with aggravated perjury. CCA overruled this point of error without prejudice, so that Appellant may pursue any Brady claim that further investigation might turn up.

Writ of Habeas Corpus

Ex parte Medina, No. 75,835-01 (Tex.Crim.App. 10/12/11); Remanded (5–4)

        CCA received a document titled “Application for Writ of Habeas Corpus” in connection with this death-penalty case.

        HELD: The document was not in fact an “application for writ of habeas corpus” under Tex. Code Crim. Proc. art. 11.071 because it only contained a short list of conclusory statements and failed to plead specific facts upon which relief could be granted. Furthermore, counsel waited until the last day possible to file the document. Counsel said he knew what he was doing and thought it was a tactical advantage to proceed as such. “Under these unique and extraordinary circumstances, involving not habeas counsel’s lack of competence but his misplaced desire to challenge the established law at the peril of his client,” CCA concluded that under Article 11.071 § 4A(a), counsel failed to file a cognizable writ application. Thus, under Section 4A(b)(3), CCA shall appoint new counsel to represent applicant and establish a new date for the application to be filed in the convicting court. CCA dismissed applicant’s pro se Motion to Amend the Petition for State Habeas Corpus, held his original habeas counsel in contempt of court, and entered an order denying him compensation under Section 2A.

Court’s PDR

Geick v. State, No. 1734-10 (Tex.Crim.App. 10/5/11); Affirmed (9–0)

        Appellant was indicted for theft by deception. At trial, the jury charge allowed for a conviction without limiting the manner in which the theft was committed. The jury found Appellant guilty “as charged in the indictment” and sentenced him to 3 years in prison with a $10,000 fine. COA acquitted Appellant, finding no evidence of deception. CCA refused the State’s PDR, but granted review on its own grounds: Did COA err in requiring the State to prove theft by deception, where deception was alleged in the indictment?

        HELD: When the State unnecessarily pleads a statutory definition that narrows the manner and means in which an offense may be committed, that definition is “the law as authorized by the indictment,” and thus the allegation must be proved beyond a reasonable doubt. Because here the State unnecessarily pled that the theft was by deception but provided no proof of deception, the evidence was insufficient to support a conviction.

State’s PDR

State v. Davis, No. 0042-11 (Tex.Crim.App. 10/5/11); Reversed, remanded (9–0)

        Appellee pled guilty to burglary of a habitation with intent to commit aggravated assault and was sentenced to 15 years’ imprisonment. He subsequently filed a Motion for Reconsideration or Reduction of Sentence. The trial court granted his motion, without a hearing, and reduced the sentence to 12 years. Three days later, the trial court signed a second judgment reducing his sentence to 12 years. There is no record of an oral pronouncement of the modified sentence in the presence of all the parties. The State appealed, arguing that the trial court’s second judgment was void because the sentence was not pronounced in open court with the parties present. COA affirmed the order reducing Appellee’s sentence.

        HELD: While the trial court had authority to set aside the sentence because Appellee’s motion was timely filed and the effect of the order granting that motion was functionally equivalent to granting a new trial on punishment, Appellee was not properly sentenced because he was sentenced outside the presence of his attorney or the State. Thus, the trial court should resentence Appellee.

Appellant’s & Court’s PDRs

Adames v. State, No. 1126-10 (Tex.Crim.App. 10/5/11); Affirmed COA, remanded to trial court (9–0)

        In connection with an aggravated kidnapping, Appellant was charged with capital murder. The jury convicted Appellant of capital murder, and the trial court automatically sentenced Appellant to life imprisonment without parole. COA found that the evidence is legally sufficient to support Appellant’s conviction as a party to capital murder, but that the jury charge was erroneous as the application paragraph did not include instructions necessary for the jury to find Appellant guilty as a party. “The actual charge at trial charged him with that offense [capital murder] as a primary actor but, as a party, only with respect to the underlying aggravated kidnapping.”

        CCA granted Appellant’s PDR to determine whether COA erred in refusing to review Appellant’s issues regarding legal insufficiency under the Due Process Clause of the 14th Amendment to the U.S. Constitution, as required by Jackson v. Virginia, 443 U.S. 307 (1979). CCA granted an additional ground, on its motion, to decide whether COA erred in failing to distinguish between a sufficiency review under Malik v. State, 953 S.W.2d 234 (Tex.Crim.App. 1997), an independent state ground for review, and Jackson, a federal constitutional review.

        HELD: Both the state and federal standards measure the sufficiency of the evidence against the elements of the offense, as in a hypothetically correct jury charge; they diverge, however, in distinguishing between “substantive elements,” the only elements used in a Jackson analysis, and the Gollihar v. State, 46 S.W.3d 243 (Tex.Crim.App 2011), “elements of the offense as defined by the hypothetically correct jury charge.” The hypothetically correct jury charge may include elements that must be in the charging instrument under Texas procedural rules, such as the manner and means of an offense, but which lie outside the Texas Penal Code and are not “substantive elements as defined by state law” for a Jackson review.

        Malik and its progeny, including Gollihar, established that an appellate court should apply the Jackson standard to the hypothetically correct jury charge. As such, COA did not fail to distinguish between sufficiency reviews under Malik and Jackson. COA correctly applied the Jackson standard and found the evidence legally sufficient to support Appellant’s conviction.

Appellants’ PDRs

Tillman v. State, No. 0727-10 (Tex.Crim.App. 10/5/11); Reversed, remanded (9–0)

        Appellant was convicted of capital murder by a jury and given the automatic punishment of life in prison. COA affirmed. Appellant argues that the trial court improperly excluded testimony by Psychologist Malpass about the reliability of eyewitness identifications, because the testimony was relevant and reliable as it satisfied the three requirements of Nenno v. State, 970 S.W.2d 549 (Tex.Crim.App. 1998), for “soft sciences.”

        HELD: Under Nenno, the proponent of the evidence must establish that (1) the field of expertise involved is a legitimate one, (2) the subject matter of the expert’s testimony is within the scope of that field, and (3) the expert’s testimony properly relies upon or utilizes the principles involved in that field. CCA believes that psychology is a legitimate field of study, and that the study of the reliability of eyewitness identification is a legitimate subject within the area of psychology. The third prong is satisfied by Malpass’ extensive experience in eyewitness research.

        As for the relevancy challenge, while jurors might have their own notions about the reliability of eyewitness identification, that does not mean they would not be aided by the findings of a trained psychologist on the issue. Furthermore, Malpass’ testimony is sufficiently tied to the facts of this case. CCA’s conclusion is not undermined by the fact that Malpass was not present during the testimony of several witnesses.

Rushing v. State, No. 0727-10 (Tex.Crim.App. 10/5/11); Affirmed (9–0)

        Appellant was convicted of aggravated sexual assault of a child and other sex offenses. The State successfully sought an automatic-life enhanced sentence using Appellant’s prior court-martial convictions under the Uniform Code of Military Justice (UCMJ) for carnal knowledge and indecent acts with a child. Tex. Penal Code § 12.42(c)(2)(B)(v) provides that if it is shown that the defendant convicted of aggravated sexual assault has previously been convicted “under the laws of another state containing elements that are substantially similar to the elements” of indecency with a child, sexual assault, aggravated sexual assault, or other enumerated offenses, the defendant shall be sentenced to life imprisonment. COA held that because the “UCMJ is subject to the legislative authority of the United States,” Appellant’s sentence was not unlawfully enhanced.

        HELD: Under the definition of “state” in Tex. Government Code § 311.005(7), Appellant’s sentence was properly enhanced to life imprisonment under Section 12.42(c)(2)(B)(v). Convictions “under the laws of another state” in Section 12.42(c)(2)(B)(v) includes prior convictions under the UCMJ, regardless of the serviceperson’s geographical location. Therefore, a prior UCMJ conviction constitutes “conviction[s] under the laws of another state” for purposes of Section 12.42(c)(2)(B)(v).

Soliz v. State, No. 0117-11 (Tex.Crim.App. 10/5/11); Affirmed (8–1)

        Appellant was indicted for continuous sexual abuse of a young child under Jessica’s Law (Tex. Penal Code § 21.01). Without objection from Appellant, the offense of aggravated sexual assault was submitted to the jury as a lesser-included offense. The jury found Appellant not guilty of continuous sexual abuse of a young child, but guilty of aggravated sexual assault.

        HELD: The trial judge makes an initial determination of whether, as a matter of law, an offense qualifies as a lesser-included offense; the judge then decides whether the lesser offense was raised by the evidence. Hall v. State, 225 S.W.3d 524 (Tex.Crim.App. 2007). Appellant claimed Jessica’s Law created an exception to this analysis and requires the jury to deliberate whether a submitted lesser offense is in fact a lesser-included offense of the crime charged; CCA disagreed. Subsection (e) of Jessica’s Law declares that “an offense listed under Subsection (c)” of the law “is considered by the trier of fact to be a lesser included offense of the offense alleged under Subsection (b).” There­fore, to the extent that a continuous-sexual-abuse indictment alleges certain specific offenses, an “offense listed under Subsection (c)” of Jessica’s Law will always meet the first step of the Hall analysis. Unlike cases in which the lesser offense is not actually listed in the indictment (e.g., criminally negligent homicide in a murder indictment), continuous sexual abuse is, by its very definition, the commission under certain circumstances of two or more of the offenses listed in Subsection (c). The inclusion of “considered by the trier of fact to be” ensures that the lesser-included offense was actually submitted to the jury, considered by the jury, and found to be true.

Ouellette v. State, No. 1722-10 (Tex.Crim.App. 10/12/11); Affirmed (6–2)

        Appellant was charged by information with DWI “by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, or a combination of two or more of those substances into the body” after rear-ending a car. The trial court’s charge repeated that language, and the jury convicted her. COA affirmed.

        CCA granted review to answer the following: “In a driving while intoxicated case, where the evidence is legally sufficient to support a conviction on the theory that the defendant was intoxicated by . . . alcohol . . . is it proper for the trial court, in its charge, to also authorize a conviction on an alternative theory that the defendant was intoxicated by . . . a drug, or a combination of alcohol and a drug . . . where the evidence merely shows that medications prescribed for the defendant were found in her car . . . ?”

        HELD: The jury charge reflected the law as it applied to the evidence produced at trial. Appellant appeared intoxicated, police found in her vehicle a drug that could have produced the observed symptoms of intoxication, and she refused a blood test. While there was no direct evidence that Appellant consumed the drug discovered by the officer, there was enough evidence from which a rational juror could have found that she did.

Sweed v. State, No. 0273-10 (Tex.Crim.App. 10/19/11); Reversed, remanded (8–0)

        Appellant was indicted for the felony offense of aggravated robbery, enhanced with two prior felony convictions. The trial court denied Appellant’s requested jury instruction on the offense of theft. The jury found Appellant guilty of aggravated robbery and assessed punishment at 38 years’ confinement. CCA granted Appellant’s PDR to review the application of the second step of the lesser-included-offense analysis. Tex. Code Crim. Proc. art. 37.09.

        HELD: CCA assumed that the first step of the analysis is satisfied (i.e., that the lesser-included offense of theft is included within the proof necessary to establish the charged offense of aggravated robbery)and held that the second step is also met as there was trial evidence that supported giving a theft instruction. To prove aggravated robbery, the State must prove robbery plus an aggravating factor, such as the defendant “uses or exhibits a deadly weapon.” The robbery element of “in the course of committing theft” is defined as “conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.” If “in the course of committing theft” could not be proven at trial, then the theft and the assault were separate events, and Appellant could not be found guilty of robbery or aggravated robbery. Consequently, be­cause Appellant did not dispute that he committed theft, the central issue at trial was whether Appellant pulled a knife on the victim. CCA found that there is enough evidence from which the jury could have reasonably determined that theft is a valid, rational alternative to aggravated robbery.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Sanchez v. State, No. 01-10-00433-CR (Tex.App.—Hous­ton [1st Dist] 5/19/11)

        Judge of statutory county court, acting as a magistrate, did not have authority to issue a search warrant for drawing blood in a different county. “[U]nlike district judges, who may act for one another, with no geographical restrictions . . . no such grant of authority exists for statutory county court judges[.]”

Montgomery v. State, No. 14-09-00887-CR (Tex.App.—Houston [14th Dist] 6/2/11)

        D’s cell phone use at the time of auto accident insufficient to support conviction of criminally negligent homicide. “One of the State’s [expert witnesses] testified that he believed cell phone usage was a factor in a growing number of accidents and could have been a factor here, but he cited no data. . . . In addition to failing to present any evidence of an increased risk of death, the State also failed to present any evidence that such greater risk was generally known and disapproved of in the community. . . . Supported by additional scientific research and increased public awareness, Texans may one day determine that cell phone usage while operating a vehicle is morally blameworthy conduct that justifies criminal sanctions; however, the State failed to establish that such was the case in March 2008, at the time of this accident.”

Carmen v. State, No. 01-10-00124-CR (Tex.App.—Hous­ton [1st Dist] 6/30/11)

        State’s argument on punishment that “if [D] kills again, that is on you” permissible, despite D’s argument that it interjects new facts not on the record relating to D’s propensity to commit a future murder. “The State’s argument does not indicate the likelihood of such a future occurrence. It merely poses the hypothetical possibility that a person who has murdered once could do so again. The evidence at trial supports the State’s theory that [D] prepared for the murder by practicing firing the pistol, that [D] lay in wait in order to ambush his father when he arrived home after work, and that [D] showed no emotion or remorse after killing his father.”

Delacerda v. State, No. 01-09-00972-CR (Tex.App.—Hous­ton [1st Dist] 7/21/11)

        Officer’s testimony during murder prosecution regarding witness’ identification of person in photo array, as being the one present in the back of pickup truck involved in the shooting (this testimony occurred after witness’ testimony that he did not recall making such identification), fell within the hearsay exclusion for identifications. “We agree with the rationale of the Illinois Supreme Court and the District of Columbia Court of Appeals that limiting admissible testimony under the identification exclusion to the hearsay rule solely to the declarant’s naming of the identified individual and not allowing testimony regarding what the declarant identified the individual as doing is unduly restrictive.”

        Deemed proper was State’s commitment question during voir dire to determine whether venire could convict D in the absence of physical evidence if the State otherwise proved the elements of the offense beyond a reasonable doubt. “The questions did not attempt to commit the prospective jurors to a specific set of facts prior to the presentation of evidence at trial. Rather, the only fact that the questions included was the absence of physical evidence, such as DNA or fingerprinting evidence, and this fact was necessary to test whether a prospective juror possessed a bias against a phase of the law upon which the State was entitled to rely[.]”

State v. Dominguez, No. 01-10-00428-CR (Tex.App.—Houston [1st Dist] 7/28/11)

        An individual’s diet and cologne affects his odor; this finding was properly used to exclude, as unreliable, evidence of scent-discrimination lineup procedure in which three bloodhounds purportedly identified D’s scent on items from crime scene. Also deemed unreliable was dog handler’s opinion due, in part, to lack of oversight and verification of his test results. “[Dog handler] stated his task in interpreting the dogs’ alerts is subjective in nature. [State’s expert] stated it is up to the handler to decide whether the dog ‘alerted.’ Neither [State’s expert] nor [D’s expert] could discern the dog signals identifying an alert in a video demonstration of [dog handler’s] scent-discrimination lineup. . . . Finding 13 states that, unlike a dog’s alert to a bomb or to drugs, the matching of a scent in a lineup is not verifiable. Likewise, Finding 20 states that no laboratory analysis can verify the scent-discrimination lineup. The undisputed evidence at the hearing was that no analysis or instrument currently exists to verify the results of a scent-discrimination lineup, and that only the handler can verify that the dog has alerted to the correct scent.”

Hassan v. State, No. 14-10-00067-CR (Tex.App.—Hous­ton [14th Dist] 7/28/11)

        D raised inference of racial discrimination in jury selection, where State used its three strikes to remove two (of five) African-American venire members and one (of two) Asian venire members; State failed to rebut presumption of racial discrimination, despite the prosecutor’s testimony. “[T]he prosecutor testified that he exercised a strike on venire member 5, who is Asian, because she was a certified public accountant (CPA). The prosecutor stated that he never seats a person who works as a CPA on any jury. In his view, CPAs tend to overanalyze cases. . . . Therefore, the prosecutor offered a race-neutral reason for striking one of the two Asian venire members. . . . The prosecutor also testified at the Batson hearing that, in examining the 2005 trial record, he could not recall why he struck venire member 2 and venire member 8. . . . In response to cross-examination questions, the prosecutor likewise could not recall anything specific about these particular venire members, though he added, ‘I can tell you without a doubt that I never struck a [potential] juror for an improper reason including race or sex. While I cannot sit here and tell you today why they were struck, I can tell you with certainty they were not struck for any improper reason.’ A prosecutor may not rebut the presumption merely by denying that he had a discriminatory motive or by ‘affirming his good faith in individual selections.’”

October 2011 SDR – Voice for the Defense Vol. 40, No. 8

Voice for the Defense Volume 40, No. 8 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

DePierre v. United States, 131 S. Ct. 2225 (U.S. 2011); Affirmed (9–0)

DePierre was indicted for distribution of 50 grams or more of cocaine base under 21 U.S.C.S. §841. The district court declined DePierre’s request that the jury be instructed that, in order to find DePierre guilty of distribution of “cocaine base,” it must find that his offense involved crack cocaine. DePierre was convicted, and the court sentenced him to the 120 months in prison mandated by the statute. The First Circuit affirmed, adhering to its precedent that “cocaine base” refers to all forms of cocaine base. The opinion also notes that the Second, Third, Fourth, Fifth, and Tenth Circuits interpret the statute the same way.

HELD: “‘[C]ocaine base,’ as used in § 841(b)(1), means not just ‘crack cocaine,’ but cocaine in its chemically basic form.”

Sykes v. United States, 131 S. Ct. 2267 (U.S. 2011); Affirmed (6–3)

Sykes pleaded guilty to being a felon in possession of a firearm. A district court enhanced Sykes’ sentence under the Armed Career Criminal Act (ACCA) after determining that he had previously been found guilty of three violent felonies. The Seventh Circuit affirmed, noting that “fleeing police in a vehicle in violation of Ind. Code §35-44-3-3(b)(1)(A) is sufficiently similar to ACCA’s enumerated crimes in kind, as well as the degree of risk posed, and counts as a violent felony under ACCA.”

HELD: “Felony vehicle flight, as proscribed by Indiana law, is a violent felony for purposes of ACCA.” Justice Thomas concurred: “[T]he majority errs by implying that the ‘purposeful, violent, and aggressive’ test may still apply to offenses ‘akin to strict liability, negligence, and recklessness crimes.’” Justice Scalia dissented and chastised the majority for an “ad hoc judgment that will sow further confusion.” Justice Kagan also dissented: “Vehicular flight comes in different varieties, and so too the statutes that criminalize the conduct. . . . Because petitioner Marcus Sykes was convicted only of simple vehicular flight, and not of any flight offense involving aggressive or dangerous activity, I would find that he did not commit a ‘violent felony’ under ACCA.”

Flores-Villar v. United States, 131 S. Ct. 2312 (U.S. 2011); Affirmed (4–4)

A federal district court convicted Flores-Villar under the Immigration and Nationality Act (INA) of being a deported alien in the United States. On appeal to the Ninth Circuit, Flores-Villar argued that the relevant provisions of the INA violated the Equal Protection Clause of the Fifth Amendment on the basis of age and gender. The provisions impose a five-year residency requirement, after age 14, on U.S. citizen fathers but not mothers whose residency requirement is merely one year. The Ninth Circuit applied the holding in Nguyen v. INS, 533 U.S. 53 (2001), which did not deal precisely with the provisions before the court, but held that other more onerous residency requirements for fathers but not mothers in the INA did not violate the Equal Protection Clause. The court concluded that the provisions challenged by Flores-Villar also did not violate the Equal Protection Clause and affirmed the district court.

HELD: Without deciding whether Nguyen v. INS permits gender discrimination that has no biological basis, the Court affirmed the lower court.

Tapia v. United States, 131 S. Ct. 2382 (U.S. 2011); Reversed, remanded (9–0)

Tapia was convicted of bringing illegal aliens into the United States and of jumping bail after being charged with immigration crimes. Following the jury trial, a district court judge sentenced Tapia to 51 months in prison, noting that one factor in giving her a longer sentence was to make sure she remained confined long enough to take part in a drug rehab program. Tapia appealed the sentence, arguing that the district court committed plain error by basing her sentence on speculation about whether and when she could enter and complete the Bureau of Prison’s 500-hour drug abuse treatment program. But the Ninth Circuit affirmed the lower court.

HELD: “[18 U.S.C. §] 3582(a) does not permit a sentencing court to impose or lengthen a prison term in order to foster a defendant’s rehabilitation.”

J.D.B. v. North Carolina, 131 S. Ct. 2394 (U.S. 2011); Reversed, remanded (5–4)

J.D.B. was a 13-year-old special education student in 2005 when the police showed up at his school to question him about a string of neighborhood burglaries. The police had learned that the boy was in possession of a camera that had been reported stolen. The boy was escorted to a school conference room, where he was interrogated in the presence of school officials. J.D.B.’s parents were not contacted, and he was not given any Miranda warnings. J.D.B. confessed to the crimes, but later sought to have his confession suppressed on the basis that he was never read his Miranda rights. He argued that because he was effectively in police custody when he incriminated himself, he was entitled to Miranda protections. The North Carolina Supreme Court held that it could not consider the boy’s age or special education status in determining whether he was in custody, and because he was not in custody, he was not entitled to Miranda warnings.

HELD: Courts should consider the age of a juvenile in deciding whether he or she is in custody for Miranda purposes. “It is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave. Seeing no reason for police officers or courts to blind themselves to that commonsense reality, we hold that a child’s age properly informs the Miranda custody analysis.” The Court remanded to the state court to determine whether the youth was in custody when he was interrogated.

Fifth Circuit

United States v. Oliver, 630 F.3d 397 (5th Cir. 2011)

(1) In mail fraud/aggravated identity theft prosecution, district court did not err in denying defendant’s motion to suppress the contents of a box in his girlfriend’s apartment that she searched prior to turning it over to police. Where a private individual examines the contents of a closed container, a subsequent search of the container by government officials is not an unlawful Fourth Amendment search as long as the government search does not exceed the scope of the private search. The lawfulness of the subsequent police search does not depend on the police’s knowledge of the private search. The initial private search, which was reasonably foreseeable, and the searcher’s act, later that day, of voluntarily giving authorities the box, in which no reasonable expectation of privacy remained, rendered the police search permissible. Judge Garza dissented that Fifth Circuit case law did not support the proposition that a private search could validate subsequent police action even if the police did not know about the private search.

(2) District court did not err in denying defendant’s motion to suppress his statements to law enforcement; under the circumstances, defendant validly waived his Miranda rights by voluntarily speaking to police, notwithstanding his refusal to sign a written waiver form.

Hernandez v. Thaler, 630 F.3d 420 (5th Cir. 2011)

Where the district court applied the then-controlling rule of Salinas v. Dretke, 354 F.3d 425 (5th Cir. 2004), to deny defendant’s federal habeas petition as untimely under the AEDPA’s 1-year statute of limitations, but Salinas was later overruled in Jimenez v. Quarterman, 555 U.S. 113 (2009), that change in the law was not the sort of extraordinary circumstance warranting relief under Fed. R. Civ. P. 60(b)(6). Defendant could not use Rule 60(b)(6) to circumvent the principle that when the Supreme Court announces a new rule of law and applies it to the parties before it, the new rule is given retroactive effect only in cases that are still open on direct review.

United States v. Sanchez-Ledezma, 630 F.3d 447 (5th Cir. 2011)

District court did not err in applying an 8-level enhancement under USSG §2L1.2(b)(1)(C) on the ground that defendant was deported following an “aggravated felony” conviction. Defendant’s prior felony conviction for evading arrest or detention with a motor vehicle (in violation of Tex. Penal Code §38.04(b)(1)) was a “crime of violence” under 18 U.S.C. §16(b) (and hence an “aggravated felony” under 8 U.S.C. §1101(a)(43)(F)) because it presented a substantial risk that physical force would be used in the course of committing the offense, in the form of a confrontation.

United States v. Rodriguez-Juarez, 631 F.3d 192 (5th Cir. 2011)

Although, under Fifth Circuit precedent, a sex offense committed with assent that did not amount to legally valid consent was not a “forcible sex offense” under USSG §2L1.2, that precedent was abrogated by the 2008 amendment to USSG §2L1.2 which explicitly provided that “forcible sex offenses” included ones where the consent was not legally valid. This amendment was specifically meant to abrogate cases like the Fifth Circuit’s where courts had excluded offenses without assent in fact, but no legally valid consent; because this amendment scuttled defendant’s challenge to the 16-level “crime of violence” enhancement under USSG §2L1.2(b)(1)(A)(ii), and because defendant had no other nonfrivolous challenge on appeal, the Fifth Circuit granted defense counsel’s motion to withdraw under Anders v. California, 386 U.S. 738 (1967).

Cantu v. Thaler, 632 F.3d 157 (5th Cir. 2011)

In Texas capital murder prosecution where defendant was sentenced to death, trial counsel did not provide ineffective assistance at the sentencing phase by failing to discover and present evidence of defendant’s bipolar disorder. Trial counsel made a reasonable strategic decision not to investigate defendant’s mental health problems, which would have been inconsistent with the strategy used at trial and which would have opened the door to a state psychiatrist’s examination—which could have strengthened the State’s position that defendant was a psychopath and thus a future danger. With respect to defendant’s ineffective assistance claim during the guilt/innocence phase, this claim was procedurally defaulted because the claim had not been raised in state post-conviction proceedings, and Texas state courts would not consider it if raised in a successive state petition. Nor could defendant show cause and actual prejudice, or a fundamental miscarriage of justice, that would allow defendant to overcome the procedural bar and secure federal habeas review of that claim. Finally, even assuming, arguendo, that freestanding actual innocence may in some circumstances be cognizable in federal habeas, defendant did not meet the “extraordinarily high” standard that would be necessary for such a claim.

United States v. Dickson, 632 F.3d 186 (5th Cir. 2011)

(1) For purposes of 18 U.S.C. §2252(a)(4)(B), images of child pornography are “produced” when they are copied or downloaded onto hard drives, disks, or CDs; therefore, because the government presented sufficient evidence that defendant possessed a CD onto which images of child pornography had been downloaded, and because that CD was manufactured in the Republic of China (thereby satisfying the interstate or foreign commerce element of the statute), the Fifth Circuit affirmed defendant’s conviction.

(2) Where defendant was convicted of one count of possession of child pornography and one count of production of child pornography, the district court plainly erred in calculating the Guidelines when it failed to compute the total offense level for each offense and then apply the Guidelines’ grouping rules; the district court instead applied the base offense level for production and then applied an enhancement for sadistic or masochistic images that applied only to the possession offense. The error resulted in a Guidelines range of 360 months to life, rather than the correct range of 235 to 293 months. Nevertheless, while the lack of an overlap usually means that a defendant’s substantial rights were affected by a Guidelines calculation error, that was not true here; the district court’s selection of the statutory maximum sentence of 840 months (240 months on the possession count and a consecutive 600-month sentence on the production count) for the stated purpose of incapacitating defendant from further crimes against children for the rest of his life, indicated that there was not a reasonable probability that defendant would receive a lower sentence but for the error. Moreover, the sadomasochistic content of the photos underlying the possession count could have been considered by the district court in imposing the sentence, albeit not in the way the district court did here.

United States v. Flores, 632 F.3d 229 (5th Cir. 2011)

The Fifth Circuit “wr[o]te in this case to signal a change in th[at] court’s approach to” cases in which counsel filed a brief, and moved to withdraw, under Anders v. California, 386 U.S. 738 (1967). The Fifth Circuit indicated that it would no longer independently scour the record for any possibly nonfrivolous point that could support an appeal; rather, it would henceforth follow the approach of the Third and the Seventh Circuits and would be guided in reviewing the record by the Anders brief itself, provided that the brief is adequate on its face. Here, the Anders brief was adequate on its face; after review of the brief and the portions of the record referenced therein, the Fifth Circuit accepted counsel’s assessment that defendant had no non-frivolous issues to raise on appeal. The Fifth Circuit granted defendant’s motion to withdraw and dismissed the appeal as frivolous.

United States v. Garland, 632 F.3d 877 (5th Cir. 2011)

In a companion case to United States v. Flores, 632 F.3d 229 (5th Cir. 2011), the Fifth Circuit outlined what it required for an adequate Anders brief: “Anders requires counsel to isolate possibly important issues and to furnish the court with references to the record and legal authorities to aid it in its appellate function.” Although counsel has broad discretion in the preparation of his brief, and no particular form is required, the Fifth Circuit noted that a brief that covers the points raised in the guidelines and checklist for Anders briefs contained on the Fifth Circuit’s website will ordinarily be found to be adequate; if counsel submits such a brief, the Fifth Circuit, as it held in Flores, will no longer independently scour the record looking for appellate issues. Here, however, counsel’s Anders brief fell short of the guidelines and the checklist in several respects; hence, it was not adequate. Accordingly, the Fifth Circuit denied counsel’s motion to withdraw and instructed him to file either a compliant Anders brief or a brief on the merits of any nonfrivolous issue he deemed appropriate.

United States v. Johnson, 632 F.3d 912 (5th Cir. 2011)

Assuming without deciding that defendant had prudential standing to raise the issue, the Fifth Circuit held that the Sex Offenders Registration and Notification Act (SORNA) did not violate the Tenth Amendment. The Tenth Amendment does not forbid conditioning federal funding on a state’s implementation of a federal program, which is what SORNA does; the sex offender registry bargained for is a valid exercise of Congress’ spending power. Assuming without deciding that defendant had standing to challenge the Attorney General’s adoption of an Interim Rule implementing SORNA, the Fifth Circuit, disagreeing with the Second, Third, Eighth, and Tenth Circuits, held that Congress delegated to the Attorney General the decision whether to apply SORNA to pre-enactment offenders, and that SORNA did not apply to offenders with pre-enactment convictions until the Attorney General issued the Interim Rule. Moreover, in promulgating the Interim Rule, the Attorney General violated the notice and opportunity-to-comment requirements of the Administrative Procedures Act (APA). Disagreeing with the Fourth and Eleventh Circuits, the Fifth Circuit found the Attorney General’s reasons for bypassing those provisions unpersuasive and held that they did not constitute “good cause.” However, the Attorney General’s APA violations were harmless error.

United States v. Hampton, 633 F.3d 334 (5th Cir. 2011)

The introductory language in 18 U.S.C. §3583(e)(3) (allowing a court to “revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release”) does not limit the aggregate amount of revocation imprisonment to the length of the supervised release term authorized for the underlying offense. Accordingly, even though the maximum supervised release term for defendant’s underlying offense was three years, and even though she had previously received a 24-month revocation prison sentence, it did not violate the statute, on defendant’s second revocation of supervised release, to impose another 24-month prison sentence.

Court of Criminal Appeals

Direct Appeals

Lucio v. State, No. 76,020 (Tex.Crim.App. 9/14/11); Affirmed (9–0)

Appellant was convicted for the capital murder of her two-year-old daughter and was sentenced to death pursuant to the jury’s answers to the special issues.

HELD: CCA rejected Appellant’s 14 points of error, mostly because Appellant failed to preserve the claims or adequately brief them. CCA mainly addressed three points. In point one, Appellant claimed CCA should remand the case to the trial court to determine whether “the proof has failed on future dangerousness” since the trial court did not “think” it had “discretion to determine that the proof has failed on future dangerousness.” Appellant asked the trial court to enter a judgment notwithstanding the verdict. A trial court has no such authority in a criminal case. In addition, having decided in point of error four that the evidence is legally sufficient to support the affirmative answer to the future-dangerousness issue, CCA did not find it necessary to remand the case to determine whether the proof failed on future dangerousness.

In point two, Appellant claimed she is entitled to a new trial under Tex. R. App. P. 34.6(f)(4) because the “audio of the defendant’s statement to the police is inaudible.” This does not mean these portions of the court reporter’s record are “lost or destroyed” for purposes of Rule 34.6(f). There is nothing missing from the reporter’s record.

In point three, Appellant claimed the trial court erred to admit her recorded statement into evidence. However, the State introduced Appellant’s recorded statement through Detective Cruz and Appellant’s only non-general, specific objection was that “all voices on the recording” were not identified.

Gonzales v. State, No. 76,176 (Tex.Crim.App. 9/28/11); Affirmed (7–2)

In 1995, Appellant was convicted of capital murder and, based on the jury’s answers to the special issues, was sentenced to death. His conviction and sentence were affirmed on direct appeal. Appellant’s state application for habeas corpus relief was denied. Appellant’s federal petition for habeas corpus relief was denied as to his conviction but granted as to punishment, and the case was remanded for a new punishment hearing. The Fifth Circuit affirmed the federal district court. The trial court held a new punishment hearing in 2009, and based on the jury’s answers to the special issues, the judge sentenced Appellant to death.

HELD: CCA rejected Appellant’s five points of error. Most notably, in points two and three, Appellant claimed the trial court erred when it denied his challenges for cause to venire persons Sarah Murdock and Randall Phillips. The issue is whether the trial court’s rulings on Appellant’s challenges for cause harmed Appellant by depriving him of one of his statutorily allotted peremptory challenges. Appellant argues that Murdock, based on her answers, could not afford Appellant the right to remain silent and would shift the burden of proof to Appellant on the issue of future dangerousness. The record supports that Murdock was not challengeable on these bases, and point of error two is overruled. Because Appellant has not shown that the trial court improperly denied his challenges to at least two venire persons, he cannot show reversible error. Therefore, CCA need not address Appellant’s third point of error regarding Phillips.

Writs of Prohibition and Mandamus

State v. Creuzot, Nos. 76,594-95 (Tex.Crim.App. 7/27/11); Conditionally granted (8–1)

Defendant in a pending capital-murder retrial is seeking a declaratory judgment that if he goes to trial and is found guilty, then it would violate his constitutional rights for the State to seek the death penalty. His claim is based solely on unique facts: He did not obtain relief in the appellate courts for 30 years, and, because of this lengthy delay, he has lost access to witnesses and documents that may have assisted him in a punishment mitigation case regarding race-based peremptory challenges. After several evidentiary hearings, trial judge Creuzot granted defendant’s motion. The State filed writs of mandamus and prohibition to require Creuzot to vacate his order.

HELD: Defendant has failed to offer legal authority supporting a pretrial declaratory judgment that the State should be forbidden from seeking the death penalty when some potentially useful evidence is no longer available. The U.S. Supreme Court held that to succeed on a similar pretrial challenge, the defense must show at trial that the delay did, in fact, cause substantial prejudice to his right to a fair trial; and second, the defense must show that the government intentionally delayed its indictment for the purpose of gaining a tactical advantage. Here, defendant failed to show any actual and substantive prejudice to his mitigation case because he has not yet presented that case. Additionally, as a matter of law, defendant cannot demonstrate that the State intentionally or purposely delayed the appellate process to gain a tactical advantage in a retrial. It was defendant who invoked those appellate procedures, and there has been no showing that the State acted in bad faith in its appellate duties. Finally, it cannot be persuasively argued that the State could have, or should have, predicted the dramatic changes in the law concerning peremptory challenges between 1983 and 2005.

Writ of Habeas Corpus

Ex parte Warren, No. 76,435 (Tex.Crim.App. 9/28/11); Denied (9–0)

Applicant alleges that because he has never been convicted of a sex offense, he was entitled to the requisite due process procedures when the Texas Department of Criminal Justice-Parole Division placed sex-offender conditions on his parole.

HELD: No process was due to applicant because his computerized criminal history file, maintained by the Texas Department of Public Safety, which was corroborated by police agency records, establishes that applicant had prior sex-offense convictions from Illinois. The elements of the Illinois offense are sufficiently similar to the elements of the Texas offense of In­decency with a Child, which is a qualifying offense for the imposition of sex offender conditions.

State’s PDRs

Cosio v. State, No. 1435-10 (Tex.Crim.App. 9/14/11); Reversed, remanded (9–0)

Appellant was indicted for four counts of sexual assault of a child. During trial, Appellant requested the State elect as to the counts that it would proceed under. The jury charges coincided with the State’s election and generally instructed the jury, at the end of each charge, that its verdicts must be unanimous. Appellant did not object to the charges on the basis that they allowed for non-unanimous verdicts. The jury found Appellant guilty on all counts.

On appeal, Appellant challenged the sufficiency of the evidence and alleged that the jury charges contained egregious error because they permitted non-unanimous verdicts. COA held that the evidence was insufficient for one of the convictions and that the jury charges were erroneous.

HELD: The jury instructions were erroneous because there were several instances of sexual criminal conduct that could have satisfied the charged offenses, and the judge failed to instruct the jury that it must be unanimous about which instance satisfied each charge. Appellant requested elections; therefore, the State was forced to prove, beyond a reasonable doubt, the incidents of criminal conduct that it elected to rely upon. A jury charge error is not forfeitable by a defendant’s failure to object at trial; this failure only controls the applicable harm analysis. CCA disagreed with COA and held that Appellant was not egregiously harmed because it is logical to suppose that the jury unanimously agreed that Cosio committed all of the separate instances of criminal conduct during each of the four incidents. CCA reversed and remanded to COA to address Appellant’s remaining points of error as they relate to the three convictions not overturned by COA.

Snowden v. State, No. 1524-10 (Tex.Crim.App. 9/28/11); Reversed, remanded (8–1)

At the end of the prosecutor’s summation at the guilt phase of trial, the prosecutor said, “[Appellant] doesn’t give two hoots about the mother of his baby or his baby because he looks her in the eye and punches her in her 38-week-old stomach without remorse, just like he is today.” Appellant immediately objected that this argument constituted a comment on his failure to testify, but the trial court overruled the objection.

Appellant was subsequently convicted by a jury of family-violence assault of a woman who was pregnant with his child. The jury assessed punishment at two years’ imprisonment. COA reversed Appellant’s conviction and remanded the cause to the trial court for a new trial, holding that the trial court erred in overruling Appellant’s objection to the State’s improper jury argument commenting on his failure to testify. COA was unable to conclude beyond a reasonable doubt that the trial court’s error did not contribute to Appellant’s conviction or punishment.

HELD: Beyond a reasonable doubt that the error in allowing the prosecutor to comment on Appellant’s lack of in-court remorse was simply unimportant in relation to everything else the jury considered on the issue of whether Appellant was previously convicted of family-violence assault. Furthermore, Appellant received a two-year sentence and no fine—the minimum punishment he could have received for this third-degree conviction.

State v. Weaver, No. 1635-10 (Tex.Crim.App. 9/28/11); Affirmed (6–3)

Four police officers came to Weaver’s welding shop looking for someone wanted in another county. Weaver gave the officers consent to search for that person. The officers, over Weaver’s objection, ended up searching a van on his property and finding drugs in it. The trial judge granted Weaver’s motion to suppress because he found that the search of the van exceeded the scope of Weaver’s consent. COA, over a dissent, affirmed. The State’s PDR asked: “May police conduct a dog sniff of the exterior of an unoccupied vehicle in the parking lot of a business without the permission of the owner of the business?”

HELD: The trial court did not abuse its discretion in granting Weaver’s motion to suppress. The evidence shows that when the officers’ search for “Bear” ended, they had not observed anything suspicious. Because the trial judge could have determined that Weaver’s consent to search for Bear had ended, the trial court could reasonably find that the officers, without establishing probable cause, were not entitled to search for other purposes unrelated to that of their initial search. The record supports an implicit fact finding that the van was parked in a protected, non-public area of the business premises. The record also supports the trial judge’s legal conclusion that the officers had worn out their welcome and lingered beyond the scope of Weaver’s consent before the initiation of the dog sniff. CCA recognizes that this case is a close call, but it is in the “close call” cases that the need for giving discretion to the trial judge and deferring to his factual findings is greatest, especially when the State must prove positive consent by clear and convincing evidence.

Appellants’ PDRs

Coronado v. State, No. 0644-10 (Tex.Crim.App. 9/14/11); Reversed, remanded (7–2)

CCA granted review to determine whether the videotape procedures in Tex. Code Crim. Proc. art. 38.071 §2, including the use of written interrogatories in lieu of live testimony and cross-examination, satisfy the Sixth Amendment rights of confrontation and cross-examination under the Crawford v. Washington, 541 U.S. 36 (2004), line of cases. In this aggravated-sexual-assault-of-a-child prosecution, COA found no error in the trial court’s decisions to allow cross-examination through written questions only, and to admit the child’s videotaped interviews with a child-abuse forensic examiner instead of requiring live testimony.

HELD: Although CCA agreed that there must be balance between a defendant’s right to confrontation and a societal need to protect fragile and traumatized child victims, that balance cannot constitutionally be struck by the method set out in Article 38.071 § 2. On federal constitutional matters, CCA is obliged to follow the dictates of the U.S. Supreme Court regardless of its own notions. Therefore, COA erroneously held that constitutionally adequate cross-examination could be done using written interrogatories posed by a “neutral” forensic interviewer more than a year after the initial interview.

Alonzo v. State, No. 1494-10 (Tex.Crim.App. 9/14/11); Reversed, remanded (9–0)

Appellant was convicted of manslaughter for the death of a fellow inmate in a prison fight. On appeal, Appellant argued that the trial court erred by instructing the jury that the justification of self-defense does not apply to the lesser-included offense of manslaughter. COA held that the trial court’s instructions were correct and overruled this point of error. COA arrived at its conclusion by first observing, “Texas courts have routinely noted that an individual cannot recklessly act in self-defense.” A person commits murder if he “intentionally or knowingly causes the death of an individual.” Because self-defense is a justification to murder, an acquittal of murder based on self-defense necessarily implies that the jury believed that the defendant intentionally or knowingly caused the death of an individual. Tex. Penal Code §19.04 provides that a person commits manslaughter “if he recklessly causes the death of an individual.” Intentional or knowing conduct is distinct from reckless conduct, and an individual cannot simultaneously act intentionally and recklessly.

HELD: COA erred by holding that a defendant can be convicted for a lesser-included offense when a fact-finder has acquitted the defendant for the greater offense based on a justification defense, and by holding that a defendant cannot raise the justification of self-defense when charged with manslaughter.

Mayes v. State, No. 1633-10 (Tex.Crim.App. 9/14/11); Reversed, remanded (8–0)

A jury found Appellant guilty of the second-degree felony of sexual assault. At the punishment phase, the trial judge properly instructed the jury concerning the punishment range (two to twenty years in prison) and the possibility of community supervision. The jury returned a verdict sentencing Appellant to two years in prison and recommending community supervision. The judge told the jury that its verdict was illegal because the minimum period of community supervision for sexual assault is five years. She told them to deliberate again, and the jury then assessed a sentence of five years and once more recommended community supervision. The issue in this case is whether the initial verdict was in fact illegal. COA held that it was.

HELD: A jury sentence of two years confinement with a recommendation of community supervision is not an illegal or improper verdict.

Pena v. State, No. 0852-10 (Tex.Crim.App. 9/28/11); Reversed, remanded (9–0)

Appellant was indicted for felony possession of marijuana. A jury found him guilty and sentenced him to life imprisonment as a habitual offender. COA affirmed, and rejected Appellant’s argument that Brady v. Maryland, 373 U.S. 83 (1963), applied when the State failed to disclose to Appellant the audio portion of a videotape containing exculpatory statements that he made to police. CCA granted Appellant’s PDR to determine if Brady is applicable.

HELD: Because the audio portion of the videotape is favorable evidence that would be material to Appellant’s case and the State failed to disclose such evidence to Appellant, the State violated Appellant’s constitutional right as expressed in Brady. The State failed to disclose the audio portion when the videotape evidence was initially requested by defense counsel and again failed to disclose it after a second inquiry by the defense that addressed the lack of sound on the copy previously provided. Both prosecutor and defense counsel confirmed that no copy with audio was tendered. Additionally, the audio evidence was unknown to Appellant since the State consistently represented that the videotape contained no audio.

Ex parte Garcia, No. 1658-10 (Tex.Crim.App. 9/14/11); Reversed, remanded (9–0)

Appellee claims her guilty plea to felony theft 23 years ago was involuntary. After a hearing at which Appellee testified, the trial court granted relief. COA disagreed: “the only ‘evidence’ in the record regarding appellee’s claim is her own sworn testimony, which is insufficient by itself.”

HELD: An applicant’s live, sworn testimony can be a basis for upholding a trial court’s decision to grant relief in a Tex. Code Crim. Proc. art. 11.072 habeas proceeding. While sworn pleadings provide an inadequate basis upon which to grant relief in habeas actions, it is beyond dispute that relief may be granted on the basis of testimony that supports the pleadings if that testimony is believed by the habeas court. There is no sound reason to hold this rule inapplicable in the present case where the witness is herself the habeas applicant. CCA need not decide whether Appellee’s testimony was in fact a sufficient basis for upholding the trial court’s decision; nor did CCA decide the State’s laches issue.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Wilson v. State, No. 14-09-01040-CR (Tex.App.—Hous­ton [14th Dist] 4/12/11)

Police officer’s statements during interrogation did not render confession involuntary; officer “never promised any deal for the defendant.” Officer told D: “You got to explain something. . . . It’s the right . . . thing to do . . . then I can call the district attorney and say hey this is what really happened this guy didn’t mean for this stuff to go on. Do you understand, there’s consequences regardless for your actions . . . but it’s either you’re gonna be looked at with the eyes of justice, this guy deserves the worst . . . or the eyes of mercy[.]” Such statements would be unlikely to induce an innocent person to confess to murder.

Additionally, officer’s statements that D’s mother would “lose everything” to assist D’s defense did not render confession involuntary. “Police officers are permitted to suggest that suspects decline legal counsel to ‘save himself or his family the expense’ despite the constitutional requirement that suspects be informed that they have a right to appointed counsel. [T]he inquiry into whether such statements by the police overcame the will of the defendant requires a factual determination.”

St. Clair v. State, 338 S.W.3d 722 (Tex.App.—Amarillo 2011)

Inventory search of vehicle was conducted properly, such that dope found inside purse was admissible, even though officer did not itemize contents of vehicle. “[Officer] testified to searching the vehicle in accordance with departmental policy, that the only items of value found were the purse and the [money] contained in it, and that those items were included in his report. He also described the reasons for conducting the search (i.e., to protect the possessions of the person that owns or controls the vehicle and to avoid liability issues). Furthermore, the policy in question was admitted into evidence. And, [D] did not attack the legitimacy of that particular policy at trial.”

Also, no reasonable alternative to impoundment was shown, even though D told officer that her boyfriend could retrieve the vehicle. “[N]othing within the record illustrates that [her boyfriend] was available at the time, that he would agree to retrieve the vehicle, or that he had a driver’s license. Also missing was evidence that she owned the vehicle[.]”

In re M.A.C., 339 S.W.3d 781 (Tex.App. Eastland 2011)

In juvenile delinquency proceeding, the presence of armed police detective during judge’s entire warning and interview process did not violate procedural requirements governing the admissibility of a child’s statement. M.A.C. contends that the provisions of Tex. Fam. Code §51.095(a)(1)(B)(i) were violated because “[detective] was present during the entire warning and interview process and was armed during this process with his firearm visible at all times. Given [judge’s] testimony that he requested the presence of [detective], we focus our attention to the presence of [detective’s] weapon during the interview process. The critical inquiry is whether or not the weapon prohibition applied to the taking of [D’s] recorded statement. . . . [B]y its express terms, the weapon prohibition applies when the juvenile executes a written statement in the presence of a magistrate.”

Hodson v. State, No. 04-10-00060-CR (Tex.App.—San Antonio 5/11/11)

D was not in custody for Miranda purposes during police interview, when he climbed out of a police station window, because (1) no guard was stationed outside the interview room, (2) D had voluntarily gone to police station, (3) interview began promptly and lasted about an hour, and (4) D waited 26 minutes before he fled.

D’s admission, during police interview, to being present during a robbery and murder did not, by itself, render interview custodial. “Even though a suspect may implicate himself in an offense, unless the circumstances are unique . . . ‘this alone does not trigger custody.’ . . . Here, [officer] testified [that D] admitted to being present during the robbery and murder. Other than this admission, there were no other circumstances present to lead a reasonable person to believe he was under arrest. . . . We hold the trial court correctly concluded [D] was not in custody when he made the statements in question.”

Cooksey v. State, No. 04-10-00424-CR (Tex.App.—San Antonio 5/11/11)

Unfenced backyard deemed “curtilage” because D’s home was in a wooded area and there were no neighbors within several hundred yards. Also, there was an absence of “no trespassing” signs posted on property, the home was not visible from the main road, and D’s backyard and back steps were not visible from the driveway or neighboring properties. Lastly, the back steps on which officer observed potted marijuana plants were physically attached to the home.

D’s written consent to search his property, which was given after officers made an illegal entry into his backyard and observed the marijuana plants, was not voluntary, even though there was no flagrant police misconduct. D did not volunteer his consent but was asked for it, D was not told he could decline consent, and officer testified that D was not free to leave. In addition, the officers failed to reveal to D that they were not legally authorized to be in the backyard.

Crawford v. State, No. 01-10-00559-CR (Tex.App.—Hous­ton [1st Dist] 5/12/11)

RS shown where officer’s in-car computer indicated that the insurance policy covering D’s vehicle had lapsed, despite the undisputed fact that Texas law allows methods other than insurance to satisfy the financial responsibility requirement. “[T]he mere fact that alternate methods exist to satisfy the Transportation Code’s financial responsibility requirement does not render the stop unreasonable. . . . [Officer] could reasonably sus­pect from the fact that the vehicle previously had liability insurance coverage—by far the most common means of satisfying the financial responsibility requirement—that the policy’s lapse meant that it no longer complied with the law. . . . [D] relies on [Gonzalez-Gilando v. State, 306 S.W.3d 893 (Tex.App.—Amarillo 2010, pet. ref’d),] for the proposition that the MDT insurance database cannot support a finding of reasonable suspicion. [However, Gonzalez-Gilando] hinged on the fact that the computer database search result stated that the insurance information was ‘not available’ or the status was ‘undocumented.’”

Kirvin v. State, No. 05-09-00734-CR (Tex.App.—Dallas 5/13/11)

Prosecutor’s comment that D “has never taken responsibility for any of his actions” during punishment stage was not impermissible comment on D’s failure to testify. “[W]e conclude the State’s argument was invited by, and made in response to, [D’s] argument.” D had argued essentially that he sympathized with both victims.

September 2011 SDR – Voice for the Defense Vol. 40, No. 7

Voice for the Defense Volume 40, No. 7 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

Chamber of Commerce of the United States v. Whiting, 131 S. Ct. 1968 (U.S. 2011); Affirmed (5-3)

Business and civil-rights organizations challenged the enforceability of the Legal Arizona Worker’s Act (LAWA) in an Arizona federal district court. They argued that federal law preempted LAWA, which requires Arizona employers to use the federal E-Verify employment verification system and revokes business licenses of those who hire unauthorized workers. The district court upheld the statute. The Ninth Circuit affirmed, holding that LAWA was not preempted explicitly or impliedly by the federal Immigration Reform and Control Act (IRCA). The court reasoned that although IRCA expressly preempts all state and local laws imposing sanctions for hiring or recruiting unauthorized aliens, it excepts licensing laws—like LAWA—from preemptive reach. The court also reasoned that mandating the use of E-Verify is not impliedly preempted by IRCA because Congress did not expressly forbid states from requiring E-Verify participation.

HELD: A law that requires state employers to check the immigration status of job applicants through a federal computer database, although the federal law creating the database makes its use voluntary, and revokes the business license of state companies that hire undocumented workers is not preempted by federal immigration laws.

Fowler v. United States, 131 S. Ct. 2045 (U.S. 2011); Vacated & remanded (7–2)

Fowler shot and killed Horner for trying to interfere with his plan to rob a bank. Horner had approached Fowler’s accomplices as they sat in a stolen car, wearing black clothes and gloves. Fowler, who had stepped out of the car to use cocaine, snuck up behind Horner, grabbed his gun, forced him to get on his knees, and shot him in the back of the head. One of Fowler’s accomplices later implicated him in the murder, and a jury convicted Fowler of killing Horner with the intent to prevent him from communicating information about a federal offense. He was sentenced to life in prison, plus 10 years. Fowler claimed the government failed to prove that a federal investigation would have been likely, and that Horner would have transferred the information to a federal officer or judge. But the Eleventh Circuit affirmed the ruling.

HELD: To prove a criminal violation of the federal witness tampering statute when a defendant allegedly kills a witness, the government must prove that the victim would have provided information regarding a crime to a court or law enforcement officer. “The Government must show that there was a reasonable likelihood that a relevant communication would have been made to a federal officer.”

Camreta v. Greene, 131 S. Ct. 2020 (U.S. 2011); Vacated in part & remanded (7–2)

Sarah Greene filed a lawsuit against Camreta, a caseworker with the Oregon Department of Human Services, and Deputy Sheriff Alford, contending they interviewed her daughter without a warrant, probable cause, or parental consent. The girl’s father, Nimrod Greene, was arrested for allegedly molesting a 7-year-old boy. The boy’s mother told police that Sarah had complained that she “doesn’t like the way Nimrod makes (his daughters) sleep in his bed when he is intoxicated, and she doesn’t like the way he acts when they are sitting in his lap.” After interviewing one of the girls, Camreta concluded that she had been sexually abused and had the girls removed from the home. Nimrod was charged with sexually assaulting the boy and one of his daughters. After a mistrial, he accepted a plea bargain in which he maintained his innocence but admitted there was enough evidence to convict him. The daughter later recanted her statements. A district court judge dismissed the lawsuit. The Ninth Circuit partially reversed, allowing Sarah to pursue her Fourth Amendment claims against both defendants.

HELD: The Court declined to address the Fourth Amendment question. “We conclude that this Court generally may re­view a lower court’s constitutional ruling at the behest of a gov­ernment official granted immunity. But we may not do so in this case for reasons peculiar to it. The case has become moot be­cause the child has grown up and moved across the country, and so will never again be subject to the Oregon in-school interviewing practices whose constitutionality is at issue.”

United States v. Tinklenberg, 131 S. Ct. 2007 (U.S. 2011); Affirmed (8–0)

Tinklenberg’s trial on federal drug and gun charges began 287 days after his arraignment. The district court denied his motion to dismiss the indictment on the ground that the trial violated the 70-day requirement of the Speedy Trial Act (STA), finding that 218 of the days fell within various STA exclusions, leaving 69 nonexcludable days. On Tinklenberg’s appeal from his conviction, the Sixth Circuit agreed that many of the 287 days were excludable, but concluded that 9 days during which three pretrial motions were pending were not, because the motions did not actually cause a delay, or the expectation of delay, of trial. Since these 9 days were sufficient to bring the number of nonexcludable days above 70, the court found a violation of the STA. And given that Tinklenberg had served his prison sentence, it dismissed the indictment with prejudice.

HELD: The time between the filing of a pretrial motion and its disposition is automatically excluded from the deadline for commencing trial under the Speedy Trial Act. The STA “contains no requirement that the filing of a pretrial motion actually caused, or was expected to cause, delay of a trial.”

McNeill v. United States, 131 S. Ct. 2218 (U.S. 2011); Affirmed (9–0)

McNeill was sentenced to 300 months imprisonment after he was convicted of unlawful possession of a firearm and 240 months imprisonment for unlawful possession with intent to distribute 3.1 grams of crack cocaine. A U.S. district court determined McNeill to be an armed career criminal and then departed upward from the U.S. Sentencing Guidelines to sentence McNeill to the maximum sentence applicable. McNeill contends that he is not eligible for sentencing under the Armed Career Criminal Act (ACCA) because the drug-related convictions upon which the district court relied do not qualify as serious drug offenses under the ACCA. The Fourth Circuit COA affirmed the district court.

HELD: A conviction under state law can be treated as a serious drug offense for purposes of a longer sentence under the federal ACCA if the state law violated did not at the time of federal sentencing set a maximum prison term of at least 10 years, but had done so at the time the crime was committed. “A federal sentencing court must determine whether ‘an offense under State law’ is a ‘serious drug offense’ by consulting the ‘maximum term of imprisonment’ applicable to a defendant’s prior state drug offense at the time of the defendant’s conviction for that offense.”

Fifth Circuit

United States v. Garza-Robles, 627 F.3d 161 (5th Cir. 2010)

In prosecution for kidnapping/conspiracy to kidnap in foreign commerce, in violation of 18 U.S.C. §1201, evidence was insufficient to sustain the kidnapping convictions on an “inveigling” theory. Inveigling requires that the victim was lured or enticed by false representations or promises or other deceitful means. Here, the victim well knew that by going to Mexico with one of the defendants, he faced reprisals from the Gulf Cartel for a load of marijuana that his work partner had absconded with. However, the evidence was sufficient to sustain the kidnapping conviction on a theory of non-physical restraint—i.e., the victim’s fear that if he did not go to Mexico with the defendants, his family would be killed. With respect to the conspiracy conviction, there was sufficient evidence that the defendants knew of the conspiracy and were acting in furtherance of that conspiracy both when one defendant transported the victim in foreign commerce to Mexico and when both defendants guarded the victim while he was in captivity in Mexico. It did not matter that the second defendant did not join the conspiracy until after the victim had been transported; joining the conspiracy even after the transportation creates criminal responsibility for the prior acts.

United States v. Morin, 627 F.3d 985 (5th Cir. 2010)

(1) In drug prosecution, although district court committed no error in admitting some background-type testimony from Border Patrol and DEA agents, it plainly erred in admitting other testimony that crossed over the line into impermissible drug-courier-profile evidence or impermissible evidence on the ultimate issue of knowledge. However, these errors did not require reversal on plain-error review because the defendant failed to show a reasonable probability of a different outcome at trial but for the erroneously admitted evidence. The Fifth Circuit “again ‘pause[d] to caution that it is time for our able trial judges to rein in this practice’ of permitting prosecutors to rely on opinion testimony that is unacceptable profile evidence.”

(2) It was improper for prosecutor to ask defendant, on cross-examination at trial, “Do you know or do you call other drug dealers?” because there was no factual predicate laid that defendant had made calls to drug dealers. However, when viewed in the context of the proceedings as a whole and the totality of the evidence against defendant, this isolated question did not affect the jury’s verdict and hence did not require reversal on plain-error review.

United States v. Ibarra-Luna, 628 F.3d 712 (5th Cir. 2010)

In sentencing defendant, the district court erred in applying an 8-level “aggravated felony” enhancement under USSG §2L1.2(b)(1)(C), rather than a 4-level “felony” enhancement under USSG §2L1.2(b)(1)(D), because defendant’s conviction for delivery could have been based on an offer to sell. Therefore, the correct Guideline range was 6 to 12 months, not 12 to 18 months. Moreover, this error was not harmless, even though the district court ultimately imposed a 36-month sentence based on defendant’s prior murder conviction, which the district court believed had been sentenced too leniently. A preserved error in the calculation of the Guidelines is harmless only if the government shows that the court (1) would have imposed the same sentence had it not made the error and (2) would have done so for the same reasons it gave at the prior sentencing. The government did not clear this high hurdle; the Fifth Circuit vacated defendant’s sentence and remanded for resentencing.

Tharpe v. Thaler, 628 F.3d 719 (5th Cir. 2010)

With respect to Texas state defendant’s challenges to his deferred adjudication order, the AEDPA 1-year statute of limitations began to run upon that order’s becoming final, not upon the date that the subsequent adjudication of guilt and imposition of sentence became final. The Fifth Circuit’s prior decision so holding, Caldwell v. Dretke, 429 F.3d 521 (5th Cir. 2005), was still good law as applied to this case and was not overruled by Burton v. Stewart, 549 U.S. 147 (2007).

United States v. Bishop, 629 F.3d 462 (5th Cir. 2010)

(1) Post-indictment delay in trying defendant on charges of making false statements in tax returns did not violate defendant’s constitutional right to a speedy trial. Because the delay was less than 5 years, it was not presumptively prejudicial in and of itself. Nor could the 6-year pre-indictment delay be factored into the analysis; pre-indictment delay is analyzable under the Due Process Clause, not the Speedy Trial Clause, and defendant waived her claim of pre-indictment delay by failing to move for dismissal on that basis. Examining all the factors mandated under Barker v. Wingo, 407 U.S. 514 (1972), the Fifth Circuit found that these did not, even in combination, create a presumption of prejudice. Because defendant did not demonstrate any actual prejudice, her speedy trial claim failed.

(2) District court did not err in denying defendant’s motion for a new trial without holding a hearing to examine her ineffective assistance of counsel (IAC) claims on the merits; although a defendant may raise IAC claims in a motion for a new trial, a post-conviction motion under 28 U.S.C. §2255 is the preferred vehicle for raising IAC claims. Here, in light of the significant factual issues necessary to the IAC claim, it was not an abuse of the court’s discretion to deny the motion for new trial in favor of allowing defendant to raise those issues in §2255 proceedings. It was within the court’s discretion to decline to prolong its original proceedings to consider matters that would be better raised collaterally.

United States v. Rubio, 629 F.3d 490 (5th Cir. 2010)

District court did not err in assigning criminal history points to defendant’s prior uncounseled misdemeanor convictions, notwithstanding defendant’s claim that he was improperly denied his Sixth Amendment right to counsel on those convictions. The allocation of the burden of proof on such a claim is dictated by the law of the state where the conviction was sustained, and Texas law placed the burden on defendant to prove that he did not validly waive his right to counsel during plea negotiations. Defendant did not carry that burden; there was an indication in the record that a waiver of counsel occurred, although the record did not indicate exactly when the waiver occurred. Moreover, although defendant testified that he was not offered counsel, a defendant must do more than this when the right to counsel was firmly established in the state.

Charles v. Thaler, 629 F.3d 494 (5th Cir. 2011)

Defendant, sentenced to an aggregate term of 40 years’ imprisonment for offenses committed when he was 14 years old, was not entitled to federal habeas relief on his claims that he received IAC in his punishment trial. The state court did not unreasonably apply federal law in concluding that defendant did not receive remediable IAC by counsel’s failure to object to two portions of the prosecutor’s closing argument, by counsel’s failure to object to two portions of a prosecution witness’ testimony, by counsel’s failure to object to a question by the prosecutor, or by counsel’s elicitation of prejudicial information from defendant and failure to object to the prosecutor’s cross-examination of defendant on the same subject.

Arnold v. Thaler, 630 F.3d 367 (5th Cir. 2011)

Where Texas state defendant alleged ineffective assistance in his trial counsel’s failure to inform him about favorable plea offers, the federal district court clearly erred in finding that defendant had never alleged that he would have accepted the plea offers had they been communicated to him. To the contrary, in his habeas petition and in a supporting affidavit, defendant alleged that he would have accepted those offers. Along the way, the Fifth Circuit rejected a requirement that in order to show prejudice, the defendant must show not only a reasonable probability that he would have accepted the plea offer, but also a reasonable probability that the trial court would have approved and accepted the plea offer. Because the district court’s ruling rested on its clearly erroneous fact-finding, and because the state court made no findings on whether defendant would have accepted the plea offer, the Fifth Circuit reversed and remanded the judgment.

McAfee v. Thaler, 630 F.3d 383 (5th Cir. 2011)

Texas state defendant, convicted of aggravated robbery, was not entitled to federal habeas relief on his allegations (1) that he received IAC with respect to his motion for new trial, and (2) that he did not receive a fair hearing on his motion for new trial. The Fifth Circuit, agreeing with other circuits and CCA, held that there is a Sixth Amendment right to assistance of counsel on a motion for new trial during the post-trial, pre-appeal period in Texas because it is a critical stage of the proceedings. Disagreeing with the state court, the Fifth Circuit found that trial counsel’s performance with respect to the motion for a new trial was deficient; however, although the Fifth Circuit also found that “this [was] arguably a close case on prejudice,” it ultimately could not find unreasonable the state court’s finding that defendant was not prejudiced by any deficiency. Finally, the failure to appoint different counsel for the hearing on the new-trial motion did not warrant federal habeas relief because the prejudice inquiry was the same as for the IAC question.

United States v. Shabazz, 633 F.3d 342 (5th Cir. 2011)

Pursuant to the April 2003 amendment made by the PROTECT Act, 18 U.S.C. §3583(e)(3) no longer requires aggregation of the terms of imprisonment imposed upon multiple revocations of the same term of supervised release; rather, the revocation maximum set out in §3583(e)(3) is a per-revocation maximum. Therefore, it did not violate § 3583(e)(3) for defendant to be sentenced to a 12-month revocation sentence, even though he had been sentenced to 24 months on an earlier revocation of the same supervised release term, because defendant faced up to 2 years’ imprisonment on each revocation.

Court of Criminal Appeals

Writ of Mandamus

Bowen v. Carnes, __S.W.3d__ (Tex.Crim.App. Nos. 76,519-20, 6/15/11); Granted (8-0)

Relators Kevin and Jennifer Bowen were charged by separate indictments with the capital murder of Jennifer’s ex-husband. Both relators retained Phillips to represent them. Before trial, Ballenger, a jailhouse informant, gave a statement to police in which he detailed what he asserts Kevin told him with respect to this offense. Ballenger had also retained Phillips to defend him against unrelated charges of capital murder, murder, and aggravated assault. As of February 2010, when the State first revealed Ballenger’s statement to Phillips, Ballenger had already entered a negotiated guilty plea to murder, but his sentencing had not taken place. In April 2010, the State filed its motion to disqualify Phillips from representing relators. The State claimed, inter alia, that in the very likely event that the State should call Ballenger to testify against relators, Phillips would be put in the compromising position of either having to vigorously attack Ballenger’s credibility on cross-examination, in relators’ interest, or to refrain from doing so, which would be in Ballenger’s best interest but detrimental to relators’ interest.

HELD: CCA found no actual or serious potential for conflict of interest; this overrides the concern about the public perception of fairness that can defeat the Sixth Amendment presumption in favor of retained counsel. CCA had questioned whether, under the circumstances, respondent abused his discretion to deprive relators of their Sixth Amendment right to counsel of choice on the sole basis of his concern with the public’s perception of fairness.

Writ of Habeas Corpus

Ex parte Robbins, __S.W.3d__ (Tex.Crim.App. No. AP-76,464, 6/29/11); Denied (5–4)

Applicant was convicted and sentenced to imprisonment for life for the capital murder of his girlfriend’s child, Tristen. The State’s case largely depended on the expert opinion of Dr. Moore, the medical examiner who performed the autopsy and testified that Tristen died from asphyxia due to compression of the chest and abdomen. His conviction was affirmed by COA and CCA. Since that time, Moore has re-evaluated her opinion and has stated that she can no longer stand by her trial testimony. Applicant filed this writ, alleging actual innocence and false testimony (due process) claims. On the actual innocence claim, the convicting court concluded that applicant failed to meet the burden of showing his actual innocence and recommended that CCA deny relief on this basis.

HELD: CCA agreed with the convicting court and found support in the record. Likewise, the record does not support that Moore’s trial testimony has been proven false. Although Moore played an important role in the State’s case as the only trial witness to point to a specific cause of death, Moore’s trial testimony is not false just because her re-evaluation of the evidence has resulted in a different, “undetermined” opinion, especially when neither she nor any other medical expert can exclude her original opinion as the possible cause and manner of death.

State’s PDRs

Lopez v. State, 343 S.W.3d 137 (Tex.Crim.App. 2011); Reversed & remanded (7–0)

Appellant was convicted of aggravated sexual assault of a child and sentenced to 50 years in prison. On direct appeal, COA reversed appellant’s conviction based on a finding of ineffective assistance of counsel, and remanded the case to the trial court.

HELD: Because the record is silent as to why counsel failed to object to the outcry-witness testimony, CCA could not fairly evaluate the merits of such a serious allegation. The record could have been supplemented through a hearing on a motion for new trial, but appellant did not produce additional information about trial counsel’s reasons for allowing all three outcry witnesses to give similar testimony about the same events or for allowing opinion testimony about the credibility of the complainant, both without objection. Appellant failed to meet his burden under the first prong of Strickland.

State v. Chupik, 343 S.W.3d 144 (Tex.Crim.App. 2011); Reversed & remanded (7–2)

Officer stopped appellee’s vehicle one night after seeing it weave. Officer asked appellee some questions, then gave him three field-sobriety tests, the first of which was an HGN test. After the tests, appellee was arrested and subsequently charged with DWI. At a hearing on appellee’s pretrial motion to suppress evidence, he argued that the stop and the initial questions violated his federal constitutional rights. The trial court ruled that the stop and the initial questions were permissible, but made writ­ten findings of fact and conclusions of law that appellee was “under arrest at the conclusion of the administration of the HGN test,” and was thereafter “subjected to custodial interrogation without having had his Miranda warnings recited to him.” The trial court therefore suppressed “the answers to all questions asked of [appellee] after the administration of the [HGN test] . . . exclusive of his response to the question as to whether he would give a breath or blood sample.” The trial court also concluded that the evidence suppressed “is not of substantial importance relative to the quantity and quality of other evidence the State has available[.]” The State appealed under Code Crim. Proc. art. 44.01(a)(5), and COA affirmed. CCA granted review to determine whether, in a State’s appeal of a pretrial order to suppress evidence, the record must reflect the evidence that was suppressed.

HELD: The record need not reflect the suppressed evidence for an appellate court to consider a State’s interlocutory appeal under Article 44.01(a)(5). It is sufficient that the prosecutor certifies the suppressed evidence is of substantial importance in the case.

Gear v. State, 340 S.W.3d 743 (Tex.Crim.App. 2011); Reversed COA, affirmed trial court (5–4)

Appellant was convicted in a bench trial of attempted burglary of a habitation. COA decided the evidence is legally insufficient to support his conviction because it would have been unreasonable for a fact finder to infer that he “intended to commit a felony, theft, or an assault inside the house.”

HELD: A fact finder could reasonably find beyond a reasonable doubt that recently unemployed appellant, with about one dollar in his pocket, intended to commit theft inside complainant’s home when appellant attempted to enter the home through the window he had just broken and ran when interrupted by complainant, and that appellant gave conflicting and implausible explanations. Jackson v. Virginia, 443 U.S. 307 (1979). The cumulative force of all the incriminating circumstances is sufficient to support his conviction.

Limon v. State, 340 S.W.3d 753 (Tex.Crim.App. 2011); Reversed & remanded (8–1)

Appellant was convicted of deadly conduct and sentenced to three years’ imprisonment. On appeal, he challenged the trial court’s denial of his motion to suppress evidence, and COA reversed. CCA granted the State’s PDR to decide the following: (1) Is it reasonable for police to believe that a person who answers the door of a residence in the middle of the night has authority to invite police to enter, or must police inquire as to that person’s authority? (2) Does a teenager lack authority to invite officers inside a residence simply because he is a minor? (3) Does Illinois v. Rodriguez, 497 U.S. 177 (1990), require officers to make further inquiry when faced with ambiguity regarding the authority of a third party to consent to an entry or search?

HELD: The Fourth Amendment does not prohibit a minor from consenting to entry when the record shows the officer’s belief in the child’s authority to consent is reasonable under the facts known to the officer. Georgia v. Randolph, 547 U.S. 103 (2006). The following factors support the reasonableness of officer’s belief. First, the teenager opened the door by himself in response to officer’s knock. Second, viewing the evidence in the light most favorable to its ruling, the trial court reasonably could have inferred from officer’s testimony that the teenager appeared to be of significant maturity, if not a young adult. Third, the teenager consented to mere entry through the front door, as opposed to entry or search of less public areas of the house. Fourth, officer’s announced purpose was to conduct an emergency public-safety function. It is an even more widely shared social expectation that a teenager would have authority to permit entry for an emergency public-safety function than, for example, entry for a salesperson. Finally, CCA considered the time of entry: 2:00 a.m. Accordingly, CCA did not address COA’s formulation of the rule under Rodriguez because there is no ambiguity with respect to the teenager’s apparent authority.

Sorrells v. State, 343 S.W.3d 152 (Tex.Crim.App. 2011); Reversed & remanded (9–0)

A jury convicted appellant of aggravated robbery pursuant to the following: One night in 2005, Reynolds waited outside a nightclub for her boyfriend, Rice. Reynolds testified that she leaned against a car parked on the street. Appellant emerged from the club wearing a black and gray sweater and a black jacket. He told Reynolds to “get the f— off the car” because she was damaging it. With gun in hand, appellant struck Reynolds in the head, and the two began scuffling. Shortly thereafter, Rice arrived. As Rice approached, appellant turned, pulled back the slide of the gun, and said, “[D]o you have a problem with me, too?” Rice punched appellant, and the two started fighting. A man wearing a blue jacket then ran up to Rice and punched him. Rice fell to the ground and Reynolds went for help. When she returned, the altercation had ended. Rice told her that his jewelry had been stolen.

COA found that the evidence was insufficient to support a conviction of aggravated robbery and reformed the judgment to reflect conviction of the lesser-included offense of assault by threat. COA’s opinion was based on the fact that appellant’s motive in the fight did not seem to be premised on theft. CCA granted the State’s PDR on three grounds: (1) whether COA properly reviewed the sufficiency of the evidence; (2) whether COA properly applied the law of parties; and (3) in the alternative, whether COA properly reformed the judgment.

HELD: COA erred in its review of the sufficiency of the evidence; two witnesses testified that the assault and theft occurred simultaneously. CCA did not address the State’s second and third grounds.

Barshaw v. State, 342 S.W.3d 91 (Tex.Crim.App. 2011); Reversed & remanded (9–0)

A jury found appellant guilty of sexual assault, and the court sentenced him to 12 years’ imprisonment. COA reversed and remanded for a new trial because the trial court permitted an expert witness to testify that the class of persons to which complainant belongs tends to be truthful. During trial, the State called Barthlow, a mental-retardation psychologist who had worked with complainant. When asked by the prosecution about the ability of people with mental retardation to fabricate or make up stories, Barthlow said, “It’s been my experience that folks with mental retardation can be painfully honest, really.” Defense counsel objected that this testimony was inadmissible. The court overruled the objection, and Barthlow continued: “I’m not going to say that it would never happen. I mean, anybody is capable of making up something, but it’s very simplistic in nature . . . it would be like a lie a child would tell.” CCA granted the State’s PDR to determine whether COA erroneously reviewed only a portion of the record and substituted its judgment as to the credibility of the witnesses for that of the fact finder and thus tainted the harm analysis.

HELD: Expert testimony that a particular class of persons to which the victim belongs is truthful is not expert testimony of the kind that will assist the jury, as is required by Tex. R. Evid. 702, and is inadmissible. COA properly found the trial court abused its discretion by overruling appellant’s objection and admitting the testimony. However, COA also held that the error was harmful. CCA remanded to COA for a full harm analysis.

State & Court’s PDR

State v. Jordan, 342 S.W.3d 565 (Tex.Crim.App. 2011); Reversed & remanded (9–0)

Appellee was charged by information with misdemeanor DWI upon the following events: A municipal court magistrate was presented with an Affidavit for Search Warrant in the early morning of June 6, 2008. In the affidavit, Police Sergeant Suitt deposed that he had “good reason to believe that heretofore, on or about the 6th day of June, 2008 . . . Jordan . . . did then and there commit [the offense of DWI].” Suitt then deposed that he had probable cause for this belief by reason of certain facts. The facts listed by Suitt comprised observations by fellow police officers that the appellee drove the wrong way on a one-way street and exhibited various symptoms of intoxication, but the affidavit did not state specifically that the observations were made on June 6th. The affidavit was subscribed and sworn to before the magistrate on June 6th, and the magistrate issued a Search Warrant for Blood at 3:54 a.m. on that date. Prior to trial, appellee moved to suppress evidence obtained upon execution of the warrant for seizure of his blood. The trial court granted his motion and, upon the State’s interlocutory appeal, COA affirmed.

HELD: COA’s analysis of the warrant affidavit failed to consider reasonable inferences that provided a substantial basis for the magistrate’s determination of probable cause. COA separately analyzed the affiant’s introductory statement and the subsequent description of facts, instead of considering the totality of the circumstances contained within the four corners of the affidavit. It is true, as the court stated, that “a police officer’s conclusion that a crime has been committed does not give a substantial basis for determining that probable cause exists.” For that proposition, COA relied on caselaw in which the problem was “bare bones” affidavits providing only conclusory statements that an offense had been committed and evidence would be found at a particular location.

Appellants’ PDRs

Phillips v. State, __S.W.3d__ (Tex.Crim.App. No. 1402-09, 6/15/11); Reversed & remanded (5–3)

Appellant was convicted of 12 counts of sexual offenses that occurred in 1982 and 1983. However, prosecution under the 2007 indictment charging appellant was absolutely barred by the statute of limitations in 1993. These charges could not be resurrected by a 1997 statute extending the statute of limitations for sexual offenses. The trial judge, prosecution, defense, and COA failed to recognize this constitutional ex post facto violation. CCA granted appellant’s PDR because this is an important constitutional issue that will undoubtedly recur given the even more recent statutory elimination of the statute of limitations for some sexual offenses. Although the State Prosecuting Attorney agrees that the statute of limitations had run before appellant’s indictment, she argues that appellant failed to preserve this issue for appeal because he did not object in trial court.

HELD: An absolute statute-of-limitations bar is not forfeited by the failure to raise it in trial court.

Young v. State, 341 S.W.3d 417 (Tex.Crim.App. 2011); Affirmed (7–1)

Appellant, a registered sex offender, moved to a new residence but failed to notify authorities as required by statute. The two-paragraph indictment alleged that appellant (1) failed to notify the county sheriff’s office seven days prior to changing his address; or (2) failed to provide the sheriff’s office with proof of identity and residence within seven days after the move. At trial, the jury charge tracked the disjunctive wording of the indictment and permitted a conviction if the jury unanimously found that appellant failed to report his change of address. The jury charge did not require the jury to be unanimous on whether appellant failed to report before or after moving. COA affirmed appellant’s conviction, holding that the trial judge did not err in his jury charge.

HELD: COA correctly decided that unanimity was required as to the failure to report a change of appellant’s address, but not required as to whether appellant committed the offense by failing to report before the move, after it, or both. Appellant was indicted for a single offense of failing to report a change of address, and the State alleged he committed it in one of two alternative ways. The jury was charged by the trial judge in the disjunctive regarding these alternative manners and means.

Fleming v. State, 341 S.W.3d 415 (Tex.Crim.App. 2011); Vacated & remanded (8–0)

Appellant was convicted of aggravated sexual assault under Tex. Penal Code §22.021(a)(1)(B)(iii), (2)(B), Texas’s strict-liability child-sexual-assault statute. Before trial, appellant filed a motion to quash the indictment, challenging the constitutionality of the statute under the Due Process Clause to the U.S. Constitution and the Texas Constitution’s due course of law provision. Appellant claimed that the statute is unconstitutional because it does not have a mens rea requirement and does not permit the affirmative defense of mistake of fact. The trial judge denied the motion. Following his no contest plea and sentencing, appellant appealed the trial judge’s ruling. COA held that under the Due Process Clause, the statute is constitutional. COA declined to address appellant’s due course of law claim, holding that appellant failed to preserve the issue for appeal because he failed to assert or brief “an argument that the due course of law analysis under the Texas constitution is different or provides greater protections” than the Due Process Clause.

HELD: CCA’s review of appellant’s motion revealed that this conclusion was improvident. With respect to the constitutionality of Texas’s strict-liability child-sexual-assault statute, an issue never decided by the U.S. Supreme Court, appellant briefed the issue under both constitutional provisions, describing the pertinent history of each constitutional provision in support of his specific argument. CCA remanded COA’s judgment so COA can reconsider appellant’s contention that the statute violates Texas’ due course of law provision. In doing so, COA will be required to decide the scope of the protections afforded by Texas’ due course of law provision as it applies in this case. Thus, COA must discern whether the provision, based on appellant’s argument and supporting authority, provides greater, lesser, or the same protections as its federal analog.

State v. Blackshere, __S.W.3d__ (Tex.Crim.App. No. 0039-09, 6/22/11); Reversed & remanded (9–0)

This case involves a State’s appeal from a trial court’s orders suppressing evidence and terminating a prosecution. Appellee was indicted for possession of meth. More than two years passed. Four days before trial, a police detective discovered that the meth was missing from the police department’s evidence vault. Appellee filed a motion to suppress, arguing that evidence related to the meth should be suppressed because the State violated certain constitutional and statutory provisions by misplacing the meth. The trial court decided to “carry” the motion to suppress, so that it could rule after hearing the evidence presented at trial. The trial began, and after the testimony of the first six witnesses, the State said it had presented all its evidence relevant to appellee’s motion to suppress. The court made an oral ruling that it was suppressing the evidence and dismissing the jury, but that it was not dismissing the case or directing a verdict of acquittal. The discussion after the ruling shows that there was confusion about the ruling and the State’s ability to appeal. There is little doubt that the trial court did not intend to acquit appellee, in such terms. The parties and the trial court explicitly discussed avoiding the term “directed verdict of acquittal” to preserve the State’s ability to appeal.

HELD: The intent and form of the trial court’s actions cannot trump the substance of the protections afforded by the Double Jeopardy Clause. The trial court ultimately terminated the prosecution based on its finding that the State’s remaining evidence was legally insufficient to convict appellee. Not only did the trial court’s oral ruling imply that it had made such a finding, but its written order and conclusions of law were explicit. The trial court’s actions were functionally an acquittal for purposes of double jeopardy. Whether there was an underlying error in suppressing evidence is irrelevant; such an underlying error cannot be reviewed after an acquittal for insufficient evidence.

Armstrong v. State, 340 S.W.3d 759 (Tex.Crim.App. 2011); Reversed & remanded (9–0)

Appellant was charged with aggravated assault. The judgment adjudicating appellant guilty left blank the spaces for court costs and restitution but stated that appellant should pay any court costs “as ordered by the Court above.” Subsequently, the clerk’s office issued a bill of costs, which stated that appellant owed $1,900 in attorney fees and $358 in miscellaneous court costs. On appeal, appellant contended that there is insufficient evidence to support the attorney fees as set forth in this bill. COA affirmed the trial court, declining to address appellant’s insufficient evidence argument because it involved a civil law matter.

HELD: Because appellant’s claim arises over the enforcement of statutes governed by the Texas Code of Criminal Procedure, the pertinent litigation is a criminal law matter. Appellant challenged the assessment of costs mandated by the clerk’s bill of costs, which is issued pursuant to Tex. Code Crim. Proc. art. 103.001. And in arguing insufficient evidence, appellant relied on the critical requirements of Tex. Code Crim. Proc. art. 26.05(g) (i.e., that he does not have the financial resources to offset the costs of the legal services provided).

York v. State, 342 S.W.3d 528 (Tex.Crim.App. 2011); Affirmed (9–0)

Appellant was prosecuted for failure to identify and possession of meth. He has two grounds for review: First, did the arresting officer have reasonable suspicion to detain appellant, who was asleep in a car, with the lights on and engine running, parked on a sidewalk in front of a robbery-prone gas station in the early morning? Second, does the doctrine of collateral estoppel require suppression of evidence in a subsequent prosecution when that evidence was suppressed in an earlier prosecution arising from the same facts?

HELD: The circumstances were sufficient to give rise to a reasonable suspicion that would permit an investigative detention. Second, the State is not barred by the Double Jeopardy Clause from relitigating a suppression issue that was not an ultimate fact in the first prosecution and was not an ultimate fact in the second prosecution. In the first prosecution, the legality of the detention was an ultimate issue. That status as an ultimate issue does not help appellant because of the lesser burden of proof with respect to suppression hearings. If, on the other hand, he relies on the county court at law’s resolution of the detention issue solely as a suppression issue—so that the burden of proof in the two prosecutions is the same—then CCA would be confronted with an issue that was not an ultimate issue in either prosecution. To accord collateral-estoppel protection to such an issue, under the rubric of double jeopardy, would stray far from the theoretical groundings of the Double Jeopardy Clause and Supreme Court precedence.

Garza v. State, __S.W.3d__ (Tex.Crim.App. No. PD-0480-10, 6/29/11); Affirmed (8–0)

Appellant was a computer technician at a private school. Through a school program, students purchased laptops from Hewlett Packard, which provided a four-year warranty for each computer. The school arranged for repairs of the laptops at the on-campus C.A.V.E. (Computer Audio Visual Equipment), where appellant worked. After several years, school officials discovered that replacement parts for the laptops were being stockpiled at the C.A.V.E. The officials contacted Hewlett Packard, which sent Leahy, an investigator who worked for Hewlett Packard Global Security Group, to investigate allegations of warranty fraud. After investigation, appellant and a co-actor, whose company had been hired as the school’s Hewlett Packard warranty-repair provider, were arrested and indicted for theft.

This appeal involved appellant’s conviction for theft from alleged owner, Leahy. Appellant challenged COA’s holding that in an aggregated-theft case under Tex. Penal Code §31.09, the State is not required to prove that the special owner was an employee of the corporation at the time of each theft. Appellant argues that the State “is obliged to provide full proof of ownership for at least enough of the thefts to meet the alleged value,” and that it is the State’s burden “to provide full proof beyond a reasonable doubt of enough acts of theft to meet the value alleged in the indictment.”

HELD: Each individual theft is an element of the aggregated theft described by § 31.09; while the name of the owner is not a substantive element of theft, the State is required to prove, beyond a reasonable doubt, that the person alleged in the indictment as the owner is the same person shown by the evi­dence presented at trial to be the owner. Hewlett Packard was the owner of the stolen property at the time of each theft, and, although alleged to be a special owner, Leahy functioned as Hewlett Packard’s agent when he testified about the total loss.

Martinez v. State, __S.W.3d__ (Tex.Crim.App. No. PD-1238/9-10, 6/29/11); Reversed & remanded (8–1)

In two cases stemming from the same incident, the State charged appellant with DWI and possession of marijuana. Appellant filed a motion to suppress based on claims that the initial investigatory detention was without probable cause or reasonable suspicion, and that the subsequent arrest and search of appellant’s person and vehicle was without probable cause.

The facts are undisputed. One night an anonymous caller reported that a male driving a blue Ford pickup truck put two bicycles in the back of the truck and drove westbound. Police Officer Hurley was on patrol in the area and spotted a green Ford F-250 truck that “looked like it was blue” approximately three quarters of a mile from the reported incident. He began following the truck and called dispatch to confirm the vehicle description. He trailed the truck for four blocks without observing any traffic violations, then stopped the vehicle. As he walked to driver’s side of the truck, Officer Hurley noticed, in the truck bed, two bicycles that were not visible to him until he approached the truck. While speaking with appellant, who was the truck’s driver, Hurley detected a strong odor of alcohol and noticed that appellant had bloodshot, glassy eyes.

HELD: Based on a review of the totality of the circumstances, including the unknown reliability of the anonymous caller and the lack of specific, articulable facts suggesting that criminal activity was afoot, Officer Hurley’s investigatory detention of appellant was not supported by reasonable suspicion.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Kuykendall v. State, 335 S.W.3d 429 (Tex. App.—Beau­mont 2011)

That D was observed to be the only occupant in a stationary vehicle justified (in part) officer’s approach of D pursuant to officer’s “community caretaking function,” apparently under the assumption that when one is alone in their vehicle they’re more likely to need community caretaking.

Dixon v. State, No. 01-09-00340-CR, 2011 WL 839689 (Tex. App.—Houston [1st Dist] 3/10/11)

Complainant’s statement, made one hour after D chased her in his vehicle, deemed an excited utterance. “[D] suggests that the passage of one hour between the event and the statement is too long for an excited utterance in light of evidence that in that time [complainant] left the scene of the offense, walked home, and made two 911 calls to the police. . . . Based on [officer’s] description of [complainant’s] emotional state, the one hour time lapse does not make the statement inadmissible[.]”

Kennedy v. State, 338 S.W.3d 84 (Tex. App.—Austin 2011)

Officer’s affidavit for search warrant deemed insufficient; although affidavit described weapons that were recovered from D’s car on the night of the shooting, and that another witness had observed weapons in a “bunker” structure located on D’s property, nothing in the affidavit indicated that any of the weapons were illegal. Moreover, statements in affidavit by law-enforcement personnel that they believed D was likely in possession of statutorily prohibited weapons were too conclusory to establish a basis for PC.

Salinas v. State, No. 14-09-00395-CR, 2011 WL 903984 (Tex. App.—Houston [14th Dist] 3/17/11)

In an issue of virtual first impression in Texas, court definitively held that the Fifth Amendment has no applicability to pre-arrest, pre-Miranda silence used as substantive evidence in cases in which D does not testify. “The federal courts of appeals are split on the issue. The First, Sixth, Seventh, and Tenth Circuits have held that pre-arrest, pre-Miranda silence is not admissible as substantive evidence of guilt. . . . We agree with the Fifth, Ninth, and Eleventh Circuits. . . . A plain reading of the [Fifth] amendment reveals that only government compulsion triggers its protections against self-incrimination.”

Branch v. State, 335 S.W.3d 893 (Tex. App.—Austin 2011)

The eight minutes it took for a narcotics-detection dog to arrive at the scene did not prolong initial traffic stop beyond the time reasonably required to complete the mission of the stop. Importantly, the dog arrived before officer finished normal procedures for a traffic stop.

Deemed improper were prosecutor’s comments during closing argument of drug trial that D would “be done on life” in seven or eight years if he exhibited good conduct, that D would “never” serve as many as 15 or 20 years if given a life sentence, and that D “would be out even quicker” if the jury gave him a 30- or 40-year sentence. “The gravamen of the uncorrected statements was that the effective maximum period of imprisonment that the jury could impose was only seven or eight years and that the only way the jury could guarantee that [D] served that long was to impose a life sentence. . . . [A] prosecutor acts under the authority of the State and brings a great deal of expertise to a criminal trial. The prosecutor here, speaking from such a place of authority, purported to explain the sentencing provisions in the jury charge when he made the inaccurate statements. . . . It is also significant that the jury heard the inaccurate statements immediately before retiring to deliberate.” Thus, defense attorneys’ deficient performance in failing to object to prosecutor’s statements prejudiced D for purposes of an IAC claim; if D’s attorneys had objected to prosecutor’s improper statements, the trial court could have corrected the misstatements and instructed the jury to disregard them.

Burton v. State, 339 S.W.3d 349 (Tex. App.—Texarkana 2011)

Strong order of ammonia did not give rise to exigent circumstances to justify warrantless entry into residence, even though ammonia is used to produce meth, and despite the propensity for explosion associated therewith.

Ramirez v. State, No. 04-10-00679-CR, 2011 WL 1304895 (Tex. App.—San Antonio 4/6/11)

“Texas law does not require that the affidavit be attached to the warrant at the time of the search.”

Gonzales v. State, 342 S.W.3d 151 (Tex. App.—Eastland 2011)

Officer who arrested D for DWI was motivated primarily by his community caretaking duties, even though officer was assigned to DWI task force and activated his emergency lights, because officer became concerned when he observed a vehicle pulled over on a lightly traveled highway around 1:00 a.m. “[Officer] stated that he activated his lights to alert other drivers on the road and to let the driver of the vehicle know that he was not ‘some bad guy.’ . . . The location where [D] was stopped was inside the city limits, but traffic was minimal in that area at that time of night. There were no houses nearby and only a few businesses in the area. If [D] had needed assistance, he would have had difficulty finding anyone other than [officer] to help him at that time in that location.”

Elizondo v. State, 338 S.W.3d 206 (Tex. App.—Amarillo 2011)

Written confession signed by D at store was not obtained as a result of “custodial interrogation,” despite D’s argument that it has become common practice for retailers to obtain written confession from shoplifters without providing Miranda warnings, and also common practice for prosecutors to use those statements as evidence in theft prosecutions. “We cannot agree [that] the general awareness of police or prosecutors that retailers take non-Mirandized statements from shoplifters, even if accompanied by a common practice to obtain and introduce the statements at trial, renders the store employees the agents of law enforcement when they take the statements.”

July/August 2011 SDR – Voice for the Defense Vol. 40, No. 6

Voice for the Defense Volume 40, No. 6 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

Sossamon v. Texas, 131 S. Ct. 1651 (U.S. 2011); Affirmed: Thomas (6–2)

Texas inmate Harvey Sossamon sued the State of Texas and various state officials in their official and individual capacities in a Texas federal district court. In part, he argued he was denied access to the prison’s chapel and religious services in violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA). The district court dismissed the claim. The Fifth Circuit held that Sossamon could not sue Texas officials in their individual capacities under RLUIPA.

HELD: A person cannot sue a state official in his individual capacity for damages under RLUIPA. “States, in accepting federal funding, do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA.” Justice Sotomayor dissented: “Our precedents make clear that the phrase ‘appropriate relief’ includes monetary relief.”

Bobby v. Mitts, 131 S. Ct. 1762 (U.S. 2011); Reversed: Per curiam

Harry Mitts drank until he became intoxicated and then shot and killed an African-American man while speaking racial epithets. During the police shoot-out that followed, Mitts shot and killed one police officer and wounded two before being apprehended. At trial, Mitts did not contest the evidence that he had killed two men, but he instead attempted to establish that he was too intoxicated to form the required intent to kill. After a penalty hearing, the jury recommended the death penalty on both aggravated murder counts and terms of imprisonment for the attempted murders. The trial court sentenced Mitts to death for the aggravated murders and to terms of imprisonment for the attempted murders.

COA affirmed the convictions and sentences, and the Ohio Supreme Court affirmed and denied rehearing, ruling that the trial court should have instructed the jury to merge duplicative death penalty specifications, but holding that the error did not influence the jury and was resolved by re-weighing on appeal. Mitts filed a petition for a writ of habeas corpus. A federal judge affirmed the sentence, but the Sixth Circuit decided to vacate.

HELD: The jury instructions given at the penalty phase of trial were in line with clearly established law for purposes of the Antiterrorism and Effective Death Penalty Act. The Court summarily reversed the appellate court.

Kentucky v. King, 131 S. Ct. 1849 (U.S. 2011); Reversed, remanded: Alito (8–1)

Police officers entered an apartment building in pursuit of a suspect who sold crack cocaine to an undercover informant. The officers lost sight of the suspect and mistakenly assumed he entered an apartment from which they detected the odor of marijuana. After police knocked on the door and identified themselves, they heard movements, which they believed indicated evidence was about to be destroyed. Police forcibly entered the apartment and found Hollis King and others smoking marijuana. They also found cash, drugs, and paraphernalia. King entered a conditional guilty plea, reserving his right to appeal denial of his motion to suppress evidence obtained from what he argued was an illegal search.

COA affirmed the conviction. The Kentucky Supreme Court reversed the lower court, finding the entry was improper. The court held that the police were not in pursuit of a fleeing suspect when they entered the apartment, since there was no evidence that the original suspect knew he was being followed by police.

HELD: The exclusionary rule, which forbids the use of illegally seized evidence except in emergency situations, applies when the emergency is created by lawful police actions. “The exigent circumstances rule applies when the police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment.” Justice Ginsburg dissented: “The Court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases.”

Brown v. Plata, 131 S. Ct. 1910 (U.S. 2011); Affirmed: Kennedy (5–4)

The Prison Law Office in Berkeley, Calif., filed a class-action lawsuit in 2001 on behalf of Marciano Plata and several other prisoners, alleging that California prisons were in violation of the Eighth Amendment to the Constitution, which bans “cruel and unusual punishment.” Following a lengthy trial, a special panel of 3 federal judges determined that serious overcrowding in California’s 33 prisons was the “primary cause” for violations of the Eighth Amendment. The court ordered the release of enough prisoners so the inmate population would come within 137.5 percent of the prisons’ total design capacity. That amounts to between 38,000 and 46,000 inmates being released.

HELD: A court order requiring California to reduce its prison population to remedy unconstitutional conditions does not violate the Prison Litigation Reform Act. “The court-mandated population limit is necessary to remedy the violation of prisoners’ constitutional rights and is authorized by the PLRA.” Justice Scalia filed a dissenting opinion in which he admonished the majority for affirming “what is perhaps the most radical in­junction issued by a court in our Nation’s history: an order requiring California to release the staggering number of 46,000 convicted criminals.” Justice Alito dissented that the “Constitution does not give federal judges the authority to run state penal systems.”

Fifth Circuit

United States v. Cashaw, 625 F.3d 271 (5th Cir. 2010)

District court did not err in denying minor-role adjustment, under USSG §3B1.2, to defendant sentenced as a “career offender” under the Guidelines. The only Chapter Three adjustment permitted for career offenders is the adjustment for acceptance of responsibility under USSG §3E1.1. Thus, career offenders are categorically ineligible for mitigating role reductions under USSG §3B1.2.

United States v. Allen, 625 F.3d 380 (5th Cir. 2010)

District court did not reversibly err in denying defendant’s motion to suppress evidence (child pornography) seized pursuant to a search warrant; although the search warrant was not sufficiently particularized and although the attachment detailing the items to be seized was not incorporated by reference in the warrant, the fruits of the search were admissible under the good-faith exception to the exclusionary rule. Under Herring v. United States, 129 S. Ct. 695 (2009), the particularity defects in the warrant did not merit application of the exclusionary rule. Furthermore, the information in the search warrant affidavit was not stale (though it was 18 months old when the warrant was issued).

United States v. McNealy, 625 F.3d 858 (5th Cir. 2010)

(1) In prosecution for possession and receipt of child pornography, defendant was not impermissibly tried beyond the 70 days prescribed by the Speedy Trial Act (STA); the district court satisfied the STA’s reasons requirement for an “ends of justice” continuance by stating its reasons for the continuance and by stating that those reasons affected its decision. Moreover, although the first continuance was open-ended, the court may continue a trial indefinitely when it is impossible, or at least quite difficult, for the parties or the court to gauge the length of a justified continuance. Finally, a second continuance, granted at the behest of the State based on the unavailability of a witness, likewise resulted in excludable time under the STA. The requirement to set out ends-of-justice findings did not apply because the continuance was granted under 18 U.S.C. §3161(h)(3) based on the “absence or unavailability of . . . an essential witness” and was not granted under 18 U.S.C. §3161(h)(7).

(2) District court did not err in admitting images of putative child pornography retrieved from defendant’s computer, notwithstanding the fact that no expert testified that these were unaltered images of actual minors actually engaged in the conduct depicted. The question of whether images depict actual minors may be decided by laypersons without expert testimony. Case law supports the admission of these images, especially in the absence of any evidence that the images were not of actual children or that the state of technology is such that the images could have been of “virtual” children.

(3) District court did not err in denying defendant’s motion to dismiss the indictment for failure to receive a fair trial; the alleged pornography was, at all times, “reasonably available” for inspection by the defense, as required by 18 U.S.C. §3509(m)(2). Any concerns about prosecution of a defense expert for possession of child pornography could have been allayed by obtaining a protective order. Finally, defendant did not identify any expert he wished to consult but was prohibited from doing so.

(4) District court did not err in finding that the State’s destruction of defendant’s computer (done after civil forfeiture proceedings) was not done in bad faith. Even though defendant indicated that he intended to contest the forfeiture, and even though the State was negligent in failing to provide defendant with adequate notice of the forfeiture proceedings, there was no evidence that the destruction of the computer was done to im­pede defendant in the criminal case. Moreover, it appears highly likely that all relevant evidence was preserved in forensic images.

United States v. Jackson, 625 F.3d 875 (5th Cir. 2010)

District court violated defendant’s rights under the Confrontation Clause by admitting into evidence notebook ledgers received from a co-conspirator during a proffer session and an investigating officer’s testimony pertaining thereto, both of which were used to show the amount of cocaine the co-conspirator dis­tributed to defendant. The ledgers fell outside the business-records and co-conspirator-statement exceptions to the right of confrontation recognized in Crawford v. Washington, 541 U.S. 36 (2004), and hence were “testimonial.” The ledgers were not properly authenticated as business records because the agent through whom they were introduced offered no testimony as to who prepared them and under what circumstances. There was no evidence that they were kept in the regular course of a drug-trafficking enterprise. For similar reasons, the ledgers were not sufficiently authenticated to admit them under the co-conspirator-statement exception. The court’s error in admitting the ledgers was not harmless beyond a reasonable doubt; given the State’s reliance on the notebooks in its closing argument, the State could not show that the notebooks did not contribute to the conviction. The Fifth Circuit vacated the conviction and remanded for further proceedings, including opportunity for a new trial.

United States v. Houston, 625 F.3d 871 (5th Cir. 2010)

Where defendant received a 25-year sentence under 18 U.S.C. §924(c) for brandishing a firearm in connection with one Hobbs Act robbery and a 7-year consecutive sentence under the same statute for brandishing a firearm in connection with another Hobbs Act robbery, the 7-year consecutive sentence was not barred by the first clause of §924(c)(1)(A)(i), “[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law. . . .” The statute’s “greater minimum sentence” exception refers only to another, greater sentence for the same, specific crime of firearm possession. The Fifth Circuit noted, but rejected, the Second Circuit’s different rule, namely, that the “except” clause applies to conduct arising from the same criminal transaction or set of operative facts as the crime yielding the greater mandatory minimum sentence.

United States v. Bohuchot, 625 F.3d 892 (5th Cir. 2010)

(1) In prosecution for bribery, conspiracy to commit bribery, and money-laundering conspiracy, defendants’ objection to the definition of the “corruptly” element of bribery did not preserve their claim that the indictment was constructively amended by the proof adduced at trial. On plain-error review, it was questionable whether there was clearly or obviously a constructive amendment of the indictment. In any event, neither the third nor the fourth prong of plain-error review was satisfied. It was defendants who first touched upon the areas of evidence that they claimed on appeal should not have been before the jury. Moreover, the evidence of bribery was strong, and it was improbable that the jury would have acquitted if only the evidence had been excluded.

(2) Assuming, without deciding, that the jury instructions for the money laundering conspiracy count (a violation of 18 U.S.C. §1956(h)) incorrectly instructed the jury on the mens rea for that offense, the error was harmless beyond a reasonable doubt because, given the overwhelming evidence, no jury could fail to find the defendants guilty of money-laundering conspiracy under the correct standard; a fortiori, there was no plain error (the standard applicable in the absence of an objection to the instructions).

(3) In bribery case, district court erred in calculating the value of the bribe for purposes of USSG §2C1.1. Particularly, it was error to ascribe to defendant a portion of the value of two yachts he was permitted to use when he had no ownership interest in those yachts. However, the error was harmless because, including the fair rental value of comparable yachts as part of the value of the bribe to defendant, the same 14-level Guideline enhancement would have applied; thus, the Guideline range would have been unchanged.

United States v. Marquez, 626 F.3d 214 (5th Cir. 2010)

Defendant’s prior conviction for possession of a deadly weapon by a prisoner (in violation of N.M. Stat. Ann. §30-22-16) was one for a “crime of violence” under the “residual clause” of USSG §4B1.2(a)(2); therefore, defendant was properly treated as a “career offender” under the Guidelines.

United States v. Juarez, 626 F.3d 246 (5th Cir. 2010)

District court did not clearly err in applying a four-level increase under USSG §2K2.1(b)(5) (for “engag[ing] in the traf­ficking of firearms”); there was considerable evidence from which the court could infer that defendant knew, or had reason to believe, that her conduct would result in the transport, transfer, or disposal of a firearm to a person who intended to use or dispose of the firearm unlawfully. Nor did the court err in applying a four-level increase under USSG §2K2.1(b)(6) (for knowledge, or constructive knowledge, that the firearm “would be used or possessed in connection with another felony offense”). Amendments to the Guidelines make clear that another firearms offense may be “another felony offense” if that other offense is not the one that serves as the basis for defendant’s instant federal conviction.

Henderson v. Thaler, 626 F.3d 773 (5th Cir. 2010)

Where death-sentenced Texas defendant was authorized to file a successive federal habeas petition raising a claim that he was mentally retarded and thus ineligible for execution under Atkins v. Virginia, 536 U.S. 304 (2002), the Fifth Circuit vacated the district court’s order finding the mental-retardation claim time-barred and remanded for the court to reconsider, in light of the intervening decision in Holland v. Florida, 130 S. Ct. 2549 (2010), whether defendant was entitled to equitable tolling of the AEDPA limitations period. The Fifth Circuit also held that there was no exception to the AEDPA’s limitation period for person who are “actually innocent” of the death penalty. Accordingly, the Fifth Circuit remanded for reconsideration of whether defendant’s successive petition was timely and, if it was found to be timely, whether the Atkins claim succeeded on the merits. (Judge Wiener filed a dissenting opinion, in which he opined that the AEDPA’s statute of limitations was never meant to apply, and never should be applied, to claims that a person is categorically ineligible for the death penalty under Atkins or similar rules.)

Rocha v. Thaler, 626 F.3d 815 (5th Cir. 2010)

Texas state death-sentenced defendant was not entitled to federal habeas relief under Brady v. Maryland, 373 U.S. 83 (1963), that the State withheld material impeaching evidence about one of the investigating detectives (namely, his relationship with the sister of a State’s witnesses and a disciplinary record). The evidence did not create a reasonable probability of a different outcome, and hence was not material under Brady. Furthermore, defendant was not entitled to a certificate of appealability on the questions of whether the State violated his rights (as a Mexican citizen) under the Vienna Convention and whether such a violation requires suppression of his confession. On initial consideration, the panel held that under Balentine v. Thaler, 609 F.3d 729 (5th Cir. 2010), withdrawn by 626 F.3d 842 (5th Cir. 2010), defendant had at least a colorable argument that his ineffective-counsel claim (based on the failure to investigate/produce mitigation evidence) was denied by CCA on the merits, not as the result of an adequate and independent state law procedural ground; the panel initially granted a certificate of appealability on this claim. However, on denial of rehearing, the panel held that under a proper view of the law (also reflected in the substituted opinion in Balentine), the state court’s decision on this issue had to be viewed as rested on an adequate and independent state law procedural bar, thus precluding federal habeas relief.

Balentine v. Thaler, 626 F.3d 842 (5th Cir. 2010), with­drawing 609 F.3d 729 (5th Cir. 2010)

In its initial opinion, the Fifth Circuit panel had held that in light of Ex parte Campbell, 226 S.W.2d 418 (Tex.Crim.App. 2007), and Ruiz v. Quarterman, 504 F.3d 523 (5th Cir. 2007), the district court should have, pursuant to Fed. R. Civ. P. 60(b), set aside its judgment denying Texas death-sentenced defendant federal habeas relief due to a supposedly adequate and independent state procedural default. Accordingly, the Fifth Circuit initially reversed the district court’s order denying defendant’s Rule 60(b) motion and remanded for consideration of defendant’s ineffective-counsel claim, including any necessary evidentiary hearing. However, in the substituted opinion, the panel held that it erred in interpreting Ruiz to mean that uncertainty about the basis of a state-court decision should give rise to a presumption that the state court reached the merits rather than relying upon a state procedural bar. In light of this correct understanding of Ruiz, the district court did not err in denying defendant’s Rule 60(b) motion because the district court did not err in concluding that the state-court decision on defendant’s ineffective-counsel claim was grounded on an adequate and independent state procedural bar; the Fifth Circuit affirmed the district court’s denial of defendant’s Rule 60(b) motion. On petition for rehearing en banc, the poll for rehearing en banc failed by a vote of 11–4. Judges Dennis, Benavides, and Haynes dissented from the denial of rehearing en banc.

United States v. Hoeffner, 626 F.3d 857 (5th Cir. 2010)

The State’s abandonment of the honest-services theory dur­ing the first trial meant the Double Jeopardy Clause barred retrial on the honest-services theory where (1) defendant was indicted for mail and wire fraud under alternative theories of deprivation of honest services and deprivation of money and property, (2) the State abandoned the honest-services theory during trial, and (3) the jury failed to reach a verdict, resulting in the declaration of a mistrial. However, retrial was not precluded on the money-and-property-fraud theory; the district court did not err in denying defendant’s double-jeopardy-based motion to dismiss the indictment filed following the mistrial.

United States v. Garcia-Paulin, 627 F.3d 127 (5th Cir. 2010)

District court committed reversible plain error in finding an adequate factual basis to support defendant’s guilty plea to bringing an alien to the United States, in violation of 8 U.S.C. §1324(a)(1)(A)(i) and 18 U.S.C. §2; “bringing to the United States” under this statute contemplates that the defendant actually accompanied the alien, or arranged to have him accompanied, across the border into the United States, or at least lead them to or meet them at the border. Defendant did not commit this offense by his stipulated conduct of obtaining a fraudulent immigration stamp for the alien’s Mexican passport and telling the alien the stamp would not work to accomplish entry at the border, but would allow the alien to work once he came over illegally on his own power. The error was clear and obvious; it affected defendant’s substantial rights.

United States v. Thomas, 627 F.3d 146 (5th Cir. 2010).

(1) The evidence was sufficient for a rational jury to find defendants guilty of numerous bank robberies and related offenses; circumstantial evidence that is not incriminating standing alone may recur in a pattern, from which jurors can reasonably infer that evidence otherwise susceptible of innocent interpretation is plausibly explained only as part of the pattern. Under this rubric, a reasonable inference is that the defendants committed all the robberies: four of them shared a number of common characteristics. Although the evidence was weaker as to one defendant on the fifth one, the jury could reasonably infer that the other defendant had the same partner on that robbery.

(2) Where two defendants (half-brothers) were charged with numerous bank robberies and related offenses, district court did not abuse its discretion in refusing to sever the two defendants’ trials; the defendants failed to demonstrate, even on appeal, any prejudice that could not be cured by the limiting instructions given.

(3) Defendant’s 1,435-month conviction (151 months for conspiracy and bank robbery, and 1,284 months for firearms offenses) did not constitute cruel and unusual punishment under the Eighth Amendment, because it was not grossly disproportionate to the violent crimes.

(4) District court did not abuse its discretion in denying defendant’s motion for a new trial, or for an evidentiary hearing, on defendant’s allegations that by withholding information during voir dire, a biased juror sat on his jury. A party seeking a new trial on this basis must demonstrate that a juror failed to answer honestly a material question on voir dire, and must further show that a correct response would have provided a valid basis for a challenge for cause. Here, defendant failed to show even that the juror lied, much less any actual or implied bias.

Court of Criminal Appeals

Direct Appeal

Ex parte Gutierrez, 337 S.W.3d 883 (Tex.Crim.App. 2011); Affirmed

Appellant was convicted of capital murder and sentenced to death for his participation in the robbery and murder of 85-year-old Escolastica Harrison. Appellant raised 5 issues on appeal.

HELD: (1) appellant is not entitled to appointed counsel because “reasonable grounds” do not exist for the filing of a motion for post-conviction DNA testing; (2) appellant’s second issue is without merit because appellant was “at fault” in not seeking DNA testing at trial; (3) appellant has not shown that “the single loose hair” that he would like to have tested exists or could be delivered to the convicting court; (4) the trial judge acted within his discretion in finding that identity was not and is not an issue in this case; (5) appellant has failed to establish, by a preponderance of evidence, that he would not have been convicted of capital murder if exculpatory results had been obtained through DNA testing. In sum, granting DNA testing would “merely muddy the waters.” Appellant does not seek testing of biological evidence left by a lone assailant, and a third-party match to the requested biological evidence would not overcome the overwhelming evidence of his direct involvement in the multi-assailant murder.

State’s PDRs

Ex parte Garza, 337 S.W.3d 903 (Tex.Crim.App. 2011); Affirmed

After the jury was empaneled and sworn but before trial commenced in this misdemeanor DWI case, one juror became at least temporarily indisposed and the trial was continued for a few days. Ultimately, the trial court declared a mistrial over appellant’s objection. When the case was reset, appellant filed a pretrial application for writ of habeas corpus arguing that because a manifest necessity for the mistrial was lacking, his re-prosecution violated double jeopardy. The convicting court denied relief but COA reversed and remanded, presumably so that the convicting court might dismiss the information against appellant.

HELD: CCA rejects the State’s arguments that there was manifest necessity for a mistrial. Under circumstances in which appellant’s counsel at least suggested a willingness to waive his constitutional right to a full complement of jurors, the failure of the trial court even to explore that option cannot be attributed to appellant, whether or not he obtained an express ruling on his suggested alternative or actually executed a formal waiver.

Meekins v. State, __S.W.3d__ (Tex.Crim.App. No. PD-0261-10, 5/4/11); Reversed COA, affirmed trial court

An officer stopped appellant for a traffic offense and, during that stop, asked if he could search the car. In appellant’s pocket, officer found a pill bottle containing marijuana. Appellant filed a motion to suppress the evidence, arguing that he did not voluntarily consent to the search of his car. The trial judge denied the motion and appellant pled guilty to possession of marijuana. COA reversed.

HELD: Careful listening of the audio recording of officer and appellant’s interaction supports an implied finding that appellant replied “yes” to officer’s sixth and final request to search appellant’s car. At a minimum, the recording fails to clearly rebut the officer’s testimony that appellant said “yes.” But even if the trial judge concluded that appellant said “I guess,” that phrase could reasonably be interpreted as a positive response, a colloquial equivalent of “yes.”

Regardless of whether appellant said “yes” or “I guess,” the trial judge was also required to decide what an objectively reasonable person standing in the arresting officer’s shoes would conclude that response meant. Both officer’s and appellant’s actions immediately after the response supports the trial judge’s implicit finding that appellant intended to consent. While appellant’s response of “yes” or “I guess” may be open to interpretation, there can be little doubt that officer believed appellant consented because he immediately asked appellant to step out of the car so that he could search it. If appellant intended to refuse consent, it seems reasonable that he would have objected, complained, or refused to get out of his car. Instead, he complied.

Griego v. State, 337 S.W.3d 902 (Tex.Crim.App. 2011); Vacated & remanded COA

A jury convicted appellant of evading arrest or detention, and assessed punishment at confinement of ten years. COA found the evidence legally insufficient to support a third-degree felony offense level because the State failed to present proof of a prior conviction at the guilt/innocence stage of trial. Additionally, COA remanded the case for a new trial having determined the evidence was factually insufficient to prove appellant evaded arrest or detention.

The State contends, among other things, that the case should be remanded to COA in light of CCA’s recent opinion in Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010), in which CCA overruled Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996), and set aside its factual sufficiency standard of review, holding that the Jackson v. Virginia, 443 U.S. 307 (1979), standard for legal sufficiency is the “only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.”

HELD: CCA remands this case for reconsideration in light of Brooks.

Archie v. State, __S.W.3d__ (Tex.Crim.App. No. 0189-10, 6/8/11); Reversed & remanded

A jury convicted appellant of murder, and the trial judge assessed punishment at 40 years’ imprisonment. COA reversed the conviction and remanded the cause to the trial court, concluding that the trial court abused its discretion by denying appellant’s motion for a mistrial. The State argues that COA erred when it found the prosecutor improperly commented on appellant’s failure to testify during his closing argument. Moreover, even assuming the prosecutor’s argument was improper, the State contends, it was within the trial court’s discretion to deny the motion for mistrial.

HELD: COA did not err in holding that at least two of the rhetorical questions posed by the prosecutor directly to appellant during his final argument constituted improper comment on his failure to testify. However, the prejudice caused by the prosecutor’s two improper questions was not so great that a jury would necessarily have discounted the trial court’s firm instructions to disregard them. It is unlikely that the jury would have ignored the court’s explicit instructions and convicted appellant, not on the compelling evidence introduced against him, but because he failed to take the witness stand to explain himself. Under these circumstances, it was well within the trial court’s discretion to deny appellant’s motion for mistrial.

Davis v. State, __S.W.3d__ (Tex.Crim.App. No. 0845-10, 6/8/11); Vacated & remanded

A jury convicted appellant of felony escape; he escaped the Dallas County Jail while being treated at Parkland Hospital, stole a taxicab, and drove to Oklahoma, leading lawmen on a protracted high-speed chase. On appeal, appellant argued that the State failed to bring him to trial within the time limits of the Interstate Agreement on Detainers Act (IADA), and that the trial court therefore erred in failing to dismiss the indictment with prejudice in accordance with the terms of that statute. COA agreed and ordered the trial court to dismiss the indictment with prejudice. The State argues that the trial court committed an error that prohibited the proper presentation of the case for appeal, and, therefore, COA should have remanded the cause to the trial court, under Tex. R. App. P. 44.4, to remedy that error. The State maintains that, upon a proper presentation of the record for appeal, it should be evident to COA that the IADA was not violated.

HELD: CCA agrees with appellant that there is nothing in IADA Article IV that imposes a burden on the trial court, expressly or by necessary implication, to ensure that any proffer of good cause (though it must be made in open court) is memorialized by the court reporter. If no such burden exists by virtue of the IADA, then Rule 44.4 cannot be invoked to require COA to remand the cause for remedial action without first identifying some other provision of law that assigns a burden exclusively to the trial court to secure the presence of a court reporter.

However, as the appealing party, appellant had an obligation to present a record to COA that demonstrated he was entitled to appellate relief. In the IADA context. This meant he had to show that the State did not satisfy its trial-level burden to present good cause for the continuance, and that the trial court therefore abused its discretion to grant it. On the state of the record, the appellate court could not say that the trial court abused its discretion to find that the continuance was necessary or reasonable for purposes of Article IV. It appears that the State proffered the re-indictment as its good cause.

Writs of Habeas Corpus

Ex parte Evans, 338 S.W.3d 545 (Tex.Crim.App. 2011); Granted

Applicant contends that the Texas Department of Criminal Justice-Parole Division improperly and without due process placed “Special Condition X” (sex-offender conditions) on him after he had been released on mandatory-supervision parole. Based on the evidence in the record, the habeas judge entered findings that applicant had not been convicted of a sex offense, and that his conviction for injury to a child did not involve evidence of sexual abuse. The habeas judge further found that applicant was not afforded constitutional due process before the sex-offender conditions were imposed.

HELD: CCA agrees with the habeas judge that applicant is entitled to immediate reinstatement of his release on mandatory supervision and removal of “Special Condition X” from the terms of his parole.

Ex parte Kerr, __S.W.3d__ (Tex.Crim.App. No. 62,402-03, 4/28/11); Dismissed

In 2003, a jury convicted applicant of capital murder. The jury answered the special issues submitted pursuant to Tex. Code Crim. Proc. art. 37.071, and the trial court, accordingly, set applicant’s punishment at death. CCA affirmed applicant’s conviction and sentence on direct appeal. In 2004, applicant filed in the trial court his initial post-conviction application for writ of habeas corpus. CCA denied relief. Applicant filed his first subsequent application in the trial court in 2006. CCA dismissed that application because it failed to meet the dictates of Tex. Code Crim. Proc. art. 11.071, §5. This, his second subsequent application, was filed in the trial court on April 27, 2011. Applicant presents a single allegation that his initial state habeas counsel rendered ineffective assistance, which denied applicant a proper review of his ineffective assistance of trial counsel claims.

HELD: CCA simply said it reviewed the application and finds that applicant failed to meet the requirements of Article 11.071, § 5. CCA dismisses the application and denies the stay of execution. Judge Price dissented: “The applicant presents a more-than-colorable claim of ineffective assistance of counsel at the punishment phase of his capital murder trial[.]”

Ex parte Bohannan, __S.W.3d__ (Tex.Crim.App. No. 76,363, 5/11/11); Dismissed

In 1983, applicant was convicted of aggravated rape and sentenced to 25 years’ imprisonment. He did not appeal. In this writ, applicant contends he was denied a timely preliminary hearing to determine whether there is probable cause to believe he violated his parole. Although applicant has received a preliminary hearing, he argues that this case is not moot because the issues involved herein are clearly capable of repetition, yet evading review, due to the fact that when a writ of habeas corpus is filed seeking to ensure the constitutional right to a preliminary hearing, the Texas Department of Criminal Justice (TDCJ) now convenes a late preliminary hearing.

HELD: Applicant’s claim is not justiciable under the “capable of repetition, yet evading review” doctrine of Weinstein v. Bradford, 423 U.S. 147 (1975), because CCA cannot assume applicant will again be held in custody facing the prospect of a preliminary hearing to determine whether there is cause to believe he violated a condition of his parole. And, applicant has already received such a preliminary hearing on the instant alleged violation. CCA notes that TDCJ must conduct preliminary hearings, as required by Tex. Gov’t Code § 508.2811 and Morrissey v. Brewer, 408 U.S. 471 (1972), within a time frame that meets the demands of due process so that releasees will not be required to seek CCA’s intervention to enforce these rights.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Glenn v. State, No. 11-09-00099-CR, 2011 WL 322451 (Tex.App.—Eastland 1/27/11)

The following exchange was deemed sufficient to constitute D’s consent to search. In response to officer’s request for permission to search the vehicle, D asked the officer: “You want to have a look inside?” Then D asked the officer: “You want me to open the trunk?”

Jones v. State, Nos. 01-08-00828-CR, 01-08-01015-CR, 01-08-01016-CR, 2011 WL 339213 (Tex.App.—Houston [1st Dist] 1/31/11)

Lack of specific dates in search warrant affidavit was not fatal to search warrant because the affidavit “includes several direct and indirect references to the timing of the controlled buy. First, [officer] described his contact with the first confidential informant as having occurred ‘recently.’ . . . The investigation culminated in the controlled buy forming the basis for probable cause, which was described as occurring ‘after’ [officer] ‘recently’ met with the first confidential informant.”

Sosa v. State, No. 06-10-00161-CR, 2011 WL 346215 (Tex.App.—Texarkana 2/4/11)

The following was insufficient to give rise to RS: D was present just outside a storage facility after its normal business hours, D failed to pass through the gate in 30 or 40 seconds of observation, and the storage facility is occasionally broken into. “‘The fact that a car is parked in close proximity to a business that is [closed], is not, in and of itself, suspicious; instead, it is only a factor to consider in deciding whether there is reasonable suspicion.’ . . . In addition, the time of day is not sufficient. . . . All the facts indicate is that [D] was present in front of a business late at night, after normal business hours, and that storage buildings are occasionally broken into.”

In re A.M., 333 S.W.3d 411 (Tex.App.—Eastland 2011)

The main issue in this appeal is whether it is a 5th Amendment violation for the State to subject a juvenile to a polygraph exam as a condition of probation, and then to use statements made in the exam as evidence in a subsequent criminal proceeding. The probation officer said the examination was “voluntary,” even though it was a condition of probation. The trial court, as fact finder, and COA agreed that it was voluntary.

Miles v. State, No. 11-09-00090-CR, 2011 WL 494885 (Tex.App.—Eastland 2/11/11)

Officer’s observation of D in the act of “talking to a known cocaine addict” deemed a partial basis for RS as to D. “[Officer] testified that there had been at least two robberies in the recent past involving the convenience store where the incident occurred. He also testified that the owner of the convenience store had requested that the police provide extra patrolling in the area due to the high-crime activity. [Officer] observed [D] talking to a known cocaine addict, and he also observed [D] and the known cocaine addict acting suspiciously when he drove up. These facts provided [officer] reasonable suspicion to detain [D] for a Terry stop.”

Carlson v. State, No. 01-09-01030-CR, 2011 WL 649682 (Tex.App.—Houston [1st Dist] 2/17/11)

Minor victim took possession of videotapes containing her nude image with intent to turn them over to police, and, thus, said evidence was not subject to suppression under criminal procedure provision forbidding the admission of evidence seized by any person or officer when that evidence has been obtained in violation of state or federal law. Also, the minor victim, unlike D, had a lawful ownership interest in the images. The court observed that the minor victim filed a police report within 48 hours of retrieving the videotapes from D’s home. In addition, the minor victim had ownership interest in possessing the images, even though the images were illegal, because she did so to preserve her own privacy and to prevent further publication of the images.

Hughes v. State, 337 S.W.3d 297 (Tex.App.—Texarkana 2011)

Interaction between officer and D was a mere “encounter” rather than an investigative detention, because officer activated squad car’s white overhead lights rather than the red and blue lights. Also, the position of the car relative to D’s vehicle did not entirely prevent D from leaving. “[Officer] observed [D’s] car in a parking lot of [a park] legally parked with the headlights on. As [officer] approached, the headlights of [D’s] vehicle turned off. . . . [Officer] parked his marked police jeep at an angle to [D’s] car and turned on the vehicle’s bright overhead white lights. [Officer] then illuminated the front of [D’s] vehicle with his spotlight. [Officer] testified he did not observe any illegal activity, but testified the [the park] area has a high incidence of drug and prostitution activity. . . . [T]he lights activated by the police officer in this case were not his overhead emergency lights which flash red and blue, but rather the overhead white safety or ‘take-down’ lights. We believe this distinction to be extremely important. . . . [U]nder some circumstances, overhead ‘take-down’ lights could be sufficient along with other circumstances to indicate a sufficient demonstration of authority[.]”

Tijerina v. State, 334 S.W.3d 825 (Tex.App.—Amarillo 2011)

After D told officers to leave his property, actions taken by eyewitness at officer’s behest, in approaching D’s residence and peering through a window, constituted a “search” for Fourth Amendment purposes. Because the officers no longer enjoyed the implied authority to approach D’s residence, neither did the eyewitness acting at officer’s behest.

State v. Molder, 337 S.W.3d 403 (Tex.App.—Fort Worth 2011)

While trooper’s testimony established that DPS has a general policy to inventory vehicles following arrest, the testimony was deficient in that it related nothing about the scope of said policy and how it affects closed containers such as D’s cloth bag; D’s motion to suppress deemed properly granted. “We recognize that courts have held that an officer does not need to specifically mention ‘closed containers’ to establish a policy regarding them. . . . But we hold that in this case, [trooper’s] testimony, as the sole evidence at the suppression hearing, was too barren to show any particular standardized criteria or routine concerning the scope of the inventory; the testimony is therefore insufficient for us to infer the extent of DPS’s policy regarding closed containers. Also, we conclude that we cannot infer DPS’ policy to open closed containers from the mere fact that [trooper] did so; such an inference would eviscerate the requirement described in [Florida v. Wells, 495 U.S. 1 (1990)].”

Wise v. State, No. 02-09-00267-CR, 2011 WL 754415 (Tex.App.—Fort Worth 3/3/11)

Evidence that D knowingly possessed the child porn discovered on his computer deemed insufficient because D bought the computer second-hand at a flea market, the computer contained viruses capable of covertly placing images on the computer, and it was impossible to determine when the images were placed on, accessed, or deleted from, the computer.

Dissent: “[T]he majority holds that when defendants possess illegal pornographic images on their computers but delete them and send them to their hard drives’ free space before the police discover them, the State cannot prove intentional or knowing possession of the images. . . . The majority mischaracterizes the evidence about the viruses on [D’s] computer. [The] State’s digital forensic examiner testified that the computer had several viruses and then said that some viruses, hypothetically, are capable of remotely accessing a computer and storing images on it. [The forensic examiner] did not say that the viruses found on [D’s] computer served such a purpose. She did explain, however, that the probability of a malicious outsider using a virus to store child pornography in the free space of another computer is low. . . . [A] lack of direct evidence and the existence of alternative hypotheses will be common features of many cases in which illegal images have been deleted[.]”

Miller v. State, 335 S.W.3d 847 (Tex.App.—Austin 2011)

D was without a reasonable expectation of privacy as to thumb drive (containing child pornography) that he left in a computer at his place of employment (a police station) and thus lacked standing to challenge search of the thumb drive because D had previously left the thumb drive in an area accessible to others, the drive did not contain any marks identifying D, and D did nothing to prevent others from accessing the drive (e.g., password) even though he possessed advanced computer knowledge.

June 2011 SDR – Voice for the Defense Vol. 40, No. 5

Voice for the Defense Volume 40, No. 5 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

Cullen v. Pinholster, 131 S. Ct. 1388 (U.S. 2011); Reversed: Thomas (5–4)

A California state court convicted Pinholster of double murder and sentenced him to death. After exhausting state court remedies, he petitioned for habeas corpus relief in a California federal district court, arguing he was denied effective assistance at both the guilt and sentencing phases of trial. The district court upheld his conviction but granted habeas relief on his death sentence. The Ninth Circuit reversed, holding that the denial of habeas relief during the guilt phase was appropriate, but not during the penalty phase. The court noted that Strickland v. Washington requires trial counsel to investigate mitigating evidence at the penalty phase. Here, the court reasoned that counsel failed to meet his obligations.

HELD: A federal court cannot overturn a state criminal conviction on the basis of facts the defendant could have alleged, but did not, in state court. Limiting “review to the state-court record is consistent with our precedents.” Justice Breyer dissented in part: “I do not join Part III, for I would send this case back to the Court of Appeals so that it can apply the legal standards that Part II announces to the complex facts of this case.” Justice Sotomayor dissented in full: “Some habeas petitioners are unable to develop the factual basis of their claims in state court through no fault of their own.”

Fifth Circuit

Hunter v. Tamez, 622 F.3d 427 (5th Cir. 2010)

District court did not err in denying defendant’s habeas petition, filed pursuant to 28 U.S.C. §2241, challenging the Federal Bureau of Prisons’ (BOP’s) failure to grant him (by means of a nunc pro tunc designation) credit against his federal sentence for time spent in Texas state custody for unrelated state convictions. Although defendant argued that the BOP’s failure to give effect to the state court’s direction that the state sentence run concurrently with the federal sentence violated principles of federalism and comity, that argument was foreclosed by Leal v. Tombone, 341 F.3d 427 (5th Cir. 2003). Nor were there separation of powers problems; in the absence of specific direction from the federal sentencing judge, the federal sentence was presumed to be consecutive. The request for a nunc pro tunc designation, so as to make the federal sentence effectively concurrent, was thus equivalent to a request for clemency or commutation of sentence, which are traditionally prerogatives of the Executive Branch. Finally, the Fifth Circuit denied relief on defendant’s claim that the frustration of the parties’ understanding about his sentences running concurrently rendered his state plea involuntary; while possibly true, that claim was not cognizable here because defendant was no longer “in custody” on the state conviction.

United States v. Jefferson, 623 F.3d 227 (5th Cir. 2010).

(1) COA had jurisdiction, pursuant to 18 U.S.C. §3731, over the government’s interlocutory appeal of the district court’s order ruling inadmissible proof of defendant’s prior convictions for bribery and obstruction of justice. The district court erred in concluding that §3731 permits an interlocutory appeal only when the excluded evidence relates to an element of the charged offense; §3731 contains no such limitation and instructs courts to liberally construe the statute to effectuate its purpose. Moreover, the statute itself limits such appeals to evidence that is “substantial proof of a fact material in the proceeding,” not evidentiary rulings concerning matters that involve elements of the charged offense. Finally, under the statute, this evaluation is to be made by the United States Attorney, not by the district court; indeed, once the government files a timely appeal under § 3731 and the United States Attorney makes the required certification, COA cannot evaluate the materiality of the excluded evidence to decide whether or not to hear the appeal. Because COA did acquire jurisdiction upon filing of the government’s notice of appeal, the district court was divested of jurisdiction to take further action in the case. The Fifth Circuit vacated all orders issued by the district court following the filing of the notice of appeal.

(2) On the merits, district court erred, in a RICO conspiracy trial, in excluding evidence of defendant’s prior convictions for bribery and obstruction of justice for purposes of impeaching the defendant’s testimony. These offenses were ones involving dishonesty or false statement, and thus were proper fodder for impeachment pursuant to Fed. R. Evid. 609(a)(2). Moreover, the court had no discretion to exclude these convictions because Rule 609(a)(2) required their admission. The Fifth Circuit vacated the court’s order prohibiting impeachment with these convictions.

Arriaza Gonzalez v. Thaler, 623 F.3d 222 (5th Cir. 2010)

The Supreme Court’s decision in Lawrence v. Florida, 549 U.S. 327 (2007), did not overrule Roberts v. Cockrell, 319 F.3d 690 (5th Cir. 2003); thus, defendant’s Texas state conviction became “final” for AEDPA purposes when the time for seeking discretionary review from CCA expired (August 2006), not when the Texas appellate court issued its mandate (September 2006). Accordingly, defendant’s federal habeas petition was untimely under the AEDPA. The Fifth Circuit noted, but rejected as unpersuasive, the contrary decision in Riddle v. Kemna, 523 F.3d 850 (8th Cir. 2008) (en banc).

United States v. Schmidt, 623 F.3d 257 (5th Cir. 2010)

Defendant’s prior federal conviction for theft of a firearm from a licensed gun dealer, in violation of 18 U.S.C. §922(u), was a “violent felony” within the meaning of 18 U.S.C. §924(e)(2)(B) of the Armed Career Criminal Act (ACCA); therefore, district court did not err in enhancing defendant’s sentence under ACCA.

United States v. Gomez, 623 F.3d 265 (5th Cir. 2010)

District court did not err in denying defendant’s motion to suppress because the decision to stop defendant’s vehicle was supported by reasonable suspicion. Even if the tip on which the stop decision was based (that the defendant had a pistol) is considered an anonymous tip (which, the Fifth Circuit said, was doubtful under the circumstances), the officers still had reasonable suspicion under the 4-factor test in United States v. Martinez, 486 F.3d 855 (5th Cir. 2007).

Hale v. King, 624 F.3d 178 (5th Cir. 2010)

The Americans with Disabilities Act of 1990 (ADA) validly abrogates a state’s Eleventh Amendment sovereign immunity under §5 of the Fourteenth Amendment only to the extent that causes of action under the ADA are “congruent and proportional” to violations of the Fourteenth Amendment. Prisoner’s claim that he was denied educational training and access to prison work programs because of a medical disability did not state an equal protection violation under the applicable rational-basis review, and hence the ADA did not validly abrogate state sovereign immunity for that claim.

United States v. Mata, 624 F.3d 170 (5th Cir. 2010)

In alien transporting case, district court did not err in applying the reckless-endangerment enhancement of USSG §2L1.1(b)(6); the enhancement was supported by findings that (1) a baby stroller, under which the alien was hidden, would impede their ability to exit the vehicle quickly in case of an accident, and (2) the stroller could cause serious injury to the alien in the event of an accident, and those findings were not clearly erroneous. Nor did the court err by applying the use-of-a-minor enhancement under USSG §3B1.4; a defendant who decides to bring a minor along during the commission of a previously planned crime as a diversionary tactic or in an effort to reduce suspicion is subject to this enhancement. Not every defendant who brings a minor child along while smuggling drugs or aliens will be subject to this enhancement, and the court should consider additional circumstantial evidence to determine whether the defendant used the minor to avoid detection. Here, the district court’s findings, none of which were clearly erroneous, supported its determination that the minor was brought along to avoid de­tection.

United States v. Templeton, 624 F.3d 215 (5th Cir. 2010)

(1) In prosecution for (a) using a firearm and committing murder during and in relation to a drug trafficking crime, and (b) possession of cocaine with intent to distribute, district court did not abuse its discretion in admitting, under Fed. R. Evid. 404(b), evidence that defendant had previously sold large amounts of crack cocaine and that defendant had previously been arrested for possession of nine ounces of cocaine. Even though defendant offered to stipulate as to intent to distribute, the evidence was admissible not just to show intent, but also knowledge plus the motive for the decedent’s murder. United States v. Yeagin, 927 F.2d 798 (5th Cir. 1991) (finding reversible error in the admission of evidence after an offer to stipulate was refused), was distinguishable because the evidence there went only to intent, to which defendant offered to stipulate, and the admitted evidence in that case was far less relevant and far more prejudicial.

(2) District court did not abridge defendant’s Confrontation Clause rights or otherwise err by preventing defense counsel from cross-examining a witness (defendant’s sister) about abuse allegedly inflicted on her by her husband. Although the defense alleged that the sister had been coerced or intimidated by her husband into testifying against her brother (defendant), questioning of the sister outside the presence of the jury failed to substantiate this theory of bias, and the defense failed to present any other evidence to substantiate this theory.

(3) District court did not abuse its discretion by instructing the jury that evidence of flight could reflect a consciousness of guilt. A flight instruction is proper when the evidence supports four inferences: (1) the defendant’s conduct constituted flight; (2) the defendant’s flight was the result of consciousness of guilt; (3) the defendant’s guilt related to the crime with which he was charged; and (4) the defendant felt guilty about the crime charged because he in fact committed the crime. The evidence here supported each of the four inferences; moreover, even if the court had erred in this regard, any error was harmless in light of the strong evidence of defendant’s guilt.

United States v. Mendez-Casarez, 624 F.3d 233 (5th Cir. 2010)

Where Application Note 5 to USSG §2L1.2 provides that the list of qualifying enhancement predicate offenses “include[s] the offenses of aiding and abetting, conspiring, and attempting” to commit such offenses, that list does not constitute an exclusive list. Other offenses may be comprehended within Application Note 5, provided they are sufficiently similar to the listed offenses. The Fifth Circuit then determined that solicitation under North Carolina law was sufficiently similar. Accordingly, defendant’s North Carolina solicitation to commit assault with a deadly weapon inflicting seriously bodily injury was properly countable as a “crime of violence” for purposes of USSG §2L1.2(b)(1)(A)(ii).

United States v. Roberts, 624 F.3d 241 (5th Cir. 2010)

Where the government agreed in its plea agreement with defendant to a particular base offense level but the parties left open that other adjustments might or might not apply, it was a breach of the plea agreement for the government to support the PSR’s application of the career offender Guidelines to defendant. The career offender Guidelines were not simply an adjustment to the Guidelines (as to which the government retained its discretion to advocate) but rather resulted in a new base offense level, in contravention of the government’s plea-bargain stipulation to a base offense level of 30. The government’s conduct was inconsistent with defendant’s reasonable understanding of the plea agreement, and defendant was entitled to specific performance of the agreement. The Fifth Circuit vacated defendant’s sentence and remanded to the district court for reassignment to a different judge and for resentencing consistent with this opinion. Judge DeMoss dissented, being of the view that the career offender enhancement was a Guideline adjustment for which the government remained free to advocate.

United States v. Banks, 624 F.3d 261 (5th Cir. 2010)

Where (following a limited remand for clarification) it was determined that defendant had proceeded to a bench trial on stipulated facts, the evidence was sufficient to support defendant’s conviction for aggravated identity theft under 18 U.S.C. §1028A. Particularly, the Fifth Circuit noted that in a Memorandum of Agreement attached to the Stipulation of Evidence, defendant expressly stipulated that the facts in the Stipulation “constitute[d] sufficient evidence for the [c]ourt to find him guilty as charged . . . beyond a reasonable doubt.” Because defendant’s agreement on this point foreclosed any challenge to the sufficiency of the evidence, the Fifth Circuit affirmed the conviction.

Pearson v. Holder, 624 F.3d 682 (5th Cir. 2010)

Where Texas state prisoner sued under 42 U.S.C. §1983, challenging SORNA and state sex-offender registration laws as unconstitutional, district court reversibly erred in dismissing prisoner’s claims as not ripe. In determining ripeness, a court must balance the issues’ fitness for judicial decision against the hardship to the parties resulting from withholding court consideration. Inasmuch as the prisoner’s release date was only some two years hence, the Fifth Circuit concluded that his case was sufficiently ripe for adjudication; there was no further factual uncertainty, and the prisoner could suffer harm if his claims were not adjudicated as soon as practicable. The Fifth Circuit reversed the judgment dismissing the prisoner’s claims and remanded for further proceedings.

United States v. Jeong, 624 F.3d 706 (5th Cir. 2010)

Where defendant, a South Korean national, was prosecuted for bribery in an American court on the basis of the same bribery scheme for which he had been previously convicted in South Korea, his subsequent American conviction was not barred by the Convention on Combating Bribery of Foreign Officials. Article 4.3 of this Convention does not prohibit two signatory countries from prosecuting the same offense. Rather, it imposes an obligation only to consult on jurisdiction when one of the countries so requests; here, no such request was made. Nor did the United States waive its jurisdiction to prosecute defendant by dint of assisting South Korea in that country’s investigation of defendant or by dint of the United States’ representation, in its request for mutual legal assistance, that it was “not seeking to further prosecute [defendant]”; no source of domestic or international law suggested that the United States either impliedly or expressly ceded its right of prosecution to South Korea.

United States v. Fisher, 624 F.3d 713 (5th Cir. 2010)

Where district court sua sponte declared a mistrial after two prosecution witnesses became unavailable to testify as scheduled, defendant did not impliedly consent to the mistrial by failing to sufficiently object. This is a case-by-case determination, and under the circumstances here—most prominently the district judge’s finding that defendant had sufficiently objected—there was no implied consent to the mistrial. That being the case, to retry defendant after this mistrial would violate his double jeopardy rights unless there was a manifest necessity for the mistrial. Because the basis for the mistrial was the unavailability of critical prosecution evidence, the district court’s decision was subject to the strictest scrutiny, which requires the government to show that the district court carefully considered whether reasonable alternatives existed but that the court found none. Here, the government did not show, nor did the record independently show, that the court carefully considered reasonable alternatives before declaring a mistrial. Nor was the mistrial excused by defendant’s refusal to stipulate to the testimony of the two witnesses. Because defendant did not consent to the mistrial and because the district court did not carefully consider reasonable alternatives to a mistrial, defendant’s prosecution was barred by double jeopardy. The Fifth Circuit reversed the district court’s denial of defendant’s motion to dismiss the indictment, and it rendered a dismissal.

United States v. Wanambisi, 624 F.3d 724 (5th Cir. 2010)

In denying defendant’s motion for reduction of sentence under 18 U.S.C. §3582(c)(2), the district court erroneously treated defendant’s motion as having been filed under Amendment 706 (pertaining only to crack cocaine offenses) rather than under Amendment 505 (applicable to heroin offenses like defendant’s). This was harmless error. The Fifth Circuit agrees with COA, affirming the denial of defendant’s motion on the alternate ground that Amendment 505 did not reduce the base offense level for the amount of heroin for which defendant was responsible.

Wiley v. Epps, 625 F.3d 199 (5th Cir. 2010)

District court did not err in holding a federal evidentiary hearing on death-sentenced Mississippi defendant’s claim under Atkins v. Virginia, 536 U.S. 304 (2002), that he was ineligible for the death penalty due to being mentally retarded. Because the Mississippi Supreme Court improperly denied defendant’s Atkins claim without a hearing, the district court was not required to afford the state court decision deference under the AEDPA. Finally, the district court did not clearly err in finding defendant mentally retarded under the 4-prong test applicable in Mississippi. The Fifth Circuit affirmed the district court’s grant of federal habeas relief invalidating the death sentence imposed.

Maldonado v. Thaler, 625 F.3d 229 (5th Cir. 2010)

Death-sentenced Texas defendant was not entitled to federal habeas relief on his claim under Atkins v. Virginia, 536 U.S. 304 (2002), that he was ineligible for the death penalty due to being mentally retarded; defendant did not overcome the presumption of correctness attached to the state habeas court’s conclusion that he did not meet his burden of establishing mental retardation. Therefore, the state court’s denial of relief was neither an unreasonable application of federal law nor an unreasonable determination of the facts in light of the evidence, as required for federal habeas relief under the AEDPA. The Fifth Circuit affirmed the district court’s denial of federal habeas relief.

United States v. Gonzalez, 625 F.3d 824 (5th Cir. 2010)

Where defendant sought to argue that he was not the person convicted in a 1988 drug conviction used to enhance his sentence to mandatory life imprisonment under 21 U.S.C. §851, defendant’s challenge was not barred by the 5-year time limit contained in 21 U.S.C. §851(e). That time limit applies only to challenges to the validity of the prior conviction; it does not prevent a defendant from arguing that he was not the person who was convicted of the offense. However, on the merits, defendant’s challenge to the enhancement failed because the government carried its burden of proving beyond a reasonable doubt—see 21 U.S.C. § 851(c)(1)—that defendant was the person convicted in that prior case, notwithstanding the absence of fingerprint exemplars or other physical evidence to that effect.

Court of Criminal Appeals

Appellee’s PDR

State v. Woodard, __S.W.3d__ (Tex.Crim.App. No. PD-0828-10, 4/6/11); Affirmed

Appellee drove his car off the road into a ditch and then abandoned it by walking away. Appellee filed a pretrial motion to suppress, claiming his warrantless arrest for DWI about a quarter mile from the accident was unlawful.

HELD: COA correctly held that the initial interaction on the sidewalk between appellee and officer, which began with officer asking appellee if he had been involved in a reported accident, was a consensual encounter. Further, the encounter, which eventually escalated into appellee’s arrest for DWI, was supported by probable cause.

State’s PDRs

State v. Rodriguez, __S.W.3d__ (Tex.Crim.App. No. 04-07-00436-CR, 4/6/11); Affirmed

Rodriguez was charged with recklessly discharging a firearm. CCA granted the State’s petition to review whether COA correctly held that the information was defective because it failed to apprise defendant of “the circumstances that indicate [Rodriguez] pulled the trigger of a loaded firearm in a reckless manner.” The issue is not “how” did defendant discharge a firearm (by pulling the trigger), but how did he act “recklessly” in discharging the firearm.

HELD: The State failed to allege with reasonable certainty the act or circumstance which indicated Rodriguez discharged the firearm in a reckless manner. When it is alleged that the accused acted recklessly, Tex. Code Crim. Proc. art. 21.15 requires additional language in the charging instrument. This language must set out “the act or acts relied upon to constitute recklessness[.]” But, as CCA noted in Smith v. State, 309 S.W.3d 10 (Tex.Crim.App. 2010), there is some conceptual difficulty about the specific terms used in Article 21.15. The language of Article 21.15 assumes that the culpable mental state of recklessness can be “constituted” by some “act.” However, the definition of “act,” added in 1974, made this a “conceptual impossibility.” In Smith, CCA explained that because of the “conceptual impossibility, the “act or acts constituting recklessness” under Article 21.15 are really those “circumstances” surrounding the criminal act from which the trier of fact may infer that the accused acted with the required recklessness.

Hereford v. State, __S.W.3d__ (Tex.Crim.App. No. PD-0144-10, 4/6/11); Affirmed

Appellant was arrested for misdemeanor traffic warrants. After officers placed appellant in the back of the police car, they noticed he was hiding something in his mouth that they assumed was cocaine, which they were able to remove after repeated use of Tasers on his groin area and with the assistance of medical personnel. Appellant was charged with and convicted of possession of a controlled substance with intent to deliver: cocaine. Appellant filed a motion to suppress the evidence based on his claims that the officers lacked probable cause to arrest him and used unreasonable force to recover the drugs.

HELD: Emphasizing that neither this opinion, nor that of COA should be construed to imply that the use of a Taser is per se unreasonable, CCA held that the circumstances presented by this case show an excessive use of force that violated the Fourth Amendment prohibition against unreasonable seizures. Officer Arp deliberately chose to administer numerous electrical shocks to an area of appellant’s body chosen because of its exceptional sensitivity, long after the initial arrest was made, when there admittedly was no ongoing attempt by appellant to destroy the evidence, little concern about a drug overdose, and while appellant was restrained in handcuffs behind his back. The unreasonableness of this behavior is shown by comparison with the decisions made by his fellow officers, who stopped using the Taser when its use failed to effect compliance. While those officers could have chosen to continue to shock appellant to recover the drugs, they chose to pursue other methods. Officer Arp should have done the same.

State v. Elias, __S.W.3d__ (Tex.Crim.App. No. PD-0735-10, 4/6/11); Vacated, remanded

In this felony prosecution for possession of marijuana, the State appealed from the trial court’s grant to suppress evidence that appellee contended was obtained as a result of an illegal traffic stop. COA affirmed the court’s ruling, holding that appellee’s initial detention was not justified by specific articulable facts to show a traffic violation occurred, and that the search could not be otherwise justified by the fact that after the initial stop, appellee was found to have an outstanding arrest warrant that might give rise to a valid search incident to arrest because by the time the search of the vehicle was conducted, appellee had been secured in the back of a squad car.

HELD: COA erred in two respects in its disposition of the State’s appeal. First, it erred to affirm the trial court’s grant of appellee’s suppression motion on the basis that the initial detention was illegal without first remanding the cause to the trial court for specific findings of fact with respect to whether the appellee failed to signal his intention to turn within a hundred feet of the intersection. Second, it also erred to affirm the trial court’s grant of appellee’s suppression motion without first addressing the State’s alternative argument that the arrest warrants attenuated the taint of any initial illegality, and that the K-9 sniff provided probable cause to justify the warrantless search of the van under the automobile exception. In the event that COA, on remand, rules in the State’s favor with respect to the second issue, it should reverse the trial court’s ruling on the suppression motion and remand the cause for trial. But if COA rules in appellee’s favor with respect to the second issue, it should then remand the cause to the trial court for specific findings of fact and a ruling of law as to the first issue, viz: whether the initial detention was justified by at least a reasonable suspicion that appellee failed to signal within a hundred feet of the intersection.

Blackman v. State, __S.W.3d__ (Tex.Crim.App. No. 01-08-00138-CR, 4/13/11); Reversed & remanded

Appellant was convicted of possessing a controlled substance (three kilograms of cocaine) with intent to deliver. The cocaine was found behind the driver’s seat of a van in which appellant was a front-seat passenger. During its closing arguments, the defense claimed that the State did not prove beyond a reasonable doubt that appellant “either put [the cocaine] in his car or was aware of it” or that he “aided, assisted and encouraged” any of the others to commit the offense. The State claimed that this defied common sense. COA decided the evidence was legally insufficient to support the possession element.

HELD: COA misapplied the Jackson v. Virginia standard by asking itself whether it believed that the evidence is sufficient to support appellant’s guilt instead of asking whether a rational trier of fact could have found appellant guilty beyond a reasonable doubt.

State v. McLain, __S.W.3d__ (Tex.Crim.App. No. PD-0946-10, 4/13/11); Reversed & remanded

A grand jury indicted appellee on possession with intent to deliver meth. Appellee’s trial counsel filed a motion to suppress the contraband seized as a result of a search authorized by a search warrant. The trial court granted the motion to suppress, and COA affirmed.

CCA granted review on the following grounds: (1) Does an appellate court violate the prohibition on “hypertechnical” review of a warrant affidavit when it strictly applies rules of grammar and syntax in its analysis? (2) Is it appropriate for an appellate court to base its opinion on implications found within a warrant affidavit, rather than deferring to any reasonable inferences the reviewing magistrate could have drawn from the affidavit? (3) Did the appellate court err by failing to address whether the trial court afforded appropriate deference to the reviewing magistrate’s implicit finding that the informant described in the affidavit saw the meth “in the past 72 hours”?

HELD: Reviewing courts should only be concerned with whether the magistrate’s determination in interpreting and drawing reasonable inferences from the affidavit was done in a commonsensical and realistic manner, which bars a “hypertechnical” review of syntax and grammar. Furthermore, reviewing courts should defer to all reasonable inferences that the magistrate could have made.

Writs of Habeas Corpus

Ex parte Ramey, __S.W.3d__ (Tex.Crim.App. No. WR-74,986-01, 4/6/11); Filed & set

CCA voted to file and set this case to decide how or whether CCA’s opinion in Coble v. State, 330 S.W.3d 253 (2010), impacts Ramey’s claim that the trial judge erred to admit an expert witness’ future-dangerousness testimony because it violated the federal Eighth Amendment and Due Process Clause. Dissent argues that Ramey’s claim was rejected in Barefoot v. Estelle, 463 U.S. 880 (1983), and the law has not since changed.

Ex parte Spencer, __S.W.3d__ (Tex.Crim.App. No. AP-76, 244, 4/20/11); Denied

Applicant was convicted of murder and sentenced to 35 years’ confinement. His motion for new trial was granted. On retrial, he was convicted of aggravated robbery and sentenced to life in prison. The conviction was affirmed on appeal. Applicant filed an application for writ of habeas corpus claiming that he is innocent, that trial counsel rendered ineffective assistance, and that the State violated Brady v. Maryland, 373 U.S. 83 (1963), and Mooney v. Holohan, 294 U.S. 103 (1935).

Having been remanded to the trial court for consideration twice already, CCA filed and set this case for submission and ordered the parties to brief whether applicant properly raised a free-standing actual innocence claim, whether the evidence he relies on is newly discovered or newly available, whether CCA should consider advances in science and technology when determining whether evidence is newly discovered or newly available, and whether applicant has shown by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence.

HELD: Both CCA and the trial court rejected all claims except for the bare innocence claim. The most relevant piece of evidence is whether certain eyewitnesses could have facially identified the applicant under various light conditions, as determined by expert witness testimony. CCA concluded that even if the evidence was reviewed as new, it does not unquestionably establish applicant’s innocence and fails to meet the threshold elucidated in Ex parte Franklin, 72 S.W.3d 671 (Tex.Crim.App. 2002).

Writ of Mandamus

In re Brown, __S.W.3d__ (Tex.Crim.App. No. WO-75,485-01, 4/13/11); Denied

Relator requests CCA order the trial court to enter a judgment nunc pro tunc awarding him a certain period of pretrial jail-time credit.

HELD: COA rightly denied relator mandamus relief. In denying the motion again, CCA wrote additionally to alert unwary trial counsel of the need to address an issue such as the one presented in this case at the appellate level rather than relying upon the illusory promise of a post-conviction remedy. A motion for judgment nunc pro tunc or a writ of mandamus to the appellate court, if such a motion is denied, will provide a remedy only if the right to pretrial jail-time credit is absolutely indisputable under the terms of Tex. Code Crim. Proc. art. 42.03, § 2(a)(1). In summary, if a claim of pretrial jail-time credit involves a question of the proper construction of the statute trial counsel would do well to try to preserve the issue for appellate resolution; post-conviction remedies will prove to be of no avail.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Thomas v. State, No. 01-08-00902-CR, 2010 WL 4925846 (Tex.App.—Houston [1st Dist] 11/30/10)

Officer’s statement to D during traffic stop, to the effect that officer was going to take D’s refusal to answer as a refusal to consent to breath test, did not render D’s consent to breath test involuntary. Officer, after repeatedly asking D whether he was willing to consent to a breath test and failing to get a clear answer, stated to D that he was going to take D’s refusal to answer as a refusal to consent. Said statement did not impose the level of psychological pressure necessary to render D’s consent involuntary.

Overshown v. State, 329 S.W.3d 201 (Tex.App.—Houston [14th Dist] 12/2/10)

“[A] traffic stop made for the purpose of issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.”

Flores v. State, No. 13-09-00413-CR, 2010 WL 4901408 (Tex.App.—Corpus Christi 12/2/10)

Even though D sustained head lacerations in car accident, D’s post-accident behavior (e.g., unsteady gait) was attributed to intoxication to provide sufficient evidence that D was intoxicated at the time of the accident. “Each officer testified that he believed [D] was intoxicated. Each based his opinion on one or more of the following: (1) the smell of alcohol on [D’s] breath; (2) the smell of alcohol emanating from his vehicle; (3) [D’s] non-compliance, his red, bloodshot eyes, his slurred, loud speech, and his unsteady gait and balance; (4) the results of his field sobriety tests; and (5) the results of the portable breath test. . . . When [officer] and [D] arrived at the Cameron County Jail, the medic advised [officer] that, because of the lacerations, the bleeding, and the dried blood, the jail personnel would not accept [D] until he received a medical clearance. According to [officer], this decision had nothing to do with a head injury.”

Alford v. State, 333 S.W.3d 358 (Tex.App.—Fort Worth 2010)

Although D was in custody when officer held up a flash-drive and asked D what it was and if it belonged to D, the question was deemed an administrative booking question rather than a custodial interrogation. The court likened the flash-drive inquiry to cases holding that officer’s asking arrestee for his name, address, name of spouse, and like information deemed “routine booking questions.”

Woodruff v. State, 330 S.W.3d 709 (Tex.App.—Texar­kana 2010)

A defendant’s age and whether or not he engages in arguments with investigators deemed relevant factors in determining whether a non-custodial or post-Miranda statement is made voluntarily. Here, D “was a 19-year-old college student and did not appear to be unduly intimidated during the interview.”

Prosecutors, by instructing sheriff’s office to record D’s phone communications with his attorneys and provide prosecutors with copies of recordings, did not prejudice D in manner as to require dismissal of indictment; recordings supposedly did not provide State with useful information and district attorney’s office recused itself, letting State’s Attorney General’s Office prosecute. “The State does not challenge the trial court’s conclusion that [D’s] Sixth Amendment right to counsel was violated. . . . In our review of the record, we have reviewed the telephone calls recorded by the Hunt County Sheriff’s Office at the request of the Hunt County District Attorney’s Office. . . . Approximately 54 of the calls were made to [D’s] defense counsel or his office staff. . . . Our review failed to discover any privileged information of even the most marginal value to the State. Although not for lack of trying, the Hunt County District Attorney’s Office failed to discover anything of value when it violated [D’s] constitutional rights.”

State v. Pina, No. 05-10-00026-CR, 2010 WL 4946140 (Tex.App.—Dallas 12/7/10)

The nervousness with which gun show patron purchased a gun, along with what appeared to officer to be a prison-gang tattoo on patron’s neck, provided RS that patron was a felon in possession of firearm. “[Officer in parking lot] was notified that officers inside the complex had seen three individuals ‘acting in suspicious manners . . . [with] tattoos indicative of gang affiliations . . . purchasing weapons and ammunition.’ One of those individuals, later identified as [D], had a star tattoo on his neck that allegedly was ‘indicative of an affiliation to the Tango Blast gang.’ Although [officer] did not specialize in gang affiliation, he did have some knowledge of the Tango Blast Gang. He knew that Tango Blast was a prison gang and, to be a member, the person had to have had a conviction and been to prison.” The appellate court, in finding RS existed, reversed the trial court’s granting of D’s motion to suppress.

Valdez v. State, No. 04-09-00420-CR, 2010 WL 5269818 (Tex.App.—San Antonio 12/15/10)

Purported common-law spouse of D did not have actual or apparent authority to consent to officer’s warrantless search of D’s lock box stored in bedroom of home, given that she did not know where box was located and that she reportedly knew nothing about box.

D’s mother had apparent authority to consent to search of the lock box, even though she was not owner of box and did not have authority to unlock it, where she appeared to officer to be owner of home (even though she did not own it), she invited officer directly to bedroom upon officer’s request to collect adult videos for evidence, she retrieved box from closet, unlocked box with key, and placed adult videos on bed. “[Mother’s] recollection of the event, however, was very different. She stated that she did not give [officer] permission to enter the house. She explained that [officer] told her [D] had given consent to search, and that she needed to accompany him to the bedroom. She stated that [officer] took the lock box from the closet, and ordered her to unlock it. She had a key ring in her pocket, and after unsuccessfully trying several keys, [officer] got mad, grabbed the keys from her, and opened the box himself. [Mother] claimed the police threatened to arrest her if she did not cooperate.” However, the appellate court, in viewing the evidence in the light most favorable to the trial court’s ruling, adopted the officer’s account, to wit: “[Officer] testified that he believed that [mother] was the owner of the home because she was the person in control. It appeared to [officer] that [mother] had common authority over the lock box because she knew exactly where it was located and had the key.”

State v. Kidd, No. 03-09-00620-CR, 2010 WL 5463893 (Tex.App.—Austin 12/30/10)

Even though D admitted he failed to signal lane change 100 feet in advance of turn, the trial court granted motion to dismiss based on conclusion that strict enforcement of the 100-foot requirement was “a violation of one’s right to be free from unreasonable seizures.” The appellate court, in reversing the trial court, observed that a driver’s unfamiliarity with the neighborhood and indecisiveness about which direction to turn simply does not excuse his turn-signal violation. “Although the trial court concluded that enforcement of the 100-foot rule ‘leads to unreasonable, perhaps unforeseen, circumstances,’ we cannot say that the statute’s mandatory requirement that a driver intending to turn must ‘signal continuously for not less than the last 100 feet’ leads to absurd results.”

Farhat v. State, No. 02-10-00030-CR, 2011 WL 56056 (Tex.App.—Fort Worth 1/6/11)

D’s erratic driving plus the presence of an empty pill bottle found in D’s vehicle was insufficient to support issuance of a blood-draw search warrant. “[C]ontrary to the trial court’s finding that the officer saw ‘pills in the console’ of [D’s] vehicle, the affidavit states only that the officer saw two pill bottles in the center console. The affidavit does not state that the bottles actually contained pills, and even if a reasonable inference could be drawn that the bottles did contain pills, the affidavit was silent as to the type of pill bottles, whether they were prescription or over-the-counter medicine bottles, whether [D] admitted to consuming pills from the bottles, or whether [D’s] demeanor or appearance suggested that he had consumed them. . . . The remaining facts contained in the affidavit show that [D] was driving ten miles below the speed limit shortly before 1:00 a.m., that he ‘was weaving from sided [sic] to side,’ that he turned on his right-turn signal before turning the opposite direction into the parking lot, and that he refused field sobriety tests. We do not know from the affidavit the extent of [D’s] weaving or whether he was weaving outside of his lane or into oncoming traffic nor is it reasonable to infer such facts. . . . [W]e hold that the magistrate did not have a substantial basis for concluding that there was a fair probability or substantial chance that [D] had committed the offense of DWI or that evidence of intoxication would be found in [D’s] blood.”

Alleman v. State, No. 09-10-00173-CR, 2011 WL 193496 (Tex.App.—Beaumont 1/19/11)

D’s act of pretending to talk on his cell phone during the traffic stop was among the circumstances that provided officer RS to expand scope of stop. “While looking in the console, [D] opened his cellular telephone and held it to his ear. [Officer] did not hear the phone ring and he noticed that [D] was not speaking into the phone. [Officer] found this ‘kind of odd.’ . . . While conducting the traffic stop, [officer] observed several facts that led him to believe that another offense was occurring: (1) [D] stepped out of his vehicle almost immediately after being stopped, (2) [D] silently held his telephone to his ear, (3) [D] claimed to be on a business trip, but had no clothing or other items to corroborate this claim, (4) [officer] smelled marijuana when [D] retrieved his insurance papers, and (5) [officer] saw what appeared to be marijuana residue when he walked to the drivers side door of the vehicle.”

Arroyo v. State, No. 01-10-00136-CR, 2011 WL 286136 (Tex.App.—Houston [1st Dist] 1/27/11)

“Sunday at 4:50 a.m.” deemed “a time at which more individuals drive intoxicated.” Driving below the speed limit weighed in favor of RS for DWI.

June 14, 2011 SDR

Vol. XXVI, No. 15: Electronic Edition

Please do not rely solely on the summaries below. Each case name links to the full text of the opinion, which we recommend you read in addition to these brief synopses. The SDR is sent to current TCDLA members.

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

SUPREME COURT

Certiorari from the Sixth Circuit

Bobby v. Mitts, 131 S. Ct. 1762 (U.S. 2011)

Reversed: Per curiam

Facts: Harry Mitts drank until he became intoxicated and then shot and killed an African American man, while speaking racial epithets. During the police shoot-out that followed, Mitts shot and killed one police officer and wounded two before being apprehended. At trial, Mitts did not contest the evidence that he had killed two men, but he instead attempted to establish that he was too intoxicated to form the required intent to kill. After a penalty hearing, the jury recommended the death penalty on both aggravated murder counts and terms of imprisonment for the attempted murders. The trial court sentenced Mitts to death for the aggravated murders and to terms of imprisonment for the attempted murders.

The Ohio Court of Appeals affirmed the convictions and sentences, and the Ohio Supreme Court affirmed and denied rehearing, ruling that the trial court should have instructed the jury to merge duplicative death penalty specifications, but holding that the error did not influence the jury and was resolved by re-weighing on appeal. Mitts filed a petition for a writ of habeas corpus. A federal judge in Cleveland affirmed the sentence, but the U.S. Court of Appeals for the Sixth Circuit decided to vacate.

Question: Were the jury instructions given at the penalty phase of the murder trial contrary to clearly established law for purposes of the Antiterrorism and Effective Death Penalty Act?

Conclusion: No. The Supreme Court summarily reversed the appellate court.

Certiorari from the Supreme Court of Kentucky

Kentucky v. King, 179 L. Ed. 2d 865 (U.S. 2011)

Reversed, remanded: Alito (8-1); Ginsburg dissented

Facts: Police officers entered an apartment building in pursuit of a suspect who sold crack cocaine to an undercover informant. The officers lost sight of the suspect and mistakenly assumed he entered an apartment from which they could detect the odor of marijuana. After police knocked on the door and identified themselves, they heard movements, which they believed indicated evidence was about to be destroyed. Police forcibly entered the apartment and found Hollis King and others smoking marijuana. They also found cash, drugs and paraphernalia. King entered a conditional guilty plea, reserving his right to appeal denial of his motion to suppress evidence obtained from what he argued was an illegal search.

The Kentucky Court of Appeals affirmed the conviction, holding that exigent circumstances supporting the warrantless search were not of the police’s making and that police did not engage in deliberate and intentional conduct to evade the warrant requirement. The Kentucky Supreme Court reversed the lower court, finding the entry was improper. The court held that the police were not in pursuit of a fleeing suspect when they entered the apartment, since there was no evidence that the original suspect knew he was being followed by police.

Question: Does the exclusionary rule, which forbids the use of illegally seized evidence except in emergency situations, apply when the emergency is created by lawful police actions?

Conclusion: Yes: “The exigent circumstances rule applies when the police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment.” Justice Ginsburg dissented, contending “the Court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases.”

Appeal From the U.S. District Courts for the Eastern and Northern Districts of California

Brown v. Plata, 563 U.S. ____, 09-1233 (5/23/11)

Affirmed: Kennedy (5-4); Scalia dissented w/Thomas; Alito dissented w/Roberts

Facts: The Prison Law Office in Berkeley, Calif., filed a class-action lawsuit in 2001 on behalf of Marciano Plata and several other prisoners, alleging that California prisons were in violation of the Eighth Amendment to the Constitution, which bans “cruel and unusual punishment.” Following a lengthy trial, a special panel of three federal judges determined that serious overcrowding in California’s 33 prisons was the “primary cause” for violations of the Eighth Amendment. The court ordered the release of enough prisoners so the inmate population would come within 137.5 percent of the prisons’ total design capacity. That amounts to between 38,000 and 46,000 inmates being released.

Question: Does a court order requiring California to reduce its prison population to remedy unconstitutional conditions in its correctional facilities violate the Prison Litigation Reform Act?

Conclusion: No: “The court-mandated population limit is necessary to remedy the violation of prisoners’ constitutional rights and is authorized by the PLRA.” Justice Scalia filed a dissenting opinion in which he admonished the majority for affirming “what is perhaps the most radical injunction issued by a court in our Nation’s history: an order requiring California to release the staggering number of 46,000 convicted criminals.” Justice Alito filed a dissenting opinion in which he wrote that the “Constitution does not give federal judges the authority to run state penal systems.”

Summaries by Oyez. For a list of issues pending before the Court, click here.

FIFTH CIRCUIT

Rocha v. Thaler, 626 F.3d 815 (5th Cir. 2010).

Texas state death-sentenced defendant was not entitled to federal habeas relief, under Brady v. Maryland, 373 U.S. 83 (1963), that the State withheld material impeaching evidence about one of the investigating detectives (namely, his professional and romantic relationship with the sister of a State’s witnesses, and a disciplinary record). The evidence did not create a reasonable probability of a different outcome, and hence was not material under Brady, given the fact that the evidence was redundant of the testimony of the other investigating detective and given defendant’s confession; the same was true with respect to the testimony of the witness himself. Furthermore, defendant was not entitled to a certificate of appealability on the questions of whether the State violated his rights (as a Mexican citizen) under the Vienna Convention and whether such a violation requires suppression of his confession. On initial consideration, the panel held that, under Balentine v. Thaler, 609 F.3d 729 (5th Cir. 2010), withdrawn by 626 F.3d 842 (5th Cir. 2010), defendant had at least a colorable argument that his ineffective-counsel claim (based on the failure to investigate/produce mitigation evidence) was denied by CCA on the merits, not as the result of an adequate and independent state law procedural ground; the panel initially granted a certificate of appealability on this claim. However, on denial of rehearing, the panel held that under a proper view of the law (also reflected in the substituted opinion in Balentine), the state court’s decision on this issue had to be viewed as rested on an adequate and independent state law procedural bar, thus precluding federal habeas relief. (Judge Haynes filed a specially concurring opinion, in which she agreed that precedent required this construction of the state court’s decision, but she suggested it might bear further examination by some court.)

Balentine v. Thaler, 626 F.3d 842 (5th Cir. 2010), withdrawing 609 F.3d 729 (5th Cir. 2010).

In its initial opinion, the Fifth Circuit panel had held that, in light of Ex parte Campbell, 226 S.W.2d 418 (Tex.Crim.App. 2007), and Ruiz v. Quarterman, 504 F.3d 523 (5th Cir. 2007), the district court should have, pursuant to Fed. R. Civ. P. 60(b), set aside its judgment denying Texas death-sentenced defendant federal habeas relief due to a supposedly adequate and independent state procedural default. Accordingly, the Fifth Circuit initially reversed the district court’s order denying defendant’s Rule 60(b) motion and remanded for consideration of defendant’s ineffective-counsel claim, including any necessary evidentiary hearing. However, in the substituted opinion, the panel held that it erred in interpreting Ruiz to mean that uncertainty about the basis of a state-court decision should give rise to a presumption that the state court reached the merits rather than relying upon a state procedural bar. In light of this correct understanding of Ruiz, the district court did not err in denying defendant’s Rule 60(b) motion because the district court did not err in concluding that the state-court decision on defendant’s ineffective-counsel claim was grounded on an adequate and independent state procedural bar; the Fifth Circuit affirmed the district court’s denial of defendant’s Rule 60(b) motion. On petition for rehearing en banc, the poll for rehearing en banc failed by a vote of 11-4. Judge Dennis filed a lengthy dissent from denial of rehearing en banc, in which he was joined by Judge Benavides. Judge Haynes filed a short statement dissenting from denial of rehearing en banc.

United States v. Hoeffner, 626 F.3d 857 (5th Cir. 2010).

The government’s abandonment of the honest-services theory during the first trial meant the Double Jeopardy Clause barred retrial on the honest-services theory where (1) defendant was indicted for mail and wire fraud under alternative theories of deprivation of honest services and deprivation of money and property, (2) the government abandoned the honest-services theory during trial, and (3) the jury failed to reach a verdict, resulting in the declaration of a mistrial. However, retrial was not precluded on the money-and-property-fraud theory; the district court did not err in denying the defendant’s double-jeopardy-based motion to dismiss the indictment filed following the mistrial.

United States v. Garcia-Paulin, 627 F.3d 127 (5th Cir. 2010).

District court committed reversible plain error in finding an adequate factual basis to support defendant’s guilty plea to bringing an alien to the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(i) and 18 U.S.C. § 2; “bringing to the United States” under this statute contemplates that the defendant have actually accompanied the alien, or arranged to have him accompanied, across the border into the United States, or at least lead them to or meet them at the border. Defendant did not commit this offense by his stipulated conduct of obtaining a fraudulent immigration stamp for the alien’s Mexican passport and telling the alien the stamp would not work to accomplish entry at the border, but would allow the alien to work once he came over illegally on his own power. The error was clear and obvious, it affected defendant’s substantial rights, and COA exercised its discretion on plain-error review to vacate the conviction and remand.

United States v. Thomas, 627 F.3d 146 (5th Cir. 2010).

(1) The evidence was sufficient for a rational jury to find defendants guilty of numerous bank robberies and related offenses; circumstantial evidence that is not incriminating standing alone may recur in a pattern, from which jurors can reasonably infer that evidence otherwise susceptible of innocent interpretation is plausibly explained only as part of the pattern. Under this rubric, a reasonable inference is that the defendants committed all the robberies: four of them shared a number of common characteristics. Although the evidence was weaker as to one defendant on the fifth one, the jury could reasonably infer that the other defendant had the same partner on that robbery.

(2) Where two defendants (half-brothers) were charged with numerous bank robberies and related offenses, district court did not abuse its discretion in refusing to sever the two defendants’ trials; the defendants failed to demonstrate, even on appeal, any prejudice which could not be cured by the limiting instructions given.

(3) Defendant’s 1,435-month conviction (151 months for conspiracy and bank robbery, and 1,284 months for firearms offenses) did not constitute cruel and unusual punishment under the Eighth Amendment, because it was not grossly disproportionate to the violent crimes.

(4) District court did not abuse its discretion in denying defendant’s motion for a new trial, or for an evidentiary hearing, on defendant’s allegations that by withholding information during voir dire, a biased juror sat on his jury. A party seeking a new trial on this basis must demonstrate that a juror failed to answer honestly a material question on voir dire, and must further show that a correct response would have provided a valid basis for a challenge for cause. Here, defendant failed to show even that the juror lied, much less any actual or implied bias that would have disqualified the juror from service.

COURT OF CRIMINAL APPEALS

State’s PDR from Dallas County

Archie v. State, __S.W.3d__ (Tex.Crim.App. No. PD-0189-10, 6/8/11)

Reversed, remanded: Price (8-0)

A jury convicted appellant of murder, and the trial judge assessed punishment at 40 years’ imprisonment. COA reversed the conviction and remanded the cause to the trial court, concluding that the trial court abused its discretion by denying appellant’s motion for a mistrial. In its PDR, the State argues that COA erred when it found the prosecutor improperly commented on appellant’s failure to testify during his closing argument. Moreover, even assuming the prosecutor’s argument was improper, the State contends, it was within the trial court’s discretion to deny the motion for mistrial.

CCA concludes that COA did not err in holding that at least two of the rhetorical questions posed by the prosecutor directly to appellant during his final argument constituted improper comment on his failure to testify. However, the prejudice caused by the prosecutor’s two improper questions was not so great that a jury would necessarily have discounted the trial court’s firm instructions to disregard them. It is unlikely that the jury would have ignored the court’s explicit instructions and convicted appellant, not on the compelling evidence introduced against him, but because he failed to take the witness stand to explain himself. See Mosley v. State, 983 S.W.2d 249 (Tex.Crim.App. 1998). Under these circumstances, CCA holds that it was well within the trial court’s discretion to deny appellant’s motion for mistrial.

State’s PDR from Dallas County

Davis v. State, __S.W.3d__ (Tex.Crim.App. No. PD-0845-10, 6/8/11)

Vacated, remanded: Price (8-0); Johnson concurred

A jury convicted appellant of felony escape; he escaped the Dallas County Jail while being treated at Parkland Hospital, stole a taxicab and drove to Oklahoma, leading lawmen on a protracted high-speed chase. On appeal, appellant argued that the State failed to bring him to trial within the time limits of the Interstate Agreement on Detainers Act (IADA) and that the trial court therefore erred in failing to dismiss the indictment with prejudice in accordance with the remedial terms of that statute. COA agreed and ordered the trial court to dismiss the indictment with prejudice. The State argues that the trial court committed an error that prohibited the proper presentation of the case for appeal and, therefore, COA should have remanded the cause to the trial court, under Tex. R. App. P. 44.4, to remedy that error. The State maintains that, upon a proper presentation of the record for appeal, it should be evident to COA that the IADA was not violated.

CCA agrees with appellant that there is nothing in IADA Article IV that imposes a burden on the trial court, expressly or by necessary implication, to ensure that any proffer of good cause (though it must be made in open court) is memorialized by the court reporter. If no such burden exists by virtue of the IADA, then Rule 44.4 cannot be invoked to require COA to remand the cause for remedial action without first identifying some other provision of law that assigns a burden exclusively to the trial court to secure the presence of a court reporter.

However, appellant, as the appealing party, had an obligation to present a record to COA that demonstrated he was entitled to appellate relief. In the IADA context, this meant he had to show that the State did not satisfy its trial-level burden to present good cause for the continuance, and that the trial court therefore abused its discretion to grant it. On the state of the record, the appellate court could not say that the trial court abused its discretion to find that the continuance was necessary or reasonable for purposes of Article IV. It appears that the State proffered the re-indictment as its good cause.

Appellant’s PDR Granted from Dallas County

11-0064, 11-0065 – William Kyle Walters – Aggravated Assault

Is a court’s refusal to compel testimony from a defense witness based on her invocation of her 5th Amendment rights without a determination of a reasonable basis for “a real and substantial fear of prosecution” a violation of Petitioner’s rights to due process and due course of law?

For a list of issues pending before the court, click here.

COURT OF APPEALS

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Tijerina v. State, Nos. 07-09-00344-CR, 07-09-00345-CR, 2011 WL 667884 (Tex.App.-Amarillo Feb 24, 2011).

After D told officers to leave his property, actions taken by eyewitness, at officer’s behest, in approaching D’s residence and peering through a window constituted a “search” for Fourth Amendment purposes. Because the officers no longer enjoyed the implied authority to approach D’s residence, neither did the eyewitness acting at officer’s behest.

State v. Molder, No. 02-09-00385-CR, 2011 WL 679325 (Tex.App.-Fort Worth Feb 24, 2011).

While trooper’s testimony established that DPS has a general policy to inventory vehicles following arrest, the testimony was deficient in that it related nothing about the scope of said policy and how it affects closed containers such as D’s cloth bag. Thus, D’s motion to suppress deemed properly granted. “We recognize that courts have held that an officer does not need to specifically mention ‘closed containers’ to establish a policy regarding them…. But we hold that in this case, [trooper’s] testimony, as the sole evidence at the suppression hearing, was too barren to show any particular standardized criteria or routine concerning the scope of the inventory; the testimony is therefore insufficient for us to infer the extent of DPS’s policy regarding closed containers. Also, we conclude that we cannot infer DPS’s policy to open closed containers from the mere fact that [trooper] did so; such an inference would eviscerate the requirement described in [Florida v. Wells, 495 U.S. 1 (1990)].”

Wise v. State, No. 02-09-00267-CR, 2011 WL 754415 (Tex.App.-Fort Worth Mar 3, 2011).

Evidence deemed insufficient that D knowingly possessed the child porn discovered on his computer because D bought the computer second-hand at a flea market, the computer contained viruses capable of covertly placing images on the computer, and it was impossible to determine when the images were placed on, accessed, or deleted from, the computer.

Dissent: “the majority holds that when defendants possess illegal pornographic images on their computers but delete them and send them to their hard drives’ free space before the police discover them, the State cannot prove intentional or knowing possession of the images…. The majority mischaracterizes the evidence about the viruses on [D’s] computer. [The] State’s digital forensic examiner, testified that the computer had several viruses and then said that some viruses, hypothetically, are capable of remotely accessing a computer and storing images on it. [The forensic examiner] did not say that the viruses found on [D’s] computer served such a purpose. She did explain, however, that the probability of a malicious outsider using a virus to store child pornography in the free space of another computer is low…. [A] lack of direct evidence and the existence of alternative hypotheses will be common features of many cases in which illegal images have been deleted and reside in a computer’s free space.”

Miller v. State, No. 03-09-00670-CR, 2011 WL 832126 (Tex.App.-Austin Mar 9, 2011).

D was without a reasonable expectation of privacy as to thumb drive (containing child porn) that he left in a computer at his place of employment (a police station) and thus lacked standing to challenge search of the thumb drive because D had previously left the thumb drive in an area accessible to others, the drive did not contain any marks identifying D, and D did nothing to prevent others from accessing the drive (e.g., password) even though he possessed advanced computer knowledge.

May 17, 2011 SDR

Vol. XXVI, No. 14: Electronic Edition

Please do not rely solely on the summaries below. Each case name links to the full text of the opinion, which we recommend you read in addition to these brief synopses. The SDR is sent to current TCDLA members.

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

FIFTH CIRCUIT

United States v. Jackson, 625 F.3d 875 (5th Cir. 2010).

District court violated defendant’s rights under the Confrontation Clause by admitting into evidence notebook ledgers received from a co-conspirator during a proffer session, and an investigating officer’s testimony pertaining thereto, both of which were used to show the amount of cocaine the co-conspirator distributed to defendant. The ledgers fell outside the business-records and co-conspirator-statement exceptions to the right of confrontation recognized in Crawford v. Washington, 541 U.S. 36 (2004), and hence were “testimonial.” The ledgers were not properly authenticated as business records because the agent through whom they were introduced offered no testimony as to who prepared the ledgers and entries, and under what circumstances. There was no evidence that they were kept in the regular course of a drug-trafficking enterprise. For similar reasons, the ledgers were not sufficiently authenticated so as to render them admissible under the co-conspirator-statement exception. Accordingly, the district court erred in admitting them. This error was not harmless beyond a reasonable doubt; given the government’s reliance on the notebooks in its closing argument, the government could not show that the notebooks did not contribute to the conviction. The Fifth Circuit vacated the conviction and remanded for further proceedings, including an opportunity for a new trial. (Judge Dennis concurred, primarily to caution that authenticated business records that fall within the business-records exception to the rule against hearsay might still be “testimonial” under Crawford and progeny.)

United States v. Houston, 625 F.3d 871 (5th Cir. 2010).

Where defendant received a 25-year sentence under 18 U.S.C. § 924(c) for brandishing a firearm in connection with one Hobbs Act robbery, and a 7-year consecutive sentence under the same statute for brandishing a firearm in connection with another Hobbs Act robbery, the 7-year consecutive sentence was not barred by the first clause of § 924(c)(1)(A)(i), “[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law….” The Fifth Circuit held that the statute’s “greater minimum sentence” exception most reasonably refers only to another, greater sentence for the same, specific crime of firearm possession. Here, the 25-year sentence and the 7-year sentence were for separate crimes of possession. The Fifth Circuit noted, but rejected, the Second Circuit’s different rule, namely, that the “except” clause applied to conduct arising from the same criminal transaction or set of operative facts as the crime yielding the greater mandatory minimum sentence, see United States v. Parker, 577 F.3d 143, 147 (2d Cir. 2009).

United States v. Bohuchot, 625 F.3d 892 (5th Cir. 2010).

(1) In prosecution for bribery, conspiracy to commit bribery, and money laundering conspiracy, defendants’ objection to the definition of the “corruptly” element of bribery did not preserve their claim that the indictment was constructively amended by the proof adduced at trial. On plain-error review, it was questionable whether there was clearly or obviously a constructive amendment of the indictment. In any event, neither the third nor the fourth prong of plain-error review was satisfied. It was defendants who first touched upon the areas of evidence that they claimed on appeal should not have been before the jury. Moreover, the evidence of bribery was strong, and it was improbable that the jury would have acquitted if only the evidence had been excluded.

(2) Even if prosecutor’s comments during closing argument could be construed as an impermissible comment on one defendant’s failure to testify (and the Fifth Circuit suggested that this was questionable, as the government’s innocent explanation of the statements was “plausible”), the comments nevertheless did not require reversal on plain-error review, because they were not sufficiently prejudicial to cast serious doubt on the correctness of the jury’s verdict, especially given the court’s cautionary instruction to draw no inference from a defendant’s failure to testify.

(3) Assuming, without deciding, that the jury instructions for the money laundering conspiracy count (a violation of 18 U.S.C. § 1956(h)) incorrectly instructed the jury on the mens rea for that offense, the error was harmless beyond a reasonable doubt because, given the overwhelming evidence, no jury could fail to find the defendants guilty of money laundering conspiracy under the correct standard; a fortiori, there was no plain error (the standard applicable in the absence of an objection to the instructions).

(4) In bribery case, district court erred in calculating the value of the bribe for purposes of USSG § 2C1.1. Particularly, it was error to ascribe to defendant a portion of the value of two yachts he was permitted to use when he had no ownership interest in those yachts. However, the error was harmless because, including the fair rental value of comparable yachts as part of the value of the bribe to the defendant, the same 14-level Guideline enhancement would have applied, and thus the Guideline range would have been unchanged.

United States v. Marquez, 626 F.3d 214 (5th Cir. 2010).

Defendant’s prior conviction for possession of a deadly weapon by a prisoner (in violation of N.M. Stat. Ann. § 30-22-16) was one for a “crime of violence” under the “residual clause” of USSG § 4B1.2(a)(2); therefore, defendant was properly treated as a “career offender” under the Sentencing Guidelines.

United States v. Juarez, 626 F.3d 246 (5th Cir. 2010).

District court did not clearly err in applying a 4-level increase under USSG § 2K2.1(b)(5) (for “engag[ing] in the trafficking of firearms”); there was considerable evidence from which the district court could infer that defendant knew, or had reason to believe, that her conduct would result in the transport, transfer, or disposal of a firearm to a person who intended to use or dispose of the firearm unlawfully. Nor did the court err in apply a 4-level increase under USSG § 2K2.1(b)(6) (for knowledge, or constructive knowledge, that the firearm “would be used or possessed in connection with another felony offense”); first, the district court did not plainly err in concluding that another firearms possession or trafficking offense (here, the illegal transportation or smuggling of guns into Mexico) could constitute “another felony offense” under this Guideline; amendments to the Guidelines make clear that another firearms offense may be the “another felony offense” if, as here, that other offense is not the one that serves as the basis for the defendant’s instant federal conviction; finally, the district court did not clearly err in concluding that defendant knew or should have known that the guns would be used or possessed in connection with the offense of smuggling guns into Mexico.

Henderson v. Thaler, 626 F.3d 773 (5th Cir. 2010).

Where death-sentenced Texas defendant was authorized to file a successive federal habeas petition raising a claim that he was mentally retarded and thus ineligible for execution under Atkins v. Virginia, 536 U.S. 304 (2002), the Fifth Circuit vacated the district court’s order finding the mental-retardation claim time-barred, and remanded for the district court to reconsider, in light of the intervening decision in Holland v. Florida, 130 S. Ct. 2549 (2010), whether defendant was entitled to equitable tolling of the AEDPA limitations period. The Fifth Circuit also held that there was no exception to the AEDPA’s limitation periods for person who are “actually innocent” of the death penalty. Accordingly, the Fifth Circuit remanded for reconsideration of whether defendant’s successive petition was timely and, if it was found to be timely, whether the Atkins claim succeeded on the merits. (Judge Wiener filed a dissenting opinion, in which he opined that the AEDPA’s statute of limitations was never meant to apply, and never should be applied, to claims that a person is categorically ineligible for the death penalty under Atkins or similar rules. He argued that a fundamental miscarriage of justice would occur if defendant were not afforded a federal habeas opportunity to prove that he is ineligible for execution under Atkins.)

COURT OF CRIMINAL APPEALS

Writ of Habeas Corpus & Stay of Execution from Tarrant County

Ex parte Kerr, __S.W.3d__ (Tex.Crim.App. No. WR-62,402-03, 4/28/11)

Dismissed, denied: Per curiam; Price dissented w/Johnson

In 2003, a jury convicted applicant of capital murder. The jury answered the special issues submitted pursuant to Tex. Code Crim. Proc. art. 37.071, and the trial court, accordingly, set applicant’s punishment at death. CCA affirmed applicant’s conviction and sentence on direct appeal. In 2004, applicant filed in the trial court his initial post-conviction application for writ of habeas corpus. CCA denied relief. Applicant filed his first subsequent application in the trial court in 2006. This Court dismissed that application because it failed to meet the dictates of Tex. Code Crim. Proc. art. 11.071, § 5. This, his second subsequent application, was filed in the trial court on April 27, 2011.

Applicant presents a single allegation that his initial state habeas counsel rendered ineffective assistance, which denied applicant a proper review of his ineffective assistance of trial counsel claims. Without elaboration, CCA says it has reviewed the application and finds that applicant failed to meet the requirements of Article 11.071, § 5. Accordingly, CCA dismisses his application and denies his motion for stay of execution. Judge Price dissents that applicant presents a more-than-colorable claim of ineffective assistance of counsel at the punishment phase of his trial.

Writ of Habeas Corpus from Tarrant County

Ex parte Bohannan, __S.W.3d__ (Tex.Crim.App. No. AP-76,363, 5/11/11)

Dismissed: Johnson (8-0); Keller concurred; Keasler concurred w/Price, Hervey, Cochran

In 1983, applicant was convicted of aggravated rape and sentenced to 25 years’ imprisonment. He did not appeal. In this writ, applicant contends he was denied a timely preliminary hearing to determine whether there is probable cause to believe he violated his parole. Although applicant has received a preliminary hearing, he argues that this case is not moot because the issues involved herein are clearly capable of repetition, yet evading review, due to the fact that when a writ of habeas corpus is filed seeking to insure the constitutional right to a preliminary hearing, the Texas Department of Criminal Justice (TDCJ) now convenes a late preliminary hearing.

CCA holds that applicant’s claim is not justiciable under the “capable of repetition, yet evading review” doctrine of Weinstein v. Bradford, 423 U.S. 147 (1975), because CCA cannot assume applicant will again be held in custody facing the prospect of a preliminary hearing to determine whether there is cause to believe he violated a condition of his parole. And, applicant has already received such a preliminary hearing on the instant alleged violation. CCA notes that TDCJ must conduct preliminary hearings, as required by Tex. Gov’t Code § 508.2811 and Morrissey v. Brewer, 408 U.S. 471 (1972), within a time frame that meets the demands of due process so that releasees will not be required to seek CCA’s intervention to enforce these rights.

For a list of issues pending before the court, click here.

COURT OF APPEALS

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

In re A.M., No. 11-09-00304-CV, 2011 WL 491018 (Tex.App.-Eastland Feb 11, 2011, pet. filed).

State did not engage in “trickery or deception” in obtaining inculpatory statements juvenile made to polygraph examiner because prior to taking the polygraph exam, juvenile signed a release that expressly authorized polygraph examiner to disclose the results to the probation department. In addition, examiner explained to juvenile that he could be required by law to release the examination results to other parties. Moreover, “[a]bsent an express or implied promise to the contrary, a probation officer is duty bound to report wrongdoing by the probationer when it comes to her attention.”

Miles v. State, No. 11-09-00090-CR, 2011 WL 494885 (Tex.App.-Eastland Feb 11, 2011).

Officer’s observation of D in the act of “talking to a known cocaine addict” deemed a partial basis for RS as to D. “[Officer] testified that there had been at least two robberies in the recent past involving the convenience store where the incident occurred. He also testified that the owner of the convenience store had requested that the police provide extra patrolling in the area due to the high-crime activity. [Officer] observed [D] talking to a known cocaine addict, and he also observed [D] and the known cocaine addict acting suspiciously when he drove up. These facts provided [officer] reasonable suspicion to detain [D] for a Terry stop.”

Carlson v. State, No. 01-09-01030-CR, 2011 WL 649682 (Tex.App.-Houston [1 Dist] Feb 17, 2011).

Minor victim took possession of video tapes containing her nude image with intent to turn them over to police, and, thus, said evidence was not subject to suppression under criminal procedure provision forbidding the admission of evidence seized by any person or officer when that evidence has been obtained in violation of state or federal law; also, the minor victim, unlike D, had a lawful ownership interest in the images, held court. The court observed that the minor victim filed a police report within 48 hours of retrieving the videotapes from D’s (her uncle’s) home. In addition, the minor victim had ownership interest in possessing the images, even though the images were illegal, because she did so in order to preserve her own privacy and to prevent further publication of the images by D.

Hughes v. State, No. 06-10-00160-CR, 2011 WL 662325 (Tex.App.-Texarkana Feb 24, 2011).

Interaction between officer and D was a mere “encounter” rather than an investigative detention, because officer activated squad car’s white overhead lights rather than the red and blue lights; also the position of the quad car relative to D’s vehicle did not entirely prevent D from leaving. “[Officer] observed [D’s] car in a parking lot of [a park] legally parked with the headlights on. As [officer] approached, the headlights of [D’s] vehicle turned off…. [Officer] parked his marked police jeep at an angle to [D’s] car and turned on the vehicle’s bright overhead white lights. [Officer] then illuminated the front of [D’s] vehicle with his spotlight. [Officer] testified he did not observe any illegal activity, but testified the [the park] area has a high incidence of drug and prostitution activity…. [D] argues the initial interaction between [officer and D] was an investigative detention because [officer] parked in front of [D’s] vehicle and activated his overhead [white] ‘take-down’ lights…. It is important to note that the lights activated by the police officer in this case were not his overhead emergency lights which flash red and blue, but rather the overhead white safety or ‘take-down’ lights. We believe this distinction to be extremely important…. While under some circumstances, overhead ‘take-down’ lights could be sufficient along with other circumstances to indicate a sufficient demonstration of authority, [such was not the case here].”

May 9, 2011 SDR

Vol. XXVI, No. 13: Electronic Edition

Please do not rely solely on the summaries below. Each case name links to the full text of the opinion, which we recommend you read in addition to these brief synopses. The SDR is sent to current TCDLA members.

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

SUPREME COURT

Certiorari from the Fifth Circuit

Sossamon v. Texas, 563 U.S. ___, 08-1438 (4/20/11)

Affirmed: Thomas (6-2); Sotomayor dissented w/Breyer

Facts: Texas inmate Harvey Sossamon sued the state of Texas and various state officials in their official and individual capacities in a Texas federal district court. In part, he argued he was denied access to the prison’s chapel and religious services in violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA). The district court dismissed the claim.

The Court of Appeals for the Fifth Circuit held that Sossamon could not sue Texas officials in their individual capacities under the RLUIPA. The court reasoned that because the Act was passed pursuant to Congress’ Spending Power and not its Fourteenth Amendment Power, it did not create a cause of action for damages against state officials sued in their individual capacities.

Question: Under the RLUIPA, can a person sue a state official in his individual capacity for damages?

Conclusion: No. “States, in accepting federal funding, do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA.” Justice Sonia Sotomayor filed a dissenting opinion joined by Justice Stephen J. Breyer. “Our precedents make clear that the phrase ‘appropriate relief’ includes monetary relief,” she argued. “By adopting a contrary reading of the term, the majority severely undermines the ‘broad protection of religious exercise’ Congress intended the statute to provide.”

Summaries by Oyez. For a list of issues pending before the Court, click here.

FIFTH CIRCUIT

United States v. Cashaw, 625 F.3d 271 (5th Cir. 2010).

District court did not err in denying minor-role adjustment, under USSG § 3B1.2, to defendant sentenced as a “career offender” under the Guidelines. The only Chapter Three adjustment permitted for career offenders is the adjustment for acceptance of responsibility under USSG § 3E1.1. Thus, career offenders are categorically ineligible for mitigating role reductions under USSG § 3B1.2.

United States v. Cruz-Rodriguez, 625 F.3d 274 (5th Cir. 2010).

District court did not err in applying a 16-level “crime of violence” enhancement under USSG § 2L1.2(b)(1)(A)(ii); although defendant’s prior California state conviction for making criminal threats (in violation of Calif. Penal Code § 422) was not a qualifying “crime of violence” conviction, defendant’s prior California state conviction for willful infliction of corporal injury (in violation of Calif. Penal Code § 273.5) was a qualifying “crime of violence” under § 2L1.2’s residual “crime of violence” definition.

United States v. Allen, 625 F.3d 380 (5th Cir. 2010).

District court did not reversibly err in denying defendant’s motion to suppress evidence (child pornography) seized pursuant to a search warrant; although the search warrant was not sufficiently particularized and although the attachment detailing the items to be seized was not incorporated by reference in the warrant, the fruits of the search were admissible under the good-faith exception to the exclusionary rule. Under the analysis of Herring v. United States, 129 S. Ct. 695 (2009), the particularity defects in the warrant did not merit application of the exclusionary rule. Furthermore, the information in the search warrant affidavit was not stale (though it was 18 months old when the warrant was issued).

United States v. McNealy, 625 F.3d 858 (5th Cir. 2010).

(1) In prosecution for possession and receipt of child pornography, defendant was not impermissibly tried beyond the 70 days prescribed by the Speedy Trial Act (STA); the district court satisfied the STA’s reasons requirement for an “ends of justice” continuance by stating its reasons for the continuance and by stating that those reasons were in the district court’s mind when it granted the continuance. Moreover, although the first continuance was open-ended and did not specify a trial date, a district court may decide to continue a trial indefinitely when it is impossible, or at least quite difficult, for the parties or the court to gauge the length of an otherwise justified continuance. Finally, a second continuance, granted at the behest of the government based on the unavailability of a witness, likewise resulted in excludable time under the STA. Moreover, the requirement to set out ends-of-justice findings did not apply because the continuance was granted under 18 U.S.C. § 3161(h)(3) based on the “absence or unavailability of … an essential witness” and was not granted under 18 U.S.C. § 3161(h)(7).

(2) District court did not err in admitting images of putative child pornography retrieved from defendant’s computer, notwithstanding the fact that no expert testified that these were unaltered images of actual minors actually engaged in the conduct depicted. The Fifth Circuit has held (as have other circuits) that the question of whether images depict actual minors may be decided by lay jurors (or judges) without expert testimony. This case law compelled the conclusion that there was no authentication problem barring admission of the images, especially in the absence of any evidence that the images were not of actual children or that the state of technology is such that the images could have been of “virtual” children.

(3) District court did not err in denying defendant’s motion to dismiss the indictment for failure to receive a fair trial; the alleged pornography was, at all times, “reasonably available” for inspection by the defense, as required by 18 U.S.C. § 3509(m)(2). Defendant had full access to the pornography exhibits and could have done all the forensic tests that he allegedly was prevented from doing. Any concerns about prosecution of a defense expert for possession of child pornography could have been allayed by obtaining a protective order. Finally, defendant did not identify any expert he wished to consult but was prohibited from doing so.

(4) District court did not err in finding that the government’s destruction of defendant’s computer (done after the course of civil forfeiture proceedings) was not done in bad faith. Even though defendant indicated that he intended to contest the forfeiture, and even though the government was negligent in failing to provide defendant with adequate notice of the forfeiture proceedings, there was no evidence that the destruction of the computer was done to impede defendant’s defense in the criminal case. Moreover, it appears highly likely that all relevant evidence was preserved in the forensic images of the working hard drives of defendant’s computers.

COURT OF CRIMINAL APPEALS

Direct Appeal from Cameron County

Ex parte Gutierrez, __S.W.3d__ (Tex.Crim.App. No. AP-76,406, 5/4/11)

Affirmed: Cochran (8-0)

Appellant was convicted of capital murder and sentenced to death for his participation in the robbery and murder of eighty-five-year-old Escolastica Harrison. At the time of Harrison’s murder, she kept about $600,000 cash in her home. Appellant raises five issues on appeal. The first relates to the denial of his motion for counsel; the rest relate to the denial of the motion for DNA testing. CCA holds as follows: (1) Appellant is not entitled to appointed counsel because “reasonable grounds” do not exist for the filing of a motion for post-conviction DNA testing; (2) Appellant’s second issue is without merit because Appellant was “at fault” in not seeking DNA testing at trial; (3) Appellant has not shown that “the single loose hair” that he would like to have tested currently exists or could be delivered to the convicting court; (4) The trial judge acted within his discretion in finding that identity was not and is not an issue in this case; (5) Appellant has failed to establish, by a preponderance of evidence that he would not have been convicted of capital murder if exculpatory results had been obtained through DNA testing.

In sum, granting DNA testing in this case would “merely muddy the waters.” Appellant does not seek testing of biological evidence left by a lone assailant, and a third-party match to the requested biological evidence would not overcome the overwhelming evidence of his direct involvement in the multi-assailant murder.

Application for Writ of Habeas Corpus from Green County

Ex parte Evans, __S.W.3d__ (Tex.Crim.App. No. AP-76,445, 5/4/11)

Granted: Cochran (8-0); Keller concurred

Applicant contends that the Texas Department of Criminal Justice-Parole Division (TDCJ) improperly and without due process placed “Special Condition X” (sex-offender conditions) on him after he had been released on mandatory-supervision parole. Based on the evidence in the record, the habeas judge entered findings that Applicant had not been convicted of a sex offense and that his conviction for Injury to a Child did not involve evidence of sexual abuse. The habeas judge further found that Applicant was not afforded constitutional due process before the sex-offender conditions were imposed. The judge recommended that CCA grant relief. CCA agrees with the habeas judge that under Meza v. Livingston, 623 F.Supp.2d 782 (W.D. Tex. 2009), aff’d in part, 607 F.3d 392 (5th Cir. 2010), Applicant is entitled to immediate reinstatement of his release on mandatory supervision and removal of “Special Condition X” from the terms of his parole.

State’s PDR from Harris County

Ex parte Garza, __S.W.3d__ (Tex.Crim.App. No. PD-0381-09, 5/4/11)

Affirmed: Price (6-2); Keller dissented w/Cochran

After the jury was empanelled and sworn but before trial commenced in this misdemeanor DWI case, one juror became at least temporarily indisposed and the trial was continued for a few days. Ultimately, the trial court declared a mistrial over Appellant’s objection. When the case was reset, Appellant filed a pre-trial application for writ of habeas corpus arguing that because a manifest necessity for the mistrial was lacking, his re-prosecution violated double jeopardy. The convicting court denied relief, but COA reversed and remanded, presumably so that the convicting court might dismiss the information against Appellant.

CCA granted the State’s PDR to consider, inter alia, whether COA erred to hold that the trial court should not have granted the mistrial without first exploring the option of proceeding to trial with only five jurors, Appellant having expressed at least a tentative willingness to waive his constitutional right to a full complement of six. CCA rejects the State’s arguments that there was manifest necessity for a mistrial. Under circumstances in which Appellant’s counsel at least suggested a willingness to proceed with less than a full complement of jurors, the failure of the trial court even to explore that option cannot be attributed to Appellant, whether or not he obtained an express ruling on his suggested alternative or actually executed a formal waiver.

State’s PDR from Lubbock County

Meekins v. State, __S.W.3d__ (Tex.Crim.App. No. PD-0261-10, 5/4/11)

Reversed; Affirmed: Cochran (7-1); Keller concurred; Johnson concurred; Meyers dissented w/ Price

An officer stopped Appellant for a traffic offense and, during that stop, asked if he could search the car. In Appellant’s pocket, officer found a pill bottle containing marijuana. Appellant filed a motion to suppress the evidence, arguing that he did not voluntarily consent to the search of his car. The trial judge denied the motion and Appellant pled guilty to possession of marijuana. COA reversed.

While the audio recording of officer and Appellant’s interaction is not of high quality, careful listening would support an implied finding that appellant replied “Yes” to officer’s sixth and final request to search Appellant’s car. At a minimum, the recording fails to clearly rebut the officer’s testimony that Appellant said, “Yes.” But even if the trial judge concluded that Appellant said, “I guess,” that phrase could reasonably be interpreted as a positive response, a colloquial equivalent of “Yes.” Indeed, the Texas Supreme Court has held that a response of “I guess so” to an officer’s request to search, combined with other circumstances, supported the finding of voluntary consent.

Regardless of whether Appellant said “Yes” or “I guess,” the trial judge was also required to decide what an objectively reasonable person standing in the arresting officer’s shoes would conclude that response meant. Both officer’s and Appellant’s actions immediately after the response supports the trial judge’s implicit finding that Appellant intended to consent. While Appellant’s response of “Yes” or “I guess” may be open to interpretation, there can be little doubt that officer believed Appellant consented because he immediately asked Appellant to step out of the car so that he could search it without difficulty. If Appellant intended to refuse consent, it seems reasonable that he would have objected, complained, or refused to get out of his car. Instead, he readily complied.

State’s PDR from Hale County

Griego v. State, __S.W.3d__ (Tex.Crim.App. No. PD-1226-10, 5/4/11)

Affirmed: Per Curiam (8-0)

A jury convicted Appellant of evading arrest or detention, and assessed punishment at confinement of 10 years. COA found the evidence legally insufficient to support a third-degree felony offense level because the State failed to present proof of a prior conviction at the guilt/innocence stage of trial. Additionally, COA remanded the case for a new trial having determined the evidence was factually insufficient to prove Appellant evaded arrest or detention.

The State contends, among other things, that the case should be remanded to COA in light of CCA’s recent opinion in Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010), in which CCA overruled Clewis v. State and set aside its factual sufficiency standard of review, holding that the Jackson v. Virginia standard for legal sufficiency is the “only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.” In the instant case, COA did not have the benefit of Brooks. CCA remands this case for reconsideration.

Appellant’s PDR Granted from Travis County

10-1547 Dustin Doan Theft

COA erred in holding that the Brazos County Attorney and the Travis County Attorney were not the “same parties” for collateral estoppel purposes.

Appellant’s PDR Granted from El Paso County

10-1675 Abraham Cavazos Murder

1. COA erred when it held manslaughter was not a lesser-included offense of the charged murder.

2. COA erred when it held the trial court did not err by denying Appellant’s request to instruct the jury on manslaughter.

State’s PDR Granted from Smith County

11-0230 Charles Nieto Murder

1. Does the fact that a venireperson shares the same last name as a known criminal family constitute a racially neutral reason for a prosecutor to exercise a peremptory strike? (RR III: 15-17)

2. Does the fact that a venireperson is noted to be “glaring” at a prosecutor during voir dire constitute a racially neutral reason for a peremptory strike? (RR III: 15-17)

3. Did the 1st Court of Appeals fail to consider the “entire record of voir dire” where it did not review the record regarding the prosecutor’s racially neutral reasons for striking four other minority venire persons. Nieto, 2010 Tex. App. LEXIS 9953 * 12-18

Appellant’s PDR Granted from Dallas County

11-0312 Ronnie Tienda, Jr. Murder

COA erred in finding that it was not an abuse of discretion to admit, over objection, MySpace evidence without proper authentication.

State’s PDR Granted from Ector County

11-0435 Joshua Lee Goad Burglary

Does a trial court abuse its discretion by refusing to submit a lesser included instruction that is only “supported” by unrelated hearsay admitted through the victim?

For a list of issues pending before the court, click here.

COURT OF APPEALS

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Kelly v. State, 331 S.W.3d 541 (Tex.App.-Houston [14 Dist] 2011).

Although officer stopped D for no front license plate, officer’s questioning of D about whether he possessed narcotics was reasonably related to the stop, in part because of officer’s knowledge of D’s background with narcotics. “Because [officer’s] suspicions were aroused, in part, by [D’s] furtive movements inside the vehicle and [D’s] nervousness after being stopped, [officer’s] questioning about whether [D] possessed narcotics was reasonably related to the traffic stop investigation … especially given the fact that [officer] learned of [D’s] criminal background involving narcotics and asked [D] about this information….”

Glenn v. State, No. 11-09-00099-CR, 2011 WL 322451 (Tex.App.-Eastland Jan 27, 2011).

The following exchange was deemed sufficient to constitute D’s consent to search. In response to officer’s request for permission to search the vehicle, D asked the officer: “You want to have a look inside?” Then D asked the officer: “You want me to open the trunk?”

Jones v. State, Nos. 01-08-00828-CR, 01-08-01015-CR, 01-08-01016-CR, 2011 WL 339213 (Tex.App.-Houston [1 Dist] Jan 31, 2011).

Lack of specific dates in search warrant affidavit was not fatal to search warrant because the affidavit “includes several direct and indirect references to the timing of the controlled buy. First, [officer] described his contact with the first confidential informant as having occurred ‘recently.’… The investigation culminated in the controlled buy forming the basis for probable cause, which was described as occurring ‘after’ [officer] ‘recently’ met with the first confidential informant.”

Sosa v. State, No. 06-10-00161-CR, 2011 WL 346215 (Tex.App.-Texarkana Feb 4, 2011).

The following insufficient to give rise to RS: D was present just outside a storage facility after its normal business hours, D failed to pass through the gate in thirty or forty seconds of observation, and the storage facility is occasionally broken into. “‘The fact that a car is parked in close proximity to a business that is [closed], is not, in and of itself, suspicious; instead, it is only a factor to consider in deciding whether there is reasonable suspicion.’… In addition, the time of day is not sufficient…. All the facts indicate is that [D] was present in front of a business late at night, after normal business hours, and that storage buildings are occasionally broken into.”

May 2011 SDR – Voice for the Defense Vol. 40, No. 4

Voice for the Defense Volume 40, No. 4 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

Pepper v. United States, 131 S. Ct. 1229 (U.S. 2011); Vacated in part, affirmed in part & remanded: Sotomayor (6–2)

Jason Pepper pleaded guilty in a federal district court to conspiracy to distribute 500 grams or more of a substance containing meth. In the latest of a series of appeals and remands, a newly assigned Iowa federal district court sentenced Pepper to 77 months in prison and 12 months supervised release—a 20 percent downgrade from the Federal Sentencing Guidelines advisory range. Thereafter, the district court granted the government’s motion to reduce Pepper’s sentence further to 65 months because of assistance Pepper provided after he was initially sentenced. Pepper appealed, arguing in part that the district court should consider evidence of his post-sentence rehabilitation to reduce his sentence further. The Eighth Circuit affirmed Pepper’s sentence, holding in part that evidence of a defendant’s post-sentence rehabilitation was not relevant at resentencing.

HELD: When the defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant’s rehabilitation after the initial sentences; and that evidence may, in appropriate cases, support a downward variance from the sentencing guidelines. Because the Eighth Circuit set aside Pepper’s entire sentence and remanded for de novo resentencing, the district court was not bound by the law of the case doctrine to apply the same 40 percent departure applied by the original sentencing judge. To avoid undermining a district court’s original sentencing intent, an appellate court when reversing one part of a sentence may vacate the entire sentence so that, on remand, the trial court can reconfigure the sentencing plan to satisfy 18 U.S.C.S. § 3553(a)’s sentencing factors. That is what the Eighth Circuit did here.

Michigan v. Bryant, 131 S. Ct. 1143 (U.S. 2011); Reversed & remanded: Sotomayor (6–2)

A trial court convicted Richard Perry Bryant of second-degree murder, being a felon in possession of a firearm, and possession of a firearm during commission of a felony. On appeal, Bryant challenged the admission of the victim’s statements at trial for violating his Sixth Amendment right of confrontation. The victim stated that Bryant shot him, but died shortly thereafter. The Michigan Supreme Court reversed, holding that the statements that the victim made to police before his death were testimonial and their admission violated Bryant’s right to confrontation. The court reasoned that the victim’s statements were made in the course of a police interrogation whose primary purpose was to establish or prove events that had already occurred, not to enable police to meet an ongoing emergency. Therefore, the statements were “testimonial” for the purposes of the enhanced confrontation protections set forth in Crawford v. Washington, 541 U.S. 36 (2004), and should not have been admitted against Bryant because he did not have the opportunity to cross-examine the victim prior to his death.

HELD: Inquiries of wounded victims concerning the perpetrator are non-testimonial if they objectively indicate that the purpose of the interrogation is to enable police assistance to meet an ongoing emergency, and, thus, not afforded heightened protection under Crawford. The identification and description of the shooter and the location of the shooting were “not testimonial statements because they had a ‘primary purpose . . . to enable police assistance to meet an ongoing emergency.’ Therefore, their admission at Bryant’s trial did not violate the Confrontation Clause.”

Wall v. Kholi, 131 S. Ct. 1278 (U.S. 2011); Affirmed: Alito (9–0)

In 1993, a Rhode Island jury convicted Khalil Kholi on ten counts of first-degree sexual assault. A judge on the state superior court sentenced Kholi to two consecutive terms of life in prison, and the state supreme court affirmed the conviction in 1996. Kholi did not file a federal writ of habeas corpus at that time. Instead, he filed a motion seeking sentence reduction as a form of post-conviction relief, which was denied. Kholi exhausted his procedural options regarding sentence reduction in 2007, at which time he began his appeal for federal writ of habeas corpus, which was well beyond the Antiterrorism and Effective Death Penalty Act’s standard one-year limitation on filing. In 2009, the First Circuit reversed and remanded the district court’s judgment that a petition for leniency is different from an appeal to correct legal errors and therefore does not result in a tolling of the statute of limitations under AEDPA. The First Circuit’s decision was in line with a Tenth Circuit ruling, but the Third, Fourth, and Eleventh circuits have previously ruled that a petition for leniency does not toll the statute of limitations under AEDPA.

HELD: Because the parties agree that a motion to reduce sentence under Rhode Island law is not part of the direct review process, respondent’s motion tolled the AEDPA limitation period; his federal habeas petition was timely. Inmates have one year to file a habeas challenge to their sentence in federal court after conviction. The running of that time is delayed while the conviction is under review in state court. The time is also tolled while a state court considers an inmate’s request for a sentence reduction.

Skinner v. Switzer, 131 S. Ct. 1289 (U.S. 2011); Reversed: Ginsburg (6–3)

A Texas state court convicted Henry Skinner of capital murder and sentenced him to death. Subsequently, Skinner brought a 42 U.S.C. §1983 suit against the prosecuting attorney in a federal district court alleging that his Fourteenth Amendment right to due process and Eighth Amendment right to be free from cruel and unusual punishment were violated when the district attorney refused to allow him access to biological evidence for DNA testing. The district court dismissed the case. The Fifth Circuit affirmed, holding that precedent established that Skinner’s claim was not cognizable as a 42 U.S.C. § 1983 action, but instead must be brought as a petition for writ of habeas corpus.

HELD: A convicted prisoner seeking access to biological evidence for DNA testing may assert that claim in a civil rights action under 42 U.S.C. § 1983.

Connick v. Thompson, 131 S. Ct. 1350 (U.S. 2011); Reversed: Thomas (5–4)

John Thompson sued the Orleans Parish District Attorney’s Office, District Attorney Harry Connick, in his official and individual capacities, and several assistant district attorneys in their official capacities under 42 U.S.C §1983 in a Louisiana federal district court. Thompson served 14 years on death row for a crime he did not commit because prosecutors failed to turn over blood work in a related case. The jury awarded Thompson $14 million against Connick in his official capacity. On appeal, an en banc Fifth Circuit rendered a tie vote and, thus by rule, affirmed.

HELD: A prosecutor’s office cannot be held liable for the illegal conduct of one of its prosecutors when there has been only one violation resulting from deficient training.

Fifth Circuit

United States v. Johnson, 619 F.3d 469 (5th Cir. 2010)

In sentencing defendant convicted of bank robbery under 18 U.S.C. §2113(a), district court did not err in applying a 4-level enhancement under USSG § 2B3.1(b)(4)(A) for abduction of a victim; even though the victim (a teller) was not made to enter or exit a building, defendant did (1) force teller from behind her counter to the front of the bank, (2) force her back to her drawer for a key to the back door, and (3) force her to accompany him to the rear door to unlock it, facilitating his escape.

Stevens v. Epps, 618 F.3d 489 (5th Cir. 2010)

Death-sentenced defendant was not entitled to federal habeas relief on his claim that the prosecution exercised a peremptory challenge on a black prospective juror in violation of Batson v. Kentucky, 476 U.S. 79 (1986), and its progeny. The prosecution offered more than one race-neutral reason for striking the juror, and defendant failed to rebut one of those reasons (the prospective juror’s alleged inattentiveness). The Mississippi Supreme Court’s decision that the trial judge allowed the strike because it implicitly credited the prosecutor’s assertion of inattentiveness, and its decision to defer to the trial court’s implicit factual finding, is not an unreasonable application of Batson. The Fifth Circuit noted that in Thaler v. Haynes, 130 S. Ct. 1171 (2010) (per curiam), the Supreme Court reversed the Fifth Circuit’s understanding of Snyder v. Louisiana, 552 U.S. 472 (2008), and limited the latter decision’s holding to cases where a trial judge did not explain why he overruled a Batson challenge and one of the allegedly race-neutral reasons offered by the prosecutor was race-based. The Fifth Circuit also denied a certificate of appealability on defendant’s claim that the representation afforded him in the Mississippi post-conviction review process was so deficient as to deny him due process. A defendant has no constitutional right to appointed counsel in post-conviction proceedings, and hence no constitutional redress if post-conviction counsel performs deficiently. Judge Haynes concurred; she affirmed on the Batson issue “only because of the highly deferential review standard required by AEDPA” and noted that given some of the “disturbing and inappropriate” remarks in the record, “[h]ad this been a direct appeal of the state trial court’s decision, [her] decision very likely would have been different.”

United States v. De Cay, 620 F.3d 534 (5th Cir. 2010)

To satisfy restitution obligations owed by two defendants, the federal government could garnish those defendants’ retirement benefits held by a Louisiana state pension fund. Neither the Internal Revenue Code, the Tenth Amendment, nor Louisiana law barred garnishment of those retirement benefits. Moreover, the federal government could compel a “cash-out” of one defendant’s benefits. However, as to a second defendant, whose benefits were paid monthly, the Consumer Credit Protection Act limited the federal government’s right to garnish defendant’s pension to 25 percent of his monthly benefits. The Fifth Circuit affirmed the garnishment order against the first defendant but reversed and remanded the order as to the second.

United States v. Meza, 620 F.3d 505 (5th Cir. 2010)

Where (1) district court mistakenly sentenced defendant to 33 months on a new charge, plus a consecutive 10-month sentence for supervised release revocation, for a total of 43 months, but then, recognizing its error, (2) changed the new charge sentence to 30 months and increased the supervised release revocation sentence to 13 months, so as to keep the sentence at 43 months, the district court did not exceed its authority or jurisdiction. Unlike the sentence increase overturned in United States v. Ross, 557 F.3d 237 (5th Cir. 2009), the application for a modification (albeit of the sentence on the new charge) was made by a party and occurred in the same hearing, and within moments of, the original pronouncement. The instant case was also distinguishable from United States v. Cross, 211 F.3d 593, 2000 WL 329247 (5th Cir. 2000) (unpublished), in which the court had already gaveled the sentencing hearing to a close and had to reconvene to enter a new sentence; here there was no formal break in the proceedings from which to logically and reasonably conclude that sentencing had finished.

United States v. Gonzalez-Rodriguez, 621 F.3d 354 (5th Cir. 2010)

(1) In drug prosecution, although district court committed no error in admitting some background-type testimony from the DEA case agent, it plainly erred in admitting other testimony that crossed the line into impermissible drug-courier-profile evidence or impermissible evidence on the ultimate issue of knowledge; however, these errors did not require reversal on plain-error review because defendant failed to show a reasonable probability of a different outcome but for the erroneously admitted evidence.

(2) District court did not err in denying defendant’s motion to dismiss under the Speedy Trial Act (STA). The delay associated with the government’s oral motion for detention was excludable under 18 U.S.C. §3161(h)(1)(D); thus defendant’s indictment was returned within the 30 days prescribed by the STA. The Fifth Circuit “join[ed] almost all of [its] sister circuits in holding that when an oral pretrial motion is made on the record with both parties present, it is ‘filed’ just like a written motion for purposes of § 3161(h)(1)(D).”

Jimenez v. Wood County, 621 F.3d 372 (5th Cir. 2010), reh’g en banc granted, 626 F.3d 870 (5th Cir. 2010)

The panel was bound by Fifth Circuit precedent holding that a strip search of an individual arrested for a minor offense must be premised on reasonable suspicion that the detainee is carrying weapons or contraband. If the rule is to be changed, it must be done by the Fifth Circuit sitting en banc (as the Ninth and Eleventh circuits recently have done). Under this rule, plaintiffs were entitled to relief under 42 U.S.C. §1983 because they were arrested for minor offenses and were strip-searched without reasonable suspicion.

Court of Criminal Appeals

Appellant’s PDRs

State v. Rhinehart, 333 S.W.3d 154 (Tex.Crim.App. 2011); COA reversed, trial court affirmed

Appellee was charged in juvenile court with an aggravated robbery committed 44 days before his 17th birthday. Three days after appellee’s 18th birthday, the State filed a petition in juvenile court to transfer appellee’s case to a criminal district court, where appellee would be tried as an adult. Appellee claimed at a transfer hearing that the State did not use due diligence in proceeding with his case in juvenile court before his 18th birthday. The juvenile court waived its jurisdiction and transferred appellee to district court, after which he was indicted for aggravated robbery. Appellee raised the due-diligence issue in the district court in a “motion to quash indictment.” The district court held a hearing on the motion, during which the parties relitigated the due-diligence issue. The State’s only argument was that it had used due diligence. The district court granted appellee’s motion.

On appeal, the State claimed for the first time that (1) the criminal court was without jurisdiction to review “the evidence underlying the juvenile court’s decision to transfer this case” because appellee “had no statutory right to appeal the sufficiency of the evidence in the juvenile court’s transfer proceedings prior to being finally convicted in the criminal district court,” and (2) the district court erred to grant appellee’s motion on a ground not authorized by law because the sufficiency of the evidence supporting a juvenile court’s order to transfer a case to district court is not a valid ground for granting a motion to quash an indictment as a matter of statutory law. COA sustained the State’s second issue, found it unnecessary to address its first issue, reversed the order quashing the indictment, and remanded the case to the district court.

HELD: The State, as the losing party in the district court, could not raise for the first time on appeal a claim that there was no valid basis for the court to have quashed the indictment.

Howard v. State, 333 S.W.3d 137 (Tex.Crim.App. 2011); Affirmed

Appellant entered a store wielding a rifle and concealing his face with fabric. The store’s owner and cashier, Mukesh Patolia, was alone in the store and in a back office. After observing appellant on his security-camera monitor and through a one-way window, Patolia locked the office and called 911. There is no evidence in the record showing appellant was aware of Patolia. Appellant was unable to open the cash register, but took Patolia’s wallet from the counter and money from underneath. A jury convicted appellant of aggravated robbery and sentenced him to life in prison. COA affirmed.

CCA granted review on this novel issue: “Does the offense of aggravated robbery require interaction between the accused and the purported victim?” Appellant contests that because he could not intentionally or knowingly place in fear “a person whose presence or even existence [was] unknown” to him, the evidence was legally insufficient to support a robbery conviction, and the conviction should be reformed to theft. Because the jury could have found appellant guilty for either of these culpable mental states, CCA only addressed the less-culpable mental state of knowingly.

HELD: “Knowingly” does not refer to the defendant’s knowledge of the actual results of his actions, but knowledge of what results his actions are reasonably certain to cause. Using this definition, robbery-by-placing-in-fear does not require that a defendant know he actually places someone in fear, or know whom he actually places in fear. Rather, it requires that the defendant is aware that his conduct is reasonably certain to place someone in fear, and that someone actually is placed in fear. Given the video evidence, a rational juror could have inferred that appellant was aware it was reasonably certain his actions would place someone in fear of imminent bodily injury or death. The fact that appellant did not see Patolia—who testified that he was frightened by appellant—does not negate appellant’s culpable mental state.

Byrd v. State, __S.W.3d__ (Tex.Crim.App. No. 0738-10, 3/30/11); Reversed & acquittal ordered

Appellant contended that the State’s evidence was insufficient to support a conviction of misdemeanor theft because the State alleged the wrong owner at trial. A sharply divided en banc COA held that the discrepancy between the alleged owner and the proof at trial was an immaterial variance.

HELD: “‘[V]ariance’ ought to be used to describe instances in which there is a minor discrepancy between the facts alleged and those proved, such as a difference in spelling, in numerical digits, or in some other minor way.” But when the discrepancy between the charging instrument and the proof at a theft trial is that of an entirely different person or entirely different property, that discrepancy is not merely a variance, it is a failure of proof. Thus, because the State failed to prove that the named owner had any ownership interest in the property, the evidence is insufficient under the principles in the Malik, Gollihar, and Fuller trilogy.

Davis v. State, __S.W.3d__ (Tex.Crim.App. No. 1400-10, 3/30/11); Reversed & remanded

Appellant was convicted of aggravated robbery, and a jury sentenced him to ten years’ confinement. During voir dire, defense counsel asked: “Let’s talk about factors in [assessing] the sentence in a case of aggravated robbery with a deadly weapon. What factors do y’all think are important?” Without an objection from the State, the court interjected, “[Counsel], that’s a commitment question. You can’t ask that question.” Appellant petitioned that COA erred in affirming this as an improper commitment question.

HELD: Where jurors will be required to choose between only two possibilities, inquiries into what will influence their decision are more likely to require commitments than in situations where jurors can choose among a broader range. COA compared appellant’s question to one posed in Standefer v. State, 59 S.W.3d 177 (Tex.Crim.App. 2001). “What circumstances in your opinion warrant the imposition of the death penalty?” Standefer is distinguishable as it asked jurors to define situations in which they would impose a specific sentence. Had counsel asked jurors what circumstances would warrant the maximum punishment, that would have been an impermissible commitment question. Instead, the question sought to discover which factors would be important to jurors’ decisions, without inquiring how those factors would influence the decision. The question in this case is also distinguishable from the death-penalty question because sentencing for a capital felony has only two possible outcomes. In this case, there is a much broader range of sentencing possibilities.

State’s PDRs

Rice v. State, 333 S.W.3d 140 (Tex.Crim.App. 2011); Affirmed

Appellant was charged with two counts of aggravated assault with a deadly weapon—to wit, a motor vehicle. A jury convicted him of both counts and sentenced him to five years’ imprisonment on each charge. COA reversed and remanded, concluding that the trial court erred by failing to instruct the jury on the lesser-included offense of reckless driving and that appellant was harmed by such error. CCA granted review to determine whether the lesser-included-offense instruction should have been given when the indictment did not allege that appellant drove a motor vehicle.

HELD: The first step of the Hall lesser-included-offense analysis requires courts to determine if reckless driving is a lesser-included offense of aggravated assault as charged. Courts do not consider the evidence that was presented at trial; they consider only the statutory elements of aggravated assault with a deadly weapon as modified by the particular allegations in the indictment. Under this analysis, the elements of reckless driving are not included within the facts required to establish aggravated assault with a deadly weapon as charged.

Taylor v. State, 332 S.W.3d 483 (Tex.Crim.App. 2011); Reversed & remanded

Appellant was convicted of three offenses of aggravated sexual assault and sentenced to 70 years’ confinement with a $30,000 fine. Much of the testimony related to acts committed before appellant turned 17. COA held that he was denied a fair trial because the jury charges did not limit the jury’s consideration to evidence of acts committed after his 17th birthday. CCA granted review to consider the effects of the jury instructions given and not given. The State petitioned that in the absence of a request for a Tex. Penal Code §8.07(b) instruction from defense counsel, the judge is not required to sua sponte instruct the jury on this point. The State also argued that COA should have found any error to be harmless.

HELD: A charge is erroneous if it presents the jury with a much broader chronological perimeter than is permitted by law. The trial judge is “ultimately responsible for the accuracy of the jury charge and accompanying instructions,” and this is an “absolute sua sponte duty.” In this case, the judge had a sua sponte duty to provide an 8.07(b) instruction. While the jury instruction did not specifically refer to “any offense anterior to the presentment of the indictment,” it did not limit the jury’s consideration of such. The absence of an 8.07(b) instruction, combined with the evidence of appellant’s conduct as a juvenile and the instruction that the jurors did receive—that “a conviction may be had” for any offense committed before the victim’s 28th birthday—resulted in inaccurate charges that omitted an important portion of applicable law. Therefore, CCA found a violation of Tex. Code Crim. Proc. art. 36.14. In determining whether the error resulted in egregious harm, CCA looked to the facts that show appellant’s 17th birthday fell in the middle of an eight-year pattern of abuse. The jury could have convicted appellant of the same offense even if the proper instruction had been given and appellant’s pre-17 acts were disregarded by the jury. COA was correct that the court erroneously failed to instruct the jury on Section 8.07(b); however, the error did not result in egregious harm.

Prudholm v. State, __S.W.3d__ (Tex.Crim.App. No. PD-1611-08, 3/16/11); COA affirmed, remanded to trial court

This is an appeal from a sentence enhanced under Tex. Penal Code §12.42(c)(2), which mandates a life sentence for a defendant convicted of a sex-related offense listed in Subsection A if the defendant has been previously convicted of a Texas offense listed in Subsection B or an offense “under the laws of another state containing elements that are substantially similar to the elements” of a Texas offense listed in Subsection B. Here, CCA must decide whether the California offense of sexual battery contains elements that are substantially similar to the elements of the Texas offenses of sexual assault or aggravated kidnapping.

HELD: Sexual battery does not contain elements that are substantially similar to aggravated kidnapping or sexual assault. While the elements of the California and Texas offenses may be similar in a general sense, they do not display the high degree of likeness required to be substantially similar.

State v. Johnston, __S.W.3d__ (Tex.Crim.App. No. PD-1736-09, 3/16/11); COA reversed, remanded to trial court

COA held that the unrecorded and compelled draw of appellee’s blood by police officer, who was a seasoned EMS provider, in the police station’s blood-draw room while appellee was restrained violated the Fourth Amendment’s reasonable manner requirement.

HELD: CCA clarified the necessity to consider both reasonableness questions under Schmerber v. California, 384 U.S. 757 (1966): (1) whether the test chosen was reasonable; and (2) whether it was performed in a reasonable manner. For the general population, the Supreme Court has determined that a blood test is a reasonable means in which to analyze an individual’s blood alcohol level. For the second prong of the reasonableness question, the reasonableness of the manner in which a DWI suspect’s blood is drawn should be assayed on an objective, case-by-case basis in light of the totality of the circumstances. The officer’s specific training and experience as an EMT qualified him to perform the blood draw. Furthermore, while a medical environment may be ideal, it does not mean that other settings are unreasonable under the Fourth Amendment. An environment is deemed safe (reasonable) if it is in accordance with accepted medical practices and therefore does not “invite an unjustified element of personal risk of infection or pain.” Under the totality of the circumstances, appellee’s blood was drawn in accordance with acceptable medical practices and was therefore reasonable.

State v. Robinson, __S.W.3d__ (Tex.Crim.App. No. PD-1206-10, 3/16/11); COA & trial court reversed, remanded to trial court

Appellee was arrested without a warrant for DWI. He was transported to a hospital, where he consented to have his blood drawn. Appellee filed a motion to suppress the results, claiming his blood was drawn without a warrant and without consent and was not drawn by a qualified person; thus, it should have been suppressed under both the Fourth Amendment and Tex. Code Crim. Proc. art. 38.23. The State stipulated to the unwarranted arrest, relieving appellee from the burden of rebutting the presumption of proper police conduct in making the arrest. The State argued that the trial court improperly shifted the burden of proof on the 38.23 suppression issue; because appellee brought the motion to suppress, he retained the burden of proof to establish that the blood draw was not in accordance with the statutory requirements.

HELD: The defendant has the initial burden of proof under 38.23, which shifts to the State only when a defendant has produced evidence of a statutory violation. However, appellee never produced evidence of a statutory violation. Therefore, the State never had the burden to prove that the blood sample was drawn by a qualified person.

Writs of Habeas Corpus

Ex parte Ghahremani, 332 S.W.3d 470 (Tex.Crim.App. 2011); Granted

Applicant was convicted of two separate accounts of sexual assault and aggravated sexual assault of two minors. The jury assessed the maximum punishment—20 years for one assault and 28 years for the other. The convictions and sentences were affirmed on appeal. Applicant asserted that the State failed to disclose favorable evidence and “presented [one of the victim’s] parents’ misleading testimony creating the false impression that her physical, emotional, and psychological problems resulted solely from her sexual encounter with applicant.” The essence of applicant’s claim was that the State knowingly presented false testimony; the suppression of a particular police report is merely evidence that the testimony was false (and that the State knew it was false). The convicting court made findings of fact and recommended relief.

HELD: There is a reasonable likelihood that the false testimony affected applicant’s sentences. Applicant must also show that this due process violation was not harmless. When the State knowingly uses false testimony, the determinative factor in whether the defendant can raise the issue on direct appeal is, frequently, how well the State hid its information. Here, applicant had no opportunity to present his claim on direct appeal, in large part because the State concealed information suggesting that the testimony was misleading. When a habeas applicant has shown that the State knowingly used false, material testimony, and the applicant was unable to raise this claim at trial or on appeal, relief from the judgment obtained by that use will be granted. Therefore, relief is granted; the convicting court may hold new punishment hearings.

Ex parte Thiles, 333 S.W.3d 148 (Tex. Crim. App. 2011); Granted

Applicant alleged that he was “constructively released” from custody erroneously and through no fault of his own and is therefore entitled to credit towards time served from the time that the mandate of affirmance was issued in 1987. The State, applicant, and trial court agreed that the principle of reasonableness underlying the erroneous release cases should apply to this case and that applicant should be granted relief.

HELD: This principle should apply here. Because of the inaction of the State, applicant was never informed that a mandate of affirmance had issued in his case. He never violated the conditions of his appellate bond, having never been called to appear before the court upon the affirmance of his conviction on appeal. Instead, he was allowed to remain at large erroneously, without his knowledge and through no fault of his own. Applicant is entitled to day-for-day time credit from the time the appellate mandate issued (1987) to the time he was finally arrested on the warrant (2007). Had he been incarcerated in 1987, his sentence would have discharged in 2001. CCA ordered applicant’s immediate release.

Ex parte Niswanger, __S.W.3d__ (Tex.Crim.App. No. AP-76,302, 3/16/11); Denied

Applicant was charged with and pled guilty to impersonating a public servant for a sentence of 10 years’ confinement, as opposed to the minimum sentence of 25 years. Applicant filed this pro se writ of habeas corpus, claiming his plea was involuntary because his attorney was ineffective for failing to investigate the facts. The trial court entered findings of fact and conclusions of law recommending relief be denied.

HELD: Applicant did not prove by a preponderance of the evidence that counsel’s representation fell below the objectively reasonable standard. Therefore, applicant failed to show that his plea was unknowingly or involuntarily made because of ineffective assistance.

Direct Appeal

Freeman v. State, __S.W.3d__ (Tex.Crim.App. No. AP-76,052, 3/16/11); Affirmed

A jury convicted appellant for capital murder of a Texas game warden. Based on the jury’s answers to the special issues in Tex. Code Crim. Proc. art. 37.071, the trial court sentenced appellant to death.

HELD: Appellant’s 12 points of error, the most notable listed below, are without merit; the trial judgment and sentence are affirmed.

Appellant alleged the trial court erred in denying his motion for change of venue because he could not obtain a fair trial in Wharton County. Appellant presented only speculation that the court abused its discretion in denying this motion.

Appellant complained it was harmful, reversible error when the prosecutor compared him to a serial killer and described his experts as “hired guns” during the State’s closing arguments at the guilt phase. Given the brevity of the prosecutor’s comments, the lack of prejudice, and the strength of the evidence supporting appellant’s conviction, any errors associated with those comments were harmless. Likewise, the court did not err in overruling his objection to the prosecutor’s argument that he tried “to commit the worst criminal act on law enforcement ever in the United States’ history.”

Appellant complained the court “continually den[ied] defense counsel’s attempts to explore mercy as a consideration during the individual voir dire.” Appellant did not show that he was forced to accept any objectionable jurors.

Appellant alleged the court erred in refusing to grant a hearing on his motion for new trial on the following grounds: (1) there was unauthorized communication between the bailiff and jury that violated his Sixth Amendment right to an impartial jury, and (2) the future dangerousness question violates due process. On the first point, the bailiff’s direction to jurors to keep their voices down so that they could not be heard outside the jury room did not implicate appellant’s right to an impartial jury. Regarding the second point, CCA has repeatedly stated that the facts of an offense alone may support an affirmative future dangerousness finding.

Motion for Leave to File Original Writ of Mandamus

State v. Dittman, __S.W.3d__ (Tex.Crim.App. No. 74,593-01, 3/30/11); Denied

A sexual assault case is pending in the district court. Complainant was interviewed at the Child Advocacy Center. The State has a DVD recording of the interview, and the court has ordered the State to make a copy of the recording for defense counsel. The prosecutor sought a writ ordering the district judge to rescind his order. The issue is whether the order to make the defense a copy is permitted under the discovery statute, Tex. Code Crim. Proc. art. 39.14(a).

HELD: In applying the plain language of the statute, CCA held that the court’s order for the State to make the DVD copy, which is an easy and inexpensive task, is reasonable. Alternatively, the court could have ordered the State to deliver the original copy of the DVD to defendant to duplicate, which is a seemingly less desirable option.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Parks v. State, 330 S.W.3d 675 (Tex.App.—San Antonio 2010, pet. ref’d)

Encounter between D and officers was not consensual. One officer used a spotlight to illuminate D, who was walking behind a mall with three other men, and the officers communicated in an authoritative tone to D to walk to the patrol car and place his hands on the car. The court emphasized that two officers were present (armed and uniformed). Although D did not immediately place his hands on the car, he yielded to officer’s request/command by stopping his path of travel. Officers were without RS, even though one officer noticed that D and the three accompanying men had blue rags in their pockets, and even though officer associated blue rags with gang members and believed that gang members often carry weapons to protect themselves or drugs. “While the State correctly argues that gang membership may be a factor to be considered in determining if reasonable suspicion exists, it has not cited any authority holding that gang membership alone provides reasonable suspicion for an investigative detention or a Terry frisk.” Moreover, officer did not testify that any particular gang identified with blue rags or that such a gang was active in the area, and officer did not explain how he acquired his knowledge about the weapon-carrying propensities of that gang.

Gonzales v. State, 330 S.W.3d 691 (Tex.App.—San Antonio 2010)

DWI conviction upheld, even though officers were unable to locate D after the accident for up to 30 minutes, at which point officers found D at his residence—where he had partaken in post-accident drinking. “[D] testified that the cause of his intoxication was his consumption of three glasses of wine after arriving at his residence,” and D alleged that the accident was due to a tire blowout and sleep deprivation. The court nevertheless determined that various circumstantial evidence was sufficient to support the conviction: a one-vehicle accident, no skid marks, driver left scene of accident, and officer’s testimony that “a person would not likely have reached the level of intoxication he observed in [D] unless the person drank continuously for twenty minutes, and he saw no evidence near [D] that indicated [D] had been drinking at his residence.”

Tanner v. State, No. 09-09-00458-CR, 2010 WL 4263822 (Tex.App.—Beaumont 10/27/10)

Prosecutor’s calling attention to D’s lack of witnesses did not constitute an improper comment on D’s failure to testify because D was not the only witness who could have been called to testify. “A remark that calls attention to the absence of evidence which only the defendant could supply will result in reversal; however, if the language can reasonably be construed to refer to appellant’s failure to produce evidence other than his own testimony, the comment is not improper.”

Vasquez v. State, 324 S.W.3d 912 (Tex.App.—Houston [14th Dist] 2010)

The State argued successfully that the following gave rise to RS: “(1) the initial stop was out of the ordinary when [D] pulled to the left rather than to the right; (2) [D’s] distant travel plans to Greenspoint Mall when there were several major malls in between his home and Greenspoint Mall; (3) [Trooper’s] knowledge of the Greenspoint Mall being a ‘high-crime area’ and a ‘source location for the ultimate destination of drugs and narcotics’[;] (4) [D’s] absence from work during the day; (5) [D’s] desire to travel so far when gas prices were almost $4.00 a gallon; (6) [D’s] failure to identify the store or the type of dress he was looking for; (7) [Trooper’s] past training in identifying signs of someone involved in a crime; and (8) [D’s] frequent face scratching and the appearance of his very pronounced and pulsating carotid arteries.” Furthermore, consent to search was “voluntary,” even though officer withheld D’s driver’s license while he asked D for consent, in large part because officer told D “he could hit the switch in the patrol car if he wanted to stop the search” and D never hit the switch. Also, D was not in handcuffs during search.

Colford v. State, No. 05-09-01360-CR, 2010 WL 4370952 (Tex.App.—Dallas 11/5/10)

Officers entered residence “voluntarily,” where, after knocking, officers heard one inhabitant yell “come in,” even if that particular inhabitant was a guest and had no actual authority over the premises. “[Officers] responded to a dispatch call regarding a citizen’s complaint that someone was selling drugs at a Dallas residence. . . . The officers could hear movement inside the house and knocked on the door. [Officer] testified that after a voice in the house said ‘come in’ in a ‘really agitated voice,’ he opened the door. He saw five or six people sitting on a couch in the living room. Two or three of the individuals had crack pipes in their hands. . . . Officer further stated that ‘[a]t the time someone said come in, [he] was under the belief that it was the person that was in charge of the house, saying come in. . . .’ A third party’s consent is valid if the facts available to the officer at the time of the search would allow a person of reasonable caution to believe that the consenting party had authority over the premises. . . . Thus, even if it was not [D] who said ‘come in,’ [officer] reasonably believed that someone with authority to consent to the officers’ entry provided consent.”

Moskey v. State, No. 01-09-00532-CR, 2010 WL 4484190 (Tex.App.—Houston [1st Dist] 11/10/10)

D unsuccessfully argued that inventory search did not comply with police department policy. “Both [officers] testified that they needed to impound the vehicle [D] was driving and conduct an inventory search because there was no one to whom the officers could release the vehicle. According to [officer], even if [D] had not been alone in the vehicle, the expired registration, inspection sticker, and lack of proof of insurance rendered the car unable to be legally driven from the scene. . . . [Officer] stated that the glove compartment was unlocked, and he therefore opened the compartment to complete the inventory pursuant to departmental policy. [Officer] then discovered the marijuana in the unlocked glove compartment. . . . [B]ased upon the testimony of [officers], the trial court reasonably could have determined that [officer] conducted the inventory search of [D’s] vehicle in accordance with standardized police procedures.”

Hogan v. State, 329 S.W.3d 90 (Tex.App.—Fort Worth 2010)

Blood-extraction search warrant affidavit sufficiently described D as person who was driving vehicle, even though affidavit never specifically stated D was the person driving. The affidavit explained that officer “had good reason to believe that appellant had operated a motor vehicle, described how officers saw a car progress recklessly and illegally through the streets of Fort Worth, explained that officers stopped the car that they observed being driven recklessly and illegally, and then said that at the scene of the stop, [officer] made contact with [D]. The affidavit does not indicate that anyone other than [D] (and other police officers) was at the scene (and therefore does not create doubt that someone else could have driven the ‘IMP’). Thus, we conclude that the magistrate could have reasonably inferred that [D] drove the vehicle described in the affidavit.”

Furthermore, the affidavit sufficiently described D’s performance on field sobriety tests, even though the affidavit contained technical acronyms that were undefined in the affidavit. The affidavit also withstood D’s other challenges, including that the affidavit failed to explain the nature or significance of the tests and was silent regarding officer’s experience in DWI cases. “[E]ven if we assume that the magistrate did not understand [officer’s] acronyms or know about the tests, the affidavit still informed the magistrate in plain language that [D] showed 15 combined clues of intoxication on the tests. . . . Finally, although the affidavit might have been more complete if it had detailed [officer’s] experience in DWI cases, we hold that such information was not required[.]”

Somers v. State, No. 10-09-00387-CR, 2010 WL 4813681 (Tex.App.—Waco 11/24/10)

Results of EMIT test for drugs were unreliable unless accompanied by a positive confirmation test and, thus, inadmissible. “[T]he EMIT test was positive for cocaine, but the confirmation GC test was negative. . . . The trial court did not abuse its discretion in excluding the test results.” The State did not withhold evidence in violation of Brady by relying on two separate drug testing methods, even though “[t]he DPS scientists agreed with [toxicologist’s] testimony that the failure to properly preserve the blood sample could have contributed to the negative GC test.” In finding no Brady violation, the State satisfied its obligation to provide D with scientists’ analysis prior to trial.

Victim’s statement of “whatever” in response to her employer’s decision to fire her for failing a drug test was not an admission of drug use and, thus, did not constitute a statement against interest for purposes of hearsay.

State’s closing argument during sentencing to the effect that D would serve merely a fraction of the sentence he received did not result in reversible error. “[Earlier in the proceeding,] [t]he State noted [to the jury] that [D] might not receive parole. . . . [However,] [t]he State later argued: ‘Now on these facts, with his history, you would certainly be within your rights to go back in this jury room and return the maximum sentence. That is a lot of time. He’ll do ten years of that. He’ll be a young man when he gets out.’ [D] objected that it was unknown if he would receive parole at that time. The trial court overruled the objection.”

April 2011 SDR – Voice for the Defense Vol. 40, No. 3

Voice for the Defense Volume 40, No. 3 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

Walker v. Martin, 131 S. Ct. 1120 (U.S. 2011); Reversed: Ginsburg (9–0)

A California state court convicted Charles Martin of robbery and murder and sentenced him to life in prison without the possibility of parole. Subsequently, Martin filed a round of habeas petitions in state court—all of which were denied. He then raised several new claims in petitions for federal habeas relief in a California federal district court. The court refused to examine the claims because they were not exhausted in state court. After Martin exhausted these last claims in state court, he returned to federal court for federal habeas corpus relief. The district court again denied the petition, relying on California’s statute of limitations for filing state habeas corpus petitions. On appeal, the Ninth Circuit reversed the district court, holding that California’s statute of limitations could not operate as an independent and adequate state ground to bar federal habeas corpus review. The court reasoned that California’s statute of limitations was not sufficiently defined, nor consistently applied such that it could bar Martin’s petition.

Held: The California rule requiring state habeas petitions to be filed “as promptly as the circumstances allow” constitutes an independent state ground that is adequate to bar habeas relief in federal court.

Fifth Circuit

Sixta v. Thaler, 615 F.3d 569 (5th Cir. 2010)

Agreeing with Thompson v. Greene, 427 F.3d 263 (4th Cir. 2005), the Fifth Circuit held that under the Federal Rules of Civil Procedure and the Rules Governing Section 2254 Cases, the habeas respondent (i.e., the custodian) is required to serve the respondent’s answer, plus any exhibits thereto, upon the habeas petitioner. Here, respondent did not attach any exhibits to his answer, and thus there were none to serve. The Fifth Circuit declined to reach the question about whether the Constitution or applicable procedural rules required respondent to attach some portion of the state court records as exhibits to the answer and then to serve those exhibits with the answer pursuant to applicable procedural rules.

Mathis v. Thaler, 616 F.3d 461 (5th Cir. 2010)

Death-sentenced Texas prisoner could not raise, in a successive habeas petition, his claim that execution was unconstitutional under Atkins v. Virginia, 536 U.S. 304 (2002) (holding the Eighth Amendment bars execution of the mentally retarded), because prisoner did not show his Atkins claim was “previously unavailable” as required by 28 U.S.C. § 2244(b)(2)(A). Particularly, Atkins was decided in 2002, and petitioner did not show why he could not have raised his Atkins claim in his first federal habeas petition, in 2003. Moreover, even if his petition met the standards of 28 U.S.C. § 2244, the petition was time-barred under the AEDPA’s statute of limitations, and the court did not abuse its discretion when it denied equitable tolling.

United States v. Rains, 615 F.3d 589 (5th Cir. 2010)

(1) In prosecution for manufacture and distribution of methamphetamine, police had sufficient reasonable suspicion of criminal activity to justify an investigatory stop of defendant’s car. Particularly, police received information that (1) a woman in this car had just purchased an unusual quantity of concentrated liquid iodine (an ingredient used in the manufacture of meth) from a veterinary clinic, (2) the same woman had made repeated purchases of iodine from the same clinic over the past 9 months, and (3) the person had traveled to a rural area 35 miles away to make the purchases. It was reasonable for police to infer from previous discussions with the veterinarian about typical sales of iodine that the purchase of such a large quantity in a relatively short time period indicated that the purchaser intended to use the iodine illegally.

(2) Agreeing with the majority of a split panel in United States v. Nelson, 484 F.3d 257 (4th Cir. 2007), the Fifth Circuit held that defendant’s prior conviction for possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) was a “felony drug offense” that could, in conjunction with another prior conviction for a “felony drug offense,” properly enhance defendant’s sentence to mandatory life imprisonment without release, pursuant to 21 U.S.C. §§ 841(b)(1)(A) & 851. Although 18 U.S.C. § 924(c) could also be violated by possession or use of a weapon in connection with a crime of violence as well as a drug trafficking offense, it was proper to examine the record of conviction to determine that defendant’s § 924(c) offense had been tied to drug trafficking, not a crime of violence. The Fifth Circuit expressed disquietude that its decision could be read to support a double enhancement where the same underlying conduct gives rise to both a substantive drug offense and a § 924(c) conviction.

Paredes v. Thaler, 617 F.3d 315 (5th Cir. 2010)

The Texas courts did not unreasonably apply clearly established Supreme Court law in rejecting death-sentenced defendant’s claim that the state trial court violated his constitutional rights by failing to require a unanimous verdict as to which two or more decedents defendant murdered. The principal Supreme Court decision on the issue of what the Constitution requires by way of jury unanimity—Schad v. Arizona, 501 U.S. 624 (1991)—produced no majority opinion, and neither the plurality opinion or concurrence of Justice Scalia (who provided the necessary fifth vote) provides a clear answer to the question. Moreover, the very general nature of each of these analyses means that a broader range of outcomes will be considered reasonable. In any event, even if there were some error in the failure to require jury unanimity, defendant failed to show prejudice from any such error because the jury was also permitted to find defendant guilty under Texas’ law of parties even if he did not personally shoot any of the victims, and the evidence of defendant’s guilt under the law of parties was overwhelming and virtually unchallenged. For the same reasons defendant suffered no prejudice from any deficient performance by his attorney in failing to request a unanimity instruction.

United States v. Minnitt, 617 F.3d 327 (5th Cir. 2010)

District court did not reversibly err in revoking defendant’s supervised release. With respect to defendant’s due-process confrontation objection to the introduction of lab reports and testimony about their contents, court erred in failing to articulate the basis on which it found good cause to deny defendant confrontation of the lab technicians; however, this error was harmless because the record showed that defendant’s interest in confronting the lab technicians was minimal, and that there was indeed good cause to deny confrontation. Nor did the court violate defendant’s due-process confrontation rights by allowing the probation officer to testify to the feasibility of defendant’s false-positive theories; although the officer’s hearsay testimony about defendant’s missed counseling session presented a more troublesome due-process confrontation question, unchallenged testimony supported the finding that defendant violated this condition of supervised release.

United States v. Carales-Villalta, 617 F.3d 342 (5th Cir. 2010)

Where the Fifth Circuit had previously remanded case on ground that eight-level “aggravated felony” enhancement under USSG §2L1.2(b)(1)(C) was erroneous, government was not, on remand, precluded from presenting (and district court was not precluded from considering) additional evidence not presented at the first sentencing proceeding that the conviction qualified as an “aggravated felony.” In the absence of a specific mandate, and in the interest of truth and fair sentencing, the court may consider any corrections and additions relevant to the issues addressed by the Fifth Circuit on appeal. Therefore, when the case is remanded for resentencing without specific instructions, the court should consider any new evidence relevant to the issues raised on appeal. Although the Fifth Circuit may mandate a particular result on remand, or limit consideration on remand to particular evidence when it is prudent to do so, it did not do so in the prior decision. Therefore, court did not reversibly err in once again applying the eight-level enhancement (and imposing the same sentence) based on the new documentary evidence.

United States v. Gonzales, 620 F.3d 475 (5th Cir. 2010)

Based on the record before the Fifth Circuit, it was unclear whether the district court, upon revocation of defendant’s probation, considered her “financial resources,” as required by 18 U.S.C. §3572(a)(1) & (2), before ordering her to immediately pay the $4,000 balance of a previous fine. Accordingly, the Fifth Circuit vacated the order and remanded for reconsideration so that the court could clarify whether it had considered defendant’s financial resources before ordering immediate payment of the fine.

United States v. Bautista-Montelongo, 618 F.3d 464 (5th Cir. 2010)

District court did not reversibly in applying a two-level enhancement under then-USSG §2D1.1(b)(2)(B) (now USSG §2D1.1(b)(2)(C)) for being the captain, pilot, or navigator of a boat carrying a controlled substance. Following the three other circuits that addressed the issue, the Fifth Circuit rejected defendant’s argument that this enhancement applies only when a defendant is a professional captain or pilot or has some higher degree of special skill, such as high seas navigation; special skills, as defined in USSG §3B1.3, are not required for this enhancement.

United States v. Dowl, 619 F.3d 494 (5th Cir. 2010)

Where defendant was prosecuted for fraudulently obtaining government funds to rebuild a home in New Orleans after Hurricane Katrina, defendant was not entitled to have the Guideline loss amount under USSG §2B1.1 offset by the $46,000 paid by the Road Home program to the Small Business Administration (SBA) upon the Road Home program’s discovery that defendant had already received SBA funds for the same purpose. The Fifth Circuit held that defendant’s case was different from amounts repaid before a fraud was discovered, or even the money returned to investors in a Ponzi scheme, both of which do result in offsets. Defendant did not herself return the funds; moreover, defendant would have received all the funds if the federal government had not discovered the overlap. The Fifth Circuit refused to construe the Guidelines to give credit to defendant for the detection and required repayment of overlapping funds by the government—the defrauded party.

United States v. Lipscomb, 619 F.3d 474 (5th Cir. 2010)

Two judges (King and Jolly) of a three-judge panel held that defendant—convicted of possession of a firearm (which was a sawed-off shotgun)—was properly sentenced as a “career offender” under USSG §4B1.1, but all three judges wrote separately. Judge Jolly would hold that in determining whether the “instant offense” is a “crime of violence” for purposes of the “career offender” Guideline, a sentencing court is not bound by the elements-based categorical/modified categorical approach of Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13 (2005), but rather is specifically authorized to examine the conduct alleged in the indictment; this approach was satisfied here because the indictment to which defendant pleaded guilty specifically charged him with violating 18 U.S.C. § 922(g)(1) by possessing a sawed-off shotgun. Judge King agreed that an elements-based categorical/modified categorical approach was not required, given the Guidelines’ explicit reference to conduct; she declined, however, to rely on defendant’s plea to the indictment as constituting an admission to all the facts contained therein (including the identity of the firearm as a sawed-off shotgun); instead., she would hold that where the “career offender” enhancement turns on the characterization of the “instant offense” rather than that of a prior offense, it is not improper for the sentencing judge to make the critical factual findings in the same way as any other sort of finding at sentencing. Judge Stewart dissented, opining that (1) the categorical/modified categorical approach does apply, and (2) under that approach, there was no cognizable evidentiary basis for the conclusion that the firearm in question was a sawed-off shotgun.

Court of Criminal Appeals

Appellant’s PDRs

Ex parte Chamberlain, __S.W.3d__ (Tex.Crim.App. No. 0076-10, 2/2/11); COA vacated & remanded

Appellant pled guilty to sexual assault, a third-degree felony, and successfully completed his community supervision term. However, because of the offense, appellant was required to register as a sex offender for the rest of his life.

CCA granted appellant’s PDR issue: Did COA err in holding that the lifetime registration requirement imposed on Chamberlain did not violate his substantive due process rights because there is a statutory mechanism by which Chamberlain can seek to be excused from further registration? After CCA granted review, the Council on Sex Offender Treatment (CSOT) published its list of reportable convictions or adjudications for which a person must register, which makes clear that individuals who have been convicted of sexual assault, like appellant, are not eligible for de-registration. The CSOT’s list altered the legal landscape for individuals eligible for early termination from the sex offender registration requirements.

Held: COA did not have the benefit of this information when addressing appellant’s due process claim. The court therefore proceeded under the theory that appellant could avail himself of the lifetime registration requirement; this was the court’s sole basis for concluding that his substantive due process rights were not violated. CCA gives COA opportunity to reconsider appellant’s claim.

Ford v. State, __S.W.3d__ (Tex.Crim.App. No. 0440-10, 2/2/11); COA reversed, trial court affirmed

A jury convicted appellant of failing to comply with sex offender registration requirements, a third-degree felony. COA held that appellant’s prior conviction for failure to comply with sex offender registration increased the level of appellant’s current offense.

Held: COA erred to rely on dicta in State v. Webb, 12 S.W.3d 808 (Tex.Crim.App. 2000), and Young v. State, 14 S.W.3d 748 (Tex.Crim.App. 2000), to conclude that Tex. Code Crim. Proc. art. 62.102(c) increases the level of the offense. Under its plain language, 62.102(c) states that “punishment for an offense . . . is increased to the punishment for the next highest degree of felony.” Therefore, appellant’s prior conviction did not increase the grade of his offense. The prior conviction increased only the punishment level.

Cada v. State, __S.W.3d__ (Tex.Crim.App. No. 0754-10, 2/9/11); COA reversed, acquittal ordered

Appellant was charged with the third-degree felony of retaliation for intentionally and knowingly threatening to harm Arthur Finch by an unlawful act in retaliation for or on account of the service of Finch as a witness. CCA granted review to determine whether a variance between the indictment allegation of one statutory element—the description of the complainant as “a witness”—is material when the proof shows that the complainant was either a “prospective witness” or “an informant”—two different statutory elements.

Held: A variance between the pleading of one statutory element (“a witness”) and proof of a different statutory element (“a prospective witness” or “an informant”) is material under Gollihar v. State, 46 S.W.3d 243 (Tex.Crim.App. 2001). Therefore, the evidence was legally insufficient to support appellant’s conviction for retaliation against Finch on account of his service as a witness.

Stokes v. State, __S.W.3d__ (Tex.Crim.App. No. 0825-10, 3/2/11); PDR refused

Appellant was convicted of aggravated robbery involving the stealing of a handgun that occurred on January 21, 2005.He was convicted separately for the theft of that same gun under the theory that he possessed it on February 19, 2005, knowing it was stolen. COA held that these offenses were different for double jeopardy purposes because (1) the dates of the offenses were different, and (2) the charged theft required the additional element of knowing that the gun was stolen.

Keller’s dissent: These holdings seem inconsistent with the caselaw that says theft is not a continuing offense.

State’s PDRs

Derichsweiler v. State, __S.W.3d__ (Tex.Crim.App. No. 0176-10, 1/26/11); Reversed & remanded

Appellant was indicted for felony DWI. He filed a pretrial motion to suppress evidence obtained as a product of his arrest, which occurred in a parking lot. He claimed the police officer lacked reasonable suspicion initially to detain him, which rendered any product of his subsequent arrest for DWI inadmissible. The trial court concluded that the officer was presented with information by identified informants of an individual’s suspicious activity but no specific criminal act. The officer was able to identify appellant’s vehicle from the specific description provided by the informants at the location they reported, thereby corroborating the tip he had received. Over a dissent, a COA panel held that reasonable suspicion was lacking to believe appellant was about to commit a crime when police detained him. CCA granted the State’s PDR to address whether COA erred to require some indication of a specific criminal offense as a necessary component of reasonable suspicion.

Held: The totality of circumstances, including appellant’s strangely persistent, if admittedly non-criminal behavior, gave rise to a reasonable suspicion that he was about to engage in criminal activity. CCA reverses and remands to COA to address appellant’s remaining points of error.

Smith v. State, __S.W.3d__ (Tex.Crim.App. No. 0298-09, 2/2/11); Reversed & remanded

Smith was convicted of capital murder and sentenced to life in prison for fatally shooting her husband and father-in-law. Smith’s attorneys asked the trial judge to instruct the jury that her ex-husband, Daniel Gardner, was an accomplice as a matter of law based on his testimony. The judge denied the request but instructed the jury to determine whether Gardner was an accomplice as a matter of fact. On appeal, Smith alleged that (1) the judge erred in denying her jury instruction, and (2) the non-accomplice testimony was insufficient to tend to connect her to the offense as required by Tex. Code Crim. Proc. art. 38.14. COA sustained both points of error. However, because COA found the evidence insufficient under Article 38.14, it did not address whether Smith was egregiously harmed by the exclusion of an accomplice-as-a-matter-of-law instruction and entered a judgment of acquittal

With respect to the jury charge issue, the State asked CCA to abandon the automatic application of the accomplice as a matter of law rule when a witness has been indicted for the same offense as the accused. Alternatively, the State contends that it should not have to affirmatively establish that the dismissal of the capital murder charge was not done in exchange for Gardner’s testimony. The State further contends that COA erred in concluding that Gardner was an accomplice as a matter of law because the record does not show that the capital murder charge was dismissed in exchange for Gardner’s testimony.

Held: The judge did not err in denying Smith’s jury instruction because the evidence did not conclusively establish that the capital murder charge against Gardner was dismissed in exchange for his testimony at Smith’s trial. Furthermore, COA erred in holding that the non-accomplice evidence was insufficient.

Shipp v. State, __S.W.3d__ (Tex.Crim.App. No. 1346-09, 2/2/11); COA reversed, trail court reinstated

Appellant was indicted for forgery under Texas Penal Code §32.21. The jury convicted him of a state jail felony under §32.21(d) upon determining that the counterfeited store receipt constituted a “commercial instrument.” COA found the evidence insufficient to support conviction for a state jail felony but held that there was no evidence that a store receipt constitutes a “commercial instrument.”

Held: Section 32.21(d) does not plainly provide that forgery of a store receipt constitutes a state jail felony—at least not in the same way it plainly provides that, e.g., a will, check, and contract do. As such, CCA does not necessarily disagree with COA’s characterization; however, it seems that the class it purports to identify—writings that “relate to legal rights or relationships”—is so broad as to be largely meaningless for applying the rule of ejusdem generis. Even after applying ejusdem generis, the legislative intent remains ambiguous. Having consulted extra-textual factors, CCA concludes that the particular “commercial instruments” delineated by § 32.21(d) are not so distinctly and narrowly drawn as to define a class to which a store receipt plainly does not belong.

Newman v. State, __S.W.3d__ (Tex.Crim.App. No. 00040-10, 2/9/11); COA reversed, trial court affirmed

Appellant filed an unsworn motion to dismiss his intoxication-assault case, claiming that his Sixth Amendment federal constitutional right to a speedy trial had been violated because of an eight-year delay since his indictment. The trial court signed an order denying appellant’s motion. This order indicates that the trial court denied the motion after a hearing. There is no reporter’s record of this hearing in the appellate record. On appellant’s direct appeal, COA declined to consider any factual assertions contained in appellant’s unsworn motion. After also noting the absence of a reporter’s record from any hearing in the trial court on this motion and after cautioning “practitioners regarding the importance of developing a record,” COA nevertheless decided that the “sparse” record that appellant presented was sufficient for it to consider the Barker factors even though this sparse record is silent on the second and fourth Barker factors. In overturning the trial court’s ruling denying appellant’s motion, COA also decided the record was sufficient to show that appellant’s speedy-trial right was violated.

Held: As a matter of state law, appellant failed to sustain his burden to present a sufficient record showing a violation of his right to a speedy trial. With appellant having had a hearing, having lost in the trial court on his speedy-trial claim, and then having presented no record of the hearing, appellant should also have lost on direct appeal.

Gaal v. State, __S.W.3d__ (Tex.Crim.App. No. 0516-10, 3/2/11); Reversed & remanded

Appellant appealed his felony DWI conviction, contending that the trial judge should have been recused for stating—before hearing any evidence—that the only plea bargain he would accept would be for the maximum sentence. COA agreed, holding that “[by] arbitrarily foreclosing the possibility of any plea bargain other than one for the maximum punishment,” the judge forecast his inability to consider the full range of punishment and thereby denied appellant due process. The State challenges COA’s interpretation of the facts and its application of the standard of review.

Held: Because the trial judge’s remark went only to plea bargaining and was supported by facts introduced or events occurring in the course of the proceedings, the recusal judge did not abuse his discretion in denying appellant’s motion to recuse. The appropriate standard of review for an appellate court in an order denying a motion to recuse is an abuse of discretion standard. An appellate court should not reverse a recusal judge whose ruling on the motion was within the zone of reasonable disagreement. An appellate court considers the totality of the evidence and information elicited at the recusal hearing to see if the record reveals sufficient evidence to support the recusal judge’s ruling that the trial judge was unbiased.

Woodall v. State, __S.W.3d__ (Tex.Crim.App. No. 1379-09, 3/2/11); Reversed & remanded

A jury foundappellant guilty of organized criminal activity, and the trial court sentenced her in accordance with the jury’s assessed punishment of 16 years’ confinement and a $10,000 fine. COA affirmed the conviction but reversed and remanded for a new trial on punishment. CCA granted review to determine whether appellant’s confrontation rights were violated by the representation of one witness’ grand jury testimony.

Held: Witness’ memory loss did not render her “absent” for Confrontation Clause purposes. Appellant is estopped from arguing that her confrontation rights were violated because, although the witness was physically absent at the time her grand jury testimony was read into evidence, appellant declined to have her attached and brought to court. COA is reversed, and the case is remanded for consideration of appellant’s point of error, which claims the testimony is hearsay.

State v. Castleberry, __S.W.3d__ (Tex.Crim.App. No. 0345-10, 3/2/11); COA reversed, trial court remanded

Appellant was charged with possession of cocaine. Before trial, appellant moved to suppress the cocaine because the State failed to demonstrate sufficient facts to create reasonable suspicion to detain appellant, as such the seizure a Fourth Amendment violation. CCA granted the State’s PDR to determine whether: (1) COA improperly required reasonable suspicion to justify a consensual encounter between the arresting officer and appellant; and (2) whether COA employed an improper presumption that appellant’s conduct in reaching for his waistband was innocent and improperly ignored key facts that give rise to reasonable suspicion.

Held: COA failed to separate appellant’s encounter with the officer into two distinct parts: (1) the officer’s initial approach of appellant, which was a consensual encounter; and (2) appellant’s act of reaching for his waistband, which provided the officer with reasonable suspicion to detain and frisk appellant. Therefore, the seized contraband is admissible.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

State v. Dixon, No. 13-09-00445-CR, 2010 WL 3419231 (Tex.App.—Corpus Christi 8/27/10)

D had an ownership interest in the cell phone that contained incriminating videos, despite his mother-in-law owning the phone account, giving rise to D’s reasonable expectation of privacy. In addition, accessing the videos in the phone constituted a warrantless search for which PC was required. “[I]t is noteworthy that the incriminating videos were only visible when conducting an intrusive search of the cell phone, and there is no testimony that [person who found cell phone], acting in the shoes of law enforcement, had probable cause to conduct a warrantless search of the cell phone at the time the phone was found in the department store.”

Roane v. State, No. 05-09-00927-CR, 2010 WL 3399036 (Tex.App.—Dallas 8/31/10)

Sufficient evidence supported conviction for DWI, even though officer observed, upon his arrival at the scene, D standing outside the vehicle with the keys in his pocket. “[D] maintains because [officer] did not see [D] driving, the evidence is factually insufficient to support the judgment. It is uncontested that [officer] never saw [D] driving. However, when [officer] arrived at the scene, [D] and his companion were the only ones there. [And] . . . by [D’s] own admission, his companion was incapable of driving, and the videotape supports that the passenger was lying in the back seat. The circumstantial evidence supports that [D] drove there.”

Cardella v. State, No. 04-09-00319-CR, 2010 WL 3443221 (Tex.App.—San Antonio 9/1/10)

Area outside D’s residence became a “suspicious place” for purposes of arresting D without a warrant based on report that D shot a firearm at his tenant in front of the residence. “[D] argues that the area could not have been suspicious because [officer] testified that it was not. However, what [officer] specifically said during his testimony was that the area was not normally a place where criminal activity usually takes place. He did not say that he did not consider the area to be a suspicious place at the time he made the arrest.”

Contreras v. State, 324 S.W.3d 789 (Tex.App.—Eastland 2010)

Breath test results were admissible despite D’s argument that he was not provided with the software code for the breath test machine. Even if D requested the software code and even if the State failed to provide it, “[D] cannot show with a reasonable probability that, had he been given access to the computer and computer program, the outcome of the trial would have been different.”

State v. Weaver, No. 09-10-00116-CR, 2010 WL 3518743 (Tex.App.—Beaumont 9/8/10)

Officers who received consent to search the premises of a welding shop for a wanted man were not authorized to search a van on the premises for which consent was specifically denied, even though a drug dog alerted on the van, because, by that time, officers had concluded their search for the man. From the dissent: “Although the owner refused consent to a search of the van, the canine sniff of the exterior of the van, made while officers were questioning [D], was not a ‘search’ for Fourth Amendment purposes. . . . [O]fficers were not required to see the vehicle ‘be­ing operated’ before the canine sniff of the exterior of the van. After the dog alerted to the drugs, a search of the interior of the van was justified. . . .”

Smarr v. State, No. 06-10-00002-CR, 2010 WL 3518746 (Tex.App.—Texarkana 9/10/10)

Evidence of D’s ingestion of medication for which D had properly obtained prescriptions supported D’s conviction for DWI. “The fact that a defendant was entitled to use prescribed medication is not a defense to DWI.”

Woolverton v. State, 324 S.W.3d 794 (Tex.App.—Tex­arkana 2010)

Consent of co-tenant deemed a sufficient basis to search entire residence, even without obtaining the consent of the other tenant, who police did not discover was present in the residence until after first tenant’s consent had already been given and they had entered residence. “[T]he question of whether [second co-tenant] refused to consent to the search is disputed in this case. . . . [Officer] further testified that when [second co-tenant] was asked to vacate the residence, she complied without ever communicating to [officer] the fact that she lived in the resi­dence. While [officer] did learn that [second co-tenant] resided at the residence after he arrived on the premises, he did not proactively seek her consent because [first co-tenant] had previously provided written consent to search.”

State v. Klein, No. 10-08-00344-CR, 2010 WL 3611523 (Tex.App.—Waco 9/15/10)

D’s consent to a breath test was voluntary, despite officer’s failure to comply with the statutory requirement to orally recite warnings before obtaining consent. “The evidence establishes that [D] was provided the written warnings. [D] did not contend at the suppression hearing, nor does she contend on appeal, that she did not understand the written warnings. Furthermore, be­fore [officer] gave any warnings to [D], [D] admitted that she had been drinking. For these reasons, [D] has shown no causal connection between her consent to the breath test and [officer’s] failure to orally inform her of paragraph (4) of section 724.015.”

Trigg v. State, No. 05-09-01531-CR, 2010 WL 3787820 (Tex.App.—Dallas 9/30/10)

Officer’s illegal restraint of D while officer performed a warrants check was cured by officer’s discovery of an outstanding warrant. Discovery of warrant broke the connection between the primary taint and the subsequently discovered evidence; thus, cocaine found in D’s pocket upon arrest was admissible.

Weems v. State, 328 S.W.3d 172 (Tex.App.—Eastland 2010)

Merely being found intoxicated near the scene of a traffic accident (here, four-tenths of a mile away) provided some evidence that D caused the accident; the inference of causation is even stronger when the accident is a one-car collision with an inanimate object. Although D did not own the vehicle, “[D’s mother] testified that [D] typically drove [the vehicle], and that he had it on the night of the accident. . . . The evidence showed that the accident occurred in a ‘very rural’ area. [D] was found about four-tenths of a mile from the accident scene. The police officers and EMS personnel did not see anyone else at the accident scene or in the surrounding area. The evidence was legally and factually sufficient to establish that [D] was . . . operating a motor vehicle when the accident occurred.” Furthermore, prosecutor’s statement during closing to the effect that the only person who can tell the jury the truth was the person who would not cooperate did not constitute an impermissible remark on D’s failure to testify. “Viewed in context, the complained-of statement by the prosecutor relates to [D’s] lack of cooperation with the police rather than his failure to testify.”

Pace v. State, 318 S.W.3d 526 (Tex.App.—Beaumont 2010)

Officer, who received a tip that someone was smoking mari­juana in a certain residence in the presence of a child, did not have PC to enter residence, even though officer observed D retreat into residence. Note that officer interacted with D im­me­diately before D retreated into residence. “[D’s] retreat into the residence was legally insufficient to establish probable cause that the instrumentality of a crime or evidence of a crime would be found in the residence.” Furthermore, D’s mother’s authority to grant officer consent to enter residence (over D’s ob­jection) did not allow mother to consent to officer’s entry into D’s bedroom. D was an adult, his bedroom had a lock on it, and D’s mother normally knocked before entering the room. Nevertheless, the officer was authorized to conduct a cursory check of D’s bedroom for officer safety, even though D was present and objected to officer’s search. Officer was lawfully in the house and D’s actions in attempting to slam the door on officer and then running away towards his bedroom raised RS that D might be retrieving a weapon.

Bollig v. State, No. 05-08-01038-CR, 2010 WL 3835771 (Tex.App.—Dallas 10/4/10)

D argued that the search of his residence and the seizure of a CD containing images of child pornography was unconstitutional because the search was conducted after the police obtained his wife’s consent, he was present when she consented, and he did not consent. At the suppression hearing, D’s wife said: “[A police officer] talked to me and asked me to give him that CD,” “[I] was asked, do you have the CD in your possession,” and “I was asked for [the CD], and I gave it to them.” Yet, a detective testified that D’s wife was “adamant” that police take the CD. COA concludes that no search occurred because officer merely asked D’s wife to give him the CD and she consensually did so.

State v. Ruelas, 327 S.W.3d 321 (Tex.App.—El Paso 2010)

The State contended that D testified to making an improper left turn by directly entering the right lane after the turn. The trial court disregarded D’s admission by concluding that the evidence should be suppressed because that was not the violation the officer testified to. The State argued that it is irrelevant that the officer did not testify specifically that D entered the right lane because an officer’s stated reason for the stop is not con­trolling if there is an objectively reasonable basis for the stop as shown by the evidence. COA concludes that because law enforcement action can only be supported by facts an officer was actually aware of at the time of that action, and the officer did not testify to D’s act of turning directly into the right lane, the officer lacked reasonable suspicion to support the stop.

Smith v. State, No. 01-09-00263-CR, 2010 WL 3928485 (Tex.App.—Houston [1st Dist] 10/7/10)

D’s post-arrest interview was admissible even though he did not receive Miranda warnings because an employee of the county pretrial services agency conducted the interview, which constituted “administrative questioning.” “[D] argues that the interviewer’s questions adduced the primary basis for his conviction—information linking him to the address at which the car involved in the aggravated robbery was found and establishing his relationship with the car’s owner—and, therefore, constituted custodial interrogation requiring Miranda warnings. Under both the federal and state constitutions, questioning attendant to an administrative ‘booking’ procedure does not generally require Miranda warnings.”

Carter v. State, No. 01-09-00349-CR, 2010 WL 3928492 (Tex.App.—Houston [1st Dist] 10/7/10)

Motel room search proper, even though D did not consent because D had no reasonable expectation of privacy as D failed to show that he was an overnight guest in the room and D’s girlfriend consented and she was the only person in whose name the room was rented. “The officers found female clothing and personal articles in the dresser, but no male clothing or personal items anywhere. . . . [D] contends that his expectation of privacy in [girlfriend’s] hotel room was objectively reasonable because he was legitimately in the room, he believed that he had to power to exclude others from the room as demonstrated by his attempt to refuse entrance to the police, he tried to ensure his privacy by closing the curtains and blinds, the room was not open to the public, and the ‘expectation of privacy of a boyfriend and girlfriend behind closed doors’ is consistent with historical notions of privacy. . . . According to [officer], the gap in the curtains was wide enough that one could walk by the window and clearly see in ‘without having to actually look inside.’”

Pham v. State, 324 S.W.3d 869 (Tex.App.—Houston [14th Dist] 2010)

D had no reasonable expectation of privacy as to contents of plastic shopping bag, which was seized by police from co-defendant’s vehicle after D gave bag to co-defendant. “[D],
[h]aving assumed the risk that [co-defendant] would betray the secrecy concerning the bag’s contents, relinquished his expectation of privacy. . . . More importantly, the evidence unequivocally reflects that [D] had no intention of repossessing the bag: by giving the bag to [co-defendant]. . . .”

Ferguson v. State, No. 14-09-00597-CR, 2010 WL 4013737 (Tex.App.—Houston [14th Dist] 10/14/10)

Gun retrieved from D’s car after it was impounded by police was pursuant to D’s consent, despite D’s argument that his consent had been coerced since the car had already been impounded and he was, therefore, left with no choice but to consent. “The written consent to search describes [D’s] vehicle as being located at the police impound lot; however, there is no evidence [D] knew the vehicle had been taken there until he reviewed and signed the written consent form, which was after he had already agreed to give a statement to [officer] and after he had already orally consented to the search of his vehicle.”

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