January/February 2015 SDR – Voice for the Defense Vol. 44, No. 1

Voice for the Defense Volume 44, No. 1 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

Police generally may not without a warrant search information on a cell phone seized from an individual who has been arrested. Riley v. California, 134 S. Ct. 2473 (2014).

        In both Ds’ cases, the contents of their cell phones were searched after they were arrested, and evidence obtained from the phones was used to charge them with additional offenses. The trial courts denied their motions to suppress the evidence, and both Ds were convicted. The California Court of Appeal affirmed; the First Circuit reversed the denial of the motion to suppress and vacated the relevant convictions. The U.S. Supreme Court affirmed the judgment suppressing evidence from a phone, and reversed and remanded the judgment affirming the conviction.

        The Supreme Court unanimously held that under the Fourth Amendment, police officers generally could not without a warrant search digital information on cell phones seized from defendants as incident to the defendants’ arrests. While the officers could examine the phones’ physical aspects to ensure that the phones would not be used as weapons, digital data stored on the phones could not itself be used as a weapon to harm the arresting officers or to effectuate the defendants’ escape. Further, the potential for destruction of evidence by remote wiping or data encryption was not shown to be prevalent and could be countered by disabling the phones. Moreover, the immense storage capacity of modern cell phones implicated privacy concerns with regard to the extent of information that could be accessed on the phones.

D’s claim that dismissing a juror in her murder trial who disagreed with the other jurors violated the Sixth Amendment was not barred from further review. Williams v. Johnson, 134 S. Ct. 2659 (2014).

        The entire Court opinion stated: “On petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit. Motion of petitioner leave for leave to proceed in forma pauperis and petition for writ of certiorari granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Ninth Circuit for consideration of petitioner’s Sixth Amendment claim under the standard set forth in 28 U. S. C. § 2254(d).”

Habeas relief was improper because Supreme Court case law did not clearly establish that a defendant apprised of the possibility of conviction on an aiding-and-abetting theory could be deprived of adequate notice by a prosecutorial decision to focus on another theory of liability at trial. Lopez v. Smith, 135 S. Ct. 1 (2014).

        The Court unanimously reversed and remanded the Ninth Circuit’s grant of federal habeas relief, saying the Ninth Circuit failed to apply the deferential standard of review required by 28 U.S.C. § 2254(d) when it granted relief from a state murder conviction on the ground that the prosecutor’s request for an aiding-and-abetting instruction at the jury-instruction conference violated a putative constitutional right to prior notice of the government’s theory of prosecution—a right that has been recognized in the court of appeals’ own precedents, but not established by a Supreme Court holding. The older precedent cited by the Ninth Circuit stood for nothing more than the general proposition that a defendant must have adequate notice of the charges against him, and that proposition was too abstract to address the specific question presented. “When a state prisoner seeks federal habeas relief on the ground that a state court, in adjudicating a claim on the merits, misapplied federal law, a federal court may grant relief only if the state court’s decision was ‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.’ 28 U. S. C. § 2254(d)(1). We have emphasized, time and again, that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, prohibits the federal courts of appeals from relying on their own precedent to conclude that a particular constitutional principle is ‘clearly established.’”

Fifth Circuit

Texas state courts did not act unreasonably in rejecting first-degree-murder D’s claim of suppression of favorable evidence under Brady v. Maryland, 373 U.S. 82 (1963), of a jailhouse confession to the murder by D’s accomplice. Pitonyak v. Stephens, 732 F.3d 525 (5th Cir. 2013).

        First, it was not unreasonable for the state courts to conclude that the evidence—contained in a jail counselor’s notation in accomplice’s jail file—was not suppressed within the meaning of Brady, as Supreme Court precedent was uncertain as to whether a mental health professional is encompassed in the Brady fold. Second, it was not unreasonable for the state courts to conclude that the evidence was not material, as there was substantial evidence that an alternate-perpetrator defense would not have been pursued or, if pursued, that it would have worked. Accordingly, the Fifth Circuit affirmed the denial of federal habeas relief.

One D’s conviction for Medicare-fraud conspiracy in one case was not double-jeopardy-barred by his conviction for Medicare-fraud conspiracy in another case; under the five-factor test applicable to such inquiries, there were two separate conspiracies, hence no double-jeopardy violation. United States v. Jones, 733 F.3d 574 (5th Cir. 2013).

        Nor was there a multiplicity problem. Although D was indicted on two counts of conspiracy, one was conspiracy under 18 U.S.C. § 371, one was conspiracy under 18 U.S.C. § 1349; because each of these had at least one element that the other did not, there was no multiplicity problem.

        (2) The district court did not abuse its discretion in denying another D’s motion to substitute counsel, filed only 13 days before trial was to begin. Although D had a constitutional interest in the counsel of her choice, that had to be balanced against the needs of fairness and against the demands of the district court’s calendar. The Fifth Circuit agreed with the district court that the balance of factors weighed against granting the substitution.

In felon-in-possession trial, district court abused its dis­cretion in granting a new trial based on allegedly improper prosecutorial remarks, given the (1) substantially appropriate nature of the prosecutor’s comments, (2) cu­ra­tive measures taken by the district court, (3) lack of any real prejudice from the comments, and (4) strong government case. United States v. Poole, 735 F.3d 269 (5th Cir. 2013).

        The Fifth Circuit reversed the grant of a new trial and remanded with instruction to reinstate the jury verdict and proceed to sentencing.

In trial on drug and gun charges, where government used five of its seven peremptory challenges on African-Americans and explained these strikes by relying in whole or in part on the veniremembers’ demeanor, dis­trict court did not err in accepting the explanations with­out making specific record findings about the government’s demeanor claims. United States v. Thompson, 735 F.3d 291 (5th Cir. 2013).

        Agreeing with the Eleventh Circuit and disagreeing with the Seventh Circuit, the Fifth Circuit held that Snyder v. Louisiana, 552 U.S. 472 (2008), does not require a trial court to make record findings of a veniremember’s demeanor when that is the putative basis of a contested strike.

Where Texas death-sentenced D claimed ineffective assistance based on counsel’s failure to present mitigating evidence regarding his troubled background and mental health history, the state habeas court did not unreasonably apply federal law (namely, the deficiency prong of Strickland v. Washington, 466 U.S. 668 (1984)) by concluding that counsel performed an adequate mitigation investigation. Charles v. Stephens, 736 F.3d 380 (5th Cir. 2013).

        Additionally, although it was a closer question, the state habeas court did not unreasonably apply Strickland’s prejudice prong by concluding that any deficiencies did not prejudice D. Nor did the state habeas court unreasonably determine the facts in light of the evidence to justify relief under 28 U.S.C. § 2254(d)(2). The Fifth Circuit affirmed the district court’s denial of federal habeas relief.

In healthcare-fraud prosecution, D’s conviction and sentence for conspiracy under 18 U.S.C. § 371 and conviction and sentence for conspiracy under 18 U.S.C. § 1349 were not multiplicitous. United States v. Njoku, 737 F.3d 55 (5th Cir. 2013).

        Each statute contained an element the other did not, and the jury instructions did not effectively render one offense a lesser-included offense of the other. Nor was D’s § 1349 conspiracy conviction double-jeopardy-barred by her acquittal, in an earlier case, on another § 1349 conspiracy charge; under the five-factor test used by the Fifth Circuit, there were two sep­a­rate agreements and two separate conspiracies. Finally, D’s acquittal on the § 1349 conspiracy charge in the earlier case did not have a collateral-estoppel effect on her charges in the instant case, as the previous jury did not necessarily decide that D did not know her paid referrals were illegal.

        (2) District court did not abuse its discretion in excluding the testimony of a person who testified at a previous trial but then invoked his privilege against self-incrimination in the instant case. Nor did the exclusion of this testimony violate D’s constitutional right to present a complete defense.

At trial for illegal reentry after deportation, where D’s defense was to create reasonable doubt about his alienage on the ground that D might have acquired U.S. cit­i­zen­ship derivatively through his mother, it violated D’s Confrontation Clause rights to admit against him an af­fi­davit executed by his now-deceased grandmother in connection with a 1968 document-fraud investigation. United States v. Duron-Caldera, 737 F.3d 988 (5th Cir. 2013).

        It was the government’s burden to show that this document was not “testimonial” for purposes of the Confrontation Clause, and the government failed to meet that burden. Even though the document was not originally generated to accuse D of wrongdoing, “testimonial” documents are not limited to those whose primary purpose is to accuse a targeted individual of engaging in criminal conduct. Because the error in admitting the affidavit was not harmless beyond a reasonable doubt, the Fifth Circuit vacated D’s conviction and remanded for a new trial.

At trial for illegal reentry after deportation, district court did not abuse its discretion in giving modified Allen charge to jury that reported itself deadlocked. United States v. Andaverde-Tiñoco, 741 F.3d 509 (5th Cir. 2013).

        On plain-error review, the modified Allen charge was not so linguistically deficient as to warrant reversal, even though it lacked language about the unique posture of the case (i.e., that all the basic elements of the charged offense were stipulated to and only D’s affirmative defense of duress was at issue). Nor were the circumstances surrounding giving the Allen charge so coercive as to warrant reversal.

        (2) At trial for illegal reentry after deportation, where D’s defense was duress (i.e., that he had been forced to swim across the Rio Grande River at gunpoint by robbers), it was plain error (under Doyle v. Ohio, 426 U.S. 610 (1976), and its progeny) to permit the government to impeach that defense with D’s post-Miranda silence. Moreover, the Doyle error affected D’s substantial rights; however, under the circumstances, the error did not seriously affect the fairness, integrity, and public reputation of judicial proceedings. The Fifth Circuit declined to exercise its discretion to correct the error on plain-error review.

        (3) The district court abused its discretion by refusing to admit, at sentencing, an affidavit supporting D’s request for a downward departure for coercion or duress. The district court’s stated basis was that the affidavit was hearsay, but evidence is not inadmissible at sentencing simply on the basis that it is hearsay. Nevertheless, any error in failing to admit the affidavit was harmless.

Court of Criminal Appeals

The Legislature intended to disallow dual convictions under Tex. Penal Code § 21.02 for continuous sexual abuse of a child and for a lesser-included offense, including criminal attempt to commit a predicate offense. Price v. State, 434 S.W.3d 601 (Tex.Crim.App. 2014).

        COA examined the statute’s language and, determining that the Legislature could not have intended to permit both convictions because that would violate a defendant’s rights against double jeopardy, held that the statute defining the offense of continuous sexual abuse of a young child does not permit a defendant to be convicted both of that offense and of a criminal attempt to commit a predicate offense under that statute. COA vacated the conviction for attempted aggravated sexual assault against D. CCA affirmed COA.

        “We agree with the court of appeals’ judgment vacating appellant’s conviction for criminal attempt and with its ultimate assessment that permitting both convictions would violate his constitutional rights against double jeopardy. . . . We reach that conclusion, however, by first deciding that the statute’s text is ambiguous with respect to whether both convictions should be permitted, and we then consider the pertinent extra-textual factors. See Tex. Penal Code § 21.02(c); Tex. Gov’t Code § 311.023. . . . [W]e conclude that the statute’s legislative intent was to permit one punishment where continuous sexual abuse is alleged against a single victim within a specified time frame. We also conclude that this intent extends to the statute’s enumerated predicate offenses and to criminal attempts to commit those predicate offenses.”

D’s conviction for tampering with evidence was properly reversed because the State alleged only that D destroyed the evidence (by swallowing a baggie and pills), then presented no evidence that they were in fact destroyed by their passage into D’s body, or evidence from which their destruction could be inferred. Rabb v. State, 434 S.W.3d 613 (Tex.Crim.App. 2014).

        COA reversed D’s conviction for tampering with physical evidence under Tex. Penal Code § 37.09(a)(1) and rendered an acquittal. The State filed a petition asking whether COA (1) erred in failing to find overlap in the terms “conceals” and “de­stroys,” (2) erred in not permitting the fact finder to infer the evidence was destroyed, and (3) was required to reform the judgment to a conviction on a lesser-included offense rather than acquit.

        CCA held that while there is some overlap between “conceals” and “destroys” for purposes of § 37.09(a), no rational trier of fact could have found that D destroyed the evidence in this case. However, because COA did not have the benefit of Thornton v. State, 425 S.W.3d 289 (Tex.Crim.App. 2014), CCA remanded for COA to consider whether it could have reformed D’s conviction to attempted tampering with evidence rather than entering a judgment of acquittal.

CCA granted habeas relief because D met her burden in satisfying both prongs of the Strickland test to establish that she received ineffective assistance. Ex parte Overton, 444 S.W.3d 632 (Tex.Crim.App. 2014).

        D, convicted of capital murder for the death of a four-year-old, met the two Strickland prongs: Defense counsel’s performance fell below a reasonable standard, and there was a reasonable probability that the outcome of D’s trial would have been different but for that performance. First, counsel admittedly failed to present the testimony of the leading expert on hypernatremia, or sodium intoxication. Second, there was a reasonable probability that counsel’s performance affected the result of the trial. The doctor was extremely well qualified; his deposition not only refuted much of the State’s testimony, but also established that he was better informed on the subject of salt intoxication than the State’s expert. Because CCA granted relief on D’s first claim of ineffective assistance, there was no need to address the second issue of whether the State failed to disclose exculpatory evidence. CCA reversed D’s conviction and remand her case to the trial court for a new trial.

D’s guilty plea was unknowing and involuntary because, on further inspection, the seized substances did not con­tain illicit materials. Ex parte Mable, 443 S.W.3d 129 (Tex.Crim.App. 2014).

        D pleaded guilty to possession of a controlled substance and was sentenced to two years’ imprisonment pursuant to a plea bargain. He did not appeal. Soon after, the Houston Forensic Science Center finished testing the seized substances and discovered that they did not actually contain illicit materials. In response, D filed a habeas application. The State and trial court both agreed that he was entitled to relief on the basis of “actual innocence.” CCA granted relief, but on the basis of an unknowing and thus involuntary plea.

        “At least in Texas cases, the term ‘actual innocence’ applies only in circumstances where the accused did not actually commit the charged offense or any possible lesser included offenses. In this case, the applicant pleaded guilty to possession of a controlled substance. Therefore, it is possible that he intended to possess a controlled substance (which is not alone an offense) or that he attempted to possess a controlled substance (which is a lesser included offense of possession).” However, D was entitled to relief. Because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts; the defendant must have “sufficient awareness of the relevant circumstances.” The standard is whether the plea is a voluntary and intelligent choice among the alternative courses of action open to the defendant. In this case, all parties involved, including D, incorrectly believed D had been in possession of drugs. “This fact is crucial to this case, and while operating under such a misunderstanding, [D] cannot be said to have entered his plea knowingly and intelligently.” Accordingly, CCA held that D should be allowed to withdraw his plea. CCA set aside the judgment and remanded D to the sheriff to answer the charge against him.

COA did not have the benefit of CCA’s recent decision regarding court costs; CCA vacated COA’s judgment and remanded. Shaw v. State, 438 S.W.3d 582 (Tex.Crim.App. 2014).

        D was convicted of murder and sentenced to life in prison. On appeal, he argued that the evidence was insufficient to support the $334 in court costs assessed against him. COA agreed, relying on its opinion in Johnson v. State, 389 S.W.3d 513 (Tex.App.—Houston [14th Dist.] 2012). The State filed a petition for review to which CCA replied: “We recently handed down our opinion in Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014), in which we set forth a roadmap for resolving questions regarding court costs. . . . The Court of Appeals in the instant case did not have the benefit of our opinion in Johnson. Accordingly, we grant the State’s petition for discretionary review, vacate the judgment of the Court of Appeals, and remand this case to the Court of Appeals in light of our opinion in Johnson. No motion for rehearing will be entertained.”

COA properly reached the merits of D’s argument because the issue of reliability of the expert’s testimony was preserved for review; COA also properly applied the Rules of Evidence and law regarding the admissibility of expert testimony. Bekendam v. State, 441 S.W.3d 295 (Tex.Crim.App. 2014).

        D was convicted for DWI and sentenced to 20 years in prison and ordered to pay a $10,000 fine. She appealed, claiming that the trial court erred in admitting the expert testimony of the Department of Public Safety forensic scientist who tested the blood sample and issued the toxicology report. COA held that the trial court did not abuse its discretion in admitting the testimony. D filed this petition arguing that COA incorrectly applied the law for admissibility of expert testimony, misconstrued Tex. Evid. R. 702, and decided an important question of law that was not settled. The State filed a cross-petition, claiming that COA failed to address its argument that D’s error was not preserved. CCA affirmed COA.

        CCA held that D’s issue was preserved for review and overruled the State’s ground. CCA also overruled D’s grounds for review, citing evidence that the expert testimony was reliable.

D’s complaint was preserved for review; D was not re­quired to object to the exclusion of a self-defense in­struc­tion with specificity to put the trial court on notice as to which theory of self-defense he was requesting because that was the only defense available to D. Bedolla v. State, 442 S.W.3d 313 (Tex.Crim.App. 2014).

        D was convicted of aggravated assault with a deadly weapon and leaving the scene of an accident involving injury; the jury assessed a sentence of three years’ imprisonment and a $10,000 fine for aggravated assault and a five-year probated sentence and $5,000 fine for leaving the scene. D appealed the court’s failure to include a self-defense jury instruction. COA held that the issue was not preserved for review. D filed this petition, which CCA granted to consider whether COA erred in holding that D failed to preserve his complaint regarding the trial court’s refusal to submit a self-defense with deadly-force instruction because uncharged contemporaneous conduct could have given rise to a self-defense instruction. CCA reversed COA and remanded for consideration of the merits of D’s issue.

        “The State argues that Appellant failed to preserve error because he did not inform the trial court of the specific basis of his self-defense claim. . . . [T]here was only one defense—self-defense with deadly force—that would justify the conduct with which Appellant was charged. The court of appeals focused on the evidence of Appellant hitting [complainant], which was contextual extraneous-offense evidence and not evidence of the charged offense. Only deadly-force self-defense would have justified Appellant’s conduct of aggravated assault with a deadly weapon as charged in the indictment. There would be no reason for Appellant to request an instruction on a defense to conduct with which he was not even charged. The court of appeals should have focused on the charged offense rather than considering the uncharged conduct in analyzing Appellant’s request for a jury instruction.”

D was not entitled to a jury instruction on voluntary con­duct because he knowingly possessed the skimmer, and the jury was entitled to determine whether he knew it was contraband. Ramirez-Memije v. State, 444 S.W.3d 624 (Tex.Crim.App. 2014).

        A jury found D guilty of fraudulent possession of identifying information under Tex. Penal Code § 32.51(b) by use of a skimmer. D appealed, arguing that the court erred in failing to instruct the jury on voluntary conduct under § 6.01 and on presumptions under § 2.05, and erred in admitting testimony that he was from Mexico and was working illegally in the United States. COA reversed the trial court and remanded. The State filed this petition, which CCA granted to consider this question: Is a defendant entitled to an instruction on voluntary possession when he claims he did not know the forbidden nature of the thing he possessed, or is his defense merely a negation of his knowledge of surrounding circumstances that is required by § 6.03(b)?

        CCA held that D was not entitled to the requested instruction, reversed COA, and remanded to COA for consideration of D’s remaining issues. “Criminal responsibility is established if the person voluntarily engaged in the act, omission, or possession with the mental state required for the specific offense. Texas Penal Code § 6.02(a). While a voluntary act is usually some sort of bodily movement, possession is shown by care, custody, control, or management. Id. at § 1.07(a)(39). Thus, knowingly receiving an object is a voluntary act under Section 6.01(b); knowing the forbidden nature of the object that is knowingly possessed is the culpable mental state under Section 6.03. . . . If there was evidence that the skimmer had been slipped into Appellant’s bag without his knowledge, then there may be a question of voluntary possession and Appellant may have been entitled to an instruction regarding the requirement of a voluntary act. But here it is undisputed that Appellant knowingly had the skimming device, which contained the identifying information, in his possession. Appellant knowingly received the skimming device and knew that he was transferring the device. This satisfies the requirement of a voluntary act under Section 6.01. . . . Appellant said that he did not know that his conduct was illegal or that the device was contraband because he did not know what the device was or what was on the device. . . . The jury heard this testimony and the testimony of agents who said that Appellant told them that he was given cash and electronics for transferring the device. This evidence goes to the mens rea of intent to harm or defraud, upon which the jury was properly instructed.”

Court of Appeals

After acquitting D of tampering with physical evidence, COA determined that the judgment should not be reformed to convict him of the lesser-included attempt to tamper because there was no basis for a conclusion that the trial court necessarily determined that D acted with the specific intent to destroy the baggie or pills, rather than acting only knowingly. Rabb v. State, 446 S.W.3d 892 (Tex.App.—Amarillo 2014, pet. granted) (see above).

        “Finding we may not reform the judgment of conviction, we leave undisturbed our previous judgment of acquittal.”

The evidence was insufficient to support a conviction for making a false entry in a governmental record based on a federal tax return that D prepared because a federal tax return is not included in the governmental records protected under Tex. Penal Code § 37.10(a), in that it is not a document promulgated by the state, county, municipality, or political subdivision of the state, or any branch thereof. Dean v. State, No. 12-12-00410-CR (Tex.App.—Tyler Oct 22, 2014).

        D appealed her conviction for making a false entry in a governmental record. “Because the evidence is legally insufficient to support the conviction, we reverse and render a judgment of acquittal.”

Trial court abused its discretion by excluding evidence of D’s good character for moral and safe conduct around young children under Tex. R. Evid. 404(a) because he was charged with aggravated sexual assault of a child, and the evidence was directly relevant to the offense. Wilson v. State, No. 01-12-01125-CR (Tex.App.—Houston [1st Dist] Nov 20, 2014).

        The error was not harmless because other than the testimony of the victim and his sister there was little evidence in the record identifying D as the perpetrator of the sexual assaults, and his sole defense was the testimony of his friends and family that such actions were not in keeping with his character. COA reversed and remanded for a new trial.

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