January/February 2013 SDR – Voice for the Defense Vol. 42, No. 1

Voice for the Defense Volume 42, No. 1 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Fifth Circuit

Reviewing Texas capital-murder conviction and death sentence, the federal courts were limited to the factual record that was before the state habeas court. Clark v. Thaler, 673 F.3d 410 (5th Cir. 2012).

        Abiding by Cullen v. Pinholster, 131 S. Ct. 1388 (2011), the Fifth Circuit denied habeas relief on D’s claim that defense counsel failed to investigate and develop mitigating facts. On the record, the state courts’ findings that counsel was not ineffective and, alternatively, that D was not prejudiced were not unreasonable. The Fifth Circuit also declined to issue a certificate of appealability on D’s remaining claims, namely that (1) trial counsel’s closing argument was ineffective assistance, (2) trial counsel was ineffective in his cross-examination of the State’s main witness because counsel “opened the door” to evidence that D had committed another murder, and (3) counsel was ineffective for failing to object to a comment the judge made.

D waived his right to appeal the district court’s ruling on whether D could limit his testimony because D elected not to testify. United States v. Turner, 674 F.3d 420 (5th Cir. 2012).

        When the district court ruled that D would be subject to cross-examination about a robbery for which he had not been federally charged and for which he wanted to invoke his Fifth Amendment privilege, D elected not to testify. As in Luce v. United States, 469 U.S. 38 (1984), D’s decision not to testify made it impossible to evaluate whether D was harmed.

        In Hobbs Act robbery/carjacking/firearms trial, the court may have erred in refusing to allow D to put on at least one of two proposed surrebuttal witnesses to discredit a supposed jailhouse confession by D, evidence of which came only in the government’s rebuttal case. However, even if this was error, the error was harmless based on the limited usefulness of the proposed surrebuttal evidence as well as the “overwhelming” evidence of guilt.

        District court erred in giving aiding-and-abetting instruction with respect to carjacking counts. Though 18 U.S.C. § 2 was cited in other counts of the indictment, it was not specifically cited in those counts; nor was there aiding-and-abetting scienter evidence that D, if not the principal, shared the intent of the principal. However, reversal was not required because no evidence would have led the jury to convict on this erroneously submitted theory of guilt.

San Antonio police officers’ failure to knock and announce prior to executing a search warrant on Ds’ home violated the Fourth Amendment; the failure could not be justified by exigency or dangerousness to the officers. Bishop v. Arcuri, 674 F.3d 456 (5th Cir. 2012).

        Because the rights violated by the detectives were well-established at the time of the execution of the warrant, the lead detective was not entitled to qualified immunity. Moreover, contrary to the district court’s determination, there was a genuine issue of material fact as to whether the City should be held liable for the police department’s policy respecting no-knock entries. The Fifth Circuit reversed the summary judgment for the detective and the City and remanded.

The jury reasonably found that Mississippi law enforcement did not violate plaintiff’s right to a prompt probable-cause determination after arrest; though arrestees are entitled to a determination within 48 hours, the jury could have found a bona fide emergency or extraordinary circumstance—namely, police’s uncertainty about their jurisdiction—and that police promptly brought plaintiff before a magistrate after resolving jurisdiction. Brown v. Sudduth, 675 F.3d 472 (5th Cir. 2012).

Federal habeas relief of Texas D’s death sentence granted; under Penry v. Lynaugh, 492 U.S. 302 (1989), the punishment-phase jury instructions violated the Eighth Amendment because they failed to provide an avenue for D’s mitigating evidence of a difficult childhood. McGowen v. Thaler, 675 F.3d 482 (5th Cir. 2012).

        The Fifth Circuit denied D’s request for a certificate of appealability as to other issues.

D, who had more than one criminal history point, was ineligible for safety valve relief for his pre-amendment crime, even though the district court departed downward to a Criminal History Category I for over-representation of criminal history. United States v. Solis, 675 F.3d 795 (5th Cir. 2012).

        United States v. Jasso, 634 F.3d 305 (5th Cir. 2011), held that a defendant who falls into Criminal History Category II or higher—disqualifying him for the “safety valve” relief from a statutory minimum sentence in 18 U.S.C. § 3553(f) and USSG § 5C1.2—is not rendered eligible for safety valve relief simply because the district court departs down to a Criminal History Category I pursuant to USSG § 4A1.3. In Jasso, the Fifth Circuit relied on Guidelines Amendment 651 (effective November 1, 2003), which made this point explicit. Here, the Fifth Circuit determined that the same was true even before it was made ex­plicit in Amendment 651. Accordingly, on the government’s appeal of the court’s safety valve sentence, the Fifth Circuit vacated D’s below-statutory-minimum sentence and remanded for resentencing without the safety valve.

Officers did not coerce a false murder confession from a 13-year-old boy (convicted of murder but acquitted on appeal); the totality of the circumstances indicated that the boy’s will was not overborne, but rather that he was primarily motivated by a desire to protect his sister. Edmonds v. Oktibbeha County, 675 F.3d 911 (5th Cir. 2012).

D was not entitled to the Sentencing Guidelines’ minor role reduction because he did not show that he was substantially less culpable in the drug sale than the average participant. United States v. Claiborne, 676 F.3d 434 (5th Cir. 2012).

        Nor did the district court plainly err in applying an enhancement for obstruction of justice pursuant to USSG § 3C1.1. A district court’s determination that a defendant has obstructed justice is a factual finding, and questions of fact capable of resolution by the district court upon proper objection at sentencing can never constitute plain error.

The court did not abuse its discretion in denying the defense expert witness based on Fed. R. Crim. P. 16(b)(1)(C), which requires the defense to give the government a summary of expert testimony beforehand. United States v. Lundy, 676 F.3d 444 (5th Cir. 2012).

        The district court found that there was no good reason for the delay in notifying the government about the expert’s proposed testimony, that the proposed testimony was redundant, and that it was unclear whether the expert was qualified to tes­tify on the issue.

        In attempted-child-enticement prosecution, court did not err in finding that online chats and videos documenting how the agent collected the chats were sufficiently authenticated to be admitted into evidence and to establish that D was chatting with the purported victim (actually a law enforcement officer). Officer’s testimony that D’s girlfriend’s son had a name similar to the one used by the person chatting with the minor was not inadmissible hearsay because it was not offered for the truth of the matter asserted, but was only used as investigatory background.

Where attorney, jointly representing a husband and wife charged with embezzlement, alerted the trial court to the possibility of a conflict of interest arising from the joint representation, it was error for the court to fail to inquire into the potential conflict. Salts v. Epps, 676 F.3d 468 (5th Cir. 2012).

        The Mississippi courts misinterpreted Holloway v. Arkansas, 435 U.S. 475 (1978), to apply only where there is a showing of actual conflict. The Fifth Circuit affirmed the district court’s grant of federal habeas relief.

Court did not abuse its discretion in refusing to commit D for an in-house competency evaluation because the record did not establish that D was incompetent to stand trial. United States v. Flores-Martinez, 677 F.3d 699 (5th Cir. 2012).

        D’s angry outbursts regarded his beliefs that he was entitled to U.S. citizenship based on his father’s military service and that he was being unjustly prosecuted; these beliefs, although legally incorrect, were not irrational.

        Additionally, district court did not unconstitutionally abridge D’s right to testify. Defense counsel’s proffer suggested that D wished to testify only about concededly off-limits subjects, and the right to testify does not encompass the right to testify about inadmissible matters. Although D asserted on appeal that he could have testified about other, admissible matters, it was not plain error for the court to completely preclude D from testifying based on trial counsel’s proffer.

Where D was convicted of possession of a firearm by a felon, the Victim and Witness Protection Act did not authorize restitution for the pawnshop to which D sold the stolen firearms he was convicted of possessing. United States v. Espinoza, 677 F.3d 730 (5th Cir. 2012).

        The pawnshop was out $525 when the stolen firearms were returned to their owners. The pawnshop’s loss was not a direct and proximate result of the offense of conviction (D’s possession of the firearms) but resulted from the theft and subsequent pawning of the firearms. Accordingly, the pawnshop was not a “victim” within the Victim and Witness Protection Act, 18 U.S.C. § 3663, and the restitution order was improper. The Fifth Circuit chose to order full resentencing, because restitution was only one component of the sentencing court’s balance of sanc­tions and because of a plain error in the calculation of the Sentencing Guidelines for imprisonment.

        Under USSG § 4A1.2(a)(2), district court plainly erred in assessing separate criminal history points for two Texas convictions and sentences that occurred on a single day in 2006 for offenses that were not separated by an intervening arrest. Although the 30-month sentence imposed on D fell within the correct Guideline range, the Fifth Circuit pretermitted any inquiry as to whether this error affected D’s substantial rights, as the Fifth Circuit was already ordering a full resentencing based on an error in restitution.

An order of restitution that exceeds the victim’s actual losses or damages is an illegal sentence and is a punishment in excess of the statutory maximum, an explicit exception to the appeal waiver under consideration. United States v. Chem. & Metal Indus., Inc., 677 F.3d 750 (5th Cir. 2012).

        District court reversibly erred in imposing a $1,000,000 fine on corporation pursuant to the alternative-fine provisions of 18 U.S.C. § 3571(d) because, as the government conceded, there was no evidence of any pecuniary loss or gain as required by that provision. The court also erred in imposing a $2,000,000 restitution order because, as the government also conceded, there was no proof of loss. Although the government requested a remand to present evidence supporting imposition of a fine and restitution, the Fifth Circuit declined because “[t]he government generally may not present new evidence on remand when reversal is required due to the failure to present evidence originally.” The Fifth Circuit vacated the restitution order and modified the fine to $500,000, the maximum available under the general fine provisions of § 3571(c).

Where D alleged he went to trial only because of his counsel’s overstatement of the Sentencing Guideline range that would apply if he pleaded guilty, district court erred in denying D’s claim of ineffective assistance without an evidentiary hearing in light of the conflicting accounts by D and counsel and the incomplete record. United States v. Rivas-Lopez, 678 F.3d 353 (5th Cir. 2012).

        D alleged trial counsel told him the Sentencing Guideline range if he plead guilty would be 262 to 327 months, whereas it could have been as little as 87 to 108 months. The Fifth Circuit vacated the district court’s order denying 28 U.S.C. § 2255 relief and remanded for further proceedings, including an evidentiary hearing on D’s claim of ineffective assistance.

Court of Criminal Appeals

A claim alleging the violation of a rule of evidence is not cognizable on habeas corpus. Ex parte Ramey, No. AP-76,533 (Tex.Crim.App. Nov 7, 2012).

        Relator inmate applied for a writ of habeas corpus, alleging that the district court erroneously admitted testimony from an expert under Tex. R. Evid. 702. CCA denied relief.

        D claimed the expert’s testimony was inadmissible under Coble v. State, 330 S.W.3d 253 (Tex.Crim.App. 2010), and he contended the testimony violated the heightened reliability requirement of U.S. Const. amend. VIII. CCA noted that Coble was a direct appeal and did not give rise to a claim that was cognizable on habeas corpus. CCA also rejected the contention that the admission of the expert’s testimony violated the heightened reliability requirement of the Eighth Amendment. CCA stands by its decision on direct appeal not to consider the expert’s reliability. The issue of reliability was not preserved at trial; D did not raise the issue in his direct-appeal brief; and D did not file a motion for rehearing.

The trial court properly denied D’s motion to suppress because Miranda warnings were not required, as the store’s loss-prevention officer was not an agent of law enforcement when he obtained D’s theft confession. Elizondo v. State, No. PD-0882-11 (Tex.Crim.App. Nov 7, 2012).

        A trial court denied D’s motion to suppress, under Tex. Code Crim. Proc. art. 38.22, a written confession obtained by the retail store’s loss-prevention officer. COA and CCA affirmed.

        The evidence showed that: (1) while officers may have been aware that the store had a policy of obtaining a civil demand notice, there was no indication that this knowledge led to a calculated practice between the police and the store’s loss-prevention staff, and the police had not even been contacted when the loss-prevention officer obtained D’s confession; (2) the loss-prevention officer’s reason for obtaining the civil demand notice was to adhere to the policies in the store’s loss-prevention manual; and (3) a reasonable person in D’s position would not have believed that the loss-prevention officer was a law enforcement agent, as he was not wearing a uniform and informed D that he was a loss-prevention officer for the store.

A guilty plea causes the trial to become unitary; in such a trial there is only one fact finder and that fact finder determines punishment. In re State ex rel. Tharp, No. AP-76,916 (Tex.Crim.App. Nov 14, 2012).

        The State sought a writ of mandamus to require the Comal County trial judge to submit the entire case—both guilt and punishment—to the jury after D pled guilty to the jury. CCA conditionally granted the writ and directed the judge to proceed with trial, submitting all relevant issues, including punishment, to the jury so long as D’s plea of guilty remained in place.

        Once a defendant pleads guilty before a jury, the law provides that the trial became unitary, requiring the jury to be in­structed to return a verdict of guilty and assess punishment. The judge’s insistence that he would assess punishment usurped the legal requirement that the jury assess punishment. If guilt and punishment were determined by different fact finders, then the trial was necessarily a two-stage trial.

COA erred in failing to address the State’s procedural arguments regarding preservation of D’s sufficiency claim before reversing the trial court’s revocation of D’s community supervision on sufficiency grounds. Gipson v. State, No. PD-1470-11 (Tex.Crim.App. Nov 14, 2012).

        Without addressing whether D’s argument was preserved, COA determined that there was no evidence that D had willfully refused to make his required community-supervision payments. CCA reversed COA and remanded.

        COA erred in construing the due-process requirement de­scribed in Bearden v. Georgia, 461 U.S. 660 (1983), as an evidence-sufficiency requirement. Because COA misapplied Bearden in its analysis of the ability-to-pay statute, Tex. Code Crim. Proc. art. 42.12, § 21(c), the case had to be remanded so COA could consider whether the ability-to-pay statute applied to D’s unpaid amounts that were not explicitly listed in the statute. COA also did not discuss whether D’s plea of true and stipulation to the allegation would constitute a “hearing” so as to trigger the evidentiary requirements of the ability-to-pay statute. By contrast, the analysis turned on whether, under common law, evidence of D’s ability to pay was introduced rather than on whether a “hearing” was held.

Psychotherapist’s testimony about D’s polygraph exams was inadmissible because polygraph results are unreliable. Leonard v. State, No. PD-0551-10 (Tex.Crim.App. Nov 21, 2012), withdrawing No. PD-0551-10 (Tex.Crim.App. Mar 7, 2012).

        COA found that the trial court abused its discretion in revoking D’s community supervision based on the results of polygraph examinations. CCA affirmed COA.

        While the psychotherapist did make the conclusory statement that those in his field reasonably relied on polygraph re­sults, the sole basis of his opinion was the results of a test that had been held inadmissible because it was unreliable. Total re­liance on inadmissible and untrustworthy facts could not be rea­sonable, nor would such an opinion achieve the minimum level of reliability necessary for admission under Tex. R. Evid. 702. Furthermore, the provision in D’s probation requiring him to take and “show no deception” on polygraph exams does not justify admitting legally unreliable evidence.

The trial court properly prevented D from questioning prospective jurors about whether they could consider specific kinds of mitigating evidence; this was an improper commitment question. Hernandez v. State, No. AP-76,275 (Tex.Crim.App. Nov 21, 2012).

        D was convicted of capital murder and sentenced to death for the deaths of his estranged wife and her friend. CCA found D’s twelve points of error to be without merit.

        Notably, D claimed the trial court erred in preventing him from questioning prospective jurors about whether they could consider specific kinds of mitigating evidence in reaching a de­cision on the mitigation special issue. The question was an im­proper commitment question; it sought a “yes” or “no” answer and committed a prospective juror to a determination of whether the stated circumstance was mitigating—i.e., being abused as a child. The trial court did not place an absolute limitation on the underlying substance of the excluded question.

Officers, invited into D’s home but then asked repeatedly to leave, were not in D’s home in an emergency situation when they found the drug paraphernalia. Mil­ler v. State, No. PD-0705-11 (Tex.Crim.App. Nov 21, 2012).

        D was arrested for possession of a controlled substance. The trial court denied her motion to suppress evidence of a controlled substance, and she pleaded guilty. COA affirmed the denial of her motion. CCA reversed and remanded to the trial court.

        Deputies responded to a disturbance call reporting yelling, screaming, and the sounds of objects being thrown in D’s apartment. The deputies approached the situation as a domestic assault. D gave the officers consent to enter her home. However, the officers saw upon entry that D was the only adult present and she had no visible injuries. No emergency situation existed when D told the officers to leave her home and revoked her consent to their entry. Based on the record, COA erred when it found that the officers’ presence was justified under the emergency doctrine. Because the officers’ presence in the apartment at the time they found the illegal substance was not permissible, the trial court should have granted D’s motion to suppress.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Prosecutor’s comment (i.e., “It doesn’t matter how guilty you are or how much evidence you do have or don’t have, things like that. You still get a trial.”) deemed not an impermissible request for the jury to penalize D for exercising his right to a jury trial. Eason v. State, No. 05-10-01232-CR (Tex.App.—Dallas, June 28, 2012).

Waiting for drug dog to arrive prolonged detention of D, the car’s passenger, beyond what is reasonable. State v. Ibanez, No. 03-10-00832-CR (Tex.App.—Austin, July 6, 2012).

        “[T]he video recording shows that the troopers discovered [driver’s] true identity and his outstanding warrant approximately an hour and fifteen minutes after the initiation of the traffic stop. Certainly, by that point, [driver] was under arrest and the troopers’ investigation into his identity was therefore complete. In addition, the officers had completed their search of the vehicle. However, the officers had not yet conducted the canine sniff that yielded the evidence at issue in [D’s] motion to suppress. In order for the canine sniff to be conducted, the officers continued to detain [D] for another thirty minutes. . . . [T]he record supports an implied finding by the trial court that the traffic stop concluded upon the identification and arrest of [driver]. Thus, the additional time it took for the dog to arrive prolonged the detention beyond the time reasonably required to complete the mission of the stop.”

Printout from TCIC database, which indicated two DWI convictions, deemed reliable such that officer was justified to compel taking D’s blood, even though trial court found printout confusing and incorrect. Comperry v. State, 375 S.W.3d 508 (Tex.App.—Houston [14th Dist] 2012).

        Despite the shortcomings of the Texas Crime Information Center printout, “we cannot say the trial court erred or abused its discretion by concluding that [officer] was entitled to rely on the information because the TCIC database provides ‘normally reliable’ information from a credible source.”

Officer’s search of data in cell phone taken from D to inventory in jail following his arrest deemed unreasonable; officer should have obtained warrant. State v. Gran­ville, 373 S.W.3d 218 (Tex.App.—Amarillo 2012, pet. granted).

        “[A]rrestees still retain some level of privacy interest in personal effects or belongings taken from them after arrest. . . . Evidence of the phone being off has other import, as well. That evinces some precautionary measure being taken to secure the data from curious eyes. The power button can be likened to the front door of a house. When on, the door is open and some things become readily visible. . . . Due to the potential invasiveness of the search, [D’s] status as a pretrial detainee, the fact that his stay in jail for a class C misdemeanor would be of short duration, the utter lack of any nexus between the cell phone and the crime for which [D] was jailed, and the lack of evidence suggesting that the phone and its contents posed any risk to the jail’s penalogical interests, we conclude that society would recognize his continued, and reasonable, privacy interest in the instrument despite his temporary detention.”

Weapons frisk of locked vehicle improper; officer’s belief that D (who was standing outside vehicle) was dangerous and might gain immediate control of weapons in locked vehicle deemed unreasonable. Dowell v. State, No. 05-10-00551-CR (Tex.App.—Dallas, July 12, 2012, pet. granted).

Police cannot use an unreasonable show of force to compel a defendant to open the door of his home during a “knock and talk” (an issue of first impression). Orosco v. State, Nos. 01-11-00558-CR, 01-11-00559-CR (Tex.App.—Houston [1st Dist], July 12, 2012).

        “[D] contends that he was illegally seized within his home when six to seven armed police officers surrounded his house before daylight, knocked repeatedly on doors and windows for 20 to 30 minutes, and then discharged a shotgun nearby. . . . The more difficult question we address for the first time today is whether police conduct can, in the face of a defendant’s refusal to exit his home, be considered an illegal arrest in violation of Payton [v. New York, 445 U.S. 573 (1980),] if the officers create circumstances indicating to the defendant that he must exit the home. In such a case, the police have not breached the threshold of the home, but their conduct has nonetheless coerced the defendant to exit the home where he is then subject to warrantless detention or arrest. . . . When a person in his home declines to speak to police, the officers should retreat cautiously, seek a search warrant, or conduct further surveillance.”

Officer’s belief that weapon could be concealed under banana in a cup holder not unreasonable. Butler v. State, No. 05-10-01398-CR (Tex.App.—Dallas, July 16, 2012).

        “[D] argues the search exceeded the scope of a protective search because it was unreasonable to anticipate that a weapon would be concealed under a banana. . . . In searching the truck’s center console, [officer] testified that he looked in the cup holder because it could have held a weapon such as a small derringer. There was no testimony contradicting [officer].”

        Weapons frisk of vehicle proper, despite officer’s admission that his motive was to find weapons and drugs.

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