December 2014 SDR – Voice for the Defense Vol. 43, No. 10

Voice for the Defense Volume 43, No. 10 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

It was permissible for the Board of Immigration Appeals to interpret the Child Status Protection Act as providing a remedy only to “aged-out” non-citizens—that is, those who turned 21 while their visa application was pending—who qualified as principal beneficiaries of a visa petition, rather than only as derivative beneficiaries piggy-backing on a parent. Scialabba v. Cuellar De Osorio, 134 S. Ct. 2191 (2014).

        Respondents, principal beneficiaries who became lawful permanent residents (LPRs), filed petitions for their aged-out children, asserting that the newly filed petitions should receive the same priority date as their original petitions. The district court granted the Government summary judgment, deferring to the Board of Immigration Appeals’ determination that only those petitions that can be seamlessly converted from one family preference category to another without the need for a new sponsor are entitled to conversion under 8 U.S.C.S. § 1153(h)(3). The Ninth Circuit reversed, holding that the provision unambiguously entitled all aged-out derivative beneficiaries to automatic conversion and priority date retention. The Supreme Court reversed and remanded.

        The statutory language requiring that the children’s petitions be automatically converted to the appropriate category with the priority date of the original petitions was ambiguous or at least unclear, and the agency’s interpretation was reasonable in requiring a new sponsor for petitions that could not be automatically converted from one family preference category to another. The principal beneficiaries who were family sponsored could not themselves sponsor petitions for their children until they became LPRs, the children’s petitions could not be automatically converted to another family preference category, and thus there was no original petition date to which the aged-out children’s petitions could relate back.

A gun buyer’s intent to sell to another lawful buyer in the future is a fact “material to the lawfulness of the sale” of the gun. Abramski v. United States, 134 S. Ct. 2259 (2014).

        D was accused of falsely claiming on a gun purchase form that he was the actual transferee/buyer of the handgun, which in fact he purchased for his uncle. D entered a conditional guilty plea for knowingly making false statements “with respect to any fact material to the lawfulness of the sale” of a gun, 18 U.S.C. § 922(a)(6), and for making a false statement “with respect to the information required . . . to be kept” in the gun dealer’s records, § 924(a)(1)(A). The Fourth Circuit and Supreme Court affirmed.

        The Supreme Court granted certiorari in light of a split among circuits over the materiality requirement of § 922(a)(6). D argued that the misrepresentation was not material to the lawfulness of the sale within § 922(a)(6) not only because his uncle was legally eligible to own a gun, but also because straw purchases were not illegal. The Court held that § 922, in regulating gun sales, looked through the straw purchaser to the actual buyer. The form that federal regulations required D to fill out (Form 4473) asked whether he was the “actual transferee/buyer” of the gun, and clearly warned that a straw purchaser (namely, someone buying a gun on behalf of another) was not the actual buyer. D falsely answered that he was the actual buyer. If the statute permitted straw purchases, identification and background check provisions would evaluate mere conduits. The misstatement was material even though the uncle was eligible to own a gun, as the sale could not have lawfully proceeded if D had revealed he was a straw buyer. D also was properly convicted under § 924(a)(1)(A) because his false statement was made on a form that the dealer was required to retain in its records.

A conviction under 18 U.S.C. § 1344(2), which makes it a crime to knowingly execute a scheme to obtain property owned by, or under the custody of, a bank by means of false or fraudulent pretenses, does not require the government to prove that a defendant intended to defraud a financial institution. Loughrin v. United States, 134 S. Ct. 2384 (2014).

        D was charged with bank fraud after he was caught forging stolen checks, using them to buy goods at Target, and returning the goods for cash. D requested to instruct the jury that a § 1344(2) conviction required proof of “intent to defraud a financial institution,” but the court held that such an instruction was unnecessary. The jury convicted D, and the Tenth Cir­cuit and Supreme Court affirmed.

        The prosecution was not required to show that D acted with intent to defraud the bank in order to find D guilty of bank fraud. While one clause of the statute requires the intent to defraud a bank, the second clause does not require it. Instead, this second clause only requires that the defendant intend to obtain any property under the control of a bank. The Court held that requiring these two clauses to be read as having the same intent would render the second one meaningless; the structure of the statute indicated that the two clauses had different requirements. However, because the second clause should not apply to any and all fraud where the defrauder receives a check, the Court stated that the specific language limited its coverage to circumstances where the defendant’s false statement “naturally induces” the bank to part with money in its control, instead of where a bank is only tangentially involved.

Fifth Circuit

District court properly denied Texas death-sentenced D’s motion for relief from judgment under Fed. R. Civ. 60(b)(6) and his motion for a stay of execution; a change in decisional law after entry of judgment does not constitute exceptional circumstances and is not alone grounds for relief from a final judgment. Diaz v. Stephens, 731 F.3d 370 (5th Cir. 2013).

        D asked the district court to reopen his previous federal habeas action and consider the merits of procedurally barred claims in light of Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Treviño v. Thaler, 133 S. Ct. 1911 (2013). Because D did not show exceptional circumstances justifying relief from judgment, the district court did not abuse its discretion in denying D’s Rule 60(b)(6) motion; furthermore, because D’s motion for stay of execution depended on the availability of Rule 60(b)(6) relief in this case, the district court likewise did not abuse its discretion in denying a stay of execution.

Officers had reasonable suspicion that Ds were engaged in drug-trafficking activity based on a specific yet questionable informant’s tip. United States v. Powell, 732 F.3d 361 (5th Cir. 2013).

         (1) District court did not err in denying Ds’ motion to sup­press evidence garnered as the result of a vehicle stop/search; independently of the traffic-violation basis for the stop, police had reasonable suspicion that Ds were engaged in drug traf­ficking based on an informant’s tip. Even though the informant had credibility and reliability problems, the specificity, predictive value, and recentness of his tip more than compensated for these flaws. For the same reasons, the tip provided probable cause justifying the warrantless search of the vehicle; because the police had probable cause, they were permitted to move the car to a safer location (the police station) and remove a piece of the dashboard during the continuation of the search.

        (2) District court did not err in denying one D’s motion to suppress evidence obtained from a cell phone discovered during the vehicle search; by denying that the cell phone was hers, D voluntarily abandoned the phone, and thus lacked standing to make a U.S.C. Fourth Amendment challenge to its search.

        (3) District court did not, by allowing in nontestifying D’s statements at joint trial, violate a testifying D’s Confrontation Clause rights under the doctrine of Bruton v. United States, 391 U.S. 123 (1968), because the statements did not directly implicate the testifying D. However, the prosecution ran afoul of Bruton by directly and repeatedly cross-examining the testifying D with the nontestifying D’s statements. Nevertheless, this plain Bruton error was harmless in light of the substantial independent evidence against the testifying D.

D’s status as a police officer was an improper sentencing factor where there was no evidence that he used his position to facilitate his offense. United States v. Chandler, 732 F.3d 434 (5th Cir. 2013).

        Even on plain-error review, Fifth Circuit found that district court’s 420-month prison sentence—a 127-month upward variance from the Guideline range of 240 to 293 months—was substantively unreasonable for D convicted of engaging in a child-exploitation enterprise (a members-only online bulletin board for sharing child pornography), in violation of 18 U.S.C. § 2252A(g); the record showed that the district court’s primary reason for the upward variance was the fact that D was a police officer at the time of the offense. However, D’s status as a police officer was an improper factor to consider at sentencing where there was no evidence that he used his position to facilitate his offense. Because the district court’s consideration of an im­proper factor affected D’s substantial rights and because the Fifth Circuit found it appropriate to exercise its discretion to cor­rect this error even on plain-error review, the Fifth Circuit remanded for resentencing.

National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012), did not undermine Fifth Circuit precedent rejecting a U.S.C. Commerce Clause challenge to 18 U.S.C. § 922(g)(1), the federal statute proscribing possession of a firearm by a previously convicted felon. United States v. Alcantar, 733 F.3d 143 (5th Cir. 2013).

        Furthermore, the district court did not clearly err in applying to D convicted of being a felon in possession of a firearm a four-level enhancement under USSG § 2K2.1(b)(6)(B) (for use or possession of the firearm in connection with another felony offense). Application Note 14(B)(ii) to § 2K2.1, which is authoritative, states that the enhancement applies “in the case of a drug-trafficking offense in which a firearm is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia”; the district court could plausibly find that to be the case here.

District court did not err in denying Texas death-sentenced Ds a preliminary injunction to restrain state officials from conducting executions with pentobarbitol from compounding pharmacies; Ds failed to show a likelihood on the merits of their claims under the U.S.C. Eighth and Fourteenth Amendments, U.S.C. Supremacy Clause, or access-to-the-courts doctrine. Whitaker v. Livingston, 732 F.3d 465 (5th Cir. 2013).

Where D entered into a sentencing agreement with the government waiving his right to appeal his conviction and sentence in exchange for dismissing part of the government’s 21 U.S.C. § 851 sentencing enhancement (thereby lowering D’s mandatory minimum sentence), D could not, after receiving the benefit of his bargain, appeal his conviction. United States v. Walters, 732 F.3d 489 (5th Cir. 2013).

        Unlike for appeal waivers contained in plea agreements accompanying a guilty plea, there is no requirement that the district court specifically admonish the defendant about an appeal waiver contained in a post-verdict sentencing agreement. Here, the record showed that D’s appeal waiver was knowing and voluntary. Accordingly, the Fifth Circuit dismissed D’s appeal pursuant to the appeal waiver.

In trial for corruption-related offenses, D (a former mayor in Louisiana) was not entitled to an entrapment instruction because he did not carry his burden of showing a lack of predisposition. United States v. Nelson, 732 F.3d 504 (5th Cir. 2013).

         (2) The district court properly admitted, as co-conspirator statements, the statements made by a person involved in the corruption scheme about D’s inclinations towards corrupt activity. A conspiracy for the purpose of the hearsay exclusion of Fed. R. Evid. 801(d)(2)(E) need not be unlawful; the statement may be in furtherance of a lawful joint undertaking. Here, the district court did not abuse its discretion in finding that declarant and D were, at least, engaged in a common lawful scheme.

        (3) The district court properly allowed the government to introduce at trial the stipulated factual basis that D agreed to as part of his later-withdrawn guilty plea. Although Fed. R. Evid. 410 generally prohibits the use of statements made in connection with withdrawn guilty pleas, here D entered into a valid waiver of his rights under that rule.

        (4) Where D’s former attorney testified about the circumstances under which D had agreed to the factual basis for his plea and had waived his rights under Rule 410, her testimony violated the attorney-client privilege. The attorney went beyond permissible limits and testified to matters that went to the heart of her representation of D. Nevertheless, the admission of this impermissible testimony was harmless.

        (5) In assessing the amount of loss attributable to D under USSG § 2C1.1, the district court erred in assessing based on a letter D wrote supporting an EPA grant to the company by whom D was putatively being bribed. The amount of loss could not reasonably be determined; it might therefore be ap­propriate to use the amount of gain to D (i.e., the $10,000 bribe amount for writing the letter, rather than the $4,000,000 amount applied by the district court). The Fifth Circuit also directed the court to reconsider the loss amount attributable to a letter written by D on behalf of the company to private investors. Because the errors in loss valuation were not harmless (even though the district court made a significant downward variance in sentencing D), the Fifth Circuit remanded for resentencing.

Court of Criminal Appeals

CCA granted the State’s motion to permanently abate the appeal because D died. Brown v. State, 439 S.W.3d 929 (Tex.Crim.App. 2014).

        In the early morning of what would have been the last day of the guilt phase of D’s murder trial, D sustained a gunshot wound to the head. The trial judge ruled that D’s absence from trial was voluntary because there was evidence that the injury may have been self-inflicted; the court conducted the rest of the guilt trial and the entire punishment trial in D’s absence. D appealed the trial court’s refusal to hold a formal hearing to determine whether he was competent to stand trial after the gunshot wound. COA held that D should have been granted a competency hearing and remanded for a new trial. CCA granted the State’s petition for review on four grounds; finding that the trial court did not follow relevant procedures in Texas statutes and Supreme Court precedent, CCA remanded to that court in March 2014 for a retrospective competency hearing. In May 2014, the State filed a motion to rehear CCA’s opinion. D died, however, in June 2014, and the State moved to permanently abate the appeal. CCA granted the motion and dismissed the State’s motion for rehearing and the State’s petition for review, and withdrew the March 2014 opinion. COA was ordered to withdraw its opinion and permanently abate the appeal.

Although D provided some new evidence of his innocence in the form a recantation from the complainant, he failed to meet the actual-innocence standard in light of the lack of detail in the complainant’s recantation testimony at the habeas hearing and the jury’s rejection of evidence of the complainant’s pretrial recantation. Ex parte Navarijo, 433 S.W.3d 558 (Tex.Crim.App. 2014).

        “To establish that he is actually innocent of an offense of which he has previously been convicted, an individual seeking post-conviction relief on that basis must demonstrate by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence. Although [habeas] applicant, has provided some new evidence in support of his claim that he is actually innocent of the offense of aggravated sexual assault of a child, we conclude that he has failed to meet this standard because his new exculpatory evidence, which comes in the form of a recantation from the complainant some 13 years after his conviction, does not unquestionably establish his innocence when that evidence is considered in light of other incriminating evidence in the record. Furthermore, although the habeas court in this case determined that the complainant’s recantation testimony was more credible than her trial testimony and recommended granting relief on that basis, we disagree with the habeas court’s assessment that the matter of a recanting witness’ credibility is the sole deciding factor in an actual-innocence case, and we further disagree with its related determination that applicant has unquestionably established his innocence under Ex parte Elizondo, 947 S.W.2d 202, 206, 209 (Tex. Crim. App. 1996). We exercise our authority to reach the contrary conclusion, and, accordingly, deny relief.”

Evidence suppression was unwarranted because the U.S. Immigration and Customs Enforcement special agent who stopped, searched, and detained D had these powers as to felony offenses under Texas law. Guerra v. State, 432 S.W.3d 905 (Tex.Crim.App. 2014).

        A jury convicted D of unlawful use of a criminal instrument with intent to commit aggravated kidnapping or aggravated sexual assault; the jury also found that D used or exhibited a deadly weapon in the offense. D appealed that the trial court erred when it denied his motions to suppress evidence obtained from the stop of his vehicle and subsequent detention. COA overruled that claim and ultimately affirmed the trial court. CCA affirmed.

        Relevant portions of Tex. Code Crim. Proc. art. 2.122 designated special investigators: “The following named criminal investigators of the United States shall not be deemed peace officers, but shall have the powers of arrest, search and seizure as to felony offenses only under the laws of the State of Texas: (3) Special Agents of the United States Immigration and Customs Enforcement[.]” In the context of interrogations, CCA has discussed the language of Article 2.122 and determined its limitations: “While the statute contains the word ‘only’ after the phrase ‘shall have the powers of arrest, search and seizure as to felony offenses,’ the word ‘only’ clearly modifies ‘felony offenses,’ indicating that federal officers do not have the powers of arrest, search, and seizure for misdemeanors. . . . [The agent], as such a federal officer, was not deemed a peace officer, but did ‘have the powers of arrest, search and seizure’ as to felony offenses ‘under the laws of the State of Texas.’ . . . Article 14.03 authorizes peace officers to make arrests without warrant. But as acknowledged by the state, [the agent] was not a Texas peace officer, thus the provisions of Article 14.03 do not apply to his actions, and he was constrained only by the provisions of Article 2.122. Further, [the agent] did not arrest appellant, he merely detained him, which he is authorized to do under Article 2.122.”

        Furthermore, the agent had reasonable suspicion to stop and detain D because facts known to the agent raised a potential for drug activity or criminal acts against children or law enforcement, felony offenses under Texas law, since, inter alia, D was slowly driving in an area with closed businesses and was looking at children in the area.

Trial court did not violate the Confrontation Clause by refusing to allow D to cross-examine two State witnesses concerning the nature of the witnesses’ pending felony charges because D did not demonstrate the relevancy of the proffered evidence to support his allegation that the witnesses were biased. Johnson v. State, 433 S.W.3d 546 (Tex.Crim.App. 2014).

        A jury convicted D of capital murder and sentenced him to life imprisonment without parole. At trial, D sought to cross-examine two State witnesses for bias by informing the jury of the specific felony charges—and punishment ranges—the witnesses faced in Harris County. However, the trial court limited D’s cross-examination to exposing the fact that the witnesses stood accused only of certain unspecified “felonies.” COA rejected D’s claim that the trial court’s ruling violated his U.S. Confrontation Clause right to effectively cross-examine adverse witnesses and affirmed D’s conviction. In this petition, D urged CCA to reverse COA on the rationale that “[m]erely informing the jury that the State’s witnesses had pending felony indictments is insufficient to accomplish what the Sixth Amendment right of confrontation intends[.]” CCA affirmed COA.

        The trial court did not violate the Confrontation Clause by refusing to allow D to cross-examine the witnesses about the punishment ranges of their pending charges because, even though the evidence may have probative value concerning the witnesses’ alleged bias, he failed to show that a reasonable jury might have received a significantly different impression of the witnesses’ credibility had he elicited that evidence.

The evidence was insufficient to support D’s conviction for resisting arrest with a deadly weapon under Tex. Penal Code § 38.03 because he did not use force against a peace officer, as the record indicated that D at all times held the gun at his side or pointed it at himself and never at officers or anyone else. Dobbs v. State, 434 S.W.3d 166 (Tex.Crim.App. 2014).

        The record was devoid of any evidence indicating that D threatened to use any kind of force against the officers but rather he threatened only to shoot himself. “Because we conclude that no rational juror could have found that appellant’s conduct constituted a use of force against a peace officer as required by the resisting-arrest statute, we hold that the evidence is insufficient to sustain appellant’s conviction. We reverse the judgment of the court of appeals and render a judgment of acquittal.”

COA erred by granting appointed counsel’s motion to withdraw and declaring D’s appeal frivolous without first satisfying D’s express request to access the appellate record to meaningfully respond to the Anders brief. Kelly v. State, 436 S.W.3d 313 (Tex.Crim.App. 2014).

        When appointed appellate counsel files an Anders brief, the indigent appellant has a right to review the appellate rec­ord and file a response in the court of appeals, pointing out any reason why he thinks there are non-frivolous issues to be raised on his behalf, notwithstanding his appointed counsel’s evaluation of the record. Here, CCA addressed the question of who should bear the ultimate responsibility for assuring that the indigent appellant is allowed access to the appellate record in order to implement this right.

        CCA held that appointed counsel has a duty, once he has filed a motion to withdraw from representation with accompanying Anders brief, to assist the appellant in filing a motion in COA for access to the appellate record if that is what the appellant wants. Once such a motion is filed, COA has the ultimate responsibility to make sure that, one way or another (CCA shall not dictate how), the appellant is granted access to the record so that he may file his response (if, after reviewing the record, he decides to file one) before it rules on the adequacy of the Anders brief and appointed counsel’s motion to withdraw. “The judgment of the court of appeals is reversed and the cause is remanded to that court. After arranging for the appellant to have a meaningful opportunity to review the appellate record in accordance with the procedure we announce today, that court shall revisit its review of appellate counsel’s Anders brief and motion to withdraw in light of the appellant’s revised response, if any, and any response from the State.”

There was no evidence that D committed any affir­ma­tive “act” in the starvation of her child; however, be­cause the jury necessarily found D guilty of the underlying felony of injury to a child, and the evidence is sufficient to support this, the judgment must be reformed accordingly. Rodriguez v. State, No. PD-1189-13 (Tex.Crim.App. June 18, 2014).

        D was charged with felony murder for the death of her 2-month-old son. She was convicted and sentenced to 30 years in prison. D appealed, initially challenging the validity of the indictment. COA, however, determined that she had not preserved this issue for appellate review. Instead, COA re­quested supplemental briefing on whether it should analyze the sufficiency of the evidence to prove that D committed “an act clearly dangerous to human life in the course of committing the felony of injury to a child.” Concluding that the jury could have reasonably inferred that D committed acts that were clearly dangerous to human life in the process of starving her child, COA held the evidence to be legally sufficient to support the conviction. CCA reversed COA and remanded to the trial court to reform the judgment to reflect a conviction for injury to a child and for a new punishment hearing.

        All the conduct alleged in the indictment (starving and with­holding food, fluid, nutrition, and medical care) fell within the definition of an omission under Tex. Penal Code § 1.07(a)(34), and the felony murder statute, § 19.02(b)(3), required an affirmative act. The evidence showed only her omissions caused the infant’s death; the evidence did support the jury’s necessary finding of the underlying felony of injury to a child, § 22.04(a), requiring resentencing for that conviction.

Tex. Penal Code § 22.021 is not unconstitutional under the Fourteenth Amendment or Texas Constitution for failing to require the State to prove a defendant had a culpable mental state regarding the complainant’s age or failing to recognize a defense based on the belief that the complainant was 17 or older. Fleming v. State, 441 S.W.3d 253 (Tex.Crim.App. 2014).

        D was charged with aggravated sexual assault under Tex. Penal Code § 22.021(a)(1)(B)(iii), (2)(B). He filed a motion to quash the indictment on the basis that the statute is unconstitutional for failing to require the State to prove he had a culpable mental state related to the complainant’s age and for failing to recognize an affirmative defense based on the defendant’s reasonable belief that the complainant was 17 years of age or older. The trial court denied the motion. D pled “no contest” and appealed the denial of his motion. COA overruled D’s fed­eral constitutional claims and affirmed the trial court. CCA remanded for COA to consider D’s state constitutional claims, and COA again affirmed the trial court. D filed a petition for review, which CCA granted to consider whether § 22.021 is un­constitutional under the U.S.C. Fourteenth Amendment Due Process Clause and the Texas Constitution Due Course of Law provision. CCA affirmed COA.

        Because the sexual assault statute serves the legitimate state objective of protecting children, the court will not read a mens rea element into the statute. The fact that the statute does not require the State to prove mens rea as to the victim’s age places the burden on the adult to ascertain the age of a potential partner. Because § 22.021 requires no culpability as to the age of the victim, there is nothing for the defendant’s mistaken belief to negate and his mistake cannot be a defense.

Appellant’s filing of a timely and effective motion for new trial retroactively stayed the commencement of his community supervision until it was overruled by operation of law. Lundgren v. State, 434 S.W.3d 594 (Tex.Crim.App. 2014).

        D was arrested for DWI. He pled guilty, waived his right to appeal, and was put on community supervision. About a week later, he was arrested again. After his second arrest, D filed a motion for new trial and a notice of appeal in his first case. Later, the State filed a motion to revoke D’s community supervision, and the trial court did so. D argued that his filing of a timely notice of appeal and motion for new trial retroactively stayed the commencement of his community supervision; therefore, COA erred when it upheld the trial court’s ruling. CCA reversed COA and remanded.

        Under these facts, D’s timely and effective filing of a new trial motion retroactively stayed the commencement of his community-supervision term such that the trial judge erred in overruling his motion to quash the State’s revocation motion; hence, COA erred when it upheld the trial court’s ruling. D’s notice of appeal did not toll the commencement of his community supervision because his notice of appeal was defective; his notice of appeal was not effective because he had entered into a binding appellate waiver. Furthermore, the valid, express waiver of the right to appeal did not waive D’s ability to file a motion for a new trial.

D’s right to a speedy trial was violated because there was a six-year delay between his formal accusation by indictment and his arrest, the State conceded that it knew his address but completely failed to try to contact him, he timely asserted his right to a speedy trial, and the State failed to vitiate the presumption of prejudice by proving that he acquiesced to this “extraordinary” delay. Gonzales v. State, 435 S.W.3d 801 (Tex.Crim.App. 2014).

        CCA affirmed COA’s holding that D’s right to a speedy trial was violated because the factors laid out by the U.S. Supreme Court to assess speedy-trial claims favored D.

Court of Appeals

D was entitled to a new trial because the trial reporter was unable to transcribe portions of the record due to incomplete notes and inaudible cassettes from the original reporter who had passed away. Mendoza v. State, 439 S.W.3d 564 (Tex.App.—Amarillo 2014).

        “If, through no fault of the appellant, a reporter’s record is lost, destroyed or a significant portion of the recordings is inaudible, an appellant is entitled to a new trial, Tex. R. App. P. 34.6(f)(2), if that portion of the record is necessary to the appeal’s resolution and the lost, destroyed, or inaudible portion cannot be replaced by agreement of the parties. Id. at (f)(3), (4). . . . A new trial is appropriate when the missing portion of the record is necessary to the disposition of the appeal. . . . Here, the trial court determined that the missing portions of the reporter’s record are necessary for resolution of this appeal. Consequently, we reverse the trial court’s judgment and remand the cause for a new trial.”

The trial court violated D’s double jeopardy rights by including a complainant in the jury charge, and entering judgment on the jury’s finding, despite its earlier directed verdict on that complainant’s theft charges. Holcomb v. State, 445 S.W.3d 767 (Tex.App.—Houston [1st Dist] 2014).

        Furthermore, the evidence was insufficient to prove that D committed theft of property with an aggregated value of at least $100,000 under Tex. Penal Code § 31.03(e)(6) because the canceled checks drawn on the complainants’ accounts and made out to D and her husband during the relevant period totaled only $89,125. “A jury convicted [D] of theft of property with an aggregated value of between $100,000 and $200,000, a second-degree felony. See Tex. Penal Code Ann. §§ 31.03(a), (b), (e)(6), 31.09. . . . We reform the judgment to convict [D] of the third-degree felony theft of property with an aggregated value between $20,000 and $100,000, vacate the sentence, and remand to the trial court for a new sentencing hearing on the third-degree felony theft conviction. See Tex. Penal Code Ann. § 31.03(e)(5) (West Supp. 2014).”

The evidence was sufficient to sustain a conviction for manufacture of meth in an amount less than one gram because D admitted that he had recently manufactured meth; also, items consistent with a meth lab were found at his residence. Canida v. State, No. 06-11-00227-CR (Tex.App.—Texarkana Sept 26, 2014).

        D appealed his conviction for the manufacture of methamphetamine in an amount of more than one gram but less than four grams under Tex. Health & Safety Code § 481.112. COA (1) found the evidence legally insufficient to show that D manufactured more than one gram of meth, (2) reversed the trial court, and (3) rendered an acquittal. The State petitioned for CCA to determine whether COA should have reformed the judgment to reflect conviction of a lesser-included offense rather than an acquittal. CCA reversed COA and remanded in light of Thornton v. State, 425 S.W.3d 289 (Tex.Crim.App. 2014). Thornton held that after a court of appeals has found the evidence insufficient to support a conviction for a greater-inclusive offense, in deciding whether to reform the judgment to a lesser offense, that court must answer two questions: (1) in convicting the appellant of the greater offense, must the jury have found every element necessary to convict the appellant for the lesser-included offense; and (2) conducting an evidentiary sufficiency analysis as though the appellant had been convicted of the lesser-included offense at trial, is there sufficient evidence to support a conviction for that offense? If the answer to either question is no, COA is unauthorized to reform the judgment. But if the answers to both are yes, the court is required to avoid the “unjust” result of an outright acquittal by reforming the judgment to a conviction for the lesser offense.

        In light of Thornton, COA (1) modified the trial court’s judgment to reflect a conviction for manufacture of a controlled substance in an amount less than one gram and (2) remanded for trial on punishment. The jury found D guilty of manufacturing meth in an amount of more than one gram but less than four grams. By its finding, the jury necessarily found all the elements of the lesser-included offense of manufacture in an amount less than one gram. Thus, the first prong of Thornton is met. Next was an evidentiary sufficiency analysis as though D had been convicted of manufacture of less than one gram of meth to determine if there was legally sufficient evidence to support a conviction for that; items consistent with the operation of a meth laboratory were found at D’s residence, including plastic tubing, stripped batteries, coffee filters containing a white powder, and a lime-salt container containing the final product of meth.

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