Browse Category

SDR - Page 4

January/February 2018 SDR – Voice for the Defense Vol. 47, No. 1

Voice for the Defense Volume 47, No. 1 Edition

Editor: Michael Mowla

From Editor Michael Mowla:

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

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

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

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

Supreme Court of the United States

No relevant opinions handed down since the last SDR.

Meanwhile, elsewhere in Washington, DC…

United States Court of Appeals for the Fifth Circuit

United States v. Farrar, No. 16-11161, 2017 U.S. App. LEXIS 24151 (5th Cir. Nov. 29, 2017) (designated for publication)

  • Under Fed. Rule Crim. Proc. 11(a), a plea of “no contest” means “I do not contest [the charge],” is a statement of unwillingness to contest and no more, and admits every essential element of the offense that is well-pleaded in the charge. Unlike Fed. Rule Crim. Proc. 11(b), which requires the court to determine that there is a factual basis for the plea, Fed. Rule Crim. Proc. 11(a) does not require that the district court find a factual basis.
  • Although a factual basis is not required for a nolo contendere plea a challenge to the legal sufficiency of an undisputed factual basis [for a plea] is a straightforward question of law, reviewed de novo. The district court’s decision to accept a nolo contendere plea is reviewed for abuse of discretion.
  • Under Miller v. California, 413 U.S. 15 (1973), the test for obscenity is whether the: (1) average person, applying contemporary community standards would find that the work in its entirety appeals to the prurient interest; (b) work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) the work in its entirety lacks serious literary, artistic, political, or scientific value.
  • Judicial estoppel is an equitable doctrine applied in the court’s discretion to prevent a party from asserting a position in a legal proceeding that is contrary to a position previously taken by him in the same or some earlier legal proceeding. The purpose is “to protect the integrity of the judicial process and to prevent unfair and manipulative use of the court system by litigants” by prohibiting parties from deliberately changing positions according to the exigencies of the moment and preventing parties from playing fast and loose with the courts.” Judicial estoppel is an equitable doctrine invoked by a court at its discretion.
  • Judicial estoppel requires: (1) the party’s position must be plainly inconsistent with its prior position; (2) the party must have convinced a court to accept the prior position; (3) the party must not have acted inadvertently; and (4) whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the op­pos­ing party if not estopped.
  • Under Brady v. United States, 397 U.S. 742, 748 (1970), waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.
  • Like a plea of guilty, under United States v. Ruiz, 536 U.S. 622, 629 (2002), a nolo contendere must be knowingly, voluntarily, and intelligently made.
  • An individual who enters a plea of nolo contendere waives all nonjurisdictional defects, and is limited to claiming that the indictment failed to state an offense, that the statute is unconstitutional, or that the statute of limitations bars prosecution.
  • An assertion that under the Eighth Amendment a sentence is grossly disproportionate “as applied” asks whether the defendant’s sentence is “grossly disproportionate”: (1) the court initially makes a threshold comparison of the gravity of the defendant’s offenses against the severity of defendant’s sentence; and (2) if the court infers from this comparison that the sentence is grossly disproportionate to the offense, the court compares the sentence received to (i) sentences for similar crimes in the same jurisdiction and (ii) sentences for the same crime in other jurisdictions.
  • Under Roper v. Simmons, 543 U.S. 551, 572 (2005), the categorical analysis under the Eighth Amendment requires: (1) the court to consider objective indicia of society’s standards to uncover whether there is a national consensus against the sentencing practice at issue; and (2) the court to determine in the exercise of its own independent judgment whether the pun­ish­ment in question violates the Constitution.

Facts:

  • In 2007, pleaded guilty to 6 counts of child pornography and received 180 months in prison.
  • In May 2015, while still in prison, guards found in his workstation seven hand-drawn images depicting the [sexual] exploitation of minor females and two handwritten books describing sexual abuse of minors.
  • Farrar admits purchasing the images from other inmates and writing the books.
  • Farrar was indicted on one count of possessing six obscene de­pictions of a minor engaging in sexually explicit conduct un­­der 18 U.S.C. §§ 1466A(b)(1) & (d)(5), which requires proof of “a visual depiction of any kind, including a drawing that depicts a minor engaging in sexually explicit conduct; and is obscene.”
  • Farrar asked to be allowed to plead nolo contendere.
  • During the plea-hearing, Farrar apologized to the court for having to view the images, stating he was not “trying to hide be­hind the law and trying to come out with some appeal issue.”
  • Farrar admitted “that there [was] evidence in this case of the commission by [Farrar] of these essential elements” (of child pornography).
  • Farrar was not just silent regarding obscenity; he acted just the opposite, agreed the images are obscene, agreed there was suf­ficient evidence for every element of the offense (including obscenity); stated he had no objection to the Government’s presentation of a factual basis (which included obscenity); apologized for the court’s having to view the images, and misled the court regarding his nolo contendere plea by stating he was not trying to hide behind the law and trying to come out with some appeal issue.
  • The district judge accepted the plea of nolo contendere.
  • Over Farrar’s objection under the Eighth Amendment, he was sentenced to the ten-year minimum under 18 U.S.C. §§ 1466A(b)(1) and 2252A(b)(2), but concurrent with the child-pornography sentence he was serving and to begin from the date of the offense (May 2015) rather than sentencing (July 2016).
  • Ultimately, Farrar will serve an additional 4.5 years beyond what he is serving for the 2007 child-pornography conviction.

Editor’s Note: Farrar should have kept his mouth shut during the plea-hearing.

United States v. Hernandez, et al., Nos. 16-51226 & 16-51240, 2017 U.S. App. LEXIS 23690 (5th Cir. Nov. 22, 2017) (designated for publication)

  • Under Gall v. United States, 552 U.S. 38, 51 (2007), sentences challenged for substantive reasonableness are reviewed for abuse of discretion.
  • If a defendant fails to object at sentencing to the procedural or substantive reasonableness of the sentence, review is for plain error.
  • Under U.S.S.G. § 2B1.1(b)(11), a two-level increase is allowed if the defendant possessed or used an authentication feature to further the crime, which under 18 U.S.C. § 1028(d)(1) is any “symbol, code, image, or sequence of numbers used to determine if the document is counterfeited, altered, or otherwise falsified.”
  • A district court’s loss-calculation, and its embedded determination that the loss amount was reasonably foreseeable, are factual findings reviewed for clear error. The district court need only make “a reasonable estimate of the loss” based on its assessment of the evidence, which will not be overturned provided they are “plausible in light of the record as a whole.”
  • A sentence within the Guidelines range is presumptively reasonable, and the presumption is rebutted only if the appellant demonstrates that the sentence does not account for a factor that should receive significant weight, gives significant weight to an irrelevant or improper factor, or represents a clear error of judgment in balancing sentencing factors.

Editor’s Note: You may substitute any attorney general in office since the U.S.S.G.s were created by the Sentencing Reform Act of 1984 for Mr. Ashcroft and obtain the same result:

United States v. Pleitez, No. 16-20570, 2017 U.S. App. LEXIS 23691 (5th Cir. Nov. 22, 2017) (designated for publication)

  • To determine whether an appeal waiver applies to the issues presented, the Court considers the ordinary meaning of the waiver provision, narrowly and against the government. An appeal waiver bars an appeal if the waiver: (1) was knowing and voluntary and (2) applies to the circumstances at hand, based on the plain language of the agreement. A defendant must know that he had a right to appeal his sentence and that he was giving up that right.
  • Under Montejo v. Louisiana, 556 U.S. 778, 786 (2009), The Sixth Amendment right to counsel applies to all “critical stages” of criminal proceedings. An accused is entitled to assistance of an attorney who plays the adversarial role necessary to ensure that the proceeding itself is fair. Although an IATC claim requires a two-prong showing that representation fell below an objective standard of reasonableness and pre­ju­dice, a trial is unfair if the accused is denied counsel at a crit­ical stage of trial, and no showing of prejudice is required. If counsel is absent during a critical stage, then there is a presumption of prejudice and reversal is automatic.
  • Under Rothgery v. Gillespie Cty., Tex., 554 U.S. 191, 212 (2008), a stage is “critical” where circumstances indicate that counsel’s presence is necessary to ensure a fair process, where the accused requires aid in coping with legal problems or assistance in meeting his adversary.
  • To justify a stage as “critical,” a defendant need not explain how having counsel would have altered the outcome of his specific case, but the court considers whether the substantial rights of a defendant may be affected during the proceeding.
  • Sentencing is a critical stage of a criminal proceeding.
  • Under 18 U.S.C. § 3664(a), the probation officer must complete a PSR that contains sufficient information for the court to order restitution, including “a complete accounting of the losses to each victim, any restitution owed pursuant to a plea agreement, and information relating to the economic circumstances of each defendant.”
  • A defendant is entitled to an opportunity to be heard on restitution.
  • Before issuing a final restitution determination, the sentencing court must resolve restitution issues, including objections raised by a defendant. Disputes regarding the proper amount or type of restitution is resolved by the preponderance of the evidence.
  • The final determination of a mandatory restitution award under 18 U.S.C. § 3664(d)(5) constitutes a critical stage during which a defendant is entitled to the assistance of counsel.

Editor’s Note: Now why would the sentencing hearing be a “critical stage” of a criminal proceeding?

United States v. Thomas, No. 16-41264, 2017 U.S. App. LEXIS 24942 (5th Cir. Dec. 11, 2017) (designated for publication)

  • Under 18 U.S.C. § 1030(a)(5)(A), a person is prohibited from intentionally damaging a computer system when there was no permission to engage in that act of damage.
  • Under Allen v. United States, 164 U.S. 492, 499 (1896), the flight of the accused is competent evidence of guilt.

Editor’s Note: I am not sure whether Thomas’s argument that he was “authorized to damage a computer” since his job-duties included “routinely deleting data, removing programs, and taking systems offline for diagnosis and maintenance” is the cleverest or most absurd argument I’ve heard this year.

United States v. Wise, No. 16-20808, 2017 U.S. App. LEXIS 24641 (5th Cir. Dec. 6, 2017) (designated for publication)

  • Review of a district court’s ruling on an MTS is de novo on questions of law and for clear error on factual findings. Factual findings are clearly erroneous only if a review of the record leaves the Court with a “definite and firm conviction that a mistake has been committed.” Factual findings that are “influenced by an incorrect view of the law or an incorrect application of the correct legal test” are reviewed de novo. A dis­trict court’s ruling on a MTS may be affirmed based on any ra­tionale supported by the record.
  • Under City of Indianapolis v. Edmond, 531 U.S. 32 (2000), a checkpoint at which the police stop motorists is a “seizure” because drivers cannot ignore officers or decline to answer ques­tions, which is like any seizure under Terry v. Ohio, 392 U.S. 1 (1968): restraint of liberty.
  • A commercial bus passenger lacks standing to challenge the voluntariness of the driver’s consent to permit the police to search the bus’ passenger cabin because such passengers resemble automobile passengers who lack property or possessory interest in the automobile. Like automobile passengers, bus passengers cannot direct the bus’s route, nor can they ex­clude other passengers.
  • A defendant has standing under the Fourth Amendment to challenge a search if: (1) the defendant can establish an actual, subjective expectation of privacy with respect to the place being searched or items being seized, and (2) the expectation of privacy is one which society would recognize as objectively reasonable.
  • Under Florida v. Bostick, 501 U.S. 429 (1991) and United States v. Drayton, 536 U.S. 194 (2002), a seizure does not occur simply because an officer approaches an individual and asks a few questions. The encounter is consensual so long as the civilian would feel free to either terminate the encounter or disregard the questioning. Police do not need reasonable suspicion to ap­proach someone for questioning, and the encounter will not trigger Fourth Amendment scrutiny unless it loses its con­sensual nature. A bus passenger has not been “seized” if a reasonable person would feel free to decline requests or otherwise terminate the encounter. Otherwise, police may question an individual, ask to examine his identification, and request consent to search his luggage provided the police do not convey a message that compliance with their requests is required.

Editor’s Note: I’d like to see these cops perform an “interdiction” on this bus.

Texas Court of Criminal Appeals

Ex parte Beck, No. PD-0618-16, 2017 Tex. Crim. App. LEXIS 1200 (Tex. Crim. App. Nov. 22, 2017) (designated for publication)

  • Under Marin v. State, 851 S.W.2d 275, 279–280 (Tex. Crim. App. 1993), error-preservation rules are divided into three categories: (1) absolute requirements or prohibitions, (2) rights that are waivable-only, and (3) rights that can be forfeited.
  • A facial challenge to the constitutionality of a statute falls within the third category involving rights that are subject to forfeiture.
  • Although Tex. Penal Code § 21.12(a) refers to the conduct described in Tex. Penal Code § 33.021(b), held unconstitutional by Ex parte Lo, it contains the additional elements that the actor be a school employee and that the recipient of the sexually explicit communications be a student. Tex. Penal Code § 21.12(a) contains “material differences” from the portion of the online-solicitation statute found to be unconstitutional in Lo because the improper-relationship statute is limited to addressing only sexually explicit communications in the context of the teacher-student relationship (the government has greater leeway to regulate speech in the educational context).
  • Failing to present a challenge to the facial constitutionality of a statute at any point prior to a habeas proceeding causes pro­cedural default, and forecloses raising the challenge for the first time on habeas corpus.

Editor’s Note: A teacher texting or instant-messaging his students is always a very bad idea, and not merely because the teacher enables the awful English grammar that often accompanies texting. For instance, we applaud “Mr. Mineti” for his clever retort to Cindy’s improper suggestion. But, what if Cindy stopped texting after Mr. Mineti texted “I’ve got a naughty idea ;)” and showed the exchange to other students, the school administration, or posted it to Facebook/Instagram/Snapchat?

Bohannan v. State, No. PD-0347-15, 2017 Tex. Crim. App. LEXIS 1238 (Tex. Crim. App. Nov. 22, 2017) (designated for publication)

  • Under Tex. Const. Art. V, § 12(b), the presentment of an indictment or information to a court invests that court with ju­ris­diction over the case. To constitute an indictment or in­for­mation, an instrument must charge a person with the com­mission of an offense in a way that the allegations in it are clear enough that one can identify the offense alleged. If they are, then the indictment is sufficient to confer subject-matter jurisdiction.
  • A conviction for violating a civil-commitment order may be upheld when the underlying commitment order has been reversed on appeal if the violation occurs before the reversal. A civil-commitment order violation is a “circumstances surrounding the conduct crime.” The focus is on the circumstances that exist rather than the discrete, and perhaps different, acts that the defendant might commit under those circumstances.

Ex parte Johnson, No. WR-85,192-01, 2017 Tex. Crim. App. LEXIS 1203 (Tex. Crim. App. Nov. 22, 2017) (designated for publication)

  • Habeas relief is available only for jurisdictional defects and violations of constitutional and fundamental rights, not for statutory violations.
  • The TCCA overrules Sepeda, which used to allow habeas relief to compel the Parole Board to comply with a statute regarding parole-denial letters.
  • Because a Texas inmate does not have a liberty interest in re­lease on parole, the inmate filing for relief on a parole issue can­not show a jurisdictional defect or a violation of constitutional and fundamental rights.
  • Postconviction relief from a failure to conduct a timely parole review must be had via mandamus.

Facts:

  • Between 2013 and 2014, Applicant was convicted of forgery (10 years TDCJ), possession of a controlled substance (10 years TDCJ stacked), and delivery of a controlled substance (40 years TDCJ concurrent).
  • The concurrent sentence with the latest parole-eligibility date is Applicant’s 40-year sentence.
  • Appellant argues that the Parole Board ought to conduct a parole review of each sentence as it becomes eligible, as if it were the only sentence, which would result in parole review when his 10-year forgery sentence would become parole-eligible, so that he could be paroled on the forgery sentence earlier, and start the running of his possession-sentence earlier than if the first review is based on his eligibility on the 40-year sentence.

Editor’s Note: Rather than force the applicant back into “appellate orbit” to file a mandamus, the TCCA could have construed the case as a mandamus rather a habeas corpus proceeding, and resolved the issue. The TCCA has original jurisdiction to issue writs of mandamus in criminal-law matters under Tex. Const. Art. 5 § 5 and Tex. Code Crim. Proc. Art. 4.04 § 1 (2017). The TCCA’s authority extends to all criminal law matters and is not restricted solely to orders necessary to protect the TCCA’s jurisdiction or to enforce its judgments. See Durrough v. State, 620 S.W.2d 134, 144 (Tex. Crim. App. 1981).

Marcopoulos v. State, No. PD-0931-16, 2017 Tex. Crim. App. LEXIS 1310 (Tex. Crim. App. Dec. 20, 2017) (designated for publication)

  • The automobile exception allows for the warrantless search of an automobile if it is readily mobile and there is probable cause to believe that it contains contraband. The only inquiry relevant is whether the officers had probable cause to believe the vehicle contains contraband.
  • Probable cause exists where the facts and circumstances known to law enforcement officers are sufficient in themselves to warrant a man of reasonable caution in the belief that an of­fense has been or is being committed. There must be a “fair prob­ability” of finding inculpatory evidence at the location being searched. This “probability” should be measured by the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act, and the court must consider the totality of the circumstances known to the officer, and not use a “divide-and-conquer” approach.
  • Review of a trial court’s ruling on an MTS is in the light most favorable to the trial court’s ruling, giving almost total deference to a trial court’s express or implied determination of historical facts, and de novo to the court’s application of the law of search and seizure to those facts.
  • Furtive gestures alone are not a sufficient basis for probable cause. Although they may be valid indicia of mens rea, they must be “coupled with reliable information or other suspicious circumstances relating the suspect to the evidence of crime” to constitute probable cause.

Vandyke v. State, No. PD-0283-16, 2017 Tex. Crim. App. LEXIS 1311 (Tex. Crim. App. Dec. 20, 2017) (designated for publication)

  • A judgment of conviction is not final while the conviction is on appeal.
  • A challenge to the constitutionality of a statute is reviewed de novo, with great deference afforded to the Legislature and a pre­sumption that the statute is constitutional and the Legislature did not act unreasonably or arbitrarily. The party challenging the statute normally bears the burden of establishing its unconstitutionality.
  • The governor may grant clemency three ways: (1) reprieve (de­lays the execution of a judgment; postpones the sentence for a time); (2) commutation (change of punishment assessed to a less severe one); and (3) pardon (act of grace under the power entrusted with the execution of the laws that exempts the individual from punishment the law inflicts for a crime).
  • The governor’s clemency power allows the governor to affect the punishment an individual is subjected to, but does not allow the governor to affect the underlying conviction because a pardon (and other forms of clemency) forgives only the penalty and does not allow the courts to “forget either the crime or the conviction”; a pardon implies guilt and does not obliterate the fact of the commission of the crime and the conviction. The Texas Constitution does not grant the governor the power to destroy judicial judgments and decrees.
  • S.B. 746 affects the validity of convictions obtained under Tex. Health & Safety Code § 841.085(a), allowing prosecution for any violation of Tex. Health & Safety Code § 841.082(a). It does not prevent the governor from granting clemency to those pros­ecuted under 841.085 whose convictions remain valid. (It does not prevent the governor from granting clemency to individuals whose convictions have already become final under previous law.)
  • The Legislature and governor have decided that a sexually vio­lent predator’s failure to comply with his sex offender treat­ment program as part of his civil commitment should be resolved through the civil commitment program rather than give rise to a new criminal conviction. The Legislature was within its power to make this change and apply it to defendants whose criminal cases were pending on appeal at the time the amendment became effective.

Editor’s Note: A just outcome based on the law enacted by the Legislature.

Texas Courts of Appeals

Allen v. State, No. 01-16-00768-CR, 2017 Tex. App. LEXIS 11015 (Tex. App. Houston [1st Dist.] Nov. 28, 2017) (designated for publication)

  • Under Tex. Code Crim. Proc. Art. 20.09 and Ex parte Edone, 740 S.W.2d 446, 448 (Tex. Crim. App. 1987), a trial court forms, impanels, and empowers a grand jury to inquire into in­dictable offenses, including aggravated robbery with a deadly weapon. Because a grand jury’s deliberations are secret, it retains a “separate and independent nature from the court.”
  • Under Tex. Code Crim. Proc. Arts. 20.19–20.21, after the evidence is considered by the grand jury, it votes to determine whether to present an indictment. If nine members concur in finding the bill, the State prepares the indictment and the grand jury foreman signs it and delivers it to the judge or the clerk of the court.
  • Under Tex. Code Crim. Proc. Art. 12.06, an indictment is considered “presented” when it has been duly acted upon by the grand jury and received by the judge or clerk of the court.
  • Under State v. Dotson, 224 S.W.3d 199, 204 (Tex. Crim. App. 2007), an original file-stamp of the district clerk’s office on a signed indictment is “strong evidence that the returned indictment was ‘presented’ to the court clerk” within the meaning of Tex. Code Crim. Proc. Art. 20.21.
  • Under Tex. Const. Art. 5, § 12(b) and Cook v. State, 902 S.W.2d 471, 476 (Tex. Crim. App. 1995), once an indictment is “presented,” jurisdiction vests with the trial court.
  • Under Tex. Code Crim. Proc. Art. 4.05 and Tex. Gov. Code § 74.094, all district courts within the county have jurisdiction over the same cases, and criminal district courts have original jurisdiction in felony cases.
  • Under Tex. Gov. Code §§ 24.024 & 74.093, in counties having more than two district courts, the judges “may adopt rules gov­erning the filing and numbering of cases, the assignment of cases for trial, and the distribution of the work of the courts as in their discretion they consider necessary or desirable for the orderly dispatch of the business of the courts.” Thus, in multi-court counties such as Harris Co., although a district court may impanel a grand jury, it does not mean that all cases considered by that court’s grand jury are assigned to that court. If a grand jury in one district court returns an indictment in a case, the case may be then assigned to any district court within the same county.

Editor’s Note: Under the second issue raised, the court of appeals held that a $200 “Summoning Witness/Mileage” assessed is unconstitutional. The explanation of how the court arrived at this conclusion is long when compared to the relief granted (200 bucks). Thus, if this issue concerns one of your clients, I encourage you to read this part of the opinion.

Fisk v. State, No. 04-17-00174-CR, 2017 Tex. App. LEXIS 11311 (Tex. App. San Antonio Dec. 6, 2017) (designated for publication)

  • When reviewing the legal sufficiency of the evidence after a bench trial, under Robinson v. State, 466 S.W.3d 166, 173 (Tex. Crim. App. 2015), reviewing courts apply the same standard as in jury trials under Jackson v. Virginia, 443 U.S. 307, 309, 319 (1979): the court views all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The trier of fact is the sole judge of the weight and credibility of the evidence, and may draw reasonable inferences from basic facts to ultimate facts. Each fact need not point directly and independently to the guilt of the appellant, if the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Direct evidence and circumstantial evidence are equally probative.
  • Under Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007), to prove a defendant has a prior conviction, the State must prove beyond a reasonable doubt that: (1) a prior conviction exists, and (2) the defendant is linked to that conviction. No specific document or mode of proof is required to prove the elements. Any type of evidence, documentary or testimonial, might suffice, provided the document contains sufficient information to establish both elements.
  • Whether an offense under the laws of another state contains substantially similar elements as one of the Texas Penal Code offenses is a question of law.
  • Under Tex. Penal Code § 12.42(c)(2), when a defendant is convicted of indecency with a child and has a prior conviction for one of the sex offenses listed in Tex. Penal Code § 12.42(c)(2)(B), the trial court must impose a life sentence (the “two-strikes policy” for repeat sex offenders).
  • Under Rushing v. State, 353 S.W.3d 863, 867–868 (Tex. Crim. App. 2011), the United States is “another state,” and the laws of the United States, including the UCMJ, are the “laws of another state,” so a prior court-martial conviction under the UCMJ counts as a “strike.”
  • To determine whether an out-of-state offense contains substantially similar elements as a Texas offense, under Anderson v. State, 394 S.W.3d 531 (Tex. Crim. App. 2013) and Prudholm v. State, 333 S.W.3d 590 (Tex. Crim. App. 2011), a court must determine: (1) a high degree of likeness—they need not parallel one another precisely, but the elements of the out-of-state offense cannot be markedly broader than or distinct from the Texas offense; and (2) protection of Individual or public interests—the elements must be substantially similar with respect to the individual or public interests protected and the impact of the elements on the seriousness of the offenses—the court must determine if: (i) there is a “similar danger to society” that the statute is trying to prevent; and (2) the class, degree, and punishment range of the two offenses are substantially similar.

Jenkins v. State, No. 04-17-00114-CR, 2017 Tex. App. LEXIS 11774 (Tex. App. San Antonio Dec. 20, 2017) (designated for publication)

  • Under Smith v. State, 297 S.W.3d 260, 267 (Tex. Crim. App. 2009), the sufficiency of an indictment is a question of law and is reviewed de novo.
  • Under Tex. Const. Art. 1, § 10, defendants have the right to in­dictment by a grand jury for felony offenses.
  • Under Cook v. State, 902 S.W.2d 471, 475 (Tex. Crim. App. 1995) and Tex. Const. Art. 5, § 12, an indictment: (1) provides notice of the offense to allow a defendant to prepare a defense; and (2) serves a jurisdictional function, and its filing is required to vest the trial court with jurisdiction over a felony.
  • Under Tex. Code Crim. Proc. Art. 1.14, if the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he forfeits the right to raise the error on appeal a postconviction proceeding.
  • Under Cook v. State, 902 S.W.2d 471, 474 (Tex. Crim. App. 1995), a charging instrument that is “so deficient as to not invest the trial court with jurisdiction” may be challenged for the first time on appeal. A reasonable construction of Tex. Const. Art. 5, § 12 does not allow the conclusion that the constitutional definition of an indictment falls under Tex. Code Crim. Proc. Art. 1.14.
  • A charging instrument can be missing elements of an offense and still be an “indictment” for purposes of the Texas Constitution. The charging instrument must name a person to vest a trial court with jurisdiction.
  • Under Stansbury v. State, 82 S.W.2d 962, 968 (Tex. Crim. App. 1935), a caption is not part of the charging instrument.

Facts:

  • Jenkins was charged with continuous trafficking of persons under the indictment at left.
  • Here, the only place Jenkins’ name appears is in the caption.
  • Under Stansbury v. State, 82 S.W.2d 962, 968 (Tex. Crim. App. 1935), a caption is not part of the charging instrument.
  • Jenkins did not move to quash or dismiss the indictment before trial.
  • Jenkins was convicted by a jury and sentenced to 25 years.
  • On appeal, Jenkins argued that the indictment is fatally defective because it does not name “a person.”

Editor’s Note: never depend on a caption.

  • This is different than what occurred in Kirkpatrick v. State, 279 S.W.3d 324 (Tex. Crim. App. 2009), where the defendant was charged in one indictment with “forgery and tampering with a governmental record in three counts” and in another a single count of tampering with a governmental record by making a document, with knowledge of its falsity and with intent that it be taken as a genuine governmental record. The TCCA held that although the indictment properly charged a mis­de­meanor and lacked an element necessary to charge a fel­ony, the felony offense exists, and the indictment’s return in a felony court put appellant on notice that the charging of the felony offense was intended. The TCCA was considering whether the indictment sufficiently alleged an offense, not whether it named a defendant.
  • Because a valid indictment is essential for jurisdiction, it is not subject to waiver, and the conviction is void.

Mayes v. State, Nos. 07-16-00290-CR, 07-16-00291-CR & 07-16-00292-CR, 2017 Tex. App. LEXIS 11032 (Tex. App. Amarillo Nov. 28, 2017) (designated for publication)

  • Under Tex. Const. Art. 5, § 12(b), and Cook v. State, 902 S.W.2d 471, 476 (Tex. Crim. App. 1995), once an indictment is “presented,” jurisdiction vests with the trial court.
  • Under Tex. Code Crim. Proc. Art. 1.14, if the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he forfeits the right to raise the error on appeal a postconviction proceeding.
  • Under State v. Dotson, 224 S.W.3d 199, 204 (Tex. Crim. App. 2007), an original file-stamp of the district clerk’s office on a signed indictment is “strong evidence that the returned indictment was ‘presented’ to the court clerk” within the meaning of Tex. Code Crim. Proc. Art. 20.21.
  • Under Tex. Penal Code § 1.07(a)(17), a deadly weapon is “a firearm or anything manifestly designed, made, or adapted to inflicting death or serious bodily injury” or “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.”
  • Under Brister v. State, 449 S.W.3d 490, 494 (Tex. Crim. App. 2014), and Plummer v. State, 410 S.W.3d 855, 864–865 (Tex. Crim. App. 2013), the evidence must show that an object that meets the definition of a deadly weapon was used or exhibited during the transaction on which the felony conviction was based, and other people were placed in actual danger. Mere possession of a deadly weapon during the commission of a felony is not enough: the deadly weapon must facilitate the associated felony. The evidence must establish that the weapon furthered the commission of the offense or enabled, continued, or enhanced the offense. Proximity is a factor in whether a deadly weapon was used or exhibited during the commission of a felony: There must be a connection between the deadly weapon and crime such that the deadly weapon “facilitated or could have facilitated” the crime.

Owens v. State, No. 03-15-00717-CR, 2017 Tex. App. LEXIS 10928 (Tex. App. Austin Nov. 22, 2017) (designated for publication)

  • Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), and Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007), in evaluating legal sufficiency, an appellate court reviews all the evidence in the light most favorable to the judgment to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. It is up to the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. In circumstantial-evidence cases, each fact need not point directly and independently to the defendant’s guilt provided the cumulative force of all the incriminating circumstances is sufficient to support the conviction.
  • Under Tex. Penal Code § 19.03(a)(7)(A), capital murder as charged in this case requires proof that a person “intentionally” or “knowingly” caused the death of more than one person during the same criminal transaction.
  • Under Louis v. State, 393 S.W.3d 246, 251 (Tex. Crim. App. 2012), capital murder is a result-of-conduct offense, and is defined in terms of one’s objective to produce, or a substantial certainty of producing, a specified result—i.e., the death. Murder is committed “knowingly” when an actor engages in conduct while aware that death is reasonably certain to result from his conduct. To be aware that his conduct is reasonably certain to result in death, the actor must also be aware of the lethal nature of his conduct.
  • Under Ruffin v. State, 270 S.W.3d 586, 591–592 (Tex. Crim. App. 2008), mental culpability must be inferred from the cir­cum­stances under which a prohibited act or omission occurs. A jury may infer that a defendant intends the natural consequences of his acts and infer a defendant’s knowledge or intent from any facts tending to prove its existence, including the method of committing the crime, the nature of wounds inflicted on the victims, and the accused’s acts, words, and conduct.
  • Under Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996), a jury may infer intent to kill from the use of a deadly weapon unless it would not be reasonable to infer that death or serious bodily injury could result from the use of the weapon.
  • Under Samaripas v. State, 454 S.W.3d 1, 5 (Tex. Crim. App. 2014), a trial court has broad discretion over the voir dire process, including setting reasonable limits and determining the propriety of a question. A trial court abuses its discretion only when a proper question about a proper area of inquiry is prohibited. A voir dire question is proper if it seeks to discover a juror’s views on an issue applicable to the case. An otherwise proper question is impermissible if the question attempts to commit the juror to a verdict based on certain facts.
  • Under Standefer v. State, 59 S.W.3d 177, 180 (Tex. Crim. App. 2001): (1) voir dire questions that are not intended to discover bias against the law or prejudice for or against the defendant, but rather seek only to determine how jurors would respond to the anticipated evidence and commit them to a specific verdict based on that evidence, are improper; and (2) commitment ques­tions are improper when law does not require commitment and the question could not disqualify juror for cause or when question includes facts in addition to those necessary to establish challenge for cause. A commitment question is one where possible answers are that the prospective juror would resolve or refrain from resolving an issue in the case based on facts contained in the question. A commitment question usually will elicit a “yes” or “no” answer, but an open-ended question can be a commitment question if the question asks the prospective juror to set the hypothetical parameters for his decision-making.

State v. Sanders, Nos. 02-16-00226-CR to 02-16-00228-CR, 2017 Tex. App. LEXIS 11674 (Tex. App. Fort Worth Dec. 14, 2017) (designated for publication)

  • Under Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000), the standard of review on a ruling on an MTS is bifurcated standard: almost total deference to the trial court’s determination of historical facts that depend on credibility, and de novo of the application of the law to those facts. The trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. For facts explicitly found, a reviewing court must defer to them so long as they are supported by the record. For facts not explicitly found, the reviewing court views the evidence in the light most favorable to the ruling and assumes that the trial court made implicit findings of fact supporting its ruling so long as those findings are supported by the record. The reviewing court must sustain the ruling if it is correct under any theory of law applicable to the case.
  • Under Missouri v. McNeely, 569 U.S. 141, 148 (2013), and State v. Villarreal, 475 S.W.3d 784, 796 (Tex. Crim. App. 2014), a war­rant is required for an unconsented draw of specimen un­less the exigency exception applies, which is when the exigen­cies of the situation make the needs of law enforcement so com­pelling that a warrantless search is objectively reasonable under the Fourth Amendment. Whether law enforcement faced an emergency that justified acting without a warrant calls for a case-by-case determination based on the totality of the circumstances. Blood testing is different from other de­struction-of-evidence cases where police are confronted with a “now or never” situation because the body’s natural me­tabolism of intoxicating substances is distinguishable from the potential destruction of easily disposable evidence when the police knock on the door.
  • Under Weems v. State, 493 S.W.3d 574, 578 (Tex. Crim. App. 2016), the State fails to meet its burden to establish that exigent circumstances existed at the time of a warrantless blood draw if the record indicates that probable cause was present at the time of the draw, that an officer who was not preoccupied in investigating an accident was available to pursue a warrant, and when the record is devoid of what procedures and how much time procuring a warrant would have required. Merely because a suspect is transported to a nearby hospital does not make obtaining a warrant impractical or unduly delay the taking of blood to the extent that natural dissipation would significantly undermine a blood test’s efficacy, especially if other officers are available to investigate the scene of the accident and escort the suspect to the hospital.

Editor’s Note: Now that McNeely, Villarreal, and Weems are established law and the State cannot admit into evidence warrantless blood draws unless there are exigent circumstances, it appears that some members of law enforcement may need to resort to other unconstitutional tactics:

December 2017 SDR – Voice for the Defense Vol. 46, No. 10

Voice for the Defense Volume 46, No. 10 Edition

Editor: Michael Mowla

From Editor Michael Mowla:

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

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

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

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

Supreme Court of the United States

Dunn v. Madison, No. 17-193, 2017 U.S. LEXIS 6630, 583 U. S. ____ (U.S. Nov. 6, 2017)

        (1) Under 28 U. S. C. § 2254(d), to prevail on a federal habeas petition, the petitioner must prove by preponderance of the evidence that the state trial court’s adjudication of the claim: (1) was contrary to or involved an unreasonable application of clearly established Federal law as determined by the SCOTUS; or (2) was based on an unreasonable determination of the facts considering the evidence presented in state court.

        (2) Neither Panetti nor Ford ”clearly established” that a prisoner is incompetent to be executed because of a failure to remember the commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case.

Editor’s Note: Because this case does not provide a sufficient background on Panetti, I provide it here:

  • In Panetti, six experts testified: Anderson and Parker (court-appointed), and Conroy, Rosin, Silverman, and Cunningham (defense). Panetti v. Dretke, 401 F. Supp.2d 702, 704, 707 (W.D. Tex. 2004). Anderson and Parker concluded that some portion of Panetti’s behavior could be attributed to malingering, but they believed that his illness was to some degree genuine. Id. at 707. Parker and Anderson believed that Panetti understood the reason for his execution because he could cognitively function since in letters Panetti often communicated in lucid, socially appropriate thoughts. Id. at 708.
  • Panetti’s experts agreed that he had the cognitive functionality to communicate coherently much of the time, but he still suffers from delusions about the world around him. Id. Conroy and Rosin believed that despite his delusions, Panetti understands the State’s stated reason for seeking his execution is for his murders, but does not appreciate the connection between his crimes and his execution. Id. Silverman concluded that Panetti does not associate his execution with the murders he committed in any way. Id. Cunningham concluded that although Panetti understands that the State is going to execute him, his delusions prevent him from recognizing the State as “a lawfully constituted authority,” and instead is “in league with the forces of evil to prevent him from preaching the Gospel.” Id. at 708–709; Panetti v. Dretke, 448 F.3d 815, 817 (5th Cir. 2006).
  • The testimony of experts supports a finding that Panetti suffered from some form of mental illness, which some have diagnosed as a schizoaffective disorder. Panetti, 401 F. Supp.2d at 707, Panetti, 448 F.3d at 817.
  • One of Panetti’s witnesses testified that when a person is schizophrenic, it does not diminish their cognitive ability. “[I]nstead, you have a situation (schizophrenia thought-disorder) where the logical integration and reality connection of their thoughts are disrupted, so the stimulus comes in, and instead of being analyzed and processed in a rational, logical, linear sort of way, it gets scrambled up and it comes out in a tangential, circumstantial, symbolic . . . not really relevant kind of way.” Panetti, 591 U.S. at 955.
  • And, when a person is schizophrenic, he may have interactions that are “[r]easonably lucid . . . whereas a more extended conversation about more loaded material would reflect the severity of his mental illness.” Id. at 684.
  • Per the Fifth Circuit, Panetti knew that: (1) he had committed the murders; (2) he was about to be executed; and (3) the State’s given reason for executing him was the fact that he had committed the murders. Panetti, 448 F.3d at 819–821.
  • The SCOTUS rejected the Fifth Circuit’s conclusions on three grounds.
  • First, Panetti’s delusions did not render him incompetent: First, “[a] prisoner’s awareness of the State’s rationale for an execution is not the same as a rational understanding of it,” and although Ford requires mere awareness of the State’s reason for executing him rather than a rational understanding of it, “[F]ord does not foreclose inquiry into the latter.” Panetti, 591 U.S. at 959.
  • Second, the SCOTUS observed that capital punishment is imposed because it has the potential to make the offender recognize at last the gravity of his crime and to allow the com­munity, including the surviving family and friends of the victim, to affirm its own judgment that the culpability of the prisoner is so serious that the ultimate penalty must be sought and imposed. Panetti, 591 U.S. at 958. However, the potential for a prisoner’s recognition of the severity of the offense and the objective of community vindication are called in question if the prisoner’s mental state is so distorted by a mental illness that his awareness of the crime and pun­ishment has little or no relation to the understanding of those concepts shared by the community. Panetti, 591 U.S. at 958–959 [emphasis supplied].
  • Third, a prisoner’s awareness of the State’s rationale for an execution is not the same as a rational understanding of it. Id. at 959. As the SCOTUS notes, a person sentenced to death for “an atrocious murder may be so callous as to be unrepentant; so self-centered and devoid of compassion as to lack all sense of guilt; so adept in transferring blame to others as to be considered, at least in the colloquial sense, to be out of touch with reality.” Id. at 959–960. “[T]he beginning of doubt about competence in a case like (Panetti’s) is not a misanthropic personality or an amoral character. It is a psychotic disorder.” Id. at 960.

United States Court of Appeals for the Fifth Circuit

United States v. Iverson, No. 16-51034, 2017 U.S. App. LEXIS 21654 (5th Cir. Oct. 31, 2017) (designated for publication)

        (1) Under U.S.S.G. § 3C1.1, a two-level enhancement for obstruction of justice applies when: (1) the defendant willfully obstructs or impedes, or attempts to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct relates to: (A) the defendant’s offense of conviction and any relevant conduct; or (B) a closely related offense.

        (2) Lying to a judicial officer to obtain appointed counsel qualifies as obstruction of justice under U.S.S.G. § 3C1.1.

        (3) Allowing private therapists to set restrictions on a defendant’s conduct, without the court having to approve those restrictions, usurps a judge’s exclusive sentencing authority.

United States v. Marroquin, Nos. 16-40367 & 16-40368, 2017 U.S. App. LEXIS 21651 (5th Cir. Oct. 31, 2017) (designated for publication)

        (1) Under U.S.S.G. § 4A1.1, criminal history points are assigned for “each prior sentence” rather than each offense, and the single sentence is assigned one score.

        (2) Under Molina-Martinez v. United States, 136 S.Ct. 1338, 1345 (2016), when a defendant is sentenced under an incorrect U.S.S.G. range, the error will usually result in prejudice to the defendant. The prejudice is even stronger when the correct Guide­lines range is below the defendant’s sentence.

United States v. Soza, No. 16-41689, 2017 U.S. App. LEXIS 21656 (5th Cir. Oct. 31, 2017) (designated for publication)

        (1) Under U.S.S.G. § 2K2.1(a)(4)(B), a base offense level of 20 applies if the offense involved a “semiautomatic firearm that is capable of accepting a large capacity magazine” and the defendant was a “prohibited person” when he committed the offense. A “prohibited person” means: (1) per 18 U.S.C. § 922(g)(1), a person “who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year,” and (2) per 18 U.S.C. § 922(g)(2), a person “who is a fugitive from justice.”

        (2) Review of a district court’s interpretation and application of the U.S.S.G. is de novo, and factual findings is for clear error. Whether the evidence was sufficient to support a U.S.S.G. enhancement requires a finding of fact that is reviewed for clear error. The government has the burden of demonstrating, by a pre­ponderance of the evidence, the facts that are necessary to support the enhancement.

        (3) Failure to object to either the PSR or the district court’s sentence results in review for plain error. Plain error exists if: (1) there is an error, (2) the error is plain, (3) the error affects sub­stantial rights, and (4) the error seriously affects the fairness, in­tegrity or public reputation of judicial proceedings.

        (4) If party wishes to preserve an argument for appeal, the party must press and not merely intimate the argument during the proceedings before the district court. An argument must be raised to such a degree that the district court has an opportunity to rule on it. The raising party must present the issue so that it places the opposing party and the court on notice that a new issue is being raised.

        (5) Under 18 U.S.C. § 921, a fugitive from justice is “any person who has fled from any State to avoid prosecution for a crime or to avoid giving testimony in any criminal proceeding.” One cannot be a fugitive from justice without having “fled” a state with the express intent of avoiding either prosecution or testimony.

        (6) Where the government has the burden of production and persuasion as it does on issues like enhancement of the offense level, its case should stand or fall on the record it makes the first time around. The district court may provide the government with an additional opportunity to present evidence on remand if it has tendered a persuasive reason why fairness so requires.

Texas Court of Criminal Appeals

Burch v. State, No. PD-1137-16, 2017 Tex. Crim. App. LEXIS 1171 (Tex. Crim. App. Nov. 15, 2017) (designated for publication)

        (1) Under State v. Herndon, 215 S.W.3d 901 (Tex. Crim. App. 2007), review of a trial court’s grant or denial of a motion for new trial is for an abuse of discretion. The court abuses its discretion only if its ruling is not supported by any reasonable view of the record. When deciding whether a trial court erred in granting a new-trial motion, the reviewing court views the evidence in the light most favorable to the court’s ruling and gives almost total deference to the court’s findings of historical fact. When the court does not issue findings of fact, however, the reviewing court will imply findings necessary to support the ruling if they are reasonable and supported by the record. An appellate court must not substitute its own judgment for that of the trial court, and it must uphold the trial court’s ruling if it is within the zone of reasonable disagreement (when there are two reasonable views of the evidence).

        (2) Under Strickland, 466 U.S. 668 (1984), a defendant is entitled to relief on an IATC claim if he demonstrates by a preponderance of the evidence that: (1) trial counsel’s performance was deficient and; (2) the applicant was prejudiced because of that deficient performance. Trial counsel’s performance is deficient if it falls below an objective standard of reasonableness. The prejudice prong of Strickland requires a defendant to show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

        (3) Under Strickland, counsel enjoys a “strong presumption” that his “conduct fell within the wide range of reasonable professional assistance,” so when “a legal proposition or a strategic course of conduct is one on which reasonable lawyers could disagree, an error that occurs despite the lawyer’s informed judgment should not be gauged by hindsight or second-guessed.” However, to be reasonably likely to render reasonably effective assistance to his client, “a lawyer must be sufficiently abreast of developments in criminal law aspects implicated in the case at hand” because the Sixth Amendment guarantees a defendant the benefit of trial counsel who is familiar with the applicable law. Thus, ignorance of well-defined general laws, statutes, and legal propositions is not excusable, and if it prejudices a client, IATC may be found.

        (4) As it relates to IATC on probation eligibility, to show prejudice, a defendant must show that: (1) the defendant was ini­tially eligible for probation; (2) counsel’s advice was not given as a part of a valid trial strategy; (3) the defendant’s election of the assessor of punishment was based upon his attorney’s erroneous advice; and (4) the results of the proceeding would have been different had his attorney correctly informed him of the law.

Editor’s Note: The TCCA finds that we must assume the trial judge disbelieved Burch’s affidavit as well as those of his siblings. However, what about trial counsel’s affidavit (the one that counts), in which counsel also stated that he thought that the judge could grant deferred-adjudication probation? If the hope was to obtain deferred adjudication and the trial court was prohibited by law from granting it, what difference does it make whether trial counsel also believed that juries tended to assess longer sentences on sexual assault cases than judges typically do?

State v. Elrod, Nos. PD-0704-16, PD-0705-16, & PD-0706-16, 2017 Tex. Crim. App. LEXIS 1075 (Tex. Crim. App. Oct. 25, 2017) (designated for publication)

        (1) In determining whether a warrant sufficiently establishes probable cause, a court is bound by the four corners of the affidavit. In interpreting affidavits for search warrants, courts must do so in a common-sense and realistic manner. Probable cause exists when the facts and circumstances shown in the affidavit would warrant a man of reasonable caution in the belief that the items to be seized were in the stated place. A magistrate, in assessing probable cause, may draw inferences from the facts. Although the magistrate’s determination of probable cause must be based on the facts contained within the four corners of the affidavit, the magistrate may use logic and common sense to make inferences based on those facts.

        (2) A magistrate’s decision to issue a search warrant is subject to a deferential standard of review, even in close cases. Under Illinois v. Gates, the process of determining probable cause does not deal with hard certainties, but with probabilities. The evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

        (3) A magistrate’s decision to issue a search warrant will be upheld so long as he has a substantial basis for concluding that probable cause exists. A magistrate’s action cannot be a mere ratification of the bare conclusions of others. A magistrate should not be a rubber stamp. To ensure that such an abdication of the magistrate’s duty does not occur, courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued.

        (4) When a probable cause affidavit specifies a named informant as supplying the information upon which probable cause is based, the affidavit is sufficient if it is sufficiently detailed to suggest direct knowledge on the informant’s part.

Gibson v. State, No. PD-1043-16, 2017 Tex. Crim. App. LEXIS 1142 (Tex. Crim. App. Nov. 8, 2017) (designed for publication)

        (1) An argument on appeal must merely comport with the trial objection. Under Tex. Rule App. Proc. 33.1(a)(1)(A), to pre­serve a complaint for review, a party must have presented a timely objection or motion to the trial court stating the specific grounds for the ruling desired. There is no requirement that to preserve error of appeal on an evidentiary issue, a party must make sure the appellate argument comports with the related mo­tion when there is a trial objection that comports with the appellate argument.

Hallmark v. State, No. PD-1118-16, 2017 Tex. Crim. App. LEXIS 1143 (Tex. Crim. App. Nov. 8, 2017) (designed for publication)

        (1) If a condition of a plea-bargain agreement that was not agreed-to between a defendant and the State is added by the trial court during the plea-hearing (but before sentencing), and the trial court discusses the added condition during the hearing, if the defendant does not object to the added condition, it becomes part of the plea-bargain and enforceable.

Ex parte Macias, No. PD-0480-17, 2017 Tex. Crim. App. LEXIS 1111 (Tex. Crim. App. Nov. 1, 2017) (designed for publication)

        (1) The double jeopardy clause of the Fifth Amendment attaches when the jury is empaneled and sworn, but does not attach if the trial court lacks jurisdiction over the case.

        (2) When the State appeals under Tex. Code Crim. Proc. Art. 44.01, which includes an appeal of the granting of a MTS, the State is entitled to a stay in the proceedings pending the disposition of the appeal. Under Tex. Rule App. Proc. 25.2(g), once the appellate record is filed in the appellate court, proceedings in the trial court except as provided otherwise by law or by the rules are suspended until the trial court receives the appellate court mandate.

Ex parte McClellan, No. WR-83,943-01, 2017 Tex. Crim. App. LEXIS 1173 (Tex. Crim. App. Nov. 15, 2017) (designated for publication)

        (1) On June 28, 2017, in Ex parte Ingram, PD-0578-16, 2017 Tex. Crim. App. LEXIS 588 (Tex. Crim. App. June 28, 2017) (designated for publication), the TCCA held that Tex. Penal Code § 33.021(c) is not facially unconstitutional because it is designed to protect children from sexual exploitation, not merely “speech.” It proscribes only those communications that are intended to cause certain types of individuals to engage in sexual activity, who are those whom the actor believes to be under age 17 and those who represent themselves be under age 17, when the actor is more than 3 years older than the believed or represented age. When a person represents herself to be under age 17, the actor who solicits such a person will ordinarily be aware of a substantial risk that the person is underage.

        (2) The TCCA refused to answer the question of whether he can raise the issue of the constitutionality of § 33.021(c) for the first time on appeal.

Owings v. State, No. PD-1184-16, 2017 Tex. Crim. App. LEXIS 1112 (Tex. Crim. App. Nov. 1, 2017) (designed for publication)

        (1) When one act of sexual assault is alleged in the indictment, and more than one incident of sexual assault is shown by the evidence, upon a timely request by the defense, the State must elect the act upon which it would rely for conviction once the State rests its case in chief.

        (2) When conducting a constitutional harm analysis of an election error, the reviewing court must reverse a judgment of conviction unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or pun­ish­ment. This determination is made by analyzing the error in the context of the purposes underlying the election requirement: (1) protect the accused from the introduction of extraneous offenses; (2) minimize the risk that the jury might choose to convict, not because one or more crimes were proved beyond a reasonable doubt, but because all of them together convinced the jury the defendant was guilty; (3) ensure unanimous verdicts (all jurors agreeing that one specific incident, which constituted the offense charged in the indictment, occurred); and (4) give the defendant notice of the offense the State intends to rely upon for prosecution and afford the defendant an opportunity to defend. To find beyond a reasonable doubt that the erroneous failure to require an election was harmless (did not contribute to the conviction), the court must determine that these four purposes behind the election requirement were met.

Proenza v. State, No. PD-1100-15, 2017 Tex. Crim. App. LEXIS 1168 (Tex. Crim. App. Nov. 15, 2017) (designated for publication)

        (1) Under Tex. Code Crim. Proc. Art. 38.05, a trial judge is prohibited from commenting on the weight of the evidence in criminal proceedings or otherwise divulging to the jury her opinion of the case. If raised as a freestanding statutory complaint, error under Article 38.05 is subject to non-constitutional harm analysis.

        (2) A trial judge’s improper comment on the evidence is not forfeited by a failure to object to the comment. Although every unscripted judicial comment does not cause reversible error, compliance with Article 38.05 is fundamental to the proper functioning of our adjudicatory system, and it should enjoy special protection on par with other nonforfeitable rights.

Texas Courts of Appeals

Aguillen v. State, No. 06-17-00004-CR, 2017 Tex. App. LEXIS 10159 (Tex. App. Texarkana Oct. 31, 2017) (designated for publication)

        (1) A trial court’s ruling on the admissibility of extraneous offenses is reviewed for an abuse of discretion. An appellate court must uphold a trial court’s ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. An appellate court will not reverse a trial court’s ruling to admit evidence unless its ruling falls outside the zone of reasonable disagreement.

        (2) Under Tex. Rule Evid. 404(a), evidence of a person’s bad character is not admissible to prove that he acted in conformity with that character on any specific occasion. Under Tex. Rule Evid. 404(b), evidence of other bad acts may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

        (3) Under Tex. Code Crim. Proc. Art. 38.37 § 1(b)(1), (2), notwithstanding Tex. Rule Evid. 404 and 405, evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including: (1) the state of mind of the defendant and the child; and (2) the previous and sub­sequent relationship between the defendant and the child. Before a trial court can admit such evidence, it must first determine that the evidence likely to be admitted at trial will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt, then conduct a hearing out of the presence of the jury for that purpose. However, an extraneous offense committed against a third party must have some similarity to the charged offense.

        (4) Extraneous-offense evidence may be admissible as contextual evidence (1) same-transactional evidence (other offenses connected with the primary offense) if the evidence is essential for the State to rationally present evidence of the charged offense, and the facts and circumstances of the instant offense would make little or no sense without also bringing in the same trans­action contextual evidence; and (2) background-contextual evidence (general background evidence), which fills in the background of the narrative and gives it interest, color, and lifelikeness, but is not admissible for one of the other purposes for which evidence may be admitted under Rule 404(b) if it includes an impermissible character component.

Hughitt v. State, Nos. 11-15-00277-CR & 11-15-00278-CR, 2017 Tex. App. LEXIS 10227 (Tex. App. Eastland Oct. 31, 2017) (designated for publication)

        (1) Under Texas Penal Code. Tex. Penal Code § 71.02, a person engages in organized criminal activity if, with the intent to establish, maintain, or participate in a combination or in the prof­its of a combination, he commits or conspires to commit one or more [enumerated offenses]. A conviction requires an offense enu­merated in the statute.

        (2) Under Tex. Health & Safety Code § 481.112(a), a person need not have exclusive possession of a controlled substance to be guilty of possession—joint possession will suffice. A person commits possession with intent to deliver a controlled substance if she knowingly possesses a drug with the intent to deliver it. Possession is actual care, custody, control, or management. The State must show: (1) that the accused exercised control, management, or care over the substance and (2) that the accused knew the matter possessed was contraband. The evidence must establish that the accused’s connection with the drugs is more than just her fortuitous proximity to someone else’s drugs.

        (3) Under the affirmative-links rule of Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981), if the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband. The rule restates the common-sense notion that a father, son, spouse, roommate, or friend may jointly possess property like a house but not jointly possess the contraband found in that house.

One 2006 Harley Davidson Motorcycle v. State, No. 02-16-00450-CV, 2017 Tex. App. LEXIS 10082 (Tex. App. Oct. 26, 2017) (designated for publication)

        (1) In a civil case, a legal sufficiency challenge may be sustained only when: (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by legal or evi­dentiary rules from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620 (Tex. 2014) (op. on reh.). In determining whether legally sufficient evidence exists to support the finding, the reviewing court must consider evidence favorable to the finding if a reasonable factfinder could, and must disregard evidence contrary to the finding unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005). Anything more than a scintilla of evidence is legally sufficient to support the finding. Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). More than a scintilla exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact. Any ultimate fact may be proved by circumstantial evidence. Russell v. Russell, 865 S.W.2d 929, 933 (Tex. 1993).

        (2) Under Tex. Code Crim. Proc. Art. 59.02(a), contraband is subject to forfeiture, and property is contraband if used in the commission of certain offenses. A final conviction for an underlying offense is not a requirement for forfeiture.

        (3) Under Tex. Code Crim. Proc. Art. 59.05(b), the State must prove by a preponderance of the evidence that property is subject to forfeiture.

        (4) To prove that property is contraband subject to forfeiture, the State must establish a substantial nexus or connection between the property to be forfeited and some statutorily defined criminal activity. The State may establish the required nexus by showing that a driver of a vehicle was in possession of a felony weight of a controlled substance.

November 2017 SDR – Voice for the Defense Vol. 46, No. 9

Voice for the Defense Volume 46, No. 9 Edition

Editor: Michael Mowla

From Editor Michael Mowla:

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

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

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

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

Supreme Court of the United States

Although the Court has been in session since the last week of September, there have been no significant decisions handed down by the SCOTUS since the July 4, 2017, SDR (Vol. 32, No. 10). In the meantime . . .

United States Court of Appeals for the Fifth Circuit

United States v. Bello-Sanchez, 16-41181, 2017 U.S. App. LEXIS 18490 (5th Cir. Sep. 25, 2017) (designated for publication)

        (1) Under U.S.S.G. § 3B1.2, a defendant may receive a two-level decrease in the offense level if the defendant played a “minor” role in the criminal activity, a four-level decrease if his role was “minimal,” and a three-level decrease for conduct falling between the two. A “minimal” participant is one who is “plainly among the least culpable of those involved in the conduct of a group” and who demonstrates a “lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others.” A “minor” participant is one “who is less culpable than most other participants in the criminal activity, but whose role could not be described as minimal.”

        (2) When considering relative culpability, the fact that a defendant performs an essential or indispensable role in the criminal activity is not determinative, and the defendant may receive an adjustment if he is substantially less culpable than the “average participant” in the criminal activity. An “average participant” is a person “who actually participated in the criminal activity, so culpability is determined only by reference to his co-participants in the case.” A defendant who does not have a proprietary interest in the criminal activity and who is simply being paid to perform certain tasks should be considered for an adjustment under this guideline.

        (3) Under U.S.S.G. § 3B1.2 cmt. n.3(c), to address relative culpability, a district court “should consider” the following nonexhaustive factors: (i) The degree to which the defendant understood the scope and structure of the criminal activity; (ii) the degree to which the defendant participated in planning or organizing the criminal activity; (iii) the degree to which the defendant exercised decision-making authority or influenced the exercise of decision-making authority; (iv) the nature and extent of the defendant’s participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion the defendant had in performing those acts; and (v) the degree to which the defendant stood to benefit from the criminal activity.

Garcia v. Sessions, 16-60015, 2017 U.S. App. LEXIS 16808 (5th Cir. Aug. 31, 2017) (designated for publication)

        (1) Under Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 843–844 (1984), courts afford agency interpretations of statutes “controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute” or Congress has “unambiguously ex­pressed” a contrary intent (Chevron Deference).

        (2) Under 8 U.S.C. § 1229b(a), the Attorney General may cancel removal of a permanent resident alien who: (1) has been lawfully admitted for permanent residence for at least five years, (2) has resided in the United States for at least seven years after having been admitted in any status, and (3) has not been convicted of an aggravated felony.

        (3) Under 8 U.S.C. § 1101(a)(43)(F), “aggravated felony” includes “a crime of violence for which the term of imprisonment is at least one year.” 8 U.S.C. § 1101(a)(43)(F).

        (4) Under 8 U.S.C. § 1101(a)(48)(B), a term of imprisonment includes the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.

        (5) Under Pichardo v. INS, 104 F.3d 756, 759 (5th Cir. 1997), an indeterminate sentence is to be considered a sentence for the maximum term imposed.

        (6) Under 8 C.F.R. § 1240.11(a)(1), an alien may apply for cancellation of removal to the IJ overseeing his removal proceedings.

        (7) When a person is required to remain in SAFPF until he receives permission to leave, that person is under a “term of imprisonment” since under Tex. Gov. Code § 493.009(a), SAFPF exists to “confine and treat” individuals. It is irrelevant that SAFPF is a condition of community supervision. And if the person is ordered to SAFPF for “no more than 1 year,” he is deemed to be sentenced to a “term of imprisonment” of 1 year regardless of how much he spends in SAFPF.

Editor’s Note: So now SAFPF is also a sucker’s deal for the noncitizen-client, including those who are here legally. The immigration-law madness continues.

United States v. Kiekow, 14-40700, 2017 U.S. App. LEXIS 18084 (5th Cir. Sep. 18, 2017) (designated for publication)

        (1) A defendant has the right to be tried in the district in which the crime [allegedly] took place. The government must prove venue by a preponderance of the evidence. United States v. Garcia Mendoza, 587 F.3d 682, 686 (5th Cir. 2009). Under 18 U.S.C. § 3237(a), any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.

        (2) Under United States v. Romans, 823 F.3d 299, 309–310 (5th Cir. 2016), in conspiracy cases, venue is proper in any district where the agreement was formed or an overt act occurred. An overt act is an act performed to effect the object of a conspiracy. The transportation of drugs and drug proceeds is an overt act.

        (3) Drug-quantity and a defendant’s role in the crime are factual determinations. If the district court’s account of the evidence is plausible considering the entire record, the appellate court may not reverse even if had the court been sitting as trier of fact it might have weighed the evidence differently.

        (4) Under Peugh v. United States, 133 S.Ct. 2072, 2082–2084 (2013), where the wrong U.S.S.G. are consulted and those U.S.S.G. expose a defendant to greater punishment, the district court violates the Ex Post Facto Clause. A retrospective increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation.

Montano v. Texas, 16-20083, 2017 U.S. App. LEXIS 14945 (5th Cir. Aug. 11, 2017, revised Sep. 1, 2017) (des­ig­nated for publication)

        (1) Although the text of 28 U.S.C. § 2241 does not require exhaustion (unlike the text of 28 U.S.C. § 2254), a petitioner who files a 28 U.S.C. § 2241 petition must exhaust state court remedies before a federal court will entertain a challenge to state detention. However, exhaustion is not required where the: (1) available state remedies either are unavailable or wholly inappropriate to the relief sought, or (2) attempt to exhaust state remedies would be a patently futile course of action.

        (2) If a federal habeas petitioner asserts a claim before every available state judicial forum, the applicant has exhausted that claim for filing the federal habeas petition. This is especially where the petitioner seeks protection under the Double Jeopardy Clause, which is to bar a second prosecution, as opposed to protection under the Speedy Trial Clause, which merely seeks a faster trial.

United States v. Bennett, No. 17-60038, 2017 U.S. App. LEXIS 20176 (5th Cir. Oct. 16, 2017) (designated for pub­li­cation)

        (1) Review of the propriety of jury instructions is for abuse of discretion, and the court considers whether the entire charge is a correct statement of law. A district court abuses its discretion by failing to issue a defendant’s requested instruction if the instruction: (1) is substantively correct; (2) is not substantially cov­ered in the charge given to the jury; and (3) concerns an important point in the trial so that the failure to give it seriously impairs the defendant’s ability to present effectively a defense.

        (2) Review of the denial of a motion for mistrial is for abuse of discretion, subject to harmless-error review: If a defendant moves for a mistrial because the jury heard prejudicial testimony, a new trial is required only if there is a significant possibility that the prejudicial evidence had a substantial impact upon the jury verdict, viewed considering the entire record. If the evidence is so prejudicial that the jury will unlikely be able to erase it from their minds, then a mistrial should be ordered. Great weight is given to the trial court’s assessment of the prejudicial effect of the evidence, and prejudice may be rendered harmless by a curative instruction. A district court abuses its discretion only if the evidence, when viewed in the context of the whole trial, is so highly prejudicial that it would have had a substantial impact on the verdict.

        (3) Rights under the Fourth, Fifth, and Sixth Amendments are personal in nature and cannot be asserted vicariously.

        (4) Closing argument is to assist the jury in analyzing, evaluating, and applying the evidence. A prosecutor is confined in closing argument to discussing properly admitted evidence and any reasonable inferences or conclusions that can be drawn from that evidence. Prosecutors may not suggest that evidence which was not presented at trial provides additional grounds for finding defendant guilty and may not express personal opinions on the merits of the case or the credibility of witnesses.

        (5) Expressions of individual opinion of guilt are dubious at best because they take guilt as a predetermined fact. Such remarks may lead the jury to believe that the whole governmental establishment had already determined appellant to be guilty on evidence not before them. Or, they may be construed to mean that as a pretrial administrative matter the defendant has been found guilty as charged else he would not have been prosecuted, and that the administrative level determination is either binding upon the jury or else highly persuasive to it. Because a defendant is entitled to the presumption of innocence, a prosecutor may neither dispense with the presumption of innocence nor denigrate the function of the trial nor sit as a thirteenth juror. To make an appropriate assessment, the reviewing court must not only weigh the impact of the prosecutor’s remarks, but must also consider defense counsel’s opening salvo. However, two wrongs do not make a right.

        (6) If a court determines that a prosecutor’s closing arguments are improper, the court must determine whether the arguments affected the defendant’s substantial rights (whether the prosecutor’s remarks cast serious doubt on the correctness of the jury’s verdict) by considering: (1) the magnitude of the prejudicial effect of the prosecutor’s remark, (2) the efficacy of any cautionary instruction by the judge, and (3) the strength of the evidence supporting the conviction.

United States v. McMahan, No. 16-10255, 2017 U.S. App. LEXIS 19476 (5th Cir. Oct. 5, 2017) (designated for publication)

        (1) Under Fed. Rule Crim. Proc. 35(b), upon the government’s motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person. The government is under no obligation to file a Rule 35(b) motion, and if it does, “the sentencing court is not bound by the government’s recommendation on whether or how much to depart but must exercise its independent discretion.”

        (2) On its face, Fed. Rule Crim. Proc. 35(b) contains no right to notice and a hearing, and a defendant has no right to notice and hearing if the government files the motion.

United States v. Oti, No. 16-10386, 2017 U.S. App. LEXIS 19180 (5th Cir. Oct. 3, 2017) (designated for publication)

        (1) If a defendant moves for an acquittal under Fed. Rule Crim. Proc. 29 at the close of the government’s case-in-chief and again postverdict, a sufficiency claim is reviewed de novo. If a defendant fails to do so, under United States v. Delgado, 672 F.3d 320, 331 (5th Cir. 2012), the claim is reviewed for plain error, allowing for reversal only if there is a “manifest miscarriage of justice,” which occurs only where “the record is devoid of evidence pointing to guilt” or the evidence is so tenuous that a conviction is “shocking.”

        (2) In a sufficiency review, under Jackson v. Virginia, 443 U.S. 307, 319 (1979), the court asks whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

        (3) Under United States v. Simpson, 741 F.3d 539, 547 (5th Cir. 2014), 18 U.S.C. § 1349, and 21 U.S.C. §§ 846 & 841(a)(1), the elements of conspiracy to distribute and dispense controlled sub­stances outside the scope of professional practice are: (1) an agreement by two or more persons to unlawfully distribute or dispense a controlled substance outside the scope of professional practice and without a legitimate medical purpose; (2) the defendant’s knowledge of the unlawful purpose of the agreement; and (3) the defendant’s willful participation in the agreement. An agreement may be inferred from concert of action, knowledge may be inferred from surrounding circumstances, and voluntary participation may be inferred from a collection of circumstances.

        (4) Under 18 U.S.C. § 924(c)(1)(A)(ii), the elements of a fire­arm count in furtherance of a crime are: (1) the defendant used, carried, or brandished a firearm (2) during and in relation to a crime of violence or drug trafficking crime. “In relation to” means that the firearm must have some “purpose or effect with respect to the drug trafficking crime, and its presence or involvement cannot be the result of accident or coincidence.” “Brandish” means to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, to intimidate that person, regardless of whether the firearm is directly visible to that person.

        (5) If improper evidence was objected to, the standard of review is abuse of discretion. Reversal will not occur unless there is a reasonable possibility that the improperly admitted evidence contributed to the conviction. The government bears the burden of demonstrating that the error was harmless.

        (6) If improper evidence was not objected to, the standard of review is plain error, which requires the appellant to show that: (1) there was an error; (2) the error was clear or obvious; (3) the error affected substantial rights; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings such that the court should exercise its discretion to reverse.

        (7) In United States v. Haines, 803 F.3d 713, 728–734 (5th Cir. 2015), the Fifth Circuit has urged the government to use caution when case agents also function as experts because the expert label “confers upon the agent the aura of special reliability and trustworthiness surrounding expert testimony.” An expert witness is permitted to give his opinion on an “ultimate issue” of fact, assuming he is qualified.

        (8) The deliberate ignorance instruction may be given in conspiracy cases. To the extent that the instruction is merely a way of allowing the jury to arrive at the conclusion that the defendant knew the unlawful purpose of the conspiracy, it is consistent with a finding that the defendant intended to further the unlawful purpose.

        (9) The proper factual basis for the deliberate ignorance instruction exists if the record supports inferences that: (1) the defendant was subjectively aware of a high probability of the existence of illegal conduct; and (2) the defendant purposely contrived to avoid learning of the illegal conduct. In deciding whether the evidence reasonably supports the jury charge, the court reviews the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the government.

        (10) Under United States v. Kuhrt, 788 F.3d 403, 417 (5th Cir. 2015), the deliberate ignorance instruction should be given only in rare instances because once a jury learns that it can convict a defendant despite evidence of a lack of knowledge, it will be misled into thinking that it can convict based on negligent or reckless ignorance rather than intentional ignorance. In other words, the jury may erroneously apply a lesser mens rea requirement, or a “should have known” standard of knowledge. The instruction is appropriate only in the circumstances where a defendant claims a lack of guilty knowledge and the proof at trial supports an inference of deliberate indifference.

        (11) Under United States v. St. Junius, 739 F.3d 193, 204–205 (5th Cir. 2013), when the government’s theory is that the defendant knew of the criminality, giving the instruction is harmless where there is substantial evidence of actual knowledge.

United States v. Taylor, No. 16-11384, 2017 U.S. App. LEXIS 19954 (5th Cir. Oct. 12, 2017) (designated for pub­li­ca­tion)

        (1) Under 28 U.S.C. § 2106, the SCOTUS or federal appellate court may affirm, modify, vacate, set aside, or reverse any judgment, decree, or order of a court lawfully before it for review, and may remand the cause and direct the entry of the appropriate judgment, decree, or order, or require further proceedings.

        (2) Under Johnson v. United States, 135 S.Ct. 2551, 2563 (2015), imposing an increased sentence under the residual clause of the ACCA violates the Constitution’s guarantee of due process. Under Welch v. United States, 136 S.Ct. 1257, 1268 (2016), Johnson was a new, substantive rule and applied retroactively.

        (3) Under United States v. Martinez-Rodriguez, 857 F.3d 282, 286 (5th Cir. 2017), as a matter of statutory construction, Texas’ injury-to-a-child offense is broader than ACCA’s elements clause, and thus no longer counts as an ACCA predicate after Johnson.

United States v. Young, No. 16-60790, 2017 U.S. App. LEXIS 19602 (5th Cir. Oct. 6, 2017) (designated for publication)

        (1) Under U.S.S.G. § 2A3.5, three base offense levels are set for failure to register as a sex offender under 18 U.S.C. § 2250(a). Each level corresponds with one of three offender tiers established under SORNA.

        (2) Under 34 U.S.C. § 20911(4), a Tier III sex offender is a sex offender whose offense is punishable by imprisonment for more than 1 year and (A) is comparable to or more severe than (i) aggravated sexual abuse or sexual abuse (as described in 18 U.S.C. §§ 2241 and 2242); or (ii) abusive sexual contact (as described in 18 U.S.C. § 2244) against a minor who has not attained the age of 13 years. If a state statute is comparable to or more severe than the federal offenses of aggravated sexual abuse, sexual abuse, or abusive sexual contact, a defendant with a prior conviction under that state statute will be subject to the Tier III base offense level.

        (3) Under 18 U.S.C. § 2246(3), “sexual contact” as used under 18 U.S.C. § 2244 means “the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.”

Texas Court of Criminal Appeals

Ex parte Aguilar, WR-82,014-01, 2017 Tex. Crim. App. LEXIS 894 (Tex. Crim. App. Sep. 20, 2017) (designated for publication)

        (1) Under Strickland, 466 U.S. 668 (1984), a defendant is entitled to postconviction relief on an IATC claim if he demonstrates by a preponderance of the evidence that: (1) trial counsel’s performance was deficient and; (2) the applicant was prejudiced because of that deficient performance. Trial counsel’s performance is deficient if it falls below an objective standard of reasonableness.

        (2) Under Strickland, counsel enjoys a “strong presumption” that his “conduct fell within the wide range of reasonable professional assistance,” so when “a legal proposition or a strategic course of conduct is one on which reasonable lawyers could disagree, an error that occurs despite the lawyer’s informed judgment should not be gauged by hindsight or second-guessed.” However, to be reasonably likely to render reasonably effective assistance to his client, “a lawyer must be sufficiently abreast of developments in criminal law aspects implicated in the case at hand” because the Sixth Amendment guarantees a defendant the benefit of trial counsel who is familiar with the applicable law. Thus, ignorance of well-defined general laws, statutes, and legal propositions is not excusable, and if it prejudices a client, IATC may be found.

        (3) The prejudice prong of Strickland requires a habeas applicant to show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” In the guilty-plea context, this amounts to no more than a showing “that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on a trial.”

        (4) Under Padilla, 559 U.S. 356 (2010), when the immigration consequences of a guilty plea are clear, trial counsel has a duty to correctly advise a defendant of those consequences.

        (5) Padilla is extended to where a defendant’s guilty plea causes him to automatically lose legal immigration status and become removable.

Burnett v. State, PD-0576-16, 2017 Tex. Crim. App. LEXIS 878 (Tex. Crim. App. Sep. 20, 2017) (designated for publication)

        Under Tex. Code Crim. Proc. Art. 36.14 and Villarreal v. State, 286 S.W.3d 321, 329 (Tex. Crim. App. 2009), it is the responsibility of the trial court to deliver to the jury a written charge setting forth the “law applicable to the case.” Part of this duty includes applying the law to the facts of the case. Although the trial court is obliged to include in the jury charge statutory definitions that affect the meaning of elements of the crime, the charge must also be tailored to the facts presented at trial. Thus, in a DWI case, the trial court must submit to the jury only the portions of the statutory definition of “intoxicated” that are supported by the evidence. To do otherwise is error.

Ex parte Evans, WR-83,873-02, 2017 Tex. Crim. App. LEXIS 892 (Tex. Crim. App. Sep. 20, 2017) (designated for publication)

        (1) Under U.S. Const. Art. VI, cl. 2 and Marbury v. Madison, 5 U.S. 137 (1803), the ultimate authority on federal constitutional law is the SCOTUS, and under Ex parte Ramey, 382 S.W.3d 396, 397 (Tex. Crim. App. 2012), and Coble v. State, 330 S.W.3d 253, 270 (Tex. Crim. App. 2010), pronouncements by the SCOTUS about federal constitutional law are binding on the TCCA.

        (2) Under Hill v. Lockhart, 474 U.S. 52, 59 (1985), a defendant is entitled to effective assistance of counsel in the guilty-plea context.

        (3) Under Ex parte Moussazadeh, 361 S.W.3d 684, 691 (Tex. Crim. App. 2012), to prevail on a claim of IATC due to bad advice about parole eligibility, a defendant “must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”

        (4) If the basis of a constitutional claim predates the finality of the conviction, the claim may be successfully asserted.

State v. Ford, PD-1299-16, 2017 Tex. Crim. App. LEXIS 879 (Tex. Crim. App. Sep. 20, 2017) (designated for publication)

        (1) An appellate court must afford almost total deference to the trial court’s determination of historical facts, and of application-of-law-to-fact issues that turn on credibility and demeanor, while reviewing de novo other application-of-law-to-fact issues. The prevailing party has the benefit of deference on factual findings made in her favor. However, whether the facts, as determined by the trial court, add up to reasonable suspicion or probable cause is a question to be reviewed de novo.

        (2) For an arrest to be justified under the Fourth Amendment, an officer must have “probable cause to believe that the suspect has committed or is committing an offense.” Probable cause is a “fluid concept” that cannot be readily reduced to a neat set of legal rules, and involves “a reasonable ground for be­lief of guilt” that is “particularized with respect to the person to be searched or seized.” It is a greater level of suspicion than reasonable suspicion but falls far short of a preponderance of the evidence standard. If an officer has probable cause to arrest, a search incident to arrest is valid if conducted immediately before or after a formal arrest.

        (3) A customer can exercise control over property with an intent to deprive even if the customer has not yet left the store with the property if the customer attempts to concealing the property.

Editor’s note: By disturbing the trial court’s factual findings, which were supported by the record, the TCCA violates its own rule that an appellate court must afford almost total deference to the trial court’s determination of historical facts, and of application-of-law-to-fact issues that turn on credibility and demeanor, while reviewing de novo other application-of-law-to-fact issues. This is not funny.

Gamino v. State, PD-0227-16, 2017 Tex. Crim. App. LEXIS 942 (Tex. Crim. App. Sep. 27, 2017) (designated for publication)

        (1) A defendant is entitled to a jury instruction on self-defense if the issue [of self-defense] is raised by the evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense.

        (2) When reviewing a trial court’s decision denying a request for a self-defense instruction, a reviewing court considers the evidence in the light most favorable to the defendant’s requested submission.

        (3) A trial court errs in denying a self-defense instruction if there is some evidence, from any source, when viewed in the light most favorable to the defendant, that will support the elements of self-defense.

        (4) Under Tex. Penal Code §9.31, a person is justified in using force against another when and to the degree that person reasonably believes the force is immediately necessary to protect himself against another person’s use or attempted use of unlawful force. The use of force against another is not justified in response to verbal provocation alone.

        (5) Under Tex. Penal Code § 9.32, a person is justified in using deadly force if he would be justified in using force under Tex. Penal Code § 9.31, and he reasonably believes that deadly force is immediately necessary to protect himself against another’s use or attempted use of deadly force.

        (6) Under Tex. Penal Code § 9.04, the threat of force is justified when the use of force is justified by chapter 9. A threat to cause death or serious bodily injury by the production of a weapon or otherwise, provided the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.

Ex parte Lewis, WR-83,458-01 & WR-83,458-02, 2017 Tex. Crim. App. LEXIS 943 (Tex. Crim. App. Sep. 27, 2017) (designated for publication)

        (1) Under Tex. Health & Safety Code § 481.129(a)(5)(B), a person commits a crime by “knowingly . . . possessing, obtaining, or attempting to possess or obtain a controlled substance or an increased quantity of a controlled substance through use of a fraudulent prescription form.”

        (2) Under Avery v. State, 359 S.W.3d 230 (Tex. Crim. App. 2012), the TCCA held that under Tex. Health & Safety Code § 481.129(a)(5)(B), “the information that is written on the form is not the form itself,” but instead, “prescription form” means the preprinted form designed to have prescription information written on it. If the State indicts under § 481.129(a)(5)(B), the state must introduce evidence that the defendant presented a “fraudulent” form, not simply that the defendant committed “fraud” by interlineating upon an otherwise legitimate form.

        (3) Under Strickland, 466 U.S. 668 (1984), a defendant is entitled to postconviction relief on an IATC claim if he demonstrates by a preponderance of the evidence that: (1) trial counsel’s performance was deficient and; (2) the applicant was prejudiced because of that deficient performance. Trial counsel’s performance is deficient if it falls below an objective standard of reasonableness.

        (4) Under Strickland, counsel enjoys a “strong presumption” that his “conduct fell within the wide range of reasonable professional assistance,” so when “a legal proposition or a strategic course of conduct is one on which reasonable lawyers could disagree, an error that occurs despite the lawyer’s informed judgment should not be gauged by hindsight or second-guessed.” However, to be reasonably likely to render reasonably effective assistance to his client, “a lawyer must be sufficiently abreast of developments in criminal law aspects implicated in the case at hand” because the Sixth Amendment guarantees a defendant the benefit of trial counsel who is familiar with the applicable law. Thus, ignorance of well-defined general laws, statutes and legal propositions is not excusable and if it prejudices a client, IATC may be found.

        (5) The prejudice prong of Strickland requires a habeas applicant to show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” In the guilty-plea context, this amounts to no more than a showing “that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on a trial.”

Prine v. State, PD-1180-16, 2017 Tex. Crim. App. LEXIS 880 (Tex. Crim. App. Sep. 20, 2017) (designated for publication)

        (1) Under Strickland, 466 U.S. 668 (1984), a defendant is en­titled to postconviction relief on an IATC claim if he demonstrates by a preponderance of the evidence that: (1) trial counsel’s performance was deficient and; (2) the applicant was prejudiced because of that deficient performance. Trial counsel’s performance is deficient if it falls below an objective standard of reasonableness.

        (2) Under Strickland, counsel enjoys a “strong presumption” that his “conduct fell within the wide range of reasonable professional assistance,” so when “a legal proposition or a strategic course of conduct is one on which reasonable lawyers could disagree, an error that occurs despite the lawyer’s informed judgment should not be gauged by hindsight or second-guessed.”

        (3) The prejudice prong of Strickland requires a habeas applicant to show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” In the guilty-plea context, this amounts to no more than a showing “that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on a trial.”

        (4) Without a developed record, it is impossible to conclude that an attorney’s actions lacked reasonable strategic basis and thus amount to IATC.

Ex parte Speckman, WR-81,947-02, 2017 Tex. Crim. App. LEXIS 889 (Tex. Crim. App. Sep. 20, 2017) (designated for publication)

        (1) Good-cause to allow a late-state dismissal of an application filed under Tex. Code Crim. Proc. Art. 11.07 may exist: (1) for the presentation of additional evidence, (2) the filing of an amended or supplemental application raising new claims in the habeas court, or (3) a stay of the proceedings for a reasonable time, then the applicant cannot show good cause for his motion to dismiss without prejudice.

        (2) Habeas applicants seeking to dismiss an application filed under Tex. Code Crim. Proc. Art. 11.07 after the habeas court has factually developed the record and made FFCL should provide an explanation of good cause regarding why an alternative course of action, such as moving for new evidence to be considered, amending or supplementing their claims, or moving for a stay of the proceedings, would be inadequate to cure the defect in the pleadings or proof.

Ex parte St. Aubin, WR-49,980-12, 2017 Tex. Crim. App. LEXIS 885 (Tex. Crim. App. Sep. 20, 2017) (designated for publication)

        (1) If offenses in two proceedings are the same for double jeopardy purposes (successive-prosecutions double-jeopardy claim), then the second proceeding should never have occurred—the issue of the applicant’s guilt would never have been sub­mit­ted to a jury.

        (2) In a multiple-punishments double-jeopardy claim, where convictions occur at a single criminal trial, the role of the double-jeopardy guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing mul­ti­ple punishments for the same offense. Otherwise, the State has the right to prosecute and obtain jury verdicts on two offenses in a single trial, even if the offenses are the same for double jeopardy purposes.

State v. Bolles, No. PD-0791-16, 2017 Tex. Crim. App. LEXIS 1005 (Tex. Crim. App. Oct. 18, 2017) (designated for publication)

        (1) Under Texas Penal Code § 43.26(a), Possession of Child Pornography, a person commits an offense if: (1) the person knowingly or intentionally possesses, or knowingly or intentionally accesses with intent to view, visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct . . . ; and (2) the person knows that the material depicts the child. “Sexual conduct” means among other things the “lewd exhibition of the genitals.”

        (2) Zooming in and taking a magnified picture of a small portion of an existing photograph of a child—even a work of art—constitutes the creation of a new and separate visual depiction of that child. Such image recreation does not reset the date that the original image of that same underage child “was made,” such that the newly created image is no longer of a child under the age of 18. The manipulation of an existing image of a child is the creation of a different piece of visual material of that child at that age. A photograph captures a moment in time. The date that a photograph is taken does not change, and a photograph of a child is “made” on the date the photograph was taken. The age of the child at the time the image is made will always stay the same.

        (3) Child pornography can result from image manipulation of an original image that may not be considered child pornography.

        (4) In determining whether a visual depiction of a child constitutes a lewd exhibition of genitals, courts should consider whether: (1) the focal point of the visual depiction is the child’s genitalia, (2) the place or pose of the child in the photograph is sexually suggestive, (3) the child is depicted in an unnatural pose or inappropriate attire, (4) the child is fully or partially clothed or nude, (5) the visual depiction suggests sexual coyness or a willingness to engage in sexual activity, or (6) the visual depiction is intended or designed to elicit a sexual response in the viewer.

Editor’s Note: What an absurd opinion. Child pornography is vile. However, to conclude that a “crop-job” of an image that is not a “lewd exhibition” can be transformed into a “lewd exhibition” due to the crop-job defies logic. Here is The Birth of Venus, circa 1482, by Italian Renaissance painter Sandro Botticelli:

Not too long ago, some unenlightened persons who were in positions of power would have considered this classical painting to be “obscene.” Based on the TCCA’s logic, a crop-job of the same painting would take on a completely new dimension, and the same unenlightened persons who considered Renaissance paintings to be “obscene” would argue that this crop-job to be “obscener” than the original:

State v. Gutierrez, No. PD-0197-16, 2017 Tex. Crim. App. LEXIS 1005 (Tex. Crim. App. Oct. 18, 2017) (designated for publication)

        (1) Under State v. Herndon, 215 S.W.3d 901 (Tex. Crim. App. 2007), review of a trial court’s grant or denial of a motion for new trial is for an abuse of discretion. The court abuses its discretion only if its ruling is not supported by any reasonable view of the record. When deciding whether a trial court erred in granting a new-trial motion, the reviewing court views the evidence in the light most favorable to the court’s ruling and gives almost total deference to the court’s findings of historical fact. When the court does not issue findings of fact, however, the reviewing court will imply findings necessary to support the ruling if they are reasonable and supported by the record.

        (2) Under Strickland, 466 U.S. 668 (1984), a defendant is en­titled to relief on an IATC claim if he demonstrates by a preponderance of the evidence that: (1) trial counsel’s performance was deficient; and (2) the applicant was prejudiced because of that deficient performance. Trial counsel’s performance is deficient if it falls below an objective standard of reasonableness. The prejudice prong of Strickland requires a defendant to show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

        (3) Under Strickland, counsel enjoys a “strong presumption” that his “conduct fell within the wide range of reasonable professional assistance,” so when “a legal proposition or a strategic course of conduct is one on which reasonable lawyers could disagree, an error that occurs despite the lawyer’s informed judgment should not be gauged by hindsight or second-guessed.” However, to be reasonably likely to render reasonably effective assistance to his client, “a lawyer must be sufficiently abreast of developments in criminal law aspects implicated in the case at hand” because the Sixth Amendment guarantees a defendant the benefit of trial counsel who is familiar with the applicable law. Thus, ignorance of well-defined general laws, statutes and legal propositions is not excusable and if it prejudices a client, IATC may be found.

        (4) Even if a trial court grants a MNT on an issue that earlier formed the basis for motion for mistrial earlier because the trial court changes its mind by the time a defendant filed the MNT, that is not indicative of whether the trial judge likely would have granted a mistrial at the time the bias-issue arose.

        (5) When a juror withholds material information during voir dire that the defense, using due diligence, could not uncover, the parties are denied the opportunity to exercise their challenges, which hinders their selection of an impartial jury. A violation, by itself, is insufficient for reversal: The defendant must also have been harmed. When deciding whether the withheld information is material, a juror’s good faith is largely irrelevant. The information need not prove that the juror is biased, but it must tend to show bias. If the withheld information tends to show bias, the appropriate procedure is to hold a hearing at which evidence should be adduced regarding whether the juror is biased. If a trial judge finds that the juror is not actually biased, and that finding is supported by the record, then the defendant has not been harmed by the violation of his constitutional right to an impartial jury.

Editor’s Note: Apparently during a new-trial proceeding, a trial judge cannot change his mind and reverse a prior ruling he determines to have been a mistake.

Texas Courts of Appeals

Kelly v. State, 06-16-00185-CR, 2017 Tex. App. LEXIS 8300 (Tex. App. Texarkana Aug. 31, 2017) (designated for publication)

        (1) Under Carmouche v. State, 10 S.W.3d 323, 327–28 (Tex. Crim. App. 2000), a trial court’s ruling on a motion to suppress is reviewed for abuse of discretion based on a bifurcated standard of review: (1) almost total deference to a trial court’s determination of the historical facts that the record supports especially when the trial court’s fact-findings are based on an evaluation of credibility and demeanor and on rulings on application of law to fact questions (mixed questions of law and fact) if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor; and (2) de novo review of the trial court’s decisions applying applicable laws.

        (2) Under Jones v. State, 364 S.W.3d 854, 857 (Tex. Crim. App. 2012), when a MTS is based on an argument that the search warrant’s supporting affidavit is deficient, a reviewing court may look only to the four corners of the supporting affidavit, and should view the magistrate’s decision to issue the warrant with great deference. After reviewing the supporting affidavit in “a commonsensical and realistic manner,” a reviewing court must uphold the magistrate’s decision so long as the magistrate had a substantial basis for concluding that probable cause existed. This review does not mean the reviewing court should be a “rubber stamp,” but “the magistrate’s decision should carry the day in doubtful or marginal cases, even if the reviewing court might reach a different result upon de novo review.” Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010).

        (3) Under Crider v. State, 352 S.W.3d 704 (Tex. Crim. App. 2011), the factors to consider whether a warrant is stale and thus the likelihood that the evidence sought is still available and in the same place are: (1) the type of crime—short-term intoxication versus long-term criminal enterprises or conspiracy; (2) the suspect, whether he is a “nomadic” traveler, “entrenched” resident, or established ongoing businessman; (3) the item to be seized—“perishable and easily transferred” (evanescent alcohol, a single marijuana cigarette) or of “enduring utility to its holder” (a meth lab); and (4) the place to be searched—a “mere criminal forum of convenience or secure operational base”; and (5) the passage of time.

        (4) Under Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997), without evidence of tampering, most questions con­cern­ing care and custody of a substance go to the weight attached, not the admissibility, of the evidence. Under Medellin v. State, 617 S.W.2d 229, 232 (Tex. Crim. App. [Panel Op.] 1981), where the State shows the beginning and the end of the chain of custody, any gaps in between go to weight rather than admissibility, particularly where the chain goes inside the laboratory.

        (5) Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), and Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007), in evaluating legal sufficiency, an appellate court reviews all the evidence in the light most favorable to the judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. It is up to the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.

        (6) Under Tex. Penal Code Ann. § 1.07(a)(39), possession means “actual care, custody, control, or management.” Under Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006), it is not the number of links between the person and the drugs that is dispositive, but rather the logical force of all the direct and circumstantial evidence, so in cases where illegal drugs are not found on the defendant’s person, but are instead found in an area to which the defendant and others had access, a court considers the following factors pointing to the defendant’s participation in the illegal possession: (1) the defendant’s presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant’s proximity to and the accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the drugs were found; (12) whether the place where the drugs were found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt.

Liles v. State, 12-17-00084-CR, 2017 Tex. App. LEXIS 8463 (Tex. App. Tyler Sep. 6, 2017) (designated for publication)

        (1) Under Tex. Code Crim. Proc. Art. 17.09 § 2, once a defendant gives bail for his appearance in answer to a criminal charge, he shall not be required to give another bond for the same criminal action. Under Tex. Code Crim. Proc. Art. 17.09 § 3, if the trial court finds that “bond is defective, excessive, or insufficient in amount, or that the sureties, if any, are not acceptable, or for any other good and sufficient cause,” the defendant may be rearrested and required to give another bond in an amount the judge deems proper.

        (2) Under Tex. Code Crim. Proc. Art. 17.15, when exercising discretion in setting bail, judges are governed by these rules: (1) The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with; (2) the power to require bail is not to be so used as to make it an instrument of op­pres­sion; (3) the nature of the offense and the circumstances under which it was committed are to be considered; (4) the ability to make bail is to be regarded, and proof may be taken upon this point; (5) the future safety of a victim of the alleged offense and the community shall be considered. Under Ex parte Rubac, 611 S.W.2d 848, 849–50 (Tex. Crim. App. [Panel Op.] 1981), other factors are: (1) the accused’s work record; (2) the accused’s family and community ties; (3) the accused’s length of residency; (4) the accused’s prior criminal record; (5) the accused’s conformity with the conditions of any previous bond; (6) the existence of out­standing bonds; and (7) aggravating circumstances alleged to have been involved in the offense, and (8) the accused’s ability to make the bond.

        (3) For purposes of bail, where a defendant is on bond for an offense, and new formal charges add a more serious manner or means of committing the offense, the new charges are not part of the “same criminal action.”

Whaley v. State, 07-15-00373-CR, 2017 Tex. App. LEXIS 8781 (Tex. App. Amarillo Sep. 15, 2017) (designated for publication)

        (1) In determining the legal sufficiency of the evidence, the reviewing court considers the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. The jury is the sole judge of the credibility and weight to attach to witness testimony. Jackson v. Virginia, 443 U.S. 307, 319 (1979). When the record supports conflicting inferences, the court presumes the jury resolved the conflicts in favor of the verdict. Each fact need not point directly and in­de­pendently to guilt so long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

        (2) Under Tex. Code Crim. Proc. Art. 37.09(1), Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011), and Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012), to determine whether a defendant is entitled to a requested lesser-included offense instruction: (1) a court considers whether the offense contained in the requested instruction is a lesser-included offense of the charged offense, which is the case if the greater-offense alleges all the elements of the lesser-offense, and (2) if so, the court must determine whether the admitted evidence supports the instruction, which is the case if some evidence from any source raises a fact issue on whether the defendant is guilty of only the lesser, regardless of whether the evidence is weak, impeached, or contradicted. There must be evidence directly germane to the lesser that would permit the jury to find that if appellant is guilty, he is guilty only of the lesser.

        (3) Offense-contact assault is not a lesser-included offense of aggravated assault because to establish aggravated assault, the State is not required to prove a defendant knew or reasonably should have believed another person would regard the contact as offensive or provocative.

Guzman v. State, No. 01-16-00262-CR, 2017 Tex. App. LEXIS 8528 (Tex. App. Houston [1st Dist.] Sep. 7, 2017) (designated for publication)

        (1) Under Ngo v. State, 175 S.W.3d 738, 743–744 (Tex. Crim. App. 2005), review of jury-charge error requires two steps: (1) determine whether error exists in the charge, and (2) if error exists, whether sufficient harm resulted from the error to require reversal. If the defendant preserved error by timely objecting to the charge, an appellate court will reverse if the defendant dem­onstrates that he suffered some harm because of the error. Review a trial court’s decision not to submit an instruction in the jury charge is for an abuse of discretion.

        (2) Under Ex parte Napper, 322 S.W.3d 202, 229 (Tex. Crim. App. 2010), and Arizona v. Youngblood, 488 U.S. 51, 58 (1988), the defendant bears the burden of establishing that the State lost or destroyed the evidence in bad faith. The State’s duty to preserve evidence is limited to evidence that possesses an exculpatory value that was apparent before the evidence was destroyed, and the defendant must affirmatively show that the lost evidence was favorable and material to his defense. Bad faith requires a showing of improper motive, such as personal animus against the defendant or a desire to prevent the defendant from obtaining evidence that might be useful. When conduct is only negligent, the failure to preserve evidence does not rise to the level of a due process violation.

October 2017 SDR – Voice for the Defense Vol. 46, No. 8

Voice for the Defense Volume 46, No. 8 Edition

Editor: Michael Mowla

From editor Michael Mowla:

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

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

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

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

Supreme Court of the United States

The SCOTUS remains on summer recess.

United States Court of Appeals for the Fifth Circuit

United States v. Barber, 16-41354, 2017 U.S. App. LEXIS 14308 (5th Cir. Aug. 3, 2017) (designated for publication)

        (1) To reverse on plain-error because the issue was not preserved before the district court, the reviewing court must find: (1) a legal error that has not been intentionally relinquished or abandoned; (2) the error must be clear or obvious; (3) the error must have affected the appellant’s substantial rights; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

        (2) Probation officers have power to manage aspects of sentences and to supervise probationers and persons on supervised release with respect to all conditions imposed by the court. However, a district court cannot delegate to a probation officer the “core judicial function” of imposing a sentence, “including the terms and conditions of supervised release.”

        (3) Special conditions of release that use the language “as deemed necessary and approved by the probation officer” creates ambiguity as to whether the district court permissibly delegated authority to decide the details of a sentence’s implementation or impermissibly delegated the authority to impose a sentence.

United States v. Fillingham, 16-40317, 2017 U.S. App. LEXIS 14925 (5th Cir. Aug. 11, 2017) (designated for publication)

        (1) A prisoner filing a 28 U.S.C. § 2241 petition must first pursue all available administrative remedies. The burden of proof for demonstrating the futility of administrative review rests with the petitioner.

Editor’s Note: A petition filed under 28 U.S.C. § 2241 is used to challenge the fact or duration of a federal prisoner’s confinement, not the constitutionality of the conviction or the conditions of confinement. Nearly all valid petitions under 28 U.S.C. § 2241 allege one of the following: (1) BOP has wrongly computed the inmate’s release date; (2) BOP has wrongly taken away “good­time credits”; (3) the inmate seeks an expedited transfer to a “residential reentry center” or “halfway house”; or (4) the inmate is being detained by federal immigration authorities while awaiting deportation.

United States v. Hawkins, 16-10879, 2017 U.S. App. LEXIS 14312 (5th Cir. Aug. 3, 2017) (designated for publication)

        (1) A district court’s factual findings (such as adopting a PSR) are not clearly erroneous so long as they are plausible considering the record read as a whole. When making factual findings at the sentencing stage, a district court may consider any information that “bears sufficient indicia of reliability to support its probable accuracy.”

        (2) A PSR bears sufficient indicia of reliability to be considered as evidence by the judge in making factual determinations required by the sentencing guidelines. A district court may adopt facts contained in a PSR without further inquiry assuming those facts have an adequate evidentiary basis that is sufficiently reliable and the defendant does not present evidence to the contrary.

        (3) If a defendant wants to challenge sufficiently reliable facts contained in a PSR, the defendant carries the burden of presenting rebuttal evidence showing that those facts are materially untrue, inaccurate, or unreliable. Objections, unsupported by fact, generally do not carry this burden.

        (4) Under U.S.S.G. § 3B1.1, if a defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, the offense level is increased by 4 levels. The district court should consider: (1) exercise of decision-making authority, (2) the recruitment of accomplices, (3) the claimed right to a larger share of “the fruits of the crime,” and the degree of control and authority exercised over others.

        (5) Under U.S.S.G. § 2D1.1(b)(15)(E), a 2-level enhancement is added if the defendant committed the offense as part of a pattern of criminal conduct engaged in as a livelihood, which means: (A) the defendant derived income from the pattern of criminal conduct that in any 12-month period exceeded 2,000 times the then existing hourly minimum wage under federal law ($7.25/hour 3 2,000 = $14,500); and (B) the totality of circumstances shows that such criminal conduct was the defendant’s primary occupation in that 12-month period (the defendant engaged in criminal conduct rather than regular, legitimate employment; or the defendant’s legitimate employment was merely a front for the defendant’s criminal conduct).

        (6) In calculating the amount attributable to the defendant because of “criminal livelihood,” a district court can count credit-card purchases and other ill-gotten gains such as the market value of stolen property.

        (7) After calculating the Guideline’s recommended sentencing range, a district court must consider the factors under 18 U.S.C. § 3553(a) to determine the sentence. Under Gall v. United States, 552 U.S. 38, 50–51 (2007), review of a sentence’s reasonableness is based on the abuse-of-discretion standard under which the appellate court is highly deferential to the district court since it is the in a superior position to find facts and judge their import under § 3553(a) with respect to a defendant.

        (8) Sentences within or below the guideline range are presumed to be reasonable. To rebut the presumptive reasonableness, a defendant must demonstrate that the sentence: (1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing the sentencing factors.

United States v. Hott, 16-11435, 2017 U.S. App. LEXIS 14499 (5th Cir. Aug. 7, 2017) (designated for publication)

        (1) Under U.S.S.G. § 2K2.1(b)(6)(B), a 4-level enhance applies “if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense or another offense.” If the firearm used to support the enhancement is not a firearm cited in the offense of conviction, the enhancement applies if the offense of conviction and “another felony offense” were “part of the same course of conduct or common scheme or plan.”

        (2) Under United States v. Anderson, 885 F.2d 1248 (5th Cir. 1989) (en banc), a silencer is a “firearm” under the National Firearms Act.

        (3) Under U.S.S.G. § 3E1.1(a), a defendant may receive a 2-level reduction in offense level if he “clearly demonstrates acceptance of responsibility for his offense.” The USCA5 will affirm a district court’s decision not to award a reduction unless it is “without foundation,” a standard of review more deferential than the clearly erroneous standard.

United States v. Juarez, 16-30773, 2017 U.S. App. LEXIS 14500 (5th Cir. Aug. 7, 2017) (designated for publication)

        (1) Under Fed. Rule Evid. 404(b) and United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc), evidence of a crime, wrong, or other act is not admissible to prove a person’s character, but is admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. To be admissible, a court must determine that the 404(b) extrinsic-evidence: (1) is relevant to an issue other than the defendant’s character; and (2) possesses probative value that is not substantially outweighed by its undue prejudice under Fed. Rule Evid. 403.

        (2) Under Beechum, when weighing extrinsic evidence under Fed. Rule Evid. 403, the court considers: (1) the government’s need for the extrinsic evidence, (2) the similarity between the extrinsic and charged offenses, (3) the amount of time separating the offenses, and (4) the court’s limiting instructions. Even if all four factors weigh in the Government’s favor, a reviewing court must evaluate the district court’s decision under a commonsense assessment of all the circumstances surrounding the extrinsic offense, which include the nature of the prior offense and the likelihood that the evidence would confuse or incite the jury.

        (3) Beechum factor 1—the government’s need for the extrinsic evidence: Extrinsic evidence has high probative value when intent is the key issue at trial and is necessary to counter a defendant’s claim that he was merely an ignorant participant in the operation and never knowingly agreed to participate in an illegal business. Further, a court must consider whether there was other evidence of intent that might have made extrinsic evidence unnecessary. When a person pleads “not guilty,” he places his criminal intent directly at issue.

        (4) Beechum factor 2—the similarity between the extrinsic and charged offenses: Similarity increases both the probative value and prejudicial effect of extrinsic evidence. If the offenses are dissimilar or only share one element, the extrinsic offense may have little probative value to counterbalance the inherent prejudice of this evidence. Thus, the probative value of the extrinsic offense correlates positively with its likeness to the offense charged.

        (5) Beechum factor 3—the amount of time separating the offenses: Probative value is lessened by temporal remoteness between the offenses. Evidence of misconduct committed concurrently is probably admissible, less than 3 years ago may be admissible, but 10 years ago may be too remote.

        (6) Beechum factor 4—the court’s limiting instructions: limiting instructions cannot eliminate prejudicial effect, but can to a certain extent “allay the undue prejudice engendered by extrinsic evidence.” When the court gives extensive and immediate limiting instructions following the admission of prior offense testimony, it helps to counteract the prejudicial effect of 404(b) evidence.

        (7) Jury instructions are reviewed for abuse of discretion. The court determines whether the entire charge was a correct statement of the law and whether it clearly instructed the jurors as to the principles of the law applicable to the factual issues confronting them.

        (8) A deliberate ignorance instruction is appropriate where the evidence shows: (1) subjective awareness of a high probability of the existence of illegal conduct, and (2) purposeful contrivance to avoid learning of the illegal conduct. The key aspect is the conscious action of the defendant to escape confirmation of conditions or events he strongly suspected to exist. The same evidence that will raise an inference that the defendant had actual knowledge of the illegal conduct ordinarily will also raise the inference that the defendant was subjectively aware of a high probability of the existence of illegal conduct.

        (9) Deliberate ignorance instruction prong 1—subjective awareness of a high probability of the existence of illegal conduct: Evidence must support an inference that the defendant subjectively knew his act to be illegal. The evidence should allow a “glimpse” into the defendant’s mind when there is no evidence pointing to actual knowledge. Suspicious and erratic behavior may be sufficient to infer subjective awareness of illegal conduct.

        (10) Deliberate ignorance instruction prong 2—purposeful contrivance to avoid learning of the illegal conduct: satisfied “if the circumstances were so overwhelmingly suspicious that the defendant’s failure to conduct further inspection or inquiry suggests a conscious effort to avoid incriminating knowledge. Not asking questions or the intensity and repetition in the pattern of suspicious activity coupled with the consistent failure to conduct further inquiry created an inference that the defendants purposefully contrived to avoid further knowledge.

        (11) Under U.S.S.G. § 3B1.5, a 4-level enhancement applies when a defendant convicted of a drug-trafficking crime or crime of violence uses body armor during the commission of the offense. “Use” means: (A) active employment in a manner to protect the person from gunfire; or (B) use as a means of bartering (the exchange of one commodity for another without the use of money). “Use” does not mean mere possession.

Editor’s Note: Fitting under the category of “you can’t make this shit up,” not only does Los Zetas have now have “arms” or “subsidiaries” like the Grimaldo Cartel, they now have their own artwork:

Editor’s Note: the deliberate ignorance instruction is also explained in United States v. Barson, 845 F.3d 159 (5th Cir. 2016). The Fifth Circuit Pattern Jury Instruction 1.37A for Deliberate Ignorance provides: “You may find that a defendant had knowledge of a fact if you find that the defendant deliberately closed his eyes to what would otherwise have been obvious to him. While knowledge on the part of the defendant cannot be established merely by demonstrating that the defendant was negligent, careless, or foolish, knowledge can be inferred if the defendant deliberately blinded himself to the existence of a fact.”

Editor’s Note: The facts of this case and (former officer) Juarez’s actions are summarized well in this cartoon:

United States v. Morgan, 16-30591, 2017 U.S. App. LEXIS 14615 (5th Cir. Aug. 8, 2017) (designated for publication)

        (1) Under 18 U.S.C. § 3582(c)(2), the district court may reduce a defendant’s sentence if the Guidelines range applicable at sentencing is later lowered by the Sentencing Commission. The district court: (1) examines U.S.S.G. § 1B1.10 concerning reductions in sentences due to amended Guidelines to determine if the inmate is eligible; and (2) decides whether a reduction is consistent with the 18 U.S.C. § 3553(a) sentencing factors. A district court has the authority to reduce the sentence of a defendant when the range applicable to the defendant has subsequently been lowered because of an amendment under U.S.S.G. § 1B1.10(a)(1) & (d).

        (2) Under Sentencing Guidelines Amendment 782, the drug-quantity table in U.S.S.G. § 2D1.1 was modified by lowering most drug-related base-offenses levels by two.

United States v. Nanda, 16-11135, 2017 U.S. App. LEXIS 14814 (5th Cir. Aug. 10, 2017) (designated for publication)

        (1) Under Bruton v. United States, 391 U.S. 123 (1968), and Richardson v. Marsh, 481 U.S. 200 (1987), admission of a codefendant’s confession at a joint trial where that codefendant does not take the stand violates the other defendant’s Sixth Amendment right of confrontation if the confession is incriminating on its face. If the confession is not incriminating on its face, it does not violate the other defendant’s right of confrontation if it becomes incriminating only when linked with evidence introduced later at trial (an indirect reference to a codefendant is not enough to make it a Bruton statement). If the codefendant’s confession does not directly reference the defendant, a limiting instruction to the jury will help mitigate against confrontation issues. Bruton error may be harmless when by disregarding the codefendant’s confession, there is other ample evidence against a defendant.

        (2) Under Stirone v. United States, 361 U.S. 212 (1960), after an indictment has been returned, its charges may not be broadened through amendment except by the grand jury.

        (3) A constructive amendment occurs when the court permits the defendant to be convicted upon a factual basis that effectively modifies an essential element of the offense charged or upon a materially different theory or set of facts than that which the defendant was charged.

        (4) Under U.S.S.G. § 2B1.1(b)(10)(B), a 2-point enhancement may be added for committing a substantial portion of the alleged scheme from outside the United States.

        (5) Under U.S.S.G. § 2B1.1(b)(10)(C), a 2-point enhancement may be added for an offense involving sophisticated means of concealment.

United States v. Nesmith, 16-40196, 2017 U.S. App. LEXIS 14616 (5th Cir. Aug. 8, 2017) (designated for publication)

        (1) Review of a district court’s application of the U.S.S.G. is de novo, but if a defendant objects on grounds different from those raised on appeal, review is for plain error. The objection and argument on appeal need not be identical, but must only give the district court the opportunity to address the gravamen of the argument presented on appeal. The objection must be sufficiently specific to alert the district court to the nature of the alleged error and to provide an opportunity for correction.

        (2) Under U.S.S.G. § 2G2.1(b)(4), the sadism enhancement applies if the offense involved material that portrays sadistic conduct or other depictions of violence. The inquiry must focus on an observer’s view of the image (what is portrayed and depicted and appears to be happening) rather than the viewpoint of the defendant or victim (what occurred).

        (3) Sadism is the infliction of pain upon a love object as a means of obtaining sexual release. The victim’s experience of contemporaneous physical or emotional pain is what prompts the sadist’s sexual release. A sadist experiences sexual gratification only while inflicting pain or humiliation on another, and does not obtain sexual release from the foreseeable, but uncertain, possibility that the victim will at some point in the future feel emotional pain.

        (4) Under U.S.S.G. § 2G2.1(b)(4), the sadism enhancement is appropriate where the infliction of emotional or physical pain was contemporaneous with the creation of the image. Without a contemporaneousness requirement, § 2G2.1(b)(4) would apply in every child pornography case regardless of the content of the images in question because it is foreseeable that any child who discovers that she was depicted in pornography would feel humiliated and debased. All child-victims would likely find it nerve-wracking not knowing who had seen the images or if they would become public later and not knowing what effect that would have on their lives. Without requiring the pain inflicted on the victim to be contemporaneous with creation of the image in question, the sadism enhancement could apply even where a victim never becomes aware that he or she is the subject of child pornography. Any connection between the victim and the defendant would make it foreseeable that the victim would later learn of the conduct depicted in the images and experience emotional pain.

        (5) An image portrays sadistic conduct and the sadistic enhancement is appropriate under U.S.S.G. § 2G2.1(b)(4) if the image depicts conduct that an objective observer would perceive as causing the victim in the image physical or emotional pain contemporaneously with the image’s creation.

United States v. Quintanilla, et al, 16-50677 Cons w/ 16-50682, 16-50683, 16-50687, 16-50688, 16-50689, 16-50690, 16-50691, 16-50694, 16-50700, 16-50704, 16-50705, 16-50706, 16-50707, 16-50709, 16-50715, & 16-50716, 2017 U.S. App. LEXIS 15435 (5th Cir. Aug. 16, 2017) (designated for publication)

        (1) Under Amendment 782, effective November 1, 2014, and retroactive, U.S.S.G. § 2D1.1 was amended to allow a 2-level reduction to a defendant’s offense level based on the drug quantity. The amendment did not change § 4B1.1, the career offender guideline range. Existing statutory enhancements such as those available under 18 U.S.C. § 924(c) (using firearms in furtherance of another crime), and guideline enhancements for offenders who possess firearms, use violence, have an aggravating role in the offense, or are repeat or career offenders, are not affected by Amendment 782.

        (2) Under 18 U.S.C. § 3582(c)(2), a district court has authority to modify a sentence in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission. Under U.S.S.G. § 1B1.10(a)(1), if a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered by Amendment 782, the court may reduce the defendant’s term of imprisonment.

        (3) To qualify for Amendment 782, the defendant’s sentence must have been “based on” the drug-quantity guideline range under § 2D1.1 and not “based on” the career offender guideline range under § 4B1.1. A defendant’s sentence is “based on” § 4B1.1 if his sentence was calculated from the higher career offender range under § 4B1.1, which occurs if the guideline ranges under § 4B1.1 are higher than the drug quantity guideline range under § 2D1.1.

United States v. Sealed Search Warrants, 16-20562, 2017 U.S. App. LEXIS 15905 (5th Cir. Aug. 21, 2017) (designated for publication)

        (1) 28 U.S.C. § 1291 gives circuit courts jurisdiction over appeals from all final decisions of the district courts. Under Di Bella v. United States, 369 U.S. 121 (1962), orders on preindictment motions to suppress are interlocutory and not immediately appealable because it is subsumed by the possibility of a forthcoming criminal trial. However, motions to unseal documents are final and appealable.

        (2) The common law right of access to judicial records must be considered on a case-by-case basis. A district court may deny access if the files may become a vehicle for improper purposes, and must balance the public’s common law right of access against the interests favoring nondisclosure. The court must consider the presumption in favor of the public’s common law right of access to court records, which applies so long as a document is a judicial record. If the unsealing of preindictment warrant materials would: (1) threaten an ongoing investigation; (2) endanger or discourage witnesses from providing evidence or testimony, or (3) damage an unindicted target’s reputation while leaving no judicial forum to rehabilitate that reputation, the district court has discretion to make redactions prior to unsealing or, where necessary, to leave the materials under seal.

Texas Court of Criminal Appeals

There have been no significant decisions handed down by the TCCA since August 1, 2017.

Texas Courts of Appeals

Almanza v. State, 10-16-00224-CR, 2017 Tex. App. LEXIS 6455 (Tex. App. Waco July 12, 2017) (designated for publication)

        (1) Under Ballew v. Georgia, 435 U.S. 223, 245 (1978), and Ex parte Garza, 337 S.W.3d 903, 915 (Tex. Crim. App. 2011), to satisfy the Sixth Amendment, unless waived by the defendant, a jury must consist of at least six jurors in the absence of the agreement of the defendant. Where a person that was not summoned but who by mistake appeared and served as a juror, and there was otherwise no legal disqualification or misconduct, Ballew is not violated. This person’s appearance and presentation for jury duty effectively places the person under the jurisdiction of the court, and there is no error in the person’s participation as a juror.

Editor’s Note: As Thomas Jefferson once quipped to Thomas Paine, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Long live the jury trial and jurors, especially one that shows up (mistakenly or not) who was not even summoned:

Ballard v. State, 01-15-00275-CR, 2017 Tex. App. LEXIS 6899 (Tex. App. Houston [1st Dist.] July 25, 2017) (designated for publication)

        (1) Under Tex. Penal Code § 43.26(a), a person commits possession of child pornography if he knowingly or intentionally possesses visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct and he knows that the material depicts the child in this manner.

        (2) Under Tex. Penal Code § 1.07(a)(39), “possession” of contraband means “actual care, custody, control, or management.” Under Tate v. State, 500 S.W.3d 410, 413-414 (Tex. Crim. App. 2016), when contraband is not found on a person or is not in a location that is under the exclusive control of a person, mere presence at the location where the contraband is found is by itself insufficient to establish actual care, custody, or control. However, presence or proximity combined with other evidence (either direct or circumstantial) may be sufficient to establish possession. A factfinder may infer that the defendant intentionally or knowingly possessed contraband not in his exclusive possession if there are sufficient independent facts and circumstances justifying such an inference.

        (3) In Wise v. State, 364 S.W.3d 900 (Tex. Crim. App. 2012), the TCCA held that to determine legal sufficiency in computer child-pornography cases, each case must be analyzed on its own facts, and like all criminal cases, a court must assess whether the inferences necessary to establish guilt are reasonable based upon the cumulative force of all the evidence considered in the light most favorable to the verdict. Sufficient evidence to support a finding that the defendant had knowledge of the images of child pornography on a computer may include evidence that: (1) the images of child pornography were found in different computer files, showing the images were copied or moved; (2) the images of child pornography were found on an external hard drive or CD, which indicates the images were deliberately saved on the external devices; (3) the images stored on the computer and the external hard drive were stored in similarly named folders; (4) the names of the folders containing the images of child pornography necessarily were assigned by the person saving the file; or (5) the recovery of numerous images of child pornography from the defendant’s computer.

        (4) Under Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999), testimony referring to or implying extraneous offenses can be rendered harmless by an instruction to disregard unless it was: (1) so clearly calculated to inflame the minds of the jury, or (2) of such damning character as to suggest it would be impossible to remove the harmful impression from the jury’s mind.

        (5) Under Groh v. Ramirez, 540 U.S. 551 (2004), a warrant that incorporates other documents by reference must be served with the incorporated documents at the time the search is executed to satisfy the particularity requirement for a warrant. The SCOTUS did not address whether documents incorporated by reference must be delivered prior to the beginning of the search to the person whose premises are being searched. Texas law does not require that an incorporated affidavit to be attached to the warrant at the time of the execution of the search. Tex. Code Crim. Proc. Art. 18.06(b), which incorporates Tex. Const. Art. 1, § 9, requires only that the warrant and a written inventory of the items seized be served upon the owner of the premises to be searched.

Editor’s Note: When a person uses a peer-to-peer network, all persons connected to the network may view and download files in “shared folders.” The basic diagram of a peer-to-peer network is:

Any file stored on a “shared folder” in a peer-to-peer network may be viewed by any person on the network. A file’s metadata contains properties that may be traced to an individual computer, which means that a file stored on a person’s “shared folder” may be downloaded and viewed by any number of persons on the peer-to-peer network. Thus, committing acts of misfeasance of storing and sharing child pornography on a peer-to-peer network is as advisable as posting this on Facebook:

Cameron v. State, 04-12-00294-CR, 2017 Tex. App. LEXIS 6387 (Tex. App. San Antonio July 12, 2017) (designated for publication)

        (1) Under the Sixth Amendment, Johnson v. United States, 520 U.S. 461, 468–469 (1997), Presley v. Georgia, 558 U.S. 209, 212–213 (2010) (per curiam), and Steadman v. State, 360 S.W.3d 499, 510–511 (Tex. Crim. App. 2012), a defendant has the right to a public trial, which extends to voir dire. Violation of this right is structural error that does not require a showing of harm.

        (2) Under Lilly v. State, 365 S.W.3d 321, 331 (Tex. Crim. App. 2012), and Waller v. Georgia, 467 U.S. 39, 48 (1984), to determine whether a defendant’s right to a public trial was violated, a reviewing court considers: (1) defendant met the initial burden to show that the trial is closed to the public, which is considered under the totality of the evidence, rather than whether a spectator was excluded from trial, and if this burden is met, (2) whether the closure was justified, which requires considering whether: (i) the trial court took every reasonable measure to accommodate public attendance before closing the proceeding, (ii) the closure was necessary to protect an overriding interest, (iii) the closure was no broader than necessary, (iv) the trial court considered all reasonable alternatives to closing the proceeding, and (v) made findings adequate to support the closure.

Foster v. State, 05-15-01539-CR, 2017 Tex. App. LEXIS 7659 (Tex. App. Dallas August 11, 2017) (designated for publication) (Brown, J. dissenting)

        (1) Under Tex. Rule App. Proc. 34.6(f) and Routier v. State, 112 S.W.3d 554, 571 (Tex. Crim. App. 2003), to be entitled to a new trial due to a missing record, an appellant must show: (1) he timely requested the reporter’s record, (2) a significant portion of the record has been lost or destroyed through no fault of his own, (3) the missing portion of the record is necessary to his ap­peal, and (4) the parties cannot agree on the record. When an appellant has not been harmed by the missing portion of the record, he should not be granted relief. The rule that the missing portion of the record is necessary to his appeal is meant to mitigate against the harshness of a rule that might require a new trial even when no error occurred in the proceedings. See Nava v. State, 415 S.W.3d 289, 306 (Tex. Crim. App. 2013).

French v. State, 11-14-00284-CR, 2017 Tex. App. LEXIS 7589 (Tex. App. Eastland Aug. 10, 2017) (designated for publication)

        (1) Under Jourdan v. State, 428 S.W.3d 86, 96 (Tex. Crim. App. 2014), and Tex. Penal Code § 22.021(a)(1)(B)(i), (iii), (iv), (a)(2)(B), a defendant may face prosecution for aggravated sexual assault of a child for the penetration of separate orifices regardless of whether the penetration occurred during the same transaction. Each subsection under Tex. Penal Code § 22.021 entails different and separate acts to commit the various, prohibited conduct.

        (2) Under Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005), when disjunctive language contains different criminal acts, a jury must be instructed that it cannot return a guilty verdict unless it agrees unanimously that the defendant committed one of the acts. Unanimity means that every juror agrees that the defendant committed the same, single, specific criminal act.

        (3) Under Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985), and Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005), if the defendant preserved error, the appellate court will reverse if the defendant suffered “some harm.” Neither the State nor the defendant bears the burden of proving harm; the court of appeals must review the entire record to determine if the defendant suffered harm. To determine whether a defendant suffered “some harm,” a reviewing court considers: (1) the entire jury charge; (2) the arguments of counsel; (3) the entirety of the evidence; and (4) other relevant factors present in the record, including voir dire and opening statements. “Some harm” requires a finding that the defendant “suffered some actual, rather than merely theoretical, harm from the error.”

Golliday v. State, 02-15-00416-CR, 2017 Tex. App. LEXIS 7048 (Tex. App. Fort Worth July 27, 2017) (en banc) (designated for publication)

        (1) Under Davis v. Alaska, 415 U.S. 308, 316 (1974), Hammer v. State, 296 S.W.3d 555, 563 (Tex. Crim. App. 2009), and Johnson v. State, 490 S.W.3d 895 (Tex. Crim. App. 2016), an attack on credibility that reveals “possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand” is not the same as a general attack on the credibility of a witness. The exposure of a witness’ motivation in testifying is a proper function of the constitutionally protected right of cross-examination. A constitutional violation occurs if a state evidentiary rule prohibits a defendant from cross-examining a witness concerning possible motives, bias, and prejudice to such an extent that he could not present a vital defensive theory. A defendant has a constitutional right to present his defense to the jury so that the jury may weigh his evidence along with the rest of the evidence presented.

Editor’s Note: The State’s sponsoring of this type of complaining witness is part of a larger problem that continues in Texas, which is the continued lack of accountability on the part of prosecutors.

Nies v. State, 08-16-00011-CR, 2017 Tex. App. LEXIS 7134 (Tex. App. El Paso July 31, 2017) (designated for publication)

        (1) The denial of a motion to suppress evidence is analyzed under a bifurcated standard of review: determination of historical facts by the trial court is for an abuse of discretion, with total deference given if the determinations are supported by the evidence; and application of law to the facts is de novo.

        (2) Officers may conduct a search incident to a lawful arrest based on: (1) the need for officers to seize weapons or other things which might be used to assault on officer or effect an escape, and (2) the need to prevent the loss or destruction of evidence. Under Arizona v. Gant, 556 U.S. 332 (2009), this exception to the warrant requirement does not justify a search of a vehicle after the occupants of the vehicle have been handcuffed or otherwise secured.

        (3) Under the automobile exception, officers may conduct a warrantless search of a vehicle if it is readily mobile and there is probable cause to believe that it contains contraband or evidence of a crime. Probable cause to search exists when reasonably trustworthy facts and circumstances within the knowledge of the officers on the scene would lead persons of reasonable prudence to believe that an instrumentality of a crime or evidence pertaining to a crime will be found.

        (4) Under Colorado v. Bertine, 479 U.S. 367, 371 (1987), an inventory search protects: (1) the owner’s property while the vehicle is in police custody, (2) the police against claims or disputes over lost, stolen, or vandalized property, and (3) the police from possible danger. The inventory search must be conducted in good faith and per reasonable standardized police procedure. The State has the burden to establish that the police conducted a lawful inventory search, which is met if the State demonstrates (usually through an officer’s testimony) that an inventory policy exists and the officers followed the policy.

September 2017 SDR – Voice for the Defense Vol. 46, No. 7

Voice for the Defense Volume 46, No. 7 Edition

Editor: Michael Mowla

From editor Michael Mowla:

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

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

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

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

Supreme Court of the United States

No significant decisions have been handed down by the SCOTUS since July 4, 2017. The Court is on summer recess.

United States Court of Appeals for the Fifth Circuit

United States v. All Funds on Deposit at Sun Secured Advantage Account Number *3748, Held at the Bank of NT Butterfield & Son Limited in Bermuda, 16-41164, 2017 U.S. App. LEXIS 13032 (5th Cir. July 19, 2017) (designated for publication)

        (1) Under 28 U.S.C. § 2466(a), a person charged with a crime is disallowed from using the resources of the courts in furtherance of a claim in any related civil forfeiture action if the district court finds that the person: (1) after notice or knowledge of the fact that a warrant or process has been issued for his apprehension, in order to avoid criminal prosecution (A) purposely leaves the jurisdiction of the United States; (B) declines to enter or reenter the United States to submit to its jurisdiction; or (C) otherwise evades the jurisdiction of the court in which a criminal case is pending against the person; and (2) is not confined in another jurisdiction for commission of criminal conduct in that jurisdiction.

        (2) Under the principles of international comity and the act of state doctrine, United States courts ordinarily refuse to review acts of foreign governments and defer to proceedings taking place in foreign countries. For the act of state doctrine to apply, a foreign authority must have decided the issues after hearing evidence.

United States v. Arrieta, 16-40539, (5th Cir. July 7, 2017) (designated for publication)

        (1) Under 18 U.S.C. § 922(g)(5)(A), it is unlawful for an alien who is illegally or unlawfully in the United States to possess a firearm or ammunition. “Illegally or unlawfully in the United States” means a person whose presence here is forbidden or not authorized by law.

        (2) Deferred Action for Childhood Arrivals (DACA) “is a form of prosecutorial discretion by which the Secretary deprioritizes an individual’s case for humanitarian reasons, administrative convenience, or in the interest of the Department’s overall enforcement mission.” It is “legally available so long as it is granted on a case-by-case basis” and “it may be terminated at any time at the agency’s discretion.”

        (3) To qualify for DACA, an individual must: (1) have arrived in the United States under the age of 16; (2) have continuously resided in the United States for at least 5 years prior to the issuance of the first DACA memorandum and have been present in the United States on the date of issuance; (3) be currently in school, have graduated from high school, have obtained a general education development certificate, or be an honorably discharged veteran of the Coast Guard or Armed Forces; (4) not have been convicted of a felony, a significant misdemeanor, multiple misdemeanors, or otherwise pose a threat to national security or public safety; (5) not be older than 30.

        (4) DACA “does not confer or alter any immigration status,” and “confers no substantive right, immigration status or pathway to citizenship” because “only Congress, acting through its legislative authority, can confer these rights.” Recipients of DACA relief are permitted to apply for work authorization.

        (5) Because DACA relief neither confers nor alters any immigration status, a DACA applicant may be convicted under 18 U.S.C. § 922(g)(5)(A) for mere possession of a firearm or ammunition that is otherwise legal to possess.

Editor’s Note: It is patently absurd that a DACA applicant may serve in our military (and in fact doing so is a qualifying fact for DACA relief), is entrusted with weapons capable of destroying buildings and causing mass casualties on the battlefield, and can win medals for valor, but when on leave or after honorary discharge, the applicant cannot possess a pistol or ammunition that would otherwise be legal to possess. This kid was not in the military, but he came here legally with his parents when he was two and was otherwise doing nothing wrong when stopped while in possession of a pistol and ammunition.

United States v. Fidse, 16-50250, 2017 U.S. App. LEXIS 12216 (5th Cir. July 7, 2017) (designated for publication)

        (1) The U.S.S.G. § 3A1.4 terrorism enhancement applies if the offense is a felony that involved, or was intended to promote, a federal crime of terrorism. Under 18 U.S.C. § 2332b(g)(5), a crime is a “federal crime of terrorism” if: (1) the crime of conviction is itself a federal crime of terrorism, and (2) the act is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government con­duct (intended to promote a federal crime of terrorism). Its application equals an automatic increase to an offense level of 32 and the maximum criminal history category of VI.

        (2) The U.S.S.G. § 3A1.4 terrorism enhancement does not hinge upon a defendant’s ability to carry out terrorist crimes or the degree of separation from their implementation, but it if the defendant’s purpose is to promote a terrorist crime, the enhancement is triggered.

        (3) An obstruction offense may support the U.S.S.G. § 3A1.4 terrorism enhancement under the “intended to promote” prong because although the relevant offense of conviction, conspiracy to make false statements, is not a crime of terrorism, when combined with other relevant conduct, it could qualify for the enhancement if it was intended to promote a federal crime of terrorism.

        (4) Where a defendant was not convicted of a federal crime of terrorism or the defendant’s relevant conduct did not include such a crime, for the U.S.S.G. § 3A1.4 terrorism enhancement to apply, a district court must: (1) identify which federal crime of terrorism the defendant intended to promote; (2) satisfy the elements of § 2332b(g)(5)(A), which requires that the offense be “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct”; and (3) “support its conclusions by a preponderance of the evidence with facts from the record.”

United States v. Jimenez-Elvirez, 16-40560, 2017 U.S. App. LEXIS 12331 (5th Cir. July 10, 2017) (designated for publication)

        (1) Under Jackson v. Virginia, 443 U.S. 307, 318–319 (1979), the jury’s verdict will be affirmed if a reasonable trier of fact could conclude from the evidence that the elements of the offense were established beyond a reasonable doubt, viewing the evidence in the light most favorable to the verdict and drawing all reasonable inferences from the evidence to support the verdict.

        (2) Under 8 U.S.C. § 1324(a)(1)(A)(v)(I), to convict for conspiracy to transport an undocumented alien, the Government must prove that the defendant: (1) agreed with one or more persons (2) to transport an undocumented alien inside the United States (3) in furtherance of his unlawful presence (4) knowingly or in reckless disregard of the fact that the alien’s presence in the United States was unlawful.

        (3) To prove conspiracy, the Government must prove that each conspirator knew of, intended to join, and voluntarily participated in the conspiracy. Elements of conspiracy may be established solely by circumstantial evidence, including the presence, association, and concerted action of the defendant with others. Mere presence at the scene of the crime or close association with a co-conspirator alone will not support an inference of participation in a conspiracy, but it is a significant factor to be considered within the context of the circumstances under which it occurs.

        (4) To prove aiding and abetting under 18 U.S.C. § 2, the evidence must show that the defendant “associated with the criminal venture, participated in it, and sought by his actions to make the venture succeed.” The evidence supporting a conspiracy conviction is generally sufficient to support an aiding and abetting conviction.

        (5) Intrinsic evidence is generally admissible, and its admission is not subject to Fed. Rule Evid. 404(b). Evidence is intrinsic when the evidence of the other act and the evidence of the crime charged are “inextricably intertwined” or both acts are part of a “single criminal episode” or the other acts were necessary preliminaries to the crime charged.

        (6) Under Fed. Rule Evid. 404(b)(1), evidence of prior crimes, wrongs, or other acts is not admissible to prove the defendant’s character to show that the defendant acted in conformity with that character on the occasion at issue. Under Fed. Rule Evid. 404(b)(2), such evidence may be admissible for proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

        (7) To determine admissibility under Fed. Rule Evid. 404(b)(2), the Beechum test [see United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc)] provides that the court must determine whether the evidence: (1) is relevant to an issue other than the defendant’s character (similarity of extrinsic act to the offense charged and amount of time that separates the extrinsic and charged offenses); and (2) possesses probative value that is not substantially outweighed by its undue prejudice and must meet the other requirements of Fed. Rule Evid. 403 (the more closely the extrinsic offense resembles the charged offense, the greater the prejudice to the defendant, but the probative value of extrinsic evidence of similar crimes is great when the defendant based his defense on a claim that he was merely in the wrong place at the wrong time.).

        (8) If a defendant pleads not guilty in a conspiracy case, the first prong of the Beechum test is satisfied because the entry of the plea raises the issue of intent to justify the admissibility of ex­trinsic offense evidence.

United States v. Reyes-Ochoa, 15-41270, 2017 U.S. App. LEXIS 11706 (5th Cir. June 30, 2017) (designated for publication)

        (1) To reverse on plain-error because the issue was not preserved before the district court, the reviewing court must find: (1) a legal error that has not been intentionally relinquished or abandoned; (2) the error must be clear or obvious; (3) the error must have affected the appellant’s substantial rights; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

        (2) To determine whether a conviction qualifies as a crime of violence, courts use the “categorical” and “modified categorical” approaches. Under the categorical approach, the court lines up the elements of the prior offense with the elements of the generic [enumerated] offense to see if they match. If the elements of the prior offense cover conduct beyond what the generic offense covers, then it is not a qualifying offense. The categorical approach does not consider the conduct of the defendant in committing the offense, but is limited to the conviction and the statutory definition of the offense.

        (3) If a statute is “indivisible,” it enumerates various factual means of committing a single element, and the categorical approach is used.

        (4) Under Mathis, 136 S.Ct. at 2251–2254, a statute is divisible (and subject to the modified categorical approach) only if it creates multiple offenses by listing one or more alternative elements (as opposed to merely listing alternative means of satisfying an element). The difference is that a trier of fact must agree on one of multiple elements that a statute lists versus not agreeing on the same alternative means so long as the trier of fact concludes that the defendant engaged in one of the possible means of committing a crime.

        (5) If a statute is “divisible,” meaning it sets out one or more elements of the offense in the alternative, the court applies the modified categorical approach to narrow an offense that otherwise would not be a categorical match with an enumerated offense. Descamps, 133 S. Ct. 2276, 2281 (2013).

        (6) Under the modified categorical approach, a court looks at “Shepard documents”: indictment or information, terms of a plea agreement, or transcript of the plea hearing in which the factual basis for the plea was confirmed by the defendant. This occurs if state law fails to provide a clear answer to the means or elements question, and the “Shepard documents” are reviewed only to determine whether the listed items are elements of the offense. If the Shepard documents reiterate all the terms of the law, then each alternative is only a possible means of commission, not an element that must be proved.

Panetti v. Davis, 14-70037, 2017 U.S. App. LEXIS 12390 (5th Cir. July 11, 2017)

        (1) Under 18 U.S.C. § 3599(a)(2), in any post-conviction proceeding under 28 U.S.C. § 2254 or 2255 seeking to vacate a death sentence, a defendant who is financially unable to obtain adequate representation or investigation, expert, or other necessary services shall be entitled to the appointment of one or more attorneys because congress contemplated that the prisoner on death row would have the assistance of paid counsel to prepare a federal habeas petition. This entitlement to paid counsel is absolute unless potential procedural bars would “indisputably” foreclose habeas relief.

        (2) Under 28 U.S.C. § 2254(b)(1)(A), a state prisoner must exhaust all state remedies to be entitled to habeas review. But under 28 U.S.C. § 2254(b)(1)(B)(ii), where “circumstances exist that render the state process ineffective to protect the rights of the applicant,” a federal court may address the claims absent ex­haustion.

        (3) Under 18 U.S.C. § 3599(f), the court may authorize the defendant’s attorneys to obtain such services on behalf of the defendant upon a finding that investigative, expert, or other ser­vices are reasonably necessary for the representation of the de­fendant. A district court may deny an inmate’s request for funds to pursue federal habeas relief when a petitioner has: (1) failed to supplement his funding request with a viable constitutional claim that is not procedurally barred, or (2) when the sought-after assistance would only support a meritless claim, or (3) when the sought-after assistance would only supplement prior evidence.

Editor’s Note: This is the best opinion I have read in a long time. With these comments, Judge Higginbotham again shows why he is the best judge on the Fifth Circuit:

        (1) Process matters, and gives rise to the aged observation that, in the law, the shortest distance between two points is seldom a straight line. Truncated hearings and exacting strictures can squeeze the life from due process, while perversely creating years of delay, all for a refusal to give a few days of time—this most seriously so when the issue is not whether a defendant is mentally ill, but the more subtle reaches of his disability. There is no justification for executing the insane, and no reasoned support for it, as only a glance at the brief of amici—filed by able and fervent citizens spanning the spectrum of political views—will confirm.

        (2) Panetti’s counsel, Greg Wiercioch, has, in our best traditions, served his client for years with limited resources and time. To refuse to give him the time and resources critical to review Panetti’s present condition is error, borne of understandable but nevertheless error-producing frustration over the delay baked into our death penalty jurisprudence—with its twists and turns between two sovereigns.

        (3) Delivery of due process protects the prisoner, and in doing so, protects us all.

Texas Court of Criminal Appeals

Ash v. State, PD-0244-16, 2017 Tex. Crim. App. LEXIS 579 (Tex. Crim. App. June 28, 2017) (designated for publication)

        (1) If the record contains evidence that a witness may have been an accomplice, the issue should be submitted to the jury to decide whether the witness was an accomplice as-a-matter-of-fact.

        (2) A witness is an accomplice as-a-matter-of-law in the following situations: (1) the witness has been charged with the same offense as the defendant or a lesser-included offense; (2) the State charges a witness with the same offense as the defendant or a lesser-included of that offense, but dismisses the charges in exchange for the witness’ testimony against the defendant; and (3) the evidence is uncontradicted or so one-sided that no reasonable juror could conclude that the witness was not an accomplice (court uses phrases like could have been charged, susceptible to prosecution, the evidence clearly shows, or there is no doubt).

Ex parte Bowman, PD-0208-16, 2017 Tex. Crim. App. LEXIS 582 (Tex. Crim. App. June 28, 2017) (designated for publication)

        (1) Under Strickland v. Washington, 466 U.S. 668, 687 (1984), to prove IATC, an applicant must show by a preponderance of the evidence that: (1) trial counsel’s performance was deficient by showing he failed to satisfy an objective standard of reasonableness under prevailing professional norms, with reasonableness assessed under the circumstances of the case viewed as of the time of counsel’s conduct and under the totality of the representation; and (2) he was prejudiced by the deficient performance.

        (2) An IATC claim must identify with particularity the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.

        (3) A trial counsel’s strategic decisions must be informed by a reasonable preliminary investigation. A decision not to investigate an issue must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments. Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.

Ex parte Ingram, PD-0578-16, 2017 Tex. Crim. App. LEXIS 588 (Tex. Crim. App. June 28, 2017) (designated for publication)

        (1) Pretrial habeas, followed by an interlocutory appeal, is an extraordinary remedy. This remedy is reserved for situations in which the protection of the applicant’s substantive rights or the conservation of judicial resources would be better served by interlocutory review. Except when double jeopardy is involved, pretrial habeas is not available when the question presented, even if resolved in the defendant’s favor, would not result in immediate release. And, pretrial habeas is generally unavailable when the resolution of a claim may be aided by the development of a record at trial. The only recognized exception to the general prohibition against record development on pretrial habeas is when the constitutional right at issue includes a right to avoid trial, such as the constitutional protection against double jeopardy.

        (2) Ordinarily, a facial challenge to the statute defining the offense can be brought on pretrial habeas, such as an overbreadth challenge. However, anti-defensive issues (an issue that benefits the State’s position in the case but is not something the indictment required the State to prove from the outset, such as voluntary intoxication) may not be brought on pretrial habeas corpus because it is not law applicable to the case.

        (3) Overbreadth is a First Amendment doctrine that allows a facial challenge to a statute even though the statute might have some legitimate applications. The overbreadth of a statute must be substantial, not only in an absolute sense, but also relative to the statute’s plainly legitimate sweep. To be overbroad, a statute must prohibit a substantial amount of protected expression, and the danger that the statute will be applied in an unconstitutional manner “must be realistic and not based on fanciful hypotheticals. The person challenging the statute must demonstrate from its text and from fact that a substantial number of instances exist in which the statute cannot be applied constitutionally.

        (4) In an overbreadth analysis, a court must construe the statute with the plain meaning of its text unless the language is ambiguous or the plain meaning leads to absurd results that the legislature could not have possibly intended. In determining plain meaning, a court may consult dictionary definitions and read words in context applying rules of grammar and giving effect to every word in the text if reasonably possible. Text in a statute is ambiguous if it may be understood by reasonably well-informed persons in two or more different senses. If the text is ambiguous or the plain meaning leads to absurd results, a court may consider extratextual factors including the object sought to be attained, the legislative history, and the consequences of a construction. If possible, a court must employ a reasonable narrowing construction to avoid a constitutional violation.

        (5) Tex. Penal Code § 33.021(c) is not facially unconstitutional because it is designed to protect children from sexual exploitation, not merely “speech.” It proscribes only those communications that are intended to cause certain types of individuals to engage in sexual activity, who are those whom the actor believes to be under age 17 and those who represent themselves be under age 17, when the actor is more than three years older than the believed or represented age. When a person represents herself to be under age 17, the actor who solicits such a person will ordinarily be aware of a substantial risk that the person is underage.

Long v. State, PD-0984-15, 2017 Tex. Crim. App. LEXIS 589 (Tex. Crim. App. June 28, 2017) (designated for publication)

        (1) In reviewing the legal sufficiency of the evidence to support a conviction, a reviewing court considers whether any rational finder of fact could have found the essential elements of the offense beyond a reasonable doubt by viewing the evidence in a light most favorable to the prosecution by resolving any factual disputes in favor of the verdict and deferring to the fact-finder regarding the weighing of evidence and the inferences drawn from basic facts. In some cases, a legal-sufficiency issue turns upon the meaning of the statute under which the defendant is being prosecuted: Does certain conduct constitute an offense under the statute.

        (2) Under Tex. Penal Code § 16.02(b)(1), a person commits a crime if she “intentionally intercepts, endeavors to intercept, or procures another person to intercept or endeavor to intercept a wire, oral, or electronic communication.” Under Tex. Penal Code § 16.02(b)(2), a person commits a crime if she “intentionally discloses or endeavors to disclose to another person the contents of a wire, oral, or electronic communication if the person knows or has reason to know the information was obtained through the interception of a wire, oral, or electronic communication in violation” of Tex. Penal Code § 16.02(b).

        (3) Tex. Penal Code § 16.02 incorporates definitions in Tex. Code Crim. Proc. Art. Section 18.20: “Oral communication” means “an oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation. “Intercept” means “the aural or other acquisition of the contents of a wire, oral, or electronic communication using an electronic, mechanical, or other device.” “Contents” when used with respect to a wire, oral, or electronic communication, “includes any information concerning the substance, purport, or meaning of that communication.”

        (4) Affirmative defenses to Tex. Penal Code § 16.02 are: if a party to the communication recorded it, and someone who intercepts an oral communication has an affirmative defense if one of the parties to the communication has given prior consent to the interception unless the communication is intercepted for the purpose of committing an unlawful act, and a parent may vicariously consent on behalf of his or her child to a recording of the child’s conversations so long as the parent has an objectively reasonable, good-faith basis for believing that recording the conversations is in the child’s best interest.

        (5) A person has an expectation of privacy in a place if: (1) the person, by his conduct, has “exhibited an actual (subjective) expectation of privacy,” meaning that he seeks to preserve [something] as private; and (2) the person’s subjective expectation of privacy is “one that society is prepared to recognize as ‘reasonable,’” meaning whether when viewed objectively, the expectation of privacy is “justifiable” under the circumstances.

        (6) Courts look to a variety of factors when deciding whether a person has a reasonable expectation of privacy in a place or object searched, such as whether: (1) the person had a proprietary or possessory interest in the place searched; (2) the person’s presence in or on the place searched was legitimate; (3) the person had a right to exclude others from the place; (4) the person took normal precautions, prior to the search, which are customarily taken to protect privacy in the place; (5) the place searched was put to a private use; and (6) the person’s claim of privacy is consistent with historical notion of privacy.

        (7) A locker room is not a classroom. Unlike a department-store dressing room, where there is no legitimate expectation of privacy if there is a sign informing the patron that the dressing room was under surveillance, in a school locker room, a person has a subjective expectation of privacy that society is prepared to regard as objectively reasonable.

Editor’s Note: I understand the TCCA’s real concern here, which is that we do not want people making video recordings in locker rooms where children may be. What if C.L.’s phone recorded the girls changing, and this recording was disseminated? On the other hand, I understand that a parent may want to know what is going on with their kids, including in the locker rooms. If a parent suspects that her child is being abused or bullied in the locker room, do we prosecute that parent for making a recording to turn into the police as evidence? Perhaps the legislature should amend Tex. Penal Code § 16.02 to exclude situations where the intent of the person making the recording is to capture evidence of a crime or other misfeasance.

Prichard v. State, PD-0712-16, 2017 Tex. Crim. App. LEXIS 586 (Tex. Crim. App. June 28, 2017) (designated for publication)

        (1) Deadly-weapon findings apply only where the “victim” is a human.

        (2) In a review of the legal sufficiency of the evidence to sup­port a deadly-weapon finding, a court examines the statutory requirements necessary to uphold the conviction or finding by determining the meaning of statutes de novo. A court interprets statutes by effectuating the collective intent or purpose of the legislators who enacted the legislation by focusing on the literal text of the statute and attempts to discern the fair, objective meaning of the text at the time of its enactment. The court applies the plain meaning of a term if the statute is clear and unambiguous, and reads words and phrases in context and construe them according to the rules of grammar and common usage. But when a statute is ambiguous or its plain language would lead to absurd results not possibly intended by the legislature, a court may consult extratextual factors, including legislative history.

        (3) Extratextual factors of determining a statute’s intent are the: (1) legislative history, (2) objective of the statute, and (3) consequences of a construction.

Editor’s Note: Although I agree that deadly-weapon findings should be reserved for acts of misfeasance against other humans, as the owner of three dogs (German Shepherd, Rottweiler, and Pit Bull mix), I believe it takes a “special” kind of person to hit a dog on her head with a shovel and drown her under the pretense of “disciplining” her. I am curious to see how brave this person would be with the shovel if he tried to “discipline” this handsome 160-lb Presa Canario. I would not interfere in the exchange.

Texas Courts of Appeals

Alberty v. State, 06-16-00204-CR, 2017 Tex. App. LEXIS 6348 (Tex. App. Texarkana July 11, 2017) (designated for publication)

        When an exhibit contains both admissible and inadmissible evidence, the burden is on the objecting party to specifically point out which portion of the evidence is inadmissible. Otherwise, error is waived.

        Sufficient evidence linked appellant to the previous convictions.

July/August 2017 SDR – Voice for the Defense Vol. 46, No. 6

Voice for the Defense Volume 46, No. 6 Edition

Editor: Michael Mowla

From editor Michael Mowla:

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

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

3. I provide a thorough recitation of the facts in the electronic version of SDR.

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

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

Supreme Court of the United States

Davila v. Davis, 16-6219, 2017 U.S. LEXIS 4060 (U.S. June 26, 2017)

        Martinez and Trevino do not supply cause to excuse the procedural default of state habeas counsel’s failure to raise ineffective assistance of appellate counsel during the state habeas proceeding for failure to raise an issue on direct appeal (that should have been raised) because Martinez and Trevino apply exclusively to claims of IATC.

        Except as provided in Martinez and Trevino, in federal review of state convictions under 28 U.S.C. § 2254: (1) a state prisoner must exhaust available state remedies before presenting his claim to a federal habeas court [28 U.S.C. § 2254(b)(1)(A) and Rose v. Lundy, 455 U.S. 509, 518 (1982); and (2) a federal court may not review federal claims that were procedurally defaulted in state court (claims that the state court denied based on an adequate and independent state procedural rule, or for failure to allow the state court of an opportunity to address the merits of the claim).

        Under Martinez v. Ryan, 566 U.S. 1, 16–17 (2012), procedural default will not bar a federal habeas court from hearing a substantial claim of IATC if the default results from the ineffective assistance of habeas counsel. Under Trevino v. Thaler, 133 S.Ct. 1911 (2013), the Martinez exception applies both where state law explicitly prohibits prisoners from bringing claims of IATC on direct appeal and where the State’s procedural framework, because of its design and operation, makes it unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of IATC on direct appeal (such as in Texas).

Editor’s note: summary of the court’s reasoning: “The criminal trial enjoys pride of place in our criminal justice system in a way that an appeal from that trial does not . . . the Constitution twice guarantees the right to a criminal trial, but does not guarantee the right to an appeal at all . . . the trial “is the main event at which a defendant’s rights are to be determined . . . and not simply a tryout on the road to appellate review . . . a claim of appellate ineffectiveness premised on a preserved trial error thus does not present the same concern that animated the Martinez exception because at least “one court” will have considered the claim on the merits . . . flooding the courts with defaulted claims . . .”

Translated: The 5–4 majority believes that appeals (even in death-penalty cases) are not that important.

Honeycutt v. United States, 16-142, 2017 U.S. LEXIS 3556 (U.S. June 5, 2017)

        Joint-and-several liability applies when there has been a judgment against multiple defendants. In a forfeiture case, when two or more defendants conspire to violate the law, each defendant is held liable for a forfeiture judgment based not only on property that he used in or acquired because of the crime, but also on property obtained by his co-conspirator.

        Under 21 U.S.C. § 853, forfeiture applies to “any person” convicted of certain serious drug crimes, but is limited to only tainted property as follows: (1) § 853(a)(1) limits forfeiture to “property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of” the crime; (2) § 853(a)(2) restricts forfeiture to “property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of,” the crime; and (3) § 853(a)(3) applies to persons “convicted of engaging in a continuing criminal enterprise”—a form of conspiracy—and requires forfeiture of “property described in paragraph (1) or (2)” as well as “any of [the defendant’s] interest in, claims against, and property or contractual rights affording a source of control over, the continuing criminal enterprise.”

        Under 21 U.S.C. § 853(d), there is a rebuttable presumption that property is subject to forfeiture only if the Government proves that: (1) the property was acquired by the defendant during the period of the violation; and (2) there was no likely source for such property other than the crime. Joint-and-several liability would mandate forfeiture of untainted property that the defendant did not acquire because of the crime, and this is not allowed.

        Under 21 U.S.C. § 853(p)(1), the government may confiscate property untainted by the crime (permits forfeiture of “substitute property”) and applies “if any property described in subsection (a), as a result of any act or omission of the defendant” either: (A) cannot be located upon the exercise of due diligence; (B) has been transferred or sold to, or deposited with, a third party; (C) has been placed beyond the jurisdiction of the court; (D) has been substantially diminished in value; or (E) has been commingled with other property which cannot be divided without difficulty. Under 21 U.S.C. § 853(p)(2), only if the Government can prove that one of these five conditions was caused by the defendant may it seize “any other property of the defendant, up to the value of” the tainted property-rather than the tainted property itself.

        Under 21 U.S.C. § 853(a)(1), forfeiture is limited to property the defendant personally acquired as the result of the crime.

Jae Lee v. United States, 16-327, 2017 U.S. LEXIS 4045 (U.S. June 23, 2017)

        If a noncitizen proves defective advice regarding the risk of deportation if the noncitizen pleads guilty to an offense for which deportation is presumably mandatory (and satisfies prong 1 of the IATC standard of Strickland v. Washington), to prove the prejudice-prong of Strickland (prong 2), the noncitizen need not prove that he would have likely prevailed at trial.

Editor’s Note 1: I have been asked whether Lee will be held to be retroactive. In Chaidez, 133 S.Ct. 1103 (2013), the SCOTUS held that Padilla was not retroactive. Chaidez was decided based on the flawed reasoning of Teague v. Lane, 489 U.S. 288 (1989), a badly flawed opinion. It is likely that once the courts apply Teague to Lee, the same result will occur.

Editor’s Note 2: There is concern in the defense-bar among trial lawyers that with the SCOTUS relaxing the prejudice-prong of Strickland on the issue in Lee, this will harm criminal trial attorneys. I disagree. The advice that trial counsel must give to clients under Lee is the same as before: If the client is pleading guilty or no-contest to a crime that is an aggravated felony under Title 8 or carries with it presumably mandatory deportation, trial counsel’s written advice to the client is that if he pleads guilty, deportation will be presumably mandatory. And if deportation will be presumably mandatory, trial counsel should advise the client in writing to seek counsel from an immigration lawyer before he pleads guilty or no-contest. This is nearly verbatim from Padilla. There are many CLE presentations that explain what offenses are aggravated felonies or carry presumably mandatory deportation, or both (I wrote and presented on this topic several times.) Further, I was the amicus curiae attorney on Torres, 483 S.W.3d 35 (Tex. Crim. App. 2016), in which the TCCA set the impossibly high standard for the prejudice-prong of having to prove that your client would likely have succeeded at trial. Lee overturns Torres, and rightfully so. There are very few sets of circumstances where a defendant can prove by a preponderance of the evidence that he would have succeeded at trial.

Jenkins v. Hutton, 16-1116, 2017 U.S. LEXIS 3875 (U.S. June 19, 2017) (per curiam)

        Under Sawyer v. Whitley, 505 U.S. 333 (1992), a habeas petitioner may obtain review of a defaulted claim upon “showing by clear and convincing evidence that, but for a constitutional error, no reasonable jury would have found him eligible for the death penalty under the applicable state law.” Sawyer does not allow a court to consider whether the alleged error might have affected the jury’s verdict such as where the jury might have been relying on invalid aggravating circumstances when it recommended a death sentence.

McWilliams v. Dunn, 16-5294, 2017 U.S. LEXIS 3876 (U.S. June 19, 2017)

        Under Ake v. Oklahoma, 470 U.S. 68 (1985), a state must provide an indigent defendant with a qualified mental health expert retained specifically for the defense team, not a neutral expert available to both parties.

Packingham v. North Carolina, 15-1194, 2017 U.S. LEXIS 3871 (U.S. June 19, 2017)

        A state is permitted to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that may presage a sexual crime, like contacting a minor or using a website to gather information about a minor. However, a law that forecloses access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.

Weaver v. Massachusetts, 16-240, 2017 U.S. LEXIS 4043 (U.S. June 22, 2017)

        Although closing a courtroom is structural error not subject to harmless-error analysis, and trial counsel’s failure to object to the closure is objectively unreasonable under the first prong of Strickland, a defendant must show that trial counsel’s failure to object caused defendant prejudice (second prong of Strickland).

        Under Arizona v. Fulminante, 499 U.S. 279 (1991), the SCOTUS again recognized Chapman, 386 U.S. at 24, and Neder, 527 U.S. 1, 7 (1999), that some errors (structural) cannot be deemed harmless beyond a reasonable doubt, which ensures certain basic, constitutional guarantees that should define the framework of any criminal trial. A structural error “affects the framework within which the trial proceeds,” rather than being “simply an error in the trial process itself.” It means only that the government is not entitled to deprive the defendant of a new trial by showing that the error was “harmless beyond a reasonable doubt.”

        Structural error occurs where the: (1) right is not designed to protect the defendant from erroneous conviction but instead protects some other interest (i.e., right to conduct own defense, based on the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty); (2) effects of the error are simply too hard to measure (i.e., defendant denied right to select his own attorney, the precise “effect of the violation cannot be ascertained”); (3) error always results in fundamental unfairness (i.e., indigent defendant is denied an attorney or if the judge fails to give a reasonable-doubt instruction, the resulting trial is always a fundamentally unfair one).

        The violation of the right to a public trial is structural error because: (1) it is difficult to assess the effect of the error; and (2) protects the rights of the defendant; and (3) protects the rights of the public at large and the press, but it is subject to exceptions if the trial court deems it necessary to conduct a trial and makes proper FFCL in support of the decision to do so.

        Under Neder, 527 U.S. 1, 7 (1999), if there is structural error (such as the closure of the courtroom) that is objected to and the issue is raised on direct appeal, the defendant generally is entitled to automatic reversal regardless of the error’s “effect on the outcome.” But if the closure of a courtroom is not objected to at trial, to show IATC, a defendant must show that trial counsel’s error was “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” (prong 1) and trial counsel’s error prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).

United States Court of Appeals for the Fifth Circuit

United States v. Brooker, 16-10698, 2017 U.S. App. LEXIS 10152 (5th Cir. June 7, 2017) (designated for publication)

        The decision to revoke supervised release is reviewed for an abuse of discretion. The sentence imposed is reviewed under a plainly unreasonable standard: (1) the reviewing court ensures that the district court committed no significant procedural er­ror; and (2) if the district court’s sentencing decision lacks pro­cedu­ral error, the reviewing court considers the substantive rea­son­ableness of the sentence imposed. If the reviewing court finds the sentence unreasonable, the court may reverse the district court only if the reviewing court determines the error was obvious under existing law.

        Under 18 U.S.C. § 3583(g), revocation of supervised release is mandatory if a defendant possesses a controlled substance, re­fuses to comply with drug-testing imposed as a condition, or tests positive for illegal controlled substances more than 3 times over the course of 1 year.

        Under 18 U.S.C. § 3583(d), if a defendant fails a drug test, the court shall consider whether the availability of appropriate substance abuse treatment programs, or an individual’s current or past participation in such programs, warrants an exception from 18 U.S.C. § 3583(g).

        If a defendant argues to the district court that a substance-abuse treatment program should be imposed and the court still revokes supervised release, it is understood that the court implicitly considered and rejected application of the drug-treatment exception.

United States v. Colorado-Cessa, 16-50328, 2017 U.S. App. LEXIS 11303 (5th Cir. June 9, 2017) (designated for publication)

        To determine a Brady motion, a district court must conduct a Brady analysis by making findings on the record regarding all three Brady prongs. Under Brady, a defendant’s due process rights are violated when the prosecution suppresses evidence that is exculpatory. To establish a Brady violation, a defendant must show the evidence was: (1) favorable because it was exculpatory or impeaching; (2) suppressed by the prosecution; and (3) material, which occurs if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.

        Under Giglio v. United States, 405 U.S. 150, 152–154 (1972), Brady applies to evidence that could be used to impeach prosecution witnesses.

United States v. Rodriguez, 15-40357, 2017 U.S. App. LEXIS 9957 (5th Cir. June 5, 2017) (designated for publication)

        Attorney abandonment does not, by itself, excuse a petitioner from his duty of diligence under 28 U.S.C. § 2255(f)(4) when litigating a postconviction motion to obtain an out-of-time appeal, and complete inactivity in the face of no communication from trial counsel does not constitute diligence.

Editor’s Note: The rule in the Fifth Circuit is different than in Texas proceedings, where attorney abandonment alone in the 30-day post-judgment phase is often sufficient to constitute ineffective counsel for failing to secure a defendant’s right to an appeal. The remedy for a defendant whose trial counsel failed to take measures to make certain that the applicant’s appellate rights or rights to discretionary review are protected is the granting of an out-of-time appeal or discretionary review. See Ex parte Edwards, 688 S.W.2d 566, 568 (Tex. Crim. App. 1985); Ex parte Axel, 757 S.W.2d 369, 371 (Tex. Crim. App. 1988) (representation by trial counsel does not terminate at end of trial); and Ex parte Steptoe, 132 S.W.3d 434, 435–436 (Tex. Crim. App. 2004).

Sorto v. Davis, 16-70005, 2016 U.S. App. LEXIS 21470 (5th Cir. June 15, 2017) (designated for publication) (death penalty case)

        A certificate of appealability (“COA”) is not required for an appeal of a district court’s denial of funding under 18 U.S.C. 3599.

        An inmate may appeal a denial of habeas relief with respect to nonfunding claims only if the USCA5 grants COAs for those claims.

        Under 28 U.S.C. § 2253(c)(1), an inmate may appeal a denial of habeas relief with respect to nonfunding claims only if the appellate court grants COAs for those claims.

        A COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” For claims denied on the merits, a defendant must demonstrate that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’” For claims denied on procedural grounds, the defendant must show that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.”

        If an inmate seeks a COA on a claim that was adjudicated in state court, the claim must be reviewed under 28 U.S.C. § 2254(d), which imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt: A federal court may not grant habeas relief unless the state-court adjudication: (1) resulted in a decision that was contrary to or involved an unreasonable application of clearly established federal law as determined by the SCOTUS; or (2) resulted in a decision that was based on an unreasonable determination of the facts considering the evidence presented in the State court proceeding.

        A state court’s decision is “contrary to” clearly established SCOTUS law if it: (1) applies a rule that contradicts the governing law set forth in SCOTUS opinions; or (2) confronts a set of facts that are materially indistinguishable from a decision of the SCOTUS and nevertheless arrives at a result different from SCOTUS precedent. A state court’s decision is “an unreasonable application” of SCOTUS law if it identifies the correct governing legal principle from the SCOTUS but unreasonably applies that principle to the facts of the petitioner’s case.

United States v. Zuniga, 14-11304, 2017 U.S. App. LEXIS 9958 (5th Cir. June 14, 2017) (designated for publication)

        A stop based on the collective-knowledge doctrine is valid if: (1) there existed enough information to support a finding of reasonable suspicion to stop the vehicle; and (2) that knowledge can be imputed under the “collective knowledge doctrine” to the officer who did not witness possible criminal activity but who seized the defendant and evidence. An officer initiating the stop need not have personal knowledge of the evidence that gave rise to the reasonable suspicion or probable cause so long as there is “some degree of communication” between the stopping officer and the officer with personal knowledge of the facts.

        Although an officer may stop a vehicle for a traffic or parking violation, under Whren v. United States, 517 U.S. 806, 810 (1996), when an officer is in possession of information that creates the basis for probable cause, he is required to act upon this information within a reasonable time, otherwise the existence of probable cause becomes stale.

Editor’s Note: In Texas, the collective-knowledge doctrine is used permissively. See Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987). The collective-knowledge doctrine was intended that each officer know something about the underlying facts leading to reasonable suspicion or probable cause, and collectively, all the officers possess reasonable suspicion or probable cause. However, the USCA5 appears content with this application of the doctrine:

Texas Court of Criminal Appeals

Arteaga v. State, PD-1648-15 & PD-1649-15, 2017 Tex. Crim. App. LEXIS 533 (Tex. Crim. App. June 7, 2017) (designated for publication)

        If the State prosecutes under Tex. Penal Code § 22.011(f), which elevates a sexual assault from an F-2 to an F-1 if the defendant would be committing bigamy if he “marries” the alleged victim, the jury charge must include language from the bigamy statute, Tex. Penal Code § 25.01.

Ex parte Carter, WR-85,060-01 & WR-85,060-02, 2017 Tex. Crim. App. LEXIS 564 (Tex. Crim. App. June 7, 2017) (Alcala, J. dissenting) (Richardson, J. dissenting) (designated for publication)

        Under Tex. Penal Code § 3.03(a), when a defendant is found guilty of more than one offense arising out of the same criminal episode and those offenses are prosecuted in a single criminal action, “the sentences shall run concurrently.” A defendant sentenced under an improper cumulation order in violation of Tex. Penal Code § 3.03(a) must raise the issue on direct appeal or is procedurally defaulted, and an improper cumulation order is no longer void.

Hopper v. State, PD-0703-16, 2017 Tex. Crim. App. LEXIS 531 (Tex. Crim. App. June 7, 2017) (designated for publication)

        Under Barker v. Wingo, 407 U.S. 514, 530 (1972), in addressing a speedy-trial claim, a court must balance the following: (1) the length of delay (12 months between the time of the accusation and the time of trial is presumptively prejudicial); (2) the State’s reason for the delay (deliberate attempts by the State to delay the trial to hamper the defense are weighed heavily against the State. Neutral reason such as negligence or overcrowded courts are weighted less heavily but should be considered since the ultimate responsibility for such circumstances rests with the State rather than with the defendant. When the record is silent regarding the reason for the delay, a court may presume neither a deliberate attempt on the part of the State to prejudice the defense nor a valid reason for the delay); (3) defendant’s assertion of his right to a speedy trial (although the defendant has no duty to bring himself to trial, he does have the responsibility to assert his right to a speedy trial); and (4) prejudice to the defendant because of the length of delay (i) preventing oppressive pretrial incarceration, (ii) minimizing anxiety and concern of the defendant, and (iii) most importantly, limiting the possibility that the defense will be impaired.

        Under Doggett v. U.S., 505 U.S. 647, 651–652 (1992), before a court engages in an analysis of each Barker factor, the defendant must “first make a threshold showing that ‘the interval between accusation and trial has crossed the threshold dividing ordinary from “presumptively prejudicial” delay.’” Affirmative proof of prejudice is not essential to every speedy trial claim because excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or even identify, but the presumption of prejudice to a defendant’s ability to defend himself is extenuated by the defendant’s acquiescence in some or all the delay.

        The Interstate Agreement on Detainers (IAD) is a compact between states (and some other jurisdictions) that enables a party state to obtain custody of an out-of-state prisoner for prosecution and imposes duties to ensure a prisoner’s quick return to the sending state. Under Tex. Code Crim. Proc. Art. 51.14 I–IX, if a defendant is serving a term of imprisonment in another state and Texas files a detainer in that other state, both Texas and the defendant have a right to demand the transfer of the defendant to Texas for a final disposition of the Texas charge. If the defendant initiates a demand under the IAD, then Texas must bring the defendant to trial within 180 days after the prosecutor and court receive the defendant’s demand. If Texas initiates a demand under the IAD, then Texas must bring the defendant to trial within 120 days of his arrival in Texas. The IAD accords the governor of the state that holds the prisoner the power to disapprove a demand initiated by the State but accords no such power with respect to a demand initiated by the defendant.

        A defendant’s failure to invoke the IAD to call himself to the attention of the authorities is not the kind of affirmative conduct that would make him partially responsible for delay. However, the same is not necessarily true of criminal conduct that results in a defendant’s incarceration in another jurisdiction. By leaving Texas and committing crimes in another state, a defendant creates at least a modest impediment to prosecution in Texas. Although that impediment was likely to be easily surmounted by a request under the IAD, in addition to the cost of bringing the defendant back to Texas, the prosecution of the case would be subject to the IAD’s requirements that might be far more restrictive than required by the Sixth Amendment’s speedy-trial clause.

        Where a defendant creates an impediment to his prosecution that he could have easily lifted that barrier by invoking the IAD that lifting that barrier would also have imposed time requirements that would have ensured a speedy trial, and that the State’s invocation of the IAD was not guaranteed to succeed, and if successful, had costs, the defendant’s failure to invoke the IAD contributes to the delay to be relevant to the reasons-for-delay factor. This does not absolve the State of responsibility for failing to invoke the IAD, as the State shoulders blame for failing to even attempt to procure the defendant.

Moore v. State, PD-1056-16, 2017 Tex. Crim. App. LEXIS 529 (Tex. Crim. App. June 7, 2017) (Walker, J. dissenting) (designated for publication)

        An automobile is not designed, made, or adapted for inflicting death or serious bodily injury, but it may in the manner of its use or intended use may cause death or serious bodily injury. See Penal Code § 1.07(a)(17)(B).

        In any felony offense in which it is shown that the defendant used or exhibited a deadly weapon, the trial court shall enter a deadly-weapon finding in the judgment, which impacts the defendant’s eligibility for community supervision, parole, and mandatory supervision. See Gov. Code §§ 508.145(d)(1), 508.149(a)(1), and 508.151(a)(2).

        To justify a deadly-weapon finding, the State need not establish that the use or intended use of an implement caused death or serious bodily injury, but only that the way it was either used or intended to be used can cause death or serious bodily injury. Nor does the actor need to intend death or serious bodily injury.

Queeman v. State, PD-0215-16, 2017 Tex. Crim. App. LEXIS 573 (Tex. Crim. App. June 14, 2017) (designated for publication)

        Under Tex. Penal Code §§ 6.03(d) and 19.05(a), to prove criminally negligent homicide, the State must prove that: (1) the defendant’s conduct caused the death of an individual; (2) the defendant ought to have been aware that there was a substantial and unjustifiable risk of death from his conduct; and (3) his failure to perceive the risk constituted a gross deviation from the standard of care an ordinary person would have exercised under like circumstances. The circumstances are viewed from the standpoint of the actor at the time that the allegedly negligent act occurred.

        “Criminal negligence does not require proof of a defendant’s subjective awareness of the risk of harm, but rather the defendant’s awareness of the attendant circumstances leading to such a risk.” The key is not the actor’s being aware of a substantial risk and disregarding it, but rather it is the failure of the actor to perceive the risk at all.”

        Criminal negligence is different from ordinary civil negligence: Civil or “simple” negligence means the failure to use ordinary care, or failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances. Criminal negligence involves a greater risk of harm to others without any compensating social utility than does simple negligence. The carelessness required for criminal negligence is significantly higher than that for civil negligence; the seriousness of the negligence would be known by any reasonable person sharing the community’s sense of right and wrong. The risk must be “substantial and unjustifiable,” and the failure to perceive it must be a “gross deviation” from reasonable care as judged by general societal standards by ordinary people.

Rodriguez v. State, PD-1391-15, 2017 Tex. Crim. App. LEXIS 569 (Tex. Crim. App. June 7, 2017) (designated for publication)

        A dorm room is the same as an apartment or a hotel room. Although under the “contract” between a student and the university dorm personnel can enter dorm rooms and examine (without a warrant) the room to maintain a safe and secure campus or to enforce a campus rule or regulation, students still enjoy the right of privacy and freedom from an unreasonable search or seizure. The student is the tenant, the college the landlord.

        The private-party-search doctrine provides that the Fourth Amendment’s warrant requirement applies only to government agents, not private actors. In United States v. Jacobsen, 466 U.S. 109 (1984), invasions of privacy by the government agent in addition to a private-party-search must be tested by the degree to which they exceeded the scope of the private search (where FedEx employees opened a damaged box, found a tube wrapped in newspaper, cut open the tube, discovered clear plastic bags containing a white powdery substance, notified the DEA, who sent an agent to reopen the box, the DEA did not invade upon any reasonable expectation of privacy by physically examining the powdery substance because the expectations of privacy in the package had already been frustrated by the actions of nongovernmental third parties).

        The private-party-search doctrine of Jacobsen does not extend to homes: If a private party searches a home (or a dorm room), an exception to the warrant requirement is necessary for law enforcement to also conduct a search of the premises.

        The “special-needs exception” of New Jersey v. T.L.O., 469 U.S. 325 (1985), in which the Court held that school teachers and administrators could search students without a warrant if: (1) there exists “reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school”; and (2) the search is “not excessively intrusive in light of the age and sex of the student and the nature of the infraction” does not apply to dorm rooms because unlike the situation in L.O., a college dorm room does not involve unemancipated minors required by compulsory attendance laws to attend classes, and T.L.O. was based on the need of grade-school administrators to maintain discipline, order, and student safety.

        For the plain-view doctrine to apply, the officer must have had lawful authority to be in the location from which he viewed the item, and the incriminating nature of the item must be immediately apparent.

        A third party can consent to a search to the detriment of another’s privacy interest if the third party has actual authority over the place or thing to be searched. See Hubert v. State, 312 S.W.3d 554, 560 (Tex. Crim. App. 2010), and United States v. Matlock, 415 U.S. 164, 170 (1974). Actual authority exists if the third party may give valid consent when he and the absent, non-consenting person share “common authority” over the premises or property, or if the third party has some “other sufficient relationship” to the premises or property. Common authority is shown by mutual use of the property by persons generally having joint access or control for most purposes. With joint access and control, it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

        Where an officer reasonably, though mistakenly, believes that a third party purporting to provide consent has actual authority over the place or thing to be searched, apparent authority. Apparent authority is judged under an objective standard: “Would the facts available to the officer at that moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises?”

Texas Courts of Appeals

$102,450 et al v. State, 09-16-00171-CV, 2017 Tex. App. LEXIS 5761 (Tex. App. Beaumont, June 22, 2017) (designated for publication)

        In State v. One (1) 2004 Lincoln Navigator, 494 S.W.3d 690, 701 (Tex. 2016), the SCOT held that Tex. Code Crim. Proc. Ch. 59 neither provides for exclusion of illegally obtained evidence nor requires the state to prove lawful seizure as a prerequisite to commencing a forfeiture proceeding. Trial courts considering civil-forfeiture proceedings do not need to conduct a Fourth Amendment reasonableness inquiry because Chapter 59 contains neither an exclusionary rule nor a procedural prerequisite requiring the state to show a legal search (i.e., Tex. Code Crim. Proc. Art. 38.23 applies in criminal proceedings).

In re Bell, 01-17-00373-CR, 2017 Tex. App. LEXIS 5347 (Tex. App. Houston [1st Dist.] June 13, 2017)

        Under Tex. Rule App. Proc. 25.2(g), generally all trial court proceedings are suspended once the record is filed in the appellate court except those permitted by law or rules.

        Code Crim. Proc. Art. 44.04(d) permits the trial court to alter bail while an appeal is pending.

        Under Tex. Code Crim. Proc. Art. 44.04(b), when a conviction is reinstated upon issuance of a mandate, a defendant must be “immediately placed in custody” by the trial court.

Fraser v. State, 07-15-00267-CR, 2017 Tex. App. LEXIS 5308 (Tex. App. Amarillo June 9, 2017) (designated for publication)

        When reviewing the legal sufficiency of the evidence, a court views the evidence “in the light most favorable to the verdict and determine whether, based on the evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318–319 (1979). The jury is the sole judge of the credibility of witnesses and the weight to be given to their testimonies, and the reviewing court must not usurp this role by substituting its own judgment for that of the jury. The duty of the reviewing court is to ensure that the evidence presented supports the jury’s verdict and that the State has presented a legally sufficient case of the offense charged. When the reviewing court is faced with a record supporting contradicting inferences, the court must presume that the jury resolved any such conflicts in favor of the verdict, even if not explicitly stated in the record. Evidence may be legally insufficient when the record contains either no evidence of an essential element, merely a modicum of evidence of one element, or if it conclusively establishes a reasonable doubt.

        Murder and Manslaughter are “result-oriented” offenses because the proscribed conduct must have caused the death of the victim (as opposed to engaging in conduct that results in death). The only difference between Murder and Manslaughter is the mens rea associated with the result of the conduct.

        Where neither the indictment nor the jury-charge limits the jury’s consideration to conduct what was committed intentionally or knowingly (thereby permitting a conviction based upon reckless or criminally negligent conduct), the court examines the record to determine whether the underlying felony supports felony-murder conviction based on whether: (1) the offense as charged merged with the act clearly dangerous to human life, and (2) that offense is manslaughter or a lesser-included offense.

        Under the “merger doctrine,” the court considers whether an act constituting the underlying felony and the act resulting in the death were the same. If the underlying felony and the act clearly dangerous to human life resulting in death are “one and the same,” thus being subsumed within the definition of manslaughter (or a lesser-included offense), then the merger doctrine renders a felony-murder conviction invalid.

        Under Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. 2012), if an appellate court finds the evidence is legally insufficient, the court is not limited to ordering an acquittal, but may instead reform the judgment to reflect a conviction as to the lesser-included offense and remand the case to the trial court for a new punishment hearing.

        If the erroneous charge deals with the merits of the offense and not the range of punishment, thus the verdict rendered by the jury was a general one (the court is unable to determine whether some or all the jurors believed Appellant was guilty of murder based upon a theory authorized by law (intentional or knowing conduct) or a theory not authorized by law (reckless or criminally negligent conduct), the appropriate remedy is not to acquit or to reform the judgment of conviction, but to reverse and remand for a new trial.

Lovett v. State, 02-16-00094-CR & 02-16-00095-CR, 2017 Tex. App. LEXIS 5486 (Tex. App. Fort Worth June 15, 2017) (designated for publication)

        Under Feiner v. New York, 340 U.S. 315, 320 (1951), when clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order appears, the State’s power to prevent or pun­ish is “obvious.”

        The government has a significant interest in ensuring public safety and order. A traditional exercise of the State’s police powers is to protect its citizens’ health and safety. Police officers have the lawful authority to maintain public safety, particularly when crowds of people are gathered and when a perceived possibility exists of a riot or other threat to public safety. A government “must have some ability to protect” its citizens and both public and private property. In keeping with this authority, the police’s specific ability to lawfully disarm someone is broad.

        Under Tex. Gov. Code § 411.207(a), a peace officer who is lawfully discharging his official duties “may disarm a license holder [to carry a handgun] at any time the officer reasonably believes it is necessary for the protection of the license holder, officer, or another individual.” If an officer may disarm even a license holder for safety reasons, an officer may disarm anyone of a deadly weapon for the same reasons.

Luckenbach v. State, 14-15-01048-CR, 2017 Tex. App. LEXIS 5148 (Tex. App. Houston [14th Dist.] June 6, 2017) (Brown, J. dissenting) (designated for publication)

        When a trial court determines probable cause to support the issuance of a search warrant, there are no credibility calls and instead the court rules on what falls within the four corners of the affidavit. When reviewing a magistrate’s decision to issue a warrant, courts apply a highly deferential standard of review because of the constitutional preference for searches conducted under a warrant over warrantless searches. So long as the magistrate had a substantial basis for concluding that probable cause existed, the magistrate’s probable-cause determination is upheld. The magistrate may draw reasonable inferences from the facts and circumstances contained in the affidavit’s four corners.

        Under Tex. Code Crim. Proc. Art. 18.02(a)(10), a search warrant may be issued to search for and seize property or items, except the personal writings by the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense. Under Tex. Code Crim. Proc. Art. 18.01(c), a warrant may not issue unless a sworn affidavit required by Tex. Code Crim. Proc. Art. 18.01(b) sets forth sufficient facts to establish probable cause that: (1) a specific offense was committed, (2) the specifically described property or items to be searched for or seized constitute evidence of that offense or evidence that a particular person committed that offense, and (3) the property or items constituting evidence to be searched for or seized are located at or on the particular person, place, or thing to be searched.

        Probable cause exists when, under the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found at the specified location.

Rodriguez v. State, 14-16-00107-CR, 2017 Tex. App. LEXIS 5589 (Tex. App. Houston [14th Dist.] June 20, 2017) (designated for publication)

        When the trial court erroneously omits a defensive instruction over objection, under Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013), and Almanza v. State, 686 S.W.2d 157 171 (Tex. Crim. App. 1985), the conviction must be reversed if the appellant suffered some harm, which is error calculated to injure the rights of the appellant. The harm must be actual and not merely theoretical. To determine whether “some harm” occurred, the court must consider: (1) the arguments of counsel, (2) the entire jury charge, (3) all the evidence, and (4) any other relevant factors.

        To evaluate harm where the jury received an instruction for one confession-and-avoidance defense but not another, a reviewing court considers whether the: (1) defenses overlapped to such an extent that the instruction given precluded harm from the absence of the instruction denied; and (2) jury’s rejection of the charge given provides assurance that the defendant suffered no harm.

        Under Tex. Penal Code § 9.22 (necessity), conduct is justified if: (1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm; (2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear. A proper jury charge on necessity includes (1) and (2) but not (3), which is a question of law.

        To be entitled to a necessity instruction, there must be some evidence that the defendant reasonably believed that: (1) a specific harm was imminent; and (2) the criminal conduct was immediately necessary to avoid the imminent harm.

June 2017 SDR – Voice for the Defense Vol. 46, No. 5

Voice for the Defense Volume 46, No. 5 Edition

Editor: Michael Mowla

From editor Michael Mowla

1.  The online SDR, which is regularly emailed to all current TCDLA members, is summarized in a man­ner that allows readers to generally use the SDR instead of reading every opinion. It includes more than just the relevant holding(s).

2. These summaries are not a substitute for reading the whole case.

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

4. This SDR is for you. Feel free to send me suggestions on how I may improve it.

Supreme Court of the United States

No significant decisions were handed down by the SCOTUS since April 15, 2017.

United States Court of Appeals for the Fifth Circuit

John Doe v. United States, No. 16-20567, 2017 U.S. App. LEXIS 6208 (5th Cir. April 11, 2017) (designated for publication)

        (1) Under 5 U.S.C. § 702 (Administrative Procedure Act), the United States may be sued when non­monetary relief is sought and the plaintiff’s claim is that an agency or an officer or employee of the agency acted or failed to act in an official capacity or under color of legal authority. The intent of the statute is to “broaden the avenues for judicial review of agency action by eliminating the defense of sovereign im­munity in cases covered by the amendment.”

        (2) When the government accuses a person of a crime without indicting him, the government fails to provide a public forum in which the person can defend himself, and subjects the government to suit under 5 U.S.C. § 702.

        (3) To survive a motion to dismiss under Fed. Rule Civil Proc. 12(b), a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. In making this determination, the court may consider the complaint, its proper attachments, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.

        (4) Under 28 U.S.C. § 2401(a), an action against the Government is barred unless the complaint is filed within six years after the right of action first accrues. A cause of action first accrues when the plaintiff can file suit and obtain relief.

        (5) A Fifth Amendment claim seeking expungement of district court records is cognizable even though prosecution of the party seeking expungement might yet occur. The statute of limitations is not deferred until the government is no longer able to indict or affirmatively states that it will not indict.

Facts:

  • In 2015, Doe filed suit in the district court, contending under the Fifth Amendment that the Government violated his right to due process by publicly accusing him of a crime in a criminal proceeding without providing him a public forum for vindication.
  • Doe sought a declaration that the Government violated his Fifth Amendment right to due process and an order of expungement.
  • The Government moved to dismiss under Fed. Rule Civil Proc. 12(b)(1), arguing that sovereign immunity barred Doe’s suit, and the action was barred by limitations.

The suit was properly filed in the district court, and sovereign immunity does not protect the government

Doe’s suit was barred by limitations

  • Because the 2008 records that Doe seeks to expunge have been public for many years, the harm to Doe commenced in 2008, which is when the right of action first accrued.

United States v. Jones, No. 16-10463, 2017 U.S. App. LEXIS 6952 (5th Cir. April 20, 2017) (designated for publication)

        (1) Under 18 U.S.C. § 2119 (carjacking), a person commits a crime if he takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation. The carjacking statute is a valid exercise of congressional authority under the Commerce Clause because Congress could rationally believe that the activity of auto theft has a substantial effect on interstate commerce. It is not relevant that the vehicle has not left the state for years.

        (2) Under 18 U.S.C. § 924(c)(3), a “crime of violence” is a felony that: (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used during committing the offense.

        (3) The language of 18 U.S.C. § 2119 (carjacking) clearly supports carjacking being a “crime of violence” that supports a conviction under § 924(c).

State of Texas v. Kleinert, No. 15-51077, 2017 U.S. App. LEXIS 6951 (5th Cir. April 20, 2017) (designated for publication)

        (1) Under 28 U.S.C. § 1442, the federal-officer-removal statute, an officer may remove a state prosecution to federal court and obtain dismissal of the charges if the officer shows: (1) he is a federal officer or part of a federal task-force; (2) he was acting under the “color” of the federal office; and (3) a colorable federal defense.

        (2) To satisfy the “color of office test,” the defendant must show a causal connection between the charged conduct and asserted official authority. The State’s allegations do not control the causal-connection analysis. Instead, the court looks to the officer’s theory of the case to determine whether he has made an adequate threshold showing that the suit is for an act under color of office (i.e., was the federal officer acting in his official capacity or was “on a frolic of his own”).

        (3) An officer alleges a “colorable” federal defense if he plausibly alleges that he was acting as a federal officer and had a legal right to act as he did.

        (4) Merely because the task-force officer’s actions do not narrowly fit within a “Memorandum of Understanding” signed between the federal agency and officer does not mean the officer was not acting within the scope of the federal task force.

United States v. Guillen-Cruz, No. 16-40131, 2017 U.S. App. LEXIS 6161 (5th Cir. April 10, 2017) (designated for publication)

        (1) To determine whether a prior offense is a crime of violence for sentencing enhancement purposes, under the categorical approach, the court lines up the elements of the prior offense with the elements of the generic [enumerated] offense to see if they match. If the elements of the prior offense cover conduct beyond what the generic offense covers, then it is not a qualifying offense. The categorical approach does not consider the conduct of the defendant in committing the offense, but is limited to the conviction and the statutory definition of the offense.

        (2) If a statute is “divisible,” meaning it sets out one or more elements of the offense in the alternative, the court applies the modified categorical approach to narrow an offense that otherwise would not be a categorical match with an enumerated offense. Descamps, 133 S.Ct. 2276, 2281 (2013).

        (3) Under the modified categorical approach, a court looks at “Shepard documents”: indictment or information, terms of a plea agreement, or transcript of the plea hearing in which the factual basis for the plea was confirmed by the defendant. If these documents show that the alternative mental states are means and not elements, then the statute is no divisible.

        (4) To establish plain error, an Appellant must show: (1) an error or defect that has not been intentionally relinquished or abandoned; (2) the legal error was clear or obvious, rather than subject to reasonable dispute; (3) the error affected his substantial rights (reasonable probability of a different outcome absent the error), and (4) if (1)–(3) are satisfied, the USCA5 may remedy the error “if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.”

        (5) Under U.S.S.G. § 2L1.2(b)(1)(C), a district court must increase a defendant’s offense level by 8 if the defendant has been deported after a conviction for an aggravated felony. “Aggravated felony” is defined under 8 U.S.C. § 1101(a)(43).

        (6) Under U.S.S.G. § 2L1.2(b)(1)(C), “aggravated felony” has the meaning given by 8 U.S.C. § 1101(a)(43), which defines it as “illicit trafficking in firearms or destructive devices (as defined in [18 U.S.C. § 921]) or in explosive materials (as defined in [18 U.S.C. § 841(c)]).

        (7) Under 18 U.S.C. § 921(a)(3), a “firearm” is: (A) any weapon (including a starter gun) that will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device.

        (8) Under 27 C.F.R. § 479.11, a “frame or receiver” is the part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.

        (9) Under 18 U.S.C. § 921(a)(4)(A) & (B), “destructive device” means (1) any explosive, incendiary, or poison gas bomb, grenade, mine, rocket, missile, or similar device, (2) any type of weapon that will, or which may be readily converted to expel a projectile by the action of an explosive or other propellant, and which has any barrel with a bore of more than one-half inch in diameter, or (3) any combination of parts either designed or intended for use in converting any device into any destructive device and from which a destructive device may be readily assembled.

        (10) A magazine is an element of a firearm that houses ammunition, and is plainly not a firearm, the frame or receiver of a firearm, a muffler, firearm silencer, or a destructive device under § 921(a)(4)(A).

Editor’s Note: one must question the basic knowledge of weapons and the ability to comprehend simple measurements on the part of the USPO, the prosecutors, and the district court.

  • The underlying issue is the export of magazines that hold 7.62 x 39 mm ammunition.
  • The United States Munitions List prohibits the export of any weapon (or its parts) the barrel-bore of which is greater than 0.5 inches in diameter.
  • For instance, the AK-47 and its clones is the most common weapon that fires the 7.62 x 39 mm round.
  • The barrel-bore of a firearm is simply the inside cylinder of the firearm’s barrel—i.e., the tube through which the bullet travels.
  • As the USCA5 observes, the barrel-bore of an AK-47 or its clones cannot be greater than 0.5 inches or 12.7 mm because otherwise the weapon could not fire 7.62 mm rounds. In fact, 7.62 millimeters = 0.3 inches.

  • Perhaps the use of both millimeters and inches when describing the same object confused the prosecutors, USPO, and the district court.

United States v. McClure, No. 15-41641, 2017 U.S. App. LEXIS 7276 (5th Cir. April 25, 2017) (designated for publication)

        (1) If a defendant pleads guilty as part of a plea agreement, the Government must strictly adhere to the terms and conditions of its promises in the agreement. When a guilty plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. To assess a claim of breach, the USCA5 considers whether the government’s conduct is consistent with the defendant’s reasonable understanding of the agreement. See United States v. Valencia, 985 F.2d 758, 761 (5th Cir. 1993), and Santobello v. New York, 404 U.S. 257, 262 (1971).

        (2) The USCA5 applies general principles of contract law to interpret the terms of the plea agreement. When a plea agreement is unambiguous, the court will not look beyond the four corners of the document.

        (3) A defense counsel’s subjective belief that a defendant’s plea will preclude future prosecution related to an ongoing investigation, even if the defendant relied upon it, does not, without more, immunize him from prosecution.

United States v. Nguyen, 16-10186, 2017 U.S. App. LEXIS 6390 (5th Cir. April 13, 2017) (designated for publication)

        (1) When reviewing sentencing decisions for reasonableness under Gall v. United States, 552 U.S. 38, 46 (2007), the USCA5 uses a bifurcated review process and considers: (1) whether the district court committed any significant procedural error, and if the district court’s decision is procedurally sound, (2) the substantive reasonableness of the sentence.

        (2) When considering the procedural unreasonableness of a sentence, the USCA5 reviews the district court’s interpretation and application of the U.S.S.G. de novo and its findings of fact for clear error. If the district court committed a significant procedural error, the USCA5 remands unless the error was harmless.

        (3) Significant procedural errors include failing to calculate (or improperly calculating) the U.S.S.G. range, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sen­tence, including an explanation for any deviation from the U.S.S.G. range. Great deference is given to a sentence if the judge “carefully articulates the fact-specific reasons he concludes that a non-Guidelines sentence is appropriate, commits no legal error in the procedure followed in arriving at the sentence, and gives appropriate reasons for the sentence.

        (4) A non-Guidelines sentence unreasonably fails to reflect the statutory sentencing factors set forth in 18 U.S.C. § 3553(a) where it: (1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing the sentencing factors.

        (5) Structuring requires proof of three elements: (1) the defendant knew of the financial institution’s legal obligation to report transactions greater than $10,000; (2) the defendant knowingly structured (or attempted to structure, or assisted in structuring) a currency transaction; and (3) the purpose of the structured transaction was to evade that reporting obligation. Although the Government must prove each of these elements beyond a reasonable doubt to establish the defendant’s guilt at trial, for sentencing purposes, the district court needed only to find that the elements were satisfied by a preponderance of the evidence.

Editor’s Note: this case is an example of why some opine that the federal criminal justice system needs a major “reboot” from top to bottom. In the district court proceedings, under Cause No. 4-15-CR-00185-A (N.D. Tex.), ECF 1 reflects that under 26 U.S.C. § 7206(2), appellant was charged under a one-count information of Aiding and Assisting in the Preparation and Presentation of a False and Fraudulent Return. The information alleged that “on or about the September 7, 2012, in the Fort Worth Division of the Northern District of Texas, defendant did willfully aid and assist in, and procure, counsel, and advise the preparation and presentation to the IRS a 2011 Form 1120 that was false and fraudulent as to a material matter (because it) omitted approximately $4,910,697 in income.” Nguyen pleads guilty, then is denied a reduction for acceptance of responsibility, making the U.S.S.G. range of 21–27 months, and ultimately is sentenced to 36 months in an upward-departure for relevant conduct that even the government stipulated there was insufficient evidence to support. This district court went out of its way to make sure it thoroughly punished Nguyen for perceived transgressions even though Nguyen accepted responsibility for his misfeasance and paid his fines and restitution in full.

United States v. Ortega, No. 16-50301, 2017 U.S. App. LEXIS 7275 (5th Cir. April 25, 2017) (designated for publication)

        (1) The Government has an “informer’s privilege” to withhold from disclosure the identity of a CI. This privilege is not absolute and there is “no fixed rule” for when a CI’s identity should be disclosed. A court must balance the public interest in protecting the flow of information against the individual’s right to prepare his defense.

        (2) The USCA5 applies a three-factor test to determine whether the identity of a CI should be disclosed: (1) the level of the CI’s activity; (2) the helpfulness of the disclosure to the asserted defense; and (3) the Government’s interest in nondisclosure.

        (3) Under Franks v. Delaware, 438 U.S. 154 (1978), a search warrant must be voided if the defendant shows by a preponderance of the evidence that: (1) the affidavit contains a false statement; (2) the false statement was made intentionally or with reckless disregard for the truth; and (3) if the false statement is excised, the remaining content in the affidavit fails to establish probable cause.

        (4) If the USCA5 finds that a statement in a search-warrant affidavit is false but the district court does not make a finding regarding the intent of the affiant, the case must be remanded to the district court for further findings of fact.

Prystash v. Davis, No. 16-70014, 2017 U.S. App. LEXIS 7365 (5th Cir. April 26, 2017) (designated for publication)

        (1) Under 28 U.S.C. § 2253(c)(1)(A), a COA must issue before a habeas petitioner can appeal the district court’s refusal to grant a writ of habeas corpus.

        (2) The USCA5 will issue a COA upon a “substantial showing of the denial of a constitutional right.” This standard is met if the petitioner shows that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003), and Buck v. Davis, 137 S.Ct. 759, 773 (2017).

        (3) If the district court found that there was a procedural obstacle to habeas relief, the USCA5 will grant a COA if “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Gonzalez v. Thaler, 565 U.S. 134, 140–141 (2012).

        (4) If a petitioner faces the death penalty, any doubts as to whether a COA should issue must be resolved in the petitioner’s favor. Allen v. Stephens, 805 F.3d 617, 625 (5th Cir. 2015).

        (5) Under Batson v. Kentucky, 476 U.S. 79 (1986), and Powers v. Ohio, 499 U.S. 400, 406–411 (1991), although a defendant is not black, he may challenge the exclusion of black jurors.

        (6) Under Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 133 S.Ct. 1911 (2013), a claim of IATC that was procedurally barred could be excused this default by showing that the initial state habeas counsel had been ineffective.

        (7) To succeed on a Brady claim, one must show that the prosecution suppressed evidence that was favorable to the defense, material to either guilt or punishment, and was not discoverable using due diligence.

Rockwell v. Davis, No. 16-70022, 2017 U.S. App. LEXIS 6142 (5th Cir. April 10, 2017) (designated for publication)

        (1) Under 28 U.S.C. § 2254(d), federal courts cannot grant habeas relief if a claim was adjudicated on the merits in state court unless the state-court decision was contrary to or involved an unreasonable application of clearly established Federal law as determined by the SCOTUS or was based on an unreasonable determination of the facts considering the evidence presented in the State court proceeding.

Texas Court of Criminal Appeals

Ex parte Brossard, No. WR-83,014-01, 2017 Tex. Crim. App. LEXIS 377 (Tex. Crim. App. April 12, 2017) (designated for publication)

        (1) A guilty plea must be entered knowingly and voluntarily: (1) the defendant must understand the law in relation to the facts surrounding his plea; and (2) the defendant must have sufficient awareness of the relevant circumstances surrounding the plea. A guilty plea is valid only if it is “a voluntary and intelligent choice among the alternative courses of action open to the defendant.”

        (2) Sufficient awareness of the factual circumstances surrounding a plea, as opposed to complete knowledge, is required when a plea is entered. A court is permitted to accept a plea where a defendant does not have complete knowledge of the State’s case, so long as he has a sufficient factual awareness.

        (3) Under Brady v. United States, 397 U.S. 742 (1970), a defendant may have a sufficient factual awareness despite laboring under misapprehensions. A defendant’s plea is not rendered involuntary because it was induced by his attorney’s miscalculation of the penalties available if he pleaded guilty or went to trial. A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State’s case or the likely penalties attached to alternative courses of action.” However, a guilty plea induced by the State’s misrepresentation or improper promises by the State is involuntary and may be withdrawn.

Editor’s Note: Yet another guilty-plea case.

Hankston v. State, No. PD-0887-15, 2017 Tex. Crim. App. LEXIS 379 (Tex. Crim. App. April 12, 2017) (designated for publication)

        (1) Cell tower and cellphone company records are business records memorializing a person’s voluntary subscriber transaction for the service from the cellphone provider. A person neither owns nor possesses these records, so a person has no reasonable expectation of privacy in these records since the records constitute information voluntarily conveyed to a third party.

        (2) There is no substantive difference between the Fourth Amendment and Tex. Const. Art. I, § 9.

Miller v. State, PD-0891-15, 2017 Tex. Crim. App. LEXIS 429 (Tex. Crim. App. April 26, 2017) (designated for publication)

        (1) The ordinary Strickland standard applies to a claim of ineffective assistance of counsel that is based on trial counsel’s erroneous advice regarding a defendant’s eligibility to receive probation from a sentencer, so the proper prejudice standard is whether appellant has demonstrated a reasonable probability that the results of the proceeding would have been different had trial counsel correctly informed him of the law.

Ex parte Pete, Nos. PD-0771-16, PD-0772-16, & PD-0773-16, 2017 Tex. Crim. App. LEXIS 432 (Tex. Crim. App. April 26, 2017) (designated for publication)

        (1) If a trial court grants a mistrial during the punishment hearing and the defendant requests a new trial only for punishment, the defendant will receive a new trial only for punishment and not the entire trial

Reed v. State, No. AP-77,054, 2017 Tex. Crim. App. LEXIS 376 (Tex. Crim. App. April 12, 2017) (designated for publication)

        (1) To obtain DNA testing under Chapter 64, (1) under Tex. Code Crim. Proc. Art. 64.01(a-1), a convicted person may seek forensic DNA testing of evidence that has a reasonable likelihood of containing biological material; and (2) under Tex. Code Crim. Proc. Art. 64.03, the judge must find that there is a reasonable likelihood that the evidence contains biological material suitable for DNA testing; and (3) the convicted person must show by a preponderance of the evidence that he would not have been convicted if the proposed testing’s exculpatory results were available at the time of his trial.

Texas Courts of Appeals

Ex parte Arango, Nos. 01-16-00607-CR & 01-16-00630-CR, 2017 Tex. App. LEXIS 3372 (Tex. App. Houston [1st Dist.] April 18, 2017) (designated for publication)

        (1) Under Tex. Fam. Code § 54.02(a), a juvenile court may waive its exclusive original jurisdiction and transfer the child to a district court for criminal proceedings if it finds: (1) the child was 14 years old or older at the time of the alleged offense; (2) there is probable cause to believe the child committed the offense; and (3) because of the seriousness of the alleged offense or the background of the child (or both), the welfare of the community requires criminal proceedings.

        (2) In deciding whether the welfare of the community requires criminal proceedings, the juvenile court must consider four nonexclusive factors: (1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against people; (2) the sophistication and maturity of the child; (3) the record and previous history of the child; and (4) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court. FFCL on these four factors are not required, but the order should expressly recite that the juvenile court took the factors into account in making this waiver determination.

        (3) FFCL supporting the juvenile court’s ultimate reasons for waiving its jurisdiction and ordering a transfer to district court are required and must be set forth in the transfer order: Under Tex. Fam. Code § 54.02(h), if the juvenile court waives jurisdiction, it shall state specifically in the order its reasons for waiver and certify its action, including the written order and findings of the court.

        (4) A waiver of juvenile jurisdiction based solely on the seriousness of the offense and not the background of the child, and supported only by a finding that the offense was against a person, is invalid and an abuse of discretion.

        (5) A claim that a juvenile transfer order is invalid is cognizable on pretrial habeas because the TCCA has recognized that one of the proper uses of pretrial habeas relief is where the conservation of judicial resources would be better served by interlocutory review.

Ex parte Madison, No. 10-16-00081-CR, 2017 Tex. App. LEXIS 3708 (Tex. App. Waco April 26, 2017)

        (1) A court may declare only that part of a statute unconstitutional under which a defendant is charged

        (2) The First Amendment limits the government’s power to regulate speech based on its substantive content. Content-based regulations distinguish favored from disfavored speech based on the idea or message expressed and operate to restrict viewpoints or public discussion of an entire topic or subject matter. The usual presumption of constitutionality is reversed, the content-based statute is presumed invalid, and the State bears the burden to rebut this presumption.

        (3) A statute that suppresses, disadvantages, or imposes differential burdens upon speech because of its content is subject to strict scrutiny. It may be upheld only if it is necessary to serve a compelling state interest and employs the least speech-restrictive means to achieve its goal.

        (4) Content-neutral regulation of the time, place, and manner of speech, as well as regulation of speech that can be justified without reference to its content, receives intermediate scrutiny, and is permissible if it promotes a significant governmental in­terest and does not burden substantially more speech than necessary to further that interest.

        (5) To be unconstitutionally overbroad, the statute must pro­hibit a substantial amount of protected expression, and the danger that the statute will be unconstitutionally applied must be realistic and not based on “fanciful hypotheticals.” Laws that inhibit the exercise of First Amendment rights will be held facially overbroad only if the impermissible applications of the law are real and substantial when judged in relation to the statute’s plainly legitimate sweep. A statute must be upheld if the court determines a reasonable construction rendering it constitutional.

        (6) Impersonation is a nature-of-conduct offense, and a statute implicates the First Amendment only if it qualifies as “expressive conduct” akin to speech. Tex. Penal Code § 33.07(a)(1) regulates only the conduct of assuming another’s person’s identity, without that person’s consent, with the intent to harm, defraud, intimidate, or threaten any person by creating a web page. Otherwise proscribable conduct does not become protected by the First Amendment simply because the conduct hap­pens to involve the written or spoken word.

        (7) Almost all conceivable applications of Tex. Penal Code § 33.07(a) to speech associated with the proscribed conduct fall within the categories of criminal, fraudulent, and tortious activity that are unprotected by the First Amendment.

        (8) Because Tex. Penal Code § 33.07(a)(1) promotes a substantial governmental interest, the State’s interest would be achieved less effectively without the law, and the means chosen are not substantially broader than necessary to satisfy the State’s interest, Tex. Penal Code § 33.07(a)(1) survives intermediate scrutiny. Thus, Tex. Penal Code § 33.07(a)(1) is facially constitutional under the First Amendment.

Ex parte Perez, No. 14-16-00332-CR, 2017 Tex. App. LEXIS 3246 (Tex. App. Houston [14th Dist.] April 13, 2017) (designated for publication)

        (1) A defendant is placed in jeopardy when the jury is empaneled and sworn. Because jeopardy attaches at this point, the Constitution confers upon a criminal defendant a “valued right” to have his trial completed by a particular tribunal. Thus, when a trial court declares a mistrial against the defendant’s wishes, usually further prosecution for the same offense is barred.

        (2) The exception to further prosecution after a mistrial is if there was a “manifest necessity” to grant the mistrial, which means a “high degree” of necessity. A trial court’s discretion to declare a mistrial based on manifest necessity is limited to, and must be justified by, extraordinary circumstances. Manifest necessity exists for declaring a mistrial when it is simply impossible to continue with trial.

        (3) Once the defendant shows he is being tried for the same offense after declaration of a mistrial to which he objected, a heavy burden shifts to the State to justify the trial court’s declaration of a mistrial. It is the State’s burden to demonstrate the manifest necessity for a mistrial.

        (4) A trial court abuses its discretion whenever the trial court declares a mistrial without first considering the availability of less drastic alternatives and reasonably ruling them out. The trial court must entertain “every reasonable alternative” to a mistrial.

        (5) When the trial court discovers a juror has moved outside the county, there are at least three options: (1) grant a mistrial if the defendant consents, (2) continue with 11 jurors if the defendant consents, or (3) continue the trial with all 12 jurors, including the unqualified one. Because proceeding to verdict with the out-of-county juror was a less dras­tic alternative to a mistrial, double jeopardy barred the de­fen­dant’s retrial.

        (6) When the court is faced with absent jurors, a trial court must entertain every reasonable alternative to a mistrial, including waiting and proceeding with 11 or 5 jurors provided the defendant is willing to do so.

Vanhalst v. State, No. 06-16-00080-CR, 2017 Tex. App. LEXIS 3181 (Tex. App. Texarkana April 12, 2017) (designated for publication)

        (1) Under Tex. Code Crim. Proc. Art. 38.14, a defendant may not be convicted solely upon the testimony of an accomplice witness; instead, the accomplice’s testimony must be corroborated by other evidence tending to connect the de­fendant with the offense committed. An accomplice is one who participates with a defendant before, during, or after the commission of a crime and acts with the required culpable mental state. The participation must involve an affirmative act that promoted the commission of the offense with which the accused is charged.

        (2) An accomplice as a matter of law or fact is one who is susceptible to prosecution for the offense with which the accused is charged or a lesser included offense.

        (3) One is not an accomplice simply because he knew of the crime but failed to disclose it or even concealed the crime (such a person cannot be a co-conspirator).

May 2017 SDR – Voice for the Defense Vol. 46, No. 4

Voice for the Defense Volume 46, No. 4 Edition

Editor: Michael Mowla

From editor Michael Mowla

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

2. Some opinions are 20 or more pages, so I focus on the most relevant parts to write summaries of one to four pages.

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

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

Supreme Court of the United States

Dean v. United States, No. 15-9260, 2017 U.S. LEXIS 2190 (U.S. April 3, 2017)

        (1) When considering a sentence, district courts must: (1) impose a sentence sufficient, but not greater than necessary, to comply with the four purposes of sentencing: just punishment, deterrence, protection of the public, and rehabilitation (“parsimony principle”); (2) consider the nature and circumstances of the offense and the history and characteristics of the defendant; (3) consider the need for the sentence imposed to serve the four aims of sentencing; and (4) consider the U.S.S.G.

        (2) 18 U.S.C. § 924(c) does not restrict the authority conferred on sentencing courts by § 3553(a) to consider a sentence imposed under § 924(c) when calculating a sentence for the predicate count. Although a mandatory sentence under § 924(c) must be imposed “in addition to the punishment provided” for the predicate crime, the limitation says nothing about the length of a non-§ 924(c) sentence, much less about what information a court may consider in determining that sentence.

        (3) Nothing prevents a district court from imposing a mandatory-minimum sentence under § 924(c) and as short as a one-day sentence for the predicate crime.

Moore v. Texas, No. 15-797, 2017 U.S. LEXIS 2185 (U.S. March 28, 2017)

        (1) Texas may no longer use the Briseno factors in deciding whether a person is intellectually disabled under Atkins

        (2) The TCCA’s conclusion that an IQ score of near-but-above 70 establishes that an inmate is not intellectually disabled is irreconcilable with Hall because under Hall, where an IQ score is close to, but above, 70, courts must account for the test’s “standard error of measurement.” The standard error of measurement is “a statistical fact, a reflection of the inherent imprecision of the test itself.” This imprecision in the testing instrument means that an individual’s score is best understood as a range of scores on either side of the recorded score, within which one may say an individual’s true IQ score lies.

United States Court of Appeals for the Fifth Circuit

United States v. Fisch, No. 15-20636, 2017 U.S. App. LEXIS 4499 (5th Cir. March 14, 2017) (designated for publication)

        (1) To support a conspiracy conviction under 18 U.S.C. § 371, the government must prove: (1) an agreement between two or more people to pursue an unlawful objective; (2) the defendant’s knowledge of the unlawful objective and voluntary agreement to join the conspiracy; and (3) an overt act by one or more of the conspirators in furtherance of the conspiracy’s objective.

        (2) The government must prove the same degree of criminal intent as is necessary for proof of the underlying substantive offense.

        (3) Direct evidence of a conspiracy is unnecessary; each element may be inferred from circumstantial evidence.

        (4) An agreement may be inferred from concert of action, voluntary participation may be inferred from a collection of circumstances, and knowledge may be inferred from surrounding circumstances.

        (5) The elements of obstruction of justice [under 18 U.S.C. § 1503] are: (1) a judicial proceeding was pending; (2) the defendant knew of the judicial proceeding; and (3) the defendant acted corruptly with the specific intent to influence, obstruct, or impede that proceeding in its due administration of justice.

        (6) A defendant’s specific intent to obstruct justice “can be proven by showing the defendant’s endeavors had the ‘natural and probable effect of interfering with the due administration of justice.’” An attempt to obstruct justice violates the statute.

        (7) Due process requires the district court to hold a prompt hearing at which a defendant can contest a restraining order if the restrained assets are needed to pay for an attorney to defend him on associated criminal charges. However, the defendant must present detailed evidence of his financial circumstances.

United States v. Jordan, No. 15-20454, 2017 U.S. App. LEXIS 4443 (5th Cir. March 14, 2017) (designated for publication)

        (1) Under 18 U.S.C. § 1521, Retaliating against a Federal judge or Federal law enforcement officer by false claim or slander of title, whoever files, attempts to file, or conspires to file, in any public record or in any private record which is generally available to the public, any false lien or encumbrance against the real or personal property of an [officer or employee of the United States], on account of the performance of official duties by that individual, knowing or having reason to know that such lien or encumbrance is false or contains any materially false, fictitious, or fraudulent statement or representation, shall be fined under this title or imprisoned for not more than 10 years, or both.

        (2) A violation of 18 U.S.C. § 1521 occurs based on the type of document filed and resulting harm without regard to the validity or existence of the identified collateral in such documents. It did not matter that the defendant does not identify specific property belonging to the judge and prosecutor.

        (3) The six-level sentencing enhancement under U.S.S.G. § 2A6.1(b)(1) for “threatening” to harm the property of a judge and prosecutor is valid where an expressed intent to harm property is made.

United States v. Kirkland, No. 16-40255, 2017 U.S. App. LEXIS 4837 (5th Cir. March 17, 2017) (designated for publication)

        (1) When an appellant fails to object to error, review is for plain error: (1) there must be an error that has not been intentionally relinquished or abandoned; (2) the error must be plain—clear or obvious; (3) the error must have affected the defendant’s substantial rights, which in the ordinary case means he must show a reasonable probability that, but for the error, the outcome of the proceeding would have been different; and (3) the court of appeals should exercise its discretion to correct the forfeited error if the error seriously affects the fairness, integrity or public reputation of judicial proceedings. Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016)

        (2) In the context of sentencing, an error affects an appellant’s substantial rights when there is a reasonable probability that, but for the error, he would have received a lesser sentence.

        (3) The Government’s breach of a plea agreement affects a defendant’s substantial rights unless the record indicates that that the district court would have imposed the same sentence regardless of the Government’s breach.

        (4) The fact that a district court exercises independent judgment—which it must do in every case—does not mean that the court did not also consider and give weight to the Government’s breach of a plea agreement.

        (5) The Government’s breach of a plea agreement constitutes a particularly egregious error that, in the absence of strong countervailing factors, seriously affects the fairness, integrity, or public reputation of judicial proceedings.

        (6) When the Government’s breach of a plea agreement con­stitutes reversible error, a defendant can choose one of two reme­dies: (1) specific performance of the plea agreement and resentencing before a different judge, or (2) withdrawal of the guilty plea.

United States v. Lagos, No. 16-20146, 2017 U.S. App. LEXIS 4834 (5th Cir. March 23, 2017) (designated for publication)

        (1) The legality of a restitution award is reviewed de novo.

        (2) 18 U.S.C. § 3663A, the Mandatory Victims Restitution Act (MVRA), requires a sentencing court to order restitution for a victim’s “actual loss directly and proximately caused by the defendant’s offense of conviction.” This includes “lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.”

        (3) Forensic expert fees, legal fees, and consulting fees incurred by a victim are included under the MVRA even if they are considered “consequential damages.”

United States v. Tract 31A, Lots 31 and 32, No. 16-40588, 2017 U.S. App. LEXIS 4165 (5th Cir. March 9, 2017) (designated for publication)

        (1) Under Tex. Fam. Code § 3.102, a spouse’s sole management community property includes his “(1) personal earnings; (2) revenue from separate property; (3) recoveries from personal injuries; and (4) the increase and mutations of, and the revenue from, all property subject to the spouse’s sole management, control and disposition.”

        (2) All other community property is joint management community property, unless the spouses have provided otherwise by power of attorney or other written agreement.

        (3) Joint management community property is subject to the joint management, control, and disposition of the spouses.

        (4) To cause a valid conveyance of joint management community property, both spouses must join in the transaction. If a spouse does not have a written power of attorney or other agreement, the spouse may not convey or otherwise dispose of joint management community property without the joinder of the other spouse.

        (5) Because property that appears to be subject to sole management may, in fact, be subject to joint management—and thus require joinder of both spouses to affect a valid conveyance—third parties that enter transactions involving community property might be placed in a precarious position.

        (6) Under Tex. Fam. Code § 3.104, property held in one spouse’s name is presumed to be sole management community property, and if the named spouse conveys such property to a third party such as the government under a plea agreement, the government is entitled to rely upon the authority of that spouse to convey the property if the third party “does not have actual or constructive notice of the spouse’s lack of authority” to deal with the property.

United States v. Castillo-Rivera, No. 15-10615, 2017 U.S. App. LEXIS 5570 (5th Cir. March 29, 2017) (en banc) (designated for publication)

        (1) Unlawful Possession of a Firearm by a Felon under Tex. Penal Code § 46.04 is an aggravated felony for purposes of the U.S.S.G.

United States v. Escamilla, No. 16-40333, 2017 U.S. App. LEXIS 5485 (5th Cir. March 29, 2017) (designated for publication)

        (1) When determining whether reasonable suspicion exists for probable cause when roving Border Patrol agents stop a vehicle in a “border area,” the courts consider the Brignoni-Ponce factors: (1) the area’s proximity to the border; (2) the area’s characteristics; (3) the usual traffic patterns on the road; (4) the agents’ previous experience with criminal activity; (5) information about recent illegal trafficking in the area; (6) the appearance of the vehicle; (7) the driver’s behavior; and (8) the pas­sengers’ number, appearance, and behavior.

        (2) An officer’s conduct is reasonably related to the justification for the stop when the officer “diligently pursues a means of investigation that is likely to confirm or dispel [the officer’s] suspicions quickly.”

        (3) To determine whether a suspect’s consent to search is voluntary, six factors are considered: (1) the voluntariness of the suspect’s custodial status; (2) the presence of coercive police procedures; (3) the nature and extent of the suspect’s cooperation; (4) the suspect’s awareness of his right to refuse consent; (5) the suspect’s education and intelligence; and (6) the suspect’s belief that no incriminating evidence will be found.

        (4) The scope of a person’s consent by what is objectively reasonable: “what would the typical reasonable person have understood by the exchange between the officer and the suspect?” A court must take account of any express or implied limitations attending that consent that establish the permissible scope of the search in terms of time, duration, area, or intensity.

        (5) Fourth Amendment rights are personal, and “may not be vicariously asserted.” Thus, a person has no standing to challenge a search or seizure of property that was voluntarily abandoned.

United States v. Guzman-Reyes, No. 16-10387, 2017 U.S. App. LEXIS 5926 (5th Cir. April 5, 2017) (designated for publication)

        (1) For purposes of U.S.S.G. § 2D1.1(b)(12), which provides a two-level enhancement if the defendant “knowingly maintains a premises for the purpose of manufacturing or distributing a controlled substance, including storage of a controlled substance for the purpose of distribution,” “maintains” is not expressly defined in the U.S.S.G., but under § 2D1.1 cmt. n.17, “[a]mong the factors the court should consider in determining whether the defendant ‘maintained’ the premises are (A) whether the defendant held a possessory interest in (e.g., owned or rented) the premises and (B) the extent to which the defendant controlled access to, or activities at, the premises.”

        (2) Manufacturing or distributing a controlled substance need not be the sole purpose for which the premises was maintained, but must be one of the defendant’s primary or principal uses for the premises, rather than one of the defendant’s incidental or collateral uses for the premises.

        (3) A PSR generally bears sufficient indicia of reliability to be considered as evidence by the sentencing judge in making factual determinations. The defendant bears the burden of presenting evidence to show that the facts contained in the PSR are inaccurate or materially untrue. In the absence of rebuttal evidence, a district court may properly rely on the PSR and adopt the PSR’s factual findings as its own.

        (4) Under U.S.S.G. § 3B1.1 cmt. n.4, a defendant’s “recruitment of accomplices” and “degree of participation in planning or organizing the offense” are factors courts should consider when determining application of the enhancement.

United States v. Sanjar, et al, No. 15-20025, 2017 U.S. App. LEXIS 5342 (5th Cir. March 27, 2017) (designated for publication)

        (1) Under Fed. Rule Evid. 701, lay witnesses may offer opinion testimony if it is rationally based on their perception, helpful to determining a fact in issue, and not based on specialized knowledge. Even if such testimony requires some specialized knowledge, it is admissible so long as the lay witness offers straight­forward conclusions from observations informed by his or her experience.

        (2) Generic language may satisfy the “particularity” requirement of the Fourth Amendment if describing a more specific item is not possible. The Fourth Amendment requires that: (1) a warrant provide sufficient notice of what the agents may seize and (2) probable cause exist to justify listing those items as potential evidence subject to seizure.

        (3) Under Fed. Rule Evid. 801(d)(2), when offered by the government, a defendant’s out-of-court statements are those of a party opponent and thus not hearsay. When offered by the defense, however, such statements are hearsay (the defendant may reiterate the out-of-court statements on the stand if he chooses to testify). The rule of optional completeness under Fed. Rule Evid. 106 does not apply here because optional completeness protects against written works being presented out of context, not a statement by a party-opponent.

        (4) A district court may include a “deliberate indifference” instruction if the evidence shows that a defendant “deliberately closed his eyes to what would otherwise have been obvious to him.” This instruction may be given when a defendant claims a lack of guilty knowledge and the evidence supports an inference of deliberate indifference.

        (5) Under Pinkerton v. United States, 328 U.S. 640 (1946), a conspirator can be found guilty of a substantive offense committed by a coconspirator and in furtherance of the conspiracy so long as the coconspirator’s acts are reasonably foreseeable. A coconspirator cannot be found guilty if the substantive offense committed by one of the conspirators: (1) was not done in furtherance of the conspiracy, (2) did not fall within the scope of the unlawful project, or (3) was merely a part of the ramifications of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement. See Pattern Jury Instructions, Fifth Circuit (Criminal) § 2.17 (2015).

        (6) Wharton’s Rule provides that when the substantive crime requires more than one actor, conspiracy should not be additional punishment to a crime that already requires concerted action. This rule is implicated only when it is impossible under any circumstances to commit the substantive offense without cooperative action.

        (7) Under 42 U.S.C. § 1320a-7b(b)(1), one can violate the Anti-Kickback Statute just for soliciting a kickback, so convictions for both conspiracy to violate the Anti-Kickback Statute and violating that law are allowed.

        (8) Under 18 U.S.C. § 3663A(a)(2), when the offense of conviction involves a “scheme,” the restitution statute broadens the definition of victim to include “any person directly harmed by the defendant’s criminal conduct in the course of the scheme.” Restitution may include losses suffered by victims not named in the indictment so long as they are victims of the scheme. United States v. Pepper, 51 F.3d 469, 473 (5th Cir. 1995).

        (9) Under the Mandatory Victim Restitution Act, a district court cannot offset restitution with amounts collected under a forfeiture order. A district court has the statutory authority to impose both restitution and forfeiture, and there is no legal au­thority to offset one another. Restitution and forfeiture serve distinct purposes: restitution is remedial in nature, the goal of which is to make the victim whole, while forfeiture is punitive, and seeks to disgorge profits or property an offender obtains from illicit activity.

Whitaker v. Davis, No. 16-70013, 2017 U.S. App. LEXIS 5862 (5th Cir. April 4, 2017) (designated for publication)

        (1) Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), federal habeas relief based upon claims that were adjudicated on the merits by the state courts, as here, cannot be granted unless the state court’s decision (1) “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the SCOTUS” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

        (2) Impeachment of a defendant using a “proffer to plead guilty” does not violate Santobello and is not an “involuntary confession” because Santobello’s due process rule that a guilty plea requires fulfillment of terms agreed to by the government does not apply because the defendant did not plead guilty.

Texas Court of Criminal Appeals

Bell v. State, No. PD-0052-17, 2017 Tex. Crim. App. LEXIS 290 (Tex. Crim. App. March 22, 2017) (per curiam) (designated for publication)

        (1) Jurisdiction is an absolute, systemic requirement that operates independent of preservation of error requirements, and appellate courts must review jurisdiction regardless of whether it is raised by the parties.

McClintock v. State, No. PD-1641-15, 2017 Tex. Crim. App. LEXIS 291 (Tex. Crim. App. March 22, 2017) (designated for publication)

        (1) The good-faith exception to a warrant under Davis v. United States, 564 U.S. 229 (2011) applies to Tex. Code Crim. Proc. Art. 38.23(a): An officer who reasonably believes that the information he submitted in a probable cause affidavit was legally obtained has no reason to believe the resulting warrant was tainted. Thus, in executing the warrant, that officer “acts in objective good faith reliance upon” the warrant if the warrant is facially valid.

Ex parte Owens, No. WR-83,551-01, 2017 Tex. Crim. App. LEXIS 344 (Tex. Crim. App. March 22, 2017) (designated for publication)

        (1) Under Ex Parte Coty, 418 S.W.3d 597 (Tex. Crim. App. 2014), if there is an allegation that a lab falsified drug-test results, the TCCA requires a showing of both falsity and materiality us­ing a five-factor test where the applicant first raises an inference of falsity by showing that: (1) the technician is a state actor, (2) the technician committed multiple instances of intentional misconduct in another case or cases, (3) the technician is the same that worked on the applicant’s case, (4) the misconduct is the type that would have affected the evidence in the applicant’s case, and (5) the technician handled and processed the evidence in the applicant’s case within roughly the same period of time as the other misconduct.

        (2) If the applicant satisfies the initial burden to raise an inference of falsity, the burden shifts to the State to offer evidence showing that the laboratory technician in question committed no such misconduct in the applicant’s case.

        (3) If the State fails to meet this burden, the applicant must prove that the false evidence was material to his conviction, which requires the applicant to show that knowing of the falsity of the evidence, would the applicant still have plead guilty or would he have insisted on going to trial? If he would have chosen to go to trial, the false evidence was material.

Ex parte Ulla, No. PD-0658-16, 2017 Tex. Crim. App. LEXIS 289 (Tex. Crim. App. March 22, 2017) (designated for publication)

        (1) Under Tex. Const. Article I, § 12, and Tex. Code Crim. Proc. Art. 12.05, an information tolls the running of limitations in a felony case.

Villa v. State, No. PD-0541-16, 2017 Tex. Crim. App. LEXIS 288 (Tex. Crim. App. March 22, 2017) (designated for publication)

        (1) Evidence of a person’s involvement in a gang is legally sufficient if the state proves the factors listed under Tex. Code Crim. Proc. Art. 61.02(c)(2), which allows a person to be included in the database of gangs if certain evidence is shown.

Powell v. Hocker, No. WR-85,177-01, 2017 Tex. Crim. App. LEXIS 374 (Tex. Crim. App. April 5, 2017) (designated for publication) (orig. proceeding)

        (1) Under Tex. Const. Art. V, § 6(a), Tex. Gov. Code § 22.221, and Tex. Gov. Code § 21.009(2), the mandamus jurisdiction of the courts of appeals does not extend to a writ of mandamus against a county court at law judge.

        (2) Under State ex rel. Young, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007), to qualify for mandamus relief, a petition must: (1) show that he has no adequate remedy at law, and (2) demonstrate a clear right to the relief. Where the conduct of a court is involved, a relator must demonstrate that the act he seeks is ministerial, not judicial, in nature. An act is ministerial, and therefore subject to the compulsion of mandamus, even though a judicial decision is involved, when the governing law is of such absolute clarity and certainty that nothing is left to the court’s discretion.

        (3) Article 39.14 plainly indicates that copies of discovery should be turned over to defense counsel, that the defendant may “view” them, but the defendant may not obtain copies. It also does not require the State to provide copies to a pro se defendant.

Thomas v. State, No. PD-0295-16, 2017 Tex. Crim. App. LEXIS 373 (Tex. Crim. App. April 5, 2017) (designated for publication)

        (1) In interpreting plea agreements, the TCCA applies general contract-law principles. Courts look to the written agreement and the formal record to determine the terms of the plea agreement, and terms are implied only when necessary to effectuate the intention of the parties.

        (2) When a portion of a plea-bargain (either a sentence-bargain or charge-bargain) is unenforceable to one party’s detriment, the proper remedy is to set aside the plea agreement and restore the parties to their original bargaining positions.

Texas Courts of Appeals

Atkinson v. State, No. 13-16-00344-CR, 2017 Tex. App. LEXIS 2255 (Tex. App.—Corpus Christi March 16, 2017) (designated for publication)

        (1) A person commits manslaughter if he recklessly causes the death of an individual. Manslaughter is a result-oriented offense: The mental state of recklessness must relate to the results of the defendant’s actions. A person acts recklessly with respect to the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the result will occur.

        (2) Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.

        (3) In determining whether the culpable mental state was proven, the jury can use its collective common sense and may apply common knowledge and experience.

Lombardo v. State, No. 14-15-00406-CR, 2017 Tex. App. LEXIS 2285 (Tex. App.—Houston [14th Dist.] March 16, 2017) (designated for publication)

        (1) There are three limits to a trial court’s discretion to revoke probation for failure to pay: (1) the State must prove at least one violation of the terms and conditions of community supervision; (2) an appellate court will review the trial court’s decision for an abuse of discretion; and (3) federal due process requires that a trial court consider alternatives to imprisonment before incarcerating an indigent defendant who is unable to pay amounts due under community supervision.

        (2) Federal due-process concerns under Bearden of jailing defendants for failure to pay restitution are met if the failure was willful.

        (3) When a defendant is sentenced to “regular” community supervision, the defendant is sentenced to a determinate number of years, but that sentence is suspended for a period of community supervision. Upon revocation, the trial court has the option of imposing a sentence of up to the determined number of years, but no less than the minimum for the offense.

        (4) A sentence that is outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal.

        (5) When faced with a void sentence, a reviewing court cannot reform it, but must remand the case back to the trial court to determine the correct sentence and enter a new judgment.

Routh v. State, No. 11-15-00036-CR, 2017 Tex. App. LEXIS 2833 (Tex. App.—Eastland March 31, 2017) (designated for publication)

        Under Tex. Penal Code § 8.01, “It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.” “Wrong” under Tex. Penal Code § 8.01 means “illegal.” Ruffin v. State, 270 S.W.3d 586, 592 (Tex. Crim. App. 2008).

        (1) The question for deciding insanity is, “Does the defendant factually know that society considers this conduct against the law, even though the defendant, due to his mental disease or defect, may think that the conduct is morally justified?”

        (2) A defendant bears the burden to prove his affirmative defense of insanity by a preponderance of the evidence.

        (3) In a challenge to the legal sufficiency of the evidence to support a rejection of an affirmative defense, the standard of review is from Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005): (1) whether there is more than a scintilla of evidence to support the jury’s rejection of Appellant’s affirmative defense, and review the evidence in the light most favorable to the verdict, and we credit any favorable evidence if a reasonable factfinder could and disregard any contrary evidence unless a reasonable factfinder could not; and (2) if there is no evidence to support the jury’s rejection of Appellant’s affirmative defense, then Appellant must establish as a matter of law the elements of the affirmative defense.

        (4) Evidence supporting or rejecting an affirmative defense that is subject to a credibility assessment is not disturbed by an appellate court because it is within the jury’s province to disregard that evidence. Only if the party establishes that the evidence conclusively proves his affirmative defense and that no reasonable jury was free to think otherwise may the reviewing court conclude that the evidence is legally insufficient to support the jury’s rejection of the defendant’s affirmative defense.

        (5) To determine whether the evidence was factually sufficient to support the jury’s rejection of Appellant’s affirmative defense, a reviewing court looks to whether the jury’s adverse finding was so against the great weight and preponderance of the evidence as to be manifestly unjust. This evidence is viewed in a neutral light, but the reviewing court may not substitute its judgment in place of the jury’s assessment of the weight and credibility of the witnesses’ testimony. If the reviewing court finds that the evidence that supports the affirmative defense so greatly outweighs the State’s contrary evidence that the verdict is manifestly unjust, the reviewing court will reverse the trial court’s judgment and remand the case for a new trial.

        (6) Under Tex. Code Crim. Proc. Art. 38.22 § 3(a)(2), a defendant must knowingly, intelligently, and voluntarily waive his rights before a statement made while he was in custody may be used against him. The determination of whether a statement is voluntary is based on an examination of the totality of circumstances surrounding its acquisition. There is no requirement that a defendant explicitly waive his rights. A waiver can be inferred from the actions and words of the defendant during the interview.

Ashton v. State, Nos. 01-16-00004-CR & 01-16-00005-CR, 2017 Tex. App. LEXIS 3021 (Tex. App.—Houston [1st Dist.] April 6, 2017) (designated for publication)

        (1) Under U.S. Const. Amend. VI and Tex. Const. Art. 1, § 10, a person has the right to an impartial jury. When a person serves on a jury but is partial, biased, or prejudiced and that juror is selected not through the fault or lack of diligence of defense counsel but based on inaccurate answers in voir dire, a new trial can be obtained.

        (2) When a juror withholds material information in the voir dire process, the parties are denied the opportunity to exercise their challenges, thus hampering their selection of a disinterested and impartial jury. However, the defendant bears the burden to ask questions to determine a juror’s potential bias. The defendant must ask specific questions and cannot rely on broad ones, to satisfy this due diligence obligation. Unless the defendant asks questions designed to illicit information that might indicate a juror’s inability to be impartial and truthful, the material information which a juror fails to disclose is not “withheld.”

Ex parte Baham, No. 05-16-00643-CV, 2017 Tex. App. LEXIS 2942 (Tex. App.—Dallas April 5, 2017) (designated for publication)

        (1) A party can prevail in a restricted appeal only if it was a party in the underlying suit and did not participate in the hearing that resulted in the judgment complained of, filed its notice of appeal within six months after the judgment was signed, and establishes error apparent on the face of the record. Tex. Rule App. Proc. 26.1(c), 30; Ins. Co. of State of Pa. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009) (per curiam).

        (2) Under Tex. Code Crim. Proc. Art. 55.02 § 1, after requesting expunction, the defendant must provide the trial court with information set forth in Tex. Code Crim. Proc. Art. 55.02 § 2(b). Once the necessary information is provided, the trial court “shall enter an order of expunction for a person entitled to expunction under Article 55.01(a)(1)(A) not later than the 30th day after the date of the acquittal.”

        Editor’s Note: the legislature should add language to Article 55.01 and the TCCA and SCOT should add similar language to the Tex. Rule App. Proc. allowing mandatory attorney’s fees and costs to an expunction petitioner when TDPS brings patently frivolous restricted appeals such this.

Ex Parte Chung, No. 05-15-01477-CV, 2017 Tex. App. LEXIS 2812 (Tex. App.—Dallas March 30, 2017) (designated for publication)

        (1) Expunction is a statutorily-created remedy that allows a person who has been arrested for the commission of an offense to have the records and files relating to the arrest expunged if the person meets the statutory requirements of Tex. Code Crim. Proc. Art. 55.01. Because it is created by statute, all its provisions are mandatory and exclusive and require strict compliance with Tex. Code Crim. Proc. Art. 55.01. A trial court has no equitable power to extend the protections of the expunction statute beyond the statute’s stated provisions. The petitioner carries the burden of proving compliance with the statutory requirements.

        (2) Review of a trial court’s ruling on a petition for expunction is for an abuse of discretion. To the extent that a ruling on expunction turns on a question of law, review is de novo because a trial court has no discretion in determining what the law is or applying the law to the facts. A trial court abuses its discretion if it orders an expunction of records despite a petitioner’s failure to satisfy all the statutory requirements.

        (3) Under Tex. Code Crim. Proc. Art. 55.01, a party placed on community supervision does not qualify for expunction even if his conviction is set aside via judicial clemency.

Collins v. State, No. 09-15-00089-CR, 2017 Tex. App. LEXIS 2645 (Tex. App.—Beaumont March 29, 2017) (designated for publication)

        (1) Under the current Tex. Fam. Code § 54.02(j), a juvenile court may transfer a case involving a juvenile to a district court if the defendant is 18 years of age or older at the time of the hearing and if he was 10 years of age or older when he committed a crime defined as a capital felony or as murder.

        (2) Under U.S. Const. Art. I, § 10, cl.1 (“No State shall pass any ex post facto Law”), and Tex. Const. Art. I, § 16 (“No ex post facto law shall be made”), statutes may not be applied retroactively in a way that changes the punishment that applied to a crime on the date the crime was committed.

        (3) The factors used to determine whether a statute operates retroactively in a way that is constitutionally prohibited under the Ex Post Facto clause are whether: (1) the statute assigns more disadvantageous criminal consequences to an act than did the law in place when the act occurred (it is irrelevant whether the statutory change touches any vested rights); (2) whether the sanction involves an affirmative disability or restraint; (3) it has traditionally been regarded as a punishment; (4) it comes into play only on a finding of scienter; (5) its operation will promote the traditional aims of punishment—retribution and deterrence; (6) the behavior to which it applies is already a crime; (7) an alternative purpose to which it may rationally be connected is assignable to it; (8) it appears excessive in relation to the alternative purpose assigned; and (9) the change to the statute was procedural or substantive (laws altering procedure do not generally fall within the prohibition).

        (4) If a person receives the same sentence under a new law that he would have received under an old law, there is no violation of the Ex Post Facto law.

Davis v. State, No. 01-16-00079-CR, 2017 Tex. App. LEXIS 3022 (Tex. App.—Houston [1st Dist.] April 6, 2017) (designated for publication)

        (1) Jurisdiction may be challenged for the first time on appeal.

        (2) Under Tex. Code Crim. Proc. Art. 20.09, a district court forms and impanels a grand jury and empowers it to inquire into indictable offenses. After hearing testimony, a grand jury votes concerning the presentment of an indictment. Under Tex. Code Crim. Proc. Art. 20.19, after all testimony that is accessible to the grand jury shall have been given in respect to any criminal accusation, the vote shall be taken as to the presentment of an indictment. After presentment, the State files the indictment in a court with jurisdiction to hear the case. Under Tex. Gov. Code § 74.094, all state district courts within the same county have jurisdiction over the same cases.

        (3) Under Tex. Const. art. V, § 11, Tex. Gov. Code § 24.024, and See Tex. Gov. Code § 74.094, (1) district judges may exchange districts, or hold court for each other when they may deem it expedient, and shall do so when required by law; (2) in a county having two or more district courts, the district judges may adopt rules governing the filing and numbering of cases, the assignment of cases for trial, the distribution of the work of the courts as in their discretion they consider necessary or desirable for the orderly dispatch of the business of the court; (3) district courts within the same county may exchange benches for preliminary proceedings; (4) if a grand jury in one district court returns an indictment in a case, the case may be then assigned to any district court within the same county.

Ex Parte Navarro, No. 14-16-00606-CR, 2017 Tex. App. LEXIS 3001 (Tex. App.—Houston [14th Dist.] April 6, 2017) (designated for publication)

        (1) The Double Jeopardy Clause protects an accused against “a second prosecution for the same offense after acquittal.” A greater offense is “the same offense” for jeopardy purposes as any lesser offense included within it.

        (2) Under Ex parte Granger, 850 S.W.2d 513 (Tex. Crim. App. 1993), if a defendant is convicted of an offense that contains an aggravating element and the conviction is overturned because there was insufficient evidence of the aggravating element, the defendant may be retried on the lesser offense.

Oliva v. State, No. 14-15-01078-CR, 2017 Tex. App. LEXIS 2594 (Tex. App.—Houston [14th Dist.] March 28, 2017) (designated for publication)

        (1) Under legal-sufficiency review, the reviewing court views all the evidence in the light most favorable to the prosecution and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The trier of fact must resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from basic facts. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). The trier of fact considers direct and circumstantial evidence and properly and improperly admitted evidence. When the record supports conflicting inferences, appellate courts presume the trier of fact resolved the conflicts in favor of the verdict.

        (2) A punishment enhancement is a “fact” that “increases the punishment range to a certain range above what is ordinarily prescribed for the indicted crime. It does not change the offense, or the degree of the offense. A defendant is entitled to written notice of a punishment-enhancement allegation, but it need not be pled in the indictment nor proven during the guilt-innocence phase of trial.

        (3) An element is a fact that is legally required for a factfinder to convict a person, and must be proven beyond a reasonable doubt at the guilt-innocence phase of trial. A prior DWI conviction is an element of Class A DWI, and a fact that is legally required for a factfinder to convict a person of Class A DWI. If the defendant has a prior DWI conviction, the statute enhances the degree of the offense, from a Class B misdemeanor DWI to a Class A misdemeanor DWI.

Pegues v. State, No. 01-16-00317-CR, 2017 Tex. App. LEXIS 2618 (Tex. App.—Houston [1st Dist.] March 28, 2017) (designated for publication)

        (1) In a review of the denial of a motion under Tex. Code Crim. Proc. Art. 64.03, the reviewing court affords almost total deference to the trial court’s determination of historical-fact issues and application-of-law-to-fact issues that turn on credibility and demeanor, but reviews de novo other application-of-law-to-fact issues. The ultimate question of whether a reasonable probability exists that exculpatory DNA tests would have caused appellant to not be convicted is an application-of-law-to-fact question that does not turn on credibility and demeanor and is therefore reviewed de novo.

        (2) The purpose of DNA testing under Tex. Code Crim. Proc. Art. 64.03 is to allow a convicted person to establish innocence through DNA test results that exclude the person as the perpetrator of the offense. Under Tex. Code Crim. Proc. Art. 64.03(a), a court may order postconviction DNA testing only if the court finds that: (1) identity was or is an issue in the case; and (2) the convicted person has established by a preponderance of the evidence “that the person would not have been convicted if exculpatory results had been obtained through DNA testing.”

        (3) The issue is not whether the State presented ample evidence of the defendant’s guilt, but whether exculpatory DNA test results that exclude the defendant as the source of the material would establish by a preponderance of the evidence that the defendant was not the assailant and thus would not have been convicted.

        (4) Under Tex. Code Crim. Proc. Art. 64.03(b), a defendant’s confession or other admission of guilt does not remove identity as an issue because a court is prohibited from finding that identity was not an issue solely because of a plea, confession, or admission.

April 2017 SDR – Voice for the Defense Vol. 46, No. 3

Voice for the Defense Volume 46, No. 3 Edition

Editor: Michael Mowla

From author Michael Mowla:

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

2. The case-opinions range from 5 to over 100 pages, so I focus on the most relevant parts to write summaries of one to four pages.

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

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

5. I use the following abbreviations: Supreme Court of the United States (“SCOTUS”); Fifth Circuit (“USCA5”); other federal appellate courts (“USCA[court number]”); Texas Court of Criminal Appeals (“TCCA”); Texas Courts of Appeals (“TCA[court number], i.e., the Texas Fifth Court of Appeals is “TCA5”); Certificate of Appealability (“COA”); IATC (“IATC”); findings of fact and conclusions of law (“FFCL”); motion to suppress (“MTS”); motion for continuance (“MFC”); grand jury (“GJ”); Drug-Free Zone (“DFZ”); and United States Sentencing Guidelines (“U.S.S.G.”)

6. A more complete and in depth recitation of the facts and analysis is provided in the online SDR which is published electronically.

Supreme Court of the United States

Buck v. Davis, ___ U.S. ___, No. 15-8049, 2017 U.S. LEXIS 1429 (U.S. Feb. 22, 2017):

        (1) In a case where a black defendant’s trial counsel (and not the State) introduced evidence that there was an “increased probability” that the defendant would commit future acts of violence, the defendant received ineffective assistance of trial counsel because: (1) trial counsel’s performance fell outside the bounds of competent representation, since it would be patently unconstitutional for the state to argue that a defendant is liable to be a future danger because of his race, and no competent defense attorney would introduce such evidence about his own client; and (2) the defendant was prejudiced because during trial, the focus was on future-dangerousness, and the fact that defendant is black (and more prone to violence per the evidence erroneously presented by trial counsel) “would never change,” so defendant could never prove lack of future-dangerousness.

        (2) Before proceeding on appeal, a state prisoner whose federal petition for a writ of habeas corpus under 28 U.S.C. § 2254 is denied must first obtain a COA from a circuit justice or judge, and it may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). At the COA stage, the only question is whether the applicant has shown that “jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” This requires the court to limit its examination [at the COA stage] to a threshold inquiry into the underlying merit of the claims and ask only “if the District Court’s decision was debatable.” Miller-El v. Cockrell, 537 U.S. 322, 327, 348 (2003). This threshold question should be decided without “full consideration of the factual or legal bases adduced in support of the claims.”

        (3) Under Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 133 S.Ct. 1911 (2013), a petitioner filing a federal writ under 28 U.S.C. 2254 may establish cause for procedural default if: (1) the state courts did not appoint counsel in the initial-review collateral proceeding or appointed counsel was ineffective under Strickland; and (2) the underlying claim is a substantial one (has some merit).

Beckles v. United States, 580 U.S. ___, No. 15-8544, 2017 U.S. LEXIS 1572 (U.S. March 6, 2017).

        (1) Unlike the ACCA, the U.S.S.G. do not fix the permissible range of sentences, but merely guide the exercise of a court’s discretion in choosing an appropriate sentence within the statutory range.

        (2) Although the U.S.S.G. were initially binding, in Booker, they were rendered advisory. The U.S.S.G. are “the starting point and the initial benchmark” for sentencing, but a court cannot rely exclusively on the U.S.S.G. range and must “make an individualized assessment based on the facts presented” and the other statutory factors.

        (3) Because the U.S.S.G. only guide sentencing discretion, the U.S.S.G. are not subject to a vagueness challenge under the Due Process Clause, and the residual clause in U.S.S.G. § 4B1.2(a)(2) is not void for vagueness.

Pena-Rodriguez v. Colorado, 580 U.S. ___, No. 15-606, 2017 U.S. LEXIS 1574 (U.S. March 6, 2017).

        (1) The SCOTUS held that where a juror makes a clear statement that indicates he relied on racial stereotypes or animus to convict a defendant, the Sixth Amendment requires that the no-impeachment rule under Rule 606(b) give way to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.

        (2) “[N]ot every offhand comment indicating racial bias or hostility will justify setting aside the no-impeachment bar [of Rule 606(b)] to allow further judicial inquiry . . . [F]or the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict. And to qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror’s vote to convict. Whether this threshold showing is satisfied is at the substantial discretion of the trial court under the circumstances, including the content and timing of the alleged statements, and the reliability of the proffered evidence.

Rippo v. Baker, 580 U.S. ___, No. 16-6316, 2017 U.S. LEXIS 1571 (U.S. March 6, 2017) (per curiam).

        (1) The Due Process Clause may demand recusal even when a judge has no actual bias, so petitioner is entitled to discovery on the issue.

        (2) Recusal is required when objectively speaking, “the probability of actual bias on the part of the judge . . . is too high to be constitutionally tolerable.”

United States Court of Appeals for the Fifth Circuit

United States v. Buck, ___ F.3d ___, No. 15-20697, 2017 U.S. App. LEXIS 1814 (5th Cir. Feb. 1, 2017):

        (1) When a trial is terminated over defense objection, retrial is prohibited absent “manifest necessity.” Retrial of a case following a mistrial on defense-motion by the defense is allowed unless the defense motion was prompted by government-conduct that was “intended to goad.” Goading is narrowly defined as “intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause,” so “gross negligence by the prosecutor, or even intentional conduct that seriously prejudices the defense, is insufficient”;

        (2) A Brady violation requires: (1) evidence withheld by the government be either exculpatory or impeaching, and (2) prejudice;

        (3) When imposing sanctions for discovery violations, courts must consider: (1) the reasons why disclosure was not made; (2) prejudice to the opposing party; (3) feasibility of curing the prejudice with a continuance; and (4) any other relevant circumstances;

        (4) The Hobbs Act’s reference to actual or threatened force or violence satisfies the standard needed for a crime of vio­lence under § 924(c)(3)(A);

        (5) The Hobbs Act does not require specific intent or knowledge to affect interstate commerce;

        (6) U.S.S.G. § 2B3.1(b)(4)(A) allows enhancement “if any person was abducted to facilitate commission of the offense or to facilitate escape.” “Abducted” means “a victim was forced to accompany an offender to a different location,” which includes being forced from one part of a building to another. “Different location” is interpreted with flexibility;

        (7) Restitution may be ordered only against those convicted of crimes that gave rise to the restitution;

        (8) A sentence imposed within statutory limits may violate the Eighth Amendment if it “is so disproportionate to the crime committed that it shocks human sensibilities,” but even a very long sentence does not shock human sensibilities if it is consistent with other decisions of the USCA5; and

        (9) Introduction of a statement to a jailhouse snitch does not violate the Sixth Amendment right to counsel and their testimony is not inherently unreliable.

United States v. Cruz-Romero, ___ F.3d ___, No. 15-51181, 2017 U.S. App. LEXIS 2272 (5th Cir. Feb. 8, 2017):

        (1) When considering de novo review of whether the government breached a plea agreement, the court asks “whether the government’s conduct was consistent with the parties’ reasonable understanding of the agreement.”

        (2) The defendant has the burden of proving the facts constituting a breach of the agreement by a preponderance of the evidence;

        (3) Merely stipulating to some basic facts in the plea agreement obtained from another source or providing information to someone other than the government does not satisfy the safety-valve provision of 18 U.S.C. § 3553(f)(5); and

        (4) Where a defendant waives his right to appeal his conviction or sentence on any ground other than ineffective assistance of counsel or prosecutorial misconduct and one of these grounds does not exist, the appeal must be dismissed.

United States v. Monsivais, ___ F.3d ___, No. 15-10357, 2017 U.S. App. LEXIS 1910 (5th Cir. Feb. 2, 2017).

        (1) Under Terry v. Ohio, 392 U.S. 1 (1968), officers may briefly detain a person for investigative purposes if they can point to “specific and articulable facts” that give rise to reasonable suspicion that the person has committed, is committing, or is about to commit a crime.

        (2) “Reasonable suspicion” is more than a “mere hunch,” and it need not rise to the level of probable cause. The officer must be able to point to specific and articulable facts that, taken together with rational inferences from those facts, reasonably warrant an intrusion into the privacy of the detained individual.

        (3) A court must examine the “totality of the circumstances” considering the officer’s training and experience, and should uphold the stop only if it finds that the officer had a “particularized and objective basis” for suspecting legal wrong­doing.

        (4) Nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. However, nervousness alone is not sufficient to create reasonable suspicion of criminal activity.

        (5) The fact that a person places his hands in his pockets alone is not reasonable suspicion.

        (6) The Constitution does not command individuals to enthusiastically greet law enforcement when they make a “welfare-check.” Unless a police officer has reasonable suspicion to conduct an investigatory stop, an individual has a right to ignore the police and go about his business.

United States v. Huor, ___ F.3d ___, No. 15-50174, 2017 U.S. App. LEXIS 4287 (5th Cir. March 10, 2017).

        (1) Under 18 U.S.C. § 3553(a)(1)–(2), conditions of supervised release must be reasonably related to: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need to afford adequate deterrence to criminal conduct; (3) the need to protect the public from further crimes of the defendant; or (4) the need to provide the defendant with needed training, medical care, or other correctional treatment in the most effective manner. Supervised-release conditions “cannot involve a ‘greater deprivation of liberty than is reasonably necessary’ to achieve the statutory goals.”

        (2) A district court cannot delegate the duty of determining whether a condition of supervised release will be imposed at all, but must “retain and exercise ultimate responsibility” for that sentencing decision. This prohibits a special condition that requires a defendant to “follow all lifestyle restrictions or treatment requirements” imposed by the therapist, with the court not maintaining supervisory power. A district court also may not act as an “automaton” upon receiving findings of a professional, and must instead retain supervisory power over a probationer in a meaningful way. A district court’s role must not be reduced to the clerical, and a professional’s role must not be elevated to the judicial.

        (3) Special conditions of supervised release must be tailored to the individual defendant and may not be based on boilerplate conditions imposed as a matter of course in a particular district.

        (4) Defendants have a constitutional right to be present at their sentencing. When there is a conflict between a written sentence and an oral pronouncement, the oral pronouncement controls.

        (5) Standard conditions of supervised release need not be orally pronounced, but special conditions must be so that a defendant has an opportunity to object.

Texas Court of Criminal Appeals

Lake v. State, ___ S.W.3d ___, No. PD-0196-16, 2017 Tex. Crim. App. LEXIS 164 (Tex. Crim. App. Feb. 8, 2017) (plurality opinion), Yeary, J. concurring, Alcala, J. dissenting).

        (1) In Arizona v. Fulminante, 499 U.S. 279, 309–310 (1991), the SCOTUS listed the following error as structural and not subject to harm analysis: total deprivation of the right to counsel at trial, impartial judge, unlawful exclusion of members of the defendant’s race from a grand jury, the right to self-representation at trial, and the right to public trial.

        (2) For federal constitutional error that is not structural, the applicable harm analysis requires the appellate court to reverse unless it determines beyond a reasonable doubt that the error did not contribute to the defendant’s conviction or punishment.

        (3) In Herring v. New York, 422 U.S. 853 (1975), the SCOTUS held that the right to the assistance of counsel guaranteed by the Sixth Amendment was violated when a trial court re­fused to allow counsel to make a closing argument at the guilt phase of trial.

        (4) The refusal to allow defense counsel to make a closing argument at a community-supervision revocation proceeding is Herring error, which is not structural.

Editor’s Note:

        (1) When confronted with a plurality opinion in federal court, under Marks v. United States, 430 U.S. 188, 193 (1977), “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Jus­tices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . .’” So, in Pennsylvania v. Muniz, 496 U.S. 582 (1990) (Miranda issue), four justices agreed on the “majority” opinion, but five justices agreed on a single rationale explaining the result, so that single rational is precedent.

        (2) However, plurality opinions are not binding in Texas. See Cooper v. State, 67 S.W.3d 221, 224 (Tex. Crim. App. 2002) (a plurality opinion has limited or no precedential value); Vernon v. State, 841 S.W.2d 407, 410 (Tex. Crim. App. 1992) (a plurality opinion does not have “significant precedential value”); State v. Hardy, 963 S.W.2d 516, 519 (Tex. Crim. App. 1997) (“we may look to ‘plurality’ opinions for their persuasive value”); and Pearson v. State, 994 S.W.2d 176, 177 n.3 (Tex. Crim. App. 1999) (plurality opinions are not binding precedent)

Moore v. State, ___ S.W.3d ___, No. PD-1634-14, 2017 Tex. Crim. App. LEXIS 167 (Tex. Crim. App. Feb. 8, 2017, op. on reh.):

        Tex. Family Code § 54.02(j)(4)(A) requires the State to show “that for a reason beyond the control of the state it was not practicable to proceed in juvenile court before the 18th birthday . . .” Here, “the state” means law enforcement and the prosecution. Further, the court of appeals did not err by failing to consider the factors for oppressive delay because the state failed to show by a preponderance of the evidence that for a reason beyond the control of the State, it was not practicable to proceed in juvenile court before Appellant’s 18th birthday. Thus, 54.02(j)(4)(A)’s failure to require consideration of the factors for oppressive delay does not violate the Separation of Powers Clause.

Ex parte Medrano, ___ S.W.3d ___, No. WR-78,123-01, 2017 Tex. Crim. App. LEXIS 184 (Tex. Crim. App. Feb. 8, 2017) (Alcala dissenting) (Richardson dissenting)

        Editor’s note: the dissenting opinions in this case are noteworthy (and correct) because in a death-penalty case, if there is a material conflict between a trial court’s findings of fact and conclusions of law and the record, the case should be remanded to the trial court for resolution of those conflicts and possibly a live evidentiary hearing.

Obella v. State, ___ S.W.3d ___, No. PD-1032-16, 2017 Tex. Crim. App. LEXIS 170 (Tex. Crim. App. Feb. 8, 2017).

        (1) Under Tex. Rule App. Proc. 21.6, a motion for new trial must be “presented” to the trial court within 10 days of its filing. “Presentment” requires the defendant to give the trial court actual notice that he timely filed a motion for new trial and requested a hearing.

        (2) It is the duty of the appellate courts to ensure that a claim is preserved in the trial court before addressing its merits.

        (3) Under Tex. Rule App. Proc. 47.1, a court of appeals must issue a written opinion “that addresses every issue raised and necessary to final disposition of the appeal.”

Ex parte Thuesen, ___ S.W.3d ___, No. WR-81,584-01, 2017 Tex. Crim. App. LEXIS 185 (Tex. Crim. App. Feb. 8, 2017) (per curiam):

        (1) Under Tex. Gov. Code § 24.002, if a district judge determines on the judge’s own motion that he should not sit in a case because he is disqualified or otherwise should recuse himself, the judge shall enter a recusal order, request that the presiding judge assign another judge to sit, and take no further action in the case except for good cause stated in the order in which the action is taken.

        (2) Interim or ancillary orders made by a regional presiding judge regarding the recusal of a trial judge or the reinstatement or modification of judicial authority following a recusal must be made in writing, signed by the presiding judge, and entered of record in the case. Oral “directives” communicated off the record to another judge will not suffice to establish judicial authority to preside over a case.

        (3) Although it is common that communications from a court such as notice of setting, pretrial motions, and trial are communicated orally or by letter, decisions affecting a judge’s authority to preside over a case are fundamentally different than communications concerning pretrial settings and other routine matters, and must be in writing in the form of orders.

White v. State, ___ S.W.3d ___, No. PD-1596-15, 2017 Tex. Crim. App. LEXIS 211 (Tex. Crim. App. Feb. 15, 2017):

        (1) The DFZ provisions under Tex. Health & Safety Code § 481.134(d) do not contain any culpable mental state requiring that a defendant know he is within a DFZ.

        (2) If a person is already engaged in the unlawful sale of con­tra­band, he should have to bear the risk that if he does so within a DFZ, the gravity of his offense will be elevated regardless of whether he was aware he was in a DFZ.

Wolfe v. State, ___ S.W.3d ___, No. PD-0292-15, 2017 Tex. Crim. App. LEXIS 215, (Tex. Crim. App. Feb. 15, 2017).

        (1) Under Tex. Rule Evid. 702, “a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.”

        (2) The focus “is to determine whether the evidence has its basis in sound scientific methodology such that testimony about ‘junk science’ is weeded out.” Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011).

        (3) If the Kelly factors weigh in favor of the admission of expert testimony, a lack of universal agreement does not render the testimony “junk science.”

Roy v. State, ___ S.W.3d ___, No. PD-1455-15, 2017 Tex. Crim. App. LEXIS 212 (Tex. Crim. App. Feb. 15, 2017).

        (1) To determine whether a defendant is entitled to an instruction on a lesser-included offense, the two-part analysis is: (1) is the requested instruction a lesser-included offense of the charged offense; and (2) if it is, based on the admitted evidence, could a jury rationally find that if the defendant is guilty, he is guilty of only the lesser-included offense?

        (2) An instruction on a lesser-included offense is required if more than a scintilla of evidence establishes “that the lesser-included offense is a valid, rational alternative to the charged offense.”

        (3) The reviewing court considers all admitted evidence without regard to the evidence’s credibility or potential contradictions or conflicts.

Crawford v. State, ___ S.W.3d ___, No. PD-1283-15, 2017 Tex. Crim. App. LEXIS 210 (Tex. Crim. App. Feb. 15, 2017) (Richardson concurring) (Walker dissenting)

        (1) Defendant was convicted of failure-to-register as a sex offender, and had two prior felony convictions for the same. Article 62.102(c) (specific provision) addresses only how to enhance a subsequent sex-offender-registration offense with a single prior sex-offender-registration felony offense, while Tex. Penal Code § 12.42(d) (general provision) allows a sentence of 25–99 years or life.

        (2) The TCCA has never held that the existence of Article 62.102(c) means that punishment for a sex-offender-registration offense can never be enhanced under any other provision.

Deen v. State, ___ S.W.3d ___, No. PD-1484-15, 2017 Tex. Crim. App. LEXIS 214 (Tex. Crim. App. Feb. 15, 2017):

        If a defendant is “illegally” sentenced to a term that is less than the statutory minimum for the offense, estoppel by judgment prevents the defendant who voluntarily accepts the benefits of the judgment from denying the validity or propriety of any part of the judgment.

Johnson aka Kimp v. State, ___ S.W.3d ___, No. PD-0699-16, 2017 Tex. Crim. App. LEXIS 213 (Tex. Crim. App. Feb. 15, 2017):

        (1) Because not all knives are manifestly designed, made, or adapted for inflicting serious bodily injury or death, the evidence is sufficient to support a deadly-weapon finding only if the jury could have rationally found that the defendant used the knife in such a way, or intended to use the knife in such a way, that it can cause serious bodily injury or death.

        (2) For a deadly-weapon finding, a defendant need not have inflicted harm. Words and other threatening actions, including proximity to the victim; the weapon’s ability to inflict serious bodily injury or death, including the size, shape, and sharpness of the weapon; and the way the defendant used the weapon are factors.

        (3) A butter knife could be a deadly weapon because the blade is at least a couple of inches long, so it can cause serious bodily injury or death.

State v. Jarreau, ___ S.W.3d ___, No. PD-0840-16, 2017 Tex. Crim. App. LEXIS 219 (Tex. Crim. App. March 1, 2017)

        (1) Under Tex. Code Crim. Proc. Art. 21.11, an indictment is sufficient if it charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment.

        (2) An indictment is sufficient if it tracks the statute.

        (3) To determine the adequacy of an indictment’s allegations, (1) a court must identify the elements of an offense; and (2) if an element of the offense describing an act or omission by the defendant has been defined by the Legislature, a court must ask whether the statute provides “alternative manners or means in which the act or omission can be committed.” If so, the pleading “will supply adequate notice only if, in addition to setting out the elements of an offense, it also alleges the specific manner and means of commission that the State intends to rely on at trial.”

Petetan v. State, ___ S.W.3d ___, No. AP-77,038, 2017 Tex. Crim. App. LEXIS 286 (Tex. Crim. App. March 8, 2017) (Alcala, J. dissenting)

        (1) Under Briseno, a demonstration of mental retardation that would exempt an offender from execution requires showing the following by a preponderance of the evidence: (1) significantly subaverage general intellectual functioning, generally shown by an IQ of 70 or less; (2) accompanied by related and significant limitations in adaptive functioning; and (3) the onset of the above two characteristics having occurred before the age of 18. In evaluating the first prong, the TCCA takes into consideration the standard margin of error for IQ tests, which is generally five points.

        (2) In determining whether related and significant limitations in adaptive functioning exist, courts look to standardized test scores but should also look to the following (seven Briseno) factors:

           i.  Did those who knew the person best during the developmental stage—his family, friends, teachers, employers, authorities—think he was mentally retarded at that time, and, if so, act in accordance with that determination?

          ii.  Has the person formulated plans and carried them through or is his conduct impulsive?

         iii.  Does his conduct show leadership or does it show that he is led around by others?

         iv.  Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable?

          v.  Does he respond coherently, rationally, and on point to oral or written questions or do his responses wander from subject to subject?

         vi.  Can the person hide facts or lie effectively in his own or others’ interests?

        vii.  Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?

        Editor’s Note: this is a 100-page opinion of an appeal of a death-penalty case with many issues that are commonly raised in such appeals. I focus on the facts and the intellectual-disability issue under Briseno and Judge Alcala’s dissent, which I believe is correct. On June 6, 2016, the SCOTUS granted the certiorari petition of Texas death row inmate Bobby Moore regarding this question: “Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida, 134 S.Ct. 1986 (2014), and Atkins, 536 U.S. 304 (2002), to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.” See Ex parte Moore, 470 S.W.3d 481 (Tex. Crim. App. 2015), cert. granted, Moore v. Texas, No. 15-797, 2016 U.S. LEXIS 3754 (June 6, 2016). More was argued on November 29, 2016, and an opinion is forthcoming.

Salinas v. State, ___ S.W.3d ___, No. PD-0170-16, 2017 Tex. Crim. App. LEXIS 284 (Tex. Crim. App. March 8, 2017)

        (1) Texas Local Gov. Code § 133.102 is unconstitutional on its face as to the collection of fees into accounts that have no relation to legitimate criminal justice purposes.

State v. Zuniga, ___ S.W.3d ___, No. PD-1317-15, 2017 Tex. Crim. App. LEXIS 285 (Tex. Crim. App. March 8, 2017).

        (1) The specific identity of the tampered-with evidence is not an element of Tex. Penal Code § 37.09, the elements of which are: (1) a person alters, destroys, or conceals; (2) any record, document, or thing; (3) with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding; (4) knowing that an investigation or official proceeding is pending or in progress.

        (2) Tex. Penal Code § 37.09 contains two culpable mental states: An actor must know his action would impair the item as evidence, and he must act with the intent to impair its availability as evidence. The “evidence” must be a record, document, or thing, though it does not require that “thing” be, in and of itself, of a criminal nature.

Texas Courts of Appeals

State v. Cortez, ___ S.W.3d ___, No. 07-15-00196-CR, 2017 Tex. App. LEXIS 999 (Tex. App. Amarillo, Feb. 3, 2017).

        (1) Under Tex. Transp. Code § 545.058(a), person may drive on an improved (paved) shoulder if necessary and may be done safely, but only under seven circumstances: (1) to stop, stand, or park, (2) to accelerate before entering the main traveled lane of traffic, (3) to decelerate before making a right turn, (4) to pass another vehicle that is slowing or stopped on the main traveled portion of the highway, disabled, or preparing to make a left turn, (5) to allow another vehicle traveling faster to pass, (6) as per­mitted or required by an official traffic-control device, or (7) to avoid a collision.

        (2) Under Tex. Transp. Code § 541.302(15), “shoulder” means the portion of a highway: (1) adjacent to the roadway, (2) de­signed or ordinarily used for parking, (3) distinguished from the roadway by different design, construction, or marking, and (4) not intended for normal vehicular travel.

        (3) A person drives on an improved shoulder by crossing the “fog line” separating the road and shoulder and not merely touching it.

        (4) Heien v. North Carolina, 135 S.Ct. 530, 534–536 (2014), held that: (1) searches and seizures based on mistakes of fact can be reasonable; and (2) an objectively reasonable mistake of law can give rise to the reasonable suspicion necessary to uphold the seizure.

        (5) Heien does not apply where an officer engages in “a sloppy study of the laws he is duty-bound to enforce.”

Deleon v. State, ___ S.W.3d ___, No. 11-15-00143-CR, 2017 Tex. App. LEXIS 1176 (Tex. App. Eastland, Feb. 10, 2017).

        (1) An exception to the warrant-requirement is exigent circumstances, under which a warrantless search of a person is rea­son­able when: (1) an officer has probable cause and (2) an ex­i­gency exists that requires an immediate search.

        (2) Three types of exigent circumstances justify a warrantless search: (1) providing aid or assistance to persons whom the officer reasonably believes needs assistance; (2) protecting officers from persons whom they reasonably believe to be present, armed, and dangerous; and (3) preventing the destruction of evidence or contraband. A warrantless search is justified under the exigent circumstances exception only when the officer reasonably believed that removal or destruction of evidence was im­minent.

        (3) Marihuana odor alone can provide sufficient probable cause for a warrantless search of one’s person or vehicle.

Knott v. State, ___ S.W.3d ____, No. 08-14-00235-CR, 2017 Tex. App. LEXIS 1193 (Tex. App. El Paso Feb. 10, 2017).

        (1) To determine whether a defendant’s due process rights were violated by the admission of a witness’ identification testimony that was allegedly tainted by a suggestive pretrial identification procedure, a court: (1) examines whether the identification procedure itself was impermissibly suggestive; and (2) if it was, whether the suggestive nature of the procedure gave rise to the substantial likelihood of irreparable misidentification.

        (2) When considering whether the suggestive nature of the procedure gave rise to the substantial likelihood of irreparable misidentification, even if an unnecessarily suggestive identification procedure was used, the witness’ identification testimony may be admissible if there is evidence that the identification was the product of an independent source (observations made at the time of the offense).

        (3) To determine whether an independent source exists, a court considers the totality of the circumstances, relying on: (1) the witness’ opportunity to view the suspect at the time of the offense; (2) the degree of attention the witness focused on the suspect at the time of the offense; (3) the accuracy of any descriptions provide by the witness prior to the allegedly suggestive identification procedure; (4) the witness’ level of certainty of his identification; and (5) the time between the crime and the identification procedure. The defendant bears the burden to show by clear and convincing evidence that the in-court identification was unreliable.

Mayfield v. State, ___ S.W.3d ___, No. 07-14-00055-CR, 2016 Tex. App. LEXIS 13912 (Tex. App. Amarillo, Feb. 9, 2017).

        (1) Under Tex. Crim. Proc. Code Art. 33.03, when a defendant voluntarily absents himself after pleading to the indictment, or after the jury has been selected, the trial may proceed to its conclusion.

        (2) Under Tex. Crim. Proc. Code Arts. 46B.003 & 46B.024, a pretrial competency exam requires a determination of whether a defendant lacks capacity to understand the proceedings, charges, and potential consequences can disclose pertinent facts to his attorney, engage in reasoned choices, exhibit appropriate courtroom behavior, or testify.

Ex parte Rodriguez, ___ S.W.3d ___, No. 04-16-00337-CR, 2017 Tex. App. LEXIS 1251 (Tex. App. San Antonio Feb. 15, 2017)

        (1) Under Waller v. Florida, 397 U.S. 387, 393–395 (1970), the Double Jeopardy Clause does not bar successive prosecutions brought by different sovereigns (i.e., one brought by the state and another brought by the federal government). A municipality, however, is not a separate “sovereign” from the state for purposes of double jeopardy, so a defendant cannot be criminally prosecuted twice “for the same alleged crime” in a municipal court and then in a state court.

Ex Parte S.E.W., ___ S.W.3d ___, No. 04-16-00255-CV, 2017 Tex. App. LEXIS 1248 (Tex. App. San Antonio Feb. 15, 2017).

        (1) When DPS appeals the granting of a petition for expunction, it is considered a restricted appeal. To prevail on a re­stricted appeal, the appellant must prove: (1) the notice of the restricted appeal was filed within six months after the judgment was signed; (2) the appellant was a party to the underlying lawsuit; (3) the appellant did not participate in the hearing that resulted in the judgment complained of, and did not timely file any postjudgment motions or requests for FFCL; and (4) error is apparent on the face of the record. Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014).

        (2) Under Tex. Code Crim. Proc. Art. 55.01(a)(2), a person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court-ordered community supervision under Article 42.12 for the offense, unless the offense is a Class C misdemeanor (expunction statute is arrest-based).

Straight v. State, ___ S.W.3d ___, No. 14-15-00801-CR, 2017 Tex. App. LEXIS 1341 (Tex. App. Houston [14th Dist.] Feb. 16, 2017)

        (1) Under Sullivan v. Louisiana, 508 U.S. 275 (1993), an unconstitutional “reasonable doubt” instruction is a “structural defect” that does not require harm analysis.

        (2) Even if the trial court paraphrases while reading parts of the charge, if the trial court thoroughly discusses the State’s burden of proof, emphasized that appellant did not have to prove anything, and highlighted the fact that the jury could not consider appellant’s decision not to testify for any reason, there is not an unconstitutional “reasonable doubt” instruction.

Willis v. State, ___ S.W.3d ___ No. 06-16-00040-CR, 2017 Tex. App. LEXIS 1110 (Tex. App. Texarkana, Feb. 9, 2017):

        Although Tex. Code Crim. Proc. Art. 27.13 provides “A plea of guilty or nolo contendere in a felony case must be made in open court by the defendant in person,” substantial compliance with Article 27.13 occurs when a defendant in open court acknowledges the plea as his, regardless of whether an oral plea is entered. Even if the trial court does not secure the defendant’s spoken plea of guilty and does not interact with the defendant at the time of the plea, if the facts point to defendant’s voluntary desire to plead guilty to the charges, the trial court has complied with the statute.

Hayes v. State, ___ S.W.3d ___, No. 01-15-00982-CR, 2017 Tex. App. LEXIS 1889 (Tex. App. Houston [1st Dist.] March 7, 2017)

        (1) Under Tex. Code Crim. Proc. Art 36.09, a trial court may jointly try defendants for the same offense, and it may order a severance if a joint trial would cause prejudice to a defendant. A trial court cannot provide for a hybrid trial where parts of the trial are joint and parts of the trial are severed.

        (2) Where a trial commences as a joint trial and concludes as a joint trial, if all interim dates are portions of the joint trial, and all defendants have the right to be present during the interim dates.

Martinez v. State, ___ S.W.3d ___, No. 13-15-00295-CR, 2017 Tex. App. LEXIS 1946 (Tex. App. Corpus Christi March 9, 2017)

        (1) A claim of theft made under a contract requires proof of more than an intent to deprive the owner of property and subsequent appropriation of the property. The State must prove that the appropriation was a result of a false pretext, or fraud, and the evidence must show that the defendant intended to deprive the owner of the property at the time the property was taken. In reviewing the sufficiency of the evidence, a court must look at events occurring before, during, and after the commission of the offense and may rely on actions of the defendant that show an understanding and common design to do the prohibited act.

        (2) A contractor may be found guilty of theft if, at some point after the formation of the contract, he formulates the req­ui­site intent to deprive and appropriates additional property by deception—that is, he induces his customer to make further payment on the contract while no longer intending to perform, or at least knowing that he will not. The fact that partial or even substantial work has been done on a contract will not invariably negate either the intent to deprive or the deception necessary to establish the unlawfulness of the initial appropriation.

        (3) Under Tex. Code Crim. Proc. Art. 12.01(4)(A), the statute of limitations for felony theft is five years from the date of the commission of the offense.

        (4) Aggregate theft is an offense involving continuing conduct that ends with the last theft.

        Editor’s Note: The defendant was an attorney who admitted during trial that he deposited everything into his IOLTA account: loan proceeds, settlements, client payments, and his personal monies, then paid for everything out of the same IOLTA account. The ethical, accounting, and tax problems presented by an attorney in private practice using only one account for all monetary transactions are pronounced. Attorneys are required to keep client funds (including unearned fees) in an IOLTA account separate from all other funds. And, it is critical that you also keep your law-firm funds (i.e., earned fees transferred from IOLTA to be used to pay law-firm expenses) in a business checking account separate from your private funds (i.e., earned fees and non-law-firm-related monies for personal expenses), and pay law-firm expenses using a business checking account and personal expenses using a private checking account. Comingling these funds in a single account is an invitation to tax and accounting headaches.

Mendez v. State, ___ S.W.3d ___, No. 01-15-00187-CR (Tex. App. Houston [1st Dist.] Feb. 23, 2017).

        (1) A knife is not a deadly weapon per se, so the state must prove that a knife was used in a manner that can cause death or serious bodily injury.

        (2) When asserting a self-defense claim, the defendant has the initial burden to produce some evidence to support a claim of self-defense. Once the defendant produces some evidence, the burden shifts to the State, which bears the ultimate burden of persuasion to disprove the raised defense. To convict a defendant of murder after he raised self-defense, the State must prove the elements of the offense beyond a reasonable doubt and persuade the jury beyond a reasonable doubt that the defendant did not kill in self-defense.

State v. T.S.N., ___ S.W.3d ___, No. 05-15-01488-CV, 2017 Tex. App. LEXIS 1464 (Tex. App. Dallas Feb. 22, 2017).

        (1) Tex. Code Crim. Proc. Art. 55.01 is not merely “arrest-based” but is based on arrests made during single criminal episodes. Article 55.01(a)(1)(A) provides that a person who is tried and acquitted of the offense for which he was arrested is entitled to have all records and files relating to the “arrest” expunged. Thus, the right to expunction is linked to the “offense” in question. While a person may be “arrested” for multiple “offenses,” and may be “charged” and tried for multiple “offenses” in a single trial, where the arrest includes offenses for which the defendant could not be charged and tried in the aggregate, the arrest—and any subsequent expunction—stands or falls on each unrelated charge.

Ex parte Uribe, ___ S.W.3d ___, No. 02-16-00372-CR, 2017 Tex. App. LEXIS 2040 (Tex. App. Fort Worth March 9, 2017).

        (1) To determine the voluntariness of a guilty plea when there are immigration consequences, a court must consider: (1) evidence of the applicant’s guilt; (2) whether the applicant presented evidence of any factual or legal defenses to the charge; (3) whether the applicant presented evidence indicating that the immigration consequences of her plea had been her “paramount concern”; and (4) the circumstances of the plea deal compared to the penalties the applicant risked by going to trial.

Whitfield v. State, ___ S.W.3d ___, No. 14-15-00820-CR, 2017 Tex. App. LEXIS 2013 (Tex. App. Houston [14th Dist.] March 9, 2017)

        (1) Under Paredes v. State, 462 S.W.3d 510 (Tex. Crim. App. 2015), where an expert testifies in court to conclusions that are her own (testimonial evidence) based on raw data produced by others that by itself means nothing (nontestimonial evidence), the Confrontation Clause is not violated because the raw data merely provides the basis for the opinion the expert developed. The expert’s testimony is not used as a substitute for out-of-court testimony, and the expert is more than a surrogate for a non-testifying analyst’s report because without the testifying expert’s independent analysis, the data stands for nothing.

Viscaino v. State, ___ S.W.3d ___, No. 08-14-00239-CR, 2017 Tex. App. LEXIS 1636 (Tex. App. El Paso Feb. 24, 2017)

        (1) Prosecutorial misconduct must be serious and continuing such that it undermines the reliability of the fact-finding process and results in a deprivation of fundamental fairness and due process of law.

        (2) Under Tex. Rule Evid. 701, a lay witness may offer opinion testimony if the opinion is: (1) rationally based on the perception of the witness, and (2) helpful to a clear understanding of the witness’s testimony or the determination of a fact issue in the case.

        (3) The proponent of lay-opinion testimony is required to establish that the witness has personal knowledge of the events upon which his opinion is based.

March 2017 SDR – Voice for the Defense Vol. 46, No. 2

Voice for the Defense Volume 46, No. 2 Edition

Editor: Michael Mowla

From author Michael Mowla:

1. I summarize each case in a manner that allows readers to generally use this SDR instead of reading every case. However, if you determine that a summarized case may be relevant to one of your cases, I urge you to read the case and not rely solely upon these summaries.

2. Facts, further analysis and depth is provided in the electronic version of the SDR.

3. Note that I use the following abbreviations: Supreme Court of the United States (“SCOTUS”); Fifth Circuit (“USCA5”); other federal appellate courts (“USCA[court number]”); Texas Court of Criminal Appeals (“TCCA”); and the Texas Courts of Appeals (“TCA[court number], i.e., the Texas Fifth Court of Appeals is “TCA5”).

Supreme Court of the United States

Bravo-Fernandez v. United States, ___ U.S. ___, 137 S.Ct. 352 (Nov. 29, 2016).

        If a jury acquits on one count and convicts on another, and the convicted-count is overturned on appeal, because issue-preclusion is predicated on the assumption that the jury acted rationally, whether the overturned-count is subject to the Double Jeopardy Clause depends on whether the defendant can meet the burden of demonstrating that the jury resolved in their favor the question whether they violated the overturned-count.

United States Court of Appeals for the Fifth Circuit

United States v. Chapple, ___ F.3d ___, No. 15-20662, 2017 U.S. App. LEXIS 1667 (5th Cir. Jan. 30, 2017).

        18 U.S.C. § 3582 cannot be applied to a discharged sentence to reduce overall time spent in prison on consecutive sentences unless the defendant can show that he is subject to a “continuous stream” of imprisonment on multiple, consecutive sentences because he received the sentences at the same time. But, if he received the consecutive sentences on separate occasions, he is not subject to a “continuous stream” of imprisonment.

United States v. Lockhart, 844 F.3d 501, 2016 U.S. App. LEXIS 23254 (5th Cir. 2016).

        A constructive amendment to the indictment occurs if in the jury charge, language is included that materially modifies an essential element of the indictment, such as transforming the offense with which the indictment charged the defendant from one requiring a specific mens rea into a strict liability offense.

United States v. Mendez-Henriquez, ___ F.3d ___, No. 15-41551, 2017 U.S. App. LEXIS 1669 (5th Cir. Jan. 30, 2017).

        Whether an offense merits crime-of-violence (“COV”) sentencing-enhancement depends on whether the statute that constitutes a COV is divisible or indivisible. A statute is in­di­visible if it contains “a single set of elements to define a sin­gle crime.” Here, the court must use a categorical analysis in which it lines up the statute’s elements alongside those of the generic offense and sees if they match. If they match, or if the generic offense is broader, the enhancement applies. A statute is divisible if it “lists elements in the alternative, and thus defines multiple crimes.”

United States v. Mendoza-Velasquez, ___ F.3d ___, No. 16-40194, 2017 U.S. App. LEXIS 1666 (5th Cir. Jan. 30, 2017).

        If a defendant fails to object to error before the district court, review is based on plain error. To show reversible plain error, the defendant must show: (1) an error (2) that is clear or obvious, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings. To show this fourth prong, he must show that the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.”

United States v. Morgan, ___ F.3d ___, No. 15-30420, 2017 U.S. App. LEXIS 622 (5th Cir. Jan. 12, 2017).

        Under Teague v. Lane, 489 U.S. 288, 301 (1989), a new constitutional rule that may be applied retroactively is one that “breaks new ground or imposes a new obligation on the States or the Federal Government.” In Descamps, the SCOTUS held that “sentencing courts may not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements.” Because the ruling in Descamps did not break new ground or impose a new obligation on the States or the Federal Government, it cannot be applied retroactively.

Santillana v. Upton, ___ F.3d ___, No. 15-10606, 2017 U.S. App. LEXIS 747 (5th Cir. Jan. 16, 2017).

        New SCOTUS decisions interpreting federal statutes that substantively define criminal offenses automatically apply retroactively because they “necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal.” This is different than a case that has not yet been held to be retroactive. Burrage is retroactive because its holding goes not to “who decides a given question (judge or jury) or what the burden of proof is (preponderance versus proof beyond a reasonable doubt . . . questions that are the province of Apprendi and Alleyne,” but rather “what must be proved.” And it is a substantive decision narrowing the scope a federal criminal statute, Burrage applies retroactively to cases on collateral review.

Shore v. Davis, ___ F.3d ___, No. 16-70008, 2017 U.S. App. LEXIS 301 (5th Cir. Jan. 6, 2017).

(1) a federal court may not grant habeas relief unless the petitioner has first exhausted state remedies with respect to the claim at issue;

(2) under 28 U.S.C. § 2254(d), a habeas petitioner must prove that the state court’s constitutional adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established SCOTUS law; or “resulted in a decision that was based on an unreasonable determination of the facts (considering) the evidence pre­sented in the State court proceeding,” and a state-court decision is contrary to clearly established SCOTUS law if it “identifies the correct governing legal rule from [SCOTUS] cases but unreasonably applies it to the facts of the particular state prisoner’s case” or “extends a legal principle from [SCOTUS] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply”; and

(3) when ruling on a 2254 petition, a district court must defer to the factual findings of the state habeas court, and is limited to the record before the state court. And if a state habeas court decision is unaccompanied by explanation, the district court must “determine what arguments or theories . . . could have supported the state court’s decision,” and then ask “whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision” of the SCOTUS.

United States v. Solano-Hernandez, ___ F.3d ____, No. 15-41582, 2017 U.S. App. LEXIS 1458 (5th Cir. Jan. 26, 2017).

        To determine whether a prior offense is a crime-of-violence for purposes of enhancement, if the state statute is divisible (having “multiple alternative elements), the court applies the modified categorical approach, which permits the court to look to a limited class of documents (indictment, judgment, or plea agreement) to determine what crime with what elements the defendant was convicted of. Under the modified categorical approach, although judgments are appropriate records to consider for establishing the fact of conviction or to show which part of the statute a defendant was convicted of, if they contain narrowing facts, for a court to use those facts in the modified categorical approach, the facts must be “explicit factual finding[s] by the trial judge to which the defendant assented.” Thus, a court cannot rely on facts merely because they appear in a judgment.

United States v. Tanksley, ___ F.3d ___, No. 15-11078, 2017 U.S. App. LEXIS 913 (5th Cir. Jan. 18, 2017) (panel reh.).

        Whether an offense merits sentencing-enhancement based on a prior conviction depends on whether the underlying statute of the prior conviction is divisible or indivisible. Under Mathis, federal courts must first look to a state-court decision to determine whether a statute is divisible, and for Tex. Health & Safety Code § 481.112(a) (possession with intent to deliver a controlled substance), the TCCA did so in Lopez v. State, 108 S.W.3d 293, 294 (Tex. Crim. App. 2003): A person’s offer to sell cocaine in the morning and his possession of cocaine with the intent to deliver it to complete that sale in the evening constitutes one offense because 481.112 provides several different means for committing delivery of a single quantity of drugs, so no matter where along the line of actual delivery—from the offer to sell, to the possession of the drugs with the intent to deliver them, to the actual delivery itself—the drug dealer should be held accountable for the (single) gravamen of the offense—the distribution of dangerous drugs in society. Thus, 481.112(a) is an indivisible statute to which the modified categorical approach does not apply.

United States v. Thomas, ___ F.3d ___, No. 15-30758, 2017 U.S. App. LEXIS 1668 (5th Cir. Jan. 30, 2017).

        Under 18 U.S.C. § 666, theft from a program receiving federal funds, a person is an “agent” if he was authorized to act on behalf of [the entity receiving federal monies] with respect to its funds. The “funds” need not be purely federal, and the conduct need not have a direct effect on the federal funds, so the statue may reach misuse of virtually all funds of an agency that administers the federal program.

Texas Court of Criminal Appeals

Byram v. State, ___ S.W.3d ___, PD-1480-15, 2017 Tex. Crim. App. LEXIS 83 (Tex. Crim. App. Jan. 25, 2017).

        To determine whether an officer’s invoking the community-caretaking function was reasonable, a reviewing court must inquire: (1) whether the officer was primarily motivated by a community-caretaking purpose; and (2) whether the officer’s belief that the individual needed help was reasonable. Both questions must be answered “yes.” And, the standard for reasonableness is no different when the officer stops a vehicle to check the welfare of a passenger rather than the driver.

Pruett v. State, ___ S.W.3d ___, PD-0251-16, 2017 Tex. Crim. App. LEXIS (Tex. Crim. App. Jan. 25, 2017).

        A fire may be a deadly weapon depending on the manner in which it is used during the commission of an offense. To determine whether fire is a deadly weapon, a fact-intensive in­quiry must be conducted into the way the fire was used. However, fire is inherently dangerous in a way that cars are not and it is capable of inflicting serious bodily harm, especially intentionally started in a residential neighborhood. And, the capability of the fire to cause death or serious bodily injury is not obviated by the fact that neighbors managed to put the fire out or that firefighters arrived on time and did their job.

Texas Courts of Appeals

Buxton v. State, ___ S.W.3d ___, No. 01-15-00857-CR, 2017 Tex. App. LEXIS 456 (Tex. App.—Houston [1st Dist.] Jan. 19, 2017).

(1) In analyzing whether a defendant received notice of the offense adequate to satisfy due process concerns, the court is not required to look solely to the language of the charging instrument, and the defendant suffers no harm unless he did not receive notice of the State’s theory against which he would have to defend, but can consider the criminal complaint and notices filed by the state.

(2) An indictment under Tex. Penal Code § 21.02 (continuous sexual abuse of a child) does not require a specific culpable mental state because 21.02 is defined in terms of other acts that by their terms require a culpable mental state (such as sexual assault of a child or indecency by contact).

(3) Tex. Penal Code § 21.02 does not implicate the double jeopardy cause because the state may try to prosecute the defendant for the underlying charges later. Only when the state attempts such a prosecution can the defendant raise a double jeopardy claim.

Carson v. State, ___ S.W.3d ___, Nos. 06-15-00170-CR, 06-15-00171-CR, 06-15-00172-CR, & 06-15-00173-CR, 2017 Tex. App. LEXIS 811 (Tex. App.—Texarkana, Jan. 31, 2017).

(1) A trial judge who makes decisions based on extrajudicial evidence is not an impartial judge, and structural error occurs where a judge is not impartial.

(2) A presentence waiver of the right to appeal is unknowing and invalid as to any error in the punishment/sentencing phase if the defendant could not have known the nature of the claims he could have brought on appeal in the absence of the waiver.

(3) An appellate court is authorized to correct an inaccurate certificate of the right to an appeal

Fowler v. State, ___ S.W.3d ___, No. 06-16-00038-CR, 2017 Tex. App. LEXIS 734 (Tex. App.—Texarkana, Jan. 27, 2017).

        To authenticate evidence under Tex. Rule Evid. 901(a), the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is, and a “video of a video” is not admissible if the “original video” is not properly authenticated even though the “video of a video” is.

Lathan v. State, ___ S.W.3d ___, No. 02-15-0228-CR, 2017 Tex. App. LEXIS 287 (Tex. App.—Fort Worth, Jan. 12, 2017).

        Under Faretta v. Cal., 422 U.S. 806 (1975), if: (1) a defendant clearly and unequivocally declares to a trial judge that he wants to represent himself and does not want counsel, (2) the record affirmatively shows that a defendant is literate, competent, and understanding and that he is voluntarily exercising his informed free will, and (3) the trial judge warns the defendant that he thinks it is “a mistake not to accept the assistance of counsel,” and that the defendant will “be required to follow all the ‘ground rules’ of trial procedure,” the right of self-representation cannot be denied.

Hartfield v. State, ___ S.W.3d ___, No. 13-15-00428-CR, 2017 Tex. App. LEXIS 394 (Tex. App.—Corpus Christi, Jan. 19, 2017).

        When considering the Barker factors regarding speedy trial of: (1) the length of the delay; (2) the State’s reason for the delay; (3) timing of the defendant’s assertion of his right to a speedy trial; and (4) prejudice to the defendant because of the length of delay, a 33-year delay coupled with the state’s extreme negligence of failing to bring the case to trial amounts to a speedy-trial violation.

Porter v. State, ___ S.W.3d ___, 01-15-00960-CR, 2017 Tex. App. LEXIS 140 (Tex. App.—Houston [1st Dist.] Jan. 10, 2017).

        Tex. Rule Evid. 503(b)(2) recognizes a privilege “to prevent a lawyer . . . from disclosing any other fact that came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship.” This special rule in criminal cases does not broaden the attorney-client privilege to include tampering of evidence by an attorney. An illegal act by an attorney does not involve “legal services,” and such acts cannot be in furtherance of the attorney-client relationship.

Ex parte Smirl, ___ S.W.3d ___, No. 07-16-00055-CV, 2017 Tex. App. LEXIS 318 (Tex. App.—Amarillo, Jan. 12, 2017).

        Expunction order affirmed because although it was based on an “absence of probable cause at the time of the dismissal to believe the person committed the offense” after an order denying a motion to suppress in a DWI case was reversed by the TCA7, the TCA7’s decision found there to be no reasonable suspicion to initiate the stop, so all evidence obtained by the State after the unlawful detention was inadmissible. This left the state with no evidence to proceed on another trial, so a second trial would have resulted in an acquittal.

Weber v. State, ___ S.W.3d ___, 03-16-00338-CR, 2017 Tex. App. LEXIS 205 (Tex. App.—Austin, Jan. 12, 2017).

        Predicate offenses of continuous sexual abuse of a child under Tex. Penal Code § 21.02 (such as aggravated sexual assault of the same child) are always lesser-included offenses of continuous sexual abuse, so if a defendant is convicted of both continuous sexual abuse of a child and a predicate offense for the abuse of the same child, under the double jeopardy clause, the predicate offense must be reversed and dismissed.

1 2 3 4 5 6 11