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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.”

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


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.


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.


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.


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.”

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.”

April 28, 2011 SDR

Vol. XXVI, No. 12: 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


Certiorari from the Ninth Circuit

Cullen v. Pinholster, 563 U.S. ___, 09-1088 (4/4/11)

Reversed: Thomas (5-4); Breyer dissented in part; Sotomayor dissented w/Ginsburg, Kagan

Facts: A California state court convicted Pinholster of double murder and sentenced him to death. After exhausting his state court remedies, he petitioned for habeas corpus relief in a California federal district court, arguing that he was denied effective assistance of counsel at both the guilt and sentencing phases of trial. The district court upheld Pinholster’s conviction but granted habeas relief on his death sentence.

The Ninth Circuit reversed the lower court, 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 Pinholster’s counsel failed to meet his obligations.

Question: Can a federal court overturn a state criminal conviction on the basis of facts the defendant could have alleged, but did not, in state court?

Conclusion: No, limiting “review to the state-court record is consistent with our precedents.” Justice Stephen 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 Sonia 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.”

Certiorari from the Fourth Circuit

Virginia Office for Protection and Advocacy v. Reinhard, , 563 U.S. ___, 09-529 (4/19/11)

Reversed & remanded: Scalia (8-2); Roberts dissented w/Alito; Kennedy concurred w/Thomas

Facts: The Virginia Office of Protection and Advocacy (VOPA), a state agency dedicated to advocating for persons with disabilities, sued several Virginia state officials in their official capacities in a Virginia federal district court. VOPA alleged that the officials violated two federal statutes when the officials refused VOPA access to state records which VOPA argued it was entitled. The officials moved to dismiss the case arguing that they were immune to suit under the Eleventh Amendment.

The Fourth Circuit reversed the district court, holding that the state officials were immune to suit under the Eleventh Amendment. The court reasoned that: (1) Congress did not abrogate state immunity under the statutes which VOPA sued under, and (2) the mere receipt of federal funds by Virginia under the two statutes did not mean that the state had consented to suit. The court declined to extend the Eleventh Amendment exception established in Ex parte Young, 209 U. S. 123 (1908), where a private party may seek prospective injunctive relief against state officials, noting that VOPA was not a private party but rather a state agency.

Question: Does the Eleventh Amendment categorically preclude an independent state agency from bringing an action in federal court against state officials for prospective injunctive relief to remedy a violation of federal law under the doctrine of Ex Parte Young?

Conclusion: No: “Ex parte Young allows a federal court to hear a lawsuit for prospective relief against state officials brought by another agency of the same state.” Chief Justice John G. Roberts Jr. disagreed with the majority’s “substantial and novel expansion of what we have also called a ‘narrow exception’ to a State’s sovereign immunity.”

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


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. Accordingly, 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. Accordingly, 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.

United States v. Garcia, 625 F.3d 196 (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); defendant’s prior Georgia state conviction for burglary, in violation of Ga. Code Ann. § 16-7-1(a), was one for the enumerated “crime of violence” of “burglary of a dwelling.”

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. Accordingly, the Fifth Circuit affirmed the district court’s grant of federal habeas relief invalidating the death sentence imposed. (Judge Jolly concurred in the judgment only.)

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 that 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, now an unreasonable determination of the facts in light of the evidence, as required for federal habeas relief under the AEDPA. Accordingly, 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 that was 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.


Writ of Habeas Corpus from Dallas County

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

Denied: Meyers (8-0); Price concurred w/Hervey, Cochran

Applicant was convicted of murder and sentenced to 35 years’ confinement. He filed a motion for new trial, which 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.

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 concludes 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).

PDR Granted from Hale County

10-0630 – Jose Angel Cordova – Possession of Controlled Substance

Did the Seventh COA err in finding that the trial court record does not support any arguable grounds of appeal for Petitioner?

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


Summaries are by Chris Cheatham of Cheatham Law Firm, Dallas, Texas.

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

D’s erratic driving plus the presence of an empty pill bottle found in D’s vehicle was not sufficient 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.”

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

“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.

April 18, 2011 SDR


Vol. XXVI, No. 11: 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


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 was 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, additionally, 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 upon 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 4 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. Nava, 624 F.3d 226 (5th Cir. 2010).

District court did not clearly err in finding that defendant was a manager or supervisor within the drug conspiracy of which he was convicted, so as to warrant a 3-level enhancement under USSG § 3B1.1(b).

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; therefore, 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 to the listed offenses to as to fall within the ambit of Application Note 5. Accordingly, defendant’s North Carolina law for 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. Accordingly, the Fifth Circuit vacated defendant’s sentence and remanded to the district court for reassignment to a different judge and for resentencing consistent with the Fifth Circuit’s 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.


State’s PDR from Harris County

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

Reversed & remanded: Hervey (7-1); Meyers dissented

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. PDR was granted to determine whether COA properly decided that the evidence is legally insufficient to support the possession element of this offense. CCA holds that 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’s PDR from Hale County

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

Reversed & remanded: Hervey (7-1); Johnson dissented

A grand jury indicted appellee on possession with intent to deliver meth, in an amount of four grams or more but less than two hundred grams. 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?”

CCA concludes that 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.

Writ of Mandamus from Bend County

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

Denied: Per curiam (8-0); Womack filed supporting statement

Relator requests that CCA order the trial court to enter a judgment nunc pro tunc awarding him a certain period of pre-trial jail-time credit. COA has already denied relator mandamus relief, and rightly so, says CCA. In denying the motion again, CCA writes 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 pre-trial 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 pre-trial 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.

Appellant’s PDR Granted from Johnson County

10-1551 – Gary Lyn Black – Possession of Controlled Substance w/Intent to Deliver

1. Did the COA err in holding that Rachal v. State, 917 S.W.2d 799 (Tex.Crim.App. 1996) applies only to testimony that occurs in the presence of a jury and not to testimony that occurs outside the presence of a jury during trial?

2. Does an arrest warrant issued by a Justice of the Peace for “failure to appear” pursuant to Tex. Code Crim. Proc. art. 45.103 still require a finding of probable cause on the face of the warrant in accordance with the Fourth Amendment to the United States Constitution, Article I, Section 9 of the Texas Constitution, and Article 1.06 of the Texas Code of Criminal Procedure?

3. Does the Waco Court’s opinion conflict with the Dallas Court’s opinion in Kosanda v. State, 727 S.W.2d 783 (Tex.App.-Dallas 1987, pet. ref’d)?

State’s PDR Granted from Tarrant County

10-1809 – Soutchay Sanavongxay – Aggravated Robbery

1. Did COA err in concluding that a trial court can effectively interfere with or deny the State’s right to appeal as legislatively provided for under Tex. Code Crim Proc. art. 44.01(a)(5), simply by refusing to sign a written order memorializing its ruling to exclude or suppress the State’s evidence?

2. Should State v. Rosenbaum, 818 S.W.2d 398 (Tex.Crim.App. 1991) and all its progeny generated statewide be revised to cover situations where a trial court refuses to sign a written order excluding or suppressing evidence in order to interfere or deny the State the right to appeal under Tex. Code Crim. Proc. art. 44.01(a)(5)?

3. Where a trial court intentionally refuses to sign a written order to exclude or suppress evidence, is the oral order sufficient to grant the Court of Appeals jurisdiction on a State’s appeal made pursuant to Tex. Code Crim. Proc. art. 44.01(a)(5)?

4. Did COA err in inferring that a hearing was necessary at the State’s behest notwithstanding the appellate record at the time notice of appeal was given pursuant to Tex. Code Crim. Proc. art. 44.01(a)(5) was totally devoid of any evidence supporting the trial court’s action in excluding or suppressing the State’s DNA evidence?

Appellant’s PDR Granted from Tarrant County

11-0225 – Cecil Edward Alford – Possession of Controlled Substance

1. COA erred in ruling that the “booking question exception” to Miranda applied to a police officer’s questions concerning ownership of a flash drive which was found directly underneath some illegal drugs, because the officer’s questions—unlike routine booking questions—were reasonably likely to elicit incriminating responses.

2. COA erred by evaluating Issue #1, above, using an abuse of discretion standard, when that Court ruled that the trial court “did not abuse its discretion by concluding that Alford’s statements were made during normal processing, and thus, did not invoke article 38.22 and, by extension, article 38.23 of the code of criminal procedure.”

State’s PDR Granted from Fannin County

11-0323 – Corey Don Louis – Capital Murder

1. Did COA violate Jackson v. Virginia by not considering all of the evidence, re-assigning weight and credibility, and generally not viewing the evidence in the light most favorable to the verdict?

2. Was the evidence sufficient?

3. Is an instruction on mistake of fact appropriate when the mistaken “fact” is the result of the conduct in a result-of-conduct offense?

4. Is mistake of fact applicable to lesser-included offenses when the culpability negated by the mistaken belief applied only to the greater offense?

5. Does mistake of fact apply to the culpable mental states of recklessness and criminal negligence?

6. Is the failure to submit a mistake of fact instruction that merely denies the charged offense ever harmful?

7. Is instructing the jury that it may infer intent or knowledge from acts done or words spoken ever harmful, alone or in combination with other erroneous instructions?

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


Summaries are by Chris Cheatham of Cheatham Law Firm, Dallas, Texas.

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

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 that 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 Dec. 15, 2010).

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 [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 Dec. 30, 2010).

Even though D admitted that 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.”

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

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 driver’s side door of the vehicle.”

April 12, 2011 SDR

Vol. XXVI, No. 10: 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


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 nuncprotunc 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, 428-30 & nn.13 & 19 (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 nuncprotunc 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. Flores-Gallo, 625 F.3d 819 (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); defendant’s prior Kansas state conviction for aggravated battery, in violation of Kan. Stat. Ann. § 21-3414(a)(1)(B), was one for a qualifying “crime of violence,” because the offense has as an element at least the threatened use of physical force.

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; accordingly, 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 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. Accordingly, the Fifth Circuit vacated the district 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 11, 2006), not when the Texas appellate court issued its mandate (September 26, 2006). Accordingly, defendant’s federal habeas petition was untimely under the AEDPA. The Fifth Circuit noted, but rejected as unpersuasive, the contrary decision of the Eighth Circuit in Riddle v. Kemna, 523 F.3d 850, 855-56 (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 one for 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 the 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 set in United States v. Martinez, 486 F.3d 855 (5th Cir. 2007).


State’s PDR from Bexar County

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

Affirmed: Cochran (8-0); Price concurred w/Keller

Roman 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. 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 its unanimous decision 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. Therefore, CCA agrees that the State failed to allege with reasonable certainty the act or circumstance which indicated Rodriguez discharged the firearm in a reckless manner.

State’s PDR from Lubbock County

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

Affirmed: Womack (7-1)

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.

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 holds 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 by him 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 in order to recover the crack, they chose to pursue other methods. Officer Arp should have done the same.

State’s PDR from El Paso County

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

Vacated, remanded: Womack (6-2); Keller concurred

In this felony prosecution for possession of marijuana, the State appealed from the trial court’s grant of appellee’s motion to suppress evidence that appellee contended was obtained as a result of an illegal traffic stop. COA affirmed the court’s ruling in an unpublished opinion, holding that appellee’s initial detention was not justified by specific articulable facts to show that 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. CCA granted the State’s PDR to examine both holdings.

CCA holds that 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 his intention of turning within a hundred feet of the intersection.

Appellee’s PDR from Wichita County

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

Affirmed: Keasler (6-2); Keller dissented w/Meyers

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 that his warrantless arrest for DWI, about a quarter of a mile from the accident, was unlawful. 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, CCA concludes that the encounter, which eventually escalated into appellee’s arrest for DWI, was supported by probable cause.

Application for Writ of Habeas Corpus from Jackson County

Ex parte Ramey__S.W.3d__ (Tex.Crim.App. No. WR-74,986-01, 4/6/11)

Filed & set: (5-3); Keasler dissented w/Keller, Hervey

CCA votes 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.

Appellant’s PDR Granted from Taylor County

10-1356 – Jeffrey Dee Steadman – Aggravated Sexual Assault; Indecency w/Child

COA erred when it held that the trial court’s findings were sufficient to meet the Walker test.

PDRs Granted from Upshur County

11-0119 – Katherine Clinton – Debit Card Abuse

State’s: Are the terms “present and “use” mutually exclusive, barring any overlap in meaning in the debit card abuse statute?

Appellant’s: 1. Does COA have the authority to reform a trial court’s judgment to reflect a conviction for a lesser included offense when the trial court’s jury charge did not include an instruction for the lesser included offense and the request by appellant for the inclusion of the lesser included offense instruction was not properly preserved?

2. Should COA have authority to reform a judgment to reflect a conviction for a lesser included offense when the instruction was not included in the trial court’s jury charge under any circumstances?

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


Summaries are by Chris Cheatham of Cheatham Law Firm, Dallas, Texas.

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

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 [14 Dist] Dec. 2, 2010).

“[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 Dec. 2, 2010).

Even though D sustained head lacerations in car accident, D’s post-accident behavior (e.g., unsteady gait) was attributed to intoxication so as 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, No. 02-09-00246-CR, 2010 WL 4924991 (Tex.App.-Fort Worth Dec. 2, 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, No. 06-09-00086-CR, 2010 WL 4909597 (Tex.App.-Texarkana Dec. 3, 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 nineteen-year-old college student and did not appear to be unduly intimidated during the interview. In fact, [D] argued with the investigators on a number of occasions.”

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 fifty-four 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.”

March 2011 SDR

In this issue: Abbott v. United States; Los Angeles County, CA v. Humphries; United States v. Pack; United States v. Blocker; United States v. Bustillos-Peña; United States v. McCann; United States v. Ortiz; United States v. Clayton; United States v. Goncalves; United States v. Chavira; Stone v. Thaler; Pierce v. Holder; Garland v. Roy; United States v. Zapata-Lara; Gray v. Epps; Foster v. State; Wirth v. State; Lujan v. State; Witkovsky v. State; Martinez v. State; Benson v. Montgomery County Dist. Clerk; Ex parte Panetti; Ex parte Martinez; State v. Fine; State v. Posey; Rogers v. State; Winningham v. State; Banda v. State; Tucker v. State; State v. Roberts; Harpole v. State; Alonzo v. State; State v. Klendworth; Bresee v. State; State v. Rothrock; Ervin v. State; Johnson v. State; Gilmore v. State; McCormick v. State; Barriere v. State

Supreme Court

Abbott v. United States, 562 U.S. ___, 09-479 (11/15/10); Affirmed: Ginsburg (8-0)

In these cases, the defendants engaged in drug trafficking using a firearm. Both defendants received an additional five-year sentence for using or carrying a firearm in furtherance of a drug trafficking crime pursuant to 18 U.S.C § 924(c)(1)(A), even though they received longer mandatory minimum sentences under the Armed Career Criminal Act. On appeal, they argued that the sentencing enhancement provided by 18 U.S.C. § 924(c)(1)(A) should run concurrently with their already longer minimum sentences. The Third and Fifth Circuits rejected the defendants’ arguments.

HELD: In accord with the courts below, and in line with the majority of the Courts of Appeals, a defendant is subject to a mandatory, consecutive sentence for a § 924(c) conviction, and is not spared from that sentence by virtue of receiving a higher mandatory minimum on a different count of conviction. Under the “except” clause, a § 924(c) offender is not subject to stacked sentences for violating § 924(c). If he possessed, brandished, and discharged a gun, the mandatory penalty would be 10 years, not 22. He is, however, subject to the highest mandatory minimum specified for his conduct in § 924(c), unless another provision of law directed to conduct proscribed by § 924(c) imposes an even greater mandatory minimum. Justice Elena Kagan did not take part in the decision because of her involvement in the case as Solicitor General.

Los Angeles County, CA v. Humphries, 562 U.S. ___, 09-350 (11/30/10); Reversed, remanded: Breyer (8-0)

Craig and Wendy Humphries were accused by one of their children of abuse. They were charged with child abuse and felony torture, but the charges were dismissed once it became clear the allegations were false. Despite the dismissal, the Humphries were placed on California’s Child Abuse Central Index (CACI)—a database for known and suspected child abusers. The Humphries sued L.A. County and various officials in a California federal district court, arguing that California’s maintenance of the CACI violates the Due Process Clause of the Fourteenth Amendment because identified individuals are not given fair opportunity to challenge the allegations. The district court dismissed their claims. On appeal, the U.S. Court of Appeals for the Ninth Circuit reversed, holding that the erroneous listing of the Humphries on the CACI violated the Due Process Clause. The Humphries then moved for attorneys’ fees. The Ninth Circuit awarded the fees, reasoning that the limitations to liability established in Monell v. New York City Dept. of Social Servs., 436 U.S. 658 (1978), do not apply to claims for declaratory relief.

HELD: L.A. County does not have to pay attorneys’ fees in the case. Monell applies to claims against municipalities for prospective relief as well as claims for damages. Justice Kagan did not take part because of her involvement in the case as Solicitor General.

Fifth Circuit

United States v. Pack, 612 F.3d 341 (5th Cir. 2010)

Assuming arguendo that defendant (a passenger in a vehicle stopped for speeding) had “standing” to assert a violation of his Fourth Amendment rights arising from an overlong detention (the district court found that he did not have “standing”), defendant still did not make out a violation of his Fourth Amendment rights:

(1) As made clear in United States v. Brigham, 382 F.3d 500 (5th Cir. 2004) (en banc), an officer may, in the course of a traffic stop, question and require identification of passengers and run computer checks on them.

(2) Turning to the question of reasonable suspicion, the Fifth Circuit held that the later en banc decision in Brigham had abrogated the requirement, found in United States v. Dortch, 199 F.3d 193 (5th Cir. 1999), of particularized suspicion of a specific crime, in the sense of something like or generally equivalent to direct evidence of a particular, specific offense. However, Brig­ham does require both the scope and length of the officer’s investigation to be reasonable in light of the facts articulated as having created the reasonable suspicion of criminal activity; each crime he investigates should, if established, be reasonably likely to explain those facts.

(3) After Brigham, a detention during a valid traffic stop does not violate the detainees’ Fourth Amendment rights where it exceeds the amount of time needed to investigate the traffic in­frac­tion that initially caused the stop, so long as (a) the facts that emerge during the officer’s investigation of the original offense create reasonable suspicion that additional criminal activity warranting additional present investigation is afoot, (b) the length of the entire detention is reasonable in light of the suspicion facts, and (c) the scope of the additional investigation is reasonable in light of the suspicious facts, meaning that it is reasonable to believe that each crime investigated, if established, would likely explain the suspicious facts that gave rise to the reasonable suspicion of criminal activity.

(4) Under these principles, there was no unconstitutionally overlong detention. By the time all the checks relating to the traffic stop were accomplished, the officer had reasonable suspicion of criminal activity warranting further investigation. Even if inconsistent stories alone might sometimes be insufficient to establish reasonable suspicion, here the inconsistencies were serious and likely intentionally deceptive, plus the government also relied on other factors to establish reasonable suspicion. Moreover, the length of the entire detention (eight minutes beyond the computer checks) was reasonable in light of the suspicious facts the officer observed. Finally, the scope of the investigation during the detention was reasonable in light of the suspicious facts. The decision to investigate the possibility of drug trafficking was reasonable because drug trafficking provided a reasonably likely explanation for the suspicious facts.

(Judge Dennis dissented. He would hold that under Brendlin v. California, 551 U.S. 249 (2007), defendant clearly had “standing” to challenge the stop/detention; and because the district court based its denial on lack of standing, Judge Dennis would vacate and remand to allow the district court to decide the ques­tion of reasonable suspicion in the first instance. In the alternative, he also dissented from the majority’s discussion and application of the law governing whether a detention is constitutionally overlong.)

United States v. Blocker, 612 F.3d 413 (5th Cir. 2010)

District court erred in assessing two criminal history points to defendant’s Guideline criminal history score pursuant to USSG § 4A1.1(d) (on the ground of an outstanding bench warrant for probation revocation). Under USSG § 4A1.2(m) and Application Note 4 to USSG § 4A1.1, a violation warrant of this type is countable under USSG § 4A1.1(d) only if the underlying criminal justice sentence is also countable. Because the prior sentence was over 21 years old, it was not countable, and thus neither was the active probation revocation bench warrant. Although this error raised defendant’s Criminal History Category from I to II and his Guideline imprisonment range from 70–87 months to 78–97 months, the error did not, on plain-error review, require reversal of defendant’s sentence; defendant’s sentence of 85 months’ imprisonment fell within the correct Guideline range, and defendant did not carry his burden of proving a reasonable probability that the sentence would have been different, given the district court’s refusal to depart downward or even to sentence at the bottom of the incorrect range.

United States v. Bustillos-Peña, 612 F.3d 863 (5th Cir. 2010)

Where defendant (1) was convicted of delivery of marijuana and sentenced to 10 years’ probation in 2001; (2) was deported to Mexico and illegally reentered in 2003; and, (3) had his probation revoked for the delivery offense and had a 5-year prison sentence imposed in 2005, district court reversibly erred in enhancing defendant’s sentence under USSG § 2L1.2(b)(1)(A)(i) for deportation or unlawfully remaining in the United States following a drug trafficking conviction for which the sentence imposed exceeded 13 months’ imprisonment. Because the Fifth Circuit found that it was ambiguous whether the USSG § 2L1.2(b)(1)(A)(i) enhancement applied where defendant was deported before being sentenced to more than 13 months’ imprisonment on a conviction that predated his deportation, it applied the rule of lenity and held that the revocation sentence did not relate back to the date of the original conviction. The Fifth Circuit vacated the sentence and remanded for resentencing. (Judge Clement dissented.)

United States v. McCann, 613 F.3d 486 (5th Cir. 2010).

(1) In felon-in-possession trial, prosecutor’s remark (made in the first part of the government’s closing) that the testifying officers would put their careers on the line if they lied in order to convict the innocent was not improper. In contrast to other cases where this type of remark was found to be problematic, here the prosecutor had actually elicited testimony from a police officer on redirect about the consequences he would face if he lied on the stand. The prosecutor’s remark, therefore, was merely restating evidence. However, it was improper for the prosecutor, in the rebuttal portion of the government’s closing, to make a largely emotional appeal to the jury to credit the arresting officers’ testimony because they were police officers with a hard job to do. This improper remark did not affect the defendant’s substantial rights, given that the prosecutorial misconduct was balanced against a significant counterweight of improper defense argument that at least partially prompted the prosecutor’s argument.

(2) District court did not reversibly err in admitting, over defendant’s objection, a death threat shouted at the arresting officer after defendant’s arrest. Evidence that a defendant engaged in conduct more serious than the charged offense can create sub­stantial unfair prejudice; that was not the case here, as the threat was less severely punished than the felon-in-possession offense for which defendant was being tried. The Fifth Circuit did agree that the evidence of the death threat still created a moderate risk of unfair prejudice; however, the statement had material probative value because it suggested that defendant was conscious of his guilt and wanted to intimidate the principal witness; accordingly, the Fifth Circuit could not say that the district court abused its discretion in holding that the material probative value outweighed the risk of unfair prejudice.

(3) Fifth Circuit declined to decide whether admission of photograph of defense witness, with text added that made it arguably resemble a mug shot or a “wanted” poster, was an abuse of discretion because, even if it was, admission of the exhibit did not affect defendant’s substantial rights, given its extremely minor role in defendant’s trial.

(4) District court committed reversible plain error in characterizing, solely on the basis of the presentence report, defendant’s prior Louisiana manslaughter conviction as a “crime of violence” warranting an enhancement under USSG § 2K2.1. Louisiana manslaughter includes offenses that do not fit within § 2K2.1’s “crime of violence” definition, since it is possible to be convicted of manslaughter in Louisiana if a death occurred during a non-violent offense like theft. Because (as the government admitted) the documents that could permissibly have been used, under Shepard v. United States, 544 U.S. 13 (2005), to narrow defendant’s manslaughter conviction to a “crime of violence” were lost in Hurricane Katrina, the district court would have been compelled to apply a lower offense level had it used the correct procedure at sentencing. Moreover, defendant’s substantial rights were affected because the correction of the error would lower the Guideline imprisonment range from 92–115 months (defendant received 100 months) to 63–78 months. Accordingly, the Fifth Circuit vacated the sentence and remanded for resentencing (but noted that the government could introduce any Shepard-approved documents it could locate to narrow defendant’s prior conviction).

United States v. Ortiz, 613 F.3d 550 (5th Cir. 2010)

In the Guideline sentencing calculation for a conviction for possession of marijuana with intent to distribute, district court reversibly erred by including as “relevant conduct” a quantity of cocaine discovered in a suitcase (belonging to another person) found in a condominium leased by defendant for his girlfriend and where marijuana was stored. The cocaine was not shown to be part of a “common scheme or plan” with respect to the of­fense of conviction; nor was the cocaine shown to be part of the “same course of conduct.” Because the exclusion of the cocaine produced a lower Guideline range than that under which defendant was sentenced, the Fifth Circuit vacated the sentence and remanded for resentencing, with an additional admonition that the offense of conviction was carrying a five-year mandatory minimum prison sentence, not a ten-year mandatory minimum.

United States v. Clayton, 613 F.3d 592 (5th Cir. 2010)

Where defendant was ordered to pay restitution in connection with his convictions for failing to file federal income returns (in violation of 26 U.S.C. § 7203), the Consumer Credit Protection Act (CCPA) (15 U.S.C. § 1673) did not preclude the government from garnishing more than 25% of his earnings. Section 1673(b)(1)(C) exempts from the protections of the CCPA “any debt due for any State or Federal tax.” Because defendant only appealed from the garnishment order, and not from his underlying convictions, the Fifth Circuit refused to consider defendant’s arguments on the merits of the restitution order.

United States v. Goncalves, 613 F.3d 601 (5th Cir. 2010)

District court did not err in refusing to group, pursuant to USSG § 3D1.2, defendant’s convictions for passing counterfeit notes (in violation of 18 U.S.C. § 472) and for using a falsely altered military discharge certificate (in violation of 18 U.S.C. §§ 498 & 2). Grouping is not mandatory or automatic simply because a defendant is charged with an offense that falls under a guideline listed in § 3D1.2(d); because the crimes involved different schemes, different objectives, and different victims, and took place at different times, the crimes were not of “the same general type.” Furthermore, the offense levels for the two crimes were not “determined largely on the basis of the total amount of harm or loss”; nor was the offense level calculated pursuant to Guidelines written to cover “behavior [that] is ongoing or continuous in nature.” Likewise, the district court did not err in applying the Guidelines for the passing-counterfeit-notes conviction, a two-level enhancement under USSG § 2B5.1(b)(5), on the ground that part of the offense occurred outside the United States. The Sentencing Commission did not exceed its authority when it extended this enhancement to convictions under 18 U.S.C. § 472, even though the congressional enactment from which this stemmed required the enhancement only for convictions under 18 U.S.C. § 470. The Commission may enact Guidelines that are not inconsistent with federal law, but which are broader than a congressional directive, when the Commission evinces a clear intent to do so. Finally, the district court did not clearly err in finding that part of defendant’s counterfeit-notes offense occurred outside the United States.

United States v. Chavira, 614 F.3d 127 (5th Cir. 2010)

In prosecution for making a false statement to Customs and Border Patrol Officers (particularly, that the illegal minor girl accompanying defendant was her daughter and a United States citizen), the district court reversibly erred in denying defendant’s motion to suppress her statements, because those statements were taken in violation of Miranda v. Arizona, 384 U.S. 436 (1966); under the circumstances of this case, defendant was in “custody” for purposes of Miranda; these circumstances included the facts that during questioning, (1) defendant was isolated in a small windowless room, in a trailer in the secondary processing area not accessible to the public and was surrounded by a ten-foot chain-link fence; and (2) defendant’s left hand was handcuffed to the chair in which she was seated; the Fifth Circuit also rejected the government’s argument that the questioning of defendant did not constitute “interrogation” for purposes of Miranda. The Fifth Circuit noted defendant, in connection with her bench trial, had stipulated to facts wholly apart from the tainted statements that might be sufficient to sustain her conviction; however, because the district court, in finding her guilty, relied on the entire stipulation, including the statements held inadmissible under Miranda, and because nothing indicated that the district court would have found her guilty without those statements, the Fifth Circuit vacated the judgment of conviction and sentence and remanded.

Stone v. Thaler, 614 F.3d 136 (5th Cir. 2010)

Where Texas state prisoner filed federal habeas petitions complaining of his parole revocation and errors in the calculation of his time-served credit, the AEDPA’s statute of limitations was tolled for 180 days following prisoner’s filing of a time-credit dispute-resolution request (TDR) pursuant to Tex. Gov’t Code § 501.0081. Texas law requires prisoners disputing time-served credit to file a TDR and to wait until they receive a written decision, or until 180 days elapse, before filing a state habeas application; a modest extension of the reasoning of Wion v. Quarterman, 367 F.3d 146 (5th Cir. 2009), leads to the conclusion that filing a TDR impedes a prisoner’s ability to file for state habeas relief, so the AEDPA limitations period was tolled during prisoner’s time-served credit dispute; however, defendant was not entitled to tolling for the entire time the dispute was pend­ing because after 180 days, defendant was entitled to file a state habeas petition; however, because the courts below had identified two different dates on which the limitations period commenced (one that would render the petitions timely and one that would render them time-barred), and because the certificate of appealability granted by the Fifth Circuit did not authorize them to resolve that issue, the Fifth Circuit simply vacated the decisions below and remanded.

Pierce v. Holder, 614 F.3d 158 (5th Cir. 2010)

Where federal prisoner filed a habeas petition, pursuant to 28 U.S.C. § 2241, seeking a nunc pro tunc designation of the state facility where he had served a previous sentence as the place in which he would serve his federal sentence (which would have had the effect of causing the federal sentence to run concurrently with the state sentence, thus giving the prisoner back credit for the time spent in state custody), district court should have dismissed petition for lack of jurisdiction. Until the Attorney General has made a determination of a federal prisoner’s time credit (including a final decision on the prisoner’s nunc pro tunc request), there is no case or controversy ripe for review; because the Bureau of Prisons had not done so at the time prisoner filed his federal habeas petition, the district court lacked jurisdiction to rule on the petition. The Fifth Circuit vacated the district court’s decision denying prisoner’s petition on the merits and remanded to the district court with instructions to dismiss the petition for lack of jurisdiction.

Garland v. Roy, 615 F.3d 391 (5th Cir. 2010)

Federal prisoner’s claim—namely, that in light of United States v. Santos, 128 S. Ct. 2020 (2008), he was wrongfully convicted of multiple nonexistent money laundering offenses because the indictment and jury instructions did not require the government to prove he used “profits” to pay returns to investors in his illegal pyramid scheme—was properly brought under 28 U.S.C. § 2241 pursuant to the “savings clause” of 28 U.S.C. § 2255 (which allows for a habeas corpus action if the § 2255 remedy is “inadequate or ineffective to test the legality of [a prisoner’s] detention”). The savings clause of § 2255 allows a § 2241 petition where (1) the petition raised a claim that is based on a retroactively applicable Supreme Court decision, (2) the claim was previously foreclosed by circuit law at the time when it should have been raised in petitioner’s trial, appeal, or first § 2255 motion, and (3) that retroactively applicable decision establishes that petitioner may have been convicted of a nonexistent offense. The Fifth Circuit found all these requirements satisfied; notably, in holding that the third requirement was satisfied, the Fifth Circuit disagreed with every other circuit to have decided the question of what, exactly, was the precise holding of the splintered decision in Santos; because petitioner’s claim satisfied all three requirements, the district court erred in dismissing that claim. The Fifth Circuit reversed and remanded the district court’s denial of petitioner’s § 2241 petition.

United States v. Zapata-Lara, 615 F.3d 388 (5th Cir. 2010)

In sentencing defendant for conspiracy to possess cocaine with intent to distribute, district court reversibly erred in applying a two-level enhancement under USSG § 2D1.1(b)(1) for possession of a dangerous weapon. The district court did not make adequate findings to support application of the enhancement to defendant either via the relevant conduct provisions of USSG § 1B1.3 or on a theory of personal possession. Accordingly, the Fifth Circuit vacated the sentence and remanded for resentencing, with instructions that if the district court again applied the enhancement on remand, it should make the appropriate findings and state plainly the basis for its decision.

Gray v. Epps, 616 F.3d 436 (5th Cir. 2010)

District court did not err in denying death-sentenced Mississippi defendant’s federal habeas petition alleging ineffective assistance of counsel at the penalty phase of his capital murder trial. The Fifth Circuit pretermitted the question whether trial counsel had provided deficient performance by failing to present mitigating evidence about defendant’s childhood, psychological condition, low intelligence, and good character because, even if counsel was deficient, the Mississippi Supreme Court was not unreasonable in concluding that the proffered mitigation evi­dence does not establish prejudice (i.e., a reasonable likelihood of a different outcome with respect to the sentence).

Court of Criminal Appeals

State’s PDRs

Foster v. State, 326 S.W.3d 609 (Tex.Crim.App. 2010); Reversed COA, affirmed trial court

Appellant was charged with a Class B misdemeanor DWI after a late-night stop near Austin’s bar district. Following the trial court’s denial of appellant’s motion to suppress, appellant pled nolo contendere and was put on community supervision for 18 months. Appellant appealed the trial court’s ruling on his motion to suppress, and COA decided that reasonable suspicion of intoxication did not exist when the police detained appellant to investigate whether he was intoxicated.

HELD: Time of day is a relevant factor in determining reasonable suspicion. Location near a bar district where police have made numerous DWI arrests is also a relevant factor.

Wirth v. State, 327 S.W.3d 164 (Tex.Crim.App. 2010); Vacated & remanded

Appellant was indicted for theft of property over $200,000. A jury convicted appellant of the lesser offense of theft of $20,000 or more but less than $100,000. He was sentenced to ten years’ incarceration, fined, and ordered to pay restitution of $128,103. COA held that the evidence was factually insufficient to support a finding of intent to commit theft, pursuant to Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996).

HELD: At the time COA considered this case, CCA had not issued its opinion in Brooks v. State, which overrules Clewis.

Lujan v. State, __S.W.3d__ (Tex.Crim.App. No. 0303-10, 1/12/11); Reversed COA, affirmed trial court

Appellant was stopped at a traffic checkpoint where officers were checking drivers licenses and insurance. Both appellant and his passenger failed to produce a drivers license or any identification. Both parties gave the arresting officer conflicting stories as to where they were coming from. While issuing the citation, dispatch informed the officer that the passenger had outstanding warrants, and the passenger was arrested. Appellant was then patted down for safety reasons, and the officer found a large amount of cash on his person. Given that the totality of the circumstances gave rise to reasonable suspicion, the officer then asked appellant for permission to search the vehicle. Appellant consented. A K-9 unit alerted the officer to search inside the door panel, where bags of a white powdery substance were found.

The trial court denied appellant’s motion to suppress. The trial court did not make any written findings of fact or conclusions of law. Appellant pled guilty to a lesser-included offense and was sentenced to four years’ imprisonment. On direct appeal, appellant argued that the checkpoint was not merely to check for drivers licenses and insurance; it was a checkpoint for general criminal activity. COA held that a checkpoint used to determine if there are any ongoing criminal violations is too deep of an intrusion upon an individual’s Fourth Amendment rights and reversed the trial court.

HELD: If the primary purpose of the checkpoint is lawful—a license check as opposed to general law enforcement—police can act on other information that arises at the stop. In denying the motion to suppress, the trial court implicitly found that the primary purpose of this checkpoint was permissible. The record supported this finding.

State’s Motion for Rehearing

Witkovsky v. State, 327 S.W.3d 741 (Tex.Crim.App. 2010); Denied

HELD: CCA refuses to reconsider dismissal of the State’s PDR as untimely under Tex. R. App. P. 50.

Direct Appeal

Martinez v. State, 327 S.W.3d 727 (Tex.Crim.App. 2010); Affirmed

Appellant was convicted of capital murder in 1989 and sentenced to death. The conviction and sentence were affirmed on direct appeal. In 2007, CCA granted habeas corpus relief, set aside appellant’s death sentence, and remanded the case to the trial court for new punishment. In 2009, the trial court held a new punishment hearing. Based on the jury’s answers to the special issues, the trial court sentenced appellant to death. Direct appeal to CCA is automatic.

HELD: CCA reviewed seven points of error and overruled all of them. In points of error one and two, appellant relied on Clewis v. State, concerning future dangerousness; however, that decision was overruled in Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010). In point of error three, appellant similarly relied on Clewis and Wardrip v. State, 56 S.W.3d 588 (Tex.Crim.App. 2001), which was also overruled in Brooks. Point of error five alleges a confrontation clause violation. CCA finds appellant was not deprived of his right to confront the witness, where the witness died since testifying in the 1989 trial and that testimony was reintroduced in the 2009 trial because the parties, issues, and underlying purpose of the jury charge were the same in both 1989 and 2009.

Writ of Mandamus

Benson v. Montgomery County Dist. Clerk, __S.W.3d__ (Tex.Crim.App. No. 076,409, 1/12/11); Conditionally granted

Relator was convicted of aggravated robbery and sentenced to 25 years’ imprisonment. He filed an application for a writ of mandamus contending that the Montgomery County District Clerk refused to file his application for a writ of habeas corpus while another habeas corpus application concerning the same cause was pending in CCA.

HELD: The district clerk has a ministerial duty under Tex. Code Crim. Proc. art. 11.07 to receive, file, and timely forward to CCA applications for writs of habeas corpus when earlier applications in the same cause are pending before CCA. Whether a habeas corpus applicant has other applications pending is irrelevant to the district clerk’s duty. CCA withholds issuance of the writ and allows the district clerk an opportunity to conform with this opinion.

Writs of Habeas Corpus

Ex parte Panetti, 326 S.W.3d 615 (Tex.Crim.App. 2010); Dismissed

Applicant was convicted of capital murder in 1995 and sen­tenced to death. CCA affirmed the conviction and sentence on direct appeal. CCA denied applicant’s initial post-conviction application for writ of habeas corpus and dismissed applicant’s first subsequent application for writ of habeas corpus.

HELD: Applicant’s two allegations fail to meet the dictates of Tex. Code Crim. Proc. art. 11.071 § 5.

Ex parte Martinez, __S.W.3d__ (Tex.Crim.App. No. 76,413, 1/12/11); Denied

Applicant was charged with capital murder as a party to the offense. A jury found her guilty, and she was automatically sentenced to life imprisonment. On direct appeal, COA held that her trial counsel sufficiently objected to all gang-related evidence to preserve appeal, and that the trial court erred when it overruled objections to all gang-related evidence, which was irrelevant and prejudicial. However, on discretionary review, CCA determined that counsel did not properly preserve the objection and reversed COA. Upon remand to consider the remaining issues, COA affirmed applicant’s conviction and sentence. Applicant filed this writ of habeas corpus, claiming she was denied effective representation when counsel failed to object to the introduction of all gang-related evidence; he neither continued to object to the evidence nor obtained a running objection. She further argued that but for the deficient conduct, she would have received a new trial as ordered by COA.

HELD: While CCA acknowledges that gang-related evidence tends to be irrelevant and prejudicial if not accompanied by testimony that puts the evidence into context, the record does not support the conclusion that applicant met the second prong of the Strickland test. There was ample evidence to support a finding of guilt. There is not a reasonable probability that the outcome would have been different if counsel had objected to all the gang-related evidence. The first prong of Strickland need not be addressed.

Motion for Leave to Petition for Writs of Prohibition and Mandamus

State v. Fine, __S.W.3d__ (Tex.Crim.App. No. 76,470/71, 1/12/11); Conditionally granted

The real party in interest in this writ is John Edward Green Jr., the defendant in a pending capital murder case. Green has been charged with capital murder, and the State has given notice of its intent to seek the death penalty. The case has not gone to trial and no one knows what evidence the State will offer. No one knows whether a jury will convict Green or sentence him to death. Nonetheless, Green filed an “Amended Motion to Declare Article 37.071, § 2 of the Texas Code of Criminal Procedure Un­constitutional as Applied” to assert that Article 37.071, the death-penalty sentencing statute, is unconstitutional because “its application has created a substantial risk that innocent people have been, and will be, convicted and executed.” The trial judge eventually commenced a pretrial evidentiary hearing on the motion and State filed the motions at issue in opposition.

HELD: The trial judge does not have legal authority to conduct any such pretrial evidentiary hearing and make any such pretrial declaratory judgment, because there is no basis under Texas law to conduct a pretrial evidentiary hearing to determine the “as applied” constitutionality of a state penal or criminal procedural statute. The trial judge acted beyond the scope of his lawful authority. CCA conditionally grants mandamus and prohibition relief and, if the trial judge does not do so himself, CCA will order the trial judge to dismiss Green’s motion as requesting an unauthorized declaratory judgment.

Appellee’s PDR

State v. Posey, __S.W.3d__ (Tex.Crim.App. Nos. 0034-10 & 0035-10, 1/12/11); Affirmed

A jury convicted appellee of two criminally negligent homicides alleged in separate indictments. The jury found that the vehicle driven by appellee was a deadly weapon, assessed punishment at 2 years’ imprisonment, and recommended that the sentences be probated. The trial court followed that recommendation and placed appellee on community supervision for 5 years for each conviction. Appellee later violated his community supervision and was sentenced to 22 months on each offense. In his oral comments, the trial judge suggested that appellee’s attorney file a motion for shock probation after appellee had been in jail for 75 days.

Pursuant to appellee’s “Motion to Impose Community Supervision,” the trial court conducted a hearing and concluded: “I am going to grant shock probation to Mr. Posey. I’m going to extend the period of his probation to seven years.” The State appealed, and COA agreed. Appellee asserts that COA erred in vacating the trial court’s imposition of shock community supervision. The State argues that COA correctly interpreted Tex. Code Crim. Proc. art. 42.12 by holding that appellee was not eligible for judge-ordered community supervision and was not “otherwise eligible” for shock probation because of the deadly-weapon findings.

HELD: Because the jury verdict included an affirmative finding of the use of a deadly weapon, the trial judge could not grant community supervision without a recommendation from the jury. The jury could, and did, recommend community supervision, but the jury’s recommendation extends only to regular probation. A trial judge may not grant shock probation unless the defendant is eligible for judge-ordered community supervision.

Court of Appeals

Summaries are by Chris Cheatham of Cheatham Law Firm, Dallas, Texas.

Rogers v. State, 2010 WL 2598978 (Tex.App.—Dallas 6/30/10) (No. 05-09-00862-CR)

Following D’s refusal of consent to vehicle search, officer had RS to detain D pending dog sniff, given officer’s observation of two air fresheners and a can of Febreeze and D’s body language indicating, in officer’s view, deception. “When [officer] returned to where [D] was standing and asked for consent to search the vehicle, [D] turned and looked at his vehicle and turned back and ‘kind of hesitated’ before refusing consent to search. As [D] hesitated, [officer] saw [D’s] face began to twitch, and after refusing consent, [D] shuffled his feet and walked back and forth with his arms crossed, indicating he was being deceptive.” Also, D told officer he “had been in trouble before in some other stuff” but did not elaborate and told officer he could “look it up.”

Winningham v. State, 2010 WL 2636175 (Tex.App.—Fort Worth 7/1/10) (No. 2-07-389-CR)

Evidence insufficient to support murder conviction, despite evidence that victim’s blood was present in D’s car trunk and that victim’s body was wrapped in a blue tarp, the same blue material found on bumper of D’s car. In deeming the evidence factually insufficient, the court emphasized there was no weapon linking D to the crime and no indication of blood level consistent with prosecution’s theory that D placed victim’s body in his trunk shortly after he murdered her. Furthermore, investigators did not find any evidence that the murderer drove D’s car, and there was no blue material inside D’s trunk nor any evidence of blue tarp-like material found in victim’s house. Also, investigators failed to gather fingerprint or DNA evidence.

Banda v. State, 317 S.W.3d 903 (Tex.App.—Houston [14 Dist] 7/27/10)

Initial interaction constituted a consensual encounter; officer merely approached an open garage party and asked who had driven a particular vehicle; after D identified himself, officer asked to speak with him. Furthermore, it was necessary to take prompt action to ascertain D’s blood-alcohol level. And, “[t]he short amount of time between [D’s] arrival at his home and [officer’s] arrival at the scene—approximately 10 minutes—also supports a conclusion that [D] was found in a suspicious place.”

Tucker v. State, 2010 WL 2935788 (Tex.App.—San Antonio 7/28/10) (No. 04-09-00046-CR)

D unsuccessfully argued that officers’ refusal to remove D’s son from hot van during traffic stop coerced him into giving consent to search the van. The evidence showed that D only made said request one time. Officer’s question (“You don’t mind if I take a look, do you?”) did not convey to D that search was mandated rather than requested, neither did the tone of officer’s request.

State v. Roberts, 2010 WL 2927481 (Tex.App.—Dallas 7/28/10) (No. 05-09-01328-CR)

As to whether D was “in custody” at the time of the confession, the fact that the interrogating officer had already obtained a warrant for D’s arrest was irrelevant. The officer did not advise D of the existence of the warrant. “Moreover, the remaining facts noted by the trial court—[D] was in a private room with the door closed, a uniformed officer stood outside the door, and ‘the interrogation commenced’—do not show that [D] was in custody at the time in question. The evidence shows that [D] went to the room at the request of his supervisor, not the officers, and the officers did not say anything prior to entering the room. . . . The door to the room was closed but not locked . . . [officer] never promised [D] anything in exchange for making a statement.” Trial court’s suppression of recorded confession reversed.

Harpole v. State, 2010 WL 3001171 (Tex.App.—Fort Worth 7/29/10) (No. 2-09-295-CR)

Search of D’s vehicle was not unreasonable, even though the traffic stop ended before officer obtained consent to search. After issuing D a traffic citation, officer never explicitly indicated to D that he was not free to leave. Officer did not take action (e.g., holding D’s license) to imply that D was not free to leave.

Alonzo v. State, 2010 WL 2957252 (Tex.App.—Corpus Christi 7/29/10) (No. 13-09-00395-CR)

Existence of a newspaper article indicating that D had been serving a life sentence for a prior murder at the time of the prison altercation that led to the prosecution was communicated by one juror to the others during deliberations. Such information was not considered to be “received” by the jurors as to require new trial because the foreman “immediately” informed the trial court after which the court administered a curative instruction.

State v. Klendworth, 2010 WL 3003624 (Tex.App.—Tyler 7/30/10) (No. 12-09-00414-CR)

Burglary is not an inherently violent crime such that mere investigation thereof would justify officer’s act of placing handcuffs on D. “[Officer] articulated no reason to suspect that [D] was carrying any type of weapon, burglary is not an inherently violent crime, and [officer] was not outnumbered.”

Bresee v. State, 2010 WL 3030970 (Tex.App.—San Antonio 8/4/10) (No. 04-09-00696-CR)

Trooper had RS to stop D for DWI, even though trooper did not personally observe any signs of intoxication, where citizen called 911 and reported that D was intoxicated, caused a disturbance at a bar, and had departed the bar in the vehicle. The information provided by the 911 caller was sufficiently corroborated by trooper, including the vehicle’s description, license plate number, and travel route. Importantly, “[trooper] inquired into the reliability of the 911 caller and confirmed that the 911 caller, by giving his name and address, had put himself in a position to be held accountable for his intervention.”

State v. Rothrock, 2010 WL 3064303 (Tex.App.—Austin 8/5/10) (No. 03-09-00491-CR)

D’s “pulling out” of a bar parking lot rapidly was insufficient, by itself, to create RS of D’s intoxication, even though it occurred late at night. “While . . . the officer here also testified that he observed [D’s] vehicle weaving in its lane, the trial court chose not to credit this testimony as sufficient evidence to create reasonable suspicion of intoxication.”

Ervin v. State, 2010 WL 3212095 (Tex.App.—Houston [1st Dist] 8/11/10) (No. 01-08-00121-CR)

That officer towed D’s car and took her keys did not mean D was in custody, where D consented to officers’ actions. Nor did D’s disputed allegation that officer dispossessed her of her cell phone provide a basis for reasonable belief that she was in custody. “[Officer] said [D] was free to call her mother if she wished, and she did not ask to use the telephone. [Officer] acknowledged, however, that he did not offer [D] the use of a telephone.”

Johnson v. State, 2010 WL 3170291 (Tex.App.—Eastland 8/12/10) (No. 11-10-00111-CR)

While an officer awaits the results of a computer warrant check, he may freely question D about matters unrelated to the initial stop because doing so does not elongate the stop.

Gilmore v. State, 2010 WL 3168304 (Tex.App.—Texarkana 8/12/10) (No. 06-09-00233-CR)

Anonymous tip that D was traveling toward county in white truck was not sufficient by itself to create reasonable suspicion because the route was a well-traveled corridor. In addition, “the corroborative tip merely predicted [D’s] current course of travel rather than any future travel itinerary. . . . The travel was down a well-traveled corridor, which was the usual route between Crockett and Trinity, and the tip merely predicted [D’s] current course of travel, not his future travel itinerary.”

Although the Texarkana court (like other courts) declined to officially establish a standard for conducting visual body-cavity searches on pretrial detainees, RS was enough in this instance; a tip from informants justified a visual body-cavity search of D, who had been arrested for possession of controlled substance with intent to deliver. “Notwithstanding the lack of an absolute standard requiring reasonable suspicion, we believe the deputies had reasonable suspicion to search [D].” Furthermore, a person’s arrest record may be considered by officer in determining whether RS exists.

McCormick v. State, 2010 WL 3341541 (Tex.App.—Tyler 8/25/10) (No. 12-10-00025-CR)

Interaction with officer deemed a “consensual encounter,” despite officer’s statement to D that D’s removal of petrified wood from a federal forest was illegal, because D and officer joked during the conversation. Although officer wore a uniform and had a gun and badge, there was no evidence that officer subjected D to physical force or a show of authority.

Barriere v. State, 2010 WL 3369858 (Tex.App.—Austin 8/26/10) (No. 03-09-00026-CR)

D was not under “arrest,” even though he was asked by officer to remove his shoes and socks. [Officer] asked [D] to remove his shoes and socks, both so that [Officer] could search them for additional evidence and so that [D] would have a harder time running if he tried to flee. . . . The degree of intrusion was minimal. . . .

January/February 2011 SDR

In this issue: United States v. Andino-Ortega; United States v. Williams; United States v. Morales-Sanchez; United States v. Davis; Balentine v. Thaler; Woodfox v. Cain; United States v. Williams; Dale v. Holder; United States v. Trejo; White v. Thaler; United States v. Roberts; Ex parte Sinegar; Ex parte Rendon; Welsh/McKithan v. State; Uranga v. State; Meadoux v. State; Pleache v. State; State v. Wilson; Cardenas v. State; Grant v. State; Garcia v. State; Settlemire v. State; Eubanks v. State; Runningwolf v. State; Gutierrez v. State; Brown v. State; State v. Bowman; Parker v. State; Pecina v. State; Collins v. State

Fifth Circuit

United States v. Andino-Ortega, 608 F.3d 305 (5th Cir. 2010)

District court committed reversible plain error by applying a 16-level “crime of violence” enhancement under USSG § 2L1.2(b)(1)(A)(ii) based on defendant’s Texas conviction for injury to a child by intentional and knowing commission; defense counsel’s erroneous statement that the conviction was a “crime of violence” under Perez-Muñoz v. Keisler, 507 F.3d 357 (5th Cir. 2007), did not waive defendant’s appellate challenge to the 16-level enhancement because defense counsel’s misunderstanding of Fifth Circuit precedent did not constitute an intentional and knowing relinquishment of a right. Under Fifth Circuit precedent, even injury to a child committed by an intentional act does not qualify as a “crime of violence” under USSG § 2L1.2. Moreover, the error in applying the enhancement affected defendant’s substantial rights because either of the possible alternative Guideline ranges was well below the 60-month prison term defendant received. Because the district court’s error also seriously affected the fairness, integrity, or public reputation of judicial proceedings, the Fifth Circuit vacated defendant’s sentence and remanded for resentencing.

United States v. Williams, 609 F.3d 368 (5th Cir. 2010).\

Where drug defendant was, notwithstanding a Guideline imprisonment range of 360 to life, sentenced to 192 months’ imprisonment for his crack cocaine offenses, pursuant to a binding-sentence plea agreement under Fed. R. Crim. P. 11(c)(1)(C), district court did not err in denying defendant’s motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) based on the retroactive amendments to the crack cocaine Guidelines; because defendant’s sentence resulted from his plea agreement, not from the Guidelines (which the sentence was well below), the sentence was not “based on” a Guideline range that was subsequently lowered, as necessary to authorize a sentence reduction under 18 U.S.C. § 3582(c)(2); in any event, even if defendant’s sentence were somehow deemed to be “based on” the Guidelines, and thus eligible for reduction under § 3582(c)(2), the district court did not abuse its discretion in denying a reduction based on its belief that defendant did not deserve a lower sentence than 192 months, which was already well below even the reduced Guideline imprisonment range of 324 to 405 months.

United States v. Morales-Sanchez, 609 F.3d 637 (5th Cir. 2010)

District court reversibly erred in enhancing defendant’s Guideline offense level by two levels for obstruction of justice under USSG § 3C1.1 based on defendant’s time-of-arrest phone call asking another person to report as stolen the car in which defendant was apprehended; the government failed to prove that defendant’s conduct resulted in a material hindrance to the investigation or prosecution of the instant offense of sentencing, as required by Application Note 4(d) to USSG § 3C1.1; moreover, the error was not harmless because nothing in the record provided reason to believe that the district court would have imposed the same sentence even without the erroneous obstruction-of-justice enhancement; accordingly, the Fifth Circuit vacated the sentence and remanded for resentencing.

United States v. Davis, 609 F.3d 663 (5th Cir. 2010)

(1) In second capital sentencing proceeding before a jury (pursuant to the Federal Death Penalty Act), the district court erred in responding to a jury note without notifying counsel and allowing counsel input into how the court should respond to the jury’s question; however, the error was harmless.

(2) Prosecutor conducted improper cross-examination of the defense’s only mitigation witness, when the prosecutor, purportedly for the purpose of testing the basis of the witness’ knowledge, himself “testified” to the number of homicides that had occurred in the Florida Housing Project in New Orleans during some of the years at issue in this case; however, the prosecutor’s “testimony,” while improper, did not require reversal in light of (1) the district court’s sua sponte admonitions to the prosecutor, which alerted the jury to the improper nature of the remarks, and (2) other circumstances.

(3) In federal death penalty proceeding, on appeal from a second capital sentencing proceeding before a jury (following remand of the sentence following appellate affirmance of the convictions), defendant’s renewed challenge (pursuant to Batson v. Ken­tucky, 476 U.S. 79 (1986), and progeny) to the prosecution’s allegedly racially discriminatory use of peremptory strikes was foreclosed under the law-of-the-case doctrine; the Fifth Circuit rejected defendant’s contention that the intervening Supreme Court decisions in Miller-El v. Dretke, 544 U.S. 231 (2005), and Snyder v. Louisiana, 552 U.S. 472 (2008), had so changed the applicable law as to constitute an exception to the law-of the-case doctrine.

(4) Even if government’s witness had an undisclosed agreement with the government that he would be placed into witness protection if he testified, defendant still could not show a reasonable probability that had the evidence been disclosed, the result of the trial would have been different; first, the disclosure of the witness protection request was not favorable to defendant, because jury might have assumed that witness needed protection from defendant, who was already accused of killing a person who had filed a complaint against him; moreover, the evidence against defendant was so overwhelming that this evidence would not have made a difference.

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

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 reversed the district court’s order denying defendant’s Rule 60(b) motion and remanded for consideration of the merits of defendant’s ineffective assistance of counsel claim, including any necessary evidentiary hearing.

Woodfox v. Cain, 609 F.3d 774 (5th Cir. 2010)

District court erred in granting federal habeas relief on defendant’s Louisiana conviction for murder of a prison guard in 1972; defendant’s primary argument—that trial counsel was ineffective for failing to object on Confrontation Clause grounds to the reading, at the 1998 state retrial, of the testimony of a then-deceased inmate who had testified at the original trial in 1973—was not adequately exhausted in state court; additionally, the claim failed on the merits because the theory on which the district court held that defendant was denied confrontation as to the prior testimony—i.e., the State’s failure, prior to the 1973 testimony, to disclose promises allegedly made to witness in return for his testimony—was not so obvious at the time of the 1998 trial as to render counsel’s performance deficient. (Judge Southwick dissented as to this issue. He would find the issue adequately exhausted in state court; and, on the merits, would find counsel provided constitutionally ineffective assistance of counsel by not objecting to the deceased witness’ testimony on Confrontation Clause grounds.)

United States v. Williams, 610 F.3d 271 (5th Cir. 2010)

In jury sentencing to life imprisonment pursuant to the Federal Death Penalty Act (“FDPA”), with respect to threshold intent element necessary to render defendant death-eligible under the FDPA, the district court reversibly erred in defining the term “act of violence.” An act of violence under the FDPA must involve the use of physical force. Under a proper definition of the term, the evidence was insufficient to support the jury’s finding of this threshold intent factor. Accordingly, the Fifth Circuit vacated defendant’s life sentences on the capital transporting counts and remanded for resentencing.

Dale v. Holder, 610 F.3d 294 (5th Cir. 2010)

Board of Immigration Appeals (“BIA”) erred in characterizing immigrant’s prior conviction for attempted assault under N.Y. Penal Law § 120.10(1)–(4) as a “crime of violence,” and hence an “aggravated felony,” under 8 U.S.C. § 1101(a)(43)(F). Although § 120.10(1) and (2) describe “crimes of violence,” (3) and (4) do not. Although the BIA reasoned that immigrant must have been convicted under (1) or (2) because only these subsections have a mens rea that supports attempt liability, the BIA did not take into account that New York law permits guilty pleas to hypothetical, legally impossible, or nonexistent crimes. That being the case, it could not be assumed that immigrant was convicted under (1) or (2).

United States v. Trejo, 610 F.3d 308 (5th Cir. 2010)

The government supplied an inadequate factual basis to support defendant’s guilty plea to conspiracy to commit “promotion” money laundering under the transportation prong of the federal money laundering statute, 18 U.S.C. §§ 1956(h) and 1956(a)(2)(A). To support defendant’s plea to this offense, the facts had to show that in transporting the funds, the defendant not only promoted the underlying drug-trafficking business but also that his intended purpose in so doing was to further the progress of the business; there must be more than simply the bare act of knowingly transporting the drug money. Although the factual basis for defendant’s plea did not adequately support the conviction in this respect, the error did not require reversal on plain-error review; the error was not “plain,” i.e., it was not “clear” or “obvious,” as the particular question had not been addressed by the Fifth Circuit until this case. (Judge Jolly filed an opinion concurring in the result only. He disagreed that there was an inadequate factual basis.)

White v. Thaler, 610 F.3d 890 (5th Cir. 2010)

Defendant was convicted of murder and aggravated assault in Texas state court. Counsel rendered ineffective assistance by (1) cross-examining defendant about his post-arrest silence, which allowed the prosecutor to impeach him with his failure to tell the police his exculpatory version of the events, and (2) failing to file a motion in limine or object to evidence of the murder victim’s pregnancy. Accordingly, the Fifth Circuit reversed the district court’s denial of federal habeas relief and remanded with instructions to grant the writ. (Chief Judge Jones dissented.)

United States v. Roberts, 612 F.3d 306 (5th Cir. 2010)

Where police arrived at door of apartment to arrest one defendant on traffic warrants, and defendant, after confirming that he was the subject of the warrants, stepped inside at the officers’ request to get identification to confirm that he was the proper arrestee, police did not violate the Fourth Amendment by following him into the apartment without a warrant. Under Washington v. Chrisman, 455 U.S. 1 (1982), a warrantless entry into a residence to maintain control over someone being placed under arrest is reasonable under the Fourth Amendment even in the absence of exigent circumstances. That was especially true here, where the officers had affirmative information about the presence of weapons in the apartment, and where defendant had stepped into a darkened room where at least three other persons were in the room. Nor did the officers’ protective sweep of the apartment violate the Fourth Amendment; the officers entered pursuant to a legitimate law enforcement purpose and had information about weapons; the circumstances on which the officers could reasonably rely in determining that a protective sweep was necessary were not limited to the threat posed by the defendant, but the potential threat of any of the other occupants of the apartment where weapons were clearly present. Moreover, the police did not violate the Fourth Amendment in seizing firearms without a warrant; although the illegal nature of the weapons (based on their possession by persons who had no lawful right to possess them) was not immediately apparent to the police when they entered the apartment. The police were nevertheless justified in temporarily seizing the firearms under the circumstances; the officers were entitled to maintain control over the weapons while they completed their investigation of the individuals inside the apartment; during that investigation, the police acquired knowledge that the two defendants could not lawfully possess firearms, thus justifying a permanent seizure.

Court of Criminal Appeals

Writs of Habeas Corpus

Ex parte Sinegar, 324 S.W.3d 578 (Tex.Crim.App. 2010); Remanded

Applicant pleaded no contest to aggravated kidnapping and was placed on deferred adjudication. His guilt was later adjudicated, and he was sentenced to 75 years in prison. Applicant subsequently filed a pro se habeas application under Article 11.07 alleging that he received ineffective assistance of counsel at the adjudication hearing because counsel failed to seek the recusal of the trial judge. Applicant’s motion for recusal hearing did not contain the notice, and the trial judge responded to that motion in an order saying that the motion would not be addressed.

HELD: Under no circumstances should the trial court have “otherwise ordered” when the motion would be presented. Tex. R. Civ. P. 18a, regarding the recusal of judges, applies in habeas proceedings conducted at the trial level; applicant satisfied those requirements.

Ex parte Rendon, 326 S.W.3d 221 (Tex.Crim.App. 2010); Affirmed

Applicant was charged with possession of cocaine with in­tent to deliver in a drug-free zone. He pled guilty and was sen­tenced to five years in prison. He filed a writ of habeas corpus alleging ineffective assistance of counsel predicated on erroneous advice about parole eligibility. Applicant submitted his writ application on the form for post-conviction writ applications that is specifically prescribed by CCA. Although applicant did not sign the writ application, his writ counsel did.

HELD: Article 11.14 of the Code of Criminal Procedure does not require that an applicant personally verify a post-conviction writ application. This is so regardless of whether an applicant has exclusive personal knowledge of the facts underlying his habeas claim or claims. Nevertheless, the writ application was not properly verified by applicant’s attorney as required by Rule 73.1(d) of the Rules of Appellate Procedure. Because this deficiency arose from a problem with CCA’s prescribed writ application form and through no fault of applicant or his attorney, CCA dismissed the writ without prejudice.

Appellant’s PDRs

Welsh/McKithan v. State, 324 S.W.3d 582 (Tex.Crim.App. 2010); Affirmed

CCA addresses whether under the cognate-pleadings approach of the step-one lesser-included-offense analysis in Hall v. State, 225 S.W.3d 525 (Tex.Crim.App. 2007), offensive-contact assault is a lesser-included offense of the charged offense of bodily-injury assault in an indictment alleging bodily injury by “kicking” the complainant (Welsh, PD-0811-09) and of the charged offense of aggravated sexual assault in an indictment alleging that the complainant was compelled to submit and par­tic­i­pate by the use of “physical force and violence” (McKithan, PD-0969-09). CCA also addresses McKithan’s claim that bodily-injury assault is a lesser-included offense of aggravated sexual assault.

HELD: CCA reaffirmed its analysis in Hall. Offensive-contact assault is not a lesser-included offense of the charged offenses in Welsh and McKithan, and bodily-injury assault is not a lesser-included offense of the charged offense in McKithan.

Uranga v. State, __S.W.3d__ (Tex.Crim.App. No. 0385-08, 11/17/10); Affirmed

A jury found appellant guilty of felony possession of meth. During the punishment phase of trial, the State introduced evidence of two prior convictions and a host of unadjudicated offenses. Included in these offenses is an incident that took place in 2006 when appellant drove his car onto someone’s yard to elude police. This was captured by the video camera in the police car. When the State offered the video into evidence and played it for the jury, a juror discovered that it was his lawn that had been damaged by appellant’s car. The court questioned the juror outside the presence of the jury regarding the incident and any potential bias. After the questioning, appellant requested a mistrial. The court denied the request, and the jury found that appellant was a habitual felony offender and assessed the punishment of life in prison.

Appellant argues that he was denied his right to a fair and impartial jury under the Texas Constitution because he “contends that we should presume harm from the victim-juror’s participation in assessing punishment and, therefore, that we should find error from the rejection of the motion for a mistrial.” COA concluded that the trial court was in the best position to weigh the believability of the juror’s repeated promises to both the court and the parties that he would not take into account his status as the victim of appellant’s extraneous criminal mischief. Therefore, to the extent that the record supports the trial court’s conclusion that the juror would remain unbiased—and absent any evidence to the contrary—COA did not find that a de novo review of the record affirmatively revealed a clear abuse of the trial court’s discretion in ruling on appellant’s motion for a mistrial.

HELD: The standard of appellate review was whether the trial court abused its discretion on the factual issue of actual bias; there was no error.

Meadoux v. State, 325 S.W.3d 189 (Tex.Crim.App. 2010); Affirmed

Appellant was convicted for murdering two victims during a single criminal transaction and trying to burn the victims’ bodies in a house fire. The trial court, in accordance with Texas Penal Code §§ 8.07(c) and 12.31(a), assessed punishment at life in prison without parole. On direct appeal, appellant argued that the prohibition on cruel and unusual punishments contained in the Eighth Amendment barred the State from subjecting a juvenile capital offender to life in prison without parole. COA, with little substantive analysis, rejected appellant’s claim and affirmed the trial court.

HELD: Appellant failed to show that according to contemporary national standards of decency, the punishment of life without parole for juvenile capital offenders is grossly disproportionate to the offense. CCA balanced these four penological goals: (1) appellant did not establish that there is presently a national consensus against imposing life without parole on a juvenile for the offense of capital murder; (2) a juvenile capital offender’s moral culpability, even if diminished as compared to that of an adult capital offender, is still great; (3) life without parole is a severe sentence, especially for a juvenile; (4) life without parole for juvenile capital offenders finds justification in the penological goals of retribution and incapacitation but not in the goals of deterrence or rehabilitation.

State’s PDRs

Pleache v. State, __S.W.3d__ (Tex.Crim.App. No. 1277-09, 11/3/10); Reversed & remanded

Appellant was charged with the second-degree felony of robbery. The indictment contained an enhancement “count” alleging that appellant had previously been convicted of an aggravated robbery. Appellant rejected the State’s offer to plead guilty to a reduced state-jail felony charge of theft from a person in exchange for a recommended sentence of two years in state jail. COA decided that the State’s post-guilt, pre-punishment-phase notice to appellant of the State’s intent to enhance appellant’s punishment with an aggravated-robbery conviction violated appellant’s federal constitutional due-process rights “to know the nature of the charges he is accused of and the consequences of a conviction before jeopardy attaches.”

HELD: CCA reaffirmed Villescas v. State, 189 S.W.3d 290 (Tex. Crim. App. 2006): “when a defendant has no defense to the enhancement allegation and has not suggested the need for a continuance in order to prepare one, notice given at the beginning of the punishment phase satisfies the federal constitution.”

State v. Wilson, 324 S.W.3d 595 (Tex.Crim.App. 2010); Affirmed

In 1987, appellee pled guilty to felony DWI and true to allegations of prior DWI convictions in 1983 and 1986. The trial court found appellee guilty of third-degree-felony DWI, fined him $750, and sentenced him to four years’ probation. The State revoked appellee’s probation within the first year and issued a capias for his arrest. Appellee was arrested 19 years later. In his writ for habeas corpus, appellee alleged that the DWI convictions that enhanced the 1987 offense to a felony were not final judgments under Article 42.01 of the Texas Code of Criminal Pro­cedure and requested that COA issue a writ of habeas corpus vacating his unlawfully obtained conviction and sentence. COA ruled in favor of appellee.

HELD: CCA granted review for three of the State’s contentions and rejected them all. First, use of the 1983 enhancement to elevate appellee’s misdemeanor to a felony was improper. A prior conviction may not be used as an enhancement if the conviction was not final, and until 1984, a DWI conviction on which the sentence was probated and the probation was never revoked was not deemed final. Second, appellee is not estopped from challenging the evidence pertaining to the prior DWI convictions that were used to enhance the misdemeanor offense to a felony. CCA has unanimously held that post-conviction habeas corpus is available when a felony conviction was rendered on a guilty plea when in fact the offense was a misdemeanor. Lastly, when a defendant has been convicted of an offense for which he claims that he is actually innocent, and he proves it, he will be relieved from the restraint of the conviction even though he may have pleaded guilty and confessed. Appellee successfully proved to the trial court that he was not guilty of the felony offense; the 1983 court order explicitly stated that the judgment was not final, and the statute under which he was convicted supports that court order.

Cardenas v. State, 325 S.W.3d 179 (Tex.Crim.App. 2010); Affirmed

Appellant was indicted for three counts of aggravated sexual assault of a child and a single count of indecency with a child. During voir dire, defense counsel asked potential jurors if they could “honestly ever fairly consider on an aggravated sexual as­sault of a child as little as five years in prison and give probation as an appropriate punishment.” More than 50 members of the panel stated that they could not consider the minimum punishment. After voir dire was complete, appellant challenged each of these jurors for cause, but the trial judge denied most of those challenges. The jury subsequently found appellant guilty and sentenced him to 20 years in prison. On appeal, appellant asserted that the trial court erred by denying his challenges for cause to 30 members of the jury panel because they indicated that they could not consider the full range of punishment.COA reversed appellant’s conviction and remanded the case for a new trial.

HELD: The trial court abused its discretion by denying appellant’s challenges for cause. Both the State and defense are entitled to jurors who can consider the entire range of punishment. Therefore, both sides may question the panel on the range of punishment and may commit jurors to consider the entire range of punishment. A commitment question may include any or all of the statutory elements and statutory manners and means contained in the indictment; the inclusion of evidentiary facts or non-statutory manners and means remains improper under the Standefer test.

Grant v. State, 325 S.W.3d 655 (Tex.Crim.App. 2010); Reversed & remanded

Appellant pled guilty to burglary of a habitation with a deadly weapon. After a jury trial on punishment, he was sentenced to 55 years in prison. COA reversed, holding that the trial court erred in denying appellant’s Batson challenge to the State’s exercise of peremptory strikes. COA found that the State’s explanation for striking a particular venire member was a pretext for racial discrimination because “there was no meaningful examination of [the member] regarding the reason the State used to strike him.”

HELD: The trial court’s ruling denying appellant’s Batson challenge was not clearly erroneous. COA misapplied the standard of review. COA should have given deference to the trial court’s evaluation of the prosecutors’ credibility and should not have given dispositive weight to the lack-of-questioning factor.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Garcia v. State, 2010 WL 2677703 (Tex.App.—San Antonio 7/7/10) (No. 04-09-00446-CR)

Officer had PC with respect to searching coffee can in D’s automobile, such that officer could freely place his finger inside can to see whether marijuana was underneath coffee, notwithstanding D’s argument that the destruction of his property (i.e., the coffee grounds) due to officer’s dirty finger rendered the search unreasonable. “[W]hile the destruction of property in carrying out a search is not favored, destroying property does not necessarily violate one’s constitutional rights.” Furthermore, the alleged destruction of coffee did not amount to a “taking” in violation of the Takings Clause. “When property has been seized pursuant to the criminal laws or subjected to in rem forfeiture proceedings, such deprivations are not ‘takings’ for which the owner is entitled to compensation.”

Settlemire v. State, 2010 WL 2720590 (Tex.App.—Fort Worth 7/8/10) (No. 2-09-214-CR)

DWI D’s confrontation rights not violated, even though sponsoring witness for breath test results and maintenance logs, who was the technical supervisor of the machine, did not supervise the machine’s use at time of D’s test. Testimony was not used to establish chain of custody, authenticity of sample, or accuracy of testing device.

Eubanks v. State, 2010 WL 2723176 (Tex.App.—Houston [1st Dist] 7/8/10) (No. 01-09-00833)

Affidavit supporting search warrant deemed sufficient to seize computer from D’s residence, even though complainant was wholly silent regarding any computers and even though complainant “saw him ‘put the [child porn] pictures under his bed or in the closet in his bedroom.’ . . . Although neither complainant specifically mentioned the use of a digital camera or a computer, it was reasonable for the magistrate to infer from the information in the affidavit that the complainants were photographed and that a digital camera and computer could have been used in the process of taking inappropriate photographs of the girls and could probably be found on the premises to be searched.”

Runningwolf v. State, 2010 WL 2730747 (Tex.App.—Amarillo 7/12/10) (No. 07-09-00182-CR)

Letter sent by preacher purporting to be a default judgment gave rise to criminal conviction of preacher for “simulating legal process,” even though the letter begins with the pronouncement, “[b]y the Authority and Power delegated to me solely by the Grace of God” issued by the “Kingdom of Heaven Ecclesiastic Court.”

Gutierrez v. State, 2010 WL 2788249 (Tex.App.—San Antonio 7/14/10) (No. 04-09-00237-CR)

Officer had RS to stop D for speeding, despite officer’s admission that he failed to calibrate his radar using a tuning fork. “[D] challenges the State’s reliance on the radar reading because on voir dire examination [first officer] stated he had been trained to use a tuning fork to determine the accuracy of a radar unit, and the officer admitted he did not use a tuning fork on the radar unit. However, [second officer], who testified he was familiar with the type of radar equipment used by [first officer], told the jury that using the ‘self-test’ function on the unit is the proper method to determine the radar equipment was operating properly. Moreover, the radar reading merely confirmed [first officer’s] initial observation that [D] appeared to be traveling faster than the posted speed limit.”

Brown v. State, 2010 WL 2772488 (Tex.App.—San Antonio 7/14/10) (No. 04-09-00372-CR)

The “missing links” in the chain of custody—including failures to label and uncertainty as to which officer collected the evidence—did not warrant exclusion. “[T]he drug evidence was not weighed, inventoried, or initialed at the scene, and the uncertainty as to whether it was [Officer 1] or [Officer 2] who collected each particular item of evidence . . . there was no time or date noted on the evidence card signed by [Officer 2] that he placed into the storage locker with the evidence . . . and no identifying number on the locker where the evidence was stored. . . . Further, [Lieutenant] failed to initial the envelope of drugs when he removed it from the locker and mailed it to the DPS lab for testing. Finally, one of the baggies introduced in court had a hole in it, which [D] argues suggests the evidence was tampered with. . . . Gaps or theoretical breaches in the chain of custody do not affect the admissibility of the evidence, absent affirmative evidence of tampering or commingling.”

State v. Bowman, 2010 WL 2813504 (Tex.App.—Fort Worth 7/15/10) (No. 2-09-140-CR)

Drugs found in D’s vehicle suppressed—despite officers’ observation of D receiving a black bag at location described by informant—because traffic stop was performed by another officer, who, according to court, found drugs pursuant to unlawful search incident to arrest. “[D]espite the invalidity of the search as one incident to [D’s] arrest, the State points to language in Gant that affirmed the viability of the automobile exception and contends that the officers on the scene had independent probable cause to search [D’s] car based on their collective knowledge and observations of the drug transaction in the Albertson’s parking lot. . . . The only witnesses at the suppression hearing were the investigating and arresting officers, and although their testimony clearly constitutes probable cause if believed, there are suggestions in the record that the trial court questioned whether [D] actually committed traffic violations and whether there was independent probable cause to search [D’s] car.”

Parker v. State, 2010 WL 2784428 (Tex.App.—Houston [14th Dist] 7/15/10) (No. 14-09-00104-CR)

Failure to identify in affidavit the particular STD and duration thereof was not fatal to warrant to draw blood. “[A]lthough the better practice would have been to specify the particular type of STD and its duration (and facts supporting the affiant’s knowledge of such things), because of the commonly understood nature of STDs, the affiant’s failure to so specify did not prevent the magistrate from concluding there was probable cause to believe [D’s] blood constituted evidence of the offense.”

Pecina v. State, 2010 WL 2825663 (Tex.App.—Fort Worth 7/15/10) (No. 2-05-456-CR)

Where Miranda warnings were given by magistrate who, along with police, were visiting D bedside at the hospital, waiver of D’s right to counsel was invalid. Magistrate asked D if he wanted a court-appointed lawyer, and he said he did. Magistrate asked D if he still wanted to talk to the police officers, and he said he did. But D did not initiate the questioning by the police after asserting his right to counsel. “[I]f the dissent’s arguments are correct, the police need only take a magistrate with them to conduct any custodial interrogation and ‘cross their fingers’ behind their backs while letting the magistrate first administer the Miranda warnings, and then they may ignore with impunity any attempt by the defendant to request appointment of counsel from the magistrate, making a mockery of Miranda.”

Collins v. State, 318 S.W.3d 471 (Tex.App.—Amarillo 7/22/10)

Where D was simultaneously convicted of two distinct DWIs, one resulting in imprisonment (“Conviction A”) and the other resulting in probation (“Conviction B”), D was not entitled, upon revocation of the probation, to credit for time served in prison on Conviction A. “At most, the period contemplated should begin either at the time he began serving his Conviction A sentence or at the time he moved to revoke his probation. . . . According to the record before us, appellant was not jailed for the crime underlying Conviction B prior to the time the trial court revoked his probation. Indeed, his plea bargain excluded that since he was granted probation; that is, he was not supposed to go to jail for having committed that offense. Instead, his imprisonment arose from the sentence levied in response to Conviction A. Consequently, the circumstances at issue do not fit those contemplated by art. 42.03 § 2(a)(1).”