July/August 2020 SDR – Voice for the Defense Vol. 49, No. 6

Voice for the Defense Volume 49, No. 6 Edition

Editor: Michael Mowla

From Editor Michael Mowla:

Please do not rely solely on the summaries set forth below. The reader is advised to read the full text of each opinion in addition to the brief synopses provided.

TCDLA thanks the Court of Criminal Appeals for graciously administering a grant which underwrites the majority of the costs of our Significant Decisions Report. We appreciate the Court’s continued support of our efforts to keep lawyers informed of significant appellate court decisions from Texas, the United States Court of Appeals for the Fifth Circuit, and the Supreme Court of the United States. However, the decision as to which cases are reported lies exclusively with our Significant Decisions editor. Likewise, any and all editorial comments are a reflection of the editor’s view of the case, and his alone.

Supreme Court of the United States

Andrus v. Texas, No. 18-9674, 2020 U.S.LEXIS 3250 (U.S. June 15, 2020) [IAC in mitigation cases of death penalty cases]

• Under Strickland v. Washington, 466 U.S. 668, 688, 694 (1984), to prevail on a Sixth Amendment claim of IAC, a defendant must show that trial counsel’s performance was deficient and prejudiced him. To show deficiency, a defendant must show that counsel’s representation fell below an objective standard of reasonableness. To establish prejudice, a defendant must show that there is a reasonable probability that, but-for the unprofessional errors,  the result of the proceeding would have been different.
• Under Porter v. McCollum, 558 U.S. 30, 39 (2009), under prevailing professional norms, trial counsel must conduct a thorough investigation of the defendant’s background. Under Rompilla v. Beard, 545 U.S. 374, 385 (2005), counsel must make all reasonable efforts to learn what he can about the offenses the prosecution intends to present as aggravating evidence.
• Under Wiggins v. Smith, 539 U.S. 510, 521 (2003), in a death-penalty case, trial counsel must make reasonable investigations or a reasonable decision that makes particular investigations unnecessary. To assess whether counsel exercised objectively reasonable judgment under prevailing professional standards, a court asks whether the investigation supporting the decision not to introduce mitigating evidence was itself reasonable. A decision not to investigate must be assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.

Facts:

• Andrus killed Diaz and Bui during a bungled carjacking. He was indicted and convicted of capital murder.
• At the guilt phase, trial counsel did not make an opening statement. After the State rested, trial counsel immediately rested. In his closing, trial counsel conceded Andrus’s guilt and told the jury that the trial would “boil down to the punishment phase.”
• During the punishment phase, trial counsel did not make an opening statement. The State presented evidence that Andrus was aggressive and hostile while in juvenile; had gang tattoos; had hit, kicked, and thrown excrement at prison officials pending trial, and committed an aggravated robbery of a dry-cleaning business. Trial counsel raised no material objections to the State’s evidence and cross-examined State witnesses briefly.
• Trial counsel called Andrus’s mother, who testified about Andrus’s basic biographical information but did not reveal difficult circumstances in Andrus’s childhood. Mom testified that Andrus had an “excellent” relationship with siblings and grandparents, didn’t have access to drugs in her home, and she would have counseled him had she learned he was using drugs.
• Andrus’s biological father Davis testified that Andrus had lived with him for a year when he was 15 and had behaved.
• Trial counsel then announced that he rests and did not intend to call more witnesses. After the court questioned trial counsel about this choice during a sidebar, trial counsel called Dr. John Roache as the expert witness and examined him on the general effects of drug use on developing adolescent brains. On cross, the State quizzed Roache about the relevance and purpose of his testimony, asking whether he “drove 3 hours to tell the jury that people change their behavior when they use drugs.”
• Trial counsel called prison counselor Martins, who testified that Andrus “started having remorse” in the past 2 months and was “making progress.”
• Andrus testified that his mother started selling drugs when he was 6 and he and his siblings were often home alone. He started using drugs regularly around 15. On cross, the State declared, “I have not heard one mitigating circumstance in your life.” 
• The jury sentenced Andrus to death. The conviction and sentence were affirmed on appeal.
• Andrus filed a state habeas application, alleging that trial counsel was ineffective for failing to investigate or present available mitigation evidence, including extreme neglect, violence, abuse, and deprivation during his childhood, growing up in neighborhood with frequent shootings, gang fights, and drug overdoses, and a mother who sold drugs, used drugs at home, and engaged in prostitution. Per his siblings, Andrus was a protective older brother who was caring. When he was about 10, he was diagnosed with affective psychosis. The trial court concluded that trial counsel had been ineffective for failing to investigate and present mitigating evidence regarding his abusive and neglectful childhood. The TCCA rejected the trial court’s recommendation to grant habeas relief, finding that Andrus had failed to meet his burden under Strickland.

Trial counsel provided constitutionally deficient performance under Strickland

• Under Strickland v. Washington, 466 U.S. 668, 688, 694 (1984), to prevail on a Sixth Amendment claim of IAC, a defendant must show that trial counsel’s performance was deficient and prejudiced him. To show deficiency, a defendant must show that counsel’s representation fell below an objective standard of reasonableness. To establish prejudice, a defendant must show that there is a reasonable probability that, but-for the unprofessional errors,  the result of the proceeding would have been different.
• Under Porter v. McCollum, 558 U.S. 30, 39 (2009), under prevailing professional norms, trial counsel must conduct a thorough investigation of the defendant’s background. Under Rompilla v. Beard, 545 U.S. 374, 385 (2005), counsel must make all reasonable efforts to learn what he can about the offenses the prosecution intends to present as aggravating evidence.
• Under Wiggins v. Smith, 539 U.S. 510, 521 (2003), in a death-penalty case, trial counsel must make reasonable investigations or a reasonable decision that makes particular investigations unnecessary. To assess whether counsel exercised objectively reasonable judgment under prevailing professional standards, a court asks whether the investigation supporting the decision not to introduce mitigating evidence was itself reasonable. A decision not to investigate must be assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.
• Trial counsel fell short of his obligation because he: performed almost no mitigation investigation, overlooking vast mitigating evidence, due to his failure to investigate compelling mitigating evidence, what little evidence he presented backfired by bolstering the State’s aggravation case, and failed adequately to investigate the State’s aggravating evidence, forgoing critical opportunities to rebut the case in aggravation. Although counsel nominally put on mitigation, the record is clear that counsel’s investigation to support that case was an empty exercise.
• The State presented Andrus’s alleged commission of a robbery at a dry-cleaning business. Although Andrus told counsel he did not commit the offense and the State did not charge, counsel did not attempt to exclude or rebut the State’s evidence. At the habeas hearing, it was shown that the only evidence tying Andrus to the crime was a witness statement later recanted. This is not the work of reasonable counsel. Under Tex. Code Crim. Proc. Art. 37.071 §2(b)(1), a jury cannot recommend a death sentence without unanimously finding future dangerousness to society. Only after a jury makes a finding of future dangerousness can it consider mitigating evidence. By failing to conduct even a marginally adequate investigation, counsel seriously compromised his opportunity to respond to a case for aggravation.
• Andrus showed deficient performance under the first prong of Strickland, and by its one-sentence denial, it is unclear whether the TCCA considered  prejudice at all. The judgment is vacated, and the case is remanded so the TCCA can address the prejudice prong of Strickland in a manner not inconsistent with this opinion.

United States Court of Appeals for the Fifth Circuit

United States v. Diggles, 957 F.3d 551 (5th Cir. April 29, 2020) (en banc) [Pronouncement of required and discretionary conditions of supervised release per 18 U.S.C. § 3583(d)]

• The district court must orally pronounce a sentence to respect the defendant’s right to be present. If the pronouncement differs from the judgment, the pronouncement controls. This rule applies to some supervised release conditions. Under U.S.S.G. § 5D1.3(b) & (d), pronouncement is not required for “mandatory” and “standard” conditions but required for “discretionary” and “special” conditions. 
• Under United States v. Gagnon, 470 U.S. 522, 526 (1985) (per curiam), the right to be present at trial is per the Sixth Amendment’s Confrontation Clause, while the right to be present at proceedings that lack testimony is per the Fifth Amendment’s Due Process Clause. Under Snyder v. Massachusetts, 291 U.S. 97, 107-108 (1934), the defendant’s presence is a condition of due process to the extent that a fair and just hearing is thwarted by his absence. The right turns on whether a defendant’s presence has a reasonably substantial relation to the fullness of his opportunity to defend against the charge. Sentencing is a critical stage of a case.
• 18 U.S.C. § 3583(d) distinguishes between required and discretionary conditions. “Shall” conditions include not committing a crime or unlawfully possessing a controlled substance, cooperating in DNA-collection, and paying restitution. “May” conditions must be “reasonably related” to statutory sentencing factors. The pronouncement requirement should be tied to § 3583(d)’s line between required and discretionary conditions. If a condition is required—making an objection futile—the court need not pronounce it. If a condition is discretionary, the court must pronounce it to allow for an objection. A sentencing court pronounces supervision conditions when it orally adopts a document recommending those conditions.
• When a defendant fails to raise a pronouncement objection in the district court, review is for plain error if the defendant had notice of the conditions and an opportunity to object.

United States v. Jordan, No. 19-40499, 2020 U.S.App.LEXIS 14044 (5th Cir. May 1, 2020) [New trial under Fed. Rule Crim. Proc. 33]

• To be entitled to a new trial under Fed. Rule Crim. Proc. 33 based on an extrinsic influence on the jury, a defendant must show that the influence likely caused prejudice. The government bears the burden of proving the lack of prejudice by showing there is no reasonable possibility that the jury’s verdict was influenced by the extrinsic evidence. Under Patterson v. Colorado, 205 U.S. 454, 462 (1907), courts must take allegations of outside influence seriously because the legal system requires that cases are decided only by evidence and argument in open court and not by any outside influence, whether private talk or public print.
• Under Remmer v. United States, 347 U.S. 227, 229 (1954), when faced with (1) credible allegations of prejudicial outside influence on the jury and (2) a record devoid of information on which to evaluate those allegations, a hearing in which all parties are permitted to participate is necessary.

United States v. Longoria, No. 19-20201, 2020 U.S.App.LEXIS 14307 (5th Cir. April 27, 2020) (designated for publication) [Base offense level for felon-in-possession per U.S.S.G. § 2K2.1(a)(4)(B)(i)(I); government’s filing of motion for 1-level  acceptance of responsibility per U.S.S.G. § 3E1.1(b)]

• Under U.S.S.G. § 2K2.1(a)(4)(B)(i)(I), the base offense level for felon-in-possession is 20 if it involves a semiautomatic firearm capable of accepting a large capacity magazine, which is one that had attached to it, or was in close proximity to, a magazine or similar that could accept more than 15 rounds.
• A sentencing judge may properly find sufficient reliability on a PSR based on the results of a police investigation.
• Under U.S.S.G. § 3E1.1(b), a defendant is eligible for one extra level for acceptance of responsibility if his offense level is at least 16 and the government files a motion stating that the defendant assisted in the investigation or prosecution of his misconduct by timely giving notice of intent to enter a plea of guilty, permitting the government to avoid preparing for trial and the government and the court to allocate their resources efficiently.
• The government may withhold filing a motion under U.S.S.G. § 3E1.1(b) if it must litigate a suppression motion.

Editor’s note: The U.S.S.G. defines a “high capacity magazine” as one that “can accept more than 15 rounds.” Under this logic, a magazine that accepts 16 rounds is so much more dangerous than one that accepts 15 that a felon in possession must spend at least 37-46 additional months in prison for that one round, the range for a crime with base offense level 20 and Criminal History I. Thus, one extra round = 37-46 extra months. It does not matter whether he intended to fire the round or even held the weapon. Its nearby proximity is enough. This illogical nonsense pervades most laws that purport to “protect” us from “gun violence.”

United States v. McNabb, No. 19-50265, 2020 U.S.App.LEXIS 14076  (5th Cir. May 1, 2020) (designated for publication) [Government seeking an obstruction enhancement]

• The government seeking an obstruction enhancement—whether based on pre-or post-plea conduct—is consistent with its promise to not oppose an acceptance reduction. 

United States v. Rodriguez-Pena, 18-40978, 2020 U.S. App. LEXIS 13403 (5th Cir. April 27, 2020) (designated for publication) [departing from the U.S.S.G.-range rather than apply the factors under 18 U.S.C. § 3553 for a variance is error; plain error review of sentencing issue] 

• A district court errs if it assigns an incorrect criminal history to depart from the U.S.S.G. range rather than apply the factors under 18 U.S.C. § 3553 as the reasons for the departure.
• When the defendant does not object to error, plain error review applies. Under Fed. Rule Crim. Proc. 52(b), Molina-Martinez v. United States, 136 S.Ct. 1338 (2016) and United States v. Olano, 507 U.S. 725 (1993), a reviewing court may consider errors that are plain and affect substantial rights even though they are raised for the first time on appeal. The defendant must show that the error: (1) was not intentionally relinquished or abandoned; (2) is plain (clear or obvious); (3) affected substantial rights (must show a reasonable probability that but-for the error, the outcome of the proceeding would have been different); and (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.
• Under Rosales-Mireles v. United States, 138 S.Ct. 1897, 1907 (2018), a U.S.S.G.-error that satisfies the first three Olano factors satisfies the fourth and warrants relief because the plain error establishes a reasonable probability that a defendant will serve a sentence that is more than necessary to fulfill the purposes of incarceration. Additional factors favoring correction are: (1) resentencing is easy; and (2) U.S.S.G.-miscalculations result from judicial error rather than a defendant’s strategy. Where the record is silent as to what the district court might have done had it considered the correct U.S.S.G.-range, the district court’s reliance on an incorrect range in most instances will suffice to show an effect on the defendant’s substantial rights.

Editor’s note: this is the relevant law on plain error review:

• To preserve error, a party must raise an objection that is sufficiently specific to: (1) alert the court to the nature of the error and; (2) provide an opportunity for correction. A party is not required to object in ultra-precise terms but must provide the court an opportunity to adjudicate the issue and cure any alleged breach.
• When the defendant does not object to error, plain error review applies. Under Fed. Rule Crim. Proc. 52(b), Molina-Martinez v. United States, 136 S.Ct. 1338 (2016) and United States v. Olano, 507 U.S. 725 (1993), a reviewing court may consider errors that are plain and affect substantial rights even though they are raised for the first time on appeal. The defendant must show that the error: (1) was not intentionally relinquished or abandoned; (2) is plain (clear or obvious); (3) affected substantial rights (must show a reasonable probability that but-for the error, the outcome of the proceeding would have been different); and (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.
• Under Rosales-Mireles v. United States, 138 S.Ct. 1897, 1907 (2018), a U.S.S.G.-error that satisfies the first three Olano factors satisfies the fourth and warrants relief because the plain error establishes a reasonable probability that a defendant will serve a sentence that is more than necessary to fulfill the purposes of incarceration. Additional factors favoring correction are: (1) resentencing is easy; and (2) U.S.S.G.-miscalculations result from judicial error rather than a defendant’s strategy. Where the record is silent as to what the district court might have done had it considered the correct U.S.S.G.-range, the district court’s reliance on an incorrect range in most instances will suffice to show an effect on the defendant’s substantial rights.

Taylor Lohmeyer Law Firm v. United States, 957 F.3d 505 (5th Cir. April 24, 2020) [Attorney-client privilege in an IRS summons]

• Under Reisman v. Caplin, 375 U.S. 440, 449 (1964), a district court order enforcing an IRS summons is an appealable final order. The challenge may be on any appropriate ground including the information sought is protected by the attorney-client privilege. 
• Review with respect to the attorney-client privilege is limited. The application of the attorney-client privilege is a question of fact to be determined considering the purpose of the privilege. In evaluating a claim of attorney-client privilege, factual findings are reviewed for clear error and the application of the law de novo.
• For the attorney-client privilege to protect disclosure, an attorney must establish that the document contains a confidential communication with the client, made with the client’s primary purpose having been securing either a legal opinion or legal services. Because the attorney-client privilege withholds relevant information from the factfinder, it is interpreted narrowly and applies only where necessary to achieve its purpose. The party asserting privilege bears the burden of proof. Ambiguities about whether the elements of a privilege claim have been met are construed against the proponent. The privilege may not be tossed as a blanket over an undifferentiated group of documents but must be asserted to particular documents. Client identities and fee arrangements are not protected as privileged unless revealing them would reveal a confidential communication. 

Texas Court of  Criminal Appeals

Diamond v. State, No. PD-1299-18, 2020 Tex.Crim.App. LEXIS 405 (Tex.Crim.App. June 10, 2020) (designated for publication) (DWI) [materiality of Brady evidence; Art. 11.072 proceedings]

• An appellate court reviewing a ruling in an Art. 11.072 proceeding must view the record evidence in the light most favorable to the ruling and uphold it absent an abuse of discretion. Almost total deference is given to factual and implied findings supported by the record, especially if based on credibility and demeanor. If the resolution of the ultimate question turns only on the application of law, review is de novo. The reviewing court upholds the ruling if it is correct under any theory of applicable law.
• Determining whether evidence was material as part of a claimed Brady violation is a mixed question of law and fact. Deference is given to a habeas court’s factual findings underlying its decision, and review of ultimate legal conclusions of materiality is de novo.
• In Art. 11.07  cases, the habeas court is the original fact finder but the TCCA is the ultimate factfinder. The habeas court’s findings are not automatically binding upon the TCCA, although it usually accepts them if supported by the record. In Art. 11.072 cases, the trial judge is the sole factfinder and the appellate courts are truly appellate courts.
• To be entitled to relief because a Brady violation, a defendant must show that the: (1) State failed to disclose evidence, regardless of good or bad faith; (2) evidence is favorable; and (3) evidence is material. Favorable evidence is that which if disclosed and used effectively, may make a difference between conviction and acquittal. It includes exculpatory and impeachment evidence. Exculpatory evidence is that which may justify, excuse, or clear the defendant from fault, and impeachment evidence is that which disputes, disparages, denies, or contradicts other evidence. The nondisclosure of favorable evidence violates due process only if it is material to guilt or punishment. Evidence is material if there is a reasonable probability that had it been disclosed, the outcome of the trial would have been different. A “reasonable probability” is one sufficient to undermine confidence in the outcome. Materiality is determined by examining the alleged error in the context of the record and overall strength of the state’s case. The suppressed evidence is considered collectively, not item-by-item.

Facts:

• Deputy Bounds saw Diamond speed past him. Bounds pursued, during which Diamond made several unsafe lane changes without signaling, which caused other drivers to slam on their brakes.
• When Diamond stepped out of her vehicle, she staggered and could not keep balance. She appeared disoriented. She said that she was coming from a country club but was unable to identify it. She admitted she consumed three beers that day. There was one open can and two cold, unopened cans in her vehicle. She and her car smelled strongly of alcohol. She had red glassy eyes and slurred speech. She was unable to identify the medication she was taking. On the SFSTs, she showed 5 of 8 clues on the walk-and-turn and 4 of 4 clues on the one-leg-stand. Bounds determined she was intoxicated because she lost the normal use of her mental and physical faculties. Bounds arrested her for DWI. Diamond refused to give a sample of her breath or blood. Bounds secured a warrant to obtain a sample of her blood. A registered nurse drew it. The vials were delivered by Bounds to a secure lockbox at Houston PD.
• Andrea Gooden, Houston Police Department Crime Lab analyst, retrieved the sealed envelope with Diamond’s blood. There did not appear to be tampering with the envelope. It appeared to be properly labeled.  The analysis revealed a BAC of 0.193.
• Diamond was convicted of DWI. The jury also found that Diamond’s BAC was 0.15 or more at the time of the analysis.  Diamond was sentenced to 5 days in jail.  She did not appeal.
• Gooden self-reported to the Texas Forensic Science Commission (TFSC) that the crime lab violated quality control and documentation protocols in an unrelated case.
• Diamond filed an application for a writ of habeas corpus under Tex. Code Crim. Proc. Art. 11.072, arguing that the State suppressed impeachment evidence in violation of her right to due process because it failed to disclose that before Gooden’s testimony: (1) Gooden certified a mislabeled lab report in an unrelated case; and (2) Gooden’s supervisor Arnold temporarily removed Gooden from her casework because he lacked confidence in her skills. Diamond argued that the evidence would have enabled her to impeach Gooden and excluded or discredited her, resulting in an acquittal, or hung jury.
• After hearing from Arnold and Gooden at the habeas hearing, the court denied Diamond’s writ application, finding that the undisclosed evidence was neither favorable nor material.
• The court of appeals reversed, finding that the undisclosed evidence was material because Gooden’s testimony was necessary for the jury to make an affirmative finding on the special issue of whether Diamond’s BAC level was 0.15 or more.

The undisclosed evidence was not material

• The habeas court was within its discretion to conclude that the undisclosed evidence was not material. There was overwhelming evidence of Diamond’s intoxication to support the guilty verdict regardless of Gooden’s testimony. The undisclosed evidence impeaching Gooden would not have impeached the evidence of Diamond’s intoxicated state.
• Gooden’s error in the other case was a “protocol error” regarding the certification of the report as complete. It was not a mislabeling or analysis error. The officer—not Gooden—had mislabeled the submission form accompanying the blood. The correctness of Gooden’s analysis of it was not in question. Gooden’s certification only moved the report to the next stage of administrative and technical reviewed before it was released.
• The judgment of the court of appeals is reversed, and the habeas court’s ruling is affirmed.

Moreno  v. State, No. PD-1044-19, 2020 Tex.Crim.App. LEXIS 412 (Tex.Crim.App. June 17, 2020) (designated for publication) (Kidnapping) [Duress under Tex. Penal Code § 8.05]

• Under Tex. Penal Code § 8.05(a), it is an affirmative defense to prosecution that the actor engaged in the conduct because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another. This affirmative defense is limited by the meaning of “compulsion,” exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure. It is an objective standard that looks not at whether the defendant was rendered incapable of resisting the pressure, but the effect the pressure would have on a person of reasonable firmness, who is not someone who is more susceptible to coercion because of a traumatic event.

Timmins v. State, No. PD-0867-18,   2020 Tex.Crim.App. LEXIS 403 (Tex.Crim.App. June 10, 2020) (designated for publication) (Failure to Appear) [“Custody” under Tex. Penal Code § 38.01, bail jumping or failure to appear]

Facts:

• Timmins was on bond for two felonies. At a hearing, the judge revoked bond for testing positive for meth. Timmins pleaded with the judge to let him escort his elderly mother home before custody. The judge agreed, allowing him to turn himself in by 3:00 p.m. Timmins never reported.
• Timmins was indicted for Bail Jumping per Tex. Penal Code § 38.10(a). Timmins was convicted and sentenced to 20 years.
• On appeal, Timmins argued that his conduct did not meet the statutory definition of bail jumping or failure to appear because he “was not a person lawfully released from custody” and his failure to report to jail did not amount a failure to “appear.” The court of appeals rejected both arguments and affirmed the conviction.

The evidence was legally sufficient

• The judge’s order permitting Timmins to take his mother home was a furlough, not a “release.”
• Under Tex. Penal Code § 38.01, “custody” means being under arrest by a peace officer or under restraint by a public servant per a court order of this state or another state. A person may be in “custody” even if he is not under physical restraint. A reviewing court must look at the legal status of the individual to determine whether he was in custody at the time of the alleged offense.
• When he absconded, Timmins was a person lawfully released from custody. The evidence was legally sufficient. The judgment of the court of appeals is affirmed.

Ward v. State, No. AP-77,096, 2020 Tex.Crim.App. LEXIS 413 (Tex.Crim.App. June 17, 2020) (designated for publication)  (pretrial habeas corpus) [Jurisdiction of the appeal of death penalty cases]

• A defendant who is confined after indictment—but not yet finally convicted—may file a writ of habeas corpus per Tex. Code Crim. Proc. Art. 11.08. If a trial court denies relief on the merits, the defendant may file an interlocutory appeal. Per Tex. Rule App. Proc. 31.1, the clerk must prepare and certify the clerk’s record and send it to the appellate court within 15 days after notice of appeal is filed. 
• Under Tex. Const. Art. V § 5(b), the appeal of cases in which the death penalty is assessed is to the TCCA. The appeal of all other criminal cases is to the Courts of Appeal. This is a “jurisdictional distinction” based on whether the death penalty is assessed. A court of appeals has jurisdiction over a properly filed appeal of the denial of a capital murder defendant’s pretrial writ, not the TCCA.

Williams v. State, No.  PD-0870-18, 2020 Tex.Crim.App. LEXIS 500 (Tex.Crim.App. June 24, 2020) (designated for publication) (Attempted Kidnapping) [Nunc pro tunc orders; motion for new trial extends appellate filing deadlines]

• Under Tex. Rule App. Proc. 23, nunc pro tunc orders or judgments are for actions taken outside a trial court’s plenary power, requiring the court to rely on its inherent authority to make the record reflect what actually occurred during its plenary power. A trial court may correct only clerical errors in a nunc pro tunc order or judgment because it lost plenary power and jurisdiction to correct judicial errors. A trial court may modify, correct, or set aside judgment and orders through motions for new trial, to arrest judgment, and judgment nunc pro tunc. Judgment nunc pro tunc—means “now for then”—may not be used to correct “judicial” errors, which are products of judicial reasoning or determination. Nunc pro tunc orders may be used only to correct clerical errors in which no judicial reasoning contributed to their entry and were not entered at the proper time.
• The trial court continued to have plenary power over its October 6 judgment when it entered the first and second nunc pro tunc orders. The trial court’s two post-October 6 orders were not nunc pro tunc orders—despite being labeled as such—and were exercises of its plenary power over its judgment.
• Under Tex. Rule App. Proc. 26.2, a notice of appeal must be filed within 30 days after the day sentence is imposed or suspended in open court. A notice of appeal must be filed within 30 days after the day the trial court enters an appealable order. If a defendant files a motion for new trial, a notice of appeal must be filed within 90 days after the day sentence is imposed or suspended in open court.

Facts:

• Williams was indicted for Aggravated Kidnapping and Attempted Aggravated Kidnapping. He was convicted of the lesser-included Attempted Kidnapping, SJF and assessed a sentence of 2 years.
• On October 6, 2016, the sentence was imposed. The trial court informed Williams that he had a right to appeal and he could do so by filing a notice of appeal within 30 days. The trial court told Williams that he would not receive credit for time in jail.
• The judgment was signed on October 10, 2016. It did not include the time-credit and provided that sex offender registration did not apply and did not include the age of the victim at the time of the offense even though the evidence showed that she was 11.
• On October 13, 2016, Williams filed a Motion for New Punishment Trial and Motion in Arrest of Judgment in which he argued that the punishment was contrary to the law and the evidence and that he was entitled to time credit. On October 24, 2016, Williams filed a Motion for New Trial and a Motion for Judgment Nunc Pro Tunc, asserting in both time-credit and a business records affidavit from the sheriff showing the time spent in jail.
• On October 25, 2016, the trial court entered a Nunc Pro Tunc Order Correcting Minutes of the Court showing that the victim was under 14 at the time of the offense and sex-offender registration applied.
• On October 26, 2016, the State filed a Response to Motion for Judgment Nunc Pro Tunc, agreeing that Williams was entitled to time credit.
• On October 27, 2016, Williams filed a First Amended Motion for Judgment Nunc Pro Tunc again arguing for time-credit.
• On October 28, 2016, the trial court entered a Judgment Nunc Pro Tunc amending the judgment with the time-credit.
• On December 16, 2016, Williams filed a notice of appeal. The state argued that the notice of appeal was untimely.  The court of appeals affirmed the judgment, including the nunc pro tunc orders. The State filed a PDR claiming that the notice of appeal was untimely.

The notice of appeal was timely

• The trial court imposed the sentence in open court on October 6. Williams filed his first motion for new trial on October 13 and second on October 24. Both were timely. Under Rule 26.2(a)(2), the 30-day deadline was extended to 90 days. Williams had until January 4, 2017, to file notice of appeal. The December 16 notice of appeal was timely.
• The judgment of the court of appeals is affirmed.

In re Yeager, No. WR-89,018-02, 2020 Tex.Crim.App. LEXIS 406 (Tex.Crim.App. June 10, 2020) (designated for publication)  (Mandamus) [If requested by the defendant, a judge may assess punishment in a class C case after a guilty verdict by a jury without the State’s approval]

• Mandamus lies when the: (1) relator has no other adequate legal remedy; and (2) act sought to be compelled is purely ministerial, which is one where the relator has a clear and indisputable right to the relief sought—the facts and circumstances dictate only one rational decision under unequivocal and clearly controlling legal principles.
• When asked to issue a writ of mandamus requiring a lower court to rescind its mandamus order, a reviewing court undertakes a de novo review of the lower court’s application of the two-pronged test for mandamus. 
• Under Tex. Code Crim. Proc. Art. 37.07 § 1(b), on a “not guilty” plea, a jury must return a verdict of guilty or not guilty. If it is guilty, except per § 2, the jury shall assess punishment if there is a range of punishment. Under § 2(a), juries decide guilt without reference to punishment in jailable cases. Bifurcation—dividing a trial into separate phases for guilt and punishment—is required for jailable offenses. § 2(b) states that if a defendant is found guilty of a noncapital crime, the judge shall assess punishment unless the defendant elected the jury to assess punishment. § 2(c) requires that punishment be assessed on each guilty count. Art. 37.07 does not clearly prohibit a judge from assessing punishment after a jury verdict of guilt on a not guilty plea in a Class C case.

Texas Courts of Appeals

Ex parte Hamilton, No. 14-18-00534-CR, 2020 Tex.App.-LEXIS 2547 (Tex.App.-Houston [14th Dist.] March 26, 2020) (designated for publication) (Invasive Visual Recording on pretrial habeas corpus) [Tex. Penal Code § 21.15(b)(1) meets strict scrutiny]

• Tex. Penal Code § 21.15(b)(1) meets strict scrutiny because it is narrowly drawn to protect substantial privacy interests limited to where a person has a reasonable expectation that her intimate areas are not subject to public view.
• Under Ex parte Lo, 424 S.W.3d 10, 13-14 (Tex.Crim.App. 2013) and Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126 (1989), a defendant may file a pretrial application for writ of habeas corpus to raise a facial challenge to the constitutionality of the charged statute. Whether a statute is facially unconstitutional is a question of law subject to de novo review. When the constitutionality of a statute is challenged, a court usually presumes that the statute is valid, and the legislature has not acted unreasonably or arbitrarily. Other than First Amendment challenges, a facial challenge will succeed only if the statute is unconstitutional in all of its applications. When the statute suppresses, disadvantages, or imposes differential burdens upon speech based on content, the presumption of constitutionality does not apply. Content-based regulations of protected speech are presumptively invalid, and the State bears the burden to rebut the presumption (strict scrutiny). Content-based laws—which target speech based on content—are presumptively unconstitutional and justified only if the government proves they are narrowly tailored to serve compelling state interests. The Government may regulate the content of constitutionally protected speech to promote a compelling interest if it chooses the least restrictive means. Under strict scrutiny, a regulation of expression is upheld only if it is narrowly drawn to serve a compelling government interest.
• Tex. Penal Code § 21.15(b)(1) regulates conduct subject to First Amendment protection because photos and visual recordings are inherently expressive. It seeks to curtail nonconsensual taking and dissemination of photos and visual recordings of another person’s intimate area. The sexual subject matter sought to be proscribed renders the statute content based. 

Lamb v. State, No. 06-19-00203-CR, 2020 Tex.App.-LEXIS 3225 (Tex.App.-Texarkana April 17, 2020) (designated for publication)  (Online Solicitation of a Child) [Scope of a search warrant to premises and persons]

• Under State v. Cortez, 543 S.W.3d 198, 203 (Tex.Crim.App. 2018), review of a trial court’s ruling on a MTS is for an abuse of discretion. The record is viewed in the light most favorable to the trial court’s ruling and the judgment is reversed only if it is outside the zone of reasonable disagreement.
• Under Crain v. State, 315 S.W.3d 43, 48 (Tex.Crim.App. 2010), Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000) and Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997), a ruling on a MTS is reviewed under a bifurcated standard of review: almost total deference to the trial court’s determination of historical facts that turn on credibility and demeanor, de novo on other application-of-law-to-fact issues, nearly total deference to application-of-law-to-fact questions (mixed questions of law and fact) if their resolution turns on an evaluation of credibility and demeanor, and de novo on mixed questions of law and fact if their resolution does not turn on an evaluation of credibility and demeanor. Under Osbourn v. State, 92 S.W.3d 531, 538 (Tex.Crim.App. 2002) and State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App. 2008), the trial court’s decision must be affirmed if it is correct on any theory of law that finds support in the record. 
• Under Long v. State, 132 S.W.3d 443, 448 (Tex.Crim.App. 2004), the scope of a search warrant is governed by the terms of the warrant, which includes spatial restrictions and items to be seized. A search under a warrant extends to the entire area covered by the warrant’s description. When courts examine the description of the place to be searched to determine the scope, they follow a common sense and practical approach, not a “Procrustean” or overly technical one. When the scope is challenged based on the location of the search, the officer must show that he was properly in the place where the item was found either on the basis of the warrant or under an exception to the warrant requirement. 
• Under Illinois v. Rodriguez, 497 U.S. 177, 185 (1990), what is generally demanded of factual determinations that must made by the magistrate issuing a warrant or the officer executing it is not that they always be correct but they be reasonable. There is no Fourth Amendment violation if an officer makes a warrantless search of apartment based on reasonable belief that he had valid consent even if he did not. 
• Under State v. Villarreal, 475 S.W.3d 784, 795 (Tex.Crim.App. 2014), to comply with the Fourth Amendment, a search of a person per a criminal investigation: (1) requires a search warrant or a recognized exception to the warrant requirement, and (2) must be reasonable under the totality of the circumstances.
• Under Ybarra v. Illinois, 444 U.S. 85, 88 (1979), a premises warrant authorizes police to search any item that might contain the object of the search but does not  authorize the search of a person it does not name because searches of a person involve a higher degree of intrusiveness and require justification in addition to that provided by the probable cause that supports a premises warrant.
• Under Tex. Rule App. Proc. 44.2(a), Williams v. State, 958 S.W.2d 186, 194 n.9 (Tex.Crim.App. 1997), and Chapman v. California, 386 U.S. 18, 24 (1967), an appellate court must reverse a conviction unless it concludes beyond a reasonable doubt that the error did not contribute to the conviction or the punishment. The burden is on the State to prove that the error was harmless—did not contribute to the conviction or punishment.
• Under Holmes v. State, 323 S.W.3d 163, 173-174 (Tex.Crim.App. 2009), where a trial court’s failure to permit defendants to present a defense could not be determined beyond a reasonable doubt not to have contributed to decision to enter pleas, the conviction must be reversed.

Facts:

• G.P. (a minor) was trading sexually explicit Instagram messages with 43-year old Lamb. G.P. attempted suicide after her mother confronted her about the messages.
• Officer Massey of the Reno PD learned that G.P. told Lamb that she was 15. Lamb attempted to claim that his son sent the messages, but the timing of the messages precluded that likelihood
• Massey executed an affidavit seeking a search warrant of Lamb’s property, including outbuildings and motor vehicles: “120 County Road 12550, Lamar County that has a brown wooden shop with the east side painted beige with a white camper trailer parked beside it. The address is displayed in front of the home on the mailbox…probable cause… that occupants…[was/were] in possession of cellphones, computers, and digital media storage devices that may contain sexually explicit material and messages with a minor child.” A search warrant issued as Massey requested.
• Lamb filed a MTS two cellphones. At the hearing, Massey testified that no one was present when he and other officers arrived. Lamb arrived during the search, pulled off the road, and parked. Massey could not testify about the property line or say whether Lamb’s vehicle was on the property described in the warrant.
• Lamb exited of his vehicle and asked the officers what was going on. Massey believed that Lamb was on the property described in the warrant and because Lamb parked his truck on the gravel, the truck was also on the premises. Although the search warrant did not authorize a search of Lamb’s person and Massey was aware of this, Massey removed Lamb’s cellphone from his pocket. Massey directed the other officers to search Lamb’s vehicle, in which they seized a second cellphone.
• The trial court denied the MTS.

The trial court did not err by denying the MTS the seizure of the cellphone from Lamb’s truck.  The trial court erred by denying the MTS the seizure of the cellphone from Lamb’s person, and Lamb was harmed

Editor’s note: this is the standard for review of a MTS:

• Under State v. Cortez, 543 S.W.3d 198, 203 (Tex.Crim.App. 2018), review of a trial court’s ruling on a MTS is for an abuse of discretion. The record is viewed in the light most favorable to the trial court’s ruling and the judgment is reversed only if it is outside the zone of reasonable disagreement.
• Under Crain v. State, 315 S.W.3d 43, 48 (Tex.Crim.App. 2010), Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000) and Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997), a ruling on a MTS is reviewed under a bifurcated standard of review: almost total deference to the trial court’s determination of historical facts that turn on credibility and demeanor, de novo on other application-of-law-to-fact issues, nearly total deference to application-of-law-to-fact questions (mixed questions of law and fact) if their resolution turns on an evaluation of credibility and demeanor, and de novo on mixed questions of law and fact if their resolution does not turn on an evaluation of credibility and demeanor. Under Osbourn v. State, 92 S.W.3d 531, 538 (Tex.Crim.App. 2002) and State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App. 2008), the trial court’s decision must be affirmed if it is correct on any theory of law that finds support in the record. 
• The search warrant authorized the search of any and all motor vehicles located on the premises of 120 County Road 12550. Massey did not know where the surveyed property line was located, but he believed that Lamb left the roadway. Massey believed that Lamb’s truck was on the premises or curtilage of his property. Even if Massey was mistaken in this belief, the search was valid because it was reasonable. 
• The affidavit described Lamb as having a special connection with the premises because he was alleged to have been in control of it. Thus, Lamb was subject to detention incident to the execution of the search warrant. However, the warrant did not include authority to search Lamb. Lamb was not identified in the warrant as a subject of the search. Lamb met the initial burden to prove the search occurred without a warrant. The State had to justify the warrantless search by proving an exception. 
• The exceptions to the rule that a search must be based on a warrant are voluntary consent and exigent circumstances. There is no evidence that Lamb consented to the removal of his cellphone from his person. The cellphone was not in plain view.
• Because the State failed to carry its burden to prove that an exception to the requirement of a search warrant applies—and the record supports no such exception—the search of Lamb’s person was constitutionally impermissible.
• Under Tex. Rule App. Proc. 44.2(a), Williams v. State, 958 S.W.2d 186, 194 n.9 (Tex.Crim.App. 1997), and Chapman v. California, 386 U.S. 18, 24 (1967), an appellate court must reverse a conviction unless it concludes beyond a reasonable doubt that the error did not contribute to the conviction or the punishment. The burden is on the State to prove that the error was harmless—did not contribute to the conviction or punishment.
• The State had the burden to show that the trial court’s error in failing to suppress this cellphone was harmless. The record does not disclose what evidence was contained on the cellphone. After the trial court denied the MTS, Lamb pleaded guilty.
• Under Holmes v. State, 323 S.W.3d 163, 173-174 (Tex.Crim.App. 2009), where a trial court’s failure to permit defendants to present a defense could not be determined beyond a reasonable doubt not to have contributed to decision to enter pleas, the conviction must be reversed.
• Because the court of appeals cannot conclude beyond a reasonable doubt that the denial of the MTS did not contribute to Lamb’s guilty plea, the trial court’s judgment denial of the MTS is reversed.

In re Leger, 598 S.W.3d 469 (Tex.App.-Houston [14th Dist.], March 24, 2020) (per curium)  (Mandamus) [Tex. Code Crim. Proc. Art. 42A.111, dismissal and discharge from deferred adjudication]

• Under In re McCann, 422 S.W.3d 701, 704 (Tex.Crim.App. 2013) (orig. proceeding), to be entitled to mandamus relief, a relator must show (1) that the relator has no adequate remedy at law for obtaining the relief the relator seeks; and (2) what he seeks to compel is a ministerial act rather than a discretionary act. A ministerial act does not involve judicial discretion but must be positively commanded and so plainly prescribed under the law as to be free from doubt. The relator must have a clear right to the relief sought. To show a clear right to the relief sought, a relator must show that the facts and circumstances of the case dictate but one rational decision under unequivocal, well-settled and clearly controlling legal principles. Even if there is a remedy at law, the relator can show that no adequate legal remedy exists if the remedy is so uncertain, tedious, burdensome, slow, inappropriate, or ineffective as to be deemed inadequate.
• Under Tex. Code Crim. Proc. Art. 42A.111(a), on expiration of deferred adjudication community supervision, if the judge has not proceeded to adjudication of guilt, the judge shall dismiss the proceedings against the defendant and discharge him. Under this mandatory language, a trial court has a ministerial duty to dismiss the underlying criminal charges upon completion of deferred adjudication community supervision. 

Love v. State, No. 02-19-00052-CR, 2020 Tex.App.-LEXIS 2518 (Tex.App.-Fort Worth March 26, 2020) (designated for publication) (Engaging in Organized Criminal Activity) [Disqualification of defense counsel; Tex. Disciplinary Rules Prof. Conduct 3.08(b); Tex. Code Crim. Proc. Art. 39.14(f)]

• Under Tex. Code Crim. Proc. Art. 39.14(f), defense counsel cannot let a client or witness have a copy of discovery materials tendered to counsel by the State under the MMA except for that person’s own statement, and before letting another view the discovery, counsel must redact identifying information. Tex. Code Crim. Proc. Art. 39.14 contains no built-in sanctions or remedial measures for counsel’s mishandling of the State’s discovery.
• Under Tex. Disciplinary Rules Prof. Conduct 3.08(b), a lawyer shall not continue as an advocate in a pending adjudicatory proceeding if the lawyer believes that he will be compelled to furnish testimony that will be substantially adverse to the client unless the client consents after full disclosure. Comment 10 provides that a lawyer should not seek to disqualify opposing counsel under Rule 3.08 merely because the opposing lawyer’s dual roles may involve an improper conflict of interest with the opposing lawyer’s client because it is a matter to be resolved between lawyer and client or in a subsequent disciplinary proceeding. Rule 3.08 does not warrant disqualifying counsel unless his testimony is necessary to an essential fact; if so, the opposing party must show that it will be prejudiced if counsel is not removed. Mere allegations of unethical conduct or a remote possibility of a violation of the disciplinary rules do not merit disqualification. The fact that a lawyer serves as advocate and a witness does not by itself compel disqualification. Rule 3.08 is a disciplinary standard, not a procedural rule for attorney disqualification, but courts often reference it as a guideline when determining whether a lawyer should discontinue representation.
• Under Landers v. State, 256 S.W.3d 295, 303 (Tex.Crim.App. 2008), when the trial court disqualifies an attorney, review is for an abuse of discretion.  When reviewing factual determinations, almost total deference is given to findings that the record supports, especially if they turn on evaluating credibility and demeanor. When reviewing how the trial court applied the law to the facts, review is de novo. 
• Under United States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006), the erroneous deprivation of the right to counsel of choice, with consequences that are unquantifiable and indeterminate, is structural error. Under Gonzalez v. State, 117 S.W.3d at 831, 836-837 (Tex.Crim.App. 2003), although the right is not limitless, defendants have the right to choose retained counsel, and the State’s burden in getting him removed is a heavy one. The State must demonstrate actual prejudice and showing only a possible future disciplinary-rule violation does not suffice. While a strong presumption favors a defendant’s right to retain counsel of choice, the judicial process’s integrity and fair and orderly administration may override the presumption. 
• Under Fuentes v. State, 664 S.W.2d 333, 335 (Tex.Crim.App. [Panel Op.] 1984), the State may not strike at a defendant over the shoulders of his counsel or accuse counsel of bad faith.

In re the State of Texas, No. 01-19-00688-CR, 2020 Tex.App.LEXIS 3420 (Tex.App.-Houston [1st Dist.] April 23, 2020) (designated for publication) [Mandamus] [Monetary sanctions under Art. 39.14(h) not authorized by statute]

• Tex. Code Crim. Proc. Art. 39.14(h) does not provide for the imposition of monetary sanctions against prosecutors who violate it. Nor does it identify sanctions that can be imposed. A court cannot impose monetary sanctions for violations of Art. 39.14(h).

State v. Whitman, No. 11-18-00001-CR & 11-18-00002-CR, 2020 Tex.App.-LEXIS 1481 (Tex.App.-Eastland Feb. 21, 2020) (designated for publication)  (Theft) [Required proof to show intent to appropriate]

• Under State v. Ford, 537 S.W.3d 19 (Tex.Crim.App. 2017), a defendant can commit theft before leaving a store with the property. Placing items in a personal bag is appropriation and shows the requisite intent to deprive. 
• Under State v. Martinez, 569 S.W.3d 621, 623-624 (Tex.Crim.App. 2019), when a defendant seeks to suppress evidence per a Fourth Amendment violation, the defendant initially bears the burden of proof, which is met by establishing that a search or seizure occurred without a warrant. The burden shifts to the State to show the reasonableness of the search or seizure. 
• Under State v. Steelman, 93 S.W.3d 102, 107 (Tex.Crim.App. 2002), an officer may arrest without a warrant only if probable cause exists with respect to the suspect, and the arrest falls within one of the exceptions set out in Tex. Code Crim. Proc. Art. 14.01. The State must show compliance with one of the exceptions for a warrantless arrest in addition to support by probable cause. Probable cause may be based on an officer’s prior knowledge and personal observations, and he may rely on reasonably trustworthy information provided by another in making the overall probable cause determination.

TCDLA

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.