Browse Category

SDR - Page 5

January/February 2017 SDR – Voice for the Defense Vol. 46, No. 1

Voice for the Defense Volume 46, No. 1 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

The Sixth Amendment speedy trial guarantee did not apply to the 14-month delay between D’s conviction and sentencing. Betterman v. Montana, 136 S. Ct. 1609 (2016).

        D pleaded guilty to bail jumping after failing to appear in court on domestic assault charges. He was then jailed for over 14 months awaiting sentence, in large part due to institutional delay. He was eventually sentenced. D appealed, arguing that the 14-month gap between conviction and sentencing violated his speedy trial right. The Montana Supreme Court affirmed the conviction and sentence, ruling that the U.S. Const. Amend. VI Speedy Trial Clause does not apply to post-conviction, presentencing delay. The Supreme Court affirmed.

         The speedy trial guarantee protects an accused from arrest or indictment through trial, but does not apply once a defendant has been found guilty at trial or has pleaded guilty. The Speedy Trial Clause implements the presumption of innocence and therefore loses force upon conviction. Although a due process right to liberty, while diminished, remains after conviction, D did not advance a due process claim.

The federal Immigration and Nationality Act, which includes “aggravated felony” as a reason for deporting a non-citizen, includes a state offense if all the elements of the federal crime are met with the exception of being related to interstate or foreign commerce; D acknowledged that New York arson law only differed from 18 U.S.C. §  844(i) in that it lacked an interstate commerce element. Luna Torres v. Lynch, 136 S. Ct. 1619 (2016).

        D, a lawful permanent resident, pleaded guilty in New York to attempted third-degree arson. A U.S. alien convicted of an “aggravated felony” is deportable, ineligible for several forms of discretionary relief, and subject to expedited removal, 8 U.S.C. § 1227(a). An “aggravated felony” is defined as any of numerous offenses listed in § 1101(a)(43), which includes 18 U.S.C. § 844 relating to arson and explosives. Section 1101(a)(43)’s penultimate sentence states that each enumerated crime is an aggravated felony irrespective of whether it violates federal, state, or foreign law. An immigration judge determined D’s arson conviction was an aggravated felony. The Board of Immigration Appeals affirmed. The Second Circuit denied review. The Supreme Court affirmed.

        A state offense counts as a Section 1101(a)(43) “aggravated felony” when it has every element of a listed federal crime except an element requiring a connection to interstate or foreign commerce; state crimes do not need a “jurisdictional hook.” U.S. Congress meant the term “aggravated felony” to capture serious crimes regardless of whether they are made illegal by the federal government, a state, or a foreign country. It is implausible that Congress viewed the presence of an interstate commerce element as separating serious from non-serious conduct.

Fifth Circuit

District court did not abuse its discretion in admitting Facebook and text messages against D; those messages were adequately authenticated under Fed. R. Evid. 901. United States v. Barnes, 803 F.3d 209 (5th Cir. 2015).

        Conclusive proof of authenticity is not required for the admission of disputed evidence. The jury holds the ultimate responsibility for evaluating the reliability of the evidence; regardless, any error in admitting the messages was harmless.

        (2) The district court did not abuse its discretion in permitting a person to testify who admitted to using methamphetamine on the morning of his testimony; persons are presumed to be competent to be a witness if they have personal knowledge of a matter and agree to speak truthfully. Nothing in the record cast doubt on the court’s threshold finding of competency; because the witness met the minimum threshold for competency to testify, any remaining issues with the credibility of his testimony were properly left to the jury.

        (3) For purposes of 21 U.S.C. § 856—maintaining a “place” for use in drug-related activities—the district court did not err in defining “place” to include not only a house but also the “yard area” to that house.

In alien-transporting case, district court did not err in applying a six-level enhancement under USSG § 2L1.1(b)(6) for intentionally creating a substantial risk of death or bodily injury; D knew the alien—who ultimately died of complications from diabetes—was sick, dehydrated, diabetic, and needed insulin, yet she did not seek medical attention and abandoned him at a rest stop. United States v. Muñiz, 803 F.3d 709 (5th Cir. 2015).

        Likewise, the district court did not clearly err in applying a 10-level enhancement under USSG § 2L1.1(b)(7) because D’s conduct was a but-for cause of the alien’s death.

In drug prosecution where case agent was permitted to offer both expert testimony and lay opinion tes­ti­mony respecting drug jargon, the district court inadequately differentiated between the agent’s lay and expert testimony; this error was harmless. United States v. Haines, 803 F.3d 713 (5th Cir. 2015).

        The district court also erred in permitting the agent to give lay opinion testimony about common words and language that were well within the province of the jury to interpret. Nevertheless, these errors were harmless.

        (2) In a drug-conspiracy case, the statutory minimum sentence for a given defendant is determined on the basis of the relevant quantity of drugs attributable to that individual defendant, not the quantity of drugs attributable to the conspiracy as a whole.

Texas death-sentenced D’s claim of cumulative error rendering his trial fundamentally unfair—made for the first time on federal habeas review—was unexhausted and also procedurally barred. Nickleson v. Stephens, 803 F.3d 748 (5th Cir. 2015).

        Raising individual claims does not also raise a claim of cumulative error based on the accumulation of those claims. Rather, this is a standalone claim that is subject to conventional exhaustion and procedural-default principles.

Court of Criminal Appeals

The oral term of the plea agreement was limited to unfiled cases that arose from the same facts as the cases to which D pled; the prosecution of a murder case unrelated to those cases was not barred by the oral term of the agreement. Williams v. State, No. PD-1124-15 (Tex.Crim.App. Sept 14, 2016, pet. ref’d).

        D pled guilty to two felony offenses. In addition to the written plea agreement, the parties orally agreed to a statement made by defense counsel. This statement, occurring at the plea hearing after defense counsel acknowledged the written terms of the agreement “in each case,” was: “And the State . . . is going to refuse prosecution of any other case in which the State has notice . . . unfiled cases.” D appealed that this oral part of the agreement was unambiguous and barred prosecution of an un­related murder case because the State had notice of it at the time. The State contended that this oral part was ambiguous and that affidavits from the attorneys involved showed that the plea agreement was not intended to encompass the murder case. COA agreed with the State and affirmed D’s murder conviction. CCA affirmed.

        “Defense counsel’s references to the ‘State’ and to ‘any other case’ appear to be imprecise language that, in context, was merely shorthand for the ‘McLennan County District Attorney’s Office’ and ‘any other case involving the defendant.’ But there is another way in which the phrase ‘any other case’ may be shorthand. It may be a reference to other cases that arise from the same facts as the cases that were pled. That is, the current cases involve certain offenses—an aggravated robbery and an aggravated assault. But future cases could involve other offenses that arose from the same transactions, unless the parties agree that the State will not prosecute such cases. . . . Moreover, the reference to ‘any other cases’ could have meant any cases involving offenses that occurred at about the same time. . . . There is no indication in the record of the plea proceeding that defense counsel sought to carefully parse an oral term of the plea agreement. . . . We do not hold that the above circumstances conclusively establish that the refusal-of-unfiled-cases term was case-specific (limited to offenses that arose from the same facts as the offenses to which appellant pled). We do, however, find the circumstances sufficient to establish ambiguity. . . . [O]nce we conclude that the oral term of the plea agreement was ambiguous, we must inexorably conclude that the more limited construction of the term is appropriate. The defense counsel in the prior cases, who was appellant’s agent, was the one responsible for the language used, and so the language must be construed against appellant. But even if that rule of construction did not work against appellant, defense counsel for those cases unequivocally stated that the murder case was not included in the plea agreement—thereby indicating that he did not intend the broad meaning to his words to which appellant now ascribes. The prosecutor likewise stated that the murder case was not included in the agreement. And there were offenses arising from the facts of the offenses pled that could have been later prosecuted absent the oral term of the plea agreement.”

Tex. Pen. Code § 21.12(a) prohibits a school employee from engaging in sexual contact with a student at the school; D was wrongly convicted because the record lacked evidence that D worked for complainant’s school and not only the school district. State v. Sutton, 499 S.W.3d 434 (Tex.Crim.App. 2016).

        D was charged with having an improper relationship between educator and student. The indictment alleged D was an employee of Caney Creek High School (CCHS) when he engaged in sexual contact or deviant sexual intercourse with G.T., a person enrolled at CCHS. D was convicted on all five counts. COA reversed, holding the record did not contain legally sufficient evidence for the jury to conclude that D worked at CCHS. CCA affirmed COA.

        Two parts of § 21.12(a)(1) implicated D’s sufficiency claim: whether D was “an employee of” and “work[ed] at” a public or private primary or secondary school where G.T. was enrolled. The evidence at trial showed D was employed by Conroe Independent School District (CISD) Police Department, not CCHS. Several other witnesses at trial, including G.T., supported D’s contention that he did not work for, or at, CCHS. D was not assigned to CCHS or to the feeder system in which CCHS was located. D officed at the CISD Police Department, not at CCHS. CCA said that while employees of a school are generally also considered to be employees of the school district overseeing that school, the inverse may or may not be true. Had D been assigned to CCHS or its feeder system, his status as an employee of the school would have been a closer call. There was evidence that CISD officers generally have “overlapping responsibilities” to respond to all the feeder systems in the school district, that D was assigned to be the mentor for the ser­geant of the Caney Creek feeder, that D supervised school district programs made available to students such as G.T., and that D would occasionally pick G.T. up after school when he was off duty. However, this evidence would not support a reasonable inference that D worked at CCHS. The State argued that the Texas Legislature intended § 21.12(a)(1) to apply to a broad class of school employees that included D. CCA said this argument ignored § 21.12(a)(2), which incorporates a specific list of school district employees to which the statute applies. Police officers are not included on that list. It is a general rule of statutory construction that the express mention of one thing is tantamount to an exclusion of others.

Tex. Health & Safety Code § 841.085(a) creates a single offense for violating a civil-commitment order, not a separate offense for each alleged way a violation occurred; thus, two of D’s three convictions violated dou­ble jeopardy. Stevenson v. State, 499 S.W.3d 842 (Tex.Crim.App. 2016).

        A jury convicted D of three counts of violating a sexually violent predator civil-commitment order. On appeal, D argued that (1) the trial court lacked jurisdiction; (2) the judge erred in denying his motion to quash, motion for directed verdict, and requests to admit certain evidence; and (3) double jeopardy barred his multiple convictions. COA upheld all three convictions and denied his remaining claims. CCA agreed, except for COA’s resolution of D’s double-jeopardy claim, and affirmed and vacated in part.

        U.S. Const. Amend. V “prohibits a second trial after the accused has already been convicted or acquitted of that crime and forbids multiple punishments for the same offense in a single prosecution. In a multiple-punishments case, like the one here, the double-jeopardy analysis hinges on whether the Legislature intended multiple punishments. . . . Double jeopardy is not violated if the Legislature intended the offenses to constitute ‘separate allowable units of prosecution.’. . . To determine the allowable units of prosecution, we first look to the gravamen of the offense. The gravamen of the offense can be the result of conduct, the nature of conduct, or the circum­stances surrounding the conduct. . . . In a circumstances-surrounding-the-conduct crime, different types of conduct may establish alternate methods of proving a single crime, as opposed to separate crimes, as long as the circumstances surrounding that conduct are the same. . . . [A] civil-commitment order violation is a circumstances-surrounding-the-conduct crime. . . . It is the very circumstance that the person has been adjudicated a sexually violent predator resulting in a civil-commitment order that renders otherwise innocent conduct criminal. . . . We next look at the evidence presented at trial to determine how many units have been shown and whether the evidence would actually support conviction and punishment under each theory of the offense. Having determined above that the evidence sufficiently supported Stevenson’s guilty verdict because the State demonstrated Stevenson was adjudicated a sexually violent predator, was subject to a civil-commitment order, and then violated that order, we conclude that the entry of three judgments violated Stevenson’s double-jeopardy right against multiple punishments. Therefore, Stevenson’s two additional judgments should be vacated because the statute creates a single offense for violating § 841.082’s requirements, not a separate, punishable offense for each alleged way that a violation occurred.”

Police were justified in patting down D for weapons, and finding heroin, because a reasonably prudent per­son considering all the circumstances would have been warranted in believing that his safety or that of others was in danger. Furr v. State, 499 S.W.3d 872 (Tex.Crim.App. 2016).

        D was charged with possession of a controlled substance after police found heroin on him while patting him down for weapons. He filed a motion to suppress, arguing the stop and frisk violated the U.S. Const. Amend. IV prohibition on unreasonable searches and seizures. The trial court denied the motion. D pled guilty and was sentenced to two years’ imprisonment. He appealed the denial of the motion to suppress. COA affirmed the trial court. CCA affirmed.

        Police had reasonable suspicion to detain and frisk D based on an anonymous tip, his presence at a location known for drug activity, and his nervous behavior. The officer’s observation that D appeared to be under the influence of a drug corroborated the tip sufficiently to support a brief investigative detention, and his failure to promptly respond to officer’s question about whether he was armed supported the protective frisk. “[T]he State argues that we should adopt a rule that it is per se objectively reasonable for the police to pat down a suspect for weapons if they are accused of possessing drugs. While it is true that we have held ‘it is objectively reasonable for a police officer to believe that persons involved in the drug business are armed and dangerous,’ we made that comment in the context of sellers of narcotics, not mere drug use. . . . And we decline the State’s invitation to extend that reasoning[.]”

A jury could have reasonably inferred that the syringe in an open compartment in D’s car was there when he was removed from the car and not put there later by one of the passengers. Tate v. State, 500 S.W.3d 410 (Tex.Crim.App. 2016).

        D was convicted of possession of a controlled substance under Tex. Health & Safety Code § 481.115. COA reversed, holding there was insufficient evidence to prove he intentionally or knowingly possessed the substance. CCA reversed COA and affirmed the trial court.

        The evidence was sufficient to prove D intentionally or knowingly possessed a syringe of methamphetamine found in the car he was driving because the compartment in which it was found was directly to the right of the driver’s seat and a detective’s testimony supported an inference that the passengers did not put the syringe in the compartment. COA improperly analyzed each circumstance of guilt in isolation without considering the cumulative force of all the evidence and focused on D’s innocent explanation that one of the passengers framed him. D’s statement that he owned the car was viewed in the light most favorable to the verdict, he was the owner of the vehicle, and it would be reasonable to infer that the owner-driver would be aware of items in his vehicle in plain view.

Court of Appeals

D’s aggravated kidnapping jury charge was egregiously harmful because it included only the deadly-force abduction method and omitted secreting or holding, allowing conviction on an unauthorized legal theory as the indictment alleged only secreting or holding, and the application paragraph did not require a finding of the elements of abduction as well as an aggravating intent. Uddin v. State, No. 14-15-00083-CR (Tex.App.—Houston [14th Dist] Nov. 10, 2016).

        “Although there is evidence in the record that supports each of the elements of aggravated kidnapping, the charge given the jury was not just incomplete—it was affirmatively misleading. The abstract portion of the jury charge authorized an aggravated kidnapping conviction based on an unalleged method of abduction. Moreover, the application paragraph charged a distinct, lesser offense: kidnapping. This was not an incidental omission or mistake, but went to the very basis of the case and exposed appellant to conviction of a specific offense without requiring the jury to reach a verdict on the essential elements of that offense as charged in the indictment. Nothing in the record alleviated this harm, and the State’s closing argument further misled the jury. . . . Having sustained this issue, we do not reach appellant’s additional complaints on appeal. Accordingly, we reverse the trial court’s judgment and remand the case for a new trial.”

December 2016 SDR – Voice for the Defense Vol. 45, No. 10

Voice for the Defense Volume 45, No. 10 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

Police officer D was properly convicted of conspiring to commit extortion for routing ve­hicles from accident scenes to a repair shop in exchange for payments from the shop owners because the conspirators in an extortion scheme need only to agree that the public official will obtain property from another person; this other person may be one of the co-conspirators. Ocasio v. United States, 136 S. Ct. 1423 (2016).

        D, a former police officer, participated in a kickback scheme in which he and other officers routed damaged vehicles to an auto repair shop in exchange for payments from the shop owners. D was charged with obtaining money from the shop owners under color of official right, in violation of the Hobbs Act, 18 U.S.C. § 1951, and of conspiring to violate the Hobbs Act, in violation of 18 U.S.C. § 371. The trial court rejected D’s argument that—because the Hobbs Act defines extortion as “the obtaining of property from another, with his consent . . . under color of official right”—a Hobbs Act conspiracy requires that the alleged conspirators agreed to obtain property from someone outside the conspiracy. D was convicted on all counts, and the Fourth Circuit affirmed. D challenged his conspiracy conviction, contending he could not be convicted of conspiring with the shop owners to obtain money from them under color of official right. The Supreme Court affirmed.

        The general federal conspiracy statute, § 371, makes it a crime for “two or more persons [to] conspire . . . to commit any offense against the United States.” This use of “conspire” incorporates the longstanding principles of conspiracy law; a defendant may be convicted of conspiring to violate the Hobbs Act based on proof that he entered into a conspiracy that had as its objective the obtaining of property from another conspirator with his consent and under color of official right. And under established case law, the fundamental characteristic of a conspiracy is a joint commitment to an endeavor that, if completed, would satisfy all the elements of the underlying substantive criminal offense. A conspirator need not agree to commit the substantive offense—or even be capable of committing it—to be convicted. It is sufficient that the conspirator agreed that the underlying crime be committed by a member of the conspiracy capable of committing it. D and the shop owners reached just such an agreement: They shared a common purpose that D and other police officers would obtain property “from another”—that is, from the shop owners—under color of official right. Although the shop owners could not act under color of official right, they were nonetheless conspirators in the extortion scheme since they shared a common purpose with the officer to commit every element of the extortion offense with the shop owners’ consent.

State court’s summary denial of habeas relief was a de­cision on the merits subject to deferential review; the presumption that the state court adopted the procedural rejection of the lower court was amply refuted. Kernan v. Hinojosa, 136 S. Ct. 1603 (2016).

        Inmate D filed a state habeas petition asserting an ex post facto claim. The state superior court dismissed for improper venue, because D did not file the petition in the county in which he was confined, and the Supreme Court of California summarily denied relief without explanation.

        D filed a federal habeas petition. The district court denied D’s ex post facto claim under the Antiterrorism and Effective Death Penalty Act’s deferential review. The Ninth Circuit, citing Ylst v. Nunnemaker, 501 U.S. 797 (1991), “looked through” the Supreme Court of California’s denial to the last reasoned decision adjudicating D’s claim: the superior court’s dismissal for improper venue. The Ninth Circuit reasoned that the superior court’s decision was “not a determination ‘on the merits’” and, as a result, “not bound by AEDPA.” Having freed itself from AEDPA’s strictures, the Ninth Circuit granted habeas relief.

        The Supreme Court reversed and remanded. The Ninth Circuit should have reviewed D’s claim through the AEDPA’s deferential lens because the Supreme Court of California’s denial of D’s petition was on the merits. Ylst held that where “the last reasoned opinion on the claim explicitly imposes a procedural default, we will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits.” But the Court refused to make that presumption irrebuttable; “strong evidence can refute it.” It was amply refuted here. Improper venue could not possibly have been a ground for the high court’s summary denial of D’s claim. There is only one Supreme Court of California and, thus, only one venue in which D could have sought an original habeas writ in that court. Under these circumstances, it cannot be that the state supreme court’s denial, as stated in Ylst, “rest[ed] upon the same ground” as the superior court’s. It quite obviously rested on some different ground. The Ylst look-through approach was therefore inapplicable.

Fifth Circuit

The maxima in 18 U.S.C. § 3581, which depend on the classification of the offense under § 3559, do not apply where the statute of conviction itself specifies the maximum term of imprisonment allowed. United States v. Simpson, 796 F.3d 548 (5th Cir. 2015).

District court abused its discretion in reopening, pursuant to Fed. R. Civ. P. 60(b)(6), its 1998 judgment denying D (sentenced to life imprisonment on drug charges) collateral relief under 28 U.S.C. § 2255. United States v. Fernandez, 797 F.3d 315 (5th Cir. 2015).

        The purported basis for D’s Rule 60(b)(6) motion—that the district court inadvertently failed to rule on a meritorious claim that defense counsel was ineffective in not severing D’s trial from his co-defendant—was more properly characterized as one under Rule 60(b)(1) (mistake or inadvertence), to which a one-year limitation applied. Because D’s motion was not filed until long after one year, the motion was untimely. The Fifth Circuit reversed the district court’s order granting Rule 60(b) relief and granting a new trial.

District court properly granted a new trial for police officers charged with shooting civilians at the Danziger Bridge after Hurricane Katrina based on federal prosecutors’ anonymous comments about the case while it was going on and other wrongdoing by the prose­cu­tors. United States v. Bowen, 799 F.3d 336 (5th Cir. 2015), reh’g en banc denied, 813 F.3d 600 (5th Cir. 2016).

        The panel majority agreed with the district court that a new trial was warranted, irrespective of harm/prejudice, under Brecht v. Abrahamson, 507 U.S. 619 (1993). The panel majority also agreed with the district court’s alternative finding that Ds were prejudiced. Finally, the panel rejected the Government’s request to remove the district judge.

D failed to show any reversible plain error occurred in his sentencing under the ACCA; thus, he also failed to show, under a more demanding standard and on the existing record, that extraordinary circumstances warranted a rehearing. United States v. Guzman, 797 F.3d 346 (5th Cir. 2015).

        D claimed for the first time, in this petition for rehearing, that his sentence enhanced under the Armed Career Criminal Act, 18 U.S.C.S. § 924(e), was invalid under Johnson v. United States, 135 S. Ct. 2551 (2015)(which invalidated the residual clause of the ACCA’s “violent felony” definition). The Fifth Circuit declined relief, saying it was unclear whether the prior conviction in question qualified as a “violent felony” under the elements clause of the “violent felony” definition; that lack of clarity precluded relief under the plain-error standard.

Where the indictment charging D with defrauding two banks was redacted to delete all references to one of the banks, there was no constructive amendment of the indictment because the charge against D was narrowed not broadened. United States v. Griffin, 800 F.3d 198 (5th Cir. 2015).

        Nor was there a prejudicial variance because D knew before trial that the Government was proceeding on a theory that only one bank was defrauded.

        (2) The Fifth Circuit rejected D’s claim that the Government failed to prove D defrauded the bank—i.e., failed to prove D placed the bank at risk of civil liability or financial loss. The Fifth Circuit noted, but did not address the effect of, Loughrin v. United States, 134 S. Ct. 2384 (2014); the Government argued that the risk-of-loss requirement was questionable in light of Loughrin.

District court plainly erred in imposing a pornography restriction as a special condition of supervised release because the court did not justify the condition, and the record did not make it clear how the condition was related to the statutory factors. United States v. Prieto, 801 F.3d 547 (5th Cir. 2015).

        The error affected D’s substantial rights because the condition could not properly have been imposed on this record; however, the Fifth Circuit declined to exercise its plain-error discretion to correct the error: “[W]e do not think that the public would perceive any grave injustice when a district court imposes a modifiable condition prohibiting a defendant with a prior child-molestation conviction from purchasing, possessing, or using sexually stimulating or sexually oriented ma­te­rials, the defendant’s [presentence investigation report] recommended the condition, and the defendant forwent not one but two opportunities to object to the condition[.]” Furthermore, the Fifth Circuit upheld its precedent in holding that the district court did not plainly err in imposing a special supervised-release condition prohibiting D from residing in or going to places minors were known to frequent.

In treaty-transfer determination for prisoner transferred from Costa Rica to the United States, the Parole Commission did not run afoul of the statutory directive that the total transfer sentence could not exceed the sentence imposed by the foreign tribunal; the Parole Commission permissibly accomplished this by stating D was to be released from supervision when his imprisonment and supervision totaled 30 years (which was the Costa Rican sentence). Bender v. United States Parole Commission, 802 F.3d 690 (5th Cir. 2015).

        Even though the exact amounts of imprisonment and supervision were not precisely known at the time, this did not constitute an impermissibly determinate sentence. Nor was the Parole Commission’s determination procedurally or substantively unreasonable. The Fifth Circuit affirmed.

Court of Criminal Appeals

COA improperly concluded that counsel’s advice, what­ever it was, constituted deficient performance; to over­come the presumption of reasonable professional as­sis­tance, any allegation of ineffectiveness must be firmly founded in the record. Anthony v. State, 494 S.W.3d 106 (Tex.Crim.App. 2016).

        D pleaded guilty to aggravated sexual assault of a child younger than 14 in exchange for deferred-adjudication community supervision. The trial judge placed D on 8 years of community supervision; the judge’s deferred-adjudication order listed the victim’s age as 3 years old. Several years later, the State moved to adjudicate, alleging D violated his community supervision. The judge found the violations true, found D guilty, and sentenced him to life imprisonment. The judgment again noted that the victim was 3 at the time of the assault.

        COA reversed, finding the judge had no authority to grant D deferred adjudication because the judge’s deferred-adjudication order contained a finding that the victim was 3 years old; COA then concluded D was prejudiced by counsel’s deficient performance in advising him on the offense’s punishment range, though the record does not contain what exactly D’s coun­sel told him. In its view, the finding that the victim was 3 raised the issue of whether Tex. Code Crim. Proc. art. 42.12 precluded the judge from imposing deferred adjudication. (Article 42.12 stated that a judge may not impose deferred adjudication on a defendant punishable under Tex. Penal Code § 22.021(f); § 22.021(f)(1) provided a minimum pun­ishment of 25 years’ confinement for aggravated sexual assault of a child under 6.)

        CCA reversed, reinstating and reforming the trial court’s judgment. CCA struck from the judgment the finding that the victim was 3 and reformed it to reflect a finding that the victim “was younger than 14 years of age at the time of the offense.” CCA disagreed with COA’s analytical premise and, as a result, its conclusion that D received ineffective assistance. The indictment specifically alleged D assaulted a child who was younger than 14. D’s guilty plea, admonishments, waivers, stipulations, and judicial confession regarded a child under 14 as in the indictment. He pleaded guilty to a first-degree felony with a punishment range of 5 to 99 years or life, and was admonished on that range both orally and in writing when he received deferred adjudication. Other than the notation that the victim was 3—a finding that could be accurate under the indictment alleging a victim under 14—the record contained no indication that the parties or judge intended to punish the assault under § 22.021(f). Furthermore, the presumption of regularity requires that appellate courts indulge every presumption in favor of the regularity of the plea proceedings and trial court documents. Even if the finding was accurate, it had no support in the record.

COA should have vacated D’s aggravated assault conviction that the State unequivocally abandoned to avoid running afoul of the constitutional prohibition against multiple punishments. Duran v. State, 492 S.W.3d 741 (Tex.Crim.App. 2016).

        A jury convicted D of burglary of a habitation and aggravated assault in two separate counts. The jury found D guilty of both counts, but the State abandoned the aggravated assault conviction prior to the trial’s punishment phase. COA upheld the aggravated assault conviction even though the State abandoned that charge; COA also upheld the trial court’s modification of the judgment to include a deadly-weapon finding. CCA reversed.

        COA should have vacated the conviction for aggravated assault because the State unequivocally abandoned the charge in the middle of trial and after jeopardy had attached. Moreover, COA improperly held that the deadly-weapon finding was proper based on the jury’s finding of guilt on the burglary charge. For a trial court to enter a deadly-weapon finding in the judgment, the trier of fact had to first make an affirmative finding to that effect. CCA disagreed with the State that the trial court could rely on the abandoned jury verdict in the aggravated assault case to support the entry of a deadly-weapon finding. The jury did not necessarily decide the deadly-weapon issue when it found D guilty of burglary of a habitation; the jury was not required to decide whether D committed aggravated assault with a deadly weapon. CCA reformed the judgment to delete any reference to a deadly-weapon finding in D’s burglary of a habitation conviction.

CCA rejected capital-murder D’s points of error, mainly that the evidence was sufficient to reasonably infer D intentionally committed murder in the course of committing aggravated rape; D’s “proffered scenario, in which [D] had sexual intercourse with [victim] and then someone else entered the apartment and murdered her, strains credulity.” Jenkins v. State, 493 S.W.3d 583 (Tex.Crim.App. 2016).

        “In June 2013, a jury convicted appellant of capital murder for committing the offense of murder in the course of aggravated rape in November 1975. Based upon the jury’s answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.0711, sections 3(b) and 3(e), the trial judge sentenced appellant to death. Direct appeal to this Court is automatic. Appellant raises 19 points of error. After reviewing appellant’s points of error . . . we affirm the trial court[.]”

        CCA focused on rejecting four of D’s claims: One, viewing the totality of the evidence, the jury could have reasonably inferred that D murdered the victim in the course of committing aggravated rape because his DNA profile was identified in semen inside her body and in a hand print on the blouse she was wearing. Two, the trial court did not err by determining that the DNA evidence was sufficiently reliable and relevant under Tex. R. Evid. 702; a DNA analyst stated he followed the protocol in effect in 1997 by running a reagent blank when he first analyzed the liquid extract. Three, the court did not err under Tex. R. Evid. 410 in excluding plea evidence because any probative value of D’s plea offer was diluted by the various motivations that might have driven his decision to make the offer; any probative value was substantially outweighed by the danger of misleading the jury.

        Four, the trial court did not abuse its discretion in denying D’s motion for mistrial after juror misconduct was brought to the court’s attention; D said he did not receive a fair and impartial trial as a result of a juror’s improper conversation with an outside party. CCA deferred to the trial court’s findings that the juror’s testimony denying prior knowledge of the case was credible and that the juror did not communicate outside knowledge to other jurors. The trial court properly employed less drastic measures that effectively insulated the jury from outside influence and sufficiently cured the problem created by the juror’s misconduct.

Trial court properly excluded evidence in support of D’s claim that he was justified in assaulting his ex-wife; the evidence was irrelevant, as it did not give rise to any justification defense because it failed to show D had to make a split-second decision to assault his ex-wife to keep his sons from immediate harm. Henley v. State, 493 S.W.3d 77 (Tex.Crim.App. 2016).

        A jury found D guilty of misdemeanor assault causing bodily injury to a family member. He appealed that the trial court excluded evidence in support of his claim of defense of a third person under Tex. Penal Code § 9.33. D had asked the court to permit him to cross-examine his ex-wife about alleged misconduct of her new husband and alleged sexual abuse of their sons by the new husband’s former stepson. D also sought to introduce his own testimony that if his ex-wife left his house with their sons, he believed she would allow the boys to come in contact with her new husband and the former stepson, and this would put them in danger. D asserted this evidence supported his claim of defense of a third person and should have been allowed to justify the evidence that D pulled his ex-wife out of her car by her hair, punched her in the face several times, and hit her head against the driveway. COA concluded the trial court erred by denying D the right to show his state of mind and develop his justification defense. CCA reversed COA and reinstated D’s conviction.

        CCA concluded that “none of the proffered testimony had any tendency to show that the children were in need of immediate protection.” In determining whether evidence must be admitted under the U.S. Const. amend. VI Confrontation Clause, the trial court must balance the defendant’s right to cross-examine and the probative value of the evidence against the risk factors associated with admitting the evidence. The trial court maintains broad discretion to impose reasonable limits on cross-examination. This evidence “was not probative. It did not show in any way that appellant was justified in assaulting [his ex-wife]. It wasn’t even marginally relevant.” And D failed to assert how the evidence would have shown any motive or witness bias. Finally, admission of the evidence would have presented a significant risk that the jurors might be distracted from the charged case and might disregard D’s actions due to their dislike of his ex-wife. Moreover, D’s state of mind about what he thought might happen in the future was irrelevant to whether his conduct was immediately necessary to protect his sons from the new husband or his stepson, as neither of them were there, and there was no evidence that the ex-wife or her mother was about to use unlawful force on the boys.

The State may appeal a grant of shock probation, but that appeal stays the proceedings in trial court; given the stay in proceedings, the trial judge’s timeline to sentence D extended, and his order placing D on shock probation was valid. State v. Robinson, No. PD-0974-15 (Tex.Crim.App. June 29, 2016).

        Tex. Code Crim. Proc. art. 42.12, § 6(c) allows a judge to temporarily send a defendant to prison before returning him to court and sentencing him to community supervision. This is “shock probation.” Section 6 states that the judge retains jurisdiction over the case for 180 days after sentencing the defendant to prison. Tex. Code Crim. Proc. art. 44.01(a)(2) allows the State to appeal a court order that arrests or modifies a judgment.

        A court of appeals has subject-matter jurisdiction to entertain a State’s art. 44.01(a)(2) appeal of a trial court’s grant of art. 42.12, § 6(c), shock probation, but the pendency of that appeal does not deprive the trial court of subject-matter ju­ris­diction to consider a motion for shock probation after the man­date has issued on that appeal. “When the State appealed the trial court’s grant of shock probation, that stayed the proceedings until the appeal was resolved. The timeline for the trial court to grant shock probation started on December 28, 2011, when Appellee began serving his sentence, and ran through February 14, 2012, when the State filed its notice of appeal. It was then stayed until the appellate court’s first mandate is­sued on August 19, 2013, at which point it began running again. Therefore, only 111 days had passed when the trial court granted Appellee shock probation. . . . Applying Article 42.12 § 6, without harmonizing that statute with Article 44.01(e), could prevent a defendant from ever receiving shock probation because the State could simply appeal whenever a trial court grants it. And then, regardless of the State’s points of error, by the time the appeal was resolved it would be too late for the trial court to grant shock probation. That, as the trial court put it, would be an absurd result. We reverse the judgment of the court of appeals and enter judgment affirming the shock probation order of the trial court.”

Trial court’s cumulation order was invalid because D’s parole had not been revoked at the time he was sentenced on the second offenses; there was no existing sentence to cumulate. Byrd v. State, No. PD-0213-15 (Tex.Crim.App. Sept 14, 2016).

        While D was on parole, he was convicted of possession of drugs and evading arrest. He was sentenced on these offenses before his parole on the original offense was revoked. On D’s appeal, COA and CCA asked, if a defendant commits an offense while on parole, is the trial court able to stack the second sentence on top of the first sentence if the defendant’s parole on the first offense has not been revoked before he is sentenced on the second offense? COA held that a trial court may stack a new sentence on a prior sentence for which the defendant is on parole, “irrespective of parole revocation.” CCA affirmed, but modified COA’s judgment.

        “[F]or purposes of [Tex. Code Crim. Proc. art.] 42.08, the timing of a defendant’s parole revocation for the original offense matters. If parole is revoked on a defendant’s first offense before that defendant is sentenced on the second offense . . . the second sentence may be stacked on top of the first sentence. However, if parole is not revoked on a defendant’s first offense before that defendant is sentenced for the second offense, then the second sentence may not be stacked on top of that first sentence. For the purposes of Article 42.08 and in relation to the second offense, that defendant had ‘made parole’ on the first offense, and thus his first sentence had already ceased to operate. We disapprove of all intermediate appellate court holdings to the contrary. . . . Because there was no evidence that appellant’s parole had been revoked at the time he was sen­tenced on his second offense, the trial court’s cumulation order was invalid. Each of the trial court’s judgments is reformed to delete the cumulation order.”

Trial court and COA properly held that D could be convicted of enhanced felony assault against his common-law spouse based solely on their past dating relationship. Sanchez v. State, No. PD-0372-15 (Tex.Crim.App. Sept 14, 2016).

        D was charged with the third-degree felony of assaulting an individual with whom he “has or has had” a dating relationship. The indictment alleged D knowingly or recklessly impeded the normal breathing or circulation of this individual by applying pressure to her throat or neck. The trial court found D guilty in a bench trial. COA affirmed. CCA granted D’s pe­tition to consider whether a defendant can be convicted of as­sault­ing his spouse based solely on their past dating relationship.

        “[A]ssault is generally a Class A misdemeanor, but is en­hanced to a third-degree felony when the assault is committed against one of the three classes of individuals defined in the Texas Family Code and is committed by strangulation or suffocation. Tex. Pen. Code § 22.01(b). The three classes de­lin­eated in the Texas Family Code are those in a ‘dating re­la­tionship,’ ‘family,’ and ‘household.’ A dating relationship is a ‘relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature.’ Tex. Fam. Code § 71.0021(b). . . . Appellant’s assault offense was en­hanced by the charge that he assaulted someone with whom he ‘has or has had a dating relationship.’. . . The State alleged no other alternatives in the indictment. . . . Under a plain language reading, the ‘has had’ phrase allows the dating relationship to have ended prior to the assault. In this case, Appellant and Price dated from June of 2006 until some point in August of 2006. As someone who had a dating relationship with Price before the 2009 assault, Appellant satisfies the basic requirements of Section 71.0021 in enhancing the Class A misdemeanor. . . . Whether the dating relationship ended due to the dissolution of the relationship or the inception of a marriage is irrelevant. Nowhere does the statute indicate that a marriage somehow cancels out a prior dating relationship between the same individuals. . . . Appellant claims that convicting him based upon his prior dating relationship with his spouse would meld dating relationships and spousal relationships into one in­distinguishable category. Appellant’s argument implies that the State could choose to prove either a dating relationship or a spousal relationship while alleging only a single charge. . . . There may be significant overlap between the categories of dating relationships and marriage, especially in the case of a common-law marriage, but the overlap between the categories does not make them identical or interchangeable. . . . There are individuals who have a spousal relationship but no prior dating relationship with each other, for instance in an arranged marriage. A defendant who assaults his spouse under these circumstances could be charged only with assault-family violence against a member of his family. . . . Finally, we are not convinced by the proposition that the legislature intended for the ‘has had’ element of the statute to apply exclusively to dating relationships that ended recently. . . . We will not add a statutory time limit when none exists[.]”

Court of Appeals

The evidence was insufficient to support D’s conviction for bail jumping and failure to appear because there was no evidence that D had actual notice of the trial setting. Ferguson v. State, No. 06-16-00046-CR (Tex.App.—Texarkana Oct 27, 2016).

        D was arrested for possession of a controlled substance less than one gram. She was released after posting a $100,000 surety bond. After hearing evidence that D missed a December 14, 2015, trial date, a jury convicted her of bail jumping and failure to appear. D appealed, arguing that the State failed to prove she intentionally or knowingly committed the offense be­cause she had no notice of the special trial setting.

        COA rendered an acquittal. The evidence was insufficient to support D’s conviction of bail jumping and failure to appear under Tex. Penal Code § 38.10(a) because her instanter bond was not prima facie evidence of actual notice of the December 14 trial setting, as it did not advise her of the court in which she was to appear, the date or time, or whether the offense was a felony or misdemeanor, and because there was no evidence to prove D had actual notice of the trial setting. The evidence at trial established that no one sent D a written notice of her trial date, no one was able to reach her by phone, and there was no evidence that the trial setting was included on the trial court’s website.

Juvenile court did not make requisite statutory findings to waive its jurisdiction and transfer the case to district court. Morrison v. State, No. 14-15-00773-CR (Tex.App.—Houston [14 Dist] Nov 10, 2016).

        D challenged his murder conviction on the basis that the district court did not have jurisdiction to hear his case because he was 16 years old at the time of the offense and the juvenile court’s jurisdiction was not properly waived. The State charged D and filed a petition for a discretionary transfer from juvenile court to criminal district court before D turned 18; however, the juvenile court heard the petition and transferred the case after D had reached his eighteenth birthday. The district court jury returned a guilty verdict and assessed punishment at 45 years’ confinement.

            COA concluded that the juvenile court abused its discretion in transferring the case to the district court after the child turned 18 without making findings under Tex. Fam. Code § 54.02(j)(4) as to why it was not practicable to proceed earlier; consequently, its jurisdiction was not waived, jurisdiction did not vest in the district court, and a conviction had to be vacated. Objecting at the transfer hearing was not necessary under § 51.042, read in context with the exclusive original jurisdiction of juvenile courts regarding illegal conduct by children under §§ 51.02, 51.04(a), to preserve error on a complaint that the juvenile court’s transfer of the case did not properly waive jurisdiction and thus did not vest jurisdiction in the district court under Tex. Penal Code § 8.07(b) to conduct criminal proceedings. COA vacated the district court’s judgment and remanded to the juvenile court.

November 2016 SDR – Voice for the Defense Vol. 45, No. 9

Voice for the Defense Volume 45, No. 9 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

Johnson v. United States, 135 S. Ct. 2551 (2015), which held that the residual clause of the Armed Career Criminal Act was void for vagueness, was a substantive decision that applied retroactively to D’s case. Welch v. United States, 136 S. Ct. 1257 (2016).

        “Federal law makes the possession of a firearm by a felon a crime punishable by a prison term of up to 10 years, 18 U. S. C. §§ 922(g), 924(a)(2), but the Armed Career Criminal Act of 1984 increases that sentence to a mandatory 15 years to life if the offender has three or more prior convictions for a ‘serious drug offense’ or a ‘violent felony,’ § 924(e)(1). The definition of ‘violent felony’ includes the so-called residual clause, covering any felony that ‘otherwise involves conduct that presents a serious potential risk of physical injury to another.’ § 924(e)(2)(B)(ii). In Johnson . . . this Court held that clause unconstitutional under the void-for-vagueness doctrine. . . . Welch was sentenced under the Armed Career Criminal Act before Johnson was decided. On direct review, the Eleventh Circuit affirmed his sentence, holding that Welch’s prior Florida conviction for robbery qualified as a ‘violent felony’ under the residual clause. After his conviction became final, Welch sought collateral relief under 28 U. S. C. § 2255, which the District Court denied. The Eleventh Circuit then denied Welch a certificate of appealability. Three weeks later, this Court decided Johnson. Welch now seeks the retroactive application of Johnson[.]”

        The Johnson rule regarding what constitutes a violent offense for ACCA sentencing applies retroactively; the rule was a substantive rule of criminal procedure because it altered “the range of conduct or class of persons that the law punishes.” Unlike procedural rules that alter the permissible methods for determining whether conduct is punishable, substantive rules affect the reach of the statute itself rather than how it is applied. While procedural rules are generally not retroactive, substantive rules are. Teague v. Lane, 489 U. S. 288 (1989). Therefore, imposing an increased sentence under ACCA’s residual clause violated due process. The Supreme Court vacated the court of appeals’ judgment and remanded.

        “It may well be that the Court of Appeals on remand will determine on other grounds that the District Court was correct to deny Welch’s motion to amend his sentence. For instance, the parties continue to dispute whether Welch’s strong-arm robbery conviction qualifies as a violent felony under the elements clause of the Act, which would make Welch eligible for a 15-year sentence regardless of Johnson. On the present record, however, and in light of today’s holding that Johnson is retroactive in cases on collateral review, reasonable jurists at least could debate whether Welch is entitled to relief.”

When a defendant is sentenced under an incorrect Guidelines range, whether or not the ultimate sentence falls within the correct range, the error most often will suffice to show a reasonable probability of a different outcome absent it; that probability is all that is needed to establish an effect on substantial rights for purposes of obtaining relief. Molina-Martinez v. United States, 136 S. Ct. 1338 (2016).

        D pleaded guilty to being in the United States illegally following deportation proceedings that stemmed from his felony convictions. The district court sentenced D to 77 months in prison, pursuant to the sentencing range established in the U.S. Sentencing Guidelines for his criminal history category. Under the Guidelines, prior sentences are counted as a single sentence if they were imposed on the same day unless the offenses in ques­tion were separated by an intervening arrest. D’s prior of­fenses were not separated by an intervening arrest, so when his probation officer calculated his criminal history points and placed him in category VI, he erred; D should have been placed in category V, which carries a lower sentencing range of 70–87 months. D appealed his sentence on the grounds that the district court erred in sentencing him based on the incorrect criminal history category. The Fifth Circuit held that despite the error in calculation, D failed to show that the error affected his substantial rights. The Supreme Court unanimously reversed.

        If a defendant shows that the court mistakenly applied a higher sentencing range to his sentence, his substantial rights are affected. When appellate courts review errors in the application of the Sentencing Guidelines, the defendant is not re­quired to identify “additional evidence” to show that he re­ceived an incorrect sentence. Nothing in the Guidelines, prec­edent, or the Federal Rules of Criminal Procedure gov­ern­ing appellate review of such an error (Fed. R. Crim. P. 52(b)) required that a defendant make a showing of prejudice beyond the fact that the erroneous, higher Guidelines range set the wrong framework for the sentencing proceedings. By requiring more from the defendant, the Fifth Circuit failed to properly account for the central role the Guidelines play in the sentencing process and the dynamics of sentencing, which often leaves the defendant without any of the evidence the Fifth Circuit would require.

Fifth Circuit

The magazine of an AK-47 is a component of the AK-47 for purposes of laws prohibiting the unlicensed export of firearms and certain related items, regardless of whether it is loaded with cartridges when shipped. United States v. Gonzalez, 792 F.3d 534 (5th Cir. 2015).

        The Fifth Circuit pretermitted whether this determination was normally one for the jury, because D forfeited that issue by treating the determination as a question of law for the court to decide on his motion to dismiss the indictment.

In sentencing D convicted, on her guilty plea, for a conspiracy to defraud Medicare and Medicaid, the district court committed reversible plain error with respect to the restitution order; that error affected D’s substantial rights because it was excessive in the amount of $80,533. United States v. Lozano, 791 F.3d 535 (5th Cir. 2015).

        Particularly, the Fifth Circuit held it was plain error to base restitution on losses outside the proper temporal scope. The temporal scope of the offense of conviction was from April 30, 2005, through January 10, 2006, but the district court ordered restitution for losses commencing September 20, 2001. The Fifth Circuit said it would exercise its discretion to correct the error even on plain-error review; the Fifth Circuit vacated the restitution order and remanded to the district court for a recalculation of the amount.

In trial of BP engineer for obstruction of justice (based on deleting text messages with his boss respecting the amount of oil spilling from the Macondo well in the Deepwater Horizon accident), district court did not abuse its discretion in granting D a new trial based on extrinsic influence on the jury. United States v. Mix, 791 F.3d 603 (5th Cir. 2015).

        The district court granted D a new trial based on extrinsic influence on the jury (namely, one juror’s overhearing that other BP employees were going to be prosecuted and her telling other jurors that she had overheard something that gave her comfort in pleading guilty). To be entitled to a new trial based on an extrinsic influence on the jury, a defendant must first show that the extrinsic influence likely caused prejudice; the government then bears the burden of proving the lack of prejudice. D met his initial burden of showing that prejudice was likely; the government did not meet its burden of showing a lack of prejudice. Accordingly, the Fifth Circuit affirmed the new trial order.

Where Louisiana death-row inmates sued, claiming the heat they endured in the summer violated the Eighth Amendment because of their pre-existing medical problems, the Fifth Circuit affirmed the district court’s conclusion that housing them in very hot cells without access to heat-relief measures, while knowing that each inmate’s condition renders him extremely vulnerable to serious heat-related injury, violated the Eighth Amendment. Ball v. LeBlanc, 792 F.3d 584 (5th Cir. 2015).

        However, the scope of the injunctive relief (effectively ordering air-conditioning installation throughout death row) exceeded the Fifth Circuit’s prior precedent. First, the district court erred in failing to consider other acceptable remedies short of facility-wide air conditioning; second, the district court erred in awarding relief facility wide, instead of limiting such relief to the plaintiffs; finally, the relief was not limited to only the months in which the plaintiffs faced heat risk. The Fifth Circuit vacated the district court’s injunction and remanded for reconsideration.

D’s 18 U.S.C. § 1519 conviction for obstructing a federal investigation could not stand in light of an intervening Supreme Court decision that construed “tangible object” in § 1519. United States v. McRae, 795 F.3d 471 (5th Cir. 2015).

        On his second appeal following a remand for resentencing (United States v. McRae, 702 F.3d 806 (5th Cir. 2012)), D contended that his conviction under 18 U.S.C. § 1519 could not stand in light of Yates v. United States, 135 S. Ct. 1074 (2015). D was a former New Orleans police officer charged with offenses arising out of a police cover-up in the aftermath of Hurricane Katrina, including burning a body in a car. Yates, which discussed the meaning of a “tangible object” under § 1519, required that the conviction be vacated. Under that decision, neither a car nor a corpse were “used to record or preserve information” or were “similar to records or documents.” The Fifth Circuit vacated D’s conviction on that count and remanded for resentencing on the remaining counts.

        (2) D was not entitled to a new trial based upon his post-trial diagnosis of post-traumatic stress disorder at the time of the offenses. Likewise, he was not entitled to a new trial based on evidence that persons in the Department of Justice, not directly involved in his trial, made anonymous postings about his proceedings in the comments sections of NOLA.com articles.

A sentence reduction under 18 U.S.C. § 3582(c)(2) does not result in a new judgment, but only in the modi­fi­ca­tion of an existing one, and a defendant may not thereby avoid the requirements for filing second or suc­cessive motions under 28 U.S.C. § 2255. United States v. Jones, 796 F.3d 483 (5th Cir. 2015).

        Because D’s current § 2255 motion raised a claim that he could have raised in a prior application, and because no “new judgment” had intervened between the filing of his current § 2255 motion and the filing of his previous ones, his current § 2255 motion was successive to his previous ones. Accordingly, the Fifth Circuit affirmed the district court’s order transferring D’s case to the Fifth Circuit and ordered D to file a motion for authorization of a successive § 2255 motion pursuant to 28 U.S.C. § 2244(b)(3)(A) within 30 days of notification by the clerk; D was advised that failure to do so would result in an order denying authorization.

Where D’s notice of appeal was not filed within the 14-day period prescribed by Fed. R. App. P. 4(b)(1)(A)(i), nor the 30-day extension period set out in Fed. R. App. P. 4(b)(4)(B), the Fifth Circuit granted the Government’s motion to dismiss the appeal for untimeliness. United States v. Hernandez-Gomez, 795 F.3d 510 (5th Cir. 2015).

        Although the time limits of Fed. R. App. P. 4(b) are not jurisdictional, and thus may be waived, the Government did not waive its right to invoke those limits here. The Fifth Circuit held that a motion to dismiss for untimeliness filed with or before the Government’s first substantive filing (usually its first brief) is timely.

In trial of D charged with violating 18 U.S.C. § 2423(a) by transporting persons under age 18 across state lines with the intent that they engage in criminal sexual activity, the district court did not plainly err in admitting evidence of uncharged sexual assaults by D. United States v. Lewis, 796 F.3d 543 (5th Cir. 2015).

Court of Criminal Appeals

An original writ of habeas corpus in the Court of Criminal Appeals is not the proper avenue for seeking an out-of-time petition for discretionary review from a judgment imposing community supervision. Ex parte Valdez, 489 S.W.3d 462 (Tex.Crim.App. 2016).

        “We filed and set this application for an original writ of habeas corpus to consider whether an original writ of habeas corpus in this Court is the proper avenue for seeking an out-of-time petition for discretionary review (PDR) from a judgment imposing community supervision. . . . Applicant has sought relief in this Court by virtue of a ‘Constitutional writ’ rather than invoking our appellate jurisdiction via PDR from a writ application filed with the trial court and taken through the usual appellate process. Because this is not the type of circumstance calling for this Court’s exercise of its original habeas corpus jurisdiction, we dismiss the application. . . .
[T]his Court will accept a ‘Constitutional writ’ application as an original matter only in extraordinary circumstances.”

Under Tex. Code Crim. Proc. art. 38.43, the trial court has, in the absence of agreement by the State and defendant, the discretion to determine when all necessary biological evidence has been tested; the trial court did not abuse that discretion when it ruled further testing of collected biological material was unnecessary and ordered the case move forward to trial. In re Solis-Gonzalez, 489 S.W.3d 459 (Tex.Crim.App. 2016).

        In 2012, a grand jury indicted D for capital murder. Pursuant to Tex. Code Crim. Proc. art. 38.43, the State moved for DNA testing of biological material collected in the case. The trial court granted that testing. Because of the large number of pieces of biological material, the Texas Department of Public Safety forensics laboratory advised the trial court that it would be unable to complete testing on all pieces until June 2015. The trial court advised the parties of its intent to have a pretrial hearing to determine the applicability of Article 38.43. In a 2014 letter to the defense, the trial court directed the defense to identify any necessary piece of material that it believed the State had failed to submit for testing and provide justification for testing that material. At the hearing, the State asserted it had submitted all of the collected material—more than 200 samples—but argued that testing every sample was unnecessary, and that the testing that had been performed was sufficient. The defense asserted that Article 38.43 created an “absolute right to have all the evidence tested.” The trial court ruled that further testing was unnecessary and that the case would move forward to a May 2015 trial.

        D here filed a motion for leave to file an emergency mandamus application that would require all the biological material be tested. CCA denied relief. “The state submitted all biological material in its possession for forensic analysis. After testing had been performed on a large part, but not all, of the submitted material, the trial court instructed the defendant to identify what untested material was necessary to his defense and to specify, by a date certain, why such testing was so necessary as to delay trial. The trial court found that the defense response did not legally support further delay.”

D argued that charging him witness fees after trial violated his Sixth Amendment right of confrontation and compulsory process; this argument could be raised for the first time on direct appeal because he had no opportunity to raise it in trial court. London v. State, 490 S.W.3d 503 (Tex.Crim.App. 2016).

        “Rather than challenge the constitutionality of the trial court’s imposition of court costs through a hearing . . . or a sep­arate civil lawsuit, Appellant sought to raise, on direct appeal, an as-applied challenge to two provisions in [Tex. Code Crim. Proc. art. 102.011] that impose mandatory court costs upon conviction. The court of appeals . . . held that Appellant failed to preserve error on this claim. We granted review to determine whether Appellant could raise his as-applied challenge for the first time on appeal, and whether a formal bill of exceptions was necessary to provide a sufficient record for the court of appeals. . . . Without considering the merits of the underlying claim, we hold that Appellant was not required to raise his as-applied challenge in the trial court because his first opportunity to do so was on direct appeal. We also hold that Appellant’s as-applied challenge can be evaluated upon the record presented. Consequently, we reverse and remand for the court of appeals to consider the merits of Appellant’s as-applied challenge.”

        Although D could have filed a bill of exceptions under Tex. R. App. P. 33.2, no bill of exceptions was required in this case to provide COA with a sufficient record to evaluate the chal­lenge. Furthermore, D was not required to use the Tex. Code Crim. Proc. art. 103.008 procedure to correct error in the imposition of court costs. It was immaterial which party had summoned each witness because Article 102.011 did not condition the imposition of fees upon which party summoned the witnesses.

During D’s trial on charges of aggravated sexual assault of a child, the trial court abused its discretion by not permitting D to cross-examine the complainant regarding complainant’s sexual abuse of complainant’s sister because such evidence supported D’s theory that complainant had a motive to falsely accuse D of molestation. Johnson v. State, 490 S.W.3d 895 (Tex.Crim.App. 2016).

        D was convicted of two counts of aggravated sexual assault of a child. On appeal, D claimed the trial court erred in excluding evidence of the complainant’s past sexual behavior. D argued that this evidence was relevant to his defense of fabrication, that excluding this evidence violated his right of confrontation, and that it was admissible under the Texas Rules of Evidence. COA held that the trial court did not abuse its discretion in excluding the evidence and affirmed D’s conviction. CCA reversed COA and remanded to that court for a harm analysis under Tex. R. App. P. Rule 44.2(a).

        The proffered cross-examination by D’s counsel should have been permitted. The evidence was admissible under Tex. R. Evid. 412; it was required to be admitted under the Confrontation Clause; and the probative value of the evidence outweighed the danger of unfair prejudice.

Exigent circumstances justified D’s warrantless blood draw; officers reasonably believed D’s intoxication was responsible for the traffic accident, and obtaining a warrant was impractical and would have significantly undermined the efficacy of searching D’s blood. Cole v. State, 490 S.W.3d 918 (Tex.Crim.App. 2016).

        At D’s intoxication-manslaughter trial, the judge overruled D’s motion to suppress evidence obtained by a warrantless blood draw; D was convicted. Holding that the record did not establish exigent circumstances, COA reversed the trial court. CCA reversed and remanded to COA.

        A warrantless search was justified under the exigency ex­ception to U.S. Const. amend. IV’s warrant requirement. Both the time required to complete the accident investigation and the lack of available law enforcement personnel further hin­dered pursuing the warrant process. The record did not establish that there was a readily available officer who could have gotten a warrant while the investigator continued his investigation and another officer kept defendant in custody at the hospital; officers were confronted with the logistical and practical constraints posed by a severe accident involving a death and the attendant duties this accident demanded. Furthermore, without a known elimination rate of methamphetamine, law enforcement faced inevitable evidence destruction without the ability to know how much evidence it was losing as time passed. Only after the investigator measured, calculated, and assessed the vehicles’ damage was he able to form probable cause to believe that D was responsible for the accident and the victim’s death.

The State failed to justify the warrantless taking of D’s blood by failing to demonstrate that practical problems existed in obtaining a warrant within a timeframe that still preserved the opportunity to obtain reliable evidence. Weems v. State, No. PD-0635-14 (Tex.Crim.App. May 25, 2016).

        At his felony driving-while-intoxicated trial, D moved to suppress the results of a warrantless blood draw. The judge denied his request. COA reversed, holding, among other things, that the State failed to establish that D’s warrantless blood draw was justified by exigent circumstances. CCA affirmed COA.

        The State failed to meet its burden and establish that exigent circumstances satisfied the U.S. Const. amend. IV reasonableness standard. While evading law enforcement by fleeing the accident scene and hiding, D’s blood alcohol concentration potentially diminished along with possible evidence to prove or disprove his level of intoxication at the time of driving; aside from D’s own self-imposed delay and the 40 minutes’ worth of alcohol dissipation, little else in the record lent support to finding exigency. The deputy’s testimony suggested that substantial delay in obtaining D’s blood was at least foreseeable. Another officer’s presence at the hospital militated against find­ing that practical problems prevented the State from obtaining a warrant within a timeframe that preserved the opportunity to obtain reliable evidence.

The defense theory raised in voir dire and opening statements opened the door to the extraneous-offense evidence presented by the State, and the State was not required under Tex. R. Evid. 404(b) to provide notice of such rebuttal evidence. Dabney v. State, 492 S.W.3d 309 (Tex.Crim.App. 2016).

        A jury found D guilty of manufacturing methamphetamine, and he was sentenced to 30 years in prison. He appealed, arguing that the trial court erred in admitting evidence of a prior unadjudicated offense of manufacturing meth because the State failed to give proper notice under Tex. R. Evid. 404(b). COA held that the evidence was inadmissable and reversed the trial court. CCA reversed COA.

        COA erred in adding a notice requirement for rebuttal evidence to Rule 404(b) and in failing to defer to the trial court’s decision. COA improperly substituted its judgment for the trial judge’s in concluding that the prosecutor was engaging in gamesmanship instead of legitimately rebutting a defensive theory. There was no evidence that the State’s presentation of this extraneous-offense evidence as rebuttal was an attempt to circumvent the pretrial discovery order.

D failed to object, on three occasions, to the testimony about his DWI blood test; because D failed to obtain a ruling on this Fourth Amendment complaint, he failed to preserve error. Smith v. State, No. PD-1615-14 (Tex.Crim.App. June 8, 2016).

        D was convicted of driving while intoxicated. His conviction was based in part on evidence obtained in a warrantless mandatory blood draw conducted pursuant to Tex. Trans. Code § 724.012(b). COA reversed D’s conviction on the basis that drawing D’s blood without a warrant violated U.S. Const. amend. IV. In its petition for review, the State contended that D failed to preserve error with respect to this complaint. CCA agreed, reversed COA, and remanded for COA to consider D’s remaining points of error.

        D never obtained a ruling on this complaint; D never asked for a ruling on the issue, nor did he object to the judge’s failure to rule. After finding D guilty, the judge reiterated that the Fourth Amendment issue had not been resolved. Even if D had obtained a ruling on his objection to the blood vial itself, the test results were already in evidence. It is well settled that the erroneous admission of testimony is not cause for reversal if the same fact is proven by other testimony not objected to.

Court of Appeals

Trial court did not err in denying D’s motion to suppress because the issue of her unlawful detention was an element of the charged offense, failure to identify, and thus improperly raised in a pretrial motion. Gonzalez v. State, No. 13-16-00092-CR (Tex.App.—Corpus Christi Sept 1, 2016).

        D was charged with two counts of failure to identify, Tex. Penal Code § 38.02. D filed a motion to suppress, challenging the unlawful nature of her detention as a vehicle passenger. D argued that her rights under U.S. Const. amend. IV; Tex. Const. art. 1, § 9; and Tex. Code Crim. Proc. art. 38.23 were vio­lated because the officers had no reasonable suspicion to detain her.D requested the suppression of all evidence seized as a result of the warrantless search, which included all evidence obtained from D, all statements provided by D, and all testimony of officers working at the scene concerning D’s con­duct after officers detained her. The trial court denied D’s mo­tion. Subsequently, D pleaded guilty to failure to identify. D appealed, challenging the denial of the motion to suppress. COA affirmed.

        The trial court did not err in denying D’s motion to suppress because, by asking the trial judge to suppress her arrest and the details of failing to provide her name to the officer as the product of an unlawful detention, D was in effect asking the judge to rule on whether the State had proof of an element of the charged offense of failure to identify, i.e., lawful detention under § 38.02(2). She was asking the judge to address the merits of the case itself, not to address issues that can be determined before a trial on general issues of the case. D, in essence, tried to argue in her motion and on appeal that the State could not prove one of the elements of the crime—that the State could not prove the detention for which she provided a false or fictitious name was lawful because it was unreasonable. If the trial judge granted D’s motion to suppress her misidentification and ensuing detention, the State could no longer prosecute D for failure to identify. A suppression hearing is for the limited purpose of addressing preliminary matters, not the merits of the case itself, and it may not be used to decide the sufficiency of the evidence to support an element of the offense.

October 2016 SDR – Voice for the Defense Vol. 45, No. 8

Voice for the Defense Volume 45, No. 8 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

SORNA did not require D, a registered sex offender, to update his registration in Kansas once he left the state and moved to the Philippines. Nichols v. United States, 136 S. Ct. 1113 (2016).

        D moved from Kansas to the Philippines without updating his sex-offender registration, was arrested, escorted to the United States, and charged with violating the Sex Offender Registration and Notification Act, 42 U.S.C.S. § 16901 et seq., for failing to register under 18 U.S.C.S. § 2250(a). These statutes made it a federal crime for certain sex offenders to “knowingly fai[l] to register or update a registration” and required sex offenders who move to another state to, “no later than 3 business days after each change of name, residence, employment, or student status,” inform in person at least one jurisdiction “where the offender resides[.]” After conditionally pleading guilty, D argued on appeal that SORNA did not require him to update his registration in Kansas. The Tenth Circuit affirmed his conviction, holding that though D left Kansas, it remained a “jurisdiction involved” for SORNA purposes.

        The Supreme Court reversed: “Critical here is § 16913(a)’s use of the present tense. Nichols once resided in Kansas, but after moving, he ‘resides’ in the Philippines. It follows that once Nichols moved, he was no longer required to appear in Kansas because it was no longer a ‘jurisdiction involved.’ Nor was he required to appear in the Philippines, which is not a SORNA ‘jurisdiction.’ § 16911(10). Section 16913(c)’s requirements point to the same conclusion: Nichols could not have appeared in person in Kansas ‘after’ leaving the State. SORNA’s drafters could have required sex offenders to deregister in their departure jurisdiction before leaving the country had that been their intent. . . . The Government resists this straightforward reading. It argues that a jurisdiction where an offender registers remains ‘involved’ even after the offender leaves, but that would require adding the extra clause ‘where the offender appears on a registry’ to § 16913(a). Also unconvincing is the claim that § 16914(a)(3)’s requiring the offender to provide each address where he ‘will reside’ shows that SORNA contemplates the possibility of an offender’s updating his registration before he actually moves. That provision merely lists the pieces of information to be updated; it says nothing about an obligation to update in the first place. Finally, the Government’s argument that Nichols actually experienced two ‘changes’ of residence—first, when he turned in his apartment keys in Kansas, and second, when he checked into his Manila hotel—is inconsistent with ordinary English usage. . . . Recent legislation by Congress, as well as existing state-law registration requirements, offers reassurance that sex offenders will not be able to escape punishment for leaving the United States without notifying their departure jurisdictions.”

The Sixth Circuit improperly applied the AEDPA standard in finding D’s appellate counsel was constitutionally ineffective for excluding an ineffective-assistance claim; a fair-minded jurist could have concluded that repetition of an anonymous tip did not establish that the uncontested facts the tip conveyed were submitted for their truth, so appellate counsel was not incompetent in excluding an ineffective-trial-counsel claim. Woods v. Etherton, 136 S. Ct. 1149 (2016).

        Michigan law enforcement received an anonymous tip that two white males were traveling between Detroit and Grand Rapids on I-96 in an Audi and were possibly carrying cocaine. D matched that description and was pulled over. Both he and his passenger were arrested when the officers found 125.2 grams of cocaine in the car. During D’s state-court trial, several police officers testified and described the anonymous tip, which was “not evidence” but admitted “only to show why the police did what they did.” D was convicted of possession of cocaine with intent to deliver. The court of appeals affirmed, and the Michigan Supreme Court denied leave to appeal. D sought state post-conviction relief and argued that the admission of the anonymous tip violated the U.S. Const. amend. VI Confrontation Clause, his trial counsel was ineffective for failing to object to the tip on that ground, and his counsel on direct appeal was ineffective for failing to raise the previous two claims. The state court denied post-conviction relief because D failed to prove that his counsel acted unreasonably.

        D then sought federal habeas relief under the Antiterrorism and Effective Death Penalty Act, which specifies that federal habeas relief is only available after a state court’s denial if the state court’s decision involved an unreasonable application of clearly established federal law; federal habeas relief is unavailable if “fairminded jurists” could disagree as to the validity of the state court’s determination. The federal district court denied relief by finding the state court’s denial of relief was objectively reasonable because D’s counsel was adequately prepared for trial. The Sixth Circuit reversed and held that D’s right to confrontation had been violated because the anonymous tip was referenced four times during trial, which indicated that the tip was admitted for its truth. The Sixth Circuit concluded D’s counsel had been constitutionally ineffective and no fair-minded jurist could conclude otherwise.

        The U.S. Supreme Court reversed the Sixth Circuit. Under the AEDPA, a state court’s determination that a habeas claim lacks merit precludes federal habeas relief so long as “fair-minded jurists could disagree” on the state court’s decision. Additionally, when the claim at issue is for ineffective assistance of counsel, review must be “doubly deferential” to the state court. The Sixth Circuit incorrectly applied this standard; fair-minded jurists could disagree regarding D’s claim that his appellate counsel was constitutionally deficient for not challenging an anonymous tip on confrontation grounds.

Fifth Circuit

The federal stalking statute, 18 U.S.C. § 2261A, is not unconstitutionally vague simply for not defining “harass” and “intimidate.” United States v. Conlan, 786 F.3d 380 (5th Cir. 2015).

        On plain-error review, the Fifth Circuit held that these are not obscure words and readily understandable by most people. Any vagueness concerns are further alleviated by the list of easily understood terms surrounding “harass” and “intimidate” (“kill, injure . . . or cause substantial emotional distress”) and by the statute’s scienter requirement, which narrows its scope and mitigates arbitrary enforcement.

        (2) D’s two convictions under 18 U.S.C. § 2261A(2) were not multiplicitous and did not violate the U.S. Const. amend. V Double Jeopardy Clause, even though they arose out of the same conduct. The unit of prosecution for § 2261A(2) is the targeted individual; thus the Government needs to prove different intents to harm two victims to convict the defendant of two separate counts.

District court misapprehended its authority to vary down­ward from the Guideline range established by the “career offender” Guidelines; the district court failed to appreciate that 18 U.S.C. § 3553(a) provided it with discretion to vary from the advisory sentencing range. United States v. Clay, 787 F.3d 328 (5th Cir. 2015).

        A district court has discretion to vary from a Sentencing Guideline range irrespective of whether that particular sentencing recommendation arises under the “career offender” pro­vi­sion in USSG § 4B1.1; a district court’s sentencing discretion is no more burdened when a defendant is characterized as a “career offender” under § 4B1.1 than it would be in other sen­tenc­ing decisions. A district court’s failure to recognize its discretion to vary in this context constitutes procedural error. Because the Government did not establish that the error was harm­less, the Fifth Circuit remanded for resentencing. The Fifth Circuit noted that the district court had, apparently in­ad­vertently, failed to give D an opportunity to allocate at his first sentencing hearing, but the Fifth Circuit was “confident that the district court will allow [D] an opportunity to allocate prior to resentencing.”

D was not foreclosed from challenging his counsel’s failure to advise him of deportation consequences of his guilty plea solely because the district court notified him that deportation following the service of his sentence was “likely.” United States v. Batamula, 788 F.3d 166 (5th Cir. 2015).

        Where noncitizen D—convicted on his guilty plea of making a false statement to a federal agent (18 U.S.C. § 1001) and mak­ing a false statement in an application for a passport (18 U.S.C. § 1542)—raised, in a 28 U.S.C. § 2255 motion, a claim under Padilla v. Kentucky, 559 U.S. 356 (2010)(a claim that he received ineffective assistance because his counsel did not ad­vise him that the offenses to which he was pleading guilty would result in his deportation), the district court erred in grant­ing the Government’s motion for summary judgment and denying D’s motion. A judge’s statement at the guilty-plea proceeding that deportation is “likely” is not dispositive of whether a petitioner whose counsel failed to advise him re­garding the immigration consequences of his plea can demonstrate prejudice therefrom. Because the record was insufficiently developed to determine whether D was entitled to relief on his claim, the Fifth Circuit reversed and remanded.

In trial of drug offenses, district court did not abuse its discretion in denying D’s request for an instruction on sentencing entrapment (that the agents purposefully inflated the drug quantity). United States v. Macedo-Flores, 788 F.3d 181 (5th Cir. 2015).

        Although the Fifth Circuit has never recognized this de­fense, the Fifth Circuit has stated that if it did accept the de­fense, it would only be cognizable in cases involving “true entrapment” or where there is proof of overbearing and outrageous conduct on the Government’s part; D’s case did not meet this standard.

District court reversibly erred in applying a 16-level “crime of violence” enhancement under USSG § 2L1.2(b)(1)(A)(ii) based on D’s prior Louisiana conviction for aggravated battery. United States v. Hernandez-Rodriguez, 788 F.3d 193 (5th Cir. 2015).

        D’s prior offense of conviction (La. Rev. Stat. § 14:34) did not necessarily have as an element the use, attempted use, or threatened use of physical force because the conviction’s documents did not rule out a conviction under the administration-of-poison alternative of the statute. Furthermore, a conviction for the least culpable violation of the statute does not constitute generic “aggravated assault.” Because the Government did not carry its burden of proving this error harmless, the Fifth Circuit remanded for resentencing.

Use of a false immigration document is not a “continuing offense” for statute-of-limitations purposes; the in­dictment was filed outside the limitations period. United States v. Tavarez-Levario, 788 F.3d 433 (5th Cir. 2015).

        The offense of “use” of an immigration document, “knowing it to be forged, counterfeited, altered, or falsely made” or “procured by fraud or unlawfully obtained” (18 U.S.C. § 1546(a)), does not qualify within the “doctrine of continuing of­fenses” for statute-of-limitations purposes. Consequently, the indictment in this case was filed outside the applicable five-year limitations period. The Fifth Circuit reversed D’s con­vic­tion and remanded for dismissal of the indictment.

In sentencing D convicted of receipt of child pornography, district court abused its discretion by imposing a special condition of supervised release that prohibited D from accessing computers or the internet for the rest of his life. United States v. Duke, 788 F.3d 392 (5th Cir. 2015).

        Such a condition is not narrowly tailored and therefore imposes a greater deprivation than reasonably necessary to prevent recidivism and protect the public, especially in light of the ubiquity and importance of the internet. The district court also abused its discretion by imposing an absolute, lifetime special condition of supervised release prohibiting D from having any contact with minors for the rest of his life. The Fifth Circuit vacated those two special conditions of supervised release and remanded for resentencing.

Government did not plainly err in withholding a motion for a third-level reduction based on D’s refusal to waive appeal. United States v. Morales-Rodriguez, 788 F.3d 441 (5th Cir. 2015).

        Though it would have been error for the Government to withhold a motion for a third-level reduction under USSG § 3E1.1(b) simply because the defendant refused to waive ap­peal, it was not plain that the Government withheld the § 3E1.1(b) for this reason. D was not entitled to relief on plain-error review.

Where the district court issued an unconditional writ re­leasing D and prohibiting retrial, the Fifth Circuit granted the State of Louisiana’s motion for a stay of the district court’s order for the duration of the appeal on the merits. Woodfox v. Cain, 789 F.3d 565 (5th Cir. 2015).

        The district court issued an unconditional writ releasing D and prohibiting retrial after the Fifth Circuit affirmed the district court’s grant of federal habeas relief to Louisiana state defendant on the ground of racial discrimination in the selection of the grand jury foreperson. Woodfox v. Cain, 772 F.3d 358 (5th Cir. 2014). To succeed on the merits of the appeal, the State must show that the district court abused its discretion by ordering D’s unconditional release and prohibiting retrial. The State made a strong showing of likelihood of success on the merits. A federal court’s absolute bar on retrial by the state court is rarely warranted. Additionally, the remaining stay factors—the State’s irreparable injury and the public interest—also favored the State; indeed, the State maintained that D was still both dangerous and a flight risk. Although the Fifth Cir­cuit granted the motion for a stay pending appeal, it also sua sponte ordered the appeal on the merits expedited.

In alien-transporting trial, D waived her Confrontation Clause challenge to the out-of-court testimony of the alien; counsel may waive his client’s U.S. Const. amend. VI right of confrontation by stipulating to the admission of evidence so long as the defendant does not dissent from his attorney’s decision, and so long as the decision was a legitimate trial tactic or part of a prudent strategy. United States v. Ceballos, 789 F.3d 607 (5th Cir. 2015).

        A permissible waiver of the right of confrontation is not contingent on evidence that the defendant affirmatively and personally agreed to counsel’s stipulation; she just must not dissent from that decision.

Court of Criminal Appeals

Trial court erroneously included a provoking-the-difficulty jury instruction as there was insufficient evidence of provocation; D suffered harm from the instruction based on its wording and his theory of self defense. Eli­zondo v. State, 487 S.W.3d 185 (Tex.Crim.App. 2016).

        D, a U.S. Customs and Border Protection Agent, while off duty, shot and killed a man. D claimed self-defense, but the jury convicted him of murder. COA affirmed. D petitioned CCA to review COA’s analysis of the alleged jury-charge errors.

        CCA concluded that COA erred by upholding the inclusion of a provoking-the-difficulty instruction under Texas Penal Code § 9.31(b)(4) in the jury charge. There was no evidence that D orchestrated a set of events as a ploy to kill this man he did not know because there was no evidence that when D ran to his truck, he was goading the man into following him and attacking him. CCA additionally held that the erroneous inclusion of the provocation instruction caused D “some harm.” D suffered some error as a result of the instruction because the provocation charge that was given was incorrectly worded, mis­leading, and confusing, and D’s entire defense rested on a self-defense theory. CCA reversed COA and remanded for a new trial.

In D’s trial for evading arrest, he pleaded not guilty on the record, which was silent as to whether he pleaded to an enhancement for a prior conviction; CCA would not presume he pleaded “true” to the enhancement, but the evidence supported the finding that it was true. Wood v. State, 486 S.W.3d 583 (Tex.Crim.App. 2016).

        D was found guilty of evading arrest, and the trial court found that the enhancement alleged in the indictment was “true.” D was sentenced to four years’ imprisonment. He appealed, arguing there was no basis for the finding that the enhancement paragraph was true. COA held that the State failed to prove the conviction used for enhancement. COA reversed the punishment portion of the judgment and remanded for a new punishment hearing. CCA reversed COA.

        COA did not err by refusing to apply a presumption that D pleaded “true” to the enhancement; CCA rejected the State’s argument that a presumption should be applied if the trial court finds an enhancement “true” and the defendant does not object. Furthermore, although the judgment said that the plea to the enhancement paragraph was “true to repeater,” the rest of the record showed the contrary: D offered testimony and evidence at the bench trial in an attempt to refute the officer’s testimony, and requested probation, indicating that his guilt and punishment were disputed in the trial court. However, CCA concluded the evidence was sufficient to prove the en­hance­ment allegation; D admitted a conviction for drug possession and that he had received a six-year term and had served three years in prison and three on parole.

Trial court did not err to conclude officer was justified in stopping D’s vehicle; officer had reasonable suspicion to detain D to investigate both the offense of failing to maintain a single lane of traffic and the offense of DWI. Leming v. State, No. PD-0072-15 (Tex.Crim.App. Apr 13, 2016).

        D pleaded guilty to, and was convicted of, the offense of driving while intoxicated, a felony in this instance because he had two prior DWI convictions. Tex. Penal Code § 49.09(b)(2). Prior to his plea, D filed a motion to suppress the product of the traffic stop by which the offense was discovered. The trial court denied his motion, and D challenged that ruling on appeal. COA reversed the ruling. CCA reversed COA and re­instated the trial court’s judgment.

        An officer had reasonable suspicion to stop D’s vehicle to investigate the offense of failing to maintain a single lane of traf­fic, even if he could not quite tell whether D had actually en­tered the adjacent lane, because he observed that D drove on the divider stripes and several times came close to entering the adjacent lane. Under Tex. Transp. Code § 545.060, it is an independent offense to fail to remain entirely within a marked lane of traffic so long as it remains practical to do so, regardless of whether the deviation from the marked lane is, under the particular circumstances, unsafe. The officer also had an objectively reasonable basis under U.S. Const. amend. IV to suspect D was intoxicated because a partially identified informant saw the vehicle swerving from side to side and the officer corroborated this observation.

Tex. Code Crim. Proc. art. 38.23(a) did not mandate that medical records of D’s blood alcohol concentration be suppressed; the State obtained the records in the absence of any specific statutory violation and in the absence of any manifest abuse of the grand jury’s ordinary investigative function, when the grand jury subpoena duces tecum was proper and within Tex. Code Crim. Proc. arts. 20.10 & 20.11. State v. Huse, No. PD-0433-14 (Tex.Crim.App. Apr 13, 2016).

        In this prosecution for misdemeanor driving while intoxicated, the State obtained evidence of D’s blood-alcohol concentration by issuing a grand jury subpoena for his hospital medical records. The trial court granted D’s motion to suppress on two grounds relevant to D’s current petition for review: (1) obtaining D’s medical records without a warrant violated U.S. Const. amend. IV, necessitating suppression under both the federal exclusionary rule and Tex. Code Crim. Proc. art. 38.23; and (2) a misuse of the grand jury subpoena process caused the State’s acquisition of D’s medical records to violate both state and federal law, also requiring suppression under the Texas exclusionary rule, Article 38.23.

        COA reversed the order suppressing the evidence, holding that the trial court erred: (1) under State v. Hardy, 963 S.W.2d 516 (Tex.Crim.App. 1997), D lacked standing to raise a Fourth Amendment challenge to the State’s acquisition of his medical records; and (2) the State did not acquire D’s medical records through an unlawful grand jury subpoena, so it was unnecessary to suppress them under Article 38.23.

        CCA affirmed COA. The Health Insurance Portability and Accountability Act of 1996 did not materially impact the Hardy holding with respect to Fourth Amendment standing to complain of the State’s acquisition of specific medical records. Second, the State did not acquire D’s medical records by way of a grand jury subpoena process that violated either HIPAA or state law and thus did not necessitate that they be suppressed under Article 38.23.

D’s punishment was properly enhanced even though the State did not prove the sequentiality of his two prior felony convictions and omitted the year of the second conviction; D’s plea of true to the enhancement allegations relieved the State of its burden to prove the allegations, and the record did not affirmatively re­flect that the enhancements were improper. Hopkins v. State, 487 S.W.3d 583 (Tex.Crim.App. 2016).

        D was found guilty of aggravated robbery with a deadly weapon. The State sought to enhance D’s punishment under the habitual-offender statute with two prior aggravated assault con­victions. Tex. Penal Code § 12.42(d). D pled true to those two prior convictions. The trial court accepted D’s pleas and found the enhancements to be true, and sentenced D to life im­prisonment. He appealed, arguing in part that the evidence at trial was insufficient to prove the enhancement allegations be­cause the State failed to prove the sequentiality of the two prior convictions. COA affirmed D’s conviction, holding that his plea of true to both enhancements was sufficient evidence to support a finding on those allegations. CCA affirmed COA.

        “Appellant pled ‘true’ to the enhancement allegations, which relieved the State of its burden to prove those allegations. After relieving the State of its burden by pleading ‘true’ to the enhancements, to prevail Appellant had to show that the record affirmatively reflected that the enhancements were improper. However . . . not only does Appellant fail to direct us to any record evidence affirmatively showing that the enhancements were improper, the record actually supports the enhancement allegations. Thus, the Fifth Court of Appeals properly applied our caselaw[.]”

The offense of improper contact with a victim was not unconstitutional as applied to D contacting his biological son while D was imprisoned for the aggravated sexual assault of his former step-daughter; D failed to show that a protected liberty interest was infringed because his right to privately communicate with his son had already been permanently enjoined in a civil order. Schlittler v. State, 488 S.W.3d 306 (Tex.Crim.App. 2016).

        “Appellant challenges the statute defining the offense of Improper Contact with a Victim under Texas Penal Code Section 38.111, which prohibits a person confined in a correctional facility after being convicted of certain sex offenses from contacting the minor victim of the offense or a minor member of the victim’s family. He explains that he was convicted under that statute for contacting his biological son while imprisoned for the aggravated sexual assault of his former step-daughter, who is also his son’s half-sister. Appellant argues that, because it prohibits contact between him and his biological son, the statute, as applied, infringes upon his fundamental liberty in­terest in the care, custody, and management of his son, in vio­lation of his rights to due process and equal protection un­der the Fourteenth Amendment to the federal Constitution. . . . With respect to appellant’s due-process challenge, we conclude that, under the particular facts of this case that show that appellant’s right to privately communicate with his son had already been permanently enjoined as a result of a separate civil-court order, appellant has failed to show that he had a protected liberty interest that was infringed upon by the statute, and thus his constitutional rights were not violated on that basis. With respect to appellant’s equal-protection complaint, we further conclude that Section 38.111 is neither based on a suspect classification, nor does it unduly infringe upon a fundamental liberty interest under the facts of this case, and, therefore, its application to appellant’s circumstances does not result in a constitutional violation. We, therefore, affirm the court of appeals’ judgment upholding appellant’s conviction.”

During trial, defense counsel learned about a possible right-to-counsel violation that occurred before trial and presented evidence involving the alleged violation, but counsel did not complain until appeal; thus, D forfeited his complaints. Darcy v. State, 488 S.W.3d 325 (Tex.Crim.App. 2016).

        D was on trial for burglary of a habitation. In an unrelated investigation of security at the county jail, a State investigator suspected a smuggling network was transmitting unauthorized messages to and from the jail. The investigator asked a friend of D’s to write D a note and pass it to the jail cook, which she did. At D’s trial, the friend was testifying for the State. During cross-examination, defense counsel produced the note and asked her to read it: “Chris, I know you are going to court Monday and I have been asked to be a witness. I have talked to Pat and told him I have not given them a statement. Is there anything I can do to help? Please get a note back to me as soon as possible.”

        Defense counsel clarified that he was not offering the note into evidence. The prosecutor then said the State would offer the note into evidence. Asked by the court if he had any objection to the exhibit, defense counsel said “no.” The note was admitted into evidence. On redirect, the prosecutor questioned the friend about the note. The State then called the investigator, who corroborated what the friend had said. Defense counsel did not object to any of the testimony about the note.

        On appeal, D complained about the State causing the note to be written and sent to him. He argued that his “due process right to a fair trial was violated by the State creating ‘evidence’ intended to open the door to extraneous offenses,” and that his “Sixth Amendment right to counsel was violated by the District Attorney’s Office contacting him during adversarial pro­ceedings while represented by counsel.” COA sustained these complaints; in a harm analysis, COA observed that the State introduced the note into evidence, the jury heard the testimony concerning the origin of the note, the evidence of investigation into jail-smuggling operations made D look like a criminal, and the jury asked during deliberations about any response by D to the note. Concluding D suffered harm, COA reversed and remanded.

        CCA said COA erred in failing to address preservation of error; D forfeited his complaints when he did not raise them at trial. D failed to raise any complaint to the trial court with respect to the note and sought relief for the first time on appeal. Any violation of the right to counsel relating to the note would have been immaterial to D’s conviction if the note and testimony had not been admitted into evidence; if error occurred, it was upon the admission of the note and testimony about it. CCA affirmed the trial court.

COA properly applied the Almanza harm standard to a jury-charge error raised in a motion for new trial and concluded D did not suffer egregious harm; COA also properly declined to defer to the trial court’s fact findings because they were matters of law or mixed questions of law and fact that did not turn on the credibility of evidence or demeanor of witnesses. State v. Ambrose, 487 S.W.3d 587 (Tex.Crim.App. 2016).

        D was a former kindergarten teacher who was convicted of misdemeanor official oppression after a trial at which the testimony of a purported accomplice was presented. After the jury found her guilty, D filed a motion for new trial alleging that the jury instructions were erroneous in that they failed to instruct the jury that the accomplice-witness testimony had to be corroborated. D further asserted she was egregiously harmed by the error. The trial court agreed, and it made what it characterized as findings of fact and conclusions of law in support of its ruling. On appeal, COA assumed without deciding that the trial court properly determined the jury instructions were erroneous; but, as to the matter of harm, it disregarded the trial court’s findings and conclusions and instead determined that D was not egregiously harmed under the substantive application of Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1984)(op. on. reh’g).

        D’s first two grounds for review contended COA erred by applying the Almanza egregious-harm standard and by fail­ing to defer to the trial court’s findings of fact made after the motion-for-new-trial hearing. D’s third ground for review asserted COA erred in concluding that the error was not egregiously harmful to her. CCA overruled all three of D’s grounds for review. COA properly held that (1) the Almanza harm standard applies to jury-charge error reviewed on appeal, even when the error was addressed in a motion for new trial, (2) it was not required to defer to the trial court’s factual findings in this case, and (3) the record failed to show that D was egregiously harmed by the error in the charge. D did not suffer egregious harm from the omission of the accomplice-witness instruction because there was strong corroborative evi­dence under Tex. Code Crim. Proc. art. 38.14 to connect her to the offense of official oppression; in light of the testimony from the principal, the assistant principal, and D herself that she either instructed or asked the students to hit the child and that the child was hit one or more times after that, there was an adequate amount of non-accomplice testimony to connect her to the offense.

D articulated a valid legal claim in his motion for new trial but did not produce evidence or point to evidence in the record that substantiated his claim; D presented evidence that his sentence was too harsh, not that it was unconstitutional. State v. Simpson, 488 S.W.3d 318 (Tex.Crim.App. 2016).

        D entered an open plea of guilty to second-degree felony robbery and true to an enhancement provision alleging one prior conviction for aggravated robbery. The trial court sentenced him to 25 years’ confinement. D filed a motion for new trial, alleging his sentence constituted a grossly disproportionate punishment under U.S. Const. amend VIII. The trial court granted a new punishment trial. On the State’s appeal, COA held that the record evidence did not substantiate D’s claim and vacated the trial court’s order. CCA affirmed COA.

        D argued that COA did not adequately defer to the trial court on the question of whether he presented evidence to substantiate his legal claim that his sentence was grossly disproportionate to the crime he committed. However, even under an abuse-of-discretion standard, the trial court acted without reference to guiding rules and principles when it granted a new punishment trial on the basis that D’s sentence was grossly disproportionate: “in light of Simpson’s role in the robbery and his significant prior adjudicated and unadjudicated offenses, his 25-year sentence is not one of those ‘rare’ cases where gross dis­proportionality can be inferred even when viewing the evidence in the light most favorable to the trial court’s ruling. . . .  Simpson’s sentence fell well within the statutory range of 5 to 99 years or life. Accordingly, there is no reason to compare his sentence to sentences imposed on others. . . . The trial court’s decision—to the degree that it found the constitutional claim substantiated—lies outside that zone within which reasonable persons might disagree. . . . Simpson sought to use an Eighth Amendment claim to develop additional evidence. . . . The evidence adduced at the hearing on the motion for new trial—evidence about Simpson’s minimal role in the offense, the age and circumstances of the prior offenses, his need for drug treatment, his employment—was undoubtedly relevant to the trial court’s normative punishment decision. It did not, however, substantiate Appellee’s legal claim that his sentence was unconstitutional.”

Court of Appeals

COA lacked jurisdiction over D’s appeals because no rule or statute authorized a defendant to appeal from an order denying a motion requesting the entry of a judgment nunc pro tunc. Desilets v. State, Nos. 09-16-00104-CR, 09-16-00105-CR (Tex.App.—Beaumont May 25, 2016).

        “Desilets filed appeals from the trial court’s order denying his request for a judgment nunc pro tunc as related to his convictions on two counts of intoxication assault. . . . [H]is complaint concerns the trial court’s alleged failure to properly credit him with having served 61 days in county jail after being sentenced but before his transfer to a prison. . . .

        “While appeals courts have jurisdiction over appeals from a final judgment of conviction, they do not have jurisdiction over appeals from orders denying requests for the entry of judg­ments nunc pro tunc because no statute has been passed creating appellate jurisdiction over such appeals. . . . Accordingly, the appeals are dismissed for lack of jurisdiction. A judgment nunc pro tunc makes a clerical change to the original judgment. . . . The trial court’s order denying Desilets’ motion makes no change to the original judgments; therefore, it is not a judgment nunc pro tunc.”

Officer did not have authority to perform an inventory search and, therefore, did not have authority to continue detaining defendant passenger while preparing to perform that search; because D was unlawfully detained, the evidence was insufficient to prove him guilty of evading arrest or detention. Capell v. State, No. 06-15-00186-CR (Tex.App.—Texarkana Sept 1, 2016).

        D was the passenger in a car subject to a traffic stop. Shortly after the initial stop, the vehicle’s driver was arrested and put in the patrol car. D waited in the vehicle while the investigating officer prepared paperwork. Approximately 15 minutes later, D exited the vehicle and fled the scene. He was subsequently arrested and charged with evading arrest or detention. D was found guilty in a bench trial. D appealed that he could not be convicted of evading detention because his detention was unlawful. In July 2016, COA reversed: “We find that Capell’s detention was unlawful and therefore reverse the trial court’s judgment and render a judgment of acquittal.”

        Here, COA denied the State’s motion for rehearing: “[A]n inventory search may be performed before an impoundment. But, as the 14th Court of Appeals noted, ‘[b]efore an inventory search is lawful, there must be a lawful impoundment.’. . . As we explained in our opinion above, the [officer] had no au­thority to impound the vehicle because he had a reasonable al­ternative to impoundment, namely, to turn the vehicle over to Capell. Because [officer] did not have authority to impound the vehicle, he did not have authority to perform an inventory search. Because he did not have authority to perform an inventory search, he did not have authority to continue detaining Capell. . . . [T]he State had the burden to prove there were no valid alternatives to impoundment[.]”

September 2016 SDR – Voice for the Defense Vol. 45, No. 7

Voice for the Defense Volume 45, No. 7 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

The Massachusetts court’s explanation for upholding the law prohibiting the possession of stun guns contradicted precedent; the Second Amendment extends to all instruments that constitute bearable arms, even those not in existence at the time of the founding. Caetano v. Massachusetts, 136 S. Ct. 1027 (2016).

        The Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by U.S. Const. amend. II. The Supreme Court here found that the explanation the Massachusetts court offered contradicted Court precedent. The Court vacated the judgment of the Supreme Judicial Court of Massachusetts and remanded.

        The Supreme Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570 (2008), and that this “Second Amendment right is fully applicable to the States,” McDonald v. Chicago, 561 U. S. 742 (2010).

        The Massachusetts court offered three explanations to support its holding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” This is inconsistent with Heller’s clear statement that the Second Amendment “extends . . . to . . . arms . . . that were not in existence at the time of the founding.” The court next asked, under Heller, whether stun guns are “dangerous per se at common law and unusual,” in an attempt to apply one “important limitation on the right to keep and carry arms.” In so doing, the court concluded that stun guns are “unusual” because they are “a thoroughly modern invention.” By equating “unusual” with “in common use at the time of the Second Amendment’s enactment,” the court’s second explanation is the same as the first; it is inconsistent with Heller for the same reason. Finally, the court used “a contemporary lens” and found “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.” But Heller rejected the proposition “that only those weapons useful in warfare are protected.”

The government improperly froze assets of D indicted for violations of health care laws; the assets had no connection to the charged crimes, and depriving D of the untainted assets intended to pay for counsel undermined D’s fundamental right to the assistance of counsel. Luis v. United States, 136 S. Ct. 1083 (2016).

        “A federal statute provides that a court may freeze before trial certain assets belonging to a defendant accused of violations of federal health care or banking laws. Those assets include (1) property ‘obtained as a result of’ the crime, (2) property ‘traceable’ to the crime, and (3), as relevant here, other ‘property of equivalent value.’ 18 U.S.C. § 1345(a)(2). The Government has charged petitioner Luis with fraudulently obtaining nearly $45 million through crimes related to health care. In order to preserve the $2 million remaining in Luis’ possession for payment of restitution and other criminal penalties, the Government secured a pretrial order prohibiting Luis from dissipating her assets, including assets unrelated to her alleged crimes. Though the District Court recognized that the order might prevent Luis from obtaining counsel of her choice, it held that the Sixth Amendment did not give her the right to use her own untainted funds for that purpose. The Eleventh Circuit affirmed. . . . The judgment is vacated, and the case is remanded.”

        The pretrial restraint of legitimate, untainted assets needed to retain counsel of choice violated U.S. Const. amend. VI. The nature and importance of the constitutional right taken together with the nature of the assets lead the Supreme Court to this conclusion. The government’s non-constitutional interest in preserving the assets to provide for payment of potential criminal forfeitures or restitution if D was convicted was not the equivalent of D’s constitutional right to the assistance of counsel of D’s choice.

Fifth Circuit

Fifth Circuit rejected D’s claim that he was ineligible for the death penalty due to his intellectual disability; D failed to show, by clear and convincing evidence, that the Texas Court of Criminal Appeals unreasonably determined D did not exhibit adaptive behavioral deficits that originated before age 18. Matamoros v. Stephens, 783 F.3d 212 (5th Cir. 2015).

        The Fifth Circuit rejected death-sentenced D’s claim that under Atkins v. Virginia, 536 U.S. 304 (2002), he was ineligible for the death penalty, even though the only competent scientific evidence in the record suggested that D had deficits in nu­merous adaptive behavior areas; the State’s expert was later discredited.

Fifth Circuit reversed the district court’s denial of D’s motion to suppress the evidence of cocaine found dur­ing a traffic stop premised on D’s failure to signal properly before turning; the record showed the officer had an incorrect legal understanding of the statute he sought to invoke (mistakenly thinking changing lanes required a signal). United States v. Alvarado-Zarza, 782 F.3d 246 (5th Cir. 2015).

        Although an objectively reasonable mistake of law does not violate U.S. Const. amend. IV (Heien v. North Carolina, 135 S. Ct. 530 (2014)), here the mistake of law was not objectively reasonable because the relevant interpretive case law far predated the stop, and the statute on its face gave no support to the officer’s erroneous interpretation of the statute. D had changed lanes to effectuate a turn. When the law in question is given its proper interpretation and applied to turning, not changing lanes, the officer also committed a critical mistake of fact; it was not objectively reasonable for officer to conclude D had failed to signal 100 feet prior to turning. In fact, the evidence (the video of the stop and the defense expert’s testimony) showed D had signaled 300 feet before turning (as opposed to simply changing lanes).

District court did not plainly err in applying an eight-level “aggravated felony” enhancement under USSG § 2L1.2(b)(1)(C) on the basis of D’s prior federal conviction for conspiracy to launder monetary instruments in violation of 18 U.S.C § 1956(h). United States v. Mendoza, 783 F.3d 278 (5th Cir. 2015).

        Whether the money-laundering-conspiracy conviction qualified as an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(D) turned on whether more than $10,000 was laundered. This inquiry was not subject to the categorical/modified categorical approach but rather, under Nijhawan v. Holder, 557 U.S. 29 (2009), was a circumstance-specific inquiry not subject to the proof constraints of the categorical/modified categorical approach. The evidence a court may consider under a circumstance-specific inquiry is broader than the evidence that may be considered under a modified-categorical analysis inquiry. The district court thus did not err in relying on D’s presentence report and attached documents to determine that D’s prior conviction involved over $10,000.

In sentencing D convicted of a threat to kill, injure, and unlawfully damage and destroy buildings by means of fire and explosives (in violation of 18 U.S.C. § 844(e)), the district court did not err in applying a six-level enhancement under USSG § 2A6.1(b)(1) for conduct evidencing an intent to carry out the threat. United States v. Pillault, 783 F.3d 282 (5th Cir. 2015).

        Although some overt act is required to justify a § 2A6.1(b)(1) enhancement, here the court did not clearly err in crediting testimony that D had committed such acts (e.g., buying copper pipe for a pipe bomb). Furthermore, in sentencing D, the district court did not improperly rely on rehabilitation or D’s need for treatment in imposing its 72-month prison sentence—a sig­nificant upward variance. Rather, the record showed that the primary justification for the sentence was public protection, and rehabilitation was simply a permissible secondary con­cern/additional justification.

Where D was charged with a petty offense committed on a federal enclave (a naval air station in Louisiana), it was not unconstitutional for a magistrate judge to try, convict, and sentence him, even without his consent. United States v. Hollingsworth, 783 F.3d 556 (5th Cir. 2015).

        D had no right to trial before an Article III judge.

In sentencing D convicted of receiving child pornography (18 U.S.C. §2252(a)(2)), the district court did not err in applying a five-level enhancement under USSG § 2G2.2(b)(3)(B) for distributing child pornography for the receipt of a non-pecuniary thing of value. United States v. Groce, 784 F.3d 291 (5th Cir. 2015).

        Generally, when a defendant knowingly uses peer-to-peer file-sharing software (as D did), he engages in precisely the kind of distribution contemplated by § 2G2.2(b)(3)(B). By using this software as D did, the user agrees to distribute the child pornography on his computer in exchange for additional child pornography. D knew that other users could download his files and that, by allowing users to do so, he would be dis­tributing child pornography; he also implied that he had know­ingly let users download from him. The Fifth Circuit did not reach the merits of the five-level enhancement for engaging in a pattern of activity involving the sexual abuse or exploitation of a minor, USSG §2G2.2(b)(5), because any error in this regard was harmless.

District court did not plainly err, on revocation of D’s supervised release, by going above the Guideline range of 24 to 30 months (and rejecting the magistrate’s recommendation of 28 months) based primarily on the seriousness of the murder charge that constituted one of D’s violations of supervised release. United States v. Rivera, 784 F.3d 1012 (5th Cir. 2014), on denial of reh’g, 797 F.3d 307 (5th Cir. 2015).

        Sentencing error occurs when an impermissible consideration is a dominant factor in the court’s revocation sentence; in United States v. Miller, 634 F.3d 841 (5th Cir. 2011), the Fifth Circuit held that it is improper for a district court to rely on 18 U.S.C. § 3553(a)(2)(A)(referencing the seriousness of the offense, respect for the law, and the need for just punishment of the offense) in the revocation context. Here, the seriousness of the murder and the need for just punishment were clearly dom­inant factors in D’s revocation sentence; moreover, the district court’s error affected D’s substantial rights. However, the Fifth Circuit “[could not] say that the district court’s revocation sentence of 60 months impugns the fairness, integrity, or public reputation of the court system.” The Fifth Circuit said, “[T]he facts here do not warrant correction of the error. At the hearing on [D]’s supervised release revocation, in considering the proper sentence, the district court observed that [D] was never charged with illegal reentry following deportation even though she had committed the crime. The district court further noted that an illegal reentry conviction would have resulted in a Guidelines range of 57–71 months.” Thus, the plain-error standard was not met; the Fifth Circuit affirmed the district court.

In a case charging an 18 U.S.C. § 1956(h) conspiracy to commit concealment-type money laundering in violation of § 1956(a)(1)(B)(i), the evidence was insufficient to sustain the conviction of one defendant (the trainer of the horses that were the center of the laundering operation). United States v. Colorado Cessa, 785 F.3d 165 (5th Cir. 2015).

        Particularly, the evidence was insufficient to show that the trainer joined the conspiracy knowing that its purpose was to conceal the source or nature of illegal funds.

        (2) The district court abused its discretion in instructing the jury that “the commingling of illegal proceeds with le­gitimate business funds is evidence of intent to conceal or dis­guise.” A jury instruction must make clear that an inference of this type is permissive and not mandatory, and this instruction does not do so. Although this error was harmless beyond a reasonable doubt as to two defendants, it was not harmless as to another defendant; the Fifth Circuit vacated that defendant’s conviction, sentence, and money judgment and remanded.

Where Louisiana defendant, convicted of armed robbery in 1985, was subjected to a 1997 Louisiana statute governing the forfeiture of good-time credits upon revocation of parole that was less favorable than the forfeiture rule in effect at the time of his offense, rejection of D’s ex post facto challenge was contrary to clearly established federal law. Price v. Warden, Forcht Wade Correctional Center, 785 F.3d 1039 (5th Cir. 2015).

        The state courts’ rejection of prisoner’s challenge was, namely, contrary to the Supreme Court’s summary affirmance in Greenfield v. Scafati, 277 F. Supp. 644 (D. Mass. 1967), aff’d mem., 390 U.S. 713 (1968). By summarily affirming in Greenfield, the Court necessarily held that it violated the U.S. Constitution Ex Post Facto Clause to apply a “good time” forfeiture law enacted after a prisoner’s sentencing even if the forfeiture is triggered by the parolee’s post-enactment conduct; because Greenfield was materially distinguishable from this case, the Fifth Circuit reversed the district court’s judgment denying federal habeas relief and remanded to the district court with instructions to order the state to either recalculate D’s sentence using the law in effect at the time of his offense or release him.

Court of Criminal Appeals

In a case in which D’s large family was excluded from voir dire not, according to the trial court, as a closure of the trial but because the jury panel would fill all the available chairs and space in the courtroom, COA was required to consider first whether D showed the trial was closed to the public and second whether the closure was justified. Cameron v. State, 482 S.W.3d 576 (Tex.Crim.App. 2016).

        D was found guilty of murdering her ex-boyfriend. COA reversed, holding that D’s right to a public trial was violated during voir dire because the public was asked to leave the courtroom to accommodate a large venire panel. On discretionary review in 2014, CCA affirmed COA. Here, CCA granted the State’s motion for rehearing. CCA vacated COA’s judgment and remanded to COA for application of correct prin­ciples. COA was required to defer to the trial court’s findings of fact that were supported by the record as a necessary prerequisite before it could resolve whether D met her burden of proof to show her trial was closed to the public based on the totality of the evidence, and then resolve the ultimate legal question of whether D’s public-trial right was violated.

The record was clear that the State did not object to the lack of affidavit verification given that the Tex. Code Crim. Proc. art. 64.01 motion was a joint filing; D’s failure to comply with the Chapter 64 verification requirement was a non-fatal pleading deficiency. Skinner v. State, 484 S.W.3d 434 (Tex.Crim.App. 2016).

        D was convicted of capital murder and sentenced to death for the killing of his girlfriend and her two sons in the home they shared. On direct appeal, CCA affirmed his conviction in 1997. Subsequent to his conviction, DNA testing was conducted pursuant to Tex. Code Crim. Proc. Chap. 64. The trial court found that the test results were not favorable to D. Here, he appealed that finding and asked CCA to decide whether it was reasonably probable that he would not have been convicted had the test results been available at trial. CCA abated this appeal: “In light of Appellant’s advisory [of errors in his DNA test] and the nature of this issue, this Court has determined that further fact-finding and analysis by the trial court may be in order.”

If the Tex. Code Crim. Proc. art. 11.07 habeas application had been received and was pending, the party had to file a motion to stay the proceedings pending the filing of evidence in trial court; CCA could consider evidence not filed in the trial court if compelling and extraordinary circumstances existed. Ex parte Pena, 484 S.W.3d 428 (Tex.Crim.App. 2016).

        D pleaded guilty to delivery of a controlled substance and did not appeal. In this habeas application, D contended his plea was involuntary and the State failed to disclose evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). CCA directed the parties to brief whether: (1) the misconduct in D’s case should be imputed to the prosecution for D’s Brady v. Maryland claim; (2) this misconduct was exculpatory; and (3) D’s plea was involuntary because of “impermissible conduct by state agents.” Brady v. United States, 397 U.S. 742 (1970). Attached to the State’s brief as Appendix A was a police incident report. This report was not filed in the trial court first. Here D filed a motion with CCA to strike the State’s brief or strike Appendix A and all references to it from the brief. D argued Appendix A was not made part of the habeas record and was otherwise inadmissible hearsay, CCA should not hear the evidence, and the State’s attempt to supplement the record at this stage was improper.

        CCA conditionally granted Applicant’s motion to strike Appendix A and references to it from the State’s brief. For CCA to consider Appendix A as evidence, the State shall comply with the procedures set out in this order. If the State fails to do so, Appendix A and references to it would be considered struck and would not be considered for any purpose.

        An Article 11.07 application “must be filed with the clerk of the court in which the conviction being challenged was obtained.” Tex. Code Crim. Proc. art. 11.07, § 3(b); cf. Tex. R. App. P. 73.4(a). “There is no provision in Article 11.07 or the Rules of Appellate Procedure that permits a party to file evidence directly in this Court. Nor is there a provision explaining how a party should supplement the record after we have received an Article 11.7 application or filed and set it for submission. But we have said that evidence should not ordinarily be filed directly in this Court. . . . Today, we . . . explain the procedures a party must follow if, after we have received an Article 11.07 application from the county of conviction or filed and set it for submission, the party wishes this Court to consider evidence not filed in the trial court. . . . First, the party may file evidence directly in this Court with a motion for this Court to consider the evidence. In this motion, the party should describe the evi­dence for this Court to consider and explain its evidentiary value and why ‘compelling and extraordinary circumstances’ exist for us to consider it. In an Article 11.07 proceeding, such circumstances must be truly exceptional before we will consider evidence filed directly in this Court. Second, the party may file in this Court a motion to supplement in the trial court. In this motion, the party should describe the evidence . . . and explain its evidentiary value and why the evidence could not have been filed in the trial court before we filed and set the application for submission. After we have filed and set an Article 11.07 application for submission, we will not consider evidence that was not filed in the trial court unless a party follows these procedures and we grant the appropriate motion.”

D used materials available to her while incarcerated and was able to make clear to the trial judge that she was attempting to invoke the appellate court’s jurisdiction because the judge further amended the document by adding “ON APPEAL” after “Order Appointing/Denying Counsel,” crossing out “Denying,” and appointing appellate counsel. Harkcom v. State, 484 S.W.3d 432 (Tex.Crim.App. 2016).

        “Appellant was arrested and charged with possession of a controlled substance, methamphetamine, of less than one gram. On October 2, 2012, appellant was convicted of a state jail-felony and was sentenced to twenty-four months’ imprisonment and a $2,250.00 fine. The trial court certified her right to an appeal that same day. On October 30, 2012, the twenty-eighth day after the sentence was imposed, appellant filed a pro se application for appointment of counsel, writing the word ‘APPEAL’ on the top of the document. This was the only document made available to appellant while incarcerated, and she had not yet been appointed an attorney. On October 31, 2012, twenty-nine days after the sentence was imposed, the trial court granted appellant’s application for appointment of counsel and changed the title of the document to ‘Order Appointing Counsel on Appeal’ by adding the words ‘ON APPEAL’ in block letters to the original title and crossing out the word ‘Denying’ in the phrase ‘Order Appointing/Denying Counsel.’ It is clear from this amended document that the trial judge understood the appellant to be acting pro se and giving notice of appeal. The trial court signed and filed the judgment the same day. Appellate counsel was notified of his appointment the next day, thirty days after sentence was imposed. Appellate counsel filed a more formal notice of appeal on November 8, 2012, seven days past the 30-day deadline to timely file a notice of appeal. . . . [COA] dismissed the appeal for want of jurisdiction due to the lack of a timely notice of appeal. . . . [COA] concluded that the handwritten reference to an appeal on the order granting appellant’s application is not determinative and ‘does not necessarily reflect the trial court’s understanding of appellant’s present intent to appeal.’. . . We find this analysis contrary to our instruction to construe the rules related to the perfection of an appeal liberally. . . .

        “The Rules of Appellate Procedure should be construed reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule. . . . All that is required is that the notice be in writing, be submitted within thirty days or ninety days after sentencing, as appropriate, and show the party’s desire to appeal from the judgment or other appealable order. In this instance, appellant used the materials available to her while incarcerated. We know that, by adding the simple word ‘APPEAL’ to the Order requesting counsel, appellant was able to make clear to the trial-court judge that she was attempting to invoke the appellate court’s jurisdiction because the judge fur­ther amended the document by adding the words ‘ON APPEAL’ after the phrase ‘Order Appointing/Denying Counsel,’ crossing out ‘Denying,’ and appointing appellate counsel. The trial-court judge thereby recognized appellant’s intent to give a notice of appeal and request appellate counsel. Construing the Rules of Appellate Procedure liberally leads us to conclude that appellant gave sufficient notice. . . . We reverse the judgment of the court of appeals and remand[.]”

Officer did not have reasonable suspicion to detain D based on observing him walking with another person at 2 a.m. in an area known for narcotics activity and based on officer’s unsubstantiated belief that D was a known criminal; D was illegally detained, and the court erred by denying D’s motion to suppress the cocaine found in the subsequent search. Brodnex v. State, 485 S.W.3d 432 (Tex.Crim.App. 2016).

        D was charged with tampering with physical evidence and possession of a controlled substance after he was stopped by police and found to be carrying crack cocaine. D filed a pre­trial motion to suppress the evidence, which the trial court denied. After a bench trial, the court acquitted D of the tampering offense but found him guilty of the possession offense. D pled true to three enhancement paragraphs, and the court sentenced him to 20 years’ confinement. D appealed the denial of his motion to suppress, arguing that the officer did not have sufficient grounds to come into contact with him, and that the discovery of the drugs was the result of an excessive pat-down search. COA affirmed the trial court. After refusing D’s petition for discretionary review, CCA granted review on its own motion to determine whether an officer has reasonable suspicion to detain a suspect based on observing the suspect walking with another person at 2 a.m. in an area known for narcotics activity and based on the officer’s unsubstantiated belief the suspect is a “known criminal.”

        CCA reversed COA. “Under the totality of the circumstances, we hold that the facts apparent to [officer] at the time he detained Appellant did not provide him with a reasonable suspicion for the detention. Thus, Appellant was illegally detained, and the crack cocaine that was found in the subsequent search should have been suppressed. We, therefore, reverse the judgment of the court of appeals and remand the case to the trial court[.]”

D’s amended habeas application was not statutorily barred because the plain language in Tex. Code Crim. Proc. art. 11.07 permitted the court’s consideration of amended or supplemental claims filed by an applicant before final disposition of an application; counsel was ineffective for not impeaching the chief witness against D. Ex parte Saenz, No. WR-80,945-01 (Tex.Crim.App. Apr 6, 2016).

        CCA granted habeas relief. Trial counsel was ineffective for failing to adequately cross-examine the chief witness against D with the witness’ prior inconsistent statement under Tex. R. Evid. 613(a); the witness identified D in court but had told police the day after the shooting that he could not see the shooter’s face and would not recognize him if he saw him again, and counsel later admitted in a deposition that it would have been a mistake not to impeach the witness. D was prejudiced because the evidence establishing D’s identity as the shooter was weak.

Although, in entering a guilty plea to assault on a family member under Tex. Penal Code § 22.01(b-1)(1), (2), (3), D did not have an agreed punishment recommendation from the State, and he did enter into a bargained-for waiver of his right of appeal in exchange for the State’s abandonment of one of two punishment enhancements. Jones v. State, 488 S.W.3d 801 (Tex.Crim.App. 2016).

        “[A]ppellant contends that, because the trial court’s certification of the right of appeal was defective by indicating that he waived his appellate rights, the court of appeals erred by upholding that certification as a basis for dismissing his appeal. Appellant claims that he did not waive his right of appeal because he did not sign any document that would be adequate to show a valid waiver of that right, and he further contends that the record does not otherwise indicate that he waived his right to appeal. The State, however, contends that the court of appeals properly found that appellant waived his right of appeal based on the plea agreement. . . . Pursuant to that agreement, the State abandoned one of the two punishment-enhancement paragraphs that had been alleged, thereby reducing the minimum punishment that appellant could receive from twenty-five years in prison to five years in prison. In exchange, appellant agreed to plead guilty, waive his right to trial, and waive his right to appeal. We conclude that, although he did not have an agreed punishment recommendation from the State, the record supports a determination that appellant did enter into a bargained-for waiver of his right of appeal in exchange for the State’s abandonment of the enhancement. We affirm the court of appeals.”

        As evidence of the bargained-for agreement, D signed a document stating, “Further, I waive any right of appeal which I may have should the court accept the foregoing plea bargain agreement between myself and the prosecutor.” Although this was not a plea bargain case as defined in Tex. R. App. P. 25.2, the language referred to a “plea bargain agreement” and was binding.

Court of Appeals

Because defense counsel opened the door to the redirect examination by the State and subsequent rehabilitation of its witness, regarding whether complainant’s testimony was truthful or fabricated, the trial court properly concluded that the State’s questioning did not amount to improper bolstering. Nassouri v. State, No. 04-15-00280-CR (Tex.App.—San Antonio May 16, 2016).

            The testimony did not violate the Tex. R. Evid. 610 prohibition against invoking the religion of the witness in an attempt to support her credibility. Furthermore, the court did not abuse its discretion in concluding that complainant’s testimony regarding her cutting herself and using “weed” after the alleged sexual contact was admissible because it was more probative than prejudicial under Tex. R. Evid. 401 and 403. COA affirmed D’s conviction for indecency with a child by sexual contact.

July/August 2016 SDR – Voice for the Defense Vol. 45, No. 6

Voice for the Defense Volume 45, No. 6 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

D’s sentence for possession of child pornography was properly enhanced under 18 U.S.C.S. § 2252(b)(2) based on a prior state conviction for sexual abuse of an adult, since the phrase “involving a minor or ward” modified only abusive sexual conduct under the rule of the last antecedent and not the preceding basis of convictions for sexual abuse. Lockhart v. United States, 136 S. Ct. 958 (2016).

        D pleaded guilty to possessing child pornography in violation of 18 U.S.C. § 2252(a)(4). Because D had a prior state-court conviction for first-degree sexual abuse involving his adult girlfriend, his presentence report concluded that he was subject to the 10-year mandatory minimum sentence en­hancement provided in § 2252(b)(2), which is triggered by, inter alia, prior state convictions for crimes “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” D argued that the limiting phrase “involving a minor or ward” applied to all three state crimes, so his prior conviction did not trigger the enhancement. Disagreeing, the district court applied the mandatory minimum. The Second Circuit and Supreme Court affirmed.

        D’s prior conviction is encompassed by § 2252(b)(2). A natural reading of the text supports that conclusion. The “rule of the last antecedent,” a canon of statutory interpretation stating that “a lim­iting clause or phrase . . . should ordinarily be read as modifying only the noun or phrase that it immediately follows,” Barnhart v. Thomas, 540 U.S. 20 (2003), clarifies that the phrase “involving a minor or ward” modifies only the immediately preceding noun phrase “abusive sexual conduct,” and that the phrases “aggravated sexual abuse” and “sexual abuse” are not so restricted. The rule “can . . . be overcome by other indicia of meaning,” but § 2252(b)(2)’s context reinforces its application in this case.

The prosecution’s failure to disclose material evidence violated D’s rights; the state post-conviction court improperly evaluated the materiality of each piece of evidence in iso­la­tion rather than cumulatively, and failed even to mention the statements of the two in­mates impeaching the first witness. Wearry v. Cain, 136 S. Ct. 1002 (2016).

        D unsuccessfully sought post-conviction relief in state court while on Louisiana death row. He urged that the prosecution failed to disclose evidence supporting his innocence, violating Brady v. Maryland, 373 U. S. 83 (1963), and that his trial counsel provided ineffective assistance, violating U.S. Const. amend. VI.

        Contrary to the state post-conviction court, the Court here concluded that the prosecution’s failure to disclose material evidence violated D’s due process. The Court reversed the post-conviction court’s judgment on that count and remanded, and thus did not reach D’s ineffective-assistance claim. The denial of D’s Brady claim ran up against settled constitutional principles. The prosecution’s failure to disclose material evidence violated D’s rights because the newly revealed evidence sufficed to undermine confidence in D’s conviction. The only evidence directly tying D to capital murder was a first witness’ dubious testimony, corroborated by the similarly suspect testimony of a second witness; and the first witness’ credibility, already impugned by his many inconsistent stories, would have been further diminished had the jury learned various new evidence.

Fifth Circuit

Where Ds (well-site leaders on the Deepwater Horizon drilling rig) were charged with 11 counts of seaman’s manslaughter (in violation of 18 U.S.C. § 1115) for the 11 deaths on the Deepwater rig in the blowout of the Macondo well, the district court did not err in dismissing those counts because neither defendant fell within the meaning of “[e]very . . . other person employed on . . . any vessel” in § 1115. United States v. Kaluza, 780 F.3d 647 (5th Cir. 2015).

        The Fifth Circuit agreed with the district court that this phrase covered only persons with responsibility for the “marine operations, maintenance, and navigation of the vessel” and that defendants were not such persons.

The court’s condition forbidding any computer or internet access without prior probation-officer approval, for juvenile convicted of abusive sexual contact with a minor under 12, was too restrictive. United States v. Sealed Juvenile, 781 F.3d 747 (5th Cir. 2015).

        The district court did not abuse its discretion in (1) forbidding contact with children under 16 without prior probation-officer approval, (2) forbidding loitering around places primarily used by children under 16, (3) requiring monitoring of juvenile’s computer and internet use, (4) requiring him to sub­mit to searches and seizures, and (5) requiring him to produce fi­nancial records; additionally, the court did not plainly err in forbidding juvenile from engaging in an occupation where he has access to children, without prior probation-officer approval. However, the Fifth Circuit found the condition forbidding any computer or internet use or access without prior probation-officer approval was too restrictive; the Fifth Circuit ordered that this condition “is not to be construed or enforced in such a manner that the Juvenile would be required to seek prior written approval every single time he must use a computer or access the internet.” In light of this ruling, the Fifth Circuit also struck the special condition requiring the juvenile to produce evidence that no payments were made to gain access to the internet.

Where district court found D’s 28 U.S.C. § 2255 motion was successive and thus transferred the motion to the court of appeals pursuant to § 1631, D could appeal the transfer without a certificate of appealability; the Fifth Circuit affirmed the transfer and ordered dismissal. United States v. Fulton, 780 F.3d 683 (5th Cir. 2015).

        A transfer order under § 1631 is not a final order within the meaning of 28 U.S.C. § 2253(c)(1)(B), and the appeal of such an order does not require a certificate of appealability. Finding that the district court correctly determined that the § 2255 motion was successive, the Fifth Circuit affirmed the transfer order; because another panel of the Fifth Circuit previously denied D’s motion for authorization for a successive petition, the Fifth Circuit remanded to the district court with instructions to dismiss D’s § 2255 motion for want of jurisdiction.

Agents had reasonable suspicion to stop D suspected of (and eventually convicted of) false statements in connection with the acquisition of a firearm (“straw buying”) based on a tip from the gun-shop employee from whom D bought the firearms. United States v. Ortiz, 781 F.3d 221 (5th Cir. 2015).

        Additionally, the warrantless search of D’s vehicle was permissible under the automobile exception because D’s own statements to the agents provided probable cause for the search.

        (2) D was not “in custody” for Miranda purposes when two agents questioned him in a law-enforcement vehicle for 20 minutes because, inter alia, the agents told him he was not under arrest.

The Government breached the plea agreement by using protected information to increase D’s sentence. United States v. Chavful, 781 F.3d 758 (5th Cir. 2015).

        Where the Government, in its plea agreement with D, agreed that information obtained from D’s cooperation was “not to be used to increase [D’s] Sentencing Guideline level or used against [D] for further prosecution” and the agreement specifically referenced USSG § 1B1.8, the Government breached the agreement by using protected information to increase his sentence. The Fifth Circuit remanded for resentencing by a different district judge.

District court did not reversibly err in applying a 16- level “drug trafficking offense” enhancement under USSG § 2L1.2(b)(1)(A)(i) based on D’s prior Georgia conviction for possession with intent to distribute marijuana. United States v. Martinez-Lugo, 782 F.3d 198 (5th Cir. 2015).

        The Fifth Circuit rejected the notion that an offense must require proof of remuneration or commercial activity to be included as a “drug trafficking offense” under USSG § 2L1.2. An offense that matches the listed “drug trafficking offenses” in the definitional Application Note, as did this Georgia offense (Ga. Code § 16-13-30(j)(1)), qualifies for enhancement even if the offense does not require such proof. Dennis dissented, arguing that “drug trafficking” in the text of the Guideline does require proof of remuneration or commercial activity.

District court did not err in sentencing illegal-reentry D to a $2,500 within-Guideline fine and alien D convicted of drug and gun offenses to a $5,000 within-Guideline fine with a monthly payment schedule set at 1/3 of each defendant’s prison earnings, conditional on the prisoner being allowed to work in prison. United States v. Pacheco-Alvarado, 782 F.3d 213 (5th Cir. 2015).

        The district court’s order did not impermissibly trench upon the Federal Bureau of Prisons’ authority to administer its Inmate Financial Responsibility Program. Furthermore, al­though Ds’ presentence reports indicated that they had no pres­ent ability to pay, the fines were based on implicit conclusions about Ds’ future ability to pay and were not unreasonable. The Fifth Circuit did remand one defendant’s case to correct the written judgment to reflect the district court’s orally pronounced payment schedule.

Where D’s federal habeas counsel was also D’s state ha­beas counsel, the fact that ineffectiveness of state habeas counsel might constitute cause for failure to raise an ineffective-assistance claim did not require ap­pointment of additional federal habeas counsel to investigate whether D had a claim; however, the Fifth Circuit exercised its authority to appoint supplemental counsel. Speer v. Stephens, 781 F.3d 784 (5th Cir. 2015).

        Where federal habeas counsel for death-sentenced Texas D was also D’s state habeas counsel, the mere fact that ineffectiveness of state habeas counsel might (under Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Treviño v. Thaler, 133 S. Ct. 1911 (2013)), constitute cause for failure to raise an ineffective-assistance claim did not require the appointment of additional federal habeas counsel to investigate whether D had any viable claim under Martinez or Treviño; however, in the interest of justice, the Fifth Circuit exercised its authority under 18 U.S.C. § 3599 to appoint supplemental counsel for the sole purpose of determining whether D had additional habeas claims that ought to have been brought. The Fifth Circuit denied original counsel’s motion to withdraw and remanded the case for appointment of supplemental counsel and to consider in the first instance whether D had any claims pursuant to Martinez and Treviño that he might raise and, if so, whether those merited relief.

Fifth Circuit granted D’s motion for new supplemental federal habeas counsel and remanded for appointment of supplemental counsel and to consider in the first instance whether D had claims pursuant to Martinez and Treviño. Sandoval Mendoza v. Stephens, 783 F.3d 203 (5th Cir. 2015).

        Citing Speer v. Stephens (above), the majority granted death-sentenced Texas D’s motion for new supplemental federal habeas counsel and remanded the case for appointment of supplemental counsel and to consider in the first instance whether D had any claims pursuant to Martinez and Treviño and, if so, whether those merited relief.

District court did not reversibly err in applying to ille­gal-reentry D a “drug trafficking offense” enhancement under USSG § 2L1.2(b)(1)(A)(i); although D’s previous offense of conviction (possession of a controlled substance for sale, Cal. Health & Safety Code § 11351) is not categorically a “drug trafficking offense,” D’s conviction was permissibly narrowed to possession of heroin for sale, which does qualify. United States v. Gomez-Alvarez, 781 F.3d 787 (5th Cir. 2015).

        In applying this modified categorical approach, the district court did not clearly err in finding the criminal complaint was the charging instrument under which D was convicted, given the lack of any evidence to the contrary. Finally, the district court did not, on this record, clearly err in finding D was indeed the person convicted in the prior California case.

Court of Criminal Appeals

After finding the evidence insufficient to support D’s conviction of tampering with evidence by destruction, COA erred in not reforming the judgment to the lesser-included offense of attempted tampering with evidence because the State proved those elements. Rabb v. State, 483 S.W.3d 16 (Tex.Crim.App. 2016).

        D was found guilty of tampering with evidence by destruction and appealed, asserting the evidence was legally insufficient to support his conviction; COA agreed. CCA agreed but remanded for COA to determine whether D’s conviction should be reformed to the lesser-included offense of attempted tam­pering with evidence under Thornton v. State, 425 S.W.3d 289 (Tex.Crim.App. 2014). COA then found it could not reform D’s conviction because he lacked the specific intent to destroy the evidence. The State filed a petition for review, which CCA granted to consider whether COA erred in its application of Thornton in choosing not to reform the judgment to the lesser-included offense. CCA reversed COA and remanded.

        Reformation to the lesser offense was mandated under Thorn­ton because COA determined that the factfinder found every element necessary to convict D of attempted tampering, and that the evidence was sufficient to support a conviction of attempted tampering. The evidence showed that the officers in­formed D that they were questioning him concerning a theft, and he then swallowed a baggie of pills.

Though D claimed he would not have pled guilty to drug possession had he known there was not enough substance left to test, his mistaken belief that drug evidence would be available to use against him at trial did not render his plea involuntary. Ex parte Palmberg, No. WR-82,876-01 (Tex.Crim.App. Feb 24, 2016).

        D pled guilty to one count of possession of a controlled substance, namely cocaine, and the court sentenced him to 90 days in jail. He did not appeal. Seven years later, however, D filed this post-conviction habeas application under Tex. Code Crim. Pro. art. 11.07. He claimed his plea was involuntary because at the time he entered it, he mistakenly believed that if he proceeded to trial, the State would be able to prove the sub­stance he possessed was cocaine. CCA remanded this application to the trial court for supplemental findings of fact. After remand, CCA ordered the application to be filed and set for submission to determine whether a guilty plea is involuntary when the defendant mistakenly believes that certain inculpating evidence would be available for use against him should he proceed to trial. CCA denied relief.

        A plea is not necessarily involuntary because the defendant pled guilty under the mistaken belief that specific evidence would be available for use against him. D did not show that the State used false or misleading evidence to induce his plea, or that he was under any misapprehension about the true nature of the substance he possessed, and there was no evidence to undermine his judicial confession, which was alone suf­fi­cient to support his guilty plea.

When a jury imposed consecutive sentences that were unauthorized under Tex. Penal Code § 3.03(a) and was directed to reconsider, after which it imposed two sentences equaling the combined length of the unauthorized sentences, it was error to direct the jury to re­consider its sentences. Nixon v. State, 483 S.W.3d 562 (Tex.Crim.App. 2016).

        D was charged with burglary of a habitation and evading arrest or detention with a vehicle. He was tried before a jury. He pled guilty to both. At the conclusion of evidence, the judge instructed the jury to find D guilty of the offenses. The jury was further instructed to assess punishment in each cause and was given the punishment ranges. During its deliberations, the jury sent a note to the judge that asked, “Do the sentences run concurrently or sequential[ly]?” The judge responded only that the jury was to continue deliberating. The jury returned verdicts of seven years for the burglary and nine years for the evading charge. However, on each verdict form there was an asterisk next to the term of years that referred to a handwritten notation at the bottom of the verdict. Each notation stated, “To be served consecutively with [the other charge] not concurrently.”

        The judge did not receive the verdicts, but instead sent the jurors to deliberate further with this additional instruction: “You are further instructed that the Court cannot accept and receive your verdicts as stated. You are instructed that the sentences in both causes must be served concurrently by operation of law.” Soon after, the jury returned verdicts assessing punishment at 16 years’ confinement for both offenses. D was sentenced accordingly. D appealed. COA affirmed that Tex. Code Crim. Proc. art. 37.10(b) did not require the judge to accept and reform the original verdicts.

        CCA reversed: “According to statute, however, the judge was required to accept the original verdicts and reform them in accordance with the law. We therefore must reverse the court of appeals’ judgments and reform the trial court’s judgments to reflect the original verdicts to be served concurrently.” The jury’s original verdicts were not informal, under Tex. Code Crim. Proc. art. 37.10(a), as they were complete, unambiguous, un­con­ditional, and not contradictory; its verdicts were not cumulative sentencing authorized by Tex. Penal Code § 3.03 that was not punishment; and Tex. Code Crim. Proc. art. 37.10(b) clearly required the trial court to reform the jury’s verdicts to impose the punishment that was authorized and omit the pun­ish­ment that was unauthorized.

The governor’s power to exercise a veto could not be circumscribed by the Legislature, courts, or district at­torneys; when the State sought to prosecute the governor for a veto under the abuse of official capacity statute, Tex. Penal Code § 39.02, the prosecution violated separation of powers, Tex. Const. art. V, §§ 21, 30. Ex parte Perry, 483 S.W.3d 884 (Tex.Crim.App. 2016).

        The charges against appellant Rick Perry arose from his Texas governorship. A Travis County grand jury returned a two-count indictment against him. Count I alleged the offense of “abuse of official capacity,” and Count II alleged the offense of “coercion of a public servant.” Count I alleged that Perry abused his official capacity by misusing funds appropriated to the Public Integrity Unit of the Travis County District Attorney’s Office, and Count II alleged he coerced a public servant, District Attorney Rosemary Lehmberg, by threatening to veto the funds for that unit if she did not resign.

        “This case arises from a governor’s threat to exercise a veto and his ultimate exercise of that veto. Whether the State can prosecute the governor for these acts depends upon (1) whether prosecuting the exercise of a veto under the ‘abuse of official capacity’ statute is a violation of the Separation of Powers provision of the Texas Constitution, and (2) whether the relevant portion of the ‘coercion of a public servant’ statute, being used to prosecute the threat to exercise a veto, is facially unconstitutional in violation of the First Amendment. Before reaching the first question, we must also decide whether the governor can raise his separation of powers complaint as an as-applied challenge in a pretrial habeas application followed by an interlocutory appeal. Answering these three questions in the affirmative, we reverse the judgment of the court of appeals with respect to count one, affirm the judgment of the court of appeals with respect to count two, and order the dismissal of the indictment.” The portion of the coercion statute, Tex. Penal Code § 36.03(a)(1), prohibiting a threat, however communicated, to take or withhold action as a public servant, as it incorporated Tex. Penal Code § 1.07(a)(9)(F), was unconstitutionally overbroad in violation of U.S. Const. amend. I.

COA erred in finding Tex. Transp. Code § 724.012(b)(3)(B), requiring an officer to take blood from a repeat DWI offender who is arrested for that offense, was not facially unconstitutional; COA lacked the benefit of re­cent Supreme Court and CCA decisions. McGruder v. State, 483 S.W.3d 880 (Tex.Crim.App. 2016).

        D was arrested for driving while intoxicated. As officers were preparing an affidavit for a blood-specimen warrant, they learned D had two prior DWI convictions, so they took him to the hospital without a warrant and had his blood drawn. They decided a warrant was unnecessary because D met the cri­teria for an automatic blood draw under Tex. Trans. Code § 724.012(b)(3)(B), which requires an officer who has arrested a driver for DWI to take a specimen of that driver’s breath or blood for analysis of blood alcohol concentration when the officer has reliable information that the driver has two or more prior DWI offenses; the driver may not refuse, and police must compel him to give a specimen, even in the absence of his as­sent-in-fact. At trial, the judge allowed the blood evidence though D objected that the statute was unconstitutional. D was convicted of felony DWI.

        D framed his only point of error on appeal as follows: “In the absence of exigent circumstances or consent, Section 724.012(b)(3)(B) of the Texas Transportation Code, violates the Texas and United States constitutional prohibitions against unreasonable searches and seizures.” COA construed this to be a facial challenge to the constitutionality of the statute, not an as-applied challenge, and rejected it as such.

        CCA vacated COA’s judgment and remanded to that court for further consideration in light of the intervening City of Los Angeles v. Patel, 135 S.Ct. 2443 (2015), and State v. Villarreal, 475 S.W.3d 784 (Tex.Crim.App. 2014). Patel held that a facial challenge is an attack on a statute itself as opposed to a particular application, and that Fourth Amendment challenges to statutes authorizing warrantless searches are no exception to the general rule that facial constitutional attacks may proceed under an array of constitutional provisions. Indeed, according to Patel, “facial challenges under the Fourth Amendment are not categorically barred or especially disfavored.”

        Here, CCA replied: “Still, no appellate court in Texas of which we are aware has yet declared Section 724.012(b)(3)(B) to be unconstitutional on its face. This is no surprise, since fa­cial challenges to the constitutionality of a statute are not or­di­narily easy to establish.” To prevail on a facial challenge of the sort D brought, he must establish that the statute always operates unconstitutionally in all possible circumstances. COA observed that the statute, “as written . . . does not require a blood or breath specimen to be taken contrary to the Fourth Amendment; that is, without a warrant or a recognized exception to the warrant requirement.” Because the statutory mandate could be carried out consistently with the dictates of the Fourth Amendment, COA concluded, it was not unconstitutional on its face. When COA was considering this case, it did not have the benefit of Patel (determining the standard of review for facial constitutionality) or Villarreal (holding that § 724.012(b)(3)(B) does not, by itself, “form a constitutionally valid alternative to the Fourth Amendment warrant requirement”).

D’s conviction for resisting arrest was proper because he used force against an officer in opposing his arrest. Finley v. State, 484 S.W.3d 926 (Tex.Crim.App. 2016).

        At D’s bench trial, the judge convicted him for resisting arrest because he opposed police attempts to handcuff him. COA found the evidence legally sufficient to support D’s conviction. CCA affirmed because D used force “against” the officers in op­posing his arrest as required by the resisting arrest statute, Tex. Penal Code § 38.03. D used force against the officers by pull­ing against the officers’ force; pulling away from the offi­cers satisfied the “in opposition or hostility to” the police officers requirement.

D did not preserve his objection to the two-step nature of his custodial interrogation (question first, give Miranda warnings later) because he made no challenge to this two-step interrogation in his written motions to suppress and only mentioned the two-step inter­ro­ga­tion in the latter half of his closing argument at the motion to suppress hearing. Vasquez v. State, 483 S.W.3d 550 (Tex.Crim.App. 2016).

        Prior to his capital murder trial, D filed two motions to suppress all oral statements given to police while he was in custody. The court allowed the statements, and D was convicted. D appealed the admission of his recorded interview on the ground that it was obtained after unrecorded and pre-Miranda interrogations, pursuant to an illegal two-step interrogation. CCA disagreed.

        “We granted the State’s petition for discretionary review to determine whether appellant preserved his objection to the two-step nature of his custodial interrogation when he lodged a delayed objection that put neither opposing counsel nor the trial court on notice as to its legal basis. Because we hold that he did not, we reverse the judgment of the Fourteenth Court of Appeals.” The State’s lack of a response to the “two-step” comment at the hearing indicated that it did not understand the objection because the State had the burden of disproving a deliberate two-step interrogation, and it had a witness available to testify as to warnings but did not call him. Because D failed to preserve his two-step interrogation complaint, it was immaterial whether he was subjected to custodial interrogation during any of the prior unrecorded interviews, which were not offered as evidence.

Where an indictment alleged D committed theft against four complainants pursuant to a continuing course of conduct, COA erred in holding that jurors had to unanimously agree on each underlying transaction used to comprise the Tex. Penal Code § 31.09 aggregate theft charge. Kent v. State, 483 S.W.3d 557 (Tex.Crim.App. 2016).

        An indictment alleged that D, a mortgage broker, committed theft against four named complainants in an amount exceeding $200,000, and that the thefts occurred over a specified period and were pursuant to one scheme or continuing course of conduct. A jury found him guilty, and the court sentenced him to 60 years’ imprisonment and ordered him to pay restitution to the complainants. On appeal, D alleged reversible jury-charge error. COA agreed and remanded for a new trial. CCA reversed COA.

        “Section 31.09 of the Penal Code provides that, ‘[w]hen amounts are obtained in violation of [Chapter 31: Theft] pur­suant to one scheme or continuing course of conduct, whether from the same or several sources, the conduct may be considered as one offense and the amounts aggregated in de­ter­mining the grade of the offense.’ In this case, because the thefts were alleged to have occurred pursuant to a single scheme or continuing course of conduct, the conduct may be considered as one offense and the amounts aggregated. . . . We have recognized that, ‘[a]lthough theft under Section 31.09 consists of two or more incidents of theft, the statute makes them one offense.’ . . . Thus, although appellant was alleged to have committed mul­tiple thefts, pursuant to the Section 31.09 allegations they constituted a single felony offense.” In other words, to fulfill § 31.09, any number of specific acts of theft may be combined in a single charge as long as they were part of the same scheme. The aggregated theft is proven as long as the jury unanimously agrees that the proven thefts exceed the threshold amount, re­gard­less of which transactions each juror believes to have oc­curred. The trial court properly overruled D’s objection to the jury charge and submitted a proper application paragraph that tracked the indictment.

Court of Appeals

Where D was convicted of possession of meth with intent to deliver, Tex. Health & Safety Code § 481.112(d), he was not entitled to a mistrial based on an officer’s testimony that he was watching a drug house before he stopped D because the court instructed the jury to disregard the testimony; also, under Tex. R. App. P. 33.1, D failed to preserve his constitutional complaints. Carrion v. State, No. 11-14-00123-CR (Tex.App.—Eastland Apr 29, 2016).

        “In Issues One and Two, Appellant argues on appeal that the trial court abused its discretion and denied Appellant his Sixth Amendment right to present a defense. To strengthen his defense that he no longer used, sold, or possessed drugs and that the drugs were planted in his home by [witness], Appellant sought to introduce into evidence the police video of the . . . traffic stop and the testimony that [witness] avoided the subpoena that Appellant had requested for him. The State ob­jected to the video on relevance and hearsay grounds and to the subpoena evidence on hearsay grounds. The trial court sustained the objections. . . . Appellant, however, did not, at any time, object or advise the trial court that Appellant’s Sixth Amendment right to present a complete defense was violated. Because Appellant did not raise this argument at trial, he has failed to preserve error for our review. . . .

        “In Appellant’s third issue, he argues that the trial court erred when it denied his motion for mistrial. . . . During cross-examination, the State asked Officer Poynor whether the house he was ‘watching’ before the traffic stop of Appellant was a ‘known drug house.’ Officer Poynor testified, ‘Yes.’ Appellant objected, and the trial court sustained his objection and specifically instructed the jury ‘to disregard the argument from coun­sel, State’s counsel, with regard to that matter, that response that was just made.’ . . . The trial court did not err when it denied Appellant’s motion for mistrial because the prompt instruction was sufficient. . . .

        “In Appellant’s fourth issue, he argues that the trial court abused its discretion and denied Appellant his Sixth Amendment right to confrontation when it overruled his hearsay ob­jec­tion and allowed a deputy sherriff to testify during the pun­ishment phase of the trial that Appellant was a member of the Texas Syndicate gang. . . . Appellant objected to the deputy sheriff’s testimony on hearsay grounds, but did not raise any constitutional objections. Appellant did not, at any time, object or advise the trial court that Appellant’s Sixth Amendment right to confrontation was violated. Because Appellant did not raise this argument at trial, Appellant has failed to preserve error. . . . We affirm the judgment of the trial court.”

June 2016 SDR – Voice for the Defense Vol. 45, No. 5

Voice for the Defense Volume 45, No. 5 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

The U.S. Supreme Court has jurisdiction to decide that a state collateral review court improperly refused to give retroactive effect to the Supreme Court’s 2012 Miller v. Alabama, prohibiting mandatory sentences of life without parole for juveniles. Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

        D was 17 years old in 1963 when he killed a Louisiana sheriff. The jury returned a verdict of “guilty without capital punishment,” which carried an automatic sentence of life without the possibility of parole. Nearly 50 years later, the Supreme Court decided that mandatory life without pa­role for juvenile homicide offenders violated the U.S. Const. amend. XVIII prohibition on “cruel and unusual punishments.” Miller v. Alabama, 132 S. Ct. 2455 (2012). D sought state collateral relief, arguing that Miller rendered his mandatory life-without-parole sentence illegal. The trial court denied his motion, and his application for a supervisory writ was denied by the Louisiana Supreme Court, which had previously held that Miller does not have retroactive effect in cases on state collateral review. The Court here reversed and remanded.

        When a new substantive rule of constitutional law controlled the outcome of a case, the Constitution required state collateral review courts to give retroactive effect to that rule. The Court therefore had jurisdiction to review the Louisiana courts’ decision that the Miller rule did not apply retroactively. Miller’s holding that mandatory life imprisonment without parole for juvenile homicide offenders violated the Eighth Amendment announced a new substantive rule that, under the Constitution, was retroactive in cases on collateral review. Giving Miller retroactive effect did not require states to relitigate sentences in every case. Instead, states could remedy Miller violations by permitting juvenile homicide offenders to be considered for parole.

The law-of-the-case doctrine did not require the sufficiency of the evidence be measured against the elements described in the jury instructions where those instructions, without objection, required the Government to prove additional or more stringent elements than the statute and indictment. Musacchio v. United States, 136 S. Ct. 709 (2016).

        D resigned as Exel Transportation Services (ETS) president in 2004 but accessed ETS’s computer system until 2006 without ETS’s authorization. In 2010, D was indicted under 18 U.S.C. § 1030(a)(2)(C), which makes it a crime to intentionally access a computer without authorization or exceed authorized access and thereby obtain information from any protected computer. D was charged with conspiring to commit unauthorized access and making unauthorized access. He did not argue in trial court that his prosecution violated the 5-year statute of limitations. 18 U.S.C. § 3282(a). At trial, the Government did not object when the court instructed the jury that § 1030(a)(2)(C) “makes it a crime . . . to intentionally access a computer without authorization and exceed authorized access,” even though the conjunction “and” added an additional element. The jury found D guilty of conspiring to commit unauthorized access. On appeal, D challenged the sufficiency of the evidence supporting his conspiracy conviction and argued, for the first time, that his prosecution was barred by § 3282(a)’s statute of limitations. In affirming his conviction, the Fifth Circuit assessed D’s sufficiency challenge against the charged elements of the conspiracy count rather than the heightened jury instruction and concluded that he waived his statute-of-limitations defense by failing to raise it at trial. The Court unanimously affirmed the Fifth Circuit.

        A sufficiency challenge should be assessed against the ele­ments of the charged crime, not the elements in an erroneous jury instruction. Sufficiency review essentially addresses whether the Government’s case was strong enough to reach the jury. A reviewing court conducts a limited inquiry tailored to ensuring that a defendant receives the minimum required by due process. It does this by considering only the “legal” question “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.” Jackson v. Virginia, 443 U.S. 307 (1979). The Government’s failure to introduce evidence of an additional element does not implicate these principles, and its failure to object to a heightened jury instruction does not affect sufficiency review. Because D did not dispute that he was properly charged with conspiracy to obtain unauthorized access, or that the evidence was sufficient to convict him of the charged crime, the Fifth Cir­cuit correctly rejected his sufficiency challenge.

        Secondly, D could not successfully raise the statute of lim­itations bar under § 3282(a) for the first time on appeal. Because § 3282(a) does not impose a jurisdictional limit, the fail­ure to raise the defense at or before trial is reviewable on ap­peal—if at all—only for plain error. A district court’s failure to enforce an unraised limitations defense under § 3282(a) cannot be a plain error, however, because if a defendant fails to press the defense, it does not become part of the case; thus, there is no error for an appellate court to correct.

Fifth Circuit

A USSG § 3B1.1 sentencing adjustment may be based on either control over people or management of assets; because the district court could plausibly determine that D exercised management responsibility over the property, assets, or activities of a criminal organization, that court did not clearly err in applying a § 3B1.1 enhancement. United States v. Ochoa-Gomez, 777 F.3d 278 (5th Cir. 2015).

        Although USSG § 3B1.1 and its commentary provide that a defendant may not receive an aggravating-role adjustment where he does not exercise control over a person (as opposed to property), the Fifth Circuit has held, in United States v. Delgado, 672 F.3d 320 (5th Cir. 2012), that the adjustment may be applied even where the defendant did not exercise control over another participant if he exercised management responsibility over the property, assets, or activities of a criminal organization.

In sentencing D convicted of alien harboring, district court did not err in applying, pursuant to USSG § 2L1.1(b)(5)(B), a four-level enhancement for “brandishing” a deadly weapon. United States v. Reyna-
Esparza,
777 F.3d 291 (5th Cir. 2015).

        Given the circumstances of the case, the district court did not clearly err in finding that D displayed the weapon to the harbored aliens with intent to intimidate.

Ds adequately preserved their objection that the Government improperly withheld a motion for a third-level reduction under USSG § 3E1.1(b) on the basis of Ds’ refusal to waive their right to appeal. United States v. Torres-Perez, 777 F.3d 764 (5th Cir. 2015).

        This was improper under United States v. Villegas Palacios, 756 F.3d 325 (5th Cir. 2014). Moreover, the error was not harmless because there was insufficient evidence that that the sentencing court would have imposed the same sentence even in the absence of the error. The Fifth Circuit remanded for resentencing.

D, ultimately convicted of possession and distribution of child pornography, was not “in custody” for Miranda purposes when, while numerous officers were executing a search warrant on D’s residence, D went into a police vehicle and was questioned for an hour by two officers; D was told he was not under arrest and was free to leave. United States v. Wright, 777 F.3d 769 (5th Cir. 2015).

        (2) Even if the Government violated Doyle v. Ohio, 426 U.S. 610 (1976), by commenting, during closing argument, on D’s refusal to answer certain questions during his interrogation, any error was harmless beyond a reasonable doubt under the circumstances of this case.

        (3) District court did not violate D’s right, under Fed. R. Crim. P. 32(i)(4)(A)(i), to have his attorney speak on his behalf. Although the district court did not permit defense counsel to respond to the Government’s oral presentation, defense counsel was given a full opportunity to speak before the prosecutor spoke, and the matters the prosecution referenced were in the presentence report and hence were not new.

In sentencing D convicted of failing to register as a sex offender, district court did not plainly err in imposing a special condition of supervised release prohibiting D from “residing or going to places where a minor or minors are known to frequent without prior approval of the probation officer,” especially given D’s repeated failure to comply with registration requirements and the fact that the probation officer could authorize D to go such places in appropriate instances. United States v. Fields, 777 F.3d 799 (5th Cir. 2015).

District court committed reversible plain error in applying a 16-level “drug trafficking offense” enhancement to illegal-reentry D under USSG § 2L1.2(b)(1)(A)(i); the statute of D’s prior conviction (Fla. Stat. § 893.135(1)(f)), although referred to as “trafficking” in Florida law, included simple possession of a controlled substance, which is not a “drug trafficking offense” under § 2L1.2. United States v. Sarabia-Martinez, 779 F.3d 274 (5th Cir. 2015).

        Moreover, no documents allowed the offense of conviction to be narrowed under the modified categorical approach; the district court erred in relying on facts in the presentence report to determine D had been convicted of drug distribution rather than mere possession. The error affected D’s rights, and the Fifth Circuit exercised its discretion to correct the error by vacating the sentence and remanding for resentencing.

District court reversibly erred in applying a 16-level “crime of violence” enhancement under USSG § 2L1.2(b)(1)(A)(ii) based on D’s Florida manslaughter conviction, Fla. Stat. § 782.07; Florida manslaughter does not have as an element the use, attempted use, or threatened use of physical force. United States v. Garcia-Perez, 779 F.3d 278 (5th Cir. 2015).

        Nor is Florida manslaughter equivalent to generic manslaughter because the Florida offense can be committed with a mens rea less than recklessness; although the Fifth Circuit had previously held to the contrary in an unpublished decision, that decision did not have the benefit of a later, clarifying decision of the Florida Supreme Court. Because the Government did not meet its burden of proving the error was harmless, the Fifth Circuit remanded for resentencing.

District court did not err in applying a 12-level “crime of violence” enhancement to illegal-reentry D because the record adequately narrowed his prior Texas conviction to one that qualified as the enumerated “crime of violence” of aggravated assault. United States v. Sanchez-Sanchez, 779 F.3d 300 (5th Cir. 2015).

        The record showed D was indicted for, and pleaded guilty to, a violation of Tex. Penal Code § 22.02(a)(4) (1989)—aggravated assault with a deadly weapon—which meets the generic, contemporary definition of “aggravated assault.” The fact that the Texas judgment did not contain an affirmative deadly-weapon finding did not cast doubt on the fact of his conviction under § 22.02(a)(4) because, in Texas, a defendant could stand convicted of aggravated assault with a deadly weapon even if the trial court did not enter a separate and affirmative deadly-weapon finding.

After Amendment 775 (effective Nov. 1, 2013) to USSG § 3E1.1 and its commentary, the Government may withhold a § 3E1.1(b) motion (for an additional one-level reduction for acceptance of responsibility) based on an interest identified in subsection (a) or (b) of § 3E1.1; however, if a defendant has a good-faith dispute as to the findings in the presentence report, it is impermissible for the Government to refuse to move for a § 3E1.1(b) reduction simply because the defendant requests a hearing to litigate the dispute. United States v. Castillo, 779 F.3d 318 (5th Cir. 2015).

        Accordingly, the Fifth Circuit vacated D’s sentence and remanded to allow the district court to determine whether her challenge to the amount of funds stolen (on which a Guideline “loss” enhancement turned) was made in good faith.

District court did not err in granting qualified immunity and dismissing Texas state prisoner’s 42 U.S.C. § 1983 suit against various prison officials; prisoner alleged his due-process rights were violated by being classified as a sex offender. Toney v. Owens, 779 F.3d 330 (5th Cir. 2014).

        The Fifth Circuit concluded that neither the prisoner’s classification as a sex offender nor the consequences flowing from that classification implicated the prisoner’s liberty interests under the U.S. Const. amend. XIV Due Process Clause where prisoner was never mandated to undergo sex-offender treatment or subjected to sex-offender conditions of parole.

Court of Criminal Appeals

Where D plead guilty to possession of a controlled substance (Count I) and no contest to possession of certain chemicals with intent to manufacture a controlled substance (Count II) in exchange for the State’s agreement to a sentencing cap on Count II, his successful challenge to his conviction for Count II negated the entire plea bargain. Ex parte Cox, 482 S.W.3d 112 (Tex.Crim.App. 2016).

        D plead guilty to one count of possession of a controlled substance (Count I) in violation of Tex. Health & Safety Code § 481.115(a), (b) and no contest to one count of possession of cer­tain chemicals with intent to manufacture a controlled sub­stance (Count II). The trial court sentenced him to 20 years’ imprisonment on Count I and 35 years on Count II, to run concurrently. D appealed his conviction on Count II, arguing that it failed to sufficiently allege an offense. The State argued that COA should dismiss D’s appeal because he had entered his pleas and waived appeal as part of the plea bargain, and COA agreed. D filed this habeas application. CCA granted relief and remanded.

        “After review, we find that, because the plea bargain was a package deal and part of this plea bargain cannot be fulfilled, the entire plea bargain is unenforceable, thus the parties must be returned to their original positions. We remand this case to the trial court for re-sentencing.” The plea agreement was a package deal because the consideration was D’s waiver of a constitutional right in one count for the reduction of sentence on a different count. Because Count II did not state an offense, the terms of the plea bargain were unenforceable; the parties had to be returned to their original positions.

CCA affirmed without analysis that the warrantless, non­consensual blood draw of D suspected of DWI, con­ducted pursuant to the implied-consent and mandatory-blood-draw provisions in the Texas Transportation Code, violated U.S. Const. amend. IV. Reeder v. State, 480 S.W.3d 544 (Tex.Crim.App. 2016).

        “[Appellant] skidded off the road and hit a tree. During the ensuing investigation, police began to suspect that Appellant was intoxicated while operating his vehicle, and they took a blood specimen (over Appellant’s objections) pursuant to Section 724.012(b)(3)(B) of the Texas Transportation Code. Because the police concluded that Appellant was driving while intoxicated and had twice before been convicted of DWI, he was charged with felony DWI. Appellant filed a motion to suppress, which the trial court denied. He then pled guilty. . . .

        “On appeal, Appellant argued that his conviction should be reversed in light of . . . Missouri v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013). On January 8, 2014, the court of appeals issued an opinion affirming the judgment of the trial court and concluding that McNeely did not render Section 724.012(b)(3)(B) of the Texas Transportation Code unconstitutional. However, on February 4, 2014, [COA] granted the State’s motion for rehearing and substituted its opinion with a new one granting relief and finding Section 724.012(b) unconstitutional as applied to Appellant. . . . The State Prosecuting Attorney subsequently filed a timely petition . . . arguing that the mandatory blood-draw provision in this case did not violate the Fourth Amendment despite the Supreme Court’s ruling in McNeely.

        “Before we could resolve the petition filed by the SPA, we issued an opinion in another case, State v. Villarreal, [475 S.W.3d 784 (Tex.Crim.App. 2014)], in which we resolved the same issue against the State. Although we subsequently granted rehearing in Villarreal, we later concluded that the State’s motion was improvidently granted and denied the State’s motion for rehearing. Therefore, in light of our decision in Villarreal and the reasoning therein, we overrule the State’s single ground for review and affirm [COA].”

Due to a lack of scientific evidence, CCA upheld habeas relief for murder-convicted D. Ex parte Robbins, 478 S.W.3d 678 (Tex.Crim.App. 2016).

        CCA’s entire opinion stated: “Having granted the State’s motion for rehearing in this case, and having considered its merits, we now conclude that the State’s motion for rehearing was improvidently granted. We deny the State’s motion for rehearing. No further motions will be entertained.”

        Alcala concurred: “This concurring opinion marks the third time in less than five years that I must document my po­si­tion in favor of granting post-conviction relief to applicant, who is incarcerated for capital murder in a case in which there is no competent evidence that a murder even occurred. . . . This is the correct result. But it is five years too late and it comes at the high cost of diminishing this Court’s credibility. Today’s decision should give no one any comfort about the actual viability of the current version of Article 11.073 of the Texas Code of Criminal Procedure, the new-science statute in Texas.”

CCA upheld D’s capital sentence; the punishment evidence was sufficient, and jury selection and the voir dire of an expert witness were proper. Daniel v. State, No. AP-77,034 (Tex.Crim.App. Feb 10, 2016).

        “[A] jury convicted appellant of the capital murder of peace officer Jaime Padron. Tex. Penal Code § 19.03(a)(1). Pur­suant to the jury’s answers to the special issues set forth in Texas Code of Criminal Procedure article 37.071, sections 2(b) and 2(e), the trial judge sentenced appellant to death. Tex. Code Crim. Proc. art. 37.071, § 2(g). Direct appeal to this Court is automatic. Art. 37.071, § 2(h). Appellant raises three points of error. After reviewing appellant’s points of error, we find them to be without merit.”

        The evidence was sufficient to support the jury’s affir­ma­tive answer to the future-dangerousness special issue. It showed D went to the store intending to shoplift; he brought a loaded gun because he foresaw that police officers would pre­vent him from leaving the store; he had demonstrated an es­ca­lating pattern of disrespect for the law prior to the commission of the crime; he displayed a lack of remorse after the crime; and an expert did not think D’s brain was damaged to the extent that he could not control his behavior or impulses. Furthermore, D could not demonstrate harm from the trial court’s refusal to grant his challenge for cause against a prospective juror where he did not request additional strikes or identify an objectionable juror who sat on the jury.

Habeas applicant showed specific enough facts for CCA to conclude his claim alleged that—and alleged only that—his judgment was incorrect; therefore, CCA dismissed the claim because applicant’s proper remedy was to seek a nunc pro tunc judgment or a mandamus writ. Ex parte Molina, 483 S.W.3d 24 (Tex.Crim.App. 2016).

        “This is a post-conviction application for writ of habeas corpus. Tex. Code. Crim Proc. art. 11.07. Applicant brings eight claims for relief, including one claim alleging that the judgment in his case did not adequately reflect credit for the time he served in county jail before his sentence was pronounced. Applicant, however, does not claim to have exhausted all his administrative remedies to this alleged error. . . . [A]n applicant must exhaust all administrative remedies before he may bring a claim in an 11.07 writ application that he is not being properly credited with time served on his sentence. Tex. Gov. Code § 501.0081. This writ application involves the persistent issue of whether applicants must exhaust their administrative remedies under Section 501.0081 of the Texas Government Code before they may bring a post-conviction application for writ of habeas corpus alleging that the judgment is incorrect for failing to credit them for time that they served in jail before their sentence was imposed. We conclude that such claims are not subject to the Section 501.0081 exhaustion requirement.” CCA denied D’s claims.

        “[I]f the only claim that an applicant raises in a post-conviction application for writ of habeas corpus is one that attacks the accuracy of the judgment with respect to presentence jail-time credit, but he does not claim to have exhausted his ad­ministrative remedies, then we will not dismiss it under Section 501.0081, since that provision does not apply. . . . Applicant alleges that he was ‘magistrated for this charge in Fort Bend County on December 7th, 2011,’ and that ‘The Honorable Judge is the one that shall give defendant credit on his sentence for time that defendant has spent in jail on “said cause” from time of his arrest and confinement until his sentence[.]’ The claim that Applicant was arraigned on December 7, 2011, conflicts with the portion of the judgment reflecting that Applicant should receive time served starting from October 31, 2012—almost a year later than December 7, 2011—and running until January 14, 2014. This apparent discrepancy, coupled with Applicant’s argument that a judge shall give a defendant credit for time spent in jail starting from his confinement until his sen­tence, provides sufficient context to justify the determination that his only time-credit claim is that the judgment is incorrect. . . . Therefore, we dismiss this claim, not under Section 501.0081 of the Texas Government Code, but under [our prior case law]. Applicant’s proper remedy is to seek a nunc pro tunc judgment or, failing that endeavor, an application for writ of mandamus.”

The evidence was sufficient to support D’s conviction for first-degree aggravated assault of a family member under Tex. Penal Code § 22.02(b)(1) where the jury could have rationally inferred that his girlfriend’s injuries caused her a substantial risk of death and constituted serious bodily injury under Tex. Penal Code § 1.07(a)(46). Blea v. State, 483 S.W.3d 29 (Tex.Crim.App. 2016).

        The State’s sole ground for review contended that COA erred by reversing D’s conviction for first-degree aggravated assault of a family member against his then-girlfriend. The State challenged COA’s determination that the evidence was legally insufficient to establish the element of “serious bodily injury.” Tex. Penal Code § 22.02(b)(1). The State asserted that in deciding whether D caused serious bodily injury, COA should have examined the injuries as they were inflicted by D rather than assessing the injuries in their improved or ameliorated condition after medical treatment.

        CCA agreed. In light of the evidence that D’s actions lacerated the girlfriend’s liver and collapsed her lung; she was taken to the hospital due to her trouble breathing; she was hospitalized for four days; her lung injury required a tube to permit breathing; and in light of testimony describing her risk of death from the type of injuries she sustained, the jury could have rationally inferred that her injuries caused her a substantial risk of death. Concluding the evidence was legally sufficient, CCA reversed COA and reinstated the trial court’s judgment.

D made an adequate showing of deficient performance because counsel failed to advise him regarding the man­da­tory deportation consequence of his guilty plea; however, D’s prejudice claim failed because he did not demonstrate that but for counsel’s errors, he would have rejected the plea bargain. Ex parte Torres, 483 S.W.3d 35 (Tex.Crim.App. 2016).

        The trial court denied D the habeas relief he requested pur­suant to Padilla v. Kentucky, 559 U.S. 356 (2010). See U.S. Const. amends. VI, XIV. COA reversed.

        Under Strickland v. Washington, 466 U.S. 668 (1984), CCA determined trial counsel performed deficiently by failing to adequately advise D regarding the presumptively mandatory deportation consequences of his guilty plea. CCA also determined the record supported the trial court’s conclusion that D was not prejudiced as a result of counsel’s error in view of the lack of any evidence from D as to how he was prejudiced and in the absence of any credible facts in the record showing that but for counsel’s erroneous advice, D would have rationally decided to reject the plea bargain and pursue a trial. The record supported a conclusion that D did not place any special emphasis on avoiding deportation consequences as a result of his plea because his concern at the time was getting out of jail, and he disregarded counsel’s advice to seek counsel from an immigration attorney as to how his residency status would be impacted by his plea. Accordingly, CCA overruled the State’s third ground for review that contended trial counsel did not render deficient performance, and CCA sustained the first two grounds asserting that COA erred by determining D was prejudiced. CCA reversed COA and reinstated the judgment denying relief.

Court of Appeals

D’s convictions for aggravated assault with a deadly weapon against a public servant were proper because the jury was free to disbelieve D’s testimony and infer that he knew the men in the bedroom were officers serving a search warrant and intentionally or knowingly pointed a gun at the officer. Parker v. State, No. 06-15-00144-CR (Tex.App.—Texarkana May 4, 2016).

        During a police raid of his residence, D allegedly pointed a shotgun at two police officers. By two separate indictments, D was charged with aggravated assault with a deadly weapon against a public servant. After a jury trial, he was found guilty on both counts. Here, D contended that the evidence supporting his convictions was legally insufficient. COA affirmed the trial court.

        D’s convictions for aggravated assault with a deadly weapon against a public servant under Tex. Penal Code §§ 22.01(a)(2), and 22.02(a)(2) and (b)(2)(B), were proper because the jury was free to disbelieve D’s testimony that he was hiding in a closet and did not see the officers, and to infer that he knew that the men were sheriff’s officers serving a search war­rant and he intentionally or knowingly pointed the shotgun at each officer, thereby threatening him with imminent bodily injury. As such inferences were more than reasonable under the facts and circumstances of the case, the jury’s verdict was supported by legally sufficient evidence.

May 2016 SDR – Voice for the Defense Vol. 45, No. 4

Voice for the Defense Volume 45, No. 4 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

Supreme Court capital-sentencing case law did not require a court to instruct the jury that mitigating circumstances need not be proved beyond a reasonable doubt; nor was such an instruction constitutionally necessary in these cases to avoid confusion. Kansas v. Carr, 136 S. Ct. 633 (2016).

        A Kansas jury sentenced respondent Gleason to death for killing a co-conspirator and her boyfriend to cover up a robbery. A Kansas jury sentenced the two other respondents, the Carr brothers, to death after a joint sentencing proceeding; the Carrs were convicted of charges stemming from a crime spree of kidnapping, murder, rape, and robbery. The Kansas Supreme Court vacated the death sentences in each case, holding that the sentencing instructions violated U.S. Const. amend. VIII by failing “to affirmatively inform the jury that mitigating circumstances need only be proved to the satisfaction of the individual juror in that juror’s sentencing decision and not beyond a reasonable doubt.” It also held that the Carrs’ Eighth Amendment right “to an individualized capital sentencing determination” was violated by the trial court’s failure to sever their sentencing proceedings. The U.S. Supreme Court reversed and remanded.

        The sentencing courts were not required to affirmatively instruct the jury that mitigating circumstances need not be proven beyond a reasonable doubt. The Eighth Amendment was satisfied by instructions that, in context, made clear that each juror must individually assess and weigh any mitigating circumstances. The instructions said that both the existence of aggravating circumstances and the conclusion that they outweigh mitigating circumstances must be proved beyond a reasonable doubt but that mitigating circumstances must merely be “found to exist.” No juror would have reasonably speculated that “beyond a reasonable doubt” was the correct burden for mitigating circumstances. Ambiguity in capital-sentencing instructions gives rise to constitutional error only if there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence, a bar not cleared here. Even assuming that it would be unconstitutional to require the defense to prove mitigating circumstances beyond a reasonable doubt, the record belies Ds’ contention that the instructions caused jurors to apply such a standard here.

        Furthermore, the Constitution did not require severance of the Carrs’ joint sentencing proceedings. The Court presumed that the jury followed its instructions to give separate consideration to each defendant. In light of all the evidence at the guilt and penalty phases relevant to the jury’s sentencing determination, the contention that the admission of mitigating evidence by one Carr brother could have “so infected” the jury’s consideration of the other’s sentence to amount to a denial of due process is beyond the pale. “Only the most extravagant speculation would lead to the conclusion that any supposedly prejudicial evidence rendered the Carr brothers’ joint sentencing proceeding fundamentally unfair when their acts of almost inconceivable cruelty and depravity were described in excruciating detail by the sole survivor, who, for two days, relived the Wichita Massacre with the jury.”

Fifth Circuit

In sentencing Ds convicted of various offenses related to fraudulent real estate loans, the district court reversibly erred in setting the restitution amount; the court erroneously used the difference between the original loan amount and the foreclosure proceeds. United States v. Beacham, 774 F.3d 267 (5th Cir. 2014).

        The proper amount of restitution owed to a victim who purchased a fraudulently procured loan on the secondary market is what the victim paid for the mortgage, less any proceeds obtained through foreclosure. The government did not carry its burden of establishing the proper restitution amount as it pertained to the secondary-market purchasers. The Fifth Circuit vacated Ds’ sentences and remanded because the Fifth Cir­cuit could not tell how the restitution orders fit into the sen­tencing court’s “balance of sanctions.”

The Fifth Circuit upheld the denial of qualified immunity for prison officials in this lawsuit Louisiana prisoners filed challenging solitary confinement conditions. Wilkerson v. Goodwin, 774 F.3d 845 (5th Cir. 2014).

        Coupled with the extraordinary length of time the prisoners were held in solitary, the conditions in the Louisiana prisons in question were sufficiently restrictive to constitute an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life,” giving rise to a cognizable liberty interest. Furthermore, this liberty interest was clearly established at the relevant time.

District court was not collaterally stopped from applying a 16-level crime of violence enhancement to D on the basis of a prior Florida aggravated-battery conviction simply because another district judge of that same court had, in a prior illegal-reentry prosecution of D, sustained an objection to a 16-level enhancement on the basis of that Florida conviction. United States v. Ramos Ceron, 775 F.3d 222 (5th Cir. 2014).

        At least on plain-error review (applicable in the absence of an objection on this ground below), there was an inadequate district court record to evaluate the collateral-estoppel claim, and D cited no authority applying collateral estoppel to a prior Sentencing Guidelines ruling. Furthermore, in sentencing illegal-reentry D, the district court did not err in applying the “crime of violence” enhancement under USSG § 2L1.2(b)(1)(A)(ii) on the basis of D’s prior Florida aggravated battery conviction; the offense had the requisite “force” element.

Where D (convicted on his guilty plea of fraud and unlawful procurement of naturalization) alleged, in a 28 U.S.C. § 2255 motion, that his attorney provided ineffective assistance by failing to warn him of the immigration consequences of his plea, the district court did not reversibly err in granting the government’s motion for summary judgment. United States v. Kayode, 777 F.3d 719 (5th Cir. 2014).

        Although D sufficiently alleged deficient performance in this regard under Padilla v. Kentucky, 559 U.S. 356 (2010), D did not meet his burden to show prejudice from this deficient performance.

18 U.S.C. § 924(c)(1) does not authorize multiple convictions for a single possession of a firearm; in this case, it would have been error for the jury to base two § 924(c)(1) convictions on a single firearm possessed, even if it was possessed in connection with more than one predicate crime. United States v. Campbell, 775 F.3d 664 (5th Cir. 2014).

        The jury should have been required to decide whether D possessed a second, separate firearm. However, on plain-error review, D was not entitled to relief from his second § 924(c)(1) conviction (for which he received a consecutive mandatory min­i­mum sentence of 25 years in prison) because the error here was not clear or obvious.

District court harmlessly erred in applying a 16-level crime of violence enhancement to illegal-reentry D on the basis of D’s prior conviction for stalking (Tex. Penal Code § 42.072); that offense was not an enumerated crime of violence and likewise did not have as an element the use, attempted use, or threatened use of physical force. United States v. Rodriguez-Rodriguez, 775 F.3d 706 (5th Cir. 2015).

        The district court’s error was harmless because the district court imposed the same sentence, in the alternative, as a non-Guideline sentence. The district court’s “alternative sentence” rendered the Guideline application error harmless because, in imposing it, the district court contemplated the correct Guideline range and justified the sentence with permissible factors.

D’s charges for production of child pornography (18 U.S.C. § 2251(a)) were not subject to the five-year stat­ute of limitations in 18 U.S.C. § 3282(a); a § 2251(a) vio­la­tion is “an offense involving the sexual or physical abuse of a child under the age of 18 years” that, under § 3283, could be prosecuted until the child attained age 25. United States v. Diehl, 775 F.3d 714 (5th Cir. 2015).

        (2) There was sufficient evidence on the interstate-commerce element of 18 U.S.C. § 2251(a). The evidence showed that the images were produced in Texas, but were later found on computers in other states and Australia. Moreover, there was specific evidence from which it could be inferred that D himself transmitted the images across state lines via the internet and physically transported the images across state lines.

        (3) Even though D’s 600-month sentence was a substantial upward variance from the advisory Guideline imprisonment range of 210 to 262 months, that sentence was neither procedurally nor substantively unreasonable.

Where D received a sentence reduction under Fed. R. Crim. P. 35(b), resulting in the entry of an amended judgment, that fact did not restart the one-year period for filing a 28 U.S.C. § 2255 motion under § 2255(f)(1). United States v. Olvera, 775 F.3d 726 (5th Cir. 2015).

        The modification of a sentence does not affect the finality of a criminal judgment. Nor was D’s motion timely under 28 U.S.C. § 2255(f)(3); the rule of Alleyne v. United States, 135 S. Ct. 2151 (2013), does not apply retroactively to cases on collateral review.

D was not entitled to authorization to file a successive 28 U.S.C. § 2255 motion; he failed to show that any of the Supreme Court decisions on which he relied announced “a new rule of constitutional law, made retro­active to cases on collateral review by the Supreme Court[.]” In re Jackson, 776 F.3d 292 (5th Cir. 2015).

        Federal prisoner failed to show that Begay v. United States, 553 U.S. 137 (2008), Johnson v. United States, 559 U.S. 133 (2010), and Descamps v. United States, 133 S. Ct. 2276 (2013), announced “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable,” as required by 28 U.S.C. § 2255(h)(2).

Where D was convicted of failing to register as a sex offender (18 U.S.C. § 2250(a)), district court abused its discretion in imposing a lifetime special condition of supervised release requiring D to install computer filtering software to block/monitor access to sexually oriented websites for any computer he possessed or used. United States v. Fernandez, 776 F.3d 344 (5th Cir. 2015).

        Neither the failure-to-register offense nor D’s criminal history had any connection to computer use or the internet; the district court’s general concerns about recidivism or that D would use a computer to perpetrate future sex crimes were insufficient to justify the imposition of the software-installation special condition. The Fifth Circuit vacated that condition and remanded for entry of a corrected judgment.

Even if the frisk of D violated the Fourth Amendment, the evidence in question—child pornography on D’s cell phone—was obtained by D’s consent, which was the product of an intervening independent act of free will on D’s part that purged the taint of any alleged con­stitutional violation. United States v. Montgomery, 777 F.3d 269 (5th Cir. 2015).

        Although the temporal proximity of the discovery of the evidence to the alleged constitutional violation was a factor that favored D, the other two factors ((1) intervening circumstances, particularly D’s unsolicited consent to search the cell phone, and (2) the flagrancy of any police misconduct) did not. Collectively, the factors favored the government. Because the discovery of the evidence was sufficiently attenuated from the alleged constitutional violation, the evidence did not have to be suppressed as fruit of the poisonous tree.

Court of Criminal Appeals

State’s notice of appeal from a suppression order was untimely under Tex. Code Crim. Proc. art. 44.01(d) and Tex. R. App. P. 26.2(b) because the time for filing a no­tice of appeal from an order adverse to the State begins to run with the trial court’s signing of that order, regardless of whether the State receives notice that the order is signed. State v. Wachtendorf, 475 S.W.3d 895 (Tex.Crim.App. 2015).

        “The issue in this case is whether the time for filing a notice of appeal from an order adverse to the State should begin to run with the trial court’s signing of that order if the State re­ceived no timely notice that the order had been signed. The State asserts that it was not notified that the trial court had signed an order granting Appellee’s motion to suppress until the period for filing its notice of appeal had expired. Having re­ceived no notice of this triggering event, the State filed an untimely notice of appeal, and the Third Court of Appeals dismissed its appeal for want of jurisdiction. . . . We granted the State’s petition . . . to address its argument that the timetable for its notice of appeal should not be triggered by an event for which it obtained no notice and had no actual knowledge. We shall affirm the judgment of the court of appeals.”

Tex. Penal Code § 38.15(a)(1) was not unconstitutionally applied to Ds where the police skirmish line was a lawful exercise of police authority and, therefore, did not violate Ds’ First Amendment rights. Faust v. State, Nos. PD-0893-14, PD-0894-14 (Tex.Crim.App. Dec 9, 2015).

        Ds, while protesting a gay pride parade, each disobeyed a police officer’s order not to cross a skirmish line, resulting in their arrest for Interference with Public Duties under Tex. Pe­nal Code § 38.15(a)(1). After a consolidated bench trial, each D was convicted and sentenced to two days in jail and assessed a $286 fine. Ds appealed, asserting that § 38.15(a)(1) was unconstitutionally applied to them in violation of U.S. Const. am. 1. COA agreed and reversed their convictions. CCA reversed COA and reinstated the trial court orders.

        Section 38.15(a)(1) was not unconstitutionally applied. The police order not to cross the skirmish line during the pro­tests was content neutral because the officers intended to pre­vent direct and close confrontation between Ds and the parade-goers, the officers’ decision to prevent all members of the church from crossing the skirmish line was reasonable given previous instances of violent confrontations erupting be­tween members and parade supporters, and Ds had ample alternative channels of communication open to them as they were free to continue their protesting in all directions except one.

Under a de novo standard of review, D made a substantial showing that he was incompetent to be executed; the case was remanded for the appointment of at least two mental health experts and a determination on the merits of his competency. Mays v. State, 476 S.W.3d 454 (Tex.Crim.App. 2015).

        D was convicted of capital murder and sentenced to death. He subsequently challenged his competency to be executed. The trial court denied D’s motion because he failed to make a substantial showing of execution incompetence; D here argued that the trial court erred. CCA agreed, finding that D made a substantial showing that he was incompetent to be executed pursuant to Tex. Code Crim. Proc. art. 46.05. D presented evidence that in 1983 he was involuntarily committed to a state hospital, in 2007 he was diagnosed with dementia, during his 2008 trial numerous witnesses described him as mentally ill and exhibiting a pattern of irrational behaviors, in 2009 a neuropsychologist determined he suffered from impaired memory and dementia, an attorney who met with D in 2015 noted that he exhibited various odd behaviors and appeared delusional, and two experts expressed substantial doubts about his competency to be executed. CCA set aside the order denying relief and remanded to the trial court for further competency proceedings. The stay of execution remained in effect pending the outcome of the competency proceedings in trial court.

Where defense counsel filed an untimely Tex. R. App. P. Order 11-003 motion to withdraw or modify the execution date of D convicted of three capital murders, CCA ordered D’s two counsel to appear in person because their Rule 11-003 statements did not explain why it was impossible to file a timely motion for stay of exe­cu­tion. In re State ex rel. Risinger, 479 S.W.3d 250 (Tex.Crim.App. 2015).

If a defendant pleads true to an enhancement paragraph, a court of appeals cannot imply a trial court’s finding of true regarding that prior conviction used for enhancement when the trial judge, in his own words, refused to make such a finding. Donaldson v. State, 476 S.W.3d 433 (Tex.Crim.App. 2015).

        “The trial court did not make any affirmative findings of ‘true’ regarding the federal mail-fraud conviction in these cases. After being admonished on the enhancements, appellant pleaded true, and the trial court sentenced her within a proper punishment range for appellant’s second- and third-degree convictions. However, the trial court also sentenced appellant within the enhanced punishment range in the two state-jail-felony cases. Under [CCA precedent], appellant’s pleas of true would be sufficient to satisfy the State’s burden of proof for the enhancement allegations. Moreover, those pleas would support an implied finding in the absence of any other evidence that the trial court rejected the State’s proof on the enhancement. . . . But implying a finding that the trial court found the enhancement allegation true is not appropriate in this case. The trial court expressly stated it was not making a finding of true, and it sentenced appellant within a proper range of punishment in her other three convictions. Moreover, the trial court expressed its concern throughout the plea hearing that it could not use the federal mail-fraud conviction as a basis for enhancement. Under Texas law, the mail-fraud conviction would not be considered final for purposes of enhancement because appellant committed the subsequent offense prior to the revocation of the appellant’s probation on the mail-fraud case. But under federal law, appellant’s mail-fraud conviction was final for purposes of enhancement upon issuance of the mandate from appellant’s federal appeal. . . . The trial court’s confusion regarding his ability to use the federal conviction for purposes of enhancement supports the conclusion that the trial court did not intend to find the prior enhancement true, par­ticularly in light of the express refusal to find the mail-fraud enhancement true in any of appellant’s cases, even if the refusal was based on a mistake of law.

        “The trial court was within its discretion to reject a finding of true on the prior mail-fraud conviction. However, it lacked the authority to assess punishment outside the statutory range for a state jail felony once it refused to find the prior mail-fraud enhancement allegation true. Because the trial court imposed punishment for the state-jail felonies outside the maximum range of punishment, those sentences are illegal. . . . We reverse the judgment of the court of appeals, and remand this case to the trial court for a new punishment hearing on those two counts.”

The State’s warrantless acquisition by court order of four days of cell-site-location data recorded by D’s cell-phone service provider did not violate U.S. Const. amend. IV because a third party, the provider, gathered and maintained the data as business records of the service provided to his phone, and he did not have a legitimate expectation of privacy in the data. Ford v. State, 477 S.W.3d 321 (Tex.Crim.App. 2015).

        “We agree with the San Antonio Court of Appeals that, because a third-party, AT&T, gathered and maintained the information as business records of the service provided to Ford’s phone, Ford did not have a reasonable expectation of privacy in the data. The State did not violate Ford’s Fourth Amendment rights when it obtained that information by way of a court or­der under Article 18.21 § 5(a) of the Texas Code of Criminal Pro­cedure—an order available on a showing short of probable cause. We will affirm.”

Officers’ use of a drug-detection dog sniff at the door of D’s apartment resulted in a physical intrusion into the curtilage that exceeded the scope of any express or implied license, constituting a warrantless search in violation of U.S. Const. amend. IV; the court properly granted D’s motion to suppress. State v. Rendon, 477 S.W.3d 805 (Tex.Crim.App. 2015).

        “[W]e are asked to decide whether it constitutes a search within the meaning of the Fourth Amendment for law-enforcement officers to bring a trained drug-detection dog directly up to the front door of an apartment-home for the pur­pose of conducting a canine-narcotics sniff. We hold that it does. Consistent with [Florida v. Jardines, 133 S. Ct. 1409 (2013)], we conclude that the officers’ use of a dog sniff at the front door of the apartment-home of [D] resulted in a physical intrusion into the curtilage that exceeded the scope of any express or implied license, thereby constituting a warrantless search in violation of the Fourth Amendment. We, therefore, affirm the judgment of the court of appeals, which had affirmed the trial court’s rulings granting appellee’s motions to suppress.

        “[A]pplication of the property-rights baseline renders the present case a straightforward one. Here, the officers took a drug-detection dog directly up to the threshold of appellee’s front door, at which point the dog alerted to the presence of illegal narcotics on the bottom left portion of the door. This threshold at the door of an apartment-home located at an upstairs landing that served only two apartments is objectively ‘“intimately linked to the home, both physically and psychologically,”’ and thus was part of the curtilage. . . . The officers’ presence at that location was for the express purpose of conducting a search for illegal narcotics, which exceeded the scope of any express or implied license that is generally limited to knocking on someone’s door. . . . Under a strict application of the ‘traditional property-based understanding of the Fourth Amendment,’ we conclude that the dog sniff at the threshold of appellee’s apartment’s door was an unlawful search within the meaning of the Fourth Amendment. . . . We, therefore, narrowly hold that the curtilage extended to appellee’s front-door threshold located in a semi-private upstairs landing and that the officers’ conduct in bringing a trained narcotics-detection dog into that constitutionally protected area constituted an unlicensed physical intrusion in violation of the Fourth Amendment.”

Though the trial court erred by defining “penetration” and “female sexual organ” in its jury instructions during D’s trial for aggravated sexual assault of a child under Tex. Penal Code § 22.021(a)(1)(B)(i) as those terms were not statutorily defined, the error was harmless. Green v. State, 476 S.W.3d 440 (Tex.Crim.App. 2015).

        COA erred by reversing D’s conviction; the definitions accurately described the common meanings of the terms, the trial court instructed the jury to disregard any instruction that might have seemed to indicate its opinion about the evidence, the defense was not affected as it was focused on undermining complainant’s credibility by showing that no sexual touching of any kind had occurred, and the definitions conflicted with complainant’s testimony. “Although we agree with the court of appeals’ error analysis in that the trial court should not have defined those terms that are undefined in the applicable stat­ute, we disagree that appellant was harmed by the erroneous instructions. We, therefore, sustain in part the State’s sole ground that asserts that the court of appeals erred by finding reversible error in the jury instructions. We reverse the judgment of the court of appeals and remand this case to that court to address appellant’s remaining points of error.”

D, a public servant, committed theft by deception when he purchased an airline ticket for county-approved travel with a county credit card but used the voucher from the cancellation of the ticket for personal travel without correcting the impression that the ticket would be used for county-approved business. Fernandez v. State, 479 S.W.3d 835 (Tex.Crim.App. 2016).

        D was a Justice of the Peace in Val Verde County. He directed his chief deputy clerk to make arrangements for him to attend a conference in Orlando; the clerk booked a Southwest Airlines ticket. The nonrefundable ticket was paid for with a county-owned credit card issued in D’s name. County Auditor Frank Lowe testified that he received documentation supporting the county-business nature of the trip. Near the trip, D became ill and instructed the clerk to cancel the travel arrangements. When the clerk canceled the ticket, its price was converted into a ticket voucher in D’s name.

        Two months later, D asked the clerk for the reservation number of the flight and told her to call his son and give him the number. The clerk complied. Later that month, Lowe was reviewing the county’s expenses and noticed the county was nearing its annual limit for travel. Upon seeing this, Lowe con­tacted Southwest Airlines and attempted to get a refund for the ticket; Lowe learned the voucher had been used for a flight to Phoenix. Val Verde County has a personnel policy that prohibits the use of county property for personal use. Believing the voucher had been used for non-county-related travel, Lowe reached out to the County Attorney, who in turn reached out to the Attorney General. After the initiation of the Attorney General’s investigation, D attempted to tender payment for the voucher to the county auditor’s office, but his tender was refused.

        Lowe testified that he had not been made aware that there was any county business in Phoenix and had not received any documentation pertaining to the Phoenix trip, as was customary for county-related travel. D’s son testified in D’s defense that he was the one who initially suggested that his father use the voucher to fly to Phoenix and that at all times D intended to repay the county for the amount.

        D was convicted of theft by a public servant by way of deception, and COA and CCA affirmed. D obtained the county’s consent to use the airline voucher when he instructed his chief deputy clerk to pass along the voucher number to his son, because without the voucher number, D would have been unable to access and use the Southwest Airlines credit that re­sulted from the original Orlando ticket. By conveying the voucher number to D, the county, by way of its agent, assented to its use by D. However, when D directed the clerk to give the voucher number to his son, D failed to correct the impression he had created previously that the county funds expended on the ticket would be used for county-approved travel.

Sufficient evidence supported D’s conviction for felony assault against a family member, and the court’s error in omitting “bodily injury” in the jury charge did not cause egregious harm because the application paragraph required the jury to find a specific type of bodily injury. Marshall v. State, 479 S.W.3d 840 (Tex.Crim.App. 2016).

        A jury convicted D of felony assault against a family member under Tex. Penal Code § 22.01. On appeal, COA held that the evidence was legally sufficient but the omission of the words “bodily injury” from the jury charge’s application para­graph egregiously harmed D. CCA reversed COA and reinstated the jury verdict.

        CCA agreed that the evidence was sufficient, but disagreed that the jury charge egregiously harmed D. Sufficient evidence supported D’s conviction because complainant testified that she was unable to take deep breaths while D pressed a pillow tight against her face. Even though complainant testified that she never lost consciousness and never was completely unable to breath, that is not required to prove bodily injury under Tex. Penal Code § 1.07(a)(8); any impediment to normal breathing is a bodily injury. The trial court’s error in omitting “bodily injury” in the jury charge did not cause egregious harm because the application paragraph required the jury to find a specific type of bodily injury—impeding normal breathing, which is a bodily injury per se.

CCA rejected capital-sentenced D’s 27 points of error, including insufficiency of the evidence and media influence. Buntion v. State, No. AP-76,769 (Tex.Crim.App. Jan 27, 2016).

        In 1991, a jury convicted D of capital murder. Tex. Penal Code § 19.03(a)(1). Based on the jury’s answers to the special issues in Tex. Code Crim. Proc. art. 37.071, §§ 2(b) and 2(e), the trial judge sentenced D to death. Art. 37.071, § 2(g). His conviction and sentence were affirmed on direct appeal. D’s initial state habeas application was denied. His subsequent application was granted, and the case was remanded for a new pun­ishment hearing. The trial court held a new punishment hearing in 2012. Based on the jury’s answers to the special issues, the trial judge sentenced D to death. Art. 37.0711, § 3(g). Direct appeal to CCA was automatic. Art. 37.0711, § 3(j).

        CCA found D’s 27 points of error to be without merit and affirmed the trial court’s sentence of death. Primarily, the evidence was sufficient to sustain the jury’s affirmative answer to the future dangerousness special issue where it showed that D shot an officer several times during a traffic stop, he fled the scene and committed several violent offenses to evade capture, his conduct after his arrest indicated he lacked remorse, he had a prior criminal record, and his character for violence had not changed during his time in prison. Furthermore, the trial court did not abuse its discretion by denying D’s motion for change of venue due to pretrial publicity under Tex. Code Crim. Proc. art. 31.03(a), where the court declined to find that a recording of an interview D gave to a television news reporter that was played for the jury was prejudicial, and the court rejected that discussion in the media of parole or early release denied D a fair trial.

The record did not support the offense of capital murder; it did not show D murdered a victim when kidnapping another victim. Griffin v. State, No. AP-76,834 (Tex.Crim.App. Jan 27, 2016).

        In 2012, a jury convicted D of capital murder. Tex. Penal Code § 19.03(a)(2). Based on the jury’s answers to the special issues in Tex. Code Crim. Proc. art. 37.071, §§ 2(b) and 2(e), the judge sentenced D to death. Direct appeal to CCA was automatic. Art. 37.071, § 2(h). After reviewing D’s points of error, CCA found the record did not support capital murder. CCA reversed the trial court’s judgment and sentence of death and remanded to the trial court for reformation of the judgment and a new punishment hearing.

        Evidence did not show Tex. Penal Code § 19.03(a)(2) cap­i­tal murder because it did not show D murdered a victim when kidnapping another victim, since only after death did he restrict the second victim’s movements without consent, Tex. Penal Code § 20.01(1)(B)(i); he assaulted the second victim only after the murder was complete; and nothing showed his intent to kidnap the second victim on entering the first victim’s apartment, as he killed the first victim before knowing the second victim was there and did not try to abduct the second victim after the murder. The evidence was not insufficient for capital murder for not showing facilitation of a kidnapping because Tex. Penal Code § 19.03(a)(2) did not require facilitation. The judgment was reformed to a murder conviction because the evidence was only insufficient as to an aggravating element.

Court of Appeals

Even though counsel was deficient for failing to investigate D’s mental health history, D could not show he was prejudiced where he received a relatively short sentence of 20 years’ imprisonment for burglary of a habitation. Morrow v. State, No. 06-15-00013-CR (Tex.App.—Texarkana Feb 19, 2016).

        The evidence was sufficient to support D’s burglary conviction under Tex. Penal Code § 30.02(a)(3) where the victim testified that during their divorce proceeding she and D agreed she would have possession of the home, D moved out, and she thereafter occupied the home without him. COA affirmed the trial court.

Trial court erred by allowing the audio recording of D’s confession into evidence where the recording was conclusive evidence that the “right to terminate” warning was not given due to officer’s unintelligible reading of it; the error was not harmless. Baiza v. State, No. 11-14-00067-CR (Tex.App.—Eastland Mar 31, 2016).

        The trial court erred by allowing the audio recording of D’s confession into evidence under Tex. Code Crim. Proc. art. 38.22 where the recording of the statement was conclusive evidence that the “right to terminate” warning was not given due to the officer’s very quick reading of the warnings, to the point that they were unintelligible. The error was not harmless under Tex. R. App. P. 44.2 where the only direct evidence of sexual assault was the complainant’s account in her testimony, D’s theory throughout the trial was that the sex was consensual but his admission on the audio recording refuted that theory, and the State emphasized D’s admission during closing arguments. COA reversed and remanded for a new trial.

April 2016 SDR – Voice for the Defense Vol. 45, No. 3

Voice for the Defense Volume 45, No. 3 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

Florida’s death-sentencing scheme, which did not require a jury to determine whether a capital defendant was mentally retarded or unanimously sentence a defendant to death, violated the Sixth Amendment’s jury trial guarantee. Hurst v. Florida, 136 S. Ct. 616 (2016).

        A jury convicted D of first-degree murder for killing a co-worker and recommended the death penalty. Under Florida law, the jury rendered an “advisory sentence.” Notwithstanding that recommendation, the court had to independently find and weigh the aggravating and mitigating circumstances before entering a sentence of life or death. The court sentenced D to death. On appeal, D was granted a new sentencing trial because the Supreme Court of Florida found that his counsel should have investigated and presented evidence of his mental capacity. At his new sentencing trial, D was prevented from presenting mental retardation evidence as an absolute bar to the imposition of the death penalty, though he was allowed to present it as mitigating evidence. At resentencing, the jury again recommended death, and the judge again found the facts necessary to sentence D to death. The Florida Supreme Court affirmed. The U.S. Supreme Court reversed.

        Florida’s death-sentencing scheme violated U.S. Const. amend. VI in light of Ring v. Arizona, 536 U.S. 584 (2002), which deemed unconstitutional a capital-sentencing scheme that permitted a judge rather than a jury to find the facts necessary to sentence a defendant to death. The Ring Court held that the Sixth Amendment required that the jury determine the presence of aggravating factors, which Arizona’s death-sentencing scheme viewed as essentially elements of a larger offense. The Supreme Court of Florida had previously held Ring did not apply to Florida’s death penalty sentencing scheme generally and specifically did not require that a jury’s recommendation of the death penalty be unanimous or that a jury determine the factual issue of a defendant’s potential mental retardation. But the Sixth Amendment requires a jury, not a judge, to find each element necessary to impose the death sentence. Although the Florida sentencing scheme required that the jury recommend a death sentence in order to impose the death penalty, the judge was only required to take the jury rec­om­men­da­tion under consideration. Because the Court held in Ring that the Sixth Amendment required that a jury make all the critical findings necessary to impose the death penalty, the Florida sentencing scheme violated the Sixth Amendment in the same way Arizona did in Ring.

Fifth Circuit

Although illegal-reentry D’s prior conviction under S.C. Code § 44-53-370(a)(1) was not categorically a “drug trafficking offense” for USSG § 2L1.2 purposes, application of the modified categorical approach to the record of conviction in that prior case—particularly, a document called the “sentencing sheet”—made clear that D was convicted of a drug trafficking offense. United States v. Rodriguez-Negrete, 772 F.3d 221 (5th Cir. 2014).

Where D had his supervised release revoked on three counts of conviction and received six months of custody on each count (consecutive to one another) to be followed by 24 months of reimposed supervised release on each count (concurrent to one another), the district court did not run afoul of the 18 U.S.C. § 3583(h) limits on reimposition of supervised release. United States v. Oswalt, 771 F.3d 849 (5th Cir. 2014).

        Contrary to D’s argument, the court was not required to subtract the full 18 months of imprisonment from the maximum 36-month supervised-release term originally available on each count of conviction. The formula in § 3583(h) is count-specific and does not contemplate subtracting the post-revocation terms of imprisonment imposed on all counts; because D could have received up to 30 months’ reimposed supervised release on each count (the original 36-month maximum less the six months’ imprisonment imposed for that count), the 24-month reimposed supervised-release term did not exceed the statutory maximum.

Although a Cal. Health & Safety Code § 11378 violation is not categorically a “drug trafficking offense” for USSG § 2L1.2, the district court did not plainly err in categorizing D’s § 11378 conviction as such given the lack of indication that D might have been convicted in any way other than that in the complaint (which charged possession of meth for sale, a qualifying offense). United States v. Castellon-Aragon, 772 F.3d 1023 (5th Cir. 2014).

Where a defendant who pleaded guilty signs a statement indicating that he wishes to appeal only his sentence and the defendant’s appellate counsel, in reliance on that statement, files an Anders brief addressing only issues related to sentencing, the defendant may not raise issues related to his guilty plea and conviction in his pro se response to the brief. United States v. Polanco-Ozorto, 772 F.3d 1053 (5th Cir. 2014).

        Where a defendant provides sufficient indication (consistent with United States v. Garcia, 483 F.3d 289 (5th Cir. 2007)) that he intends to challenge only his sentence, the defendant may not revoke that decision after counsel has filed an Anders brief pretermitting any discussion of D’s guilty plea. The Fifth Circuit dismissed D’s appeal.

In sentencing D for a drug offense, district court did not violate due process or Fed. R. Crim. P. 32(i)(3)(B) in its ruling on D’s objection to a two-level enhancement under USSG § 2D1.1(b)(1) for possession of a firearm; a district court may fulfill the obligation to rule on an objection by adopting the presentence report. United States v. King, 773 F.3d 48 (5th Cir. 2014).

        The district court said it was overruling the objection for the reasons stated in the addendum to the presentence report. On the merits, the district court did not clearly err (the applicable standard, United States v. Zapata-Lara, 615 F.3d 388 (5th Cir. 2010), notwithstanding) in applying the § 2D1.1(b)(1) enhancement; it was plausible in light of the record that the government proved by a preponderance of the evidence that a spatial relationship existed between the handgun, D, and the offense of conspiracy with intent to distribute heroin. It was also plausible that D failed to show that it was “clearly improbable” that the firearm was connected to his offense of conviction.

        (2) Joining four other circuits, the Fifth Circuit held that there is no constitutional error under Alleyne v. United States, 133 S. Ct. 2151 (2013), in permitting a judge to find the facts that render the “safety valve” exception to mandatory-minimum sentences inapplicable. See 18 U.S.C. § 3553(f). The “safety valve” does not increase the mandatory minimum; it removes it.

D waived his arguments that he was prosecuted outside the applicable statute of limitations by failing to raise his statute-of-limitations defense until a post-conviction motion for judgment of acquittal. United States v. Lewis, 774 F.3d 837 (5th Cir. 2014).

        A statute-of-limitations defense is an affirmative defense that must be affirmatively asserted at trial in order to preserve it for appeal. By requiring a defendant to raise and develop his statute-of-limitations defense at trial, the prosecution will have a chance to rebut the defendant’s arguments with evidence of its own.

District court did not abuse its discretion in denying tax-evasion D Criminal Justice Act funding under 18 U.S.C. § 3006A(e) for a neuropsychological exam to determine whether D suffered from a mental impairment that contributed to a good-faith belief that the tax returns he filed were truthful and lawful. United States v. Boyd, 773 F.3d 637 (5th Cir. 2014).

        There was no evidence of any concerns about D’s cognitive abilities during the time period in question.

18 U.S.C. § 641 authorizes a felony penalty for the first theft committed when it involves less than $1,000 and would, on its own, result only in a misdemeanor penalty but the total involved exceeds $1,000 aggregated with one or more subsequent theft(s). United States v. Lagrone, 773 F.3d 673 (5th Cir. 2014).

        The Fifth Circuit panel reversed course from an earlier opinion in this case and held that § 641 plainly declares that all thefts are already felonies, contrary to D’s contention that allowing felony penalties on all counts of theft when an initial theft does not exceed $1,000 makes the initial theft retroactively more serious. The defendant may receive the benefit of § 641’s lenity provision and be sentenced under a misdemeanor penalty scheme only if the aggregate value of the thefts does not exceed $1,000.

Court of Criminal Appeals

CCA vacated the order granting Chapter 64 testing; CCA found no reason to revisit its previous holdings denying testing because the record did not contain changes in law, facts, or circumstances. State v. Swearingen, 478 S.W.3d 716 (Tex.Crim.App. 2015).

        The trial judge granted D’s request for post-conviction DNA testing of several pieces of evidence under Tex. Code Crim. Proc. art. 64. The judge also conditionally granted D’s motion to release certain evidence for preliminary testing to determine whether the evidence contained biological material. CCA reversed and remanded, and dismissed the State’s appeal challenging the order conditionally granting the release of evidence. The State could not contest the conditional order’s validity by way of appeal, as it rested on grounds outside the bounds of Chapter 64.

        “Most recently, in 2014, we unanimously reversed this judge’s granting Swearingen’s prior Chapter 64 motion. . . . Swearingen was not entitled to DNA testing of the fingernail scrapings because we were ‘not persuaded that results showing the presence of another DNA donor in the fingernail scrapings would overcome the “mountain of evidence” of [D’s] guilt.’ And in our 2010 unanimous opinion, we noted that the evidence of Swearingen’s guilt was ‘overwhelming’ and that ‘even if we were to grant [his] request to test all of the items proffered and those results were exculpatory, [he] cannot show by a preponderance of the evidence, or that there is a 51% chance, that he would not have been convicted.’ We noted that the trial judge made ‘supported-by-the-record findings of fact that again, underscore the substantial evidence of guilt.’ Because we find that the record does not contain any change in the law, facts, or circumstances since our 2014 opinion and the granting of Swearingen’s latest Chapter 64 motion, we see no reason to revisit our previous holdings on the matter. We hold that the judge erred in granting the DNA testing[.]. . . The judge, however, found our 2010 holdings inapplicable in that ‘Swearingen’s current request includes additional probative evidence such as the rape kit, hair evidence and cigarette butts.’ Including cigarette butts as a distinguishing factor is clearly wrong. Swearingen sought testing of the cigarette butts in 2010 and 2014. To the extent the rape kit and hair evidence present entirely new requests, they do not prove that this current request should be resolved any differently than in our 2010 and 2014 conclusions. Swearingen is still unable to establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing. . . . We faulted Swearingen in 2014 for attempting to rely on the ramifications of hypothetical matches from evidence that eviscerate Chapter 64’s requirements. And it is even more attenuated to assume hypothetical confessions and false denials of contact stemming from hypothetical DNA matches.”

When Tex. Penal Code § 33.021(b) was declared unconstitutional, Ds were not entitled to habeas relief on an actual innocence theory because they alleged no new evidence to show they did not commit the crimes and did not contest having engaged in the conduct for which they were convicted; Ds were entitled to relief because the criminal sanctions affixed to their conduct had been removed. Ex parte Fournier, 473 S.W.3d 789 (Tex.Crim.App. 2015).

        Both defendants had pled guilty to online solicitation of a minor under Texas Penal Code § 33.021(b) (2012). They filed these habeas applications after Ex parte Lo, 424 S.W.3d 10 (Tex.Crim.App. 2013), established that § 33.021(b) was unconstitutionally broad; although the State had a compelling interest in protecting children from sexual predators, § 33.021(b) was not narrowly drawn “because there are narrower means of achiev­ing the State interests advanced here, at least some of which are already covered by other statutes.” Ds sought relief under Lo and under the theory that because the statute was unconstitutional, they were “actually innocent.”

        There was no disagreement among the parties that Applicants were entitled to have their judgments set aside under Lo. CCA agreed, while deciding the previously undecided issue of whether Lo entitled Applicants to relief under an “actual innocence” theory. CCA concluded Ds did not present true actual innocence claims; however, consistent with precedents granting relief under an unconstitutional statute theory, CCA set aside Ds’ judgments.

There was insufficient evidence regarding the crime D’s boyfriend was charged with for it to serve as the felony underlying D’s hindering apprehension conviction; there was no evidence that the boyfriend or D found out about the felony indictment prior to the boyfriend’s ar­rest or that the officers stated what they were arresting him for. Nowlin v. State, 473 S.W.3d 312 (Tex.Crim.App. 2015).

        D was convicted of hindering apprehension after encouraging her boyfriend to run from U.S. Marshals who were arresting him. Because the State alleged D knew her boyfriend was charged with a felony, her offense was elevated to a third-degree felony. COA affirmed. CCA granted D’s petition to determine whether the evidence was legally sufficient to prove she knew her boyfriend was charged with a felony.

        CCA reformed D’s conviction. The boyfriend could not have known he was under indictment for felon in possession of a firearm; it was impossible for him to have told D about the indictment or what offense it charged him with. “The evidence in this case was insufficient to support Appellant’s felony conviction. However, the State is correct in asserting that the element of knowledge that [her boyfriend] was being arrested for a felony offense is an aggravating factor and, therefore, the trial court necessarily found the essential elements of misdemeanor hindering apprehension. Therefore, we reform the judgment to reflect a conviction of misdemeanor hindering apprehension and remand the case to the trial court to conduct a new punishment hearing.”

COA did not view the evidence in the light most favorable to D’s forgery conviction; the evidence was suf­fi­cient for the jury to reasonably infer D passed the check with intent to defraud or harm another. Ramsey v. State, 473 S.W.3d 805 (Tex.Crim.App. 2015).

        D was found guilty of forgery. COA reversed, holding that the evidence was insufficient because there was no proof D had the intent to defraud or harm another. The State filed a petition for review, which CCA granted, arguing that COA did not ex­am­ine the totality of the evidence or reasonable inferences there­from. CCA agreed and reinstated D’s conviction.

        Although D argued there was insufficient evidence for the jury to conclude that neither owner signed the check or that D had sufficient access to steal the check based on conflicting evidence, the appellate court had to determine if any rational trier of fact could have found each element of the offense beyond a reasonable doubt. The jury could have resolved the conflicting evidence against D and reasonably inferred, based on the evidence, that he stole the check, forged it, and passed it at the liquor store with the intent to defraud and harm the owner. “The court of appeals reached the wrong result because it incorrectly applied the [Jackson v. Virginia, 443 U.S. 307 (1979)] legal sufficiency standard, which requires that the combined and cumulative force of all the evidence be viewed in the light most favorable to the conviction. After properly applying the Jackson standard, we find the evidence sufficient[.]”

COA erred in reversing D’s conviction and remanding for a new trial; the proper remedy would have been to abate the appeal and remand to the trial court, but CCA ultimately held that any error in the competency proceedings was harmless. Owens v. State, 473 S.W.3d 812 (Tex.Crim.App. 2015).

        D was charged with felony murder after he led police on a high-speed chase in which he hit two vehicles and killed one driver. He filed a pretrial motion arguing that he was incompetent to stand trial because, due to traumatic brain injury caused by the crash, he suffered from amnesia and was unable to remember anything about the wreck. After a mental-health assessment, the defense expert concluded that, even if D did suffer from amnesia (which the expert could not rule out), such condition did not render him incompetent to stand trial. At the competency hearing, D called the expert to the stand to testify about his conclusions; but, before the expert could testify regarding the substance of his report, D objected to his own witness and argued that the expert was not qualified to be appointed or testify as a competency expert. D’s complaint was founded on the belief that the witness did not meet a necessary continuing-education requirement. The judge allowed D to argue that the expert was not statutorily allowed to be appointed but otherwise overruled his objection and allowed the expert to testify. D was found competent and later convicted of felony murder. COA reversed and remanded for a new trial, holding that the court erred because the expert did not meet the statutory qualifications for a competency expert and that Appellant was harmed by the error. CCA reversed COA and remanded.

        COA would not have known whether D’s felony-murder trial would have been rendered invalid because it did not first abate the appeal and remand the case for a retrospective competency hearing. Regardless, D’s argument that he should not have been charged with murder, but a lesser charge, was compelling evidence that he understood the seriousness of the charge he was facing; therefore, he had a rational and factual understanding of the proceedings. Although D claimed not to remember the facts of the offense, he could have nevertheless relied on the circumstances of the offense to develop a mens rea defense. “The court of appeals erred when it reversed Appellant’s conviction and remanded the case for a new trial due to a perceived fatal flaw in the competency proceedings. Further, we hold that any error in allowing Allen to testify because he was not qualified as a competency expert under Chapter 46B of the Code of Criminal Procedure was harmless. We reverse the judgment of the court of appeals and remand this cause to that court to address Appellant’s third point of error.”

D was not entitled to relief; the trial court was called upon to make a judicial decision on the scope of the Fifth Amendment right against self-incrimination when it allowed the State to call D to testify at the evidentiary hearing on his habeas application, as the law was unsettled as to whether D faced risk of further criminal liability given his claim of ineffective assistance, and the court placed strong limits on the scope of questioning and granted immunity that prevented the State from using any information gained from the hearing in a subsequent proceeding. In re Medina, 475 S.W.3d 291 (Tex.Crim.App. 2015).

        “Under the plain text of the Fifth Amendment to the United States Constitution, a defendant has a clear right to prevent the State from forcing him to testify at his trial or at sentencing. . . . Is the State, in a post-conviction evidentiary hearing on a writ of habeas corpus, clearly prohibited from calling the writ applicant to testify—under a grant of both use and derivative-use immunity—about whether he was aware of and agreed to trial counsel’s strategy at the punishment stage of his capital-murder trial? If this Court were considering the question in the first instance, the answer might very well be ‘no.’ But because this case comes before us as a writ of prohibition, we are not asked to decide the precise scope of the Fifth Amendment. . . . [W]e are asked to decide whether the trial court made a judicial decision or a ministerial one. More specifically, we must determine whether the law on this issue is so clear that the trial court had no choice but to prohibit the State from calling relator to the stand. Examining the relevant case law regarding the scope of the Fifth Amendment from the United States Supreme Court and this Court reveals arguments to support the positions of both relator and the State. Consequently, we cannot say that the trial court had a ministerial duty to prohibit the State from calling relator to testify. . . . [I]n the context of the specific facts presented here, relator is not clearly entitled to the relief he seeks. . . . [A]pplicability of the Fifth Amendment turns less upon the type of proceeding and more upon the potential for exposure to criminal liability.”

Although CCA inferred that the laboratory report in D’s case was falsified, it found its falsity was not material to his decision to plead guilty because he was facing three additional drug cases. Ex parte Barnaby, 475 S.W.3d 316 (Tex.Crim.App. 2015).

        D plead guilty in a package deal to four separate offenses of possession of a controlled substance with intent to deliver and was sentenced to four concurrent 50-year sentences. In his habeas application, D challenged only the voluntariness of his plea to one of the offenses; in that case, the forensic technician assigned to analyze the seized substance was known to have fal­si­fied test results. CCA remanded to the trial court so the par­ties could present argument on what standard of review is appropriate for examining materiality.

        CCA denied relief and held that materiality of false evidence in the context of a guilty plea should be examined under the standard used to assess materiality of counsel’s deficient performance in the context of a guilty plea: if applicant had known that the evidence was false (i.e., “but for” the false evidence), he would not have plead guilty but would have insisted on going to trial. Although CCA inferred that the laboratory report in D’s case was falsified, CCA found its falsity was not material to his decision to plead guilty. D faced consecutive sentences had he been convicted at trial, and as part of the plea bargain the State waived the drug-free-zone finding on the other three cases, which markedly affected D’s parole eligibility.

Without any showing that the injured child was often underfoot of D or that D knew the child would likely be under his feet, the evidence was insufficient to support D’s conviction for negligently causing injury to a child. McKay v. State, 474 S.W.3d 266 (Tex.Crim.App. 2015).

        D was convicted of injury to a child with the culpable mental state of criminal negligence after spilling hot water on a two-year-old’s back. D appealed, arguing there was insufficient evidence. COA affirmed the trial court. CCA reversed and vacated Appellant’s conviction. There was insufficient evidence of criminal negligence to support D’s conviction under Tex. Penal Code § 22.04(a)(3) after he spilled hot water on the two-year-old child while he was in the kitchen, because there was no evidence that D failed to perceive a substantial and un­justifiable risk to the child.

When habeas applicant advanced multiple issues that would entitle him to relief, the trial court could limit its grant of relief to only one of the issues, as long as the court did not neglect an issue that would result in greater relief than the one addressed. Ex parte Reyes, 474 S.W.3d 677 (Tex.Crim.App. 2015).

        D raised five grounds in a habeas application attacking a judgment that imposed community supervision. Evidence supporting all these grounds was submitted in either affidavit form or through witnesses at a live hearing. The trial court granted relief on the first ground and did not address the remaining grounds. Holding that the trial court erred in granting relief on the first ground, COA reversed and rendered judgment reinstating the guilty plea. CCA concluded that COA should have remanded to the trial court to resolve D’s remaining claims; CCA reversed COA and remanded to the trial court.

        D did not forfeit his claims by failing to pursue them when COA abated the case on the State’s motion, and the trial court did not err by failing to address claims that were outside the State’s motion. “Because the trial court did not resolve all of appellee’s claims, and those claims were not waived, the court of appeals erred in rendering judgment. The appellate court should have remanded the case to the trial court for further proceedings. Whether those further proceedings involve merely additional fact findings or also involve further development of the record is a determination to be made by the trial court, at least in the first instance.”

As all parties agreed, counsel deficiently misadvised D’s plea; CCA set aside D’s conviction and remanded. Ex parte Sanchez, 475 S.W.3d 287 (Tex.Crim.App. 2015).

        D plead “no contest” to aggravated assault and was sentenced to ten years’ imprisonment. He did not appeal. In this habeas application, D contended, among other things, that his trial counsel rendered ineffective assistance because counsel erroneously advised D that he could receive community su­per­vision from the court if he pleaded “no contest” to this of­fense. D alleged that the trial court and prosecutor also believed D was eligible for community supervision from the trial court. D alleged that had he known he could not receive community supervision from the court for this offense because of the deadly weapon allegation, he would not have pleaded “no contest” but would have taken the case to trial by jury, where he would have been eligible for community supervision.

        D’s trial counsel filed an affidavit, in which he conceded he incorrectly advised D that he would be eligible for community supervision if he pleaded “no contest.” Counsel also stated that he did not advise D regarding the availability of de­ferred adjudication and did not file a motion requesting deferred adjudication community supervision. The trial court determined that counsel’s performance was deficient in that counsel advised D incorrectly that he would be eligible for com­munity supervision, and that such deficient performance prejudiced D. The trial court also found that the prosecutor and the trial court were under the mistaken impression that D was eligible for community supervision from the court, and that D was never advised that he was ineligible for community supervision because of the nature of the offense. The trial court concluded that D’s plea was not knowingly and voluntarily entered.

        CCA granted relief and set aside the judgment, and D was remanded to the sheriff’s custody to answer the charges in the indictment; the trial court was to issue any necessary bench warrant.

Court of Appeals

It could not be concluded that counsel performed deficiently at the punishment hearing in failing to object to the State’s closing argument referencing a letter D wrote to the trial court; the reviewing court could conceive potential reasonable trial strategies counsel could have been pursuing, given that D had been able to present his argument without subjecting himself to the perils of cross-examination by asking the trial court to read the letter. Ayers v. State, No. 06-15-00156-CR (Tex.App.—Texarkana Jan 14, 2016).

        D plead guilty to indecency with a child by sexual contact. Under D’s plea agreement, the trial court deferred a finding of guilt to consider the possibility of community supervision. During a subsequent hearing in which the court considered whether to place D on deferred adjudication community su­per­vi­sion, D and the State each requested the trial court review a letter D had written to the trial court and which had been filed with the clerk. The trial court complied with this request and, after the hearing on punishment, D was convicted of indecency with a child by sexual contact and was sentenced to 18 years’ imprisonment.

        D appealed here that because the letter was not formally admitted into evidence at the punishment hearing, the State argued outside of the evidence in referencing the letter during closing argument. D also argued that his counsel rendered in­effective assistance in failing to object to the State’s closing argument. COA found that D failed to preserve his first issue on appeal. COA further found that D “cannot demonstrate that his counsel rendered ineffective assistance.” COA affirmed the trial court.

The amendment to the Sexually Violent Predator statute applied to those previously convicted for failing to complete sex offender treatment, even those convictions not yet final, pardoning these individuals; therefore, the amendment was ineffective because it usurped the gov­ernor’s clemency power granted by Tex. Const. art. IV, § 11(b), in violation of separation of powers, Tex. Const. art. II, § 1. VanDyke v. State, No. 09-14-00137-CR (Tex.App.—Beaumont Feb 10, 2016).

        D plead guilty to violating the terms of his civil commitment, and the trial court sentenced him to 25 years in prison. D filed an appellate brief presenting 13 issues challenging the constitutionality of the Sexually Violent Predator statute. After D filed his brief, the Texas Legislature amended Tex. Health & Safety Code § 841.085 of the SVP statute; D filed a supplemental brief, in which he contended the Legislature decriminalized the conduct for which he was convicted. COA affirmed the trial court.

        “In this case, the 2015 amendment to section 841.085 applies to those previously convicted of violating their civil commitment requirements by failing to complete sex offender treatment, even though those convictions are pending appeal and not yet final. . . . The Legislature has essentially pardoned these individuals by applying the amendment to pending convictions. Thus, we conclude that the Legislature has usurped the Governor’s clemency power by applying amended section 841.085 to pending criminal proceedings. . . . Our holding does not impact the remainder of amended section 841.085. . . . Because the application of amended section 841.085 to pending convictions is unconstitutional, we overrule VanDyke’s supplemental issue.”

        Furthermore, the trial court was entitled to customize its civil commitment order, and its use of “exactingly” did not in­crease D’s risk of prosecution. The commitment order required D to “exactingly participate in and comply with the specific course of treatment provided by the Council and [to] comply with all written requirements of the Council and case manager[.]” Under the version of the statute applicable to D, the trial court could impose a condition requiring D’s “participation in and compliance with a specific course of treatment provided by the office and compliance with all written re­quirements imposed by the case manager or otherwise by the office[.]” According to D, the addition of the word “exactingly” amplified the risk that he would be unfairly charged based on the subjective feelings of employees of the Office of Violent Sex Offender Management. The Texas Supreme Court has held that the SVP statute “gives the trial court leeway to fashion restrictions tailored to the particular SVP facing commitment.”

March 2016 SDR – Voice for the Defense Vol. 45, No. 2

Voice for the Defense Volume 45, No. 2 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

The judge in D’s murder trial did not violate U.S. Const. amend. VI by dismissing a juror who provided equivocal answers when asked if he could impose the death penalty if D was convicted. White v. Wheeler, 136 S. Ct. 456 (2015).

        The Supreme Court held that the Sixth Circuit did not give the required deference to the state court’s ruling under the Antiterrorism and Effective Death Penalty Act of 1996 and failed to ask the critical question: Was the Kentucky Supreme Court’s decision affirming the trial judge’s decision so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement? In this per curiam opinion, the Court said: “The Kentucky Supreme Court was not unreasonable in its application of clearly established federal law when it concluded that the exclusion of Juror 638 did not violate the Sixth Amendment. Given this conclusion, there is no need to consider petitioner’s further contention that, if there were an error by the trial court in excluding the juror, it should be subject to harmless-error analysis. . . . [T]his Court again advises the Court of Appeals that the provisions of AEDPA apply with full force even when reviewing a conviction and sentence imposing the death penalty. . . . The petition for certiorari and respondent’s motion to proceed in forma pauperis are granted. The judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded[.]”

Fifth Circuit

District court did not err in treating illegal-reentry D’s prior Texas conviction for possession of 4 to 200 grams of cocaine with intent to distribute as a crime of violence under USSG § 2L1.2 and an aggravated felony under § 1101(a)(43)(B). United States v. Teran-Salas, 767 F.3d 453 (5th Cir. 2014).

        On the face of the Texas delivery statute, the offense of delivery could theoretically be committed in a way that did not qualify under USSG § 2L1.2 or § 1101(a)(43)(B), namely, by “administering” a controlled substance. However, the Fifth Circuit held that D had not shown a reasonable probability that Texas would prosecute under such a non-qualifying theory; under Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), this failure precluded a finding that D’s prior Texas conviction was non-qualifying. 

        Where death-sentenced Texas D filed for Fed. R. Civ. P. 60(b) relief from a judgment denying federal habeas relief, the motion was properly treated as a successive habeas petition because the claims it made—relating to evidence previously undiscovered because of ineffective assistance of counsel—were fundamentally substantive, not procedural as required under Rule 60(b). In re Coleman, 768 F.3d 367 (5th Cir. 2014).

        D was not entitled to relief on the successive petition because the claim was previously raised and rejected and, in any event, did not meet the standard for a successive petition. For these reasons, D was also not entitled to a stay of execution.

The offense of theft by deception under Texas law is within the generic definition of “theft”; therefore, D’s Texas theft conviction was a “theft offense” and thus an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(G). United States v. Rodriguez-Salazar, 768 F.3d 437 (5th Cir. 2014).

In sentencing D for a hostage-taking conspiracy, 18 U.S.C. § 1203(a), district court did not err in applying a six-level enhancement pursuant to USSG § 2A4.1(b)(1) for a ransom demand. United States v. Fernandez, 770 F.3d 340 (5th Cir. 2014).

        The ransom enhancement applies anytime a defendant demands money from a third party for release of a victim, re­gard­less of whether that money is already owed to the de­fen­dant. Thus, D’s belief that he and his co-conspirators were going to demand repayment of a debt was a sufficient ground to apply the ransom enhancement; it did not have to be foreseeable to D that the original scheme was going to morph into a classic kidnapping of another person with a demand for ransom.

Board of Immigration Appeals properly determined that D was ineligible for cancellation of removal under 8 U.S.C. § 1229b(a) due to his 18 U.S.C. § 554(a) conviction because under the modified categorical approach, § 554(a) was divisible and constituted the aggravated felony of illicit trafficking in firearms under 8 U.S.C. § 1101(a)(43)(C). Franco-Casasola v. Holder, 773 F.3d 33 (5th Cir. 2014) (on reh’g).

        Under Descamps v. United States, 133 S. Ct. 2276 (2013), the statute of immigrant’s prior conviction (18 U.S.C. § 554(a), prohibiting the export of “merchandise, article[s], or object[s] contrary to any law or regulation of the United States”) was a “divisible” statute; the statute sets out a finite, though lengthy, list of every U.S. statute or regulation that prohibits such export. Because the statute was “divisible,” it was permissible under Descamps to use the “modified categorical approach” to narrow the basis for immigrant’s prior conviction and, under that approach, determine that the conviction was for the unlawful purchase of firearms for export and thus an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(C) (including “illicit trafficking in firearms” as an aggravated felony).

Where drug D’s first sentence reduction under 18 U.S.C. § 3582(c)(2) lowered his offense level under USSG § 2D1.1 sufficiently to cause his sentence instead to be calculated under the “career offender” Guidelines (USSG §§ 4B1.1 and 4B1.2), D was not entitled to a sec­ond sentence reduction under § 3582(c)(2), notwithstanding a further reduction in the offense level under § 2D1.1. United States v. Banks, 770 F.3d 346 (5th Cir. 2014).

        D’s new sentence was not imposed under § 2D1.1, but rather §§ 4B1.1 and 4B1.2, so the latest Guideline amendment to § 2D1.1 would not result in a lower Guideline range applicable to D.

Where D raised a meritorious sentencing issue for the first time in her untimely reply brief, the Fifth Circuit exercised its discretion to consider the brief and consider the issue, notwithstanding the usual rule that the Fifth Circuit will not consider issues raised for the first time in a reply brief. United States v. Myers, 772 F.3d 213 (5th Cir. 2014).

        (2) In this false-claims/fraud/identity-theft/tax-fraud case, it was a plain violation of the Ex Post Facto Clause (applicable to the advisory Sentencing Guidelines, as made clear in Peugh v. United States, 133 S. Ct. 2072 (2013)) to sentence D under the 2012 Guidelines in effect on the date of sentencing because the 2007 Guidelines in effect on the date of the commission of the offense were significantly more lenient. Particularly, due to a more stringent definition of who constituted a “victim” of the offense, D would not have received a six-level enhancement for 250 or more “victims”; because this raised D’s Guideline range from 46 to 57 months, up to 87 to 108 months, D’s substantial rights were affected, and the Fifth Circuit exercised its discretion to remand for resentencing.

        (3) The district court did not clearly err in applying to D a two-level “vulnerable victim” enhancement under USSG §3A1.1(b)(1). D knew she had gotten names and identities from a list of persons at a nursing home; D should have known that at least some people in nursing homes suffer from physical and mental disabilities that render them vulnerable.

D, stopped at the El Paso border crossing in a bus bound for Mexico, was properly prosecuted for being “found in” the United States after deportation in violation of 8 U.S.C. § 1326. United States v. Quezada Rojas, 770 F.3d 366 (5th Cir. 2014).

        Although a line of cases holds that an alien is not “found in” the United States if he voluntarily presents himself to immigration authorities when seeking entry into the United States, that rule has not been extended to the case of an alien, like D, seeking to exit the country. Likewise, although some cases hold that an alien has not truly “entered” the United States if he was never free of “official restraint” from the time he crossed the border, the “official restraint” doctrine has been applied only to persons entering the country, not to persons leaving.

Court of Criminal Appeals

It was error to determine D was entitled to have an original plea agreement presented to a second judge af­ter a first judge was recused. Rodriguez v. State, 470 S.W.3d 823 (Tex.Crim.App. 2015).

        D was charged with ten counts of sexual assault of a child and indecency with a child. Based on the advice of his counsel, he declined the State’s plea bargain recommending a 10-year sentence and proceeded to trial. The jury found D guilty and assessed a punishment of 8 life sentences and one 20-year sen­tence. He filed a motion for new trial claiming ineffective as­sis­tance of counsel. The trial judge granted the motion for new trial and motion to require the State to reinstate the plea-bargain offer of 10 years. The State reinstated the plea offer, and D accepted. After admonishing D and accepting his stipulations of guilt, the trial judge rejected the plea agreement and advised D that he could withdraw his guilty plea and go to trial or accept a 25-year sentence. D rejected the 25-year sentence and moved to recuse the judge based on demonstrated prejudice. The judge voluntarily recused herself, and a new judge was assigned. D filed another motion to require the State to re-offer the 10-year deal. The new judge declared the slate was wiped clean by the original judge’s recusal but that she would accept a new agreement if one were reached. The State offered a deal of 25 years and D accepted, pleading guilty to 5 of the counts in exchange for waiver of the other 5 counts. The judge accepted and signed the judgments of conviction.

        D appealed, claiming that he was entitled to a 10-year plea-bargain offer from the State, and that the trial court was required to accept the 10-year plea agreement. To determine whether D was prejudiced by his counsel’s deficient performance, COA considered whether D would have accepted the original plea had he been given competent advice by counsel, whether the State was likely to withdraw the plea bargain, and whether the trial court was likely to accept the plea bargain. Concluding that D was prejudiced, COA determined that the proper remedy was to require the State to reoffer the 10-year plea bargain and to have the agreement presented to a judge who had not recused herself. COA disagreed with D that he was entitled to specific performance of the plea agreement and stated that the new judge had the discretion to accept or reject the agreement.

        CCA reversed COA and reinstated the 25-year sentence. COA erred by finding the second judge was required to order the State to re-offer the 10-year plea a second time. The motion to recuse did not state any basis for prejudice on the part of the first judge, other than she had granted D’s motion for the State to re-offer a 10-year plea deal and then rejected that deal; the first judge’s comment that she was rejecting the deal because she had sat through the evidence was not a basis for finding prej­udice. Upon the voluntary recusal of the judge, however, the case started over from the beginning as if no plea negotiations had occurred.

Ds did not commit the crime of securing the execution of documents by deception by filing a false mechanic’s lien with a county clerk; Ds did not cause “another” to “execute” a document affecting property or pecuniary interests under Tex. Penal Code § 32.46(a)(1). Liverman v. State, 470 S.W.3d 831 (Tex.Crim.App. 2015).

        Ds filed mechanic’s lien affidavits in the county clerk’s office, alleging they performed “labor and/or materials” worth a certain amount on a house. As a result of these filings, the State charged Ds with securing the execution of documents by deception. The indictments alleged that Ds caused the county clerk to sign or execute the affidavits. Ds were convicted, fined, and placed on community supervision. COA reversed, holding that the evidence was legally insufficient because “the conduct of the court clerk filing and recording” the mechanic’s lien af­fi­davit in each case “was not the signing or executing of a doc­u­ment as contemplated by subsection 32.46(a)(1).” In this conclusion, COA held it need look no further than the two sub­sections of § 32.46. COA observed that subsection (a)(1) used the verbs “sign and execute” while subsection (a)(2) used “file and record.” CCA affirmed COA.

        “[COA]’s reliance upon § 32.46(a)(2) is misplaced, and we also conclude, contrary to various arguments advanced by the parties, that the text and history of that subsection is simply inconclusive with respect to the meaning of the term “execute” in § 32.46(a)(1). . . . The remaining question, then, is whether the county clerk’s acceptance of the document at the time of filing constitutes execution of the document by the clerk. We conclude that it does not. The Property Code characterizes the filing in question as the person claiming the lien filing the affidavit ‘with the county clerk.’ This language in the Property Code describes the county clerk as a mere recipient of the filing; the clerk need not have any active involvement in that occurrence. For many courts, electronic filing is now possible, and in those situations the entire transaction of receiving and acknowledging the filing may be handled by machine. We conclude that it is the filing person, not the clerk, who brings the mechanic’s lien affidavit into its final, legally enforceable form.”

CCA found, without a majority reason, that D was not entitled to habeas relief. Ex parte Marascio, 471 S.W.3d 832 (Tex.Crim.App. 2015).

        CCA’s entire opinion stated: “Applicant was convicted of three charges of felony Bail Jumping and Failure to Appear, and he was sentenced to eight years’ imprisonment for each charge, to run concurrently. In these applications for writ of habeas corpus under Article 11.07 of the Code of Criminal Procedure, Applicant contends that these multiple convictions violate the constitutional prohibition against double jeopardy. We filed and set these applications to determine several issues associated with Applicant’s double-jeopardy claims. We now conclude that Applicant is not entitled to relief. Relief is denied.”

CCA dismissed D’s habeas application because the final conviction D challenged was not the source of a later en­hancement; therefore, the later enhancement was not a collateral consequence of that conviction. Ex parte Cooke, 471 S.W.3d 827 (Tex.Crim.App. 2015).

        D was placed on deferred adjudication for family-violence assault in this Tarrant County case, and he was later adjudicated, Tex. Penal Code § 22.01(b)(2) (2000, 2006), (b)(2)(A) (2014). He filed here for habeas relief, claiming that a prior New Mexico conviction was improperly used for enhancement. His sentence in this case had discharged; he claimed, though, that CCA could still reach his complaint because he was suffering a collateral consequence of his conviction—namely, the use of the Tarrant County offense to enhance a third offense, a family-violence assault in Hood County. CCA disagreed.

        “Because applicant has discharged his sentence, the ques­tion here is whether he is suffering any collateral con­se­quence of his conviction. The only collateral consequence that has been alleged is the enhancement of the Hood County offense. . . . When applicant’s first Texas family-violence offense—the Tar­rant County offense—was committed, the assault statute provided that a prior family-violence-assault conviction alleged for enhancement had to be ‘under this section.’ Applicant’s claim is based on the ‘under this section’ language, which the parties and the habeas court agree would not include a conviction in New Mexico. But, as we shall explain, because a prior ‘conviction’ used for enhancement can be a deferred adjudication, the enhancement of the Hood County offense is not a collateral consequence of the Tarrant County conviction for habeas purposes. . . . [T]he conviction that resulted from applicant’s adjudication in the Tarrant County case—which is the conviction that he challenges in this proceeding—was not alleged in the Hood County indictment. The prior ‘conviction’ alleged for enhancement is the deferred adjudication. . . . [A]pplicant had not even been adjudicated when the Hood County indictment was returned. Moreover, applicant’s Tarrant County deferred adjudication would have been available to enhance the Hood County offense even if he had successfully completed his period of deferred adjudication and had never been adjudicated. And if that had occurred, he would clearly have had no remedy for the Tarrant County offense under [Tex. Code Crim. Proc. art.] 11.07 because he would not have a final conviction. In short, contrary to the parties’ contentions, the Tarrant County conviction that applicant challenges in this proceeding was not used to enhance the Hood County offense.”

The evidence was sufficient to show D had the requisite intent when he impersonated an assistant district attorney; he told an actual assistant district attorney that he undertook certain acts as an assistant district attorney upon which he intended the actual assistant district at­torney to rely in deciding whether to grant his “personal favor” in a friend’s case. Cornwell v. State, 471 S.W.3d 458 (Tex.Crim.App. 2015).

        D was convicted of impersonating a Dallas County assistant district attorney and sentenced to two years’ imprisonment. COA affirmed, holding the evidence was sufficient to show D impersonated a public servant with the intent to in­duce another to rely on his pretended official acts. Tex. Pen. Code § 37.11(a)(1). D conceded that he impersonated a public ser­vant but argued that the evidence failed to establish he did so with the requisite specific intent. CCA affirmed.

        “Section 37.11(a)(1) breaks down into two components, a culpable act component (actus reus) and a culpable mental state component (mens rea). It is essentially a nature-of-conduct offense with an accompanying specific intent. The State must prove both the conduct (impersonation) and the specific intent (to induce another to submit or rely). . . . We therefore focus on the second component of Section 37.11(a)(1), the culpable mental state and, specifically, the reliance theory: does the evidence show that Appellant had the specific ‘intent to induce another . . . to rely on his pretended official acts’? Does the phrase ‘pretended official act’ implicitly require a second actus reus beyond impersonation? Must an accused not only hold himself out falsely to be a public servant, but also ‘act as such,’ before it may be said that he intended to induce another to rely on that false impersonation?

        “[W]hile it is not necessary for the State to allege or prove a specific ‘pretended official act’—as an element, as under the former statute—it may be the case that, as a practical matter, the State will be unable to prove the requisite specific intent without evidence of such a ‘pretended official act’ upon which the accused intended to induce another to rely. For reasons similar to those that the court of appeals gave, we conclude that the evidence does establish that Appellant engaged in ‘pretended official acts’ upon which he intended [the actual assistant district attorney] to rely. . . . Appellant did not ask for this favor in his capacity as an ordinary citizen or concerned friend. The jury could readily have found that Appellant intended for [the actual assistant district attorney] to take into account his pretended official capacity as an assistant district attorney—including his pretended official act of telling her about his previous pretended official acts—and to rely on that in deciding whether to grant his ‘personal favor.’ By calling and speaking to an assistant district attorney as a purported member of the ‘same team,’ Appellant obviously hoped to gain her trust and good will. The jury was entitled to infer that Appellant believed his pretended status as an assistant district attorney, bolstered by his false claims of certain actions he had taken in that capacity, would render [the actual assistant district attorney] more predisposed to grant his request.”

CCA upheld dismissing the charge against D for violating Texas’ flag desecration statute; the statute was overbroad and covered expressive conduct protected by the First Amendment. State v. Johnson, 475 S.W.3d 860 (Tex.Crim.App. 2015).

        Based on constitutionality, the trial court dismissed the information charging D with violating Texas’ flag desecration statute, Tex. Penal Code § 42.11, arising out of D’s jumping from a sidewalk for a hanging flag, causing the flag to come off in his hand, and throwing it in the street. COA affirmed, find­ing § 42.11 was unconstitutional on its face because it was overbroad in violation of U.S. Const. amend. I.

        CCA affirmed. “With respect to constitutional provisions other than the First Amendment, a facial challenge to the constitutionality of a statute can succeed only when it is shown that the statute is unconstitutional in all of its applications. And usually, a defendant does not have standing to challenge a statute on the ground that it may be unconstitutionally applied to the conduct of others. But under the First Amendment’s ‘overbreadth’ doctrine, a law may be declared unconstitutional on its face, even if it may have some legitimate application and even if the parties before the court were not engaged in ac­tivity protected by the First Amendment. . . . [T]he Texas flag-destruction statute, by its text and in actual fact, prohibits a substantial amount of activity that is protected by the First Amendment, judged in relation to its legitimate sweep.”

Trial court erred by denying D’s request for an in­struc­tion on sudden passion where D testified he was scream­ing in panic before his accomplice stabbed the victim; D was awakened by the victim sexually assaulting him; the sexual assault, the stabbing, and D’s grabbing of the victim all occurred in a very brief timespan; and the jury could have deduced that the victim’s assault of D and D’s sudden reaction triggered a chain reaction that resulted in the victim’s death. Beltran v. State, 472 S.W.3d 283 (Tex.Crim.App. 2015).

        D was convicted of murder and sentenced to 70 years’ imprisonment. In a single issue on direct appeal, D asserted the trial court erred in denying his request for an instruction on sudden passion during the penalty phase under Tex. Penal Code § 19.02(d). COA affirmed and held that the court did not err in refusing the instruction because there was no evidence that D caused the victim’s death under the immediate influence of sudden passion. CCA reversed COA and remanded for an Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1984) harm analysis.

        “In order to have raised sudden passion, the defense would have had to put on some evidence: (1) that [D] acted under the immediate influence of terror, anger, rage, or resentment; (2) that [D]’s sudden passion was induced by some provocation by McKnight, and that such provocation would commonly produce such passion in a person of ordinary temper; (3) that [D] committed the murder (in this case, as a party) before regaining his capacity for cool reflection; and (4) that there was a causal connection between McKnight’s provocation, [D]’s passion, and the homicide. We conclude that the appellate court failed to consider the evidence raising the issue of sudden passion and erroneously focused on the evidence tending to show that [D] did not act under the immediate influence of sudden passion.” Furthermore, the law of the parties did not apply at the punishment phase of trial, and therefore the conduct of the primary actor was not relevant to whether D was entitled to a sudden passion instruction.

D’s statements asserting a blood draw was conducted without a warrant were not enough to apprise the trial court that it must consider whether there were exigent circumstances to permit the warrantless search; D failed to preserve error with respect to his Fourth Amendment complaint for purposes of Tex. R. App. P. 33.1(a). Douds v. State, 472 S.W.3d 670 (Tex.Crim.App. 2015).

            “Are isolated statements globally asserting that a blood draw was conducted without a warrant enough to apprise the trial court that it must consider whether there were exigent circumstances to permit a warrantless search in a driving while intoxicated case, when the context of the entire record in a motion to suppress refers to a different complaint? We conclude that the answer to this question is ‘no.’ Because this record shows [D] failed to preserve his complaint that the search was conducted in the absence of exigent circumstances or some other valid exception to the warrant requirement, we sustain the State’s first ground in its petition for discretionary review that contends that the court of appeals erred by reversing his conviction for misdemeanor DWI. . . . We accordingly reverse the judgment of the court of appeals and render judgment af­firm­ing appellant’s conviction.” D’s arguments presented a challenge to the admissibility of the blood evidence only on the basis of the officer’s application of the mandatory-blood-draw statute, Tex. Transp. Code § 724.012(b). Nothing about D’s arguments indicated that he was further challenging the constitutionality of the search based on the fact that it had been conducted without a warrant.

1 3 4 5 6 7 11