December 2021 SDR – Voice for the Defense Vol. 50, No. 10

Voice for the Defense Volume 50, No. 10 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

When you’re running behind on the SDR and think to yourself “I might need to skim a few of these cases,” but then you stumble upon this gem from the Eighth Court of Appeals Opinion: “When a tribal police officer has probable cause to believe that a non-Indian motorist has violated state or federal law on tribal lands, the tribal police can detain the motorist for a reasonable period of time until state or federal law enforcement arrives.” If you guessed that I took the heat for a late submission and read the heck out of that case, then you guessed correctly, folks. Summary below.

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.

Kyle Therrian

United States Supreme Court

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

Fifth Circuit

United States v. Gardner, 15 F.4th 382 (5th Cir. 2021)

Issue. Must a trial court grant an evidentiary hearing on a motion to withdraw a guilty plea when the defendant alleges that he lost an opportunity to file a meritorious motion to suppress evidence after relying on counsel’s incorrect representation that said motion could be filed later, after entering an unconditional guilty plea?

Facts. Defendant entered a guilty plea without a plea agreement. On the day of sentencing counsel made an oral motion for continuance to file objections to the presentence investigation report (“PSR”). This was several months after objections were due. Defendant then filed a pro se motion to appoint new counsel alleging that counsel misled him into believing that counsel had previously filed PSR objections and that counsel gave inconsistent information regarding the availability of audio and video footage of the search leading to his arrest. Defense counsel moved to withdraw citing “irreconcilable differences.” The district court granted counsel’s motion and appointed new counsel two days before sentencing. New counsel filed a series of continuances to get his footing in the case. Ultimately new counsel filed a motion to withdraw defendant’s guilty plea as involuntary by virtue of ineffective assistance of former counsel. In his motion to withdraw guilty plea, Defendant alleged that previous counsel informed him a motion to suppress could be litigated after entering a guilty plea. The trial court denied defendant’s motion to withdraw his plea without a response from the government and without an evidentiary hearing.

Holding. Yes. A trial court’s denial of an evidentiary hearing is reviewed for abuse of discretion. A trial court must permit a defendant to withdraw his guilty plea if he “can show a fair and just reason for requesting the withdrawal.” Factors in making this determination include “(1) whether the defendant asserted actual innocence; (2) whether the withdrawal of the plea would prejudice the government; (3) the extent of the defendant’s delay, if any, in filing the motion to withdraw; (4) whether withdrawal would substantially inconvenience the court; (5) whether the defendant was benefitted by the close assistance of counsel; (6) whether the guilty plea was knowing and voluntary; and (7) the extent to which withdrawal would waste judicial resources.” Here many factors weigh against the defendant, but not so heavily as to overcome a valid claim that his plea was rendered involuntary by ineffective assistance of counsel. Here, the allegations amount to ineffective assistance of counsel if proven. If proven, erroneous advice on the court’s ability to consider a motion to suppress after entering an unconditional guilty plea would fall below an objective standard of reasonableness. Therefore, defendant alleged sufficient facts to justify an evidentiary hearing and the trial court was in error to deny one.

Comment. The court points out that it is not ruling on the effectiveness of counsel but merely on the appropriateness of the trial court’s ruling without an evidentiary hearing.

Texas Court of Criminal Appeals

Maciel v. State, No. PD-0753-20 (Tex. Crim. App. 2021)

Issue. Necessity is a confession-and-avoidance defense. It requires a defendant to essentially admit the charged conduct. Does a DWI defendant sufficiently trigger a confession-and-avoidance defense when she testifies that she does not believe her attempt to move an inoperable vehicle satisfied the element of operation?

Facts. Defendant was too drunk to drive so she got a ride home from her brother. While the two were en route, defendant’s brother stopped the car in the middle of the road and began vomiting. Defendant climbed into the driver seat to try and drive the car out of the middle of the road. She could not get the car to move. She testified “I couldn’t get the car to move, so I wasn’t driving. I don’t think I was operating it.” A Texas A&M University Police officer discovered the vehicle in a lane of traffic with smoke coming from under the hood. Defendant was in the driver seat and the engine was running. The officer arrested defendant for DWI. At trial, defendant requested a necessity defense. The trial court denied the request because it believed defendant failed to trigger the confession-and-avoidance defense by denying her operation of the vehicle.

Holding. Yes. A defendant is entitled to a defensive instruction if raised by any evidence, weak or strong. If the defendant’s theory of the case does not controvert circumstances which would establish guilt, the defendant has not flatly denied the charged conduct. “While the term ‘operate’ is not statutorily defined, this Court has held that, under a sufficiency review, the totality of the circumstances must demonstrate that the defendant took action to affect the functioning of his vehicle in a manner that would enable the vehicle’s use.” The arresting officer’s testimony and body camera footage established sufficient evidence of operation. Defendant’s own testimony essentially admitted to every element of the offense charged—she admitted to getting into the driver seat and trying to move the car to a parking lot. “[O]ur jurisprudence regarding the confession-and-avoidance doctrine does not require an explicit admission from the defendant that she committed the crime.” It is sufficient that defense evidence admits conduct sufficient to establish a crime. Here it did.

Concurrence (Newell, J.). It was unnecessary to remand this case back to the court of appeals to conduct a harm analysis. This court could have done that.

Comment. I like the precedent for this rare fact pattern. I don’t like that operating includes “not operating.”

Lozano v. State, No. PD-1319-19 (Tex. Crim. App. 2021)

Issue. When some evidence suggests a reasonable person might have been justified in the use of deadly force, but no evidence establishes the defendant’s subjective belief that it was, is the defendant entitled to a deadly force self-defense instruction (such that the trial court’s erroneous inclusion of a duty to retreat instruction warrants reversal)?

Facts. Defendant engaged in an altercation with a man he thought was hitting on his girlfriend at the bar. When everyone left the bar, defendant drove his car menacingly near the man and the group he was with. Defendant rolled down his window and stared at the man’s girlfriend. The man threw a beer can inside of defendant’s truck which exploded. As defendant retrieved a gun from his back seat the man charged defendant’s open window and hit him in the face 1-3 times. Defendant shot and killed the man. The trial court charged the jury on self-defense together with an instruction on the duty to retreat. The court of appeals found that the inclusion of a duty to retreat instruction egregiously harmed defendant and reversed his conviction.

Holding. In 2007 the legislature eliminated the duty to retreat where deadly self-defense is raised by the evidence and where a person has the right to be present at the location where deadly force is used and has not provoked the altercation. The inclusion of an inappropriate general duty to retreat instruction constitutes an improper comment on the weight of the evidence. While the inclusion of the duty to retreat instruction was erroneous, so was the inclusion of a self-defense instruction in the first place. There was no evidence that Appellant acted in self-defense when he shot and killed the victim. Deadly self-defense requires both a subjective belief that deadly force is necessary and an objective determination that the defendant’s belief was reasonable. A defendant’s subjective belief is presumed reasonable if the defendant used deadly force to repel a person forcibly entering his occupied vehicle who he did not provoke (and assuming the defendant was not himself committing an offense greater than a Class C traffic offense). Here, a jury could have found the presumption of reasonableness applicable to repelling forcible entry into an occupied vehicle. But this does not obviate the necessary showing that the defendant actually believed deadly force was necessary. Defendant either brandished a firearm after the victim threw a full can of beer in his truck because he was legitimately felt the need to use deadly force or because he wished to intentionally escalate an altercation. Defendant either shot the victim because he was legitimately felt the need to defend with deadly force or because he overreacted. He either shot the victim a second and third time because he thought it necessary in a fight for his life, or he did it gratuitously. The evidence does not establish, one way or another, how the defendant felt about the necessity of force. Because defendant was provided a windfall by the inclusion of an improper self-defense instruction, he could not have been egregiously harmed by the improper inclusion of a duty to retreat instruction.

Comment. I’m not sure what this does to the “self-defense is triggered by some evidence from any source” rule. I can see a prosecutor using this case to argue that circumstantial evidence of the defendant’s subjective belief is not enough, and that a defendant must testify. However, given this goes against considerable precedent, if this is what the Court of Criminal Appeals meant to do, they probably would have been more explicit.

State v. Brent, No. PD-0020-21 (Tex. Crim. App. 2021)

Issue. In the case of a convicted defendant who receives a discharge from probation, Article 42A.701(f) of the Code of Criminal Procedure provides a trial court with authority to set aside a verdict, withdraw the defendant’s plea, and dismiss the complaint, information, or indictment (a.k.a. grant “judicial clemency”). Does a trial court have never-ending jurisdiction to grant this judicial clemency?

Facts. More than two years after the trial court discharged her from probation, defendant requested, and the trial court granted judicial clemency.

Holding. No. A trial court has 30 days of plenary power to grant judicial clemency after discharge. “That understanding was embraced by all the courts of appeals to consider the issue between 2011 and 2018, and the Legislature never countermanded it. . . . Prolonged inaction by the Legislature in the face of a judicial interpretation of a statute implies approval of that interpretation.” In the face of this judicial interpretation, the legislature reenacted the judicial clemency provision without change in verbiage. Contrary to the opinion of the court of appeals, discharge from probation and judicial clemency are not separate forms of relief—clemency depends on discharge, and they must occur together. The fact that a former probationer may become completely rehabilitated and worthy of judicial clemency on a later date is not a basis to extend the court’s jurisdiction. Arguably the authority of the trial court should be shorter than the 30-day plenary power normally applied to motions for new trial. “For one thing, judicial clemency grants more relief than does an order granting a new trial or arresting a judgment because clemency not only claws back the verdict and/or guilty plea, it dismisses the charging instrument” and the State has no opportunity to re-convict.

Concurrence (Yeary, J.). “Superficially, at least, the very concept of ‘judicial clemency’ threatens to unduly encroach upon the prerogative of the Executive Department, in violation of the separation of powers mandate of Article II, Section 1 of the Texas Constitution.” A holding that affords indefinite jurisdiction to the trial court would amplify the risk that the statute may be struck down as unconstitutional.

Comment. The defendant argues that many rehabilitated former probationers don’t learn about their ability to request judicial clemency until long after their discharge. The Court frames this argument as follows: “Along the way she endorses an out-of-date assertion that defendants are not given notice about the possibility of judicial clemency. Cf. Tex. Code Crim. Proc. art. 42A.058 (requiring written notice to defendants about the possibility of judicial clemency when they are placed on community supervision). The Court’s analysis here highlights the value that could be added to the Court of Criminal Appeals by the addition of more defense attorney perspectives. I practice in the sixth largest county in Texas and not a single defendant (to my knowledge) has received an admonishment on judicial clemency from a trial court since 42A.058 was enacted in 2017. And I am aware of one judge in neighboring Dallas County who issues such admonishment. I would take the defendant’s argument here one step further. Not only do a lot of former probations fail to recognize the law in this area; a lot of judges, prosecutors, and defense lawyers do, too. Frankly, the law is chock-full of things trial courts and lawyers are supposed to do but don’t. When appellate courts say its harmless to not do them, they often don’t get done.

Ramos v. State, No. PD-0788-20 (Tex. Crim. App. 2021)

Issue. Are the offenses of continuous sexual abuse and prohibited sexual conduct (incest) the same offense for purposes of a multiple-punishments double-jeopardy analysis?

Facts. A jury convicted the defendant of continuous sexual abuse of a child and prohibited sexual conduct. The conviction for prohibited sexual conduct was a single instance of sexual abuse against the same victim and during the same timeframe as the conduct underlying the conviction for continuous sexual abuse. The complainant testified specifically about a single incident giving rise to the prohibited sexual conduct conviction. It occurred on the last date of the timeframe alleged in the continuous sexual abuse allegation. The complainant also testified generally about sexual abuse occurring throughout alleged timeframe of the continuous sexual abuse charge. Defendant challenged his convictions on double jeopardy grounds. The court of appeals reversed.

Holding. No. Section 21.02 supplies various predicate offenses that, if committed on multiple occasions, can form the predicate offense for a continuous sexual abuse conviction. Prohibited sexual conduct is not among the predicate offenses listed in Section 21.02. The starting point for double jeopardy analysis is Blockburger: “two separately defined statutory offenses are presumed not to be the same so long as each requires proof of an elemental fact that the other does not.” In Texas, that presumption is rebuttable. Rebutting the presumption requires consideration of several factors: whether provisions are in the same statutory section, whether offense are phrased in the alternative, whether offenses are named similarly, whether offenses have common punishment ranges, whether offenses have common focus or gravamen, etc. See Ervin v. State, 991 S.W.2d 804 (Tex. Crim. App. 1999). Here, the two offenses are not the same under Blockburger. A person commits prohibited sexual conduct regardless of whether the victim is a child (as required by the continuous sexual abuse statute) and regardless of whether the victim is younger than 14 years of age (as required by the continuous sexual abuse statute). “The Ervin factors—including the focus/gravamen factor—ultimately militate in favor of a conclusion that continuous sexual abuse of a child and prohibited sexual conduct are not the same offense for purposes of a multiple-punishments double-jeopardy analysis.” The provisions do not appear in the same statutory section. They are not phrased in the alternative. They are not named similarly. The two offenses carry wildly different punishment ranges. The elements which differ between the two offenses are nothing alike. One offense requires proof of two acts of sexual abuse, the other requires proof of intercourse with a stepchild. Finally, legislative history reveals “[t]he two statutes are of entirely different vintages.” The purpose of the continuous sexual abuse statute is to protect children from predatory adults and the purpose of the prohibited sexual conduct statute is to protect the sanctity and integrity of the family unit. The court of appeals erroneously interpreted the gravamen of the offenses to be the same. But continuous sexual abuse is a hybrid nature-of-conduct and circumstances-surrounding-conduct offense. The victim must be under the age of 14 and the abuse must occur over a period greater than 30 days. Prohibited sexual conduct does not punish sexual intercourse in the abstract, it punishes it when the actor knows the person is a relative.

Comment. Is it odd to refer to a sex offense statute as a “vintage?” Do you swirl the statute and take in its aroma before using it to punish a person a second time for the same conduct?

Molina v. State, No. PD-1079-19 (Tex. Crim. App. 2021)

Issue. The Confrontation Clause guarantees the right to cross-examine a laboratory witness whose work is testimonial in nature. Is work done by a lab technician who prepares evidence for analysis, generates raw DNA data, and conducts initial presumptive testing testimonial in nature?

Facts. A jury convicted defendant of raping a woman based on a match between the DNA sample collected from the victim in 2000 and a sample voluntarily provided by the defendant 17 years later. In 2000, a SANE nurse collected samples from the victim which law enforcement preserved due to the complainant’s inability to identify her attacker. In 2017, when a laboratory tested defendant’s sample, it was determined that the DNA collected from the complainant in 2000 belonged to the defendant. Defendant objected at trial to the testimony of the analyst as a surrogate for the testimony of other expert opinions contained in the final lab report. Over defendant’s objection, the trial court permitted the testifying analyst to explain how another analyst processes evidence before a DNA profile is developed; how another person locates areas of interest on the evidence, how another person conducts presumptive testing, extracts material, and amplifies genetic markers. The testifying analyst also explained the controls used by his laboratory to ensure reliability and how errors in processing cannot result in the erroneous generation of the wrong person’s DNA profile. Finally, the analyst testified that he was able to independently verify the profile developed by the person who performed work before him.

Holding. No. There are scenarios where a lab supervisor might testify as a surrogate for the testimonial analysis performed by another lab technician and violate the Confrontation Clause. There are other scenarios where a lab supervisor uses non-testimonial data prepared by another person/computer to reach a testimonial conclusion of her own and does not violate the Confrontation Clause. Here, the lab supervisor reviewed non-testimonial data and rendered her own conclusions. The relevant cases for comparison are Burch v. State and Paredes v. State.

In Burch v. State, 401 S.W.3d 634 (Tex. Crim. App. 2013), a laboratory supervisor testified in place of the analyst who performed the testing. The laboratory supervisor double-checked everything but could not confirm that the non-testifying analyst reached the correct result. The Court of Criminal Appeals ruled that the defendant had the right to cross-examine the non-testifying analyst because her report contained testimonial statements, and the supervisor was a mere surrogate for her conclusions.

In Paredes v. State, 462 S.W.3d 510 (Tex. Crim. App. 2015), a laboratory supervisor testified in place of the analyst who generated raw DNA data resulting in a lab report identifying the victim’s blood on the defendant’s shirt. The Court of Criminal Appeals ruled that there was no Confrontation Clause violation because the DNA profile was computer generated and “stood for nothing without [the] further analysis” provided by the laboratory director who “performed the crucial analysis determining the DNA match and testified to her own conclusions.” Also relevant was the fact that the reports were not entered into evidence, that potential human-error was cured by the director’s ability to verify that her conclusions were properly generated, and that safety measures were implemented to detect errors.

The court of appeals concluded that Paredes controlled, notwithstanding: (1) the fact that Paredes involved a computer-generated DNA profile instead of a human-generated DNA profile, and (2) the fact that the instant lab supervisor testified only in generalities as to the laboratory’s quality controls. The court of appeals analysis was correct. The preparation of DNA samples here [presumptive tests, epithelial-cell fraction collection, quality control measures, and raw data about a DNA profile] was not inherently testimonial. This work stands for nothing on its own without additional analysis. The lab supervisor here was not a mere surrogate and his lack of personal knowledge about the specifics of lab quality control measures are unimportant. It was sufficient that he could explain that “if there is an error in processing evidence, no profile suitable for comparison would be generated.” Moreover, the lab supervisor checked the work of analysts who prepared the profile and was able to develop the same profile using the same underlying raw data.

Comment. The area of concern is the lack of any personal knowledge about quality controls observed by the laboratory. If an expert is going to testify to a one in quadrillion chance of innocence, it isn’t too much to ask that the witness be able to at least say something like “we lock the door of the laboratory at night.” Give me something . . .

Ex parte Hill, No. WR-83-074-04 (Tex. Crim. App. 2021)

Issue. (1) When a defendant successfully overturns a prior criminal conviction used for enhancement purposes many years after-the-fact (and during the pendency of the enhanced case), can the State rely on the doctrine of laches to defeat his now timely illegal sentence claim by pointing to the delay in challenging and overturning the prior criminal convictions? (2) When the State enhances a defendant’s sentence with a defective prior conviction, is the problem appropriately analyzed as an illegal sentence (as opposed to defeated as a defective enhancement)? (3) Is a defendant harmed by a mandatory life sentence in one case when he would have received a life sentence in another case?

Facts. Defendant was convicted of second-degree sexual assault of a child and indecency with a child by contact. The State enhanced his sentences with a prior conviction for aggravated sexual assault. The effect of the enhancement was automatic (in the sexual assault of a child), and up-to-life-imprisonment (in the indecency by contact). Before the instant appeal, the Court of Criminal Appeals vacated defendant’s sentences used for enhancement (enhancing sentences).

Holding. (1) No. The State should have raised laches when Defendant challenged his prior convictions – “not now when Applicant is raising different claims less than six months after they became available challenging sentences that he has never challenged.” Moreover, “there is no record evidence to support that the State would be materially prejudiced. . . . no evidence that memories have faded or evidence has been lost or is otherwise unavailable because of the passage of six months’ time.”

(2) Yes. Ex parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006) governs if the court treats the instant case as an illegal sentence. In Rich a defendant pleaded guilty to an enhanced felony and later realized one of his prior sentences had been reduced to a misdemeanor. Defendant’s claim was not forfeited because such claims are regularly raised for the first time on postconviction, and the appellate record did not reveal the problem with the defendant’s sentence. Hill v. State, 633 S.W.2d 520 (Tex. Crim. App. 1981) controls if the court treats the instant case as an improper enhancement. In Hill a defendant directly appealed his enhanced theft and argued that one of his prior theft convictions was defective. The Court of Criminal Appeals held in Hill that a defendant cannot raise for the first time on direct appeal an improper-enhancement claim unless he objected at trial. This case is governed by Rich and not Hill. The Court of Criminal Appeals has not relied on Hill or its progeny in 23 years. “[W]e need not overrule Hill and its progeny because they do not apply to illegal-sentence claims based on an improper enhancement.” In analyzing the legality of a sentence, the court must look to “the legality of the punishment as it now stands not as it stood at some other time.” Defendant’s sentences “are now known to be illegal.” Here, both of defendant’s sentences are illegal because they exceed the maximum sentences for second-degree felonies (his sentencing range on the underlying offenses un-enhanced).

(3) No. In assessing harm, the court looks to a defendant’s actual criminal history to assess what enhancements might still have applied. Here defendant’s automatic life sentence for sexual assault is without question harmful. On the other hand, defendant’s life sentence for indecency with a child is not because “his actual criminal history supports the first-degree felony punishment range in which he was sentenced.”

Concurrence / Dissent (Keller, P.J.). Laches.

Concurrence / Dissent (Yeary, J.). At the time the sentence was imposed there was nothing wrong with it.

Comment. I might have tired-head from reading this opinion, but my question is this: if Hill and its progeny do not apply to illegal-sentence claims based on improper enhancement, what does it apply to? Why doesn’t the Court of Criminal Appeals overrule it explicitly? 

West v. State, No. PD-0236-20 (Tex. Crim. App. 2021)

Issue. Does an indictment alleging prescription fraud of Substance A toll the statute of limitations to later allege a prescription fraud of Substance B?

Facts. The State alleged three counts of possession occurring in 2015. In 2016 the State charged Defendant with possession of Tramadol by misrepresentation, fraud, forgery, deception, or subterfuge. In 2018, after the statute of limitations ran, the State refiled an indictment substituting Oxycodone for Tramadol. The trial court dismissed the 2018 indictment for failure to include tolling paragraphs. Months later, in 2018, the State filed a third indictment identical to the second indictment fixing the problem with tolling paragraphs. The trial court dismissed the third indictment as barred by the statute of limitations. The court of appeals reversed and reasoned that the State had properly tolled the statute of limitations on the Oxycodone prosecution by filing a Tramadol case.

Holding. No. An indictment or information tolls the computation of time for purposes of calculating the period of limitation. However, a prior indictment only tolls the statute of limitations for a subsequent indictment when both indictments allege the same conduct, same act, or same transaction. . . . A subsequent indictment is barred by the statute of limitations if it broadens or substantially amends the charges in the original indictment.” In Hernandez v. State, 127 S.W.3d 768 (Tex. Crim. App. 2004) the Court determined that a prior indictment for possession of amphetamine tolled the statute of limitations for possession of methamphetamine because both indictments charged the defendant with possession of controlled substance and “the facts involved with the conduct alleged in the first indictment would be nearly identical to those involved with the conduct alleged in the subsequent indictment.” The instant case differs from Hernandez because it alleges a variety of different means for committing the offense (knowingly possessing, attempting to possess, by misrepresentation, by fraud, by forgery, by deception, by subterfuge). “This distinction could theoretically allow for greater permutations in the combination of facts constituting the particular actions committed. . . . [For instance] [p]ossessing Tramadol after deceiving a doctor into writing a prescription for the drug describes completely different conduct, acts, or transactions from attempting to possess Oxycodone by forging a doctor’s prescription and presenting that forgery to a pharmacist.” In the instant case there is no way to conclude from the face of the indictment that there would be overlap in the evidence required to prove either indictment.

Dissent (Yeary, J.) What matters is whether the substances are sufficiently similar. And they are. “I would simply hold . . . that the running of the statute of limitations is tolled during the pendency of any “indictment, information, or complaint” against the defendant.”

Comment. I agree with the outcome. I am scratching my head about the Court basing its opinion in notice-based analysis of whether you can tell from the face of the documents that the State is referring to the same conduct in both indictments. I feel like (and admittedly I’m not going to Westlaw this) if the Defendant had moved to quash either indictment on inadequate notice grounds, he would have gotten the ‘ol “come on you know what they’re talkin’ about” treatment. Maybe not . . . 

Diaz v. State, No. PD-0712-20 (Tex. Crim. App. 2021)

Issue. When an officer’s warrant affidavit misinforms a magistrate that his source of information is an unnamed informant instead of correctly identifying the source as a confidential informant (or snitch), does the warrant affidavit fail to establish probable cause due to materially false information?

Facts. A jury convicted defendant of burglarizing a police officer’s home. Defendant moved to suppress a search warrant under Franks v. Deleware, claiming the probable cause affidavit used to obtain the warrant to search his phone contained materially false statements. The warrant affidavit claimed that the investigating officer received a tip from an anonymous source who relayed the name and two phone numbers for the individual who burglarized the police officer’s home. The investigating officer further swore that he approached a DEA agent and requested the agent run the numbers through DEA databases and find an identity. The testimony before the trial court showed the anonymous tipster was actually a confidential informant for the DEA, that the confidential informant provided a tip to a DEA agent and not the investigating officer, that the DEA agent ran the phone numbers on his own volition, and that the DEA agent contacted the investigating officer.

Holding. No. An anonymous tipster is treated the same as a confidential informant in the analysis of their credibility on the face of a warrant affidavit: “their reliability depends on facts from which an inference may be drawn that they are credible or that their information is reliable.” Because an anonymous tipster is not treated less skeptically than a confidential informant, the omissions in the investigating officer’s affidavit were not material. The corroborating evidence in the affidavit would have sufficiently corroborated either an anonymous tipster or a confidential informant such that a magistrate could find probable cause. Similarly, the investigating officer’s lie about who contacted who is immaterial. Whether the DEA contacted the investigating officer, or the investigating officer contacted the DEA has no bearing on probable cause.

Comment. Don’t lie. Make liars regret lying. Then less lies.

Ex parte Rion, No. PD-1096-19 (Tex. Crim. App. 2021)

Issue. Where a defendant successfully defeats a charge of manslaughter by arguing he was suffering from a mental health episode when he collided with another vehicle, does the jury’s verdict of acquittal represent a finding that the defendant did not recklessly cause any injury whatsoever, such that the State is collaterally estopped from a post-acquittal prosecution for aggravated assault with a deadly weapon?

Facts. Defendant crashed his vehicle into another vehicle. The passenger of the other vehicle died. The State prosecuted the defendant for reckless manslaughter. In his first trial, defendant defended his case by arguing that he did not act recklessly because the accident occurred amid a mental health episode. Defendant did not dispute that the collision was the cause of the victim’s injuries and ultimate death. Defendant’s first jury found him not guilty of manslaughter and not guilty of the lesser included offense of criminally negligent homicide. The State then prosecuted defendant for aggravated assault. Defendant challenged the second prosecution as barred by collateral estoppel. The court of appeals reversed.

Holding. Collateral estoppel is a component of double jeopardy. “Before collateral estoppel can apply, a court must be able to say that it would have been irrational for the jury to acquit in the first trial without finding in the defendant’s favor on a fact essential to a conviction in the second.” Here, the court of appeals was incorrect to deduce from the jury’s verdict a belief that the defendant lacked the mens rea of recklessness as it pertains to causing the accident. This is the wrong focus. Manslaughter and criminally negligent homicide are “result of conduct” offenses and the mens rea attaches to the result: the defendant recklessly causes death. The focus is not on causing the accident. Here, the jury could not have found the defendant lacked mens rea as to the accident because the jury was not asked about the defendant’s mens rea as to the accident. The first jury simply found that he was not aware of a risk that death could occur as a result of his conduct. “But this is not to say that collateral estoppel can never apply where one trial is for manslaughter and the other trial is for reckless aggravated assault causing bodily injury. Because death itself is a form of bodily injury.” As it would appear on the LSAT, it goes like this:

    • If the defendant is aware of a risk of death; then he is aware of a risk of bodily injury.
    • If the defendant is not aware of a risk of death; then he is or is not aware of a risk of bodily injury.
    • If the defendant is aware of a risk of bodily injury; then he is or is not aware of a risk of death.
    • If the defendant is not aware of a risk of bodily injury then he is not aware of a risk of death.

Comment. I think this opinion only pays lip service to the collateral estoppel requirement that the court examine “the entire trial record, as well as the pleadings, the charge, and the arguments of attorneys.” Defense counsel argued that he was suffering a mental health crisis when he collided with the victim. Counsel for the State argued that this was bologna. There is little distinction in the mind of a lay person between conduct which causes a car accident and conduct that causes the death after a car accident. I seriously doubt jurors in this case spent a lot of time discussing the nuances of “result of conduct” versus “nature of conduct.” The State’s new position on appeal is disingenuous, too. To defeat defendant’s argument that the jury necessarily determined the issue of recklessness against the State, the State argued that a reasonable juror considering this evidence could have based his or her verdict in causation. So, on appeal the State says it is reasonable to conclude the Defendant’s conduct is not the cause of death. But at trial the State argued that they had proven causation: “[b]ut for the Defendant’s actions, this woman would still be alive.” Can the State be estopped by their estoppel-defeating estoppel argument?

1st District Houston

Ex parte Lowry, No. 01-20-00858-CR (Tex. App.—Houston [1st Dist.], Oct. 26, 2021)

Issue. Is the Texas statute on child erotica, Texas Penal Code § 43.262, unconstitutionally overbroad?

Facts. The State charged the defendant with possession of lewd visual material of a child under Texas Penal Code § 43.262. The statute prohibits possession of material which depicts the lewd exhibition of clothed or unclothed minors. It does not include as part of the definition that the material be “patently offensive” as is required by the Supreme Court’s definition for obscenity and as is typically included by the legislature when outlawing obscene materials. Defendant filed a writ of habeas corpus challenging the facial validity of the statute (regulating substantial amount of protected speech and unconstitutionally vague). Defendant argued that Section 43.262 outlaws speech which is neither child pornography nor obscene and referenced for example social media influencers under the age of 18 who post provocative but clothed pictures of themselves.

Holding. Content-based regulations are presumptively invalid and subject to strict scrutiny. However, obscenity and child pornography enjoy no protection under the First Amendment. What Section 43.262 outlaws is not “obscenity” because it omits from its definition that the material be “patently offensive.” The statute outlaw child pornography. Another statute outlaws child pornography; this statute was crafted with the intent to supplement the child pornography statute by also outlawing “child erotica.” Section 43.262’s targeting of lewd exhibition that appeals to the prurient interest makes it content-based. Thus, to survive a First Amendment challenge it must survive the strict scrutiny requirements of serving a compelling government interest through narrow tailoring. The government has a compelling interest in curtailing the sexual exploitation of children is compelling, but this statute merely curtails a purported harm arising from depicting children in a sexually suggestive manner. The Supreme Court requires a direct causal link between the material and the harm sought to be prevented and the State has shown none here. Nor is the statute narrowly tailored. Defendant’s examples of outlawing young social media influencers or Netflix’s depiction of young children performing gymnastics are well taken. The statute does not distinguish between teenagers taking selfies and those taking pictures with more sinister motives. It simply prohibits substantially more free speech than is necessary, is not narrowly tailored, and is overly broad.

Comment. I suspect the Court of Criminal Appeals will take this up, but the analysis is sound.

King v. State, No. 01-19-00793-CR (Tex. App.—Houston [1st Dist.], Oct. 28, 2021)

Issue. (1) In a motion to suppress, should a trial court disregard portions of a warrant affidavit as materially misleading for failing to portray arduous process of identifying the defendant? (2) Is unlawful restraint a lesser-included offense of attempted kidnapping (in this case)? (3) Does a person have an objective and subjective expectation of privacy in his possessions stored in a semi-truck when he is the operator but not the owner of the semi-truck (and when he did not ask the police to gather his possessions and secure them while being arrested)?

Facts. A jury convicted the defendant of injury to a child causing serious bodily injury and aggravated kidnapping. Defendant lured a young girl away from her school route, strangled her, then fled when her school bus arrived. Paramedics initially believed the victim’s injuries were not life-threatening, but nonetheless transported her to the emergency room. At the hospital her injuries proved more critical. Her lungs were full of fluid, and medical staff placed her in the intensive care unit where she was intubated and required life-saving treatment. She ultimately required a heart transplant with accompanying serious complications. The lead detective in the case acquired surveillance videos of the attack. He identified defendant as a suspect by running the registration of the vehicle his wife used to pick him up. The lead detective located the defendant and his wife in Oklahoma and obtained a search warrant for his DNA which matched with DNA taken from the victim. An Oklahoma detective obtained a search warrant to search defendant’s semi-truck owned by his employer. After the search of the semi-truck, and after return had been made, investigators realized they left behind a cell phone. The lead detective asked defendant’s employer to retrieve it and mail it to him, which he did. The phone contained child pornography. Defendant alleged the DNA warrant was obtained through a materially false or misleading affidavit, but the trial court denied his motion to suppress. Defendant also moved to suppress the photographs of child pornography and argued that, although investigators possessed a valid search warrant, it had expired at the time they retrieved the cell phone. The State successfully convinced the trial court that the defendant had no expectation of privacy in his semi-truck because it was owned by his now-former employer and he had abandoned it by failing to request it when he was arrested. The State presented to the jury during the punishment phase the fact that defendant possessed child pornography together with defendant’s extremely violent past relationships.

Holding. (1) No. When determining whether an affidavit sufficiently establishes probable cause to obtain a search warrant a trial court should disregard materially false or misleading statements or omissions. Defendant relies on cases in which detectives indicate they personally observed matters they in fact did not. This is not the case here. Here, detectives left out many of the intricacies of how they identified the defendant as a suspect—but they explain the basics. Defendant’s argument that the affidavit portrayed the identification as easy is unpersuasive. The warrant affidavit establishes probable cause without that information. The warrant affidavit would continue to establish probable cause with that information. There was no error here. (2) No. Whether a lesser-included offense instruction is appropriate requires a two-step analysis: (1) are the elements of the lesser offense established by proof of the same or less than the facts required to prove the charged offense? (2) could a rational juror find that, if the defendant is guilty, he is only guilty of the lesser offense? Unlawful restraint is a lesser-included offense to the completed offenses of kidnapping and aggravated kidnapping. “Kidnapping and aggravated kidnapping require an abduction, which includes the completed actus reus of restraint.” However, the completed offense of attempted kidnapping does not require a completed act of restraint. The acts alleged in the indictment did not entail the defendant moving the victim from one place to another or confining her, nor were they the functional equivalent of restraint. This includes the allegation that the defendant “grabbed” the victim. (3) Yes. The State asserts incorrectly that the defendant’s expectation of privacy attaches to his employer’s semi-truck only while using the vehicle. Defendant was arrested near the semi-truck at a truck stop after he had been driving it and his cell phone was inside at the time of arrest. Defendant had a possessory interest in the semi-truck and by virtue its contents. Defendant had lawful control over the semi-truck at the time of his arrest. Ownership is merely one factor and here defendant’s non-ownership does not outweigh other evidence indicating subjective and objective expectations of privacy. The State’s theory that defendant abandoned the property by not requesting it upon his arrest is also unpersuasive. The record does not reflect affirmative evidence of defendant’s intent to abandon property. Abandonment will not be presumed from a silent record. Moreover, defendant lost possession of the truck and its contents not because the true owner took steps to divest him of it, but because the police arrested and incarcerated him.

Comment. I saw an 89-page opinion and thought to myself “maybe I should just declare this one insignificant.” Then I heard fake Antonio Banderas in my head: “but I must . . .” See “The How Do You Say? Ah, Yes, Show” Saturday Night Live. Created by Lorne Michaels National, NBC (Chris Kattan as Antonio Banderas). Somewhere in a thick stack of pages, this case raises an interesting question: if unlawful restraint is not a lesser-included of attempted kidnapping, is attempted unlawful restraint?

Costilla v. State, No. 01-20-00297-CR (Tex. App.—Houston [1st Dist.], Oct. 19, 2021)

Issue. Does a trial court improperly comment on the weight of the evidence (when ruling on admissibility) when it admits an application and order for testimonial immunity given to a witness who has invoked her Fifth Amendment privilege against self-incrimination?

Facts. Defendant got in a fight with his girlfriend. He called the police because, according to his story, she attacked him. Police decided it happened the other way around. The State prosecuted defendant for continuous family violence assault. Defendant’s girlfriend did not want to testify at trial. She asked if she could plead the fifth. The State applied to the trial court for testimonial immunity from the use of the girlfriend’s testimony “as evidence against her in any criminal proceeding other than a prosecution for perjury, aggravated perjury, or contempt.” The trial court granted the State’s application in a written order. The girlfriend then testified she could not remember anything and later testified that she had lied to the police on the night of the altercation. The trial court admitted the State’s application for immunity along with its own order granting it.

Holding. No. Article 38.05 of the Code of Criminal Procedure prohibits a trial court from commenting on the weight of evidence in ruling on its admissibility. Defendant “argues that the very act of admitting [the application and order for immunity] into evidence was a comment on the evidence.” However, under the plain language of Article 38.05, the trial court cannot violate the statute unless “it engages in discussion or commentary beyond the announcement of its decision.” Here the trial court’s remarks on admissibility were made outside the presence of the jury. Defendant attempts to bootstrap the statements made by the prosecutor in its motion made in the presence of the jury before the jury was excused. Defendant’s position is that the State’s motion and the subsequent ruling and order admitted into evidence “conveyed to the jury that the trial court was guaranteeing that the alleged victim’s testimony would be truthful, affording credibility to the alleged victim and ultimately fortifying the State’s case” is unpersuasive. According to the defendant, the combination of the State’s motion and the trial court’s order admitted into evidence conveyed that this particular witness had something to share with the jury “necessary to the public interest” and should be therefore granted immunity “so that justice may be served.” This argument does not square with Article 38.05. The application and order constitute evidence and Article 38.05 only applies to comments made while admitting evidence “not remarks made within the evidence subject to the ruling.” The trial court did not characterize the girlfriend as the victim nor did the trial court guarantee her truthfulness. It merely concluded in its order that the girlfriend was “a material witness” and concluded that her testimony “may be necessary to the public interest and so that justice may be served.”

Comment. This witness was definitely put on a pedestal by the way the trial court went about this. This is a good lesson in tying appellate arguments to constitutional error. The Court’s laser-focus on the explicit language of Article 38.05 does not do justice to the defendant’s argument. It is true that the application and order were admitted without any commentary in the jury’s presence. But the problem here is due process and probably even the right to confrontation (of the judge and prosecutor). The defendant is correct – the court placed a stamp of imprimatur on this witness’s importance. The court of appeals acknowledges this much when it states “the application and order are evidence.” If they are evidence, then who is the declarant?

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

Vitela v. State, No. 04-19-00737-CR (Tex. App.—San Antonio, Sep. 29, 2021)

Issue. (1) Does the failure to collect a vehicle from the impound lot constitute an abandonment and relinquishment of reasonable expectations of privacy such that the police may conduct a search of the vehicle with impunity? (2) Does the fact that trained crash investigators regularly rely on vehicle black box data make such evidence sufficiently reliable and accurate and therefore admissible under Texas Rule of Evidence 702?

Facts. A jury convicted the defendant of criminally negligent homicide (a lesser included charge of the indicted offense). The jury heard evidence that the defendant sped around a curve, lost control of his vehicle, and crashed into a tree causing his passenger to die. Officers obtained a search warrant to download the vehicle’s “black box” containing data on the vehicle’s speed before the crash. Defendant filed a motion to suppress the black box search as well as challenged the admissibility of the black box data under Texas Rule of Evidence 702 (reliability and accuracy of scientific evidence). The State argued that the defendant abandoned his vehicle by failing to pay the tow fee and collect the wreckage. The State also presented trained accident investigators to defeat defendant’s 702 challenge. The trial court denied both challenges.

Holding. (1) Maybe. Here it did. Defendant made no attempt to collect his vehicle from the impound lot after it was made available to him (upon payment of the towing and storage fees). Defendant’s insurer sent the vehicle to an auto auction – where investigators learned that it had been so abandoned and decided to collect the black box data. (2) No. Notwithstanding the black box indicating it was not for the same make as defendant’s vehicle and notwithstanding numerous other errors, the black box data was sufficiently reliable and accurate to withstand Rule 702 scrutiny. Data used regularly in relevant scientific fields is ordinarily accepted as admissible. The troopers who testified as experts explained that they like to use black box data in their field. Therefore, it is admissible because of this and because they have a lot of training and experience in this field.

Comment. Black box data is reliable because they use it. Why do they use it? Because it’s reliable. See also Mike Judge, director. Idiocracy. 20th Century Fox, 2006 (“But Brawndo has what plants crave! It’s got electrolytes!” “Okay—what are electrolytes? Do you know?” “Yeah. It’s what they use to make Brawndo.” “But why do they use them in Brawndo? What do they do?” “They’re part of what plants crave.” “But why do plants crave them?” “Because plants crave Brawndo, and Brawndo has electrolytes.”).

5th District Dallas

Griswold v. State, No. 05-19-01561-CR (Tex. App.—Dallas, Oct. 26, 2021)

Issue. Is the Texas stalking statute unconstitutionally overbroad and vague on its face (when it alleges as a predicate repeated electronic harassment)?

Facts. The State charged the defendant with stalking by way of repeated electronic harassment: “engaged in [repeated] conduct under section 42.07 and/or conduct that [Griswold] knew or reasonably should have known [the complainant] would regard as threatening bodily injury for [the complainant] and or bodily injury or death, and did cause [the complainant] to be placed in fear of bodily injury or death, to wit: [listing five specific allegations of repeated communications, public declarations on Facebook, public statements, and public threats]. The indictment continued by alleging Griswold’s conduct caused the complainant to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended and would cause a reasonable person [to feel the same].”

Holding. Yes. The court agrees with sister courts who also find the electronic harassment statute unconstitutional. “It suffers from a fatal flaw of vagueness because the disjunctive series of the terms ‘harass, annoy, alarm, abuse, torment, embarrass, or offend’ leaves the electronic communications subsection open to various uncertainties of meaning and the term ‘reasonably likely’ does not create a ‘reasonable person’ standard sufficient to cure the failure of the subsection to specify whose sensitivities were offended.” Citing Ex parte Barton, 586 S.W.3d 573 (Tex. App.—Fort Worth 2019). The court also adopted the rationale of the Fourteenth Court of Appeals in declining to apply the logic of telephone harassment to electronic harassment, distinguishing telephone calls as uniquely invasive but describing electronic communications as encompassing “a far broader array of activities.” Notably, purported victims of electronic harassment are not a captive audience, but instead require “affirmative actions by the user to access the content at issue.” Citing State v. Chen, 615 S.W.3d 376 (Tex. App.—Houston [14th Dist.] 2020]. The electronic harassment statute sweeps too broadly and renders too many uncertainties of meaning. Penal Code 42.072(a) is facially unconstitutional.

Comment. Pending at the Court of Criminal Appeals since March 18, 2020 is Ex parte Barton, No. PD-1123-19. Eventually the court will resolve this issue for all courts in Texas, but until then the score is: unconstitutional in the Second, Fifth, Fourteenth; constitutional in the Third, Fourth, Seventh, Eighth, Ninth, Eleventh, and the Thirteenth.

Delgado v. State, No. 05-19-00821-CR (Tex. App.—Dallas, Oct. 21, 2021)

Issue. (1) Is the statutory instruction frequently used in murder cases which encourages the jury to consider the “relationship existing between the defendant and the deceased” an improper judicial comment on the weight of the evidence? (2) Is a trial court required to properly charge the jury on the law of parties as an alternative theory to capital murder by solicitation? (3) Is the State entitled to challenge a juror for cause on the basis of that juror indicating he would consider defendant’s failure to testify in his deliberation?

Facts. A jury convicted defendant of capital murder for her role in hiring two hitmen to kill her ex-boyfriend’s girlfriend. Shortly after the murder, investigators identified a suspect vehicle in surveillance footage. Defendant’s friend identified the car as belonging to him. He had loaned it to defendant, but not to use for murder. Defendant’s friend testified that defendant later tried to scare him into hiding and potentially changing the paint color of the vehicle. One of the hitmen testified at trial in exchange for a plea deal. The testifying hitman explained that she and the defendant plotted to kill the victim over multiple meetings and described their mutual activities leading up to the murder. The group acquired a handgun and planned to acquire a silencer. Investigators acquired corroborating evidence, including: (1) a video on defendant’s phone recording a conversation about acquiring a silencer, (2) evidence that defendant had loaded her ex-boyfriend’s iPhone account onto another device and tracked his movements, (3) cell phone GPS data putting her in the same location as the hitmen leading up to the murder, (4) an ATM withdrawal receipt for the amount paid to the testifying hitman, (5) surveillance video of defendant and the hitmen picking up the vehicle used in the murder, and (6) defendant’s partial corroboration of being in at least one of the group’s meeting places prior to the murder. At trial defendant’s friends and acquaintances testified about her violent obsession with the victim. After she was interviewed by investigators, Defendant fled to Mexico.

Holding. (1) No. The instruction tracked the language of Texas. Code of Criminal Procedure article 38.36 which alerts the jury that the relationship between the defendant and the deceased is a relevant fact in a trial for murder. “Instructions based on article 38.36 are traditional parts of murder jury charges.” Save for limited circumstances, singling out a particular item of evidence in the jury charge does constitute a comment on the weight of evidence. But here the trial court did not single out a particular item of evidence, but rather instructed the jury to “consider all relevant facts and circumstances.” (2) No. Here the defendant complaints about the omission of the culpable mental state to accompany the law of parties instruction (the State’s alternate theory of conviction). But the jury was properly instructed on the crime of capital murder by solicitation. “[T]he ‘parties’ or ‘solicitation’ aspect of the crime is built into the statute.” There being sufficient evidence to convict for capital murder by solicitation, there is no issue here. (3) Yes. A juror who considers a defendant’s failure to testify as an admission of guilt is disqualified from jury service. “That such a bias might have been in favor of the State does not prevent the State from making a challenge on that basis.”

Comment. The Article 38.36 argument here is interesting. It is true that the statute authorizes the instruction, but the legislature frequently authorizes or even compels things that do not comport with the Constitution. Also interesting is the argument that the State cannot challenge a juror for cause on the basis of a defense issue (here: the consideration of a defendant not testifying). The defendant frames the issue as one of selective waiver of her own rights. The court of appeals frames it as one of disqualification. Article 35 of the Code of Criminal Procedure specifically sets out grounds for disqualification – this scenario is not one of them. The juror was challengeable. But by the plain language of the statute, challengeable only by the defendant. The State may challenge a juror “that has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction.” The State does not rely on the Fifth Amendment privilege against testimony for a conviction.

6th District Texarkana

Biggers v. State, No. 06-20-00129-CR (Tex. App.—Texarkana, Oct. 14, 2021)

Issue. (1) Does an out-of-state judgment and sentence for a four-year sentence in the Oklahoma Department of Corrections sufficiently establish a qualifying prior sentence for enhancement purposes when it omits the specific charge and statute under which the defendant was convicted? (2) Has the State established sufficient proof of manufacturing or delivering by showing possession of a large amount of methamphetamine in rock form in a high drug-trafficking area and nothing to smoke it with?

Facts. A jury convicted the defendant of first-degree manufacture or delivery of methamphetamine (4-200 grams). Officers arrested defendant after a short foot chase during which he threw bags of drugs in an effort to conceal them. The arresting officer testified at trial that he located the drugs and, based on the weight combined with his training and experience, he did not believe it to be a “user amount.” Another officer, also with lots of training and experience, testified that the totality of circumstances determines whether a person is a user or a dealer. This officer testified to how many uses a person could get out of a gram of methamphetamine and that a person in possession of “rocks,” like the defendant, typically breaks the rock down and sells small baggies of methamphetamine. Officers testified they discovered two half-ounce rocks discarded by the defendant and that the arrest took place in a high drug-trafficking area. The crime lab report indicated 11.68 grams as that the weight of one of the two rocks. The lab did not weigh both rocks. The State alleged one prior felony conviction for purposes of enhancement. Defendant pleaded true to the enhancement during the punishment phase of trial. The State introduced a judgment and sentence from Choctaw County, Oklahoma to corroborate defendant’s plea of true to the enhancement.

Holding. (1) Yes. Defendant argues that “it was impossible to identify the conviction as a qualifying conviction under Texas Penal Code § 12.42. The exhibit omitted the language regarding the specific statute of conviction, the type of substance involved, and the weight of drugs involved. However, the judgment identifies defendant’s prior sentence as a four-year sentence in the Oklahoma Department of Corrections and witnesses testified that meant “prison.” While these facts do not necessarily translate to a qualifying Texas enhancement felony, the Code of Criminal Procedure instructs that any out-of-state felony involving potential confinement in a penitentiary is treated as a felony of the third degree. Tex. Penal Code § 12.41. (2) Yes. The following factors are circumstantial proof of manufacturing and delivering: (1) the nature of the location at which the defendant was arrested; (2) the quantity of controlled substance in the defendant’s possession; (3) the manner of packaging; (4) the presence of drug paraphernalia . . . ; (5) the defendant’s possession of large amounts of cash; and (6) the defendant’s status as a drug user.” Here the logical force of these factors established sufficient proof of manufacturing.

Cook v. State, No. 06-20-00001-CR (Tex. App.—Texarkana, Oct. 20, 2021)

Issue. May another witness give his or her opinion as to a complaining witness’s credibility?

Facts. A jury convicted the defendant of Aggravated Sexual Assault. The trial court permitted a police officer to testify about the credibility of the complainant’s allegations. The State asked whether the investigator believed the statements given by the victim during the interview were “sufficient to go forward.” The investigator replied that she felt “a victim, of his age, gave a credible statement.” Defendant objected.

Holding. No. “A direct opinion as to the truthfulness of a witness crosses the line under Rule 702 because it does more than assist the trier of fact to understand the evidence or to determine a fact issue; it decides an issue for the jury.” Yount v. State, 872 S.W.2d 706, 709 (Tex. Crim. App. 1993). Here, “though legally sufficient,” the evidence of guilt was far from overwhelming. The jury heard no other significant evidence of truthfulness or corroboration. Given these factors, together with the fact that it was a police officer vouching for the complainant’s credibility, Defendant was harmed by the trial court’s error.

Comment. Rule 608 permits opinion of truthfulness if it is first attacked. The Yount case specifically stated it was not addressing the impact of Rule 608.

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. Astorga, No. 08-20-00180-CR (Tex. App.—El Paso, Oct. 27, 2021)

Issue. When tribal police officers arrest a non-Indian for a non-arrestable tribal code violation and fail to contact state law enforcement for five hours, have they exceeded their inherent authority to detain non-Indians for suspected criminal offenses?

Facts. The State prosecuted the defendant for possession of methamphetamine discovered by officers of the Ysleta del Sur Pueblo Tribal Police Department. Defendant is not an Indian but was detained by tribal police when he violated a tribal traffic law. Tribal officers discovered open containers and a clear glass pipe in the vehicle (civil infractions under the Tribal Code). Tribal officers handcuffed the defendant and conducted a search incident to arrest but located nothing. Tribal officers then transported defendant back to tribal police headquarters. At the headquarters defendant’s female passenger informed tribal officers that defendant was concealing methamphetamine in his “groin” or “genital area.” Tribal officers ordered him to strip and then located a baggie of methamphetamine. Then tribal officers turned the matter over to the El Paso Police Department. Defendant moved to suppress his unlawful arrest. The trial court granted defendant’s motion and indicated that the open container and paraphernalia offenses were civil infractions which provided the tribal officers had no authority to arrest.

Holding. Yes. “Although Indian tribes are considered distinct, independent political communities exercising sovereign authority, due to their incorporation into the United States, their sovereignty is of a unique and limited character.” Indian tribes lack “inherent authority to exercise criminal jurisdiction over non-Indians, even for offenses committed on tribal land.” The Ysleta Pueblo tribe agreed via treaty to allow the State of Texas to “exercise criminal jurisdiction over state law violations committed on the Pueblo . . . .” The tribe retains jurisdiction to impose civil sanctions “on both Indians and non-Indians who violate the Tribe’s Traffic and Peace Codes.” Those codes do not address a tribal officer’s authority to detain or arrest for infractions, but tribal officer’s have an inherent right to detain and search non-Indian’s they suspect of committing a criminal offense on tribal land. The Supreme Court has held that Indian law enforcement have inherent authority to detain a non-Indian for a criminal offense for a period of time long enough for the appropriate authority to arrive on scene or to transport the offender to the proper authorities. The authority to search such person is “ancillary to this authority” but only to the extent necessary for officer safety. U.S. v. Cooley, 141 S.Ct. 1638 (2021). Here officers observed a paraphernalia offense which is a discretionary arrestable offense under Texas law. Officers could have contacted El Paso Police Department to determine if they wished to take custody of the defendant, but they did not. Here, tribal police took matters into their own hands and did not contact El Paso Police Department until five hours into their detention and arrest—and only after they conducted a strip search. Even if tribal officers were detaining the defendant at the request of El Paso Police Department, they could not justify the length of time it took them to confirm or dispel their suspicions of criminal activity.

Comment. This is fascinating. Also, it appears I missed the Cooley case from June of this year. Sorry.

9th District Beaumont

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

10th District Waco

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

11th District Eastland

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

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

Delagarza v. State, No. 13-19-00617-CR (Tex. App.—Corpus Christi-Edinburg, Oct. 14, 2021)

Issue. Does a parent have standing to challenge the constitutionality of a warrantless non-consensual search of his minor child? 

Facts. Defendant hid evidence of his drug dealing in the pants and underwear of his two daughters during a traffic stop. A jury convicted him of third-degree tampering with evidence and the trial court sentenced him to 99 years imprisonment based on two prior felony enhancements. Defendant challenged the search of his minor daughters. At a hearing on the motion to suppress, officers testified that one of defendant’s daughters was cooperative and admitted to having contraband in her underwear (“cooperative daughter”). Later at trial cooperative daughter testified that she chose to hide the marijuana inside her vagina when the defendant asked her to conceal it. The other daughter was uncooperative (“uncooperative daughter”) and officers had to order her to remove her jacket in order to discover the marijuana defendant had hid in her waistband. Uncooperative daughter also testified that her father did not hand her or uncooperative daughter anything. Instead, uncooperative daughter testified that the drugs belonged to cooperative daughter. During punishment the State introduced evidence of fourteen prior criminal offenses all involving female complainants. Defendant’s ex-girlfriend also testified about defendant’s abuse and shared pictures of severe injuries inflicted by the defendant.

Holding. No. This is a case of first impression. “We acknowledge that a parent, in many contexts, has a right to make decisions of substantial legal significance concerning their child.” But defendant’s attempt to derive his own personal right to privacy from that belonging to his minor child overly broadens the recognized fundamental parental rights “concerning the care, custody, and control over their child.”

Comment. The court disposed of defendant’s Eighth Amendment challenge to his 99-year sentence as not properly preserved.

14th District Houston

State v. Hatter, No. 14-20-00496-CR (Tex. App.—Houston [14th Dist.], Sep. 30, 2021)

Issue. Is a prosecutor’s promise to dismiss a case and not re-file subject to specific performance enforced by the trial court when the prosecutor re-files the case at the insistence of his supervisor?

Facts. The State charged the defendant with felony assault on a public servant arising out of a driving while intoxicated offense for which she was also charged. During the pendency of these charges, defendant picked up a second DWI charge. The State dismissed the felony charge “based on the understanding that [defendant] would plead guilty to the misdemeanor charges. But the misdemeanor charges also were dismissed shortly thereafter. The State re-filed the felony charge approximately two months later.” Counsel for defendant claimed that he and the prosecutor had a gentleman’s agreement that no refiling would occur and the understanding was that the dismissals became unconditional when defendant’s misdemeanor defense attorney became uncooperative (seeking dismissal on faulty blood vials). Defendant filed a “Motion for Specific Performance” requesting the trial court to enforce the dismissal agreement. At the hearing the prosecutor corroborated defense counsel’s claim, indicated it was not his decision to re-file, and explained that the complainant-police officer insisted on the refiling. The trial court granted the motion and dismissed the felony charge. The State appealed.

Holding. Yes. When the trial court granted the motion to dismiss with the underlying handshake agreement that defendant would be immune from future prosecution, the trial court granted its approval of not only the dismissal but the underlying handshake agreement. Even if the defendant failed to perform some part of the agreement, the trial court was not required to be aware of the defendant’s promise of performance at the time it sanctioned the dismissal agreement. The dismissal and the immunity agreement became binding when the trial court granted the State’s motion to dismiss notwithstanding any future expectations of the parties.

Dissent. There is no immunity agreement. The cases cited by the defendant pertaining to specific performance involve plea agreements. There is no plea agreement. There is no agreement. “What the majority characterizes as an ‘agreement’ is at most a unilateral promise by the prosecutor.” There was no consideration exchanged for the unilateral promise. The trial court did not sanction an immunity agreement. There is no evidence the court was aware of the prosecution’s unilateral promise at the time it initially dismissed the prosecution.

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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