July/August 2021 SDR – Voice for the Defense Vol. 50, No. 6

Voice for the Defense Volume 50, No. 6 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

An old phrase that tormented attorneys who immerse themselves in the nuances of expunction law is: “the arrest is the unit of prosecution for an expunction,” meaning that all offenses arising from the same arrest must be expunction eligible or none are. The Supreme Court has yet again chipped away at this notion this month in Ex parte R.G.P.G. In Houston, a couple of really smart prosecutors do their best Bill Clinton impression and feign bewilderment about what a person could possibly mean by using the word “snitch” when they insist on having a lawyer present before doing whatever it means to do that. Other than that, just some run-of-the-mill hard-hitting sig-decs this month!

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.

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. Cases are hyperlinked and can be accessed by clicking on the case name on the online edition.

This publication is intended as a resource for the membership and I welcome feedback, comments, or suggestions: (972) 369-0577.

United States Supreme Court

Caniglia v. Strom, 141 S.Ct. 1956 (2021)

Issue. Does Cady v. Dombrowski’s community caretaking doctrine, which permits an officer to enter a vehicle and secure an unattended firearm, also permit an officer to enter a home to secure a firearm?

Facts. This is a civil lawsuit filed in response to law enforcement entering petitioner’s home and seizing his weapons. While arguing with his wife the day before, petitioner placed a handgun on the table and asked his wife to “shoot him and get it over with.” The next day officers came to the home to conduct a welfare check. Officers suggested that petitioner admit himself to the hospital for a psychiatric evaluation. Petitioner agreed on the condition that officers not enter his home and seize his firearms. They promised. Then they took his firearms. Petitioner sued the officers for a violation of the Fourth Amendment. The district court granted summary judgment in favor of the officers and the First Circuit affirmed. Both courts cited Cady’s community caretaking exception.

Holding. No. “What is reasonable for vehicles is different from what is reasonable for homes.” At the very core of Fourth Amendment protections is “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Florida v. Jardines, 569 U.S. 1, 6 (2013). The holdings below go far beyond anything this court has ever authorized. “True, Cady also involved a warrantless search for a firearm. But the location of that search was an impounded vehicle—not a home—‘a constitutional difference’ that the opinion repeatedly stressed.” Citing Cady, 413 U.S., at 439.

Concurrence (Roberts, C.J.)(Breyer joins) A warrantless entry into a home is justified when there is a “need to assist persons who are seriously injured or threatened with such injury.”

Concurrence (Alito, J.) Petitioner glosses over some important questions this court might ultimately have to address: (1) the State’s ability to effect “a short-term seizure conducted for the purpose of ascertaining whether a person presents an imminent risk of suicide;” (2) “the so-called ‘red flag’ laws that some States are now enacting” which allow officers to get a court order to seize guns to prevent their use for suicide or infliction of harm on innocent persons, and (3) the ability of police to enter a home to determine whether a person is in need of help.

Concurrence (Kavanaugh, J.) It is important to note that officers would have the authority to enter a home to assist someone in need of aid.

Comment. It’s nice to see the court pushing back against the rampant expansion of community caretaking exception justification.

Fifth Circuit

United States v. Torres, 997 F.3d 624 (5^th Cir. 2021)

Issue. Without offending the Sixth Amendment, can a trial court prohibit counsel from communicating with his client during an overnight recess occurring in the middle of the defendant’s trial testimony?

Facts. At 7:09 P.M. during the second day of trial, the State presented its final witness and rested. Counsel for the defendant informed the court that the defendant wished to testify and that he anticipated that direct examination would take several hours. The trial court proceeded with the defendant’s testimony but ultimately declared an overnight recess at 8:03 P.M. At that time, the district court issued a sequestration order prohibiting the defendant from speaking to any person, including counsel, during the recess. Counsel requested clarification and the trial court sternly admonished counsel that he was prohibited from speaking with his client. 

Holding. The propriety of denying the defendant access to counsel in trial exists on a spectrum. In Geders v. United States, 425 U.S. 80, 91 (1976), the Supreme Court found a 17-hour overnight recess too long of a period to bar counsel from communicating with client. In Perry v. Leeke, 488 U.S. 272, 284-85 (1989) the Supreme Court found that a prohibition on conferring with counsel during a short recess of only a few minutes did not violate the Sixth Amendment. Here, the 13-hour prohibition falls
“squarely within the Geders rule; that is, a trial court may not bar a testifying criminal defendant from all communication with his attorney during an overnight recess.” This is plain error, reviewable without an objection. The circumstances of the error are “so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.”

Comment. At 9 P.M. on a Monday, I finished this summary by reading the final paragraph of this case in which the court gives us a 7-P.M.-was-probably-a-good-time-to-stop-working-for-the-day type commentary. Touché.

Texas Supreme Court

Ex parte R.P.G.P., No. 19-1051 (Tex. 2021)

Issue. Is expunction eligibility for a single offense contingent on expunction eligibility for all offenses arising from the same arrest?

Facts. Petitioner was arrested for DWI. During that investigation officers found marijuana. Petitioner’s DWI was dismissed after completion of pretrial diversion. Petitioner pleaded guilty and was placed on deferred adjudication for the marijuana charge. When petitioner attempted to expunge the DWI, the State opposed the “partial expunction request” on the basis that not all offenses arising from the arrest were eligible for expunction—the marijuana charge was still non-expungable. The State claimed and the court of appeals agreed that the expunction statute is arrest based and not offense based.

Holding. No – not in cases involving only misdemeanors. In cases involving only misdemeanors a defendant may expunge as many offenses which are eligible for expunction regardless of whether another misdemeanor case arising from that arrest is expunction-eligible. “Article 55.01 is neither entirely arrest-based nor [entirely] offense-based.” The legislature defined expunction eligibility in the case of dismissal, non-filing, and pretrial diversion as scenarios where the charge did not result in conviction and for where no probation was ordered for the offense. The use of “the” in referring to “the offense” and “the charge” reflects the legislature’s intent to tie expunction eligibility to a single offense and not all offenses arising from the arrest.

Dissent (Bland, J.). “The object of the statute is the expunction of ‘all records and files relating to the arrest,’ not some records.” The majority opinion creates bureaucratic problems associated with partially redacting arrest information from a person’s record. 

Comment. This is opinion is a gamechanger. But it is limited to only misdemeanor offenses. The Court reaches this distinction based on the juxtaposition of language in Article 55.01(a)(2)(A): “regardless of whether any statute of limitations exists for the offense and whether any limitations period for the offense has expired, an indictment or information charging the person with the commission of a misdemeanor offense based on the person’s arrest or charging the person with commission of any felony offense arising out of the same transaction for which the person was arrested. “The juxtaposition between the singular language used for misdemeanors and the plural language used for felonies demonstrates that an offense-based interpretation applies to misdemeanors while an arrest-based interpretation applies when more serious crimes—felonies—are involved.”

Texas Court of Criminal Appeals

Ramirez v. State, No. AP-77,084 (Tex. Crim. App. 2021)

Issue. The defendant confessed to and was convicted of orchestrating a gang-robbery-shootout-murder. He now wishes to conduct DNA testing on a pair of hats left at the scene by shooters. Can he show these purportedly exculpatory mystery hats sufficiently useful to him that it would warrant post-conviction DNA testing?

Facts. Defendant was convicted and sentenced to death for his involvement in the robbery and murders of rival gang members. The evidence at trial showed that Defendant directed the activities of his gang who broke into a home, ransacked the place, then killed most of the occupants. Defendant had a gang tattoo that matched that of the gang responsible for the murders. The two gangs involved had “green lights” with respect to members of the opposite gang (they could kill one another without asking permission from command structure). Defendant confessed to his involvement in the murders including directing the activities of his co-defendants. Defendant’s confession was corroborated by a surviving witness who indicated that the man giving orders wore a hat which he dropped at the crime scene. The jury applied the law of parties to convict the defendant. In the instant post-conviction proceeding requesting DNA testing, the defendant presented evidence from a co-defendant and fellow gang member indicating that the defendant was not the person giving orders and that the individual who took off his hat was named Lenny. He also presented arguments that his confession following the murder was false – in support citing evidence and argument presented in his previous writ of habeas corpus.

Holding. No. Several statutory conditions must be met before a defendant is entitled post-conviction DNA testing. Relevant here: (1) “identity was or is an issue in the case,” and (2) that the defendant “would not have been convicted if exculpatory results had been obtained through DNA testing.” Tex. Code Crim. Proc. art. 64.03(a). The defendant incorrectly relies on Article 64.03(b) for the proposition that the trial court may not consider his confession in resolving the second issue: whether he would have been convicted in a trial with the benefit of DNA testing. Article 64.03(b) only prohibits the trial court from considering a defendant’s confession in determining whether “identity was or is an issue in the case.” The defendant also incorrectly asserts that the trial court was required to accept the veracity of the affidavit submitted by his co-defendant and fellow gang member. “Testimony from an accomplice which exonerates a defendant without exposing the accomplice to further criminal liability is to be viewed with suspicion.” The defendant has failed to show that his confession was false and has failed to show how DNA testing excluding him as an individual wearing a hat would have been useful to him at trial. He was convicted under the law of parties and whether he was one of the hat-wearers or not, he was part of a gang robbery resulting in multiple murders.

Spielbauer v. State, No. PD-0245-20 (Tex. Crim. App. 2021)

Issue. Must a trial court dismiss a potential juror for cause based solely on that potential juror’s answer to a jury questionnaire?

Facts. The venire summoned for defendant’s non-death capital-murder trial responded to a questionnaire. The questionnaire asked whether prospective jurors had heard about defendant’s case and had already formed an opinion about his guilt or innocence. Six veniremembers indicated they had. The trial court questioned these veniremembers and two of them renounced their written answers indicating that they responded to the questionnaire mistakenly. On this basis the trial court declined to remove these two jurors for cause.

Holding. Texas Code of Criminal Procedure Article 35.16(a)(10) provides a challenge for cause when “there is established in the mind of the juror such a conclusion as to guilt or innocence of the defendant as would influence the juror in finding a verdict.” The Code continues by indicating that once the juror admits such an opinion would influence his or her verdict, “the juror shall be discharged without further interrogation by either party or the court.” However, “a questionnaire answered before voir dire will not by itself support a challenge for cause . . .” Questions answered in a questionnaire are not part of formal voir dire. “They may be a useful tool, but questionnaires are no substitute for the human interaction inherent to voir dire and essential to the trial court’s evaluation of a juror’s suitability for jury service.”

Comment. Before reaching the merits, the trial court first considered the appropriateness of the State arguing a new and distinct legal theory from that which was raised in the Court of Appeals. The court declined to impose existing error preservation requirements on the State “Given that our preservation rules are intended to protect the trial court’s judgment from reversal based on arguments never heard by the trial court, we answer this threshold issue in the negative: The State’s arguments are not foreclosed from our consideration.” “The rules of preservation are judge-protecting rules.” This new rule overrules a 30-year-old precedent set in Rochelle v. State, 791 S.W.2d 121 (Tex. Crim. App. 1990).

Petetan v. State, No. AP-77, 038 (Tex. Crim. App. 2021)

Issue. (1) was a death-sentenced defendant entitled to a pre-trial determination of his intellectual disability? (2) Was the jury’s finding of no-intellectual-disability legally sufficient? (3) was it factually sufficient?

Facts. Defendant was convicted of capital murder for killing his wife. In response to a special issue, the jury rejected the suggestion that the defendant was intellectually disabled and ineligible for the death penalty. Several experts testified on behalf of the defendant that he had significantly subaverage intellectual functioning with childhood and adult IQ scores which ranged from 52 and 74. The State presented no expert witnesses but instead focused on conflicting implications raised by his school grades, human interactions, and occasional employment.

Holding. The State cannot execute a person who is intellectually disabled. The Court of Criminal Appeals initially decided this case prior to the United States Supreme Court twice reversing the Court of Criminal Appeals in the similar case of Moore v. Texas. 137 S.Ct. 1039 (2017). In Moore the Supreme Court found that the Court of Criminal Appeals unduly relied on judicially crafted standards which focused on the defendant’s abilities rather than the defendant’s disability and which required the defendant to show that his deficits were not related to a personality disorder. After twice reversed in Moore, the court reconsidered the instant case in order to apply more appropriate clinical standards for intellectual disability. “Concerning the sufficiency of the evidence regarding the jury’s rejection of his intellectual disability claims, we apply contemporary clinical standards—the framework set forth in the [American Psychiatric Association’s] DSM-5—for assessing intellectual disability.” The burden of proof falls to the defendant to show by a preponderance of the evidence that he has subaverage intellectual functioning and significant limitations in adaptive skills such as communication, self-care, and self-direction—both manifest before the age of eighteen. Intellectual disability is in the nature of an affirmative defense and “[a]ffirmative defenses may be evaluated for legal and factual sufficiency.” (1) No. the law does not require anything more than a consideration of intellectual disability during sentencing. (2) Yes. There was conflicting evidence presented regarding the defendant’s abilities as a child and his educational achievements; conflicting evidence presented regarding the defendant’s social abilities; and conflicting evidence presented defendant’s practical skills such as cooking, cleaning and managing day-to-day tasks. There was at least a scintilla of evidence to support the jury’s rejection of intellectual disability. (3) No. Evidence contrary to the jury’s verdict greatly outweighs that which supports it when viewed in a neutral light. It is improper under Moore to allow the jury to reject clinical conclusions in favor of their lay-person opinions of the defendant’s adaptive strengths. “Expert after expert diagnosed Appellant with mild intellectual disability . . .” “We therefore conclude that the jury’s rejection of Appellant’s intellectual disability claim was clearly wrong and manifestly unjust.”

Dissent (Keller, J.). The Defendant’s medical evidence was flawed, the defendant’s non-medical evidence was biased and unreliable. Some evidence suggested the IQ scores fell above the range for intellectual disability. There was evidence of the defendant’s malingering, deception, and fakery. The State should kill him according to the jury’s verdict.

Montelongo v. State, No. PD-0202-19 (Tex. Crim. App. 2021)

Issue. To preserve error, must a defendant who timely filed a motion for new trial and requested a hearing also object to the trial court’s failure to hold a hearing?

Facts. A jury convicted defendant of Attempted Capital Murder and Continuous Family Violence and sentenced him to 99 years and 10 years, respectively. Defendant timely filed a motion for new trial and requested a hearing. The trial court initially set, but then cancelled, a hearing. The trial court never reset the new trial hearing and never ruled on defendant’s motion. As a result, the motion was denied by operation of law. In the intermediate appellate court, defendant argued that the trial court abused its discretion in failing to hold a hearing on the motion for new trial. The intermediate appellate court rejected this argument and held that the defendant had not preserved error because the defendant did not: (1) attempt to reschedule, (2) attempt to obtain a ruling, and (3) object to the trial court’s failure to rule.

Holding. No. “To avoid forfeiting a complaint on appeal, the party must let the trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the judge to understand him at a time when the judge is in a position to do something about it.” A defendant’s obligation of a timely objection is to object at the earliest opportunity or as soon as the grounds for the objection become apparent. “When do the grounds for the objection—that the trial court failed to hold a hearing on the motion for a new trial—become apparent?” A trial court has not “failed” to hold a hearing until the trial court can no longer hold a hearing. Unlike other trial court errors, when a motion for new trial is overruled by operation of law, “the grounds for objection become apparent at a time when the trial court is unable to do anything about it.” It would be improper for the trial court to fix its error upon the defendant’s objection after its plenary power expires (75 days after sentence imposed).

Dissent. (Slaughter, J.) Dissenting without opinion.

Johnson v. State, No. PD-0561-20 (Tex. Crim. App. 2021)

Issue. Does the combination of the following circumstances rise to the level of reasonable suspicion: unusual activity, secretive behavior, dark parking lot, vague representation by an officer that the place is where crimes sometimes occur?

Facts. A police officer became interested in the defendant when it appeared to him the defendant was attempting to avoid other people. The officer ultimately detained the defendant and articulated the following reasonable suspicion: the fact that the defendant was not parked near other vehicles, that it was after midnight, that the lot was known for “a variety of criminal activity,” and that the defendant and his passenger moved when he shined a spotlight into defendant’s vehicle. In response to these observations, the detaining officer turned his emergency lights on, parked 10-15 yards away, and approached the defendant’s vehicle on foot. The intermediate court of appeals reversed the trial court’s denial of defendant’s motion to suppress.

Holding. Yes. “Assuming, without deciding, that a seizure did occur, we agree with the State that Sergeant Cox had reasonable suspicion.” Unusual activity related to a crime is sufficient. Seven facts supported reasonable suspicion in this case: (1) an inference that the lot had significant association with criminal activity, (2) the officer’s opinion that it was unusual to be sitting in a parked car in that lot after midnight, (3) at least one person was inside the vehicle after midnight, (4) that person was awake, (5) the vehicle’s exterior lights were off, (6) the vehicle’s interior lights were off, and (7) the vehicle was parked away from other vehicles. “The unusual and secretive behavior of the occupants of Appellant’s vehicle at least gave rise to an objectively reasonable suspicion that some sort of crime was being committed or contemplated.”

Dissent (Walker, J.) These facts do not present reasonable suspicion. The court derives reasonable suspicion from the fact that the defendant was not acting as an innocent person would. “But what one might expect of an innocent person is no way to judge whether a stop is supported by reasonable suspicion.” “It seems to me that, in order to uphold the detention in this case, the Court has to resort to stereotypes about light and dark, day and night, good and evil.”

Comment. Exercising the right to privacy is by its very nature “secretive behavior.” I always have a hard time with cases that find that “being private” is a factor in overcoming the right to privacy. Certainly, the activity here is “unusual” but I don’t see where it is tied to criminal activity.

Hammack v. State, No. PD-0636-19 (Tex. Crim. App. 2021)

Issue. Is formal notice service of an order pertaining to child custody an element of the offense in an Interference with Child Custody prosecution?

Facts. CPS suspected defendant was abusing his daughter. A CPS investigator went to the defendant’s home to investigate, and the defendant promptly ordered the investigator off the property. Two CPS investigators came back the next day with a court order. The investigators identified themselves and informed the defendant that the order gave them custody of his daughter. Defendant became aggressive and ordered them to leave. The CPS investigators complied, but later picked the daughter up from school and held her at the local CPS office. Investigators called defendant to inform him again about the court order and what was occurring. After the call, the daughter escaped. In their search for the child, CPS investigators and police discovered the defendant at his mother’s home where he was attempting to enter the attic. They could also hear voices coming from the attic. CPS left the home without further investigation after the defendant became confrontational and his mother withdrew consent to search. Evidence showed that a few days later defendant took his daughter to Oklahoma where she married her eighteen-year-old boyfriend.

Holding. Penal Code § 25.03(a)(1) provides:

(a) A person commits an offense if the person takes or retains a child younger than 18 years of age:

(1) when the person knows that the person’s taking or retention violates the express terms of a judgment or order, including a temporary order, of a court disposing of the child’s custody.

Appellant’s argument that he could not know about the “express terms” of the order without service of the order is unpersuasive. The statute merely requires the defendant to know of the express terms he purportedly chose to violate. This case is unlike Harvey v. State, where the court interpreted notice requirements in the context of a protective order violation (“VPO”). In Harvey, the court determined the VPO statute to require formal notice and service as elements of the offense because all orders under the VPO statue require the satisfaction of specific notice and service requirements before such orders become “binding.” Here, “[t]here is no indication that the statutory service requirements of a particular child custody order must be incorporated into the terms of the offense.” Section 25.03 does not list provisions of the code defining custody orders, “it only refers generically to a ‘judgment or order, including a temporary order, of a court disposing of the child’s custody.’” Because Section 25.03 provides for a culpable mental state (knowingly), there is no need to resort to the notice or service requirements particularized statutory methods for notice and service. 

Dissent. (Keller, J.). Defendant was told that CPS was awarded custody but not “sole custody.” The CPS investigators merely guessed that defendant knew this fact. There is no evidence that he did.

Comment. The court also rejects defendant’s argument that, absent service of the order, he has the right to distrust the information conveyed to him by the CPS investigators. At least in this context, where multiple CPS investigators continued to convey information to him and police became involved in a search for the child.

Ex parte Andrus, No. WR-84, 438-01 (Tex. Crim. App. 2021)

Issue. Did the following failures of trial counsel constitute harmful deficient performance in a capital murder case: failure to conduct a mitigation investigation, failure to present mitigation evidence, accidentally bolstering State’s witnesses, and failure to investigate the State’s aggravating evidence?

Facts. This case is decided after remand from the Supreme Court of the United States (SCOTUS). The Court of Criminal Appeals (CCA) previously rejected the defendant’s ineffective assistance of counsel writ citing failure to show deficient performance in a one-sentence opinion. SCOTUS considered the defendant’s new evidence and reversed on the “tidal wave of information . . . with regard to mitigation” which “revealed a childhood marked by extreme neglect privation, a family environment filled with violence and abuse.” This included: (1) the violent neighborhood defendant grew up in, (2) the lack of a father figure, (3) the physical abuse endured by him and his siblings by their various, (4) the abuse committed by his siblings’ various fathers against his mother, (5) an incident involving one sibling’s father raping another one of defendant’s siblings, (6) his mother engaging in prostitution and drug dealing from the home, (7) parents who were constantly high, (8) defendant stepping into the role of head of the household and assuming responsibilities of cooking, cleaning and educating his siblings (9) defendant’s diagnosis with affective psychosis. SCOTUS also found some reasonable mitigating circumstances surrounding the state’s aggravating evidence, such as young age, suicidal behavior, and adverse reactions to psychotropic drugs.  In consideration of this evidence, SCOTUS remanded the case and instructed the CCA to consider harm.

Defendant’s offense involved an attempted carjacking where he shot and killed two people and wounded another. The State presented evidence of a violent and aggressive past. Defendant had two juvenile adjudications, one for drug possession and the other for solicitation of aggravated robbery. He was ultimately confined in the Texas Youth Commission for these offenses. The month prior to committing the instant capital murder, the defendant committed a particularly violent aggravated robbery. During his various periods of confinement, he was aggressive, threatening, and violent toward staff. He also admitted to being a member of a street gang. At trial, defendant testified to his upbringing by a drug-dealing mother and lack of any real adult supervision which led to his life of crime and drug use. He also indicated that he had given his life to God and was ready to make a change.

Four concurring judges in the CCA’s original opinion in this case described their thoughts on some of defendant’s new mitigating evidence. The concurring opinion characterized the new evidence as duplicative of what was presented by him and his family members or as “double-edged” evidence which could have been used both as mitigating and aggravating (in particular evidence of a history of abusing and killing animals that defendant’s mitigating expert would have been required to admit). This, combined with the significant aggravating evidence, did not warrant a finding of harm, according to the concurring opinion.

Holding. No. SCOTUS requires the CCA to consider “the totality of the available mitigation evidence—both that adduced at trial, and the evidence adduced in the habeas proceeding—and reweigh it against the evidence in aggravation. A finding of prejudice requires a reasonable probability that at least one juror would have struck a different balance regarding Applicant’s moral culpability.” SCOTUS’s assumption that the CCA did not consider prejudice is incorrect. Nonetheless, the CCA articulates its rationale in this new opinion: “the mitigating evidence offered at the habeas stage was relatively weak in that it was not specific to Applicant, was contradicted by other evidence, or overlapped evidence heard by the jury, and because the aggravating evidence was strong.” [17 pages of critical analysis of defendant’s new evidence followed].

Dissent (Newell, J.). “The United States Supreme Court unquestionably made mistakes regarding this Court’s original order denying post-conviction relief in this case.” Justice Alito pointed this out in his dissent, but the SCOTUS majority didn’t care. SCOTUS, unpersuaded by the CCA’s previous denial is likely to be unpersuaded by this more articulated denial which flies in the face of SCOTUS’s characterization of the evidence in this case.

Comment. I don’t think the CCA liked getting reversed here. “We did not set forth our reasons for denying habeas relief, but we are not aware of any constitutional requirement to do so.” This statement speaks loudly. This is not a mea culpa, the CCA  appears to frankly disagree with SCOTUS requiring them to provide the 17 pages of analysis it now provides in the instant opinion on remand. That statement is followed by “Nevertheless, in an abundance of caution, we now set forth our reasoning . . .” I do believe Judge Newell will be correct in the end. 

Williams v. State, No. PD-0477-19 (Tex. Crim. App. 2021)

Issue. Is a defendant required to identify evidence in the record supporting a lesser-included instruction to preserve error in its denial?

Facts. A jury convicted the defendant of continuous trafficking. Evidence at trial showed that he managed “adult escort” services on backpage.com, specifically those of an adult woman and a 16-year-old girl. This scheme lasted more than a year, during which the backpage.com ads were paid directly by the woman and the girl with one limited exception. During a 16-day period, the defendant paid for some of the ads. Despite the suggestion raised by the backpage.com billing records, substantial evidence showed that Appellant managed this trafficking scheme. But his theory was that he didn’t. Defendant testified and explained that he had no idea that these girls were even escorts, that they must have set up the backpage.com ad themselves, and that other incriminating evidence was the product of coincidence. The trial court denied defense counsel’s request to instruct the jury on the lesser-included offenses “trafficking, compelling prostitution, prostitution, and . . . simple assault.” When asked by the trial court, counsel could not point to any evidence in the record supporting his requests for lesser included offenses. The trial court denied the request. However, the court of appeals reversed based on the suggestion raised by 16 days backpage.com billing attributed to the defendant. According to the court of appeals this constituted “more than a scintilla of evidence from which a rational jury could conclude Appellant was guilty of only trafficking and not continuous trafficking [occurring for more than 30 days].”

Holding. Yes, unless the evidence is obvious. Defensive instructions are subject to the ordinary rules of procedural default. “Requests for lesser-included instructions, like requests for defensive instructions, frequently depend upon trial strategy and tactics, so they are not considered the law applicable to the case.” To preserve error on jury charge error, counsel must either present objections in writing or dictate them into the record. To preserve error on omitted lesser-included offenses, the defendant must point to evidence in the record supporting the proposed instruction unless the evidence is obvious. “A defendant who files or dictates a laundry-list of objections to the charge must also specify the legal or factual reasons why he believes himself entitled to such special instructions.” Defendant’s theory at trial was he committed no offense. As such, facts supporting the lesser-included offenses were not obvious to the trial court.

Dissent (Yeary, J.). No rule or case requires a defendant to cite factual support on top of citing the legal support for a requested jury instruction.

Comment. As much as I loathe when ultra-technical error preservation rules are used as a mechanism to condone an unfair trial, I don’t believe this is one of those circumstances. I agree with the majority that this was a he-did-it versus he-didn’t-do-it case. But if this counsel-must-point-to-the-evidence rule is to be employed going forward, I do hope to see plenty of cases where courts find that that defense counsel’s failure is excused by the obviousness of evidence in the record.

Ex parte Jones, No. PD-0552-18 (Tex. Crim. App. 2021)

Issue. Does the previous 2017 version of Texas’s revenge porn statute violate the First Amendment?

Facts. Defendant was charged with “Unlawful Disclosure of Intimate Visual Material” under Texas Penal Code Section 21.6(b). The indictment, which tracked one of several ways the statute criminalizes conduct, alleged that he did:

Intentionally or knowingly without the effective consent of [A.B.], hereafter styled the complainant, intentionally disclose visual material, namely, photograph, depicting the complainant with her naked genitals exposed, and the visual material was obtained by the defendant under circumstances in which the complainant had a reasonable expectation of privacy that the visual material would remain private, and the disclosure of the visual material caused harm to the complainant, namely, embarrassment, and the disclosure of the visual material revealed the identity of the complainant, through accompanying or subsequent information provided by the defendant.

Holding. No. “Section 21.16(b) is content based on its face” because it targets a particular kind of visual material—that which depicts intimate parts or sexual activity. Content-based regulations must be narrowly tailored to serve a compelling government interest. Protecting an individual’s sexual privacy is a compelling government interest. Narrow tailoring is the more difficult question in this case. Section 21.6(b) prohibits disclosures “only under certain privacy-invading circumstances—where the depicted person: (1) has not consented, (2) has a reasonable expectation of privacy, and (3) is identified.” The literal text of the statute, however, only requires that a defendant act intentionally with regard to the disclosure. This suggests that the defendant is strictly liable for all other circumstances which makes the disclosure a crime. Strict liability raises serious constitutional doubts when the government seeks to regulate speech, “therefore, it is incumbent on the Court to read the statute to eliminate those doubts so long as the statute is reasonably susceptible to such a construction.” Here the Court can presume the legislature did not intend to punish inadvertently disclosing sexually private material. Accordingly, to eliminate unintended overbreadth, the court holds “that the statute only covers the intentional disclosure of sexually explicitly material by third parties when that third party (1) obtained the material under circumstances in which the depicted person had a reasonable expectation that the image would remain private; (2) knew or was aware of but consciously disregarded a substantial and unjustifiable risk that he did not have effective consent of the depicted person; and (3) knowingly or recklessly identified the depicted person and cause that person harm through the disclosure.

Comment. The legislature amended the statute in response to the court of appeals holding finding the statute unconstitutional, it now requires far more in terms of mens rea, but it does not include the culpable mental state grafted onto the statute by the court regarding the act of identifying the depicted person. This issue may still be live.

1^st District Houston

State v. Negrete, No. 01-19-00357-CR (Tex. App.—Houston [1^st Dist], May 4, 2021)

Issue. Is the statement “I don’t want to snitch without a lawyer” an unambiguous invocation of the right to counsel?

Facts. Police interrogated the defendant about a murder. The defendant moved to suppress the interrogation alleging that officers violated his Fifth Amendment rights by failing to honor a request to have counsel present during interrogation and by coercing his confession by threatening criminal charges against his family members. The only evidence presented to the court in a hearing on the motion to suppress was a videotape of the interrogation.

After reviewing the videotaped recording, the trial court listed the “three statements [by appellee that it] found invoke[ed] [the right to] counsel.” The first statement by appellee, which occurs about thirteen minutes and ten seconds into the videotape recording, was: “I don’t want to snitch without a lawyer.” (Internal quotations omitted.) The second statement by appellee, which occurs about nineteen minutes into the videotaped recording, was: “What about my lawyer right there.” (Internal quotations omitted.) The third statement by appellee, which occurs about twenty minutes and forty seconds into the videotaped recording, was: “I want to make sure that I am going to be benefitted. That’s why I need a lawyer.”

Several times the officers also threatened to arrest defendant’s family members who they knew had nothing to do with criminal activity.

The State asserts that appellee’s statement, “I don’t want to snitch without a lawyer,” was not an unambiguous invocation of his Fifth Amendment right to counsel because the word ‘snitch’ is informal or slang and “it is not exactly clear when a criminal defendant snitches,” thus making the term “snitch itself ambiguous. (Internal quotations omitted.) Further, appellee’s statement only indicated that his “desire for an attorney [was] condition[ed] on when he snitche[d],” and it was not a blanket request for an attorney.

Holding. Yes. Law enforcement “may not conduct a custodial interrogation of a suspect who has requested the assistance of counsel.” Ambiguous and equivocal statements about counsel are insufficient to invoke the right or warrant suppression of statements resulting from continued interrogation. But the invocation does not require the expression of magical words. “Appellee’s statement was an unambiguous and unequivocal invocation of his right to counsel, and it is not unlike the statements made by the defendants in other cases in which courts have held that the defendant clearly invoked his right to counsel.” The State’s argument that the defendant’s request was conditional or not framed as a request is unpersuasive.

Comment. A different result would have been reached by the shameless Louisiana Supreme Court which once pretended to find ambiguity in the statement, “I want my lawyer dog.” That court found a reasonable person could not determine whether such an expression meant the suspect wanted the assistance of a real human lawyer or the assistance of a dog with a license to practice law. State v. Demesme, 228 So. 3d 1206 (La. 2017). I thought about discussing the professionalism of the State’s argument in this case to make sure I wasn’t being unfair. I quickly noticed they cited the Demesme case and now I have spent more time deleting not-nice snark-commentary than I have drafting an actual summary of this case.

Alternate Comment (Erin Therrian, SDR Wife). What if the detectives were big Harry Potter fans, I can see how that would be confusing for them?

Goliat v. State, No. 01-19-00904-CR (Tex. App.—Houston [1^st Dist.] May 11, 2021)

Issue. Is a trial court required to re-open punishment evidence for counsel who learned from a State’s punishment witness that the victim has favorable things to say about the defendant?

Facts. A jury convicted defendant of two counts of aggravated sexual assault against a child for sexually abusing his girlfriend’s daughter who was 11 years old. Evidence showed that defendant bribed and badgered the victim to engage in sexual conduct. The victim became suicidal and eventually shared the facts of his sexual abuse. Defense counsel did not present evidence during guilt-innocence. Defense counsel did not present evidence during punishment. Defense counsel stipulated to six prior adjudicated offenses. Defense counsel did not challenge evidence of several unadjudicated offenses. The State presented the testimony of the victim’s mother (defendant’s former girlfriend) who told the jury that the victim did not want to hurt the defendant, see him suffer, or spend the rest of his life in jail. In her opinion, her daughter had been brainwashed by the defendant. Before closing arguments and reading of the punishment charge, defense counsel moved to re-open the evidence to present punishment testimony from the victim regarding her feelings about punishing the defendant. The trial court denied counsel’s request to re-open the evidence. The State argued in punishment that, among other things, there was no “mitigating evidence, anything that would make you feel sorry for him.” The jury sentenced the defendant to 65 years.

Holding. No. A trial court’s refusal to reopen evidence is reviewed for an abuse of discretion. The Code of Criminal Procedure requires the trial court to “allow testimony to be introduced at any time before the argument of a cause is concluded if it appears that it is necessary to a due administration of justice.” Tex. Code Crim. Proc. art. 36.02. Evidence necessary to a due administration of justice is evidence that would materially change the case in the proponent’s favor. Defendant contends that the victim’s plea for leniency is “unique testimony for which there is no substitute and would carry great weight with any jury.” However, here, the jury had already heard the victim testify in guilt-innocence that she still cared for the defendant and the victim’s mother testified in punishment that she did not want to hurt him or spend life in prison. Because the jury heard the evidence from other sources, there is no basis to conclude that the testimony would materially change the case in the proponent’s favor.

Comment. If you can think of a reason to not call punishment witnesses in an Aggravated Sexual Assault of a Child case, then you have a better imagination than I do.

Flowers v. State, No. 01-18-01059-CR (Tex. App.—Houston [1^st Dist.] May 27, 2021)

Issue. When a judge believes he has given the minimum punishment allowed but is wrong about the minimum punishment, may an appellate court reform the judgment to reflect the true minimum punishment?

Facts. Defendant pleaded guilty to Possession of Controlled Substance 4 Grams or More but Less Than 200 Grams in a Drug Free Zone (enhanced again by one prior felony). Counsel, prosecutor, and trial judge all agreed that the effect of the drug-free zone enhancement increased defendant’s minimum punishment to 15 years. They were wrong. On appeal the State and defendant agree on this much—that the minimum punishment for an offense so-enhanced is 10 years. When defendant expressed shock at the severity of his sentence and in particular that the Drug Free Zone enhancement also required the judge to sentence him concurrently with a separate charge to which he pleaded, the trial court expressed that it had sentenced the defendant to the minimum punishment allowed by statute. On appeal, Defendant requests a sentencing modification to 10 years imprisonment – the actual minimum allowed by statute.

Holding. No. The Rules of Appellate Procedure permit reformation of judgment to “speak the truth when the matter has been called to its attention by any source.” French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992). An appellate court may modify a trial court’s judgment when the record indisputably reflects an error which is correctible by reference to information on the record. “But the record must supply us with the information necessary to show both that a modification is warranted and the particular modification that is warranted.” Here, the trial court expressed that it had sentenced the defendant to what it believed was the minimum punishment, but the record does not reflect that the trial court would have sentenced the defendant to even less if it had known that less was possible.

Comment. The court provides a great summary of scenarios where it is appropriate to modify judgments or correct errors:

• • court costs and fees;
  • deadly-weapon findings;
  • the defendant’s name;
  • the offense of conviction;
  • appeal waivers;
  • the defendant’s plea to enhancement allegations;
  • enhancement-allegation findings;
  • family-violence findings;
  • period of community supervision;
  • fines;
  • the imposition of court-appointed counsel’s fees;
  • credit for time served;
  • the degree of felony of the offense of conviction;
  • conflicts between the trial court’s oral pronouncement of punishment from the bench and the written judgment;
  • the defendant’s plea to the indicted offense;
  • the identity of the person to whom the defendant must pay restitution; and
  • conflicts between the punishment assessed by the jury and the punishment stated in the trial court’s judgment.

2^nd District Fort Worth

McBurnett v. State, No. 02-19-00418-CR (Tex. App.—Ft. Worth, May 6, 2021)

Issue. (1) Does a passing, unsolicited reference to the defendant’s pretrial incarceration sufficiently impair a defendant’s presumption of innocence that a mistrial is warranted? (2) Is a defendant who is intoxicated when he commits a sexual assault entitled to a jury charge on temporary insanity?

Facts. Defendant was convicted of raping his former girlfriend’s daughter. On the date of the offense, defendant was living in a hotel and the victim and his former girlfriend’s cousin were visiting him. Defendant was intoxicated and, after sending the cousin away, he raped the victim. She later gave birth to a child at age 13. The State showed through DNA evidence that it was 2.2 billion times more likely the child was his than someone else’s. An investigating officer testified at trial that he collected the defendant’s DNA sample while he was incarcerated in the Tarrant County jail, which drew an objection and request for mistrial from the defendant. The trial court sustained the objection, denied the mistrial, and instructed the jury to disregard.

Holding. No. “the present case involves a single brief, unsolicited reference to the defendant being in jail.” This objectionable comment was cured by a prompt instruction to disregard. It did not constitute the type of impairment on the presumption of innocence presented in cases where the defendant is forced to appear in trial wearing shackles or jail clothing. No. Voluntary intoxication is not a defense to the commission of a crime. However, a defendant has the right to introduce evidence of temporary insanity by virtue of intoxication in punishment mitigation. A defendant is entitled to a jury instruction whenever some evidence supports it. But in this context, there must be more than evidence of mere intoxication. The intoxication must overcome the defendant’s ability to distinguish right from wrong. The question is not whether the conduct lacks a rational explanation other than intoxication. The defendant must make a showing that he did not know that sexual assault was wrong. Because he did not do that here, the evidence did not warrant the jury instruction.

Flores-Garnica v. State, No. 02-20-00016-CR (Tex. App.—Ft. Worth, May 13, 2021)

Issue. (1) The law defines a “motor vehicle” in the context of a DWI prosecution as “a device in, on, or by which a person or property is or may be transported or drawn on a highway . . .” Does an ATV, which legally may not be operated on a highway, satisfy this definition if no evidence suggests it was actually operated on a highway? (2) When the trial court judicially notices and admits into evidence statutes which are probative of evidence rebutting the defendant’s theory, must the trial court provide an instruction pursuant to Texas Rule of Evidence 201(f) explaining that jurors may accept or reject the noticed statutes as conclusive? 

Facts. Defendant drove his Polaris ATV in a convenience store parking lot, ran into the store to get a twelve-pack of beer, got back onto his ATV, and sped down street/private drive back to his closed-to-the-public mobile home park. Officers stopped, investigated, and arrested defendant for driving while intoxicated. A jury convicted defendant in a trial focused on whether: (1) any of the places he drove constituted a public highway, and (2) whether the ATV constituted a motor vehicle. The trial court took judicial notice and provided or read to the jury in the form of evidence several Transportation Code statutes which were probative of arguments rebutting the defendant’s theory. Defendant requested and the trial court declined to instruct the jury under Texas Rule of Evidence 201(f), a provision which instructs that the jury could choose to accept or reject the noticed statutes as conclusive.

Holding. (1) Yes (see question presented). “Without citing any authority, Flores-Garnica strictly defines ‘may’ in the motor-vehicle definition to mean ‘is lawfully authorized to’ as opposed to ‘is physically capable of.’” The court rejects this “narrow construction of the statute.” Because an ATV is physically capable of transporting a person or property on a highway, it meets the definition of motor vehicle regardless of whether the defendant truly operated it in such a manner. (2) No. “Under Rule 201(f), when a court takes judicial notice of an adjudicative fact ‘in a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.” Adjudicative facts are the facts that must be established by evidence relevant to an ultimate matter and not subject to any controversy. The statutes at issue, admitted as evidence, are not adjudicative facts but rather legislative facts. Legislative facts are those having relevance to overall legal reasoning and the lawmaking process and need not be proven by evidence, nor are they governed by Rule 201. The statutes at issue here were not unique to this case nor were they necessary to the jury’s determination whether the defendant drove a motor vehicle (even though tangentially related to the defendant’s theory of the “may be transported” legal impossibility). In essence all the court did here was tell the jury the law, but did not tell the jury that these judicially noticed laws necessarily applied to this case. 

Comment. “May” either means legally permissible or physically possible. The court criticizes the defendant for choosing a definition which supports his acquittal without citing support for his choice. The court makes the alternative choice which supports affirming a conviction. The court does not cite any support for its choice.

3^rd District Austin

Whillhite v. State, No. 03-18-00766-CR (Tex. App.—Austin, May 27, 2021)

Issue. Can the court of appeals entertain a void conviction argument raised for the first time on appeal from a revocation of deferred adjudication probation?

Facts. Defendant pleaded guilty to and was placed on deferred adjudication for sexual assault of a child and online solicitation of a child. In a subsequent revocation hearing the trial court sentenced the defendant to 75 years on each offense. The defendant appealed but his counsel filed an Anders brief alleging no meritorious grounds for appeal. Defendant filed a pro se petition for discretionary review with the Court of Criminal Appeals and the case was remanded on grounds that appointed counsel should have presented argument on the unconstitutionality of the online solicitation statute as determined in Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013)(Online Solicitation statute facially overbroad). With the appointment of new appellate counsel, defendant now makes such arguments.

Holding. Yes. Whereas a defendant normally loses the ability to raise issues pertaining to his initial plea in the context of a later revocation proceeding, “under the ‘void judgment’ exception to this rule, a defendant appealing the judgment after his guilt is adjudicated may collaterally attack the original deferred-adjudication order if the order was void.” Similarly, a defendant may raise for the first time on appeal—without raising first in the trial court—the issue of a void conviction arising from a statute that is facially overbroad.  Because defendant’s conviction is based on an unconstitutional statute, it is void and the court must render a judgment of acquittal.

4^th District San Antonio

Ex parte Treviño, No. 04-20-00544-CR (Tex. App.—San Antonio, May 19, 2021)

Issue. (1) Do the Rules of Evidence apply in a bond revocation hearing? (2) Can the fact of an arrest alone provide a basis for no-bond order under Article 1, Section 11b of the Texas Constitution (no-bond order authorized in family violence case when a magistrate determines a defendant violated a condition of release related to victim or community safety)?

Facts. Defendant was arrested for aggravated assault with a deadly weapon upon his wife. His bond was set at $20,000. Defendant posted his amount and was released. Eventually several conditions were placed upon his pretrial release. He was prohibited from going near his wife’s apartment and prohibited from injurious contact with family members. The State filed a motion to revoke defendant’s bond after, according to their allegations, he went to his wife’s apartment, sexually assaulted her, and choked her until she passed out. As proof in the hearing to set new bond, the State offered offense reports, arrest affidavits, and hearsay testimony. The trial court considered this evidence over the defendant’s hearsay objections. The trial court ordered defendant held without bond.

Holding. (1) Yes. Texas Rule of Evidence 101(e)(3)(C) specifically provides that the rules of evidence apply in “hearings to deny, revoke, or increase bail.” (2) No. “Texas Constitution article I, Section 11b contemplates a hearing to deny bond to an accused pending trial.” The fact of the arrest alone does not establish the truth of the violation.

Romo v. State, No. 04-19-00772-CR (Tex. App. San. Antonio, May 26, 2021)

Issue. Does a video displaying nude pre-pubescent girls participating in a nudist beauty pageant shot in purported documentary fashion satisfy the requirement of “lewd exhibition of the genitals” essential to a child pornography conviction? 

Facts. Defendant was convicted of continuous sexual abuse of a child, indecency with a child, and possession of child pornography. The significant issue presented involves the issue of child pornography. During the investigation of the sexual abuse, police discovered a DVD titled “Nudist HDV” in the defendant’s office at the Food Bank where he worked. The DVD depicted young girls participating in a nude beauty competition.

Holding. No. “the meaning of the undefined statutory phrase ‘lewd exhibition of the genitals’ is a matter of law’ that we review de novo.” Citing State v. Bolles, 541 S.W.3d 128, 134 (Tex. Crim. App. 2017). In Bolles, the Court of Criminal Appeals borrowed from United States v. Dost to guide their determination on whether depictions of nude children are “lewd.”636 F. Supp. 828 (S.D. Cal. 1986). The Dost non-exclusive factors for consideration include:

1. 1. Whether the focal point of the visual depiction is on the child’s genitalia or pub area;
   2. Whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;
   3. Whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;
   4. Whether the child is fully or partially clothed, or nude;
   5. Whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;
   6. Whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

The video begins with a disclaimer that it is intended to portray nudist life, is not sexually oriented or adult in nature, and claims to be documentary and educational material. The video focuses mainly on pre-pubescent girls and depicts no pre-pubescent boys. There are a few adults depicted. The cameraman focuses only on the faces as he talks with the girls before a beauty pageant. The setting is outside in a grassy picnic area. There is no sexual activity depicted, everyone is behaving casually. Accordingly, “the evidence is legally insufficient to support a finding that the video depicts a lewd exhibition of the genitals.”

Dissent (Alvarez, J.). The suspiciously over-enthusiastic label on the DVD reads “100 percent genuine, fully-legal nudist documentary, Miss Jr. Teen Beauty Competition.” Several children have tan lines. Several children have shaved or partially shaved pubic hair. The cameraman intentionally keeps their nudity within the frame. The video is in French but the disclaimer seems to be intended for an American audience, promising no federal laws are violated. There appears to be no purpose to the film except to show naked girls. This is more akin to child pornography cases involving voyeurism than those typically analyzed under the Dost factors.

Comment. I agree with Justice Alvarez, “the artifice is apparent and not at all natural.”

5^th District Dallas

Nawaz v. State, No. 05-19-00092-CR (Tex. App.—Dallas, May 11, 2021)(not designated for publication)

Issue. When the State alleges in two indictments indistinguishable acts and injuries, does double-jeopardy prevent a conviction for both: (1) Injury to a Child – Serious Bodily Injury, and (2) Injury to a Child – Serious Mental Deficiency?

Facts. Defendant was accused of inflicting serious head injuries to his two-month-old daughter. She was taken to the hospital with abnormal breathing, vitals, and blood oxygen. CT and MRI scans revealed brain bleeds, hematomas, contusions, and neck ligament damage. According to physicians, these were all indicative of trauma from some sort of external whipping-like force. Appellant and his wife had no explanation for their daughter’s injuries. A pediatric ophthalmologist concluded that she had suffered retinal hemorrhaging and would not regain vision. A child abuse pediatrician determined that the injuries would result in developmental delay and permanent loss of mental function. The State prosecuted defendant for: (1) Injury to a Child Causing Serious Bodily Injury With Deadly Weapon (hands), and Injury to a Child Causing Serious Mental Deficiency With Deadly Weapon (hands).

Holding. Yes. The Blockburger test for double jeopardy permits a conviction for two similar offenses when each provision requires “proof of a fact which the other does not.” Texas applies a modified Blockburger test described as the “cognate-pleadings approach.” See Bigon v. State, 252 S.W.3d 360 (Tex. Crim. App. 2008). “Under the cognate-pleadings approach adopted by this Court, double-jeopardy challenges should be made even to offenses that have different elements under Blockburger, if the same ‘facts required’ are alleged in the indictment.” Id. Overlying these tests is the legislative intent—“the Blockburger test cannot authorize two punishments where the legislature clearly intended one.” Ervin v. State, S.W.2d 804, 807 (Tex. Crim. App. 1999)(providing factors for interpreting the legislature’s intent).

Both convictions fall under the same penal code section. The relevant statutory subsections are phrased in the alternative or disjunctive. They all carry the same punishment range. Each indictment lists the identical manner and means of committing each violation. The indictments do not list distinct incidents of injury. The facts required for conviction in each indictment were exactly the same. Injury to a Child is a result-of-conduct offense and the State neither alleged nor proved distinct injuries that the defendant inflicted. “Because it is the child’s injury that defines the offense, the State may not obtain two convictions against a defendant for causing the same injury.”

Comment. The State has requested additional time to prepare a petition for discretionary review with the Court of Criminal Appeals. The issue appears to be one of first impression, however, the Fifth Court of Appeals notes that the Court of Criminal Appeals has analyzed this statute in related ways. In particular, in Villanueva v. State, the Court of Criminal Appeals addressed whether a defendant could be prosecuted for Injury to a Child for both an “act” and an “omission” and concluded “it was conceivable—so long as the State could prove that two separate and discrete incidents occurred on that day comprising two violations of the statutorily defined offense.” Citing Villanueva, 227S.W.3d 744 (Tex. Crim. App. 2007).

6^th District Texarkana

State v. Bronson, No. 06-20-00135-CR (Tex. App.—Texarkana, May 26, 2021)

Issue. Does the Supreme Court Emergency Orders Regarding the COVID-19 State of Disaster which permit trial courts to extend certain deadlines allow a trial court to grant “shock-probation” (suspension of a partially executed prison sentence) after its statutorily defined 180-day jurisdiction expires.

Holding. No. Citing In re State ex rel. Ogg, 618 S.W.3d 361 (Tex. Crim. App. 2021) the court held that shock probation jurisdiction could not be enlarged.

7^th District Amarillo

The Seventh District Court of Appeals in Amarillo did not hand down any significant or published opinions since the last Significant Decisions Report.

8^th District El Paso

The Eighth District Court of Appeals in El Paso did not hand down any significant or published opinions since the last Significant Decisions Report.

9^th District Beaumont

The Ninth District Court of Appeals in Beaumont did not hand down any significant or published opinions since the last Significant Decisions Report

10^th District Waco

Campbell v. State, No. 10-19-00191-CR (Tex. App.—Waco, May 19, 2021)

Issue. Is it harmful error to allow a jury to convict a person of murder by giving them four definitions of murder, one of which is not murder? 

Facts. The defendant strangled the victim to death. The two were friends and the defendant paid the victim for sex. The defendant testified at trial that the victim “engaged in erotic asphyxiation during sex.” In the application portion of the jury charge, the jury was instructed to convict the defendant “if they found beyond a reasonable doubt that he 1) intentionally caused the death of Wright, 2) knowingly caused the death of Wright, or 3) with intent to cause serious bodily injury, committed an act clearly dangerous to human life and caused the death of Wright.” In the abstract portion of the jury charge, the court defined intentionally as:

A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

The defendant objected and argued that “intentional murder is a result of conduct offense and that the charge was in error because it defined intentionally as it relates to both the ‘nature’ of his conduct as well as the ‘result’ of his conduct.”

Holding. The court assumes without deciding that Murder is a result-of-conduct offense and that it was erroneous to define “intentional” to include “nature of his conduct” language. A court will not reverse on objected-to jury charge error on the basis of theoretical harm – the defendant must have suffered actual harm. Here, the jury was charged on both knowing and intentional conduct. The jury was also given the option of finding that the defendant intended serious bodily injury that was clearly dangerous to human life. Because thee defendant cannot show the  jury utilized the erroneous definition, the defendant cannot show harm. Plus, the State’s evidence was really good evidence.

Dissent (Gray, C.J.). “Appellant choked Jade. Jade died as a result. Did appellant intend the result? That was one option in the charge available to the jury. There were at least five different ways, manner and means, that would allow an affirmative answer to that question.” “But the charge included an admittedly erroneous definition of ‘intentionally’ that allowed the jury to convict the appellant if he intended to choke Jade.” This erroneous definition allowed the jury to find him guilty of murder based on conduct that does not constitute murder. If this were a civil case, we’d reverse it.

Comment. Chief Justice Gray is correct. You cannot hold a person to proof of harm that is impossible to show. “If the jury is charged on both a proper and improper theory of liability . . . the error in the charge is harmful because the party is unable to know, and therefore unable to show on appeal, that the answer is based on the improper theory.”

Rodriguez v. State, No. 10-18-00253-CR (Tex. App.—Waco, May 20, 2021)

Issue. Must a defendant who made a pretrial discovery request pursuant to Texas Code of Criminal Procedure Article 39.14 move for a continuance mid-trial to preserve error when the State attempts to admit undisclosed evidence?

Facts. Defendant was convicted of hindering apprehension of a fugitive because she lied about the presence of a fugitive in her home when police came looking with an arrest warrant. At trial the defendant objected to testimony about a warrant because it had not been produced pursuant to defendant’s discovery request in compliance with Texas Code of Criminal Procedure Article 39.14. The State argued that they did not possess the warrant because it was in the custody of the district clerk, and that disclosure was not required because the district clerk is not under contract with the State.

Holding. Yes. [T]he record reflects that appellant did not request a continuance in response to the State’s proffer of the Lopez arrest warrant. In other words, appellant had the opportunity to avoid the prejudice and impairment but chose not to. Therefore, we hold that appellant has waived her article 39.14(a) complaint in this issue.”

Concurrence (Gray, C.J.).The error was harmless, but “I respectfully disagree that a motion for continuance should be required to preserve error of this issue.” The resolution of this case is “critical to whether the adoption of the Michael Morton Act is going to have any lasting meaning for the fair and efficient prosecution of criminal trials in Texas.”

Comment. No one should be surprised that I agree with Chief Justice Gray here again. Error preservation rules are judge-made rules and in this arena of prosecutors not doing what they are supposed to do, we add extra rules on top of the normal error preservation rules required in other contexts. I hope appellate counsel files a petition for discretionary review in this case.

11^th District Eastland

Yoda v. State, No. 11-19-00191-CR (Tex. App.—Eastland, May 6, 2021)

Issue. Must an officer have training or expertise to render an opinion which informed his reasonable suspicion that an individual was speeding, potentially as much as 15-25 miles per hour over the speed limit?

Facts. Defendant was convicted by a jury of felony habitual Driving While Intoxicated and received an enhanced sentence of 35 years. This came after the trial court denied defendant’s motion to suppress challenging the arresting officer’s qualifications to determine he was speeding. The arresting officer observed the defendant cross in front of him moving at what he believed was a high rate of speed. The officer indicated “it took me a while to catch up and that he had to accelerate to approximately 73 miles per hour to catch up to Appellant.” He estimated defendant was traveling 60-70 miles per hour in a 45 mile per hour zone. The arresting officer admitted he lacked certification to activate and use radar, that he was not authorized to issue speeding tickets for this reason, and that he has no specialized training for estimating the speed of a vehicle crossing his path. The arresting officer testified that he based his conclusions about defendant’s speeds based on his own personal driving experiences.

Holding. “Experienced drivers may form and express a lay opinion about the speed of other vehicles they observe on a roadway based on the objective facts they describe, and depending on the facts the witness articulates, the facts described may be sufficient for a court to allow a lay witness to express a lay opinion about another vehicle’s speed.” Defendant’s criticisms are unpersuasive: (1) that speed was not measured by radar or pacing, (2) that no evidence showed defendant was passing vehicles going the speed limit, (3) that the officer lacked training in estimating speed, and (4) that the officer had no scientific method for gauging speed. These criticisms go to the weight that the trial court should choose to give to the officer’s testimony, a determination which must be given almost total deference. Guestimating that someone is speeding by four or five miles per hour might be suspect, but estimating that a person is speeding when appearing to be driving at twenty miles over the speed limit is within the capabilities of an experienced driver. Moreover, an actual speed is not necessary to making a determination that a person is speeding. It is an offense to “Drive at a speed greater than is reasonable and prudent under the circumstances then existing.” The posted speed acts only as prima facie evidence that greater speeds are not reasonable and prudent. If an officer believes, independent of the posted speed limit, that a person is driving at a speed not reasonable and prudent, that officer is justified in conducting a traffic stop.

Comment. “Suppress or suppress not. There is no try.” PDR has been filed because “these are not the rulings you are looking for.”  

12^th District Tyler

The Twelfth District Court of Appeals in Tyler did not hand down any significant or published opinions since the last Significant Decisions Report.

13^th District Corpus Christi/Edinburg

Salinas v. State, No. 13-19-00504-CR (Tex. App.—Corpus Christi-Edinburg, May 13, 2021)

Issue. (1) does a vehicle owner have a subjective and objective expectation of privacy in a USB drive found in his vehicle by technicians performing maintenance at the request of the owner? (2) Did vehicle technicians commit Breach of Computer Security by looking at files on the USB drive and thus trigger Texas’s exclusionary rule (applicable to both state actors and private citizens)? (3) Did the police unlawfully perform a confirmatory search after technicians informed them that the USB drive contained child pornography?

Facts. Defendant dropped his truck off at the dealership to receive service on a check engine light, the air conditioner, and a problem with the glove compartment. The two technicians working on the vehicle discovered a USB drive in the vehicle and decided to plug it into one of their computers to see what they could find. They found child pornography. They called the police. Initially, they lied about their reasons for looking through the defendant’s USB drive, but they ultimately settled on a story in which they were both curious whether they would find any music on it.  The police performed a confirmatory search to discover the child pornography themselves.

Holding. (1) Yes. The defendant demonstrated his subjective expectation of privacy by hiding his files on a USB drive. The defendant’s expectation was not diminished by dropping a vehicle off for service that was totally unrelated to the USB drive. Because the defendant had a property interest in the USB drive, did not give permission to access it, and the accessing the USB drive by technicians was outside of the scope of the repairs he requested, his expectation of privacy was also objectively reasonable. (2) No. The USB drive must be a “computer” before the actions of the technicians constitute “Breach of Computer Security.” A “computer” is defined as “an electronic, magnetic, optical, electromechanical, or other high speed data processing device that performs logical, arithmetic, or memory functions by the . . . and includes all . . . storage . . . facilities that are connected or related to the device.” Under this definition, a USB drive is not a computer because it only stores data. It does not perform data processing. Had the USB been connected to a computer, then it might have fallen within that definition’s concept of devices that are “connected or related to the device.” But here it was merely sitting loosely in a door compartment.  (3) No. The private search doctrine, an exception to the warrant requirement, provides that the Fourth Amendment is inapplicable to a search or seizure, even an unreasonable one, conducted by a private individual not acting at the direction of or participating with the government. Law enforcement may examine evidence that a private party has unearthed and made available. Here, when the technicians accessed the child pornography, they obliterated the defendant’s expectation of privacy. “Therefore, there was no Fourth Amendment violation when the officers searched later.”

Comment. There is nuance here that is ignored. Of course police can view what has been put on display by a private citizen’s search. But the private search doctrine isn’t one which diminishes expectations of privacy as suggested by the court, it merely exculpates the police from the wrongfulness of the search. Here, when the private citizen went to the police and said “look what I found,” all that could be seen was a piece of plastic and metal that could be plugged into a computer. The police had to conduct an independent search to discover what had been previously discovered by the technicians. The Court’s rationale is no different than holding that the police may enter and search a person’s home upon a report from a former houseguest that they saw marijuana inside a sock drawer. They can’t do that, so they shouldn’t be able to do this.  

14^th District Houston

Hart v. State, No. 14-19-00591-CR (Tex. App.—Houston [14^th Dist.] May 13, 2021)

Issue. (1) Was trial counsel ineffective by not moving to suppress video evidence which he believed was obtained unlawfully but lacked factual support to substantiate his belief? (2) Was trial counsel ineffective by declining the trial court’s offer to include sudden passion in a punishment charge based on his  incorrect understanding of the law?

Facts. Defendant shot his daughter’s abusive boyfriend in front of his home. Defendant had surveillance cameras on the front of the house which captured defendant’s confrontation with the boyfriend and the shooting. The video was the foundation of the State’s case. They obtained it through a broadly worded consent form executed by defendant’s wife allowing officers to seize “any and all letters, papers, materials and other property, which they desire.” Defense counsel represented to the trial court that defendant’s wife did not know what she was signing, but also represented that he did not have evidence to support a suppression of the video. After the jury convicted the defendant, the trial court crafted a jury charge on punishment. During this process, the trial court offered an instruction on sudden passion to the defendant. Counsel rejected this offer.  He stated that he did not believe the facts supported it after reviewing case law.

Holding. (1) No. Evidence did not support the suppression. Counsel thought defendant’s wife might have been confused by the consent she had provided. However, defendant’s wife testified in punishment and never stated she was confused. The consent forms were clear. Officers gave her plenty of time to sign it. (1) Yes. “[T]his is not a situation in which Hart’s counsel elected to pursue an alternative defensive strategy instead of seeking a sudden-passion instruction. The decision to decline the trial court’s offer was not strategic. Counsel explicitly stated that he believed the law did not permit such an instruction under these facts. He was wrong. At least some evidence showed that the defendant was acting out of “terror or rage, or both” at his daughter’s boyfriend returning to the home to abuse his daughter. Some evidence also showed that he lost his capacity for cool reflection. The jury sentenced the defendant to 30 years, but they might have otherwise found themselves limited by the lesser sentencing range of 2-20 years under a sudden-passion finding.

Dissent (Wise, J.). “The majority eviscerates any discretion that seasoned criminal defense attorneys may exercise to pursue one defensive strategy over another. I must respectfully dissent.” “If the record in this case reveals anything about counsel’s reason for not requesting a sudden passion instruction, it is that counsel affirmatively considered the merits of requesting the instruction and rejected it.” Sudden passion did not fit with counsel’s theory of the defendant as “a considerate family-man who wanted to protect his daughter from a persistent problematic boyfriend.”

Comment. It is a stretch for the dissent to convert “Q: As you’ve discussed with the State, you don’t believe the facts support it; is that correct? A: That is correct, Judge. I went through about six pieces of case law, and there was one that was directly on point and it just—it wasn’t supported by the facts.” Into: “No, its not that I don’t think the defendant is legally entitled to the instruction, it’s just that it doesn’t fit with my theory of the case.”

Moore v. State, No. 14-19-00466-CR (Tex. App.—Houston [14^th Dist.] May 18, 2021)

Issue. Did the trial court improperly comment on the weight of the evidence by offering hypotheticals corroborating a complaining witnesses’ account when that witness was under cross examination about the truthfulness of her allegation?

Facts. The jury convicted the defendant of Assault Family Violence. The evidence at trial was “he-said / she-said.” The complainant said that the defendant pinched her nose, covered her mouth, pushed her face into the couch for fifteen seconds. During cross-examination, the trial court repeatedly came to the rescue of the complainant by “fabricating hypotheticals in support of the complainant’s account.”

[DEFENSE COUNSEL:]                  And again, 6:28:46 [a.m. on the video], here we go again, light is—
[THE STATE]:                                   Objection, Your Honor, to the relevance of where the cell phone light is.
THE COURT:                                     I’m hoping you’re going to go somewhere with this. Where is the relevance?
[DEFENSE COUNSEL]:                  The relevance, Your Honor, is if she’s being attacked from behind by [appellant] and she’s presumably the only one holding the cell phone and it’s remaining in relatively the same place, it’s inconsistent.
THE COURT:                                     It could be on a table or something over there.
[DEFENSE COUNSEL]:                  Well, but it does move, Your Honor. It does move in the video.
THE COURT:                                     Maybe shook the room or the table or something—
[DEFENSE COUNSEL]:                  Judge, I object to the commentary on the evidence—
THE COURT:                                     I’m just saying, I don’t understand where you’re going with this.
[DEFENSE COUNSEL]:                  I object on the Court’s commentary as it comments on the weight of the evidence.
THE COURT:                                     You—you keep asking her that. You’ve asked her this question so many times.
[DEFENSE COUNSEL]:                  Well, I understand the Court’s position; but I object to what the Court has now said to the jury. I object to it and I ask that it be stricken from the record.
THE COURT:                                     It will be stricken from the record. It’s just rhetorical. But please ask a question and get an answer and let’s move on.
[DEFENSE COUNSEL]:                  And I ask that the jury be instructed to disregard.
THE COURT:                                     And please disregard my statement.
[DEFENSE COUNSEL]:                  Thank you, Your Honor.

Holding. Yes. Texas Code of Criminal Procedure Article 38.05 provides:

In ruling on the admissibility of evidence, the judge shall not discuss or comment on the weight of the same or its bearing on the case . . . nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.”

A comment on the weight of evidence occurs when the trial court: (1) makes a statement that implies approval of the State’s argument, (2) indicates disbelief in the defense’s position, or (3) diminishes the credibility of the defense’s approach to the case. Here the trial court’s invented factual scenarios implied approval of the State’s case in a way that made the trial court “an advocate for the State.” This was improper comment on the evidence under Article 38.05. Because the defense’s theory was that the complainant orchestrated and fabricated an assault, the State’s case hinged on the complainant’s credibility and the trial court’s commentary weighing in on this ultimate issue was harmful and given the pivotal nature of the testimony, the limiting instruction did not sufficiently cure this harm.

Comment. Kudos to trial counsel for preserving this record under fire. It took three objections to get the trial court to stop inventing hypotheticals before the trial court ultimately ruled on the objection. Then, as he should have, he asked for a limiting instruction and requested a mistrial.

TCDLA

Kyle Therrian

Kyle’s practice has always been criminal defense. In McKinney, where he has practiced for the past 10 years, he represents individuals in all aspects of criminal accusations, including dozens of appeals before the various Courts of Appeal and Court of Criminal Appeals. He enjoys being a resource to his colleagues and, as he describes it, “nerding out on the law.” He is an active member and leader in TCDLA. In addition to his new role as Significant Decisions Report Editor, Kyle serves as Vice Chair to Texas Criminal Defense Lawyers Education Institute, Vice Chair on the COVID-19 Taskforce, is a long-time member of the Amicus committee, and a regular lecturer as part of the Criminal Defense Lawyers Project.