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

Voice for the Defense Volume 40, No. 6 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Fifth Circuit

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Court of Criminal Appeals

Direct Appeal

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

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

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

State’s PDRs

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Writs of Habeas Corpus

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

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

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

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

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

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

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

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

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

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Voice for the Defense Volume 40, No. 5 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

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

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

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

Fifth Circuit

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Court of Criminal Appeals

Appellee’s PDR

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

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

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

State’s PDRs

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Writs of Habeas Corpus

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

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

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

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

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

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

Writ of Mandamus

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

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

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

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

June 14, 2011 SDR

Vol. XXVI, No. 15: Electronic Edition

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

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

SUPREME COURT

Certiorari from the Sixth Circuit

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

Reversed: Per curiam

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

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

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

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

Certiorari from the Supreme Court of Kentucky

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

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

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

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

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

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

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

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

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

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

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

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

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

FIFTH CIRCUIT

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF CRIMINAL APPEALS

State’s PDR from Dallas County

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

Reversed, remanded: Price (8-0)

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

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

State’s PDR from Dallas County

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

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

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

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

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

Appellant’s PDR Granted from Dallas County

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

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

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

COURT OF APPEALS

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

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

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

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

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

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

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

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

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

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

May 17, 2011 SDR

Vol. XXVI, No. 14: Electronic Edition

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

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

FIFTH CIRCUIT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF CRIMINAL APPEALS

Writ of Habeas Corpus & Stay of Execution from Tarrant County

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

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

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

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

Writ of Habeas Corpus from Tarrant County

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

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

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

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

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

COURT OF APPEALS

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

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

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

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

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

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

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

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

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

May 9, 2011 SDR

Vol. XXVI, No. 13: Electronic Edition

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

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

SUPREME COURT

Certiorari from the Fifth Circuit

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

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

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

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

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

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

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

FIFTH CIRCUIT

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

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

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

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

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

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

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

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

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

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

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

COURT OF CRIMINAL APPEALS

Direct Appeal from Cameron County

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

Affirmed: Cochran (8-0)

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

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

Application for Writ of Habeas Corpus from Green County

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

Granted: Cochran (8-0); Keller concurred

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

State’s PDR from Harris County

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

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

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

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

State’s PDR from Lubbock County

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

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

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

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

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

State’s PDR from Hale County

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

Affirmed: Per Curiam (8-0)

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

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

Appellant’s PDR Granted from Travis County

10-1547 Dustin Doan Theft

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

Appellant’s PDR Granted from El Paso County

10-1675 Abraham Cavazos Murder

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

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

State’s PDR Granted from Smith County

11-0230 Charles Nieto Murder

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

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

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

Appellant’s PDR Granted from Dallas County

11-0312 Ronnie Tienda, Jr. Murder

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

State’s PDR Granted from Ector County

11-0435 Joshua Lee Goad Burglary

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

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

COURT OF APPEALS

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

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

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

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

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

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

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

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

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

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

Voice for the Defense Volume 40, No. 4 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Fifth Circuit

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

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

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

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

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

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

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

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

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

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

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

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

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

Court of Criminal Appeals

Appellant’s PDRs

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

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

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

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

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

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

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

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

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

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

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

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

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

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

State’s PDRs

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Writs of Habeas Corpus

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

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

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

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

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

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

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

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

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

Direct Appeal

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

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

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

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

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

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

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

Motion for Leave to File Original Writ of Mandamus

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

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

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

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Voice for the Defense Volume 40, No. 3 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

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

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

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

Fifth Circuit

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Court of Criminal Appeals

Appellant’s PDRs

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

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

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

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

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

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

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

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

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

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

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

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

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

State’s PDRs

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

D’s consent to a breath test was voluntary, despite officer’s failure to comply with the statutory requirement to orally recite warnings before obtaining consent. “The evidence establishes that [D] was provided the written warnings. [D] did not contend at the suppression hearing, nor does she contend on appeal, that she did not understand the written warnings. Furthermore, be­fore [officer] gave any warnings to [D], [D] admitted that she had been drinking. For these reasons, [D] has shown no causal connection between her consent to the breath test and [officer’s] failure to orally inform her of paragraph (4) of section 724.015.”

Trigg v. State, No. 05-09-01531-CR, 2010 WL 3787820 (Tex.App.—Dallas 9/30/10)

Officer’s illegal restraint of D while officer performed a warrants check was cured by officer’s discovery of an outstanding warrant. Discovery of warrant broke the connection between the primary taint and the subsequently discovered evidence; thus, cocaine found in D’s pocket upon arrest was admissible.

Weems v. State, 328 S.W.3d 172 (Tex.App.—Eastland 2010)

Merely being found intoxicated near the scene of a traffic accident (here, four-tenths of a mile away) provided some evidence that D caused the accident; the inference of causation is even stronger when the accident is a one-car collision with an inanimate object. Although D did not own the vehicle, “[D’s mother] testified that [D] typically drove [the vehicle], and that he had it on the night of the accident. . . . The evidence showed that the accident occurred in a ‘very rural’ area. [D] was found about four-tenths of a mile from the accident scene. The police officers and EMS personnel did not see anyone else at the accident scene or in the surrounding area. The evidence was legally and factually sufficient to establish that [D] was . . . operating a motor vehicle when the accident occurred.” Furthermore, prosecutor’s statement during closing to the effect that the only person who can tell the jury the truth was the person who would not cooperate did not constitute an impermissible remark on D’s failure to testify. “Viewed in context, the complained-of statement by the prosecutor relates to [D’s] lack of cooperation with the police rather than his failure to testify.”

Pace v. State, 318 S.W.3d 526 (Tex.App.—Beaumont 2010)

Officer, who received a tip that someone was smoking mari­juana in a certain residence in the presence of a child, did not have PC to enter residence, even though officer observed D retreat into residence. Note that officer interacted with D im­me­diately before D retreated into residence. “[D’s] retreat into the residence was legally insufficient to establish probable cause that the instrumentality of a crime or evidence of a crime would be found in the residence.” Furthermore, D’s mother’s authority to grant officer consent to enter residence (over D’s ob­jection) did not allow mother to consent to officer’s entry into D’s bedroom. D was an adult, his bedroom had a lock on it, and D’s mother normally knocked before entering the room. Nevertheless, the officer was authorized to conduct a cursory check of D’s bedroom for officer safety, even though D was present and objected to officer’s search. Officer was lawfully in the house and D’s actions in attempting to slam the door on officer and then running away towards his bedroom raised RS that D might be retrieving a weapon.

Bollig v. State, No. 05-08-01038-CR, 2010 WL 3835771 (Tex.App.—Dallas 10/4/10)

D argued that the search of his residence and the seizure of a CD containing images of child pornography was unconstitutional because the search was conducted after the police obtained his wife’s consent, he was present when she consented, and he did not consent. At the suppression hearing, D’s wife said: “[A police officer] talked to me and asked me to give him that CD,” “[I] was asked, do you have the CD in your possession,” and “I was asked for [the CD], and I gave it to them.” Yet, a detective testified that D’s wife was “adamant” that police take the CD. COA concludes that no search occurred because officer merely asked D’s wife to give him the CD and she consensually did so.

State v. Ruelas, 327 S.W.3d 321 (Tex.App.—El Paso 2010)

The State contended that D testified to making an improper left turn by directly entering the right lane after the turn. The trial court disregarded D’s admission by concluding that the evidence should be suppressed because that was not the violation the officer testified to. The State argued that it is irrelevant that the officer did not testify specifically that D entered the right lane because an officer’s stated reason for the stop is not con­trolling if there is an objectively reasonable basis for the stop as shown by the evidence. COA concludes that because law enforcement action can only be supported by facts an officer was actually aware of at the time of that action, and the officer did not testify to D’s act of turning directly into the right lane, the officer lacked reasonable suspicion to support the stop.

Smith v. State, No. 01-09-00263-CR, 2010 WL 3928485 (Tex.App.—Houston [1st Dist] 10/7/10)

D’s post-arrest interview was admissible even though he did not receive Miranda warnings because an employee of the county pretrial services agency conducted the interview, which constituted “administrative questioning.” “[D] argues that the interviewer’s questions adduced the primary basis for his conviction—information linking him to the address at which the car involved in the aggravated robbery was found and establishing his relationship with the car’s owner—and, therefore, constituted custodial interrogation requiring Miranda warnings. Under both the federal and state constitutions, questioning attendant to an administrative ‘booking’ procedure does not generally require Miranda warnings.”

Carter v. State, No. 01-09-00349-CR, 2010 WL 3928492 (Tex.App.—Houston [1st Dist] 10/7/10)

Motel room search proper, even though D did not consent because D had no reasonable expectation of privacy as D failed to show that he was an overnight guest in the room and D’s girlfriend consented and she was the only person in whose name the room was rented. “The officers found female clothing and personal articles in the dresser, but no male clothing or personal items anywhere. . . . [D] contends that his expectation of privacy in [girlfriend’s] hotel room was objectively reasonable because he was legitimately in the room, he believed that he had to power to exclude others from the room as demonstrated by his attempt to refuse entrance to the police, he tried to ensure his privacy by closing the curtains and blinds, the room was not open to the public, and the ‘expectation of privacy of a boyfriend and girlfriend behind closed doors’ is consistent with historical notions of privacy. . . . According to [officer], the gap in the curtains was wide enough that one could walk by the window and clearly see in ‘without having to actually look inside.’”

Pham v. State, 324 S.W.3d 869 (Tex.App.—Houston [14th Dist] 2010)

D had no reasonable expectation of privacy as to contents of plastic shopping bag, which was seized by police from co-defendant’s vehicle after D gave bag to co-defendant. “[D],
[h]aving assumed the risk that [co-defendant] would betray the secrecy concerning the bag’s contents, relinquished his expectation of privacy. . . . More importantly, the evidence unequivocally reflects that [D] had no intention of repossessing the bag: by giving the bag to [co-defendant]. . . .”

Ferguson v. State, No. 14-09-00597-CR, 2010 WL 4013737 (Tex.App.—Houston [14th Dist] 10/14/10)

Gun retrieved from D’s car after it was impounded by police was pursuant to D’s consent, despite D’s argument that his consent had been coerced since the car had already been impounded and he was, therefore, left with no choice but to consent. “The written consent to search describes [D’s] vehicle as being located at the police impound lot; however, there is no evidence [D] knew the vehicle had been taken there until he reviewed and signed the written consent form, which was after he had already agreed to give a statement to [officer] and after he had already orally consented to the search of his vehicle.”

April 28, 2011 SDR

Vol. XXVI, No. 12: Electronic Edition

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

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

SUPREME COURT

Certiorari from the Ninth Circuit

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

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

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

The Ninth Circuit reversed the lower court, holding that the denial of habeas relief during the guilt phase was appropriate, but not during the penalty phase. The court noted that Strickland v. Washington requires trial counsel to investigate mitigating evidence at the penalty phase. Here, the court reasoned that Pinholster’s counsel failed to meet his obligations.

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

Conclusion: No, limiting “review to the state-court record is consistent with our precedents.” Justice Stephen Breyer dissented in part: “I do not join Part III, for I would send this case back to the Court of Appeals so that it can apply the legal standards that Part II announces to the complex facts of this case.” Justice Sonia Sotomayor dissented in full: “Some habeas petitioners are unable to develop the factual basis of their claims in state court through no fault of their own.”

Certiorari from the Fourth Circuit

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

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

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

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

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

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

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

FIFTH CIRCUIT

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

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

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

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

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

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

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

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

United States v. Garcia, 625 F.3d 196 (5th Cir. 2010).

District court did not err in applying a 16-level “crime of violence” enhancement under USSG § 2L1.2(b)(1)(A)(ii); defendant’s prior Georgia state conviction for burglary, in violation of Ga. Code Ann. § 16-7-1(a), was one for the enumerated “crime of violence” of “burglary of a dwelling.”

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

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

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

Death-sentenced Texas defendant was not entitled to federal habeas relief on his claim, under Atkins v. Virginia, 536 U.S. 304 (2002), that he was ineligible for the death penalty due to being mentally retarded; defendant did not overcome the presumption of correctness that attached to the state habeas court’s conclusion that he did not meet his burden of establishing mental retardation. Therefore, the state court’s denial of relief was neither an unreasonable application of federal law, now an unreasonable determination of the facts in light of the evidence, as required for federal habeas relief under the AEDPA. Accordingly, the Fifth Circuit affirmed the district court’s denial of federal habeas relief.

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

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

COURT OF CRIMINAL APPEALS

Writ of Habeas Corpus from Dallas County

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

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

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

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

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

PDR Granted from Hale County

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

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

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

COURT OF APPEALS

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

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

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

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

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

April 18, 2011 SDR

 

Vol. XXVI, No. 11: Electronic Edition

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

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

FIFTH CIRCUIT

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

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

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

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

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

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

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

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

United States v. Nava, 624 F.3d 226 (5th Cir. 2010).

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

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

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

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

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

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

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

COURT OF CRIMINAL APPEALS

State’s PDR from Harris County

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

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

Appellant was convicted of possessing a controlled substance (three kilograms of cocaine) with intent to deliver. The cocaine was found behind the driver’s seat of a van in which appellant was a front-seat passenger. During its closing arguments, the defense claimed that the State did not prove beyond a reasonable doubt that appellant “either put [the cocaine] in his car or was aware of it” or that he “aided, assisted and encouraged” any of the others to commit the offense. The State claimed that this defied common sense. PDR was granted to determine whether COA properly decided that the evidence is legally insufficient to support the possession element of this offense. CCA holds that COA misapplied the Jackson v. Virginia standard by asking itself whether it believed that the evidence is sufficient to support appellant’s guilt instead of asking whether a rational trier of fact could have found appellant guilty beyond a reasonable doubt.

State’s PDR from Hale County

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

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

A grand jury indicted appellee on possession with intent to deliver meth, in an amount of four grams or more but less than two hundred grams. Appellee’s trial counsel filed a motion to suppress the contraband seized as a result of a search authorized by a search warrant. The trial court granted the motion to suppress, and COA affirmed.

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

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

Writ of Mandamus from Bend County

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

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

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

Appellant’s PDR Granted from Johnson County

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

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

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

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

State’s PDR Granted from Tarrant County

10-1809 – Soutchay Sanavongxay – Aggravated Robbery

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

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

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

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

Appellant’s PDR Granted from Tarrant County

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

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

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

State’s PDR Granted from Fannin County

11-0323 – Corey Don Louis – Capital Murder

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

2. Was the evidence sufficient?

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

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

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

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

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

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

COURT OF APPEALS

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

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

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

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

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

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

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

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

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

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

April 12, 2011 SDR

Vol. XXVI, No. 10: Electronic Edition

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

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

FIFTH CIRCUIT

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

District court did not err in denying defendant’s habeas petition, filed pursuant to 28 U.S.C. § 2241, challenging the Federal Bureau of Prisons’ (BOP’s) failure to grant him (by means of a nuncprotunc designation) credit against his federal sentence for time spent in Texas state custody for unrelated state convictions; although defendant argued that the BOP’s failure to give effect to the state court’s direction that the state sentence run concurrently with the federal sentence, violated principles of federalism and comity, that argument was foreclosed by Leal v. Tombone, 341 F.3d 427, 428-30 & nn.13 & 19 (5th Cir. 2003). Nor were there separation of powers problems; in the absence of specific direction from the federal sentencing judge, the federal sentence was presumed to be consecutive; the request for a nuncprotunc designation, so as to make the federal sentence effectively concurrent, was thus equivalent to a request for clemency or commutation of sentence, which are traditionally prerogatives of the Executive Branch. Finally, the Fifth Circuit denied relief on defendant’s claim that the frustration of the parties’ understanding about his sentences running concurrently rendered his state plea involuntary; while possibly true, that claim was not cognizable here, because defendant was no longer “in custody” on the state conviction.

United States v. Flores-Gallo, 625 F.3d 819 (5th Cir. 2010).

District court did not err in applying a 16-level “crime of violence” enhancement under USSG § 2L1.2(b)(1)(A)(ii); defendant’s prior Kansas state conviction for aggravated battery, in violation of Kan. Stat. Ann. § 21-3414(a)(1)(B), was one for a qualifying “crime of violence,” because the offense has as an element at least the threatened use of physical force.

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

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

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

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

The Supreme Court’s decision in Lawrence v. Florida, 549 U.S. 327 (2007), did not overrule Roberts v. Cockrell, 319 F.3d 690 (5th Cir. 2003); thus, defendant’s Texas state conviction became “final” for AEDPA purposes when the time for seeking discretionary review from CCA expired (August 11, 2006), not when the Texas appellate court issued its mandate (September 26, 2006). Accordingly, defendant’s federal habeas petition was untimely under the AEDPA. The Fifth Circuit noted, but rejected as unpersuasive, the contrary decision of the Eighth Circuit in Riddle v. Kemna, 523 F.3d 850, 855-56 (8th Cir. 2008) (en banc).

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

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

United States v. Gomez, 623 F.3d 265 (5th Cir. 2010). District court did not err in denying defendant’s motion to suppress because the decision to stop defendant’s vehicle was supported by reasonable suspicion. Even if the tip on which the stop decision was based (that the defendant had a pistol) is considered an “anonymous” tip (which, the Fifth Circuit said, was doubtful under the circumstances), the officers still had reasonable suspicion under the 4-factor test set in United States v. Martinez, 486 F.3d 855 (5th Cir. 2007).

COURT OF CRIMINAL APPEALS

State’s PDR from Bexar County

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

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

Roman Rodriguez was charged with recklessly discharging a firearm. CCA granted the State’s petition to review whether COA correctly held that the information was defective because it failed to apprise defendant of “the circumstances that indicate [Rodriguez] pulled the trigger of a loaded firearm in a reckless manner.” The issue is not “how” did defendant discharge a firearm (by pulling the trigger), but how did he act “recklessly” in discharging the firearm. When it is alleged that the accused acted recklessly, Tex. Code Crim. Proc. art. 21.15 requires additional language in the charging instrument. This language must set out “the act or acts relied upon to constitute recklessness[.]” But, as CCA noted in its unanimous decision in Smith v. State, 309 S.W.3d 10 (Tex.Crim.App. 2010), there is some conceptual difficulty about the specific terms used in Article 21.15.

The language of Article 21.15 assumes that the culpable mental state of recklessness can be “constituted” by some “act.” However, the definition of “act,” added in 1974, made this a “conceptual impossibility.” In Smith, CCA explained that, because of the “conceptual impossibility, “the “act or acts constituting recklessness” under Article 21.15 are really those “circumstances” surrounding the criminal act from which the trier of fact may infer that the accused acted with the required recklessness. Therefore, CCA agrees that the State failed to allege with reasonable certainty the act or circumstance which indicated Rodriguez discharged the firearm in a reckless manner.

State’s PDR from Lubbock County

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

Affirmed: Womack (7-1)

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

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

State’s PDR from El Paso County

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

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

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

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

Appellee’s PDR from Wichita County

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

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

Appellee drove his car off the road into a ditch and then abandoned it by walking away. Appellee filed a pretrial motion to suppress, claiming that his warrantless arrest for DWI, about a quarter of a mile from the accident, was unlawful. COA correctly held that the initial interaction on the sidewalk between appellee and officer, which began with officer asking appellee if he had been involved in a reported accident, was a consensual encounter. Further, CCA concludes that the encounter, which eventually escalated into appellee’s arrest for DWI, was supported by probable cause.

Application for Writ of Habeas Corpus from Jackson County

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

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

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

Appellant’s PDR Granted from Taylor County

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

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

PDRs Granted from Upshur County

11-0119 – Katherine Clinton – Debit Card Abuse

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

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

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

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

COURT OF APPEALS

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

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

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

Overshown v. State, 329 S.W.3d 201 (Tex.App.-Houston [14 Dist] Dec. 2, 2010).

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

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

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

Alford v. State, No. 02-09-00246-CR, 2010 WL 4924991 (Tex.App.-Fort Worth Dec. 2, 2010).

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

Woodruff v. State, No. 06-09-00086-CR, 2010 WL 4909597 (Tex.App.-Texarkana Dec. 3, 2010).

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

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