December 2020 SDR – Voice for the Defense Vol. 49, No. 10

Voice for the Defense Volume 49, No. 10 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

Check out In re Ogg, below. A big win by Mark Thiessen and Carmen Roe. It is the case to use if you need to get a case to trial during the pandemic and the State won’t waive jury. (see also Ex Parte Sheffield, No. 07-20-00216-CR (Tex. App.—Amarillo, Sep. 17, 2020). DPS was dealt a blow in their pet project to deny expunctions to people who have an old conviction for a similar non-expunction-eligible offense in Ex Parte Ferris. And cops are hiding in bushes on horses watching people do unspeakable things.

TCDLA thanks the Court of Criminal Appeals for graciously administering a grant which underwrites the majority of the costs of our Significant Decisions Report. We appreciate the Court’s continued support of our efforts to keep lawyers informed of significant appellate court decisions from Texas, the United States Court of Appeals for the Fifth Circuit, and the Supreme Court of the United States. However, the decision as to which cases are reported lies exclusively with our Significant Decisions editor. Likewise, any and all editorial comments are a reflection of the editor’s view of the case, and his alone.

Please do not rely solely on the summaries set forth below. The reader is advised to read the full text of each opinion in addition to the brief synopses provided.

This publication is intended as a resource for the membership and I welcome feedback, comments, or suggestions: (972) 369-0577.

United States Supreme Court

The United States Supreme Court did not hand down any published opinions since the last Significant Decisions Report.

Fifth Circuit

Anaya v. Lumpkin, 976 F.3d 545 (5th Cir. 2020)

Issue. Did counsel render ineffective assistance by failing to advise his client that, in asserting self-defense, the jury could consider failure to retreat because defendant was a convicted felon in possession of a firearm at the time he shot and killed the victim? Did the Court of Criminal Appeals unreasonably apply the federal standard for prejudice?

Facts. Defendant was charged with murder and aggravated assault. He rejected a plea bargain and argued self-defense at trial. His counsel failed to inform him that due to his previous felony conviction his possession of a firearm during the offense meant he was committing a felony and that the jury could accordingly reject his self-defense claim by a finding that he failed to retreat. After being sentenced to 99 years, defendant argued that he would have entered a plea bargain had he been accurately informed of the law.

Holding. Yes. Counsel’s performance was deficient under the Strickland v. Washington standard. 466 U.S. 668 (1984). The defendant “could not fully understand the risks of rejecting the State’s plea offer because he didn’t know that his status as a felon in possession of a weapon would move the goalpost at trial.” No. In a federal habeas writ challenging a federal issue previously considered by a state court, the state court is afforded great deference. The standard for prejudice here requires evidence: (1) that the defendant would have accepted the plea offer, (2) it would have been entered and accepted by the trial court prior to the state withdrawing, and (3) the end result would have been less incarceration. Here the evidentiary standard for satisfying the second prong is sufficiently murky that “fairminded jurists could disagree” about the nature and quality of evidence that a habeas litigant must show.

United States v. Ochoa, 977 F.3d 354 (5th Cir. 2020)

Issue. Can a defendant demand his federal sentence run concurrently with a state sentence without establishing both are premised on the same relevant conduct?

Facts. Defendant was caught cashing checks that he stole from the mail. He pleaded guilty to one count of stolen mail. Defendant’s Pre-Sentence Report (“PSR”) failed to reflect pending state charges out of multiple counties. Defendant objected claiming that the pending charges were based on relevant conduct to his federal charge and that they must be identified so that his time would run concurrent pursuant to United States Sentencing Guideline (USSG) § 5G1.3(c). The government indicated it did not object to concurrent sentencing but would defer to the US Probation Office determination on the matter. US Probation did little to clear things up. At sentencing the defendant asked for concurrent sentencing and the trial court indicated that it would have to be up to the counties where the state cases are pending. The trial court’s failure to specifically order concurrent sentencing resulted in potential consecutive sentencing.

Holding. No. While USSG § 5G1.3(c) requires federal sentences to run concurrently to anticipated state sentences that are based on the same relevant conduct, it is incumbent on the defendant to show the offenses involve the same relevant conduct. Here the defendant did not. 

Comment. The court does note that concurrent sentencing is not a foregone conclusion in this case – a Texas judge may order consecutive sentencing when a defendant is convicted of multiple sentences under Texas Code of Criminal Procedure article 42.08(a).

Texas Court of Criminal Appeals

Ex parte Chanthakoummane, WR-78, 107-2 (Tex. Crim. App. 2020)

Issue. Has the science pertaining to forensic hypnosis sufficiently changed over time that it now warrants habeas relief because new discrediting scientific evidence was previously unavailable at trial? Has the science pertaining to bitemark comparison sufficiently changed over time that it now warrants habeas relief because new discrediting scientific evidence was previously unavailable at trial? Does the combination of discredited hypnosis evidence and erroneous bitemark evidence warrant habeas relief on the basis of false evidence?  

Facts. Applicant was convicted and is now pending execution for a capital murder committed in 2007. Evidence presented at trial included an eyewitness identification following a hypnosis session with a Texas Ranger and “scientific” comparisons of bitemark evidence. Applicant presented evidence of new skepticism relating to forensic hypnosis and testimony showing that the scientific community has now disavowed individualized bitemark pattern matching. The State presented evidence showing that Applicant’s criticisms of forensic hypnosis were not new and have existed since the 1980s, that, that the pre-hypnosis and post-hypnosis accounts remained consistent, and that it was ultimately DNA evidence which overwhelmingly proved the State’s case.

Holding. No. The evidence indicated that the same myths and risks associated with using hypnosis for memory recall have been well known in the scientific field since the 1980s. Maybe. Bitemark evidence is now discredited scientifically, but here the bitemark evidence only played a minimal role in conviction.

Dissent (Newell, J.) (joined by Richardson, J. and Walker, J.) Applicant’s bitemark claims merit further consideration. Although the State’s expert indicates that the risks associated with forensic hypnosis have been known for some time, the risks associated with eyewitness identification have become more apparent. Eyewitness misidentification is the leading cause of wrongful convictions.

Gonzalez v. State, No. PD-0572-19 (Tex. Crim. App. 2020)

Issue. Is a defendant egregiously harmed by inclusion in the jury charge of a statutory culpable mental state not alleged in an indictment for aggravated assault on a public servant?

Facts. The indictment charged the defendant with intentionally or knowingly causing bodily injury on a public servant. It omitted recklessness as a possible culpable mental state. Despite this omission, the trial court instructed the jury on reckless conduct as though it had been included in the indictment. 

Holding. No. This amounts to an error in formatting the jury charge which did not egregiously harm the defendant. It is error to include an uncharged reckless culpable mental state in the jury instruction section for the indicted offense. Reed v. State, 117 S.W.3d 260 (Tex. Crim. App. 2003). However, it remains appropriate to submit an uncharged reckless culpable mental state as a separate lesser-included-offense instruction. Hicks v. State, 372 S.W.3d 649 (Tex. Crim. App. 2012)(reckless aggravated assault is lesser included of knowing/intentional aggravated assault despite same punishment). Recklessness was supported by the record and the conduct of parties showed they anticipated the jury’s consideration of recklessness.

Romano v. State, No. PD-1289-19 (Tex. Crim. App. 2020)

Issue. Is the element of recklessness to another’s presence sufficiently established in an indecent exposure case when a person masturbates in a Houston parking lot in broad daylight but when that parking lot is empty, there appears to be nobody around, and after taking some measures to conceal his activity.

Facts. Officers on horseback concealed themselves partially behind trees and bushes to look for suspicious activity. One officer witnessed defendant park his vehicle in an empty parking lot, open his passenger door, walk to the back of his vehicle, pull his shorts down, and stroke his penis with his hand. The officers emerged on their stallions and confronted appellant who said he was urinating. No other person witnessed defendant’s conduct. The court of appeals found this evidence insufficient to establish that defendant was “reckless about whether another is present who will be offended or alarmed by his act” because he took measures to conceal his activity and to do it in a secluded area.

Holding. Defendant’s conduct was risky. He masturbated in a public park in Houston. The parking lot was “open and visible to passing road traffic, bicyclists, pedestrians, anyone using the public restroom facilities or picnic tables immediately nearby.” The court of appeals analogized defendant’s conduct to the non-reckless conduct of performing a sexual act after driving deep into the woods. Hines v. State, 906 S.W.2d 518 (Tex. Crim. App. 1995). But, it is more appropriately analogized to the reckless conduct of masturbating in a dressing-room where a three-or-four inch gap in the curtain. McGee v. State, 804 S.W.2d 546 (Tex. App.—Houston [14th Dist.] 1991). There is no ordinary standard of care for masturbating in a public park. 

Comment.  I don’t know what to do with this knowledge.

1st District Houston

State of Texas v. Zena Collins Stephens, No. 01-19-00209-CR (Tex. App.—Houston [1st Dist.] Oct. 6, 2020)

Issue. Does the authority of the Attorney General to prosecute “election laws” extend to prosecution of laws outside of the Election Code? Does the statute which grants the Attorney General authority to prosecute election laws violate the Texas Constitution’s Separation of Powers?

Facts. The original opinion in this case was issued in July—the First Court of Appeals reversed the trial court’s motion to quash the indictment with dissenting opinion by Justice Goodman. This month the First Court of Appeals rejected a request for en banc rehearing triggering another dissenting opinion by Justice Goodman. The original opinion involved prosecution of Jefferson County Sheriff Zena Stephens by the Texas Attorney General. The attorney general alleges that the sheriff tampered with a governmental record and to accepted a cash contribution in excess of $100. The sheriff purportedly accepted a $1,000 cash donation and a $5,000 cash donation, then filed a campaign finance report indicating a $5,000 cash contribution in the section of the standard report designated for political contributions of $50 or less. Stephens filed a motion to quash the Penal Code prosecution (tampering with government record) challenging the attorney general’s authority to prosecute non-election code violations under the statute. The sheriff also challenged the constitutionality of the attorney general’s authority under Texas Constitution’s separation of powers—he belonging to the executive branch and the authority to prosecute to the judicial.

Holding. No—the phrase “election laws” doesn’t mean the laws in the Election Code. It means anything that references elections in any way. “Election records” are specifically mentioned by the tampering statute. This makes tampering with a governmental record an election law. No—the Texas Constitution provides the attorney general with “other authorities prescribed by law.” The fact that the offices of district and county attorneys—offices under the judicial branch—are given the authority to “prosecute the pleas of the state in criminal cases” is immaterial.

Dissent (Goodman, J.) The phrase “perform other duties prescribed by law” cited by the majority is actually a sentence containing a list of attorney general powers “[h]e shall . . . seek judicial forfeiture of [corporate charters] . . . give legal advice in writing . . . perform such other duties as may be required by law..” The cannon of statutory construction “ejusdem generis” requires courts to interpret general words in a list to be of the same kind, class, or nature. The majority instead interprets “perform such other duties” clause in isolation. The founders of the 1876 Texas Constitution deliberately separated judicial/prosecutorial authority from the executive branch in response to “despotic control wielded by the Reconstruction governor.” Justice Goodman again dissents to the rejection of en banc review.

Comment. A Scalia-esque dissent from a Democratic justice. Justice Goodman writes an opinion that may gain traction. Sheriff Stephens has moved for an extension of time to file a petition for discretionary review. 

Lynch v. State, No. 01-17-00668-CR (Tex. App.—Houston [1st Dist.] Oct. 13, 2020)

Issue. Under Texas Rule of Evidence 404(b)(permissible uses of prior crimes and bad acts) may the state introduce mere pen packets as probative of defendant’s criminal intent without supporting testimony or context?

Facts. Defendant was charged with possession with intent to deliver 4-200g of cocaine. At trial, an officer testified to the execution of a search warrant at the defendant’s home where officers discovered 7g of cocaine, baggies, and a knife. The officer testified that he encountered four occupants inside the house, including the defendant and his girlfriend. The girlfriend told officers that the cocaine belonged to her. Officers informed girlfriend that claiming the drugs would not prevent charges against the defendant, so she withdrew her confession. At trial, the girlfriend testified that the cocaine was hers, the defendant would not have approved of her cocaine use, and that officers intimidated her into withdrawing her previous confession. The trial court allowed the State to introduce two prior convictions of possession with intent to deliver to rebut defense testimony which showed a lack of criminal intent. Defendant raised several objections, but importantly: a 403 objection that the probative value was significantly outweighed by unfair prejudice.

Holding. No. While 404(b) permits the use of prior convictions to prove criminal intent, there must be some evidence showing similar circumstances between the prior and the instant offense. Mere evidence that the offenses are the “same type of crime” is not enough. Ford v. State, 484 S.W.2d 727, 730 (Tex. Crim. App. 1972). These pen packets merely showed that the defendant intended to deliver cocaine in the instant case because he was a person who committed the crime before. This offers not only low probative value, it is also impermissible as probative evidence under Texas Rule of Evidence 404(b). Accordingly, the unfair prejudice—that the jury will “draw an impermissible character conformity inference” outweighs. See Gigilioblanco v. State, 210 S.W.3d 637 (403 analysis requires consideration of factors: (1) tendency to suggest decision on improper basis, (2) tendency to confuse or distract, (3) tendency to be given undue weight, and (4) potential for undue delay in presentation).

Comment. Appellate lawyer note: this case also had a citation to the United States Supreme Court on harm analysis which I haven’t seen before. It contained language which I will likely cite to in the future. “The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error.” Kotteakos v. United States, 328 U.S. 750, 765 (1946). 74 years late to the ballgame, but better late than never.

Enns v. State, No. 01-19-00234-CR (Tex. App.—Houston [1st Dist.] Oct. 15, 2020)

Issues. Is an accusation by an unnamed informant alleging drug distribution occurring at a specific location sufficiently corroborated by observations of men departing the location in a vehicle and driving around for no apparent reason on multiple occasions, then ultimately loading packages into the trunk and leaving? Is pulling onto the shoulder when an officer approaches quickly from the rear a violation of the Transportation Code which permits driving on the shoulder to allow a faster vehicle to pass? Is a defendant’s testimony that another person pulled out a gun and demanded he commit a crime sufficient to invoke a necessity instruction?

Facts. A confidential informant provided information about an anticipated large drug shipment. The informant indicated that the shipment would stop at distribution point—a home in Waller County—and would depart for Miami and Chicago. Law enforcement conducted ground and helicopter surveillance. Helicopter officers described the premises, the behavior of two men repeatedly entering and exiting a shed, and several “heat runs” (suspects driving around to see if they are being followed) in a white Crown Victoria with dark tints. When the ground surveillance officer learned the suspects loaded the vehicle with packages and left, he relayed information to a standby officer. The standby officer conducted a traffic stop based on the previous surveillance and because the vehicle crossed the “fog line” without apparent cause. During the stop, the standby officer located 2.4 kilograms of methamphetamine in a secret trunk compartment. The defendant challenged the reasonable suspicion for the traffic stop and argued against the purported traffic infraction and sufficiency of the confidential informant tip. He also testified at trial that the other individual in the vehicle pulled out a gun and threatened to kill him if he did not help deliver the drugs.

Holding. Yes. The conduct of the defendant on the suspected property sufficiently corroborated the informant’s tip. It is not necessary to establish informant reliability when the behavior observed is corroborative of the informant tip. Yes. Although there was an indication that defendant might have been pulling onto the shoulder to allow the officer to pass, there were some indications that the officer was not trying to pass (no blinker, not coming particularly close to defendant’s vehicle). Officers don’t have to prove the traffic violation, merely show reasonable suspicion that one occurred. No. Necessity is a confession and avoidance defense. As such, the defendant must admit every element of the offense, and then offer some evidence that he committed the offense to avoid a greater harm. Here defendant admitted all of the alleged conduct, but stated it was not his intention to deliver the methamphetamine. This is an insufficient confession to raise a confession and avoidance defense.

Concurrence (Goodman, J.) While the corroborated informant information is sufficient reasonable suspicion to detain, the purported traffic infraction was not. It was incumbent on the State to show that pulling onto the shoulder was not done for a permissible purpose, and the majority speculates without evidence.

Comment. This opinion on confession and avoidance moves in the opposite direction of a trend by the Court of Criminal Appeals to either eliminate the confession and avoidance doctrine or at least construe evidence liberally in satisfaction. See Ebicam v. State, No. PD-1199-18 at *2 (Tex. Crim. App. 2020). The First Court’s opinion seems to be in near direct contradiction with Juarez v. State, where the Court of Criminal Appeals indicates that evidence establishing the confession and avoidance can come from any source. In Juaraz despite the defendant denying that he acted intentionally, he admitted conduct from which a juror conclude he acted intentionally. 308 S.W.3d 398 (Tex. Crim. App. 2010).

2nd District Fort Worth

The Second District Court of Appeals in Fort Worth did not hand down any significant or published opinions since the last Significant Decisions Report.

3rd District Austin

The Third District Court of Appeals in Austin did not hand down any significant or published opinions since the last Significant Decisions Report.

4th District San Antonio

The Fourth District Court of Appeals in San Antonio did not hand down any significant or published opinions since the last Significant Decisions Report.

5th District Dallas

Ex Parte Ferris, No. 05-19-00835 (Tex. App. Dallas, Oct. 2, 2020)(en banc)

Issue. A person otherwise eligible for expunction shall be denied when the otherwise eligible offense arose out of the “same criminal episode” as another ineligible offense (i.e. all cases in same criminal episode must be expunction-eligible). Does the definition of “same criminal episode” and its inclusion of the phrase “the repeated commission of the same or similar offenses” require denial of an expunction when a person gets two DWIs 3 years apart and is acquitted of one of them but not the other?

Facts. Petitioner was convicted of DWI in 2015 and served 20 days in jail. Subsequently in 2018 Petitioner was arrested for DWI and was acquitted of that charge in 2019. Petitioner filed a petition for expunction upon his 2018 acquittal. The district attorney agreed to eligibility and the trial court entered an agreed order of expunction. After the order of expunction was signed the Texas Department of Public Safety filed a motion for new trial arguing that the 2018 arrest is ineligible because it was part of the same criminal episode as the 2014 DWI arrest. The trial court rejected this argument:

All right. You’re going to have to help me out here, Ms. Sicola. I’ve worked in the criminal justice system for 35 years as a prosecutor and as a judge. I’m board certified in criminal law, just so you know who you’re talking to. I have never encountered this situation before. Okay? I’ve had, in my career as a prosecutor, guys who drove up and down the highway robbing people on both sides of the highway. Some on the same day. Some, like, the day after. I’ve prosecuted more sex offenders for multiple offenses against the same victim as I can count. I’ve presided over those cases. I’ve never seen a case where, after the first case is disposed of via a plea and the second crime occurs after the first case is disposed of, that that is described or included within the phrase “criminal episode.”

DPS appealed. The decision was affirmed by a panel of the Fifth Court of Appeals. DPS requested the instant en banc review.

Holding. No. Two DWIs occurring years apart are not part of the “same criminal episode” as defined by Texas Penal Code § 3.01. A contrary interpretation “removes analysis of the statute from a ‘cohesive, contextual whole.’” Chapter 3 addresses multiple prosecutions: when offenses may be consolidated, when they may be severed, guidelines for concurrent and consecutive sentencing.  The 2014 DWI arrest has been adjudicated, its sentenced severed, the limitations period expired. The 2014 arrest would be ineligible for “same criminal episode” treatment under any provision of Chapter 3—the two offenses share no common facts, are impossible to prosecute under joinder, cannot share concurrent sentencing. The First District Court of Appeals contrary conclusion under similar facts is wrong.

Dissent (Evans, J.). Section 3.01’s definition of same criminal episode, in particular “the repeated commission of the same or similar offenses” should be read as stated without reference to the statutory context. The concept of same criminal episode is unconstrained by the timing of things. An acquitted person is not necessarily innocent and the legislature apparently deemed them not deserving if they have been previously convicted. Now citizens of six Texas counties will get expunctions that those in 248 others do not receive.

Comment. Historically, in the context of expunctions, courts have favored the bureaucratic concerns of DPS over the rights (or privileges) granted by Article 55 of the Code of Criminal Procedure. This strong rejection of the bureaucratic interpretation bucks this trend 12-1. Nearly every case on expunction law pays homage to a notion that the expunction statute is designed to protect wrongfully accused people. Is it, though? Expunctions are available to people who plead guilty to Class C offenses and receive deferred adjudication, who admit guilt and complete a veterans treatment program, who admit guilt and complete a mental health court program, who admit guilt and complete a pretrial diversion program.

Keaton v. State, No. 05-19-01369 (Tex. App.—Dallas, Oct. 9, 2020)

Issue. When a defendant makes an unconditional threat in the context of a series of conditional threats, and ultimately does commit an assault against a peace officer is evidence sufficient to support a conviction for retaliation by threat (against a peace officer)

Facts. Defendant was arrested for public intoxication. The arrest turned physical—the defendant was taken to the ground. During this, the defendant lobbed verbal insults and challenged the arresting officer to a fight making comments such as “I’d fucking throw you off me if you weren’t a cop” and “[t]ake that badge off, and then let’s fucking fight.” The conditional language escalated to unconditional with the statement “I’ll beat your fucking teeth in.” Then the defendant then kicked the officer in the wrist.

Holding. Yes. Although there were several conditional threats indicating that the defendant wanted to fight the officer only if the officer stepped outside of his role as a peace officer, the situation escalated, the defendant changed his threats from conditional to unconditional and ultimately did commit an assault.

Harrell v. State, No. 05-19-00760 (Tex. App.—Dallas, Oct. 12, 2020)

Issue. Does the admission of autopsy findings and report through a surrogate medical examiner who did not perform the autopsy violate of the Confrontation Clause?

Facts. Defendant was convicted of murder with considerable supporting evidence, including numerous stories provided by the defendant ranging from tangential involvement in the murder to mere presence during the murder and most involving him concealing the body after the murder. The medical examiner who performed the autopsy was unavailable. A medical examiner who did not perform the autopsy testified at trial that the victim suffered two gunshot wounds and multiple skull fractures from blunt-force trauma and that the death was a homicide.

Holding. Yes, but not reversible here. While autopsy findings are testimonial and their admission through a surrogate medical examiner typically violates the Confrontation Clause, when a medical examiner conducts an independent review of another’s findings and renders independent conclusions, there is no Confrontation Clause violation. The admission of the autopsy report was a violation of the Confrontation Clause but was harmless considering the weight of evidence proving the same conclusion.

Comment. This thing was over when the defendant was found driving the victim’s truck, loaded with the victim’s belongings, in possession of the victim’s ID, the victim’s insurance card, the victim’s social security card, the victim’s credit and debit cards, and the victim’s cell phone, and the murder weapon. He also gave four different stories about his involvement in the victim’s death—most of them ending with covering the body with a shower curtain and concealing it. Under different facts the Confrontation Clause issue raised here could have resulted in a reversal as could have the lesser Brady issue raised (resolved against the defendant for similar reasons as the Confrontation Clause argument).

Consuelo v. State, No. 05-19-01385-CR (Tex. App.—Dallas, Oct. 27, 2020)

Issue. Under HIPAA, is an expectation of privacy violated when medical personnel disclose blood alcohol content to law enforcement so they may obtain a warrant or grand jury subpoena?

Facts. Defendant was involved in a motor vehicle accident, the people in the car he hit were injured and defendant was rendered unconscious. Defendant was taken to the hospital and through receiving medical care, his blood was drawn. Hospital personnel disclosed to officers that an analysis of that blood revealed lots of drugs. Law enforcement obtained a warrant for defendant’s blood and used this revelation by hospital personnel as the only evidence of intoxication. The State later acquired defendant’s medical records via grand jury subpoena. Defendant filed a motion to suppress the blood testing results arguing that the hospital personnel violated HIPAA and that the grand jury subpoena was tainted by the wrongful HIPAA disclosure.

Holding. No. HIPAA specifically permits a disclosure to alert law enforcement to evidence of the commission and nature of a crime, and specifically permits disclosure via grand jury subpoena.

Comment. 2020 will be remembered by all as the year of hospital blood evidence (kidding). Last month we looked Crider v. State discussing when the law must authorize both the acquisition of blood from the hospital and the subsequent testing. 607 S.W.3d 305 (Tex. Crim. App. 2020). When the blood is in the possession of the hospital there are two discrete expectations of privacy vis-à-vis the government: that the government not take the blood from the hospital absent a warrant, and that the government not test that blood absent a warrant. But when hospital personnel learn about the blood alcohol content and choose to disclose that information voluntarily or via grand jury subpoena, such disclosure is authorized by HIPAA and therefore no reasonable person receiving medical treatment would expect confidentiality. In these complicated scenarios, I try to analogize searches and expectations of privacy to things that happen in a home – there is no expectation that a house guest keep the drugs they discovered in your home private, but there is an expectation that the police not come in un-invited without a warrant and discover it for themselves.

6th District Texarkana

Johnson v. State, No. 06-19-00222-CR (Tex. Crim. App.—Texarkana, Oct. 8, 2020)(not designated for publication)

Issue. In a prosecution for aggravated sexual assault of a child, is the probative value of cell phone extracted data containing hundreds of images and search results for pornographic websites depicting young looking adult children or adults who look young but who are not underage substantially outweighed by unfair prejudice?

Facts. Defendant is accused of aggravated sexual assault of a young child. In addition to the testimony of the child-victim and her siblings, the trial court admitted cell phone extraction data of 500 pornographic images and a web search history that contained 400 search results for pornographic websites. The detective testified that some of the images appeared to be “very young looking adult children,” but no underage children. The State argued the cell phone evidence “showed defendants predilection for younger looking girls and pornography” and to corroborate the victim’s testimony that the defendant showed her videos of people “humping” on his phone. 

Holding. Yes. The evidence—all of which was adult pornography—was inflammatory and nearly irrelevant to the issues the jury needed to decide. The court considered the Gigliobianco factors when determining error under Tex. R. Evid. 403: (1) probative force of evidence, (2) proponent’s need, (3) tendency to suggest decision on improper basis, (4) tendency to confuse or distract, (5) tendency for undue weight, (6) likelihood presentation of evidence will consume undue time. Gigliobianco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006). The State’s alleged predilection for younger looking girls is mere character conformity evidence prohibited by Tex. R. Evid. 404(a)(1). The probative value in corroborating what the victim claims to have seen on defendant’s phone is low—there was no evidence to suggest any of these images were on the defendant’s phone when she claimed to have viewed it. The websites all involve adult pornography—all depict post-pubescent women. Even if the images resembled teenagers, none involved young children like the alleged victim. The images and websites had little probative value to show that the sexual assaults occurred. The State’s need was slight, the tendency to suggest decision on improper basis or distract the jury significant.

Comment. I hate when the touchstone case in a particular area is difficult to spell and pronounce. Gigliobianco.

Laws v. State, No. 06-19-00221-CR (Tex. App.—Texarkana, Oct. 14, 2020)

Issue. When a defendant makes a speaking objection (failing to state a rule) expressing his concerns about the trial court ordering an alternate juror to observe deliberations, has the defendant sufficiently preserved an issue under Texas Code of Criminal Procedure article 36.22 (“No person shall be permitted to be with the jury while it is deliberating. No person shall be permitted to converse with a juror about the case on trial except in the presence and by the permission of the court.”)? Can the trial court reverse on speculative harm?

Facts. Trial counsel objected to the presence of the alternate juror during deliberations. Counsel stated “I think there’s just too much of a risk and the danger for them to bring input. We can’t police that.” Counsel stated “I think we need to do like we always do and ask them to maybe go downstairs and wait in the room. Counsel reiterated “[b]ut I just think the danger of possible abuse of that is just too—it’s too high, Judge, and I am going to object to that.” The trial court ordered the alternate juror to sit inside the jury room with fellow jurors and to watch them deliberate while he sits in silence. The trial court ordered the other jurors to disregard any comment, statement or opinion by the alternate juror. 

Holding. No. Defendant did not cite “Texas Code of Criminal Procedure article 36.22” so the issue is not preserved. No. The defendant did not brief or show any harm and the court will not reverse harmless error.

Dissent (Burgess, J.). A party need not employ magic words to preserve an issue for appellate review—it is sufficient that he made the trial court aware of the grounds for the complaint. When Article 36.22 is violated, a rebuttable presumption of injury to the defendant arises and the defendant does not have to show harm on appeal – the State has to rebut it. This rationale is explained in the defendant’s brief he would “have no way of knowing what harm may come from such a violation.”

Comment. Usually the difference between majority and dissenting opinions are matters of interpretation. Here, the majority quickly dispatches an issue in a single page which the dissent spends 12 pages discussing. The “no magic words required” doctrine is the most inconsistently applied rule on appellate review, and the dissent makes a good point—why does the appellant have to brief harm if it is presumed?

7th District Amarillo

The Seventh District Court of Appeals in Amarillo did not hand down any significant or published opinions since the last Significant Decisions Report.

8th District El Paso

State v. Morales-Guerrero, No. 08-19-00185-CR (Tex. App.—El Paso, Oct. 7, 2020)

Issue. When law enforcement provides a custodial interrogation warning that the defendant has the right to remain silent, but omits “and not make any statement at all” must the trial court suppress the defendant’s statements because that specific language is mandated by Texas Code of Criminal Procedure Article 38.22?

Facts. Defendant was charged with continuous sexual abuse of a child. The trial court suppressed the defendant’s statements to law enforcement for failing to substantially comply with Article 38.22 (Texas statutory Miranda warnings). Specifically, the trial court found that law enforcement failed to inform the defendant that he had the right to “not give any statement at all” and that the warnings law enforcement did provide were not the fully effective equivalent: that the defendant has the right to remain silent and that the defendant can decide “from this moment on” to terminate the interview.

Holding. No. Warnings that are the fully effective equivalent of the explicit warnings contained in Article 38.22 are sufficient. A fully effective equivalent warning is one that does not dilute the meaning of the Article 38.22 warnings. “You have the right to remain silent” is a fully effective equivalent to “you have the right to remain silent and not make any statement at all.” The warnings given to the defendant were the full functional equivalent of the Article 38.22 warnings.

Comment. “Remain silent” and “not say anything at all” have the same meaning. But statutory interpretation demands no such redundancy. The Court finds additional meaning in “not make any statement” by distinguishing oral statements from written or sign language statements, the latter being statements made while remaining silent. Thus, in the context of an oral statement, the omission here did not dilute the warning.

Ripley v. State, No. 08-19-00040 (Tex. App.—El Paso, Oct. 16, 2020)

Issue. Does the State’s post-trial disclosure of investigator notes taken during an interview of a victim’s friend require the granting of a new trial when those notes portray an initial victim outcry of sexual abuse as occurring several years before what the victim stated in the trial?

Facts. Defendant’s 5-year-old stepsister informed her mother that defendant had touched her inappropriately and had been doing so for years. This culminated in a trial where counsel raised the implication that the parents of the child manipulated her into an outcry to use as leverage in obtaining a share of a personal injury settlement award belonging to the defendant. There was some inconsistency at trial about the date of the initial outcry. After trial, the State disclosed handwritten notes taken by an investigator during an interview of the victim’s friend. According to the interview notes, the friend indicated that the victim told her mother about the abuse when she was 10 years old, not 13 (as portrayed at trial).

Holding. No. At least not under these facts. The evidence – a suggestion that the outcry occurred several years prior to the date portrayed at trial—ran contrary to the defendant’s theme at trial. The defendant suffered an oilfield injury in 2011 and, as goes the defendant’s theory, in 2014 the parents coached an outcry to get a part of the settlement. The friend’s statement would discredit this theory with an outcry which predated the oilfield incident. The evidence failed to satisfy the second prong of Brady: that the undisclosed evidence be favorable to the defendant.

Comment. Trial strategy changes with the hands we are dealt in discovery and investigation of a case. This doesn’t sound like a case where the defense presented evidence to prove a theory, but rather posed an issue for the jury to consider when performing the task of considering reasonable doubt. Is it conceivable that, with the benefit of this new evidence, counsel would have pursued a different theory of showing why the accusation is false? This case highlights another important distinction: Brady blameworthiness. The failure to disclose here was purely accidental, but as the Court notes “the lynchpin of a Brady violation is the State’s failure to disclose favorable material evidence ‘regardless of the prosecution’s good or bad faith.’” Webb v. State, 232 S.W.3d 109 (Tex. Crim. App. 2007).

9th District Beaumont

Swansey v. State, No. 09-18-00342-CR (Tex. App.—Beaumont, Oct. 14, 2020)(not designated for publication)

Issue. Is punishment evidence in the form of recorded jail conversations substantially more prejudicial than probative (under Tex. Rule Evid. 403) where those recordings demonstrate the defendant’s thought process on rejecting a plea offer?

Facts. Defendant was angry at his ex-girlfriend. He drove to her house and shot at her, her new boyfriend, children standing in front of the house and a police officer. He drove away and a random motorist chased him; he also shot at her, too. In the punishment phase of trial, the State introduced recorded jail phone calls where the defendant discussed: (1) his feelings that punishment should not be more severe when the victim is a police officer, (2) his thought process on rejecting a 50 or 60 year sentence including a discussion about what sentences other inmates were receiving, (3) his frustration with his lawyer, (4) his views about homosexuals and in particular his cell-mate.

Holding. Yes. While the defendant’s views on the value of police officer lives was relevant to punishment and not unfairly prejudicial, the remaining conversations were inadmissible. The trial court can admit in punishment “any matter the court deems relevant to sentencing.” Though this is a low threshold, the evidence must still meet the test for relevance. The Court of Criminal Appeals has made clear that the value in conversations about plea bargains are “at best minimal.” The defendant’s discussion about the sentences of other inmates may have impacted the jury’s fair consideration of the full range of punishment. The defendant’s statements about rejecting a plea offer could have served to anger jurors and created a feeling that their forced service was unnecessary. The defendant’s feelings about homosexuals were similarly not probative of any matter relevant to punishment.

Comment. We practitioners like simple rules, like “if it’s punishment it’s coming in.” Though this is an unpublished case, it is useful as an example which pushes back against perhaps an overly-cynical view of punishment evidence admissibility. 

10th District Waco

Aguirre v. State, No. 10-19-00286-CR (Tex. App.—Waco, Oct. 28, 2020)

Issue. Can a defendant use Texas Code of Criminal Procedure Article 38.23 (Texas exclusionary rule) to suppress evidence of his resisting arrest?

Facts. Defendant and a friend were standing by a pickup truck and drinking. There were beer cans on the ground next to them. Officers responding to an emergency saw the two standing and saw the defendant suspiciously lower his arm and drop something. One of the officers stopped and attempted to arrest defendant and his friend for public intoxication. While the officer was trying to zip-tie defendant’s hands behind his back, defendant pulled his arm away, was taken to the ground, then kept his arms under his body to avoid being placed in restraints. Defendant argued in a jury trial that he was on private property and therefore his arrest for public intoxication was illegal. He requested the trial court to instruct the jury on suppression pursuant to Article 38.23 (juries can suppress evidence if the issue is resolved by deciding disputed versions of facts).

Holding. No. Suppression of evidence under Article 38.23 envisions suppression of evidence that existed prior to the police encounter. Evidence that a person resisted arrest is evidence that comes into existence contemporaneously with the officer’s attempt to arrest. The police, in effecting an arrest, cannot be motivated by the acquisition of evidence of the crime “resisting arrest.” Without such improper motivation, there is no exploitation to be remedied by the judicial system.

Comment. The purpose of the exclusionary rule is to deter unlawful police conduct. United States v. Leon, 468 U.S. 897 (1984). All constitutional violations are unlawful police conduct. A subset of police constitutional violations are exploitative in nature (as opposed to erroneous or accidental conduct). A focus on whether the police conduct was exploitative seems to miss the mark. The stronger point of law—which reaches the same result—is that suppression is not warranted when the deterrent effect is outweighed by societal cost. The Court of Criminal Appeals has already addressed the societal costs associated with permitting those suspected of crimes to decide for themselves when their arrest is unlawful – such rule “presents too great a threat to the safety of individuals and society.” Ford v. State, 538 S.W.2d 633 (Tex. Crim. App. 1976).

11th District Eastland

Denny v. State, No. 11-18-00270-CR (Tex. App.—Eastland, Oct. 30, 2020)

Issue. When everyone knows that a digital photo is already in the custody of the police, does the deletion of a duplicate of that photo on a cell phone constitute tampering with evidence (by concealment)? Does it constitute attempted tampering with evidence?

Facts. Defendant was a program director at the Abilene CPS office. A child in Abilene died from what appeared to be chemical burns. Two siblings who sustained similar injuries were taken to the hospital by a CPS investigator. Simultaneously, a police detective provided a CPS supervisor at the Abilene office a picture of the deceased child. At the hospital, with the injured children, the CPS investigator informed a nurse that there was a picture of the injuries sustained by the deceased child. The nurse requested the picture from the investigator, the investigator requested the picture from the supervisor, the supervisor requested permission to send from the defendant. Defendant instructed the supervisor to not send the picture and to instead destroy it. The supervisor complied. Defendant was charged by indictment alleging that she knowingly concealed the photograph by directing CPS personnel to refuse to provide the photograph with intent to impair its availability in an investigation.

Holding. No. You can’t conceal something from the police that they can see. The State argues that intent to impair the availability of the photo is sufficient evidence, but the Court of Criminal Appeals rejected this argument in Stahmann v. State, 602 S.W.3d 573 (Tex. Crim. App. 2020). No. You can’t attempt to conceal something you know the police already can see. In Stahman the Court of Criminal Appeals reformed the judgment to criminal attempt because that defendant threw a pill bottle out of a car window, hoping the police would not see, and hoping he would avoid possession charges. Criminal attempt requires a defendant to do an act more than mere preparation that tends but fails to effect the commission of the crime. Without the intent to conceal, there can be no attempted tampering. Here, the defendant knew the police already had the photograph, therefore the defendant could not have acted with intent to conceal.

Comment. So now we have a case that says you can’t conceal something that is visible.

12th District Tyler

The Twelfth District Court of Appeals in Tyler did not hand down any significant or published opinions since the last Significant Decisions Report.

13th District Corpus Christi/Edinburg

The Thirteenth District Court of Appeals in Corpus Christi/Edinburg did not hand down any significant or published opinions since the last Significant Decisions Report.

14th District Houston

Abbott v. State, No. 14-18-00685-CR (Tex. App.—Houston [14th Dist.] Oct. 8, 2020)

Issue. Does the trial court abandon its neutral and detached role by personally interlineating an indictment at the suggestion of the parties? Is counsel ineffective for failing to take advantage of a fatal defect in the indictment by proceeding to trial?

Facts. During an open plea colloquy (no agreement on punishment – trial court will sentence), counsel informed the trial court that the indictment alleged that the defendant possessed methamphetamine but that the lab report showed cocaine. The State concurred and requested an amendment. The State provided the trial court with an interlineated photocopy. The trial court expressed hesitation that the law required interlineation on the original. The trial court amended by interlineating the original. After the open plea hearing, the trial court sentenced the defendant to 48 years.

Holding. No. Texas Code of Criminal Procedure article 28.11 provides that “all amendments of an indictment or information shall be made with the leave of court and under its direction.” The Code does not provide whether the trial court may personally make such amendment but sister courts have found no harm in this method. An amendment may be by interlineation on the original or photocopied original, the trial court’s interlineation was appropriate. No. At least not here with an insufficient record showing what the strategy of counsel was in bringing the fatal variance to everyone’s attention. Conduct which is calculated to earn favor with the fact finder could have been a legitimate strategy of counsel.

Comment. Putting all the eggs in the “they won’t find the fatal variance before trial starts” basket is risky. If you reject the State’s offer to waive jury trial and proceed to open plea just to take advantage of a mistake at trial, the open-plea offer may be gone forever. Keep in mind that the State may amend an indictment “at any time before the date the trial on the merits commences.” Texas Code of Criminal Procedure art. 28.10. 

Abrego v. State, No. 14-18-01010-CR (Tex. App.—Houston [14th Dist.] Oct. 8, 2020)

Issue. Must the record affirmatively reflect that the trial court admonished the defendant regarding his waiver of trial rights? Must a conviction be reversed when the trial court fails to admonish the defendant on his obligation to register as a sex offender?

Facts. This case was a slow plea. (plea of guilty before the jury followed by jury punishment). The record begins with the trial court addressing the jury prior to voir dire. The statements by the trial court and counsel appear to reflect an understanding that was reached before the record began. When the defendant was formally arraigned on the record, the trial court never admonished the defendant regarding his waiver of a right to jury trial, confrontation of witnesses, and self-incrimination rights. Nor did the trial court admonish the defendant that he would be subject to registration as a sex offender as required by Texas Code of Criminal Procedure article 26.13. The defendant argued that his lack of admonishment regarding his trial rights rendered his plea involuntary. The defendant argued his lack of admonishment as to sex offender consequences required reversal on statutory grounds.

Holding. No. While a waiver of trial rights cannot be presumed from silence, the defendant’s understanding can be presumed from what is “spread on the record.” Boykin v. Alabama, 395 U.S. 238 (1969). Here the defendant’s guilty plea appears adequately informed—the State had DNA evidence linking him to a sexual assault of a 16-year-old for which he had no defense other than to mitigate his punishment. Conversations with the venire about the rights the defendant would have had if he plead not guilty also demonstrate an adequate understanding and voluntariness by the defendant. No. the trial court’s failure to admonish on sex offender registration is not reversible error. Article 26.13 specifically provides that failure to comply with the sex offender admonishment requirement is not grounds for reversal.

Comment. I can see where the defendant is going with the sex-offender admonishment arguments. The statute reads literally: “The court must substantially comply with Subsection (a)(5). The failure of the court to comply with Subsection (a)(5) is not a ground for the defendant to set aside the conviction, sentence, or plea. One could say that the legislature appears to create three levels of compliance: insubstantial, substantial, and complete where anything less than substantial compliance is reversible. This interpretation hasn’t been adopted by any court – instead the duty to inform a defendant about sex offender registration is 100% unenforceable.

Blacklock v. State, No. 14-19-00307-CR (Tex. App.—Houston [14th Dist.] Oct. 22, 2020)

Issue. When the State is responsible for 15 years of delay, is the defendant entitled to impeach a complaining witness using convictions that are remote in time (more than 10 years old at the time of trial)?

Facts. Defendant was prosecuted for an aggravated sexual assault which occurred in 2005. Due to DNA backlog, the State did not prosecute the defendant until 15 years after the alleged incident occurred. Details of the assault were presented through witness testimony and reports taken from the victim at the time of the offense. The evidence establishing the identity of the defendant was limited to a 15-year-old mixed DNA sample. At trial, the complaining witness admitted several prior criminal offenses, but defendant wanted to impeach the complaining witness with two theft convictions from 2002, a prostitution conviction from 2004, and another prostitution conviction from 2005. The trial court applied a standard for admission for remote-in-time convictions where ten years have elapsed from the date of conviction and ruled that the prior convictions were not more probative than prejudicial and thus inadmissible.

Holding. No. At least not here. Under Texas Rule of Evidence 609, convictions that are older than 10 years are admissible when their probative value substantially outweigh their prejudicial effect. The factors for consideration are: (1) impeachment value, (2) temporal proximity of conviction to testimony date, (3) similarity of past crime to conduct at issue, (4) importance of witness’s testimony, and (5) importance of the credibility issue. While the impeachment value of theft and prostitution convictions are high, they were fairly duplicative of other convictions already admitted. Their remoteness also would have done little to inform the jury about the present veracity of the witness. The fact that she was a prostitute was adequately established and further evidence would have unfairly focused the jury’s attention on her pattern of past conduct.

Dissent (Poissant, J.) Defendant presented a sufficiency of evidence challenge rejected by the majority. The dissent would reverse on evidence insufficient to establish the greater offense of aggravated sexual assault. The forensic examiner found no injuries and the victim described no aggravated conduct.

Comment. Had the state not caused 15 years of delay in prosecution, the prior convictions would have been admissible. It seems there may have been a legitimate speedy trial issue here.

In re Ogg, No. 14-20-00451-CR (Tex. App.—Houston [14th Dist.] Oct. 27, 2020

Issue. During the COVID-19 pandemic and pursuant to the Supreme Court emergency orders permitting trial court suspension of statutory procedures, may a trial court proceed to a bench trial over the State’s objection in contravention of State’s authority to demand a jury trial under Texas Code of Criminal Procedure article 1.13?

Facts. Kim Ogg is the Harris County District Attorney. Ogg filed petitions for writs of mandamus and prohibition challenging a Harris County court at law judge’s authority to conduct a bench trial without the consent and waiver of jury trial by the State. The defendant had moved for speedy trial on his misdemeanor charges following removal from a pretrial intervention (or pretrial diversion) program. The defendant requested a trial before the court (bench trial) because jury trial was prohibited under the current orders of the Texas Supreme Court regulating court proceedings during the COVID-19 pandemic. In his request for a bench trial, the defendant requested the trial court waive the requirements of Texas Code of Criminal Procedure article 1.13 – a provision securing the State’s authority to demand a jury trial.

Holding. Yes. The Supreme Court’s COVID-19 emergency orders that “subject to constitutional provisions” a trial court may “modify or suspend all deadlines and procedures, whether prescribed by statute, rule, or order.” The State has no constitutional right to a jury trial – the authority to demand one is merely statutory and thus subject to the Supreme Court order permitting trial court modification. This remains true notwithstanding the State’s arguments that the trial court action ran contrary to the statutory emergency authorities granted to the Supreme Court—namely that the legislature intended emergency powers to suspend procedural but not substantive law.

Comment.  The TDCAA summary comment on the same case expresses concern over the slippery slope and “what other statutes can be suspended during the pandemic.” Interestingly their concern was missing when the Governor suspended habeas corpus and statutory rights of criminal defendants. Indeed, prosecutors statewide have made the exact same arguments as the defense in the present case in a widely-circulated motion demanding the suspension of Article 17.151 deadlines to permit indefinite pretrial confinement of arrestees. Geese and gander.

Kyle Therrian
Kyle Therrian
Kyle’s practice has always been criminal defense. In McKinney, where he has practiced for the past 10 years, he represents individuals in all aspects of criminal accusations, including dozens of appeals before the various Courts of Appeal and Court of Criminal Appeals. He enjoys being a resource to his colleagues and, as he describes it, “nerding out on the law.” He is an active member and leader in TCDLA. In addition to his new role as Significant Decisions Report Editor, Kyle serves as Vice Chair to Texas Criminal Defense Lawyers Education Institute, Vice Chair on the COVID-19 Taskforce, is a long-time member of the Amicus committee, and a regular lecturer as part of the Criminal Defense Lawyers Project.

Kyle’s practice has always been criminal defense. In McKinney, where he has practiced for the past 10 years, he represents individuals in all aspects of criminal accusations, including dozens of appeals before the various Courts of Appeal and Court of Criminal Appeals. He enjoys being a resource to his colleagues and, as he describes it, “nerding out on the law.” He is an active member and leader in TCDLA. In addition to his new role as Significant Decisions Report Editor, Kyle serves as Vice Chair to Texas Criminal Defense Lawyers Education Institute, Vice Chair on the COVID-19 Taskforce, is a long-time member of the Amicus committee, and a regular lecturer as part of the Criminal Defense Lawyers Project.

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