January/February 2014 SDR – Voice for the Defense Vol. 43, No. 1

Voice for the Defense Volume 43, No. 1 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

The Sixth Circuit failed to apply the doubly deferential standard of review recognized by Supreme Court case law when it refused to credit the state court’s reasonable fact-finding and assumed counsel was ineffective where the record was silent. Burt v. Titlow, 134 S. Ct. 10 (2013).

        D filed a federal habeas petition, challenging the state court’s denial of his ineffective assistance claim. The Sixth Circuit reversed the denial, finding that the factual predicate for the state court’s decision was an unreasonable interpretation of the record. The Supreme Court reversed the Sixth Circuit on the ground that the state court’s decision that D was adequately advised to withdraw a guilty plea was reasonable and supported by the record.

        Although the record supported the state court’s factual finding that the attorney had advised withdrawal of a guilty plea only after D’s proclamation of innocence, the Sixth Circuit relied on the attorney’s statement that the decision to withdraw the plea was based on the fact that the State’s plea offer was substantially higher than the Michigan guidelines for manslaughter to conclude that the state court’s finding had been sufficiently rebutted. However, the state court was well aware of the attorney’s representations and recognized that asserting innocence and refusing to plead guilty to higher-than-normal punishment was consistent. Accepting the state’s court’s factual determination that D proclaimed innocence to the attorney, the Sixth Circuit’s Strickland analysis could not be sustained where D claimed innocence only days away from offering self-incriminating testimony in open court pursuant to a plea agreement involving an above-guidelines sentence. Moreover, the Sixth Circuit essentially ignored the strong presumption of effectiveness. Although the attorney’s conduct was “far from exemplary,” it was not ineffective.

Fifth Circuit

The evidentiary hearing was held by the district court’s discretion because the district court first found on the state-court record that the state courts committed legal error. Smith v. Cain, 708 F.3d 628 (5th Cir. 2013).

        Federal district court was not precluded under Cullen v. Pinholster, 131 S. Ct. 1388 (2011), from holding an evidentiary hearing because the district court first concluded, solely on the state-court record, that the state courts committed legal error, as required under 28 U.S.C. § 2254(d)(1), through the courts’ “unreasonable application of clearly established Federal law.” Thus, the evidentiary hearing was committed to the district court’s discretion, subject to § 2254(e)(2). Because the federal district court did not abuse its discretion in conducting the hearing, the Fifth Circuit reviewed D’s claim (of racial discrimination in jury selection) in light of the federal evidentiary record. Based on that rec­ord, the Fifth Circuit held that D had failed to carry his burden of proving that the prosecutor’s race-neutral explanations for striking two black panelists were a pretext for purposeful discrimination; the Fifth Circuit affirmed the district court’s denial of federal habeas relief.

D’s motion clearly went to the merits of his habeas claim and thus was an unauthorized successive habeas petition that the district court had no authority to consider. United States v. Zuñiga Hernandes, 708 F.3d 680 (5th Cir. 2013).

        Where D had been previously denied federal habeas relief under 28 U.S.C. § 2255, D’s post-judgment motion—purportedly a motion for relief from judgment under Fed. R. Civ. P. 60(b)(6)—was a successive habeas petition that the district court could not consider unless COA authorized its filing. Where a Rule 60(b)(6) motion advances one or more substantive claims, as opposed to a merely procedural claim attacking some defect in the integrity of the federal habeas proceedings, the motion should be construed as a successive § 2255 motion. The Fifth Circuit dismissed D’s appeal.

A violation of the prophylactic rules of Miranda and its prog­eny does not require suppression of the physical fruits of otherwise voluntary statements. United States v. Gonzalez-Garcia, 708 F.3d 682 (5th Cir. 2013).

        Even if asking D for consent to search house was an “interrogation” within Miranda v. Arizona, 384 U.S. 436 (1966), and Edwards v. Arizona, 451 U.S. 477 (1981), any Edwards violation arising from asking consent after D invoked his right to counsel did not require the suppression of marijuana found in the house. Nor did the Miranda/Edwards violation automatically render D’s consent to search involuntary. The Fifth Circuit affirmed the conviction based on the partial denial of D’s motion to suppress.

Lay witnesses are permitted to give opinion testimony on a defendant’s mental state. United States v. Heard, 709 F.3d 413 (5th Cir. 2013).

        In bribery/fraud/tax-evasion case, district court did not abuse its discretion in allowing first defendant’s employee to testify that in his opinion, D was trying to get the quid pro quo of a good recommendation from a government employee. The Fifth Circuit has held that lay witnesses are permitted to give opinion testimony on a defendant’s mental state, and this testimony was rationally based on the witness’ perception as informed by his experience with D.

        (2) As to the second D, the court properly admitted evidence that D had committed bankruptcy fraud in connection with a bankruptcy petition he filed in 1994. The Fifth Cir­cuit rejected the government’s argument that the evidence was “intrinsic,” as opposed to “extrinsic” evidence subject to Fed. R. Evid. 404(b); nevertheless, the evidence was probative enough of D’s intent that it was not an abuse of discretion to admit it under Rule 404(b). The Fifth Circuit also noted that although Rule 404(b) does not require the government to give a defendant written notice of its intent to introduce Rule 404(b) evidence, it was debatable whether the notice given here was suf­fi­cient; reversal was not required because any lack of notice did not affect D’s substantial rights.

        (3) District court did not violate second D’s Confrontation Clause rights by refusing to allow him to cross-examine an IRS revenue agent’s suspension for viewing pornography on his work computer during business hours. Evidence of the motivation was simply not relevant to the agent’s bias or motivation for testifying. Nor was the evidence admissible under Fed. R. Evid. 608(b); the agent’s conduct was not clearly probative of truth­fulness or untruthfulness. Moreover, even if it were error to exclude the testimony, the error would be harmless beyond a reasonable doubt.

        (4) As to second D, district court properly excluded testimony to the effect that D regularly paid his payroll taxes; this was not habit evidence admissible under Fed. R. Evid. 406.

For purposes of the federal crime of child enticement proscribed by 18 U.S.C. § 2422(b), it is not necessary that there be communication between a perpetrator and a child or that a perpetrator request an intermediary to communicate with a minor. United States v. Caudill, 709 F.3d 444 (5th Cir. 2013).

        “[A] defendant who communicates solely with an adult intermediary can be held to violate § 2422(b).”

The good-faith exception precluded application of the exclusionary rule because there were no aggravating facts. United States v. Woerner, 709 F.3d 527 (5th Cir. 2013).

        In this child-pornography case, the Fifth Circuit declined to announce a categorical rule respecting whether the good-faith exception applies to evidence seized pursuant to a warrant, the probable-cause showing for which was based on evidence that was the product of an illegal search or seizure. The Fifth Circuit suggested that the exception might not apply if the officer behind the warrant knew or had reason to know that the information was tainted but included the information anyway without full disclosure or explanation. Suppression might likewise be justified if the officer responsible for the illegal search provided information—knowing it to be tainted but concealing that fact—to a second officer for use in a successive search warrant application. Here, however, there were no such aggravating facts.

        Furthermore, D’s two convictions for possession of child pornography and his three convictions for distribution of child pornography were not multiplicitous. Possession of child por­nography is not a lesser-included offense of distribution of child pornography, and the convictions were all based on separate acts of possession or distribution.

In Texas capital-murder trial, where D was sentenced to death for robbery/murder, the prosecutor violated D’s Fifth Amendment rights by his “extraordinarily extensive comments” on D’s failure to testify. Gongora v. Thaler, 710 F.3d 267 (5th Cir. 2013), reh’g en banc denied, 726 F.3d 701 (5th Cir. Tex. 2013).

        Moreover, the error was not harmless in this case. The Fifth Circuit reversed the district court’s judgment denying federal habeas relief, granted D’s habeas petition, vacated his conviction, and ordered him released from custody unless the state retried him (or he pleaded guilty) within six months of the issuance of the Fifth Circuit’s mandate.

Court of Criminal Appeals

Strickland requires the applicant claiming ineffective assistance to establish, by a preponderance of the evidence, that the harm resulting from counsel’s deficiency undermines the confidence in the trial’s outcome. Ex parte Parra, No. AP-76,871 (Tex.Crim.App. Sept 18, 2013).

        D sought habeas relief on the grounds that his trial counsel was ineffective for failing to object to the judge’s response to a jury note and for failing to question the venire to reveal one juror’s alleged experience as the victim of both domestic violence and sexual assault of a child. CCA held that D failed to satisfy the requirements of Strickland v. Washington, 466 U.S. 668 (1984), and denied relief.

        A judge’s response to a jury’s question regarding the consequences if two of the jurors walked out of deliberations was, although assertive, neutral, and appropriate in stating that, in essence, he would hold them in contempt, confine them in jail, and bring them to court the following day to deliberate further with their peers; therefore, counsel’s allegedly ineffective failure to object was not prejudicial. Although it was not clear that counsel was given notice of the jury’s note’s existence and contents before the judge addressed the jury, as required by Tex. Code Crim. Proc. art. 36.27, it was not probable that had counsel objected and been given an opportunity to craft a more subtle message, the outcome of the proceeding would have been different. Furthermore, there was no showing of prejudice from counsel’s allegedly deficient performance in voir dire.

The trial court’s order mandating involuntary medication of D was not permitted under the competency-to-be-executed statute and did not meet the requirements of other statutes that may permit involuntary medication; but for that unauthorized order, the evidence shows that D is incompetent to be executed. Staley v. State, No. AP-76,798 (Tex.Crim.App. Sept 11, 2013).

        The issue before CCA was whether state or federal law disallows the execution of a mentally ill inmate who was previously found incompetent to be executed and later became competent only after he was involuntarily medicated pursuant to a court order. CCA concluded that it had jurisdiction over this appeal pursuant to the current competency-to-be-executed statute, Tex. Code Crim. Proc. art. 46.05, including jurisdiction to review the involuntary-medication order to the extent that it is intertwined with the trial court’s ruling that appellant is now competent to be executed. As to the merits of the appeal, CCA held that the trial court’s order mandating involuntary medication of D was not permitted under the competency-to-be-executed statute and did not meet the re­quirements of other statutes that may permit involuntary medi­cation. Because the trial court lacked authority to render it, CCA vacated the trial court’s involuntary-medication order. Furthermore, CCA determined that but for that unauthorized order, the evidence conclusively shows that D is incompetent to be executed; therefore, CCA also vacated the trial court’s order finding D competent to be executed.

A defendant must raise a speedy-trial claim unambiguously in trial court to preserve it for appeal. Henson v. State, 407 S.W.3d 764 (Tex.Crim.App. 2013).

        D appealed his aggravated assault conviction. CCA affirmed the First Court of Appeals, holding that a defendant must raise a speedy-trial claim in the trial court to preserve that issue for appellate review. CCA held that the preservation requirements applied to D’s Sixth Amendment speedy-trial claims. CCA reasoned that a speedy-trial demand should be unambiguous. D’s announcement that he was ready for trial was not a demand for a speedy trial. D’s actions were inconsistent with a demand for a speedy trial, as he did not file a speedy-trial motion, did not request a hearing on the delays, and explicitly agreed to each and every reset in the case.

The game warden’s stop-and-frisk violated the Fourth Amendment because D’s refusal to cooperate was accompanied only by his extreme nervousness and the warden’s hunch that D was up to no good. Wade v. State, No. PD-1710-12 (Tex.Crim.App. Sept 11, 2013).

        The trial court denied D’s motion to suppress, and the Tenth Court of Appeals upheld the denial. CCA reversed and remanded. CCA held that the consensual encounter between D and the game warden escalated into a Fourth Amendment detention when the warden ordered D out of his truck for a pat-down. The warden did not have reasonable suspicion to detain and frisk D based only on D’s nervousness and his withdrawal of his consent to the encounter by demanding to know why he was being targeted, and therefore D’s statement about the pipe in his truck was fruit of the poisonous tree and could not provide probable cause for searching his truck.

The judge’s clear error in shackling D was not a constitutional error because there is no evidence the jury saw his restraints. Bell v. State, No. PD-0087-12 (Tex.Crim.App. Sept 18, 2013).

        It has been held that the Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a finding they were justified. The trial judge here did not make any particularized finding articulating the reasons for shackling D, and the statement that everyone in custody had the same necessity of restraint did not suffice; it was clear error to order D shackled. However, CCA could not find a reasonable probability that the jury saw D’s restraints, and thus the error in shackling him was not of constitutional dimension.

        COA incorrectly applied the constitutional error harm analysis under Tex. R. App. P. 44.2(a), and not Rule 44.2(b), but CCA did not remand because by finding the error harmless under the greater standard, COA held the shackling did not affect D’s substantial rights. CCA affirmed COA.

The fact that D was taking pictures at a public swimming pool did not in any way suggest that he was, had been, or soon would be engaged in criminal activity. Arguellez v. State, 409 S.W.3d 657 (Tex.Crim.App. 2013).

        D was charged with multiple offenses of improper photography. The trial court denied D’s motions to suppress, and then he plead nolo contendere to both indictments. After a punishment hearing, the trial court sentenced him to 20 months’ confinement in state jail and imposed a $2,500 fine in each case, with the sentences to run concurrently. On direct appeal, D’s sole issue asked, “Does merely taking photographs at a public pool give police reasonable suspicion to stop appellant’s vehicle?” COA overruled the issue and affirmed the trial court. CCA reversed and remanded.

        CCA granted review on the following: “Is ‘crime afoot’ when a person takes pictures at a public pool permitting a police officer to conduct an investigative detention?” CCA concluded crime was not afoot. There was insufficient evidence to establish reasonable suspicion for the stop of D’s vehicle, and the investigatory detention of him was not supported by reasonable suspicion; a generally matching description of his vehicle simply connected him to the “suspicious” photography, but did not in any way suggest that by taking pictures in a public place, he was, had been, or soon would be engaged in criminal activity.

When the trial court failed to include the certification of D’s right to appeal in the record, the appellate clerk correctly notified the trial clerk and directed that the certification be filed, pursuant to Tex. R. App. P. 37.1 and 34.5(c)(1); when the record was not supplemented within 30 days, the next step for the appellate court, under Rules 34.5(c)(2) and 44.4, was to order the trial court to provide the certification rather than dismissing D’s appeal. Cortez v. State, No. PD-1349-12 (Tex.Crim.App. Sept 18, 2013).

In D’s sexual assault trial, the court improperly admitted extraneous-offense pornographic images over D’s objection; the images referred to a crime for which D was not on trial. Pawlak v. State, No. PD-1616-12 (Tex.Crim.App. Sept 18, 2013).

        At D’s trial for sexual assault, sexual assault of a child, and attempted sexual assault, the trial court admitted thousands of extraneous-offense pornographic images over D’s objection under Tex. R. Evid. 403. COA affirmed. CCA reversed and remanded for a harm analysis.

        The admitted images referred to a crime for which D was not on trial—possession of child pornography. The evidence was unfairly prejudicial, as it invited the jury to convict D of sexually assaulting or attempting to sexually assault the victims because he possessed child pornography. As the State had multiple victims testify about specific incidents of inappropriate sexual behavior and the similarities in their stories were striking, the State’s need for the extraneous-offense evidence was not great.

At a murder trial where D claimed self-defense, the trial court erred by instructing the jury on provocation under Tex. Penal Code § 9.31(a)(4) absent evidentiary support. Reeves v. State, No. PD-1711-12 (Tex.Crim.App. Sept 18, 2013).

        At trial, D admitted he stabbed the victim but claimed self-defense. The judge instructed the jury on self-defense; but, over D’s objection, he also instructed the jury on provocation as a qualification on the self-defense issue. The jury rejected D’s self-defense claim and found him guilty of murder. D raised one claim on appeal: The judge erred by including the provo­cation instruction. COA agreed and, finding that D had suffered some harm under Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1985), reversed D’s conviction and ordered a new trial. CCA agreed that D suffered actual harm when his self-defense claim was improperly limited by the inclusion of an unwarranted provocation instruction.

        The evidence of guilt was not so overwhelming that the erroneous provocation instruction was harmless. The evidence concerning self-defense was hotly contested, and D’s version of events was plausible at a minimum and perhaps exonerating. The prominence of the provocation instruction within the charge magnified its harm. Furthermore, the State misspoke about the law of provocation and then told the jury to pay careful attention to it.

Given the record as a whole, D did not waive appellate review of the court’s ruling on her motion to suppress when counsel later stated “no objection” to the evidence. Thomas v. State, 408 S.W.3d 877 (Tex.Crim.App. 2013).

        D was convicted of felony possession of marijuana. She initially preserved error with a motion to suppress the evidence, which she claimed was seized in an illegal roadside detention. But when that evidence was proffered by the State during the punishment proceeding following her guilty plea, her attorney declared that he had “no objection” to the admission of the evidence. The trial court manifested its understanding that D persisted in her wish to appeal the denial of her pretrial motion to suppress and expressly granted her permission to do so. COA nevertheless refused to reach the merits of her claim, relying on CCA precedent to hold that her attorney “waived” the previously preserved objection to the evidence for purposes of appeal when he declared “no objection.” CCA reversed COA.

        CCA has long held that such an affirmative statement con­stitutes a “waiver” of the right to raise on appeal the error that was previously preserved. D did not argue that CCA should abolish it—only that CCA should qualify it, as several Texas appellate courts have done. Several courts of appeals have identified circumstances under which to deviate from the principle that a statement of “no objection” will serve to “waive” an earlier-preserved claim of error in failing to grant a motion to suppress.

        The rule that a later statement of “no objection” will forfeit earlier-preserved error is context-dependent. Stating that D had “no objection” to certain evidence during the punishment phase, and D’s signature on the boilerplate waiver of appeal, did not mislead the court into believing that she intended to waive her right to appeal, much less that she meant to forfeit the particular complaint she took pains to litigate in her pretrial motion to suppress.

The trial court erred by ordering D to pay court costs without finding that he had resources to pay for his court-appointed attorney; however, D expressly waived his objection. Wiley v. State, 410 S.W.3d 313 (Tex.Crim.App. 2013).

        After finding that D was indigent and appointing counsel for him, the court accepted his guilty plea for the offense of hindering apprehension and sentenced him to eight years’ imprisonment. Thereafter, the trial court suspended D’s sentence and imposed community supervision. Without making a finding that D had the present resources to repay the county for his appointed trial attorney, the trial court ordered him to pay court costs that, according to a bill of costs attached to the judgment, included the attorney fees. D did not appeal at the time of the imposition of community supervision. When his community supervision was later revoked, he appealed and com­plained that the evidence had been insufficient to support the order to pay his appointed lawyer for the initial plea proceedings. COA acknowledged that the evidence was insufficient to order payment of those attorney fees, but held that D procedurally defaulted this claim by failing to object in trial court when community supervision was imposed. CCA affirmed.

        Because the trial court failed under Tex. Code Crim. Proc. art. 26.05(g) to find that D’s financial status changed after initially finding him indigent, the record was insufficient to support the order of attorney fees. A reviewing court may inquire whether the record rationally supports an obligation to pay attorney fees even in the absence of an objection in trial court. However, CCA held that D did procedurally default his claim, albeit on a basis different than COA relied. D forfeited his claim because he failed to bring it in a direct appeal from the order originally imposing community supervision.

A subsequent habeas application must establish not only that a new legal basis for relief exists but also that the facts are at least minimally sufficient to bring D within the ambit of that new legal basis. Ex parte ­Oranday-Garcia, 410 S.W.3d 865 (Tex.Crim.App. 2013).

        CCA dimissed D’s habeas petition: “[I]t is enough to declare a subsequent [Tex. Code Crim. Proc. art. 11.07, § 4(a)(1)] application abusive . . . if it fails to make out a prima facie case for relief under the new law that it identifies.” D invoked a new law under Padilla v. Kentucky, 559 U.S. 356 (2010), but did not establish that the new law applied to the facts of his case; Padilla could not apply to him in any event because other case law held Padilla did not apply retroactively.

In an aggravated robbery trial, a jury could have inferred that the store clerk was threatened or placed in fear of imminent bodily injury or death, even though she did not realize D had a firearm, because when she opened the register to make change, D reached over the counter and took all the money; that action was a menacing indication of something dangerous. Boston v. State, 410 S.W.3d 321 (Tex.Crim.App. 2013).

        Also, the clerk testified that she feared she could have been injured.

Court of Appeals

Counsel’s failure to procure a witness’ testimony by dep­osition prejudiced D; D’s conviction was dependent on the complainant’s credibility, and the eyewitness testimony would have corroborated the most important points of D’s story and contradicted complainant. Frangias v. State, No. 14-10-01090-CR (Tex.App.—Houston [14 Dist] Sept 26, 2013).

        On original submission, COA held that D’s attorneys’ performance did not fall outside the broad range of prevailing professional norms. CCA reversed, holding that “by any view of the evidence,” counsel failed to render reasonable professional assistance. CCA remanded for COA to determine whether D was prejudiced.

        COA here found a reasonable probability that but for his attorneys’ failure to take the steps to procure and introduce the deposition testimony of a crucial witness, the result of D’s sexual assault trial would have been different. There was no physical evidence; and the eyewitness would have testified that although D assisted the drunk complainant upstairs and delivered towels to her room, he did not enter. COA reversed D’s conviction and remanded to the trial court.

Relying on Wiley, above, COA held that D waived her objection to attorney’s fees. Riles v. State, No. 07-12-00386-CR (Tex.App.—Amarillo Oct 7, 2013, reh’g denied).

        “[A]ppellant [was] placed on community supervision. Appearing in the order manifesting that decision was the obligation for appellant to pay attorney’s fees. Furthermore, she and her attorney acknowledged the obligation in the plea admonishments and waivers signed by both as well as in her application for probation. . . . Though she could have appealed from that decision and questioned the sufficiency of the evidence underlying the obligation to pay such fees, she did not. Instead, she waited to do so until after the trial court revoked her probation, adjudicated her guilt, and levied sentence. To conform to [CCA precedent], we cannot but hold that the delay caused appellant to forfeit the claim now before us. . . . It may well be that the Court of Criminal Appeals wanted to include within the category of jurisdictional error any complaint which could have been appealed when a defendant is given deferred adjudication but of which the defendant may not have known for some reason. But we leave it to that court to clarify its desire, if any.”

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