January/February 2018 SDR – Voice for the Defense Vol. 47, No. 1

Voice for the Defense Volume 47, No. 1 Edition

Editor: Michael Mowla

From Editor Michael Mowla:

        1. I summarize each opinion in a manner that allows readers to generally use this SDR instead of reading every opinion.

        2. If you determine that a summarized opinion is relevant to one of your cases, I urge you to read the opinion and not rely solely upon these summaries.

        3. The summaries reflect the facts and relevant holdings and do not reflect my opinion of whether the cases correctly: (1) recite the facts presented at trial; or (2) apply the law. My opinions (if any) are preceded by “Editor’s Note.”

        4. This SDR is for you. Send me suggestions on how I may improve it.

Supreme Court of the United States

No relevant opinions handed down since the last SDR.

Meanwhile, elsewhere in Washington, DC…

United States Court of Appeals for the Fifth Circuit

United States v. Farrar, No. 16-11161, 2017 U.S. App. LEXIS 24151 (5th Cir. Nov. 29, 2017) (designated for publication)

  • Under Fed. Rule Crim. Proc. 11(a), a plea of “no contest” means “I do not contest [the charge],” is a statement of unwillingness to contest and no more, and admits every essential element of the offense that is well-pleaded in the charge. Unlike Fed. Rule Crim. Proc. 11(b), which requires the court to determine that there is a factual basis for the plea, Fed. Rule Crim. Proc. 11(a) does not require that the district court find a factual basis.
  • Although a factual basis is not required for a nolo contendere plea a challenge to the legal sufficiency of an undisputed factual basis [for a plea] is a straightforward question of law, reviewed de novo. The district court’s decision to accept a nolo contendere plea is reviewed for abuse of discretion.
  • Under Miller v. California, 413 U.S. 15 (1973), the test for obscenity is whether the: (1) average person, applying contemporary community standards would find that the work in its entirety appeals to the prurient interest; (b) work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) the work in its entirety lacks serious literary, artistic, political, or scientific value.
  • Judicial estoppel is an equitable doctrine applied in the court’s discretion to prevent a party from asserting a position in a legal proceeding that is contrary to a position previously taken by him in the same or some earlier legal proceeding. The purpose is “to protect the integrity of the judicial process and to prevent unfair and manipulative use of the court system by litigants” by prohibiting parties from deliberately changing positions according to the exigencies of the moment and preventing parties from playing fast and loose with the courts.” Judicial estoppel is an equitable doctrine invoked by a court at its discretion.
  • Judicial estoppel requires: (1) the party’s position must be plainly inconsistent with its prior position; (2) the party must have convinced a court to accept the prior position; (3) the party must not have acted inadvertently; and (4) whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the op­pos­ing party if not estopped.
  • Under Brady v. United States, 397 U.S. 742, 748 (1970), waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.
  • Like a plea of guilty, under United States v. Ruiz, 536 U.S. 622, 629 (2002), a nolo contendere must be knowingly, voluntarily, and intelligently made.
  • An individual who enters a plea of nolo contendere waives all nonjurisdictional defects, and is limited to claiming that the indictment failed to state an offense, that the statute is unconstitutional, or that the statute of limitations bars prosecution.
  • An assertion that under the Eighth Amendment a sentence is grossly disproportionate “as applied” asks whether the defendant’s sentence is “grossly disproportionate”: (1) the court initially makes a threshold comparison of the gravity of the defendant’s offenses against the severity of defendant’s sentence; and (2) if the court infers from this comparison that the sentence is grossly disproportionate to the offense, the court compares the sentence received to (i) sentences for similar crimes in the same jurisdiction and (ii) sentences for the same crime in other jurisdictions.
  • Under Roper v. Simmons, 543 U.S. 551, 572 (2005), the categorical analysis under the Eighth Amendment requires: (1) the court to consider objective indicia of society’s standards to uncover whether there is a national consensus against the sentencing practice at issue; and (2) the court to determine in the exercise of its own independent judgment whether the pun­ish­ment in question violates the Constitution.


  • In 2007, pleaded guilty to 6 counts of child pornography and received 180 months in prison.
  • In May 2015, while still in prison, guards found in his workstation seven hand-drawn images depicting the [sexual] exploitation of minor females and two handwritten books describing sexual abuse of minors.
  • Farrar admits purchasing the images from other inmates and writing the books.
  • Farrar was indicted on one count of possessing six obscene de­pictions of a minor engaging in sexually explicit conduct un­­der 18 U.S.C. §§ 1466A(b)(1) & (d)(5), which requires proof of “a visual depiction of any kind, including a drawing that depicts a minor engaging in sexually explicit conduct; and is obscene.”
  • Farrar asked to be allowed to plead nolo contendere.
  • During the plea-hearing, Farrar apologized to the court for having to view the images, stating he was not “trying to hide be­hind the law and trying to come out with some appeal issue.”
  • Farrar admitted “that there [was] evidence in this case of the commission by [Farrar] of these essential elements” (of child pornography).
  • Farrar was not just silent regarding obscenity; he acted just the opposite, agreed the images are obscene, agreed there was suf­ficient evidence for every element of the offense (including obscenity); stated he had no objection to the Government’s presentation of a factual basis (which included obscenity); apologized for the court’s having to view the images, and misled the court regarding his nolo contendere plea by stating he was not trying to hide behind the law and trying to come out with some appeal issue.
  • The district judge accepted the plea of nolo contendere.
  • Over Farrar’s objection under the Eighth Amendment, he was sentenced to the ten-year minimum under 18 U.S.C. §§ 1466A(b)(1) and 2252A(b)(2), but concurrent with the child-pornography sentence he was serving and to begin from the date of the offense (May 2015) rather than sentencing (July 2016).
  • Ultimately, Farrar will serve an additional 4.5 years beyond what he is serving for the 2007 child-pornography conviction.

Editor’s Note: Farrar should have kept his mouth shut during the plea-hearing.

United States v. Hernandez, et al., Nos. 16-51226 & 16-51240, 2017 U.S. App. LEXIS 23690 (5th Cir. Nov. 22, 2017) (designated for publication)

  • Under Gall v. United States, 552 U.S. 38, 51 (2007), sentences challenged for substantive reasonableness are reviewed for abuse of discretion.
  • If a defendant fails to object at sentencing to the procedural or substantive reasonableness of the sentence, review is for plain error.
  • Under U.S.S.G. § 2B1.1(b)(11), a two-level increase is allowed if the defendant possessed or used an authentication feature to further the crime, which under 18 U.S.C. § 1028(d)(1) is any “symbol, code, image, or sequence of numbers used to determine if the document is counterfeited, altered, or otherwise falsified.”
  • A district court’s loss-calculation, and its embedded determination that the loss amount was reasonably foreseeable, are factual findings reviewed for clear error. The district court need only make “a reasonable estimate of the loss” based on its assessment of the evidence, which will not be overturned provided they are “plausible in light of the record as a whole.”
  • A sentence within the Guidelines range is presumptively reasonable, and the presumption is rebutted only if the appellant demonstrates that the sentence does not account for a factor that should receive significant weight, gives significant weight to an irrelevant or improper factor, or represents a clear error of judgment in balancing sentencing factors.

Editor’s Note: You may substitute any attorney general in office since the U.S.S.G.s were created by the Sentencing Reform Act of 1984 for Mr. Ashcroft and obtain the same result:

United States v. Pleitez, No. 16-20570, 2017 U.S. App. LEXIS 23691 (5th Cir. Nov. 22, 2017) (designated for publication)

  • To determine whether an appeal waiver applies to the issues presented, the Court considers the ordinary meaning of the waiver provision, narrowly and against the government. An appeal waiver bars an appeal if the waiver: (1) was knowing and voluntary and (2) applies to the circumstances at hand, based on the plain language of the agreement. A defendant must know that he had a right to appeal his sentence and that he was giving up that right.
  • Under Montejo v. Louisiana, 556 U.S. 778, 786 (2009), The Sixth Amendment right to counsel applies to all “critical stages” of criminal proceedings. An accused is entitled to assistance of an attorney who plays the adversarial role necessary to ensure that the proceeding itself is fair. Although an IATC claim requires a two-prong showing that representation fell below an objective standard of reasonableness and pre­ju­dice, a trial is unfair if the accused is denied counsel at a crit­ical stage of trial, and no showing of prejudice is required. If counsel is absent during a critical stage, then there is a presumption of prejudice and reversal is automatic.
  • Under Rothgery v. Gillespie Cty., Tex., 554 U.S. 191, 212 (2008), a stage is “critical” where circumstances indicate that counsel’s presence is necessary to ensure a fair process, where the accused requires aid in coping with legal problems or assistance in meeting his adversary.
  • To justify a stage as “critical,” a defendant need not explain how having counsel would have altered the outcome of his specific case, but the court considers whether the substantial rights of a defendant may be affected during the proceeding.
  • Sentencing is a critical stage of a criminal proceeding.
  • Under 18 U.S.C. § 3664(a), the probation officer must complete a PSR that contains sufficient information for the court to order restitution, including “a complete accounting of the losses to each victim, any restitution owed pursuant to a plea agreement, and information relating to the economic circumstances of each defendant.”
  • A defendant is entitled to an opportunity to be heard on restitution.
  • Before issuing a final restitution determination, the sentencing court must resolve restitution issues, including objections raised by a defendant. Disputes regarding the proper amount or type of restitution is resolved by the preponderance of the evidence.
  • The final determination of a mandatory restitution award under 18 U.S.C. § 3664(d)(5) constitutes a critical stage during which a defendant is entitled to the assistance of counsel.

Editor’s Note: Now why would the sentencing hearing be a “critical stage” of a criminal proceeding?

United States v. Thomas, No. 16-41264, 2017 U.S. App. LEXIS 24942 (5th Cir. Dec. 11, 2017) (designated for publication)

  • Under 18 U.S.C. § 1030(a)(5)(A), a person is prohibited from intentionally damaging a computer system when there was no permission to engage in that act of damage.
  • Under Allen v. United States, 164 U.S. 492, 499 (1896), the flight of the accused is competent evidence of guilt.

Editor’s Note: I am not sure whether Thomas’s argument that he was “authorized to damage a computer” since his job-duties included “routinely deleting data, removing programs, and taking systems offline for diagnosis and maintenance” is the cleverest or most absurd argument I’ve heard this year.

United States v. Wise, No. 16-20808, 2017 U.S. App. LEXIS 24641 (5th Cir. Dec. 6, 2017) (designated for publication)

  • Review of a district court’s ruling on an MTS is de novo on questions of law and for clear error on factual findings. Factual findings are clearly erroneous only if a review of the record leaves the Court with a “definite and firm conviction that a mistake has been committed.” Factual findings that are “influenced by an incorrect view of the law or an incorrect application of the correct legal test” are reviewed de novo. A dis­trict court’s ruling on a MTS may be affirmed based on any ra­tionale supported by the record.
  • Under City of Indianapolis v. Edmond, 531 U.S. 32 (2000), a checkpoint at which the police stop motorists is a “seizure” because drivers cannot ignore officers or decline to answer ques­tions, which is like any seizure under Terry v. Ohio, 392 U.S. 1 (1968): restraint of liberty.
  • A commercial bus passenger lacks standing to challenge the voluntariness of the driver’s consent to permit the police to search the bus’ passenger cabin because such passengers resemble automobile passengers who lack property or possessory interest in the automobile. Like automobile passengers, bus passengers cannot direct the bus’s route, nor can they ex­clude other passengers.
  • A defendant has standing under the Fourth Amendment to challenge a search if: (1) the defendant can establish an actual, subjective expectation of privacy with respect to the place being searched or items being seized, and (2) the expectation of privacy is one which society would recognize as objectively reasonable.
  • Under Florida v. Bostick, 501 U.S. 429 (1991) and United States v. Drayton, 536 U.S. 194 (2002), a seizure does not occur simply because an officer approaches an individual and asks a few questions. The encounter is consensual so long as the civilian would feel free to either terminate the encounter or disregard the questioning. Police do not need reasonable suspicion to ap­proach someone for questioning, and the encounter will not trigger Fourth Amendment scrutiny unless it loses its con­sensual nature. A bus passenger has not been “seized” if a reasonable person would feel free to decline requests or otherwise terminate the encounter. Otherwise, police may question an individual, ask to examine his identification, and request consent to search his luggage provided the police do not convey a message that compliance with their requests is required.

Editor’s Note: I’d like to see these cops perform an “interdiction” on this bus.

Texas Court of Criminal Appeals

Ex parte Beck, No. PD-0618-16, 2017 Tex. Crim. App. LEXIS 1200 (Tex. Crim. App. Nov. 22, 2017) (designated for publication)

  • Under Marin v. State, 851 S.W.2d 275, 279–280 (Tex. Crim. App. 1993), error-preservation rules are divided into three categories: (1) absolute requirements or prohibitions, (2) rights that are waivable-only, and (3) rights that can be forfeited.
  • A facial challenge to the constitutionality of a statute falls within the third category involving rights that are subject to forfeiture.
  • Although Tex. Penal Code § 21.12(a) refers to the conduct described in Tex. Penal Code § 33.021(b), held unconstitutional by Ex parte Lo, it contains the additional elements that the actor be a school employee and that the recipient of the sexually explicit communications be a student. Tex. Penal Code § 21.12(a) contains “material differences” from the portion of the online-solicitation statute found to be unconstitutional in Lo because the improper-relationship statute is limited to addressing only sexually explicit communications in the context of the teacher-student relationship (the government has greater leeway to regulate speech in the educational context).
  • Failing to present a challenge to the facial constitutionality of a statute at any point prior to a habeas proceeding causes pro­cedural default, and forecloses raising the challenge for the first time on habeas corpus.

Editor’s Note: A teacher texting or instant-messaging his students is always a very bad idea, and not merely because the teacher enables the awful English grammar that often accompanies texting. For instance, we applaud “Mr. Mineti” for his clever retort to Cindy’s improper suggestion. But, what if Cindy stopped texting after Mr. Mineti texted “I’ve got a naughty idea ;)” and showed the exchange to other students, the school administration, or posted it to Facebook/Instagram/Snapchat?

Bohannan v. State, No. PD-0347-15, 2017 Tex. Crim. App. LEXIS 1238 (Tex. Crim. App. Nov. 22, 2017) (designated for publication)

  • Under Tex. Const. Art. V, § 12(b), the presentment of an indictment or information to a court invests that court with ju­ris­diction over the case. To constitute an indictment or in­for­mation, an instrument must charge a person with the com­mission of an offense in a way that the allegations in it are clear enough that one can identify the offense alleged. If they are, then the indictment is sufficient to confer subject-matter jurisdiction.
  • A conviction for violating a civil-commitment order may be upheld when the underlying commitment order has been reversed on appeal if the violation occurs before the reversal. A civil-commitment order violation is a “circumstances surrounding the conduct crime.” The focus is on the circumstances that exist rather than the discrete, and perhaps different, acts that the defendant might commit under those circumstances.

Ex parte Johnson, No. WR-85,192-01, 2017 Tex. Crim. App. LEXIS 1203 (Tex. Crim. App. Nov. 22, 2017) (designated for publication)

  • Habeas relief is available only for jurisdictional defects and violations of constitutional and fundamental rights, not for statutory violations.
  • The TCCA overrules Sepeda, which used to allow habeas relief to compel the Parole Board to comply with a statute regarding parole-denial letters.
  • Because a Texas inmate does not have a liberty interest in re­lease on parole, the inmate filing for relief on a parole issue can­not show a jurisdictional defect or a violation of constitutional and fundamental rights.
  • Postconviction relief from a failure to conduct a timely parole review must be had via mandamus.


  • Between 2013 and 2014, Applicant was convicted of forgery (10 years TDCJ), possession of a controlled substance (10 years TDCJ stacked), and delivery of a controlled substance (40 years TDCJ concurrent).
  • The concurrent sentence with the latest parole-eligibility date is Applicant’s 40-year sentence.
  • Appellant argues that the Parole Board ought to conduct a parole review of each sentence as it becomes eligible, as if it were the only sentence, which would result in parole review when his 10-year forgery sentence would become parole-eligible, so that he could be paroled on the forgery sentence earlier, and start the running of his possession-sentence earlier than if the first review is based on his eligibility on the 40-year sentence.

Editor’s Note: Rather than force the applicant back into “appellate orbit” to file a mandamus, the TCCA could have construed the case as a mandamus rather a habeas corpus proceeding, and resolved the issue. The TCCA has original jurisdiction to issue writs of mandamus in criminal-law matters under Tex. Const. Art. 5 § 5 and Tex. Code Crim. Proc. Art. 4.04 § 1 (2017). The TCCA’s authority extends to all criminal law matters and is not restricted solely to orders necessary to protect the TCCA’s jurisdiction or to enforce its judgments. See Durrough v. State, 620 S.W.2d 134, 144 (Tex. Crim. App. 1981).

Marcopoulos v. State, No. PD-0931-16, 2017 Tex. Crim. App. LEXIS 1310 (Tex. Crim. App. Dec. 20, 2017) (designated for publication)

  • The automobile exception allows for the warrantless search of an automobile if it is readily mobile and there is probable cause to believe that it contains contraband. The only inquiry relevant is whether the officers had probable cause to believe the vehicle contains contraband.
  • Probable cause exists where the facts and circumstances known to law enforcement officers are sufficient in themselves to warrant a man of reasonable caution in the belief that an of­fense has been or is being committed. There must be a “fair prob­ability” of finding inculpatory evidence at the location being searched. This “probability” should be measured by the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act, and the court must consider the totality of the circumstances known to the officer, and not use a “divide-and-conquer” approach.
  • Review of a trial court’s ruling on an MTS is in the light most favorable to the trial court’s ruling, giving almost total deference to a trial court’s express or implied determination of historical facts, and de novo to the court’s application of the law of search and seizure to those facts.
  • Furtive gestures alone are not a sufficient basis for probable cause. Although they may be valid indicia of mens rea, they must be “coupled with reliable information or other suspicious circumstances relating the suspect to the evidence of crime” to constitute probable cause.

Vandyke v. State, No. PD-0283-16, 2017 Tex. Crim. App. LEXIS 1311 (Tex. Crim. App. Dec. 20, 2017) (designated for publication)

  • A judgment of conviction is not final while the conviction is on appeal.
  • A challenge to the constitutionality of a statute is reviewed de novo, with great deference afforded to the Legislature and a pre­sumption that the statute is constitutional and the Legislature did not act unreasonably or arbitrarily. The party challenging the statute normally bears the burden of establishing its unconstitutionality.
  • The governor may grant clemency three ways: (1) reprieve (de­lays the execution of a judgment; postpones the sentence for a time); (2) commutation (change of punishment assessed to a less severe one); and (3) pardon (act of grace under the power entrusted with the execution of the laws that exempts the individual from punishment the law inflicts for a crime).
  • The governor’s clemency power allows the governor to affect the punishment an individual is subjected to, but does not allow the governor to affect the underlying conviction because a pardon (and other forms of clemency) forgives only the penalty and does not allow the courts to “forget either the crime or the conviction”; a pardon implies guilt and does not obliterate the fact of the commission of the crime and the conviction. The Texas Constitution does not grant the governor the power to destroy judicial judgments and decrees.
  • S.B. 746 affects the validity of convictions obtained under Tex. Health & Safety Code § 841.085(a), allowing prosecution for any violation of Tex. Health & Safety Code § 841.082(a). It does not prevent the governor from granting clemency to those pros­ecuted under 841.085 whose convictions remain valid. (It does not prevent the governor from granting clemency to individuals whose convictions have already become final under previous law.)
  • The Legislature and governor have decided that a sexually vio­lent predator’s failure to comply with his sex offender treat­ment program as part of his civil commitment should be resolved through the civil commitment program rather than give rise to a new criminal conviction. The Legislature was within its power to make this change and apply it to defendants whose criminal cases were pending on appeal at the time the amendment became effective.

Editor’s Note: A just outcome based on the law enacted by the Legislature.

Texas Courts of Appeals

Allen v. State, No. 01-16-00768-CR, 2017 Tex. App. LEXIS 11015 (Tex. App. Houston [1st Dist.] Nov. 28, 2017) (designated for publication)

  • Under Tex. Code Crim. Proc. Art. 20.09 and Ex parte Edone, 740 S.W.2d 446, 448 (Tex. Crim. App. 1987), a trial court forms, impanels, and empowers a grand jury to inquire into in­dictable offenses, including aggravated robbery with a deadly weapon. Because a grand jury’s deliberations are secret, it retains a “separate and independent nature from the court.”
  • Under Tex. Code Crim. Proc. Arts. 20.19–20.21, after the evidence is considered by the grand jury, it votes to determine whether to present an indictment. If nine members concur in finding the bill, the State prepares the indictment and the grand jury foreman signs it and delivers it to the judge or the clerk of the court.
  • Under Tex. Code Crim. Proc. Art. 12.06, an indictment is considered “presented” when it has been duly acted upon by the grand jury and received by the judge or clerk of the court.
  • Under State v. Dotson, 224 S.W.3d 199, 204 (Tex. Crim. App. 2007), an original file-stamp of the district clerk’s office on a signed indictment is “strong evidence that the returned indictment was ‘presented’ to the court clerk” within the meaning of Tex. Code Crim. Proc. Art. 20.21.
  • Under Tex. Const. Art. 5, § 12(b) and Cook v. State, 902 S.W.2d 471, 476 (Tex. Crim. App. 1995), once an indictment is “presented,” jurisdiction vests with the trial court.
  • Under Tex. Code Crim. Proc. Art. 4.05 and Tex. Gov. Code § 74.094, all district courts within the county have jurisdiction over the same cases, and criminal district courts have original jurisdiction in felony cases.
  • Under Tex. Gov. Code §§ 24.024 & 74.093, in counties having more than two district courts, the judges “may adopt rules gov­erning the filing and numbering of cases, the assignment of cases for trial, and the distribution of the work of the courts as in their discretion they consider necessary or desirable for the orderly dispatch of the business of the courts.” Thus, in multi-court counties such as Harris Co., although a district court may impanel a grand jury, it does not mean that all cases considered by that court’s grand jury are assigned to that court. If a grand jury in one district court returns an indictment in a case, the case may be then assigned to any district court within the same county.

Editor’s Note: Under the second issue raised, the court of appeals held that a $200 “Summoning Witness/Mileage” assessed is unconstitutional. The explanation of how the court arrived at this conclusion is long when compared to the relief granted (200 bucks). Thus, if this issue concerns one of your clients, I encourage you to read this part of the opinion.

Fisk v. State, No. 04-17-00174-CR, 2017 Tex. App. LEXIS 11311 (Tex. App. San Antonio Dec. 6, 2017) (designated for publication)

  • When reviewing the legal sufficiency of the evidence after a bench trial, under Robinson v. State, 466 S.W.3d 166, 173 (Tex. Crim. App. 2015), reviewing courts apply the same standard as in jury trials under Jackson v. Virginia, 443 U.S. 307, 309, 319 (1979): the court views all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The trier of fact is the sole judge of the weight and credibility of the evidence, and may draw reasonable inferences from basic facts to ultimate facts. Each fact need not point directly and independently to the guilt of the appellant, if the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Direct evidence and circumstantial evidence are equally probative.
  • Under Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007), to prove a defendant has a prior conviction, the State must prove beyond a reasonable doubt that: (1) a prior conviction exists, and (2) the defendant is linked to that conviction. No specific document or mode of proof is required to prove the elements. Any type of evidence, documentary or testimonial, might suffice, provided the document contains sufficient information to establish both elements.
  • Whether an offense under the laws of another state contains substantially similar elements as one of the Texas Penal Code offenses is a question of law.
  • Under Tex. Penal Code § 12.42(c)(2), when a defendant is convicted of indecency with a child and has a prior conviction for one of the sex offenses listed in Tex. Penal Code § 12.42(c)(2)(B), the trial court must impose a life sentence (the “two-strikes policy” for repeat sex offenders).
  • Under Rushing v. State, 353 S.W.3d 863, 867–868 (Tex. Crim. App. 2011), the United States is “another state,” and the laws of the United States, including the UCMJ, are the “laws of another state,” so a prior court-martial conviction under the UCMJ counts as a “strike.”
  • To determine whether an out-of-state offense contains substantially similar elements as a Texas offense, under Anderson v. State, 394 S.W.3d 531 (Tex. Crim. App. 2013) and Prudholm v. State, 333 S.W.3d 590 (Tex. Crim. App. 2011), a court must determine: (1) a high degree of likeness—they need not parallel one another precisely, but the elements of the out-of-state offense cannot be markedly broader than or distinct from the Texas offense; and (2) protection of Individual or public interests—the elements must be substantially similar with respect to the individual or public interests protected and the impact of the elements on the seriousness of the offenses—the court must determine if: (i) there is a “similar danger to society” that the statute is trying to prevent; and (2) the class, degree, and punishment range of the two offenses are substantially similar.

Jenkins v. State, No. 04-17-00114-CR, 2017 Tex. App. LEXIS 11774 (Tex. App. San Antonio Dec. 20, 2017) (designated for publication)

  • Under Smith v. State, 297 S.W.3d 260, 267 (Tex. Crim. App. 2009), the sufficiency of an indictment is a question of law and is reviewed de novo.
  • Under Tex. Const. Art. 1, § 10, defendants have the right to in­dictment by a grand jury for felony offenses.
  • Under Cook v. State, 902 S.W.2d 471, 475 (Tex. Crim. App. 1995) and Tex. Const. Art. 5, § 12, an indictment: (1) provides notice of the offense to allow a defendant to prepare a defense; and (2) serves a jurisdictional function, and its filing is required to vest the trial court with jurisdiction over a felony.
  • Under Tex. Code Crim. Proc. Art. 1.14, if the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he forfeits the right to raise the error on appeal a postconviction proceeding.
  • Under Cook v. State, 902 S.W.2d 471, 474 (Tex. Crim. App. 1995), a charging instrument that is “so deficient as to not invest the trial court with jurisdiction” may be challenged for the first time on appeal. A reasonable construction of Tex. Const. Art. 5, § 12 does not allow the conclusion that the constitutional definition of an indictment falls under Tex. Code Crim. Proc. Art. 1.14.
  • A charging instrument can be missing elements of an offense and still be an “indictment” for purposes of the Texas Constitution. The charging instrument must name a person to vest a trial court with jurisdiction.
  • Under Stansbury v. State, 82 S.W.2d 962, 968 (Tex. Crim. App. 1935), a caption is not part of the charging instrument.


  • Jenkins was charged with continuous trafficking of persons under the indictment at left.
  • Here, the only place Jenkins’ name appears is in the caption.
  • Under Stansbury v. State, 82 S.W.2d 962, 968 (Tex. Crim. App. 1935), a caption is not part of the charging instrument.
  • Jenkins did not move to quash or dismiss the indictment before trial.
  • Jenkins was convicted by a jury and sentenced to 25 years.
  • On appeal, Jenkins argued that the indictment is fatally defective because it does not name “a person.”

Editor’s Note: never depend on a caption.

  • This is different than what occurred in Kirkpatrick v. State, 279 S.W.3d 324 (Tex. Crim. App. 2009), where the defendant was charged in one indictment with “forgery and tampering with a governmental record in three counts” and in another a single count of tampering with a governmental record by making a document, with knowledge of its falsity and with intent that it be taken as a genuine governmental record. The TCCA held that although the indictment properly charged a mis­de­meanor and lacked an element necessary to charge a fel­ony, the felony offense exists, and the indictment’s return in a felony court put appellant on notice that the charging of the felony offense was intended. The TCCA was considering whether the indictment sufficiently alleged an offense, not whether it named a defendant.
  • Because a valid indictment is essential for jurisdiction, it is not subject to waiver, and the conviction is void.

Mayes v. State, Nos. 07-16-00290-CR, 07-16-00291-CR & 07-16-00292-CR, 2017 Tex. App. LEXIS 11032 (Tex. App. Amarillo Nov. 28, 2017) (designated for publication)

  • Under Tex. Const. Art. 5, § 12(b), and Cook v. State, 902 S.W.2d 471, 476 (Tex. Crim. App. 1995), once an indictment is “presented,” jurisdiction vests with the trial court.
  • Under Tex. Code Crim. Proc. Art. 1.14, if the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he forfeits the right to raise the error on appeal a postconviction proceeding.
  • Under State v. Dotson, 224 S.W.3d 199, 204 (Tex. Crim. App. 2007), an original file-stamp of the district clerk’s office on a signed indictment is “strong evidence that the returned indictment was ‘presented’ to the court clerk” within the meaning of Tex. Code Crim. Proc. Art. 20.21.
  • Under Tex. Penal Code § 1.07(a)(17), a deadly weapon is “a firearm or anything manifestly designed, made, or adapted to inflicting death or serious bodily injury” or “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.”
  • Under Brister v. State, 449 S.W.3d 490, 494 (Tex. Crim. App. 2014), and Plummer v. State, 410 S.W.3d 855, 864–865 (Tex. Crim. App. 2013), the evidence must show that an object that meets the definition of a deadly weapon was used or exhibited during the transaction on which the felony conviction was based, and other people were placed in actual danger. Mere possession of a deadly weapon during the commission of a felony is not enough: the deadly weapon must facilitate the associated felony. The evidence must establish that the weapon furthered the commission of the offense or enabled, continued, or enhanced the offense. Proximity is a factor in whether a deadly weapon was used or exhibited during the commission of a felony: There must be a connection between the deadly weapon and crime such that the deadly weapon “facilitated or could have facilitated” the crime.

Owens v. State, No. 03-15-00717-CR, 2017 Tex. App. LEXIS 10928 (Tex. App. Austin Nov. 22, 2017) (designated for publication)

  • Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), and Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007), in evaluating legal sufficiency, an appellate court reviews all the evidence in the light most favorable to the judgment to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. It is up to the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. In circumstantial-evidence cases, each fact need not point directly and independently to the defendant’s guilt provided the cumulative force of all the incriminating circumstances is sufficient to support the conviction.
  • Under Tex. Penal Code § 19.03(a)(7)(A), capital murder as charged in this case requires proof that a person “intentionally” or “knowingly” caused the death of more than one person during the same criminal transaction.
  • Under Louis v. State, 393 S.W.3d 246, 251 (Tex. Crim. App. 2012), capital murder is a result-of-conduct offense, and is defined in terms of one’s objective to produce, or a substantial certainty of producing, a specified result—i.e., the death. Murder is committed “knowingly” when an actor engages in conduct while aware that death is reasonably certain to result from his conduct. To be aware that his conduct is reasonably certain to result in death, the actor must also be aware of the lethal nature of his conduct.
  • Under Ruffin v. State, 270 S.W.3d 586, 591–592 (Tex. Crim. App. 2008), mental culpability must be inferred from the cir­cum­stances under which a prohibited act or omission occurs. A jury may infer that a defendant intends the natural consequences of his acts and infer a defendant’s knowledge or intent from any facts tending to prove its existence, including the method of committing the crime, the nature of wounds inflicted on the victims, and the accused’s acts, words, and conduct.
  • Under Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996), a jury may infer intent to kill from the use of a deadly weapon unless it would not be reasonable to infer that death or serious bodily injury could result from the use of the weapon.
  • Under Samaripas v. State, 454 S.W.3d 1, 5 (Tex. Crim. App. 2014), a trial court has broad discretion over the voir dire process, including setting reasonable limits and determining the propriety of a question. A trial court abuses its discretion only when a proper question about a proper area of inquiry is prohibited. A voir dire question is proper if it seeks to discover a juror’s views on an issue applicable to the case. An otherwise proper question is impermissible if the question attempts to commit the juror to a verdict based on certain facts.
  • Under Standefer v. State, 59 S.W.3d 177, 180 (Tex. Crim. App. 2001): (1) voir dire questions that are not intended to discover bias against the law or prejudice for or against the defendant, but rather seek only to determine how jurors would respond to the anticipated evidence and commit them to a specific verdict based on that evidence, are improper; and (2) commitment ques­tions are improper when law does not require commitment and the question could not disqualify juror for cause or when question includes facts in addition to those necessary to establish challenge for cause. A commitment question is one where possible answers are that the prospective juror would resolve or refrain from resolving an issue in the case based on facts contained in the question. A commitment question usually will elicit a “yes” or “no” answer, but an open-ended question can be a commitment question if the question asks the prospective juror to set the hypothetical parameters for his decision-making.

State v. Sanders, Nos. 02-16-00226-CR to 02-16-00228-CR, 2017 Tex. App. LEXIS 11674 (Tex. App. Fort Worth Dec. 14, 2017) (designated for publication)

  • Under Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000), the standard of review on a ruling on an MTS is bifurcated standard: almost total deference to the trial court’s determination of historical facts that depend on credibility, and de novo of the application of the law to those facts. The trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. For facts explicitly found, a reviewing court must defer to them so long as they are supported by the record. For facts not explicitly found, the reviewing court views the evidence in the light most favorable to the ruling and assumes that the trial court made implicit findings of fact supporting its ruling so long as those findings are supported by the record. The reviewing court must sustain the ruling if it is correct under any theory of law applicable to the case.
  • Under Missouri v. McNeely, 569 U.S. 141, 148 (2013), and State v. Villarreal, 475 S.W.3d 784, 796 (Tex. Crim. App. 2014), a war­rant is required for an unconsented draw of specimen un­less the exigency exception applies, which is when the exigen­cies of the situation make the needs of law enforcement so com­pelling that a warrantless search is objectively reasonable under the Fourth Amendment. Whether law enforcement faced an emergency that justified acting without a warrant calls for a case-by-case determination based on the totality of the circumstances. Blood testing is different from other de­struction-of-evidence cases where police are confronted with a “now or never” situation because the body’s natural me­tabolism of intoxicating substances is distinguishable from the potential destruction of easily disposable evidence when the police knock on the door.
  • Under Weems v. State, 493 S.W.3d 574, 578 (Tex. Crim. App. 2016), the State fails to meet its burden to establish that exigent circumstances existed at the time of a warrantless blood draw if the record indicates that probable cause was present at the time of the draw, that an officer who was not preoccupied in investigating an accident was available to pursue a warrant, and when the record is devoid of what procedures and how much time procuring a warrant would have required. Merely because a suspect is transported to a nearby hospital does not make obtaining a warrant impractical or unduly delay the taking of blood to the extent that natural dissipation would significantly undermine a blood test’s efficacy, especially if other officers are available to investigate the scene of the accident and escort the suspect to the hospital.

Editor’s Note: Now that McNeely, Villarreal, and Weems are established law and the State cannot admit into evidence warrantless blood draws unless there are exigent circumstances, it appears that some members of law enforcement may need to resort to other unconstitutional tactics:

Michael Mowla
Michael Mowla
Michael Mowla’s office is in Dallas. He is Board Certified in Criminal Appellate Law by the Texas Board of Legal Specialization. He represents clients at trial, on appeal, and on postconviction habeas corpus. He also handles complex state and federal civil litigation and appeals of civil cases. He may be contacted at 972-795-2401, , and https://www.mowlalaw.com.

Michael Mowla’s office is in Dallas. He is Board Certified in Criminal Appellate Law by the Texas Board of Legal Specialization. He represents clients at trial, on appeal, and on postconviction habeas corpus. He also handles complex state and federal civil litigation and appeals of civil cases. He may be contacted at 972-795-2401, , and https://www.mowlalaw.com.

Previous Story

December 2017 SDR – Voice for the Defense Vol. 46, No. 10

Next Story

March 2018 SDR – Voice for the Defense Vol. 47, No. 2

Latest from SDR