December 2012 SDR – Voice for the Defense Vol. 41, No. 10

Voice for the Defense Volume 41, No. 10 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Fifth Circuit

The Supreme Court delegated to the states the responsibility of developing appropriate ways to enforce the constitutional restriction against executing mentally retarded defendants. Hearn v. Thaler, 669 F.3d 265 (5th Cir. 2012).

District court did not plainly err in sentencing D to a longer term to encourage rehabilitation; any error was subject to reasonable dispute. United States v. Broussard, 669 F.3d 537 (5th Cir. 2012).

        In sentencing D, who pled guilty to two counts of using interstate commerce to attempt to coerce a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b), district court did commit reversible plain error in imposing a significantly above-Guidelines sentence of 40 years’ imprisonment, based in substantial part on the perceived need to incarcerate D for treatment to address his problems. Under § 3582(a), as construed in Tapia v. United States, 131 S. Ct. 2382 (2011), courts may not impose or lengthen a term of imprisonment to promote a defendant’s rehabilitation. Although Tapia was not decided until after D’s sentencing, the error was plain in light of the law at the time of appeal. Because the need for treatment played such a large part in the district court’s selection of this extraordinary sentence, the error affected D’s substantial rights and warranted correction even on plain-error review. The Fifth Circuit remanded for resentencing.

The district court should not have enhanced D’s sentence because the harm resulting from the substance abuse was not part of the crime of conviction, but this was not plain error. United States v. Greenough, 669 F.3d 567 (5th Cir. 2012).

        USSG § 2D1.1(a)(2)—providing a base offense level of 38 in a drug-trafficking case if the offense of conviction establishes that death or bodily injury resulted from use of the substance—applies only when the resulting death or serious bodily injury is also part of the crime of conviction, i.e., specifically charged in the indictment and either found by the jury or admitted by the defendant in connection with her plea. D did not object on this basis in the court below; on plain-error review, D was not entitled to relief because the evidence was sufficient to support the enhancement. The Fifth Circuit affirmed the sentence.

Because D’s post-arrest, pre-presentment confession was made less than six hours after his arrest, it fell into the safe harbor of 18 U.S.C. § 3501(c) and was admissible, provided it was voluntary and its weight be given by the jury. United States v. Cantu-Ramirez, 669 F.3d 619 (5th Cir. 2012).

        The confession was voluntary under the totality of the circumstances to be considered under 18 U.S.C. § 3501(b), including the nature of the interrogation and the fact that officers did delay presentment for the purpose of interrogation.

        Furthermore, introduction of post-arrest statements of brother/co-defendant in joint trial with D did not violate D’s Confrontation Clause rights. The statements were redacted to eliminate any reference to D, and the redacted statements were read to the jury in a way that did not reveal that there had been any redactions. Also, the jury was instructed the statements were to be considered only against co-defendant, and not against D.

The district court’s explanation of its sentence was adequate because the court entertained lengthy comments from both parties and then elaborated its particularized explanation for a within-Guidelines sentence; no more explanation is required. United States v. Camero-Renobato, 670 F.3d 633 (5th Cir. 2012).

        The Fifth Circuit clarified that in United States v. Mondragon-Santiago, 564 F.3d 357 (5th Cir. 2009) (finding the district court’s explanation for its sentence inadequate), no reasons were given for the sentence beyond a bare recitation of the Guideline calculation.

D’s inculpatory statement on the doorstep of her home was the fruit of the unconstitutional attempted forced entry of D’s trailer and could not supply probable cause for a valid arrest. United States v. Hernandez, 670 F.3d 616 (5th Cir. 2012).

        Having previously established the warrantless attempted forced entry of D’s trailer (resulting in D’s prosecution for harboring an illegal alien), the Fifth Circuit held the district court should also have suppressed the post-arrest, post-Miranda statements of D and her co-defendant, as well as the post-arrest statement of an illegal alien found in the trailer. Without a valid arrest, D’s post-arrest statements were also tainted by the initial constitutional violation. Finally, the Fifth Circuit found that the two other people’s statements were likewise the fruit of the initial constitutional violation and were insufficiently attenuated from that violation; nor were they admissible under the inevitable-discovery doctrine.

Where the Chief Judge of the Fifth Circuit issued an order authorizing only partial payment for expert services in a pending district court case and ordering the experts to keep working on the case, the Fifth Circuit had no appellate jurisdiction or mandamus authority with respect to the Chief Judge’s action. In re Marcum L.L.P., 670 F.3d 636 (5th Cir. 2012).

        As an order issued pursuant to the Chief Judge’s authority under 18 U.S.C. § 3006A(e)(3) of the Criminal Justice Act, it could only be reviewed by a mandamus action filed with the U.S. Supreme Court.

Where government stipulated in plea agreement to a Guideline base offense level of 26 but the Probation Office independently determined D was a career offender subject to a base of 34, there was no breach of the plea agreement. United States v. Loza-Gracia, 670 F.3d 639 (5th Cir. 2012).

        The plea agreement did not purport to bind the Probation Office—nor could it, since the Probation Office is a branch of the federal judiciary. Furthermore, the prosecutor at the sentencing hearing did not voice any support for or advocate for application of the “career offender” enhancement, but simply maintained that the government stood by the plea agreement.

District court reversibly erred in treating illegal-reentry D’s prior Oklahoma conviction for domestic assault and battery as a crime of violence; the offense lacked the requisite “use of force” element. United States v. Miranda-Ortegon, 670 F.3d 661 (5th Cir. 2012).

        D’s prior conviction did not warrant a 16-level enhancement under USSG § 2L12.(b)(1)(A)(ii) because Oklahoma law made clear that the offense could be committed by “only the slightest touching.”

District court did not commit reversible plain error in applying a crime of violence enhancement to illegal-reentry D on the basis of his Florida conviction for sexual activity with a minor; even if the statute of conviction was overbroad in that it covered victims who were not generic “minors,” defense counsel made an evidentiary admission that the victim was only 14 years old. United States v. Chavez-Hernandez, 671 F.3d 494 (5th Cir. 2012).

Especially under the deferential “devoid of evidence” standard applicable to forfeited sufficiency-of-the-evidence claims, the evidence was sufficient to sustain D’s conviction for conspiracy to possess marijuana with intent to distribute. United States v. Delgado, 672 F.3d 320 (5th Cir. 2012)(en banc).

        Contrary to D’s argument, the evidence did not show merely a buyer-seller relationship. Furthermore, contrary to the panel decision in this case, the alleged trial errors—namely, improper prosecutorial closing argument, the giving of a deliberate-ignorance instruction, and the failure to give an instruction under Sears v. United States, 343 F.2d 139 (5th Cir. 1965) (instructing the jury that one cannot conspire with a government agent)—did not, either singly or cumulatively, require a new trial.

In case charging D with illegal reentry after deportation and lying about U.S. citizenship, defense counsel rendered ineffective assistance by failing to adequately research and investigate D’s derivative-citizenship defense, which would have been a defense to the alienage element of both charges. United States v. Juarez, 672 F.3d 381 (5th Cir. 2012).

        Particularly, defense counsel failed to adequately research and investigate whether D derived citizenship via 8 U.S.C. § 1432(a) (1999). Based on the legal authority available when defense counsel advised D on his pleas, a derivative-citizenship defense was plausible. Moreover, D was prejudiced because, under these circumstances, there is a reasonable probability that D would have been dissuaded from pleading guilty and would have elected to go to trial. As a result of counsel’s ineffective assistance, D’s guilty pleas were not knowing and voluntary. The Fifth Circuit reversed the district court’s decision denying collateral relief under 28 U.S.C. § 2255, and remanded.

In accepting D’s plea to possession of a firearm in furtherance of drug trafficking, the court ran afoul of Fed. R. Crim. P. 11(b)(1)(G) & (I) when it told D he was subject to a mandatory minimum of five years and up to life imprisonment (the same range in the plea agreement). United States v. Carreon-Ibarra, 673 F.3d 358 (5th Cir. 2012).

        The indictment charged and the judgment showed that the district court considered D to be convicted of possession of a machinegun, subject to a mandatory minimum penalty of 30 years pursuant to 18 U.S.C. § 924(c)(1)(B)(ii). D preserved his objection for appellate review by objecting to the presentence report’s recitation of the 30-year statutory minimum, especially because it was not clear until entry of the written judg­ment that the court had actually convicted and sentenced D under § 924(c)(1)(B)(ii). The district court’s erroneous penalty advice prevented D from understanding the nature of the charges against him and the direct consequences of his plea. Moreover, D’s substantial rights were affected, notwithstanding the district court’s assurance that it would consider the entire 5-to-life range of which it had erroneously admonished D, since D might reasonably have believed the court’s sentencing would still be constrained or at least influenced by the correct 30-year minimum. The Fifth Circuit vacated D’s guilty plea and remanded to allow D to plead anew.

Court of Criminal Appeals

Trial court’s revocation of D’s community supervision was improper because only the federal government had the authority to regulate the removal of illegal aliens. Gutierrez v. State, No. PD-1658-11 (Tex.Crim.App. Oct 10, 2012).

        COA reversed a trial court’s revocation order related to D’s community supervision. D had pleaded guilty to possession of cocaine greater than 4 and less than 200 grams, a second-degree felony. She was granted community supervision subject to the condition that she file for her appropriate legal status within 90 days or leave the country. D did not object to the condition. Based on her noncompliance, her community supervision was revoked. CCA affirmed COA’s reversal on the basis that the condition violated U.S. Const. art. VI, cl. 2, as only the federal government had the authority to regulate the removal of illegal aliens. The condition also violated an express prohibition of banishment of criminal offenders from the state in Tex. Const. art. I, § 20. While the State argued that D was estopped from arguing the validity of the condition because she failed to object, estoppel by contract could not apply because the condition at issue violated public policy.

The evidence was insufficient to support D’s conviction for murder as a party; the conviction was based on speculation. Gross v. State, No. PD-1688-11 (Tex.Crim.App. Oct 10, 2012).

        The victim was shot and killed by D’s brother-in-law. D was found guilty of murder as a party. COA reversed and rendered an acquittal. CCA affirmed COA. D’s incriminating behavior, presence at the crime, possession of the shotgun used, involvement in the altercation, role as getaway driver, and denial of involvement in the crime when initially questioned by police was all relevant, but there also had to be sufficient evidence of an understanding or scheme to commit a crime. The evidence did not show that D anticipated his brother-in-law would shoot the victim, and nothing showed he encouraged his brother-in-law to kill the victim.

The record does not indicate a reasonable probability that the trial’s result would have been different but for counsel’s misstatement of law. Cox v. State, No. PD-1886-11 (Tex.Crim.App. Oct 24, 2012).

        D was convicted of two counts of aggravated sexual assault and two counts of indecency with a child. COA remanded for new punishment. CCA affirmed the trial court.

        Defense counsel’s misstatement in voir dire about the con­current-sentencing law did not deny his client effective as­sistance. The Strickland v. Washington, 466 U.S. 668 (1984), ineffective assistance test is not satisfied simply because a jury received incorrect information. Strickland’s second prong is not satisfied; there is not a reasonable probability that the trial’s result would have been different but for counsel’s deficiency. Whether D was sentenced concurrently or consecutively was an issue for the judge, not the jury.

The trial court did not abuse its discretion by revoking D’s deferred adjudication; the court considered the requisite statutory factors. Bryant v. State, No. PD-0049-12 (Tex.Crim.App. Oct 24, 2012).

        D was charged with misapplication of trust funds and received 10 years’ deferred-adjudication community supervision, a condition of which was payment of $200,000. The State filed a motion to revoke, alleging D failed to pay the full restitution. The trial court adjudicated D’s guilt, sentenced him to regular community supervision, reduced his restitution payments, and waived court costs and fees. COA reversed. CCA affirmed the trial court.

        The plain language of the former restitution statute permitted revocation for failure to pay restitution as long as the trial court considered certain factors pertaining to a defendant’s financial circumstances; the court is not required to weigh the factors in any particular manner. See former Tex. Code Crim. Proc. art. 42.037(h). The Texas Legislature plainly expressed its desire to grant the trial court increased discretion to revoke on that basis as compared to strict evidentiary requirements for revocations premised on non-payment of court costs, attorney compensation, and community-supervision fees.

Manslaughter was a lesser-included offense of the charged murder; D was not entitled to the lesser-included instruction because there was no evidence directly germane to recklessness. Cavazos v. State, No. PD-1675-10 (Tex.Crim.App. Oct 31, 2012).

        D appealed his murder conviction, arguing that the jury should have been instructed on manslaughter. COA held that manslaughter was not a lesser-included offense of murder and that there was no evidence supporting manslaughter. CCA affirmed.

        D was at a party when another partygoer began mocking him. D pulled out a loaded gun and shot the provoker twice, then fled the scene and later the country. The next day, he told a friend he had been drunk and had not intended to shoot anyone. COA improperly concluded that manslaughter was not a lesser-included offense of murder, Tex. Penal Code § 19.02(b)(2), as alleged in the indictment. Manslaughter differed from murder as charged only in that a less culpable mental state sufficed to establish its commission, meeting the requirements of Tex. Code Crim. Proc. art. 37.09(3) for a lesser-included offense instruction. Nevertheless, D was not entitled to the instruction because there was no evidence that would permit a rational jury to find that if D was guilty, he was guilty only of manslaughter. “Pulling out a gun, pointing it at someone, pulling the trigger twice, fleeing the scene (and the country), and later telling a friend ‘I didn’t mean to shoot anyone’ does not rationally support an inference that Appellant acted recklessly at the moment he fired the shots.”

D’s Washington conviction for statutory rape was not established by DPS as a reportable conviction for sex offender registration. Crabtree v. State, No. PD-0645-11 (Tex.Crim.App. Oct 31, 2012).

        D was convicted of the second-degree felony of failing to comply with sex offender registration. COA affirmed. CCA reversed and acquitted.

        The evidence was insufficient to sustain D’s conviction under Tex. Code Crim. Proc. art. 62.001 because the State failed to prove he had a “reportable conviction or adjudication” and was required to register as a sex offender. The record was silent as to whether the Texas Department of Public Safety previously determined that the Washington offense, rape of a child in the first degree, was substantially similar to a Texas offense statutorily defined as a “reportable conviction or adjudication.”

A reasonable person in D’s position would have believed that at the moment he made the incriminating statements, he was in custody for Fifth Amendment purposes. State v. Ortiz, No. PD-1181-11 (Tex.Crim.App. Oct 31, 2012).

        CCA and COA affirmed the trial court’s ruling that statements made by D regarding possession of cocaine before he was advised of his Miranda rights were inadmissible.

        During a highway traffic stop, D and his wife made conflicting statements to the officer about their trip. Officer called for backup and began asking D about drugs. D consented to a search of his person and car. Backup officers arrived and began to pat down D’s wife. One of the backup officers handcuffed D’s wife, and the other stated in D’s presence that there was something under her skirt. D was then handcuffed. After he was asked what kind of drugs his wife had, D replied that she had cocaine. D was in custody for U.S. Const. amend. V purposes by the time he was placed in handcuffs; because he had not been advised of his Miranda rights, his statements about cocaine were inadmissible. A reasonable person in D’s position would have believed, given all the objective circumstances, that he was in custody. Although handcuffing alone did not necessarily establish custody, D was aware that the officers suspected him of involvement in his wife’s possession of drugs or other contraband.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Rejecting D’s argument that for purposes of the signal-to-change-lanes statute, one need not activate their turn signal in advance of changing the lane so long as the signal is activated while one is “in the process of” making the lane change. Darter v. State, No. 08-11-00022-CR (Tex.App.—El Paso May 30, 2012).

        “[Tex. Transp. Code §] 545.104(b) . . . does not expressly state when an operator must begin signaling an intention to change lanes. The plain language of the statute requires an operator to signal an intention to change lanes. Common sense dictates that in order to signal an intention to change lanes the signal must be given before the movement is initiated.”

Officer had RS to stop D for no driver’s license, even though officer did not know whether D lacked a license at the time, where officer had prior encounters with D in which D had no license, despite the possibility that D could have obtained a license in the meantime. Komoroski v. State, No. 02-11-00280-CR (Tex.App.—Fort Worth May 31, 2012).

        “Adding to this suspicion, [officer] described [D’s] conduct in the car as [D] attempting to avoid [officer] and keep [officer] from recognizing him.”

Trial court’s granting of motion to suppress—which was based largely on trial court giving more weight to its own impression of police car video and less weight to officer’s testimony—reversed by appellate court. State v. Long, No. 03-11-00725-CR (Tex.App.—Austin May 31, 2012).

        “[B]y focusing on what it characterized as a ‘lack of intoxication indicators’ in the video recording, the trial court seems to have overlooked or minimized the significance of evidence of intoxication that [officer] personally observed. . . . Even though these facts and circumstances were not apparent in the video recording (except for [D’s] admission that he had been drinking, which can be heard in the recording), they were nevertheless personally observed by the arresting officer whose testimony the trial court expressly found to be credible, and therefore should have been considered by the trial court in its determination of whether [officer] had probable cause to arrest [D].”

Caller was not “anonymous” for purposes of PC determination, even though officer was unaware of caller’s identity, because police dispatcher’s knowledge of call­er’s identity is deemed imputed to officer. Arguellez v. State, Nos. 13-11-00266-CR, 13-11-00267-CR (Tex.App.—Corpus Christi May 31, 2012, pet. granted).

D’s attempt to use his vehicle to push victim’s van into an intersection and into the path of oncoming traffic deemed sufficient to establish use of the vehicle as a deadly weapon, even though D did not successfully push victim’s van into the intersection. Mills v. State, No. 10-11-00144-CR (Tex.App.—Waco June 6, 2012).

        “[D] could not push the van at the time because [victim] had his foot on the brake. [Victim] believed that had he not been pushing down on the brake, [D] would have pushed [victim’s] van into oncoming traffic. . . . [T]he act of pushing, regardless of the result, was the threat which constituted the assault. [I]t is either the use or intended use of an object which can make it a deadly weapon.”

Frisk for weapons justified, despite officer’s admission that he never feared for his safety. Fields v. State, No. 12-11-00221-CR (Tex.App.—Tyler June 13, 2012).

        “There is no requirement that a police officer feel personally threatened. . . . [Officer’s] testimony that he did not subjectively fear [D] is not dispositive of whether the officer could legally frisk. . . . The ultimate test is an objective one.”

Community caretaking exception established, despite officer’s verbal directive to D to approach officer, use of emergency lights, and positioning of police car in front of D’s car. Solano v. State, 371 S.W.3d 593 (Tex.App.—Amarillo).

        “After passing her, [Deputy] noticed [D] exit from the [car] and raise the hood of the engine compartment. This caused [Dep­uty] to ‘want to make sure that everything was fine, every­thing was running,’ and that ‘they’re going to get to their destination.’ So, he turned his patrol unit around, drove back to where [driver] had stopped, stopped in front of [driver’s] car, unlatched the hood of his engine compartment, and engaged his emergency lights. . . . At about that time, the officer exited his patrol car and directed [D] to come to him. [D] complied, and that apparently constituted the ‘initial interaction’ or detention now condemned by him.”

Point tickets issued by game room’s machines, which had a non-immediate right of replay at a machine of the ticket holder’s choice, were novelties under the “fuzzy animal” exclusion to the definition of a gambling device. $1760.00 in U.S. Currency, 37 “8” Liner Machines v. State, 372 S.W.3d 277 (Tex.App.—Fort Worth June 21, 2012).

        “This is an issue of first impression. . . . At Magic Games Game Room, no cash is used to credit points to another machine; an attendant electronically transfers points from a central location[.]”

State’s failure to produce search warrant affidavit at suppression hearing does not necessarily mandate suppression of the evidence. Williams v. State, Nos. 01-11-00017-CR, 01-11-00018-CR (Tex.App.—Houston [1st Dist] June 21, 2012).

        “Generally, when the State seeks to justify an arrest on the basis of a warrant, it is incumbent on the State to produce the warrant and its supporting affidavit for inspection by the trial court. . . . Here, the State introduced the search warrant into evidence without objection from [D], but the supporting probable-cause affidavit was not attached. However, the warrant itself indicated that the affidavit existed. . . . Furthermore, [the affiant] testified extensively regarding the contents of the affidavit and was subject to cross-examination by [D].”

Prolonged detention during traffic stop reasonable, despite officer’s testimony that “when speaking about consent, once it was denied, that extended things a lot farther and further led us to believe that there was something in there.” Stafford v. State, No. 10-11-00224-CR (Tex.App.—Waco June 27, 2012).

        “[Trooper] asked D where he lived, and [D] first responded ‘Fort Worth’ but later changed his answer. . . . ‘[Trooper] observed [D] act nervously.’ . . . [D] refused to make eye contact. . . . In addition, the troopers learned that the three passengers had been partying all night. . . . [W]hen checking for warrants, the troopers discovered that the two other passengers both had prior drug-related arrests. These circumstances constituted articulable facts from which a reasonable officer could reasonably infer that [D] or one of the other passengers may have been transporting contraband[.]”

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