July/August 2011 SDR – Voice for the Defense Vol. 40, No. 6

Voice for the Defense Volume 40, No. 6 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

Sossamon v. Texas, 131 S. Ct. 1651 (U.S. 2011); Affirmed: Thomas (6–2)

Texas inmate Harvey Sossamon sued the State of Texas and various state officials in their official and individual capacities in a Texas federal district court. In part, he argued he was denied access to the prison’s chapel and religious services in violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA). The district court dismissed the claim. The Fifth Circuit held that Sossamon could not sue Texas officials in their individual capacities under RLUIPA.

HELD: A person cannot sue a state official in his individual capacity for damages under RLUIPA. “States, in accepting federal funding, do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA.” Justice Sotomayor dissented: “Our precedents make clear that the phrase ‘appropriate relief’ includes monetary relief.”

Bobby v. Mitts, 131 S. Ct. 1762 (U.S. 2011); Reversed: Per curiam

Harry Mitts drank until he became intoxicated and then shot and killed an African-American man while speaking racial epithets. During the police shoot-out that followed, Mitts shot and killed one police officer and wounded two before being apprehended. At trial, Mitts did not contest the evidence that he had killed two men, but he instead attempted to establish that he was too intoxicated to form the required intent to kill. After a penalty hearing, the jury recommended the death penalty on both aggravated murder counts and terms of imprisonment for the attempted murders. The trial court sentenced Mitts to death for the aggravated murders and to terms of imprisonment for the attempted murders.

COA affirmed the convictions and sentences, and the Ohio Supreme Court affirmed and denied rehearing, ruling that the trial court should have instructed the jury to merge duplicative death penalty specifications, but holding that the error did not influence the jury and was resolved by re-weighing on appeal. Mitts filed a petition for a writ of habeas corpus. A federal judge affirmed the sentence, but the Sixth Circuit decided to vacate.

HELD: The jury instructions given at the penalty phase of trial were in line with clearly established law for purposes of the Antiterrorism and Effective Death Penalty Act. The Court summarily reversed the appellate court.

Kentucky v. King, 131 S. Ct. 1849 (U.S. 2011); Reversed, remanded: Alito (8–1)

Police officers entered an apartment building in pursuit of a suspect who sold crack cocaine to an undercover informant. The officers lost sight of the suspect and mistakenly assumed he entered an apartment from which they detected the odor of marijuana. After police knocked on the door and identified themselves, they heard movements, which they believed indicated evidence was about to be destroyed. Police forcibly entered the apartment and found Hollis King and others smoking marijuana. They also found cash, drugs, and paraphernalia. King entered a conditional guilty plea, reserving his right to appeal denial of his motion to suppress evidence obtained from what he argued was an illegal search.

COA affirmed the conviction. The Kentucky Supreme Court reversed the lower court, finding the entry was improper. The court held that the police were not in pursuit of a fleeing suspect when they entered the apartment, since there was no evidence that the original suspect knew he was being followed by police.

HELD: The exclusionary rule, which forbids the use of illegally seized evidence except in emergency situations, applies when the emergency is created by lawful police actions. “The exigent circumstances rule applies when the police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment.” Justice Ginsburg dissented: “The Court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases.”

Brown v. Plata, 131 S. Ct. 1910 (U.S. 2011); Affirmed: Kennedy (5–4)

The Prison Law Office in Berkeley, Calif., filed a class-action lawsuit in 2001 on behalf of Marciano Plata and several other prisoners, alleging that California prisons were in violation of the Eighth Amendment to the Constitution, which bans “cruel and unusual punishment.” Following a lengthy trial, a special panel of 3 federal judges determined that serious overcrowding in California’s 33 prisons was the “primary cause” for violations of the Eighth Amendment. The court ordered the release of enough prisoners so the inmate population would come within 137.5 percent of the prisons’ total design capacity. That amounts to between 38,000 and 46,000 inmates being released.

HELD: A court order requiring California to reduce its prison population to remedy unconstitutional conditions does not violate the Prison Litigation Reform Act. “The court-mandated population limit is necessary to remedy the violation of prisoners’ constitutional rights and is authorized by the PLRA.” Justice Scalia filed a dissenting opinion in which he admonished the majority for affirming “what is perhaps the most radical in­junction issued by a court in our Nation’s history: an order requiring California to release the staggering number of 46,000 convicted criminals.” Justice Alito dissented that the “Constitution does not give federal judges the authority to run state penal systems.”

Fifth Circuit

United States v. Cashaw, 625 F.3d 271 (5th Cir. 2010)

District court did not err in denying minor-role adjustment, under USSG §3B1.2, to defendant sentenced as a “career offender” under the Guidelines. The only Chapter Three adjustment permitted for career offenders is the adjustment for acceptance of responsibility under USSG §3E1.1. Thus, career offenders are categorically ineligible for mitigating role reductions under USSG §3B1.2.

United States v. Allen, 625 F.3d 380 (5th Cir. 2010)

District court did not reversibly err in denying defendant’s motion to suppress evidence (child pornography) seized pursuant to a search warrant; although the search warrant was not sufficiently particularized and although the attachment detailing the items to be seized was not incorporated by reference in the warrant, the fruits of the search were admissible under the good-faith exception to the exclusionary rule. Under Herring v. United States, 129 S. Ct. 695 (2009), the particularity defects in the warrant did not merit application of the exclusionary rule. Furthermore, the information in the search warrant affidavit was not stale (though it was 18 months old when the warrant was issued).

United States v. McNealy, 625 F.3d 858 (5th Cir. 2010)

(1) In prosecution for possession and receipt of child pornography, defendant was not impermissibly tried beyond the 70 days prescribed by the Speedy Trial Act (STA); the district court satisfied the STA’s reasons requirement for an “ends of justice” continuance by stating its reasons for the continuance and by stating that those reasons affected its decision. Moreover, although the first continuance was open-ended, the court may continue a trial indefinitely when it is impossible, or at least quite difficult, for the parties or the court to gauge the length of a justified continuance. Finally, a second continuance, granted at the behest of the State based on the unavailability of a witness, likewise resulted in excludable time under the STA. The requirement to set out ends-of-justice findings did not apply because the continuance was granted under 18 U.S.C. §3161(h)(3) based on the “absence or unavailability of . . . an essential witness” and was not granted under 18 U.S.C. §3161(h)(7).

(2) District court did not err in admitting images of putative child pornography retrieved from defendant’s computer, notwithstanding the fact that no expert testified that these were unaltered images of actual minors actually engaged in the conduct depicted. The question of whether images depict actual minors may be decided by laypersons without expert testimony. Case law supports the admission of these images, especially in the absence of any evidence that the images were not of actual children or that the state of technology is such that the images could have been of “virtual” children.

(3) District court did not err in denying defendant’s motion to dismiss the indictment for failure to receive a fair trial; the alleged pornography was, at all times, “reasonably available” for inspection by the defense, as required by 18 U.S.C. §3509(m)(2). Any concerns about prosecution of a defense expert for possession of child pornography could have been allayed by obtaining a protective order. Finally, defendant did not identify any expert he wished to consult but was prohibited from doing so.

(4) District court did not err in finding that the State’s destruction of defendant’s computer (done after civil forfeiture proceedings) was not done in bad faith. Even though defendant indicated that he intended to contest the forfeiture, and even though the State was negligent in failing to provide defendant with adequate notice of the forfeiture proceedings, there was no evidence that the destruction of the computer was done to im­pede defendant in the criminal case. Moreover, it appears highly likely that all relevant evidence was preserved in forensic images.

United States v. Jackson, 625 F.3d 875 (5th Cir. 2010)

District court violated defendant’s rights under the Confrontation Clause by admitting into evidence notebook ledgers received from a co-conspirator during a proffer session and an investigating officer’s testimony pertaining thereto, both of which were used to show the amount of cocaine the co-conspirator dis­tributed to defendant. The ledgers fell outside the business-records and co-conspirator-statement exceptions to the right of confrontation recognized in Crawford v. Washington, 541 U.S. 36 (2004), and hence were “testimonial.” The ledgers were not properly authenticated as business records because the agent through whom they were introduced offered no testimony as to who prepared them and under what circumstances. There was no evidence that they were kept in the regular course of a drug-trafficking enterprise. For similar reasons, the ledgers were not sufficiently authenticated to admit them under the co-conspirator-statement exception. The court’s error in admitting the ledgers was not harmless beyond a reasonable doubt; given the State’s reliance on the notebooks in its closing argument, the State could not show that the notebooks did not contribute to the conviction. The Fifth Circuit vacated the conviction and remanded for further proceedings, including opportunity for a new trial.

United States v. Houston, 625 F.3d 871 (5th Cir. 2010)

Where defendant received a 25-year sentence under 18 U.S.C. §924(c) for brandishing a firearm in connection with one Hobbs Act robbery and a 7-year consecutive sentence under the same statute for brandishing a firearm in connection with another Hobbs Act robbery, the 7-year consecutive sentence was not barred by the first clause of §924(c)(1)(A)(i), “[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law. . . .” The statute’s “greater minimum sentence” exception refers only to another, greater sentence for the same, specific crime of firearm possession. The Fifth Circuit noted, but rejected, the Second Circuit’s different rule, namely, that the “except” clause applies to conduct arising from the same criminal transaction or set of operative facts as the crime yielding the greater mandatory minimum sentence.

United States v. Bohuchot, 625 F.3d 892 (5th Cir. 2010)

(1) In prosecution for bribery, conspiracy to commit bribery, and money-laundering conspiracy, defendants’ objection to the definition of the “corruptly” element of bribery did not preserve their claim that the indictment was constructively amended by the proof adduced at trial. On plain-error review, it was questionable whether there was clearly or obviously a constructive amendment of the indictment. In any event, neither the third nor the fourth prong of plain-error review was satisfied. It was defendants who first touched upon the areas of evidence that they claimed on appeal should not have been before the jury. Moreover, the evidence of bribery was strong, and it was improbable that the jury would have acquitted if only the evidence had been excluded.

(2) Assuming, without deciding, that the jury instructions for the money laundering conspiracy count (a violation of 18 U.S.C. §1956(h)) incorrectly instructed the jury on the mens rea for that offense, the error was harmless beyond a reasonable doubt because, given the overwhelming evidence, no jury could fail to find the defendants guilty of money-laundering conspiracy under the correct standard; a fortiori, there was no plain error (the standard applicable in the absence of an objection to the instructions).

(3) In bribery case, district court erred in calculating the value of the bribe for purposes of USSG §2C1.1. Particularly, it was error to ascribe to defendant a portion of the value of two yachts he was permitted to use when he had no ownership interest in those yachts. However, the error was harmless because, including the fair rental value of comparable yachts as part of the value of the bribe to defendant, the same 14-level Guideline enhancement would have applied; thus, the Guideline range would have been unchanged.

United States v. Marquez, 626 F.3d 214 (5th Cir. 2010)

Defendant’s prior conviction for possession of a deadly weapon by a prisoner (in violation of N.M. Stat. Ann. §30-22-16) was one for a “crime of violence” under the “residual clause” of USSG §4B1.2(a)(2); therefore, defendant was properly treated as a “career offender” under the Guidelines.

United States v. Juarez, 626 F.3d 246 (5th Cir. 2010)

District court did not clearly err in applying a four-level increase under USSG §2K2.1(b)(5) (for “engag[ing] in the traf­ficking of firearms”); there was considerable evidence from which the court could infer that defendant knew, or had reason to believe, that her conduct would result in the transport, transfer, or disposal of a firearm to a person who intended to use or dispose of the firearm unlawfully. Nor did the court err in applying a four-level increase under USSG §2K2.1(b)(6) (for knowledge, or constructive knowledge, that the firearm “would be used or possessed in connection with another felony offense”). Amendments to the Guidelines make clear that another firearms offense may be “another felony offense” if that other offense is not the one that serves as the basis for defendant’s instant federal conviction.

Henderson v. Thaler, 626 F.3d 773 (5th Cir. 2010)

Where death-sentenced Texas defendant was authorized to file a successive federal habeas petition raising a claim that he was mentally retarded and thus ineligible for execution under Atkins v. Virginia, 536 U.S. 304 (2002), the Fifth Circuit vacated the district court’s order finding the mental-retardation claim time-barred and remanded for the court to reconsider, in light of the intervening decision in Holland v. Florida, 130 S. Ct. 2549 (2010), whether defendant was entitled to equitable tolling of the AEDPA limitations period. The Fifth Circuit also held that there was no exception to the AEDPA’s limitation period for person who are “actually innocent” of the death penalty. Accordingly, the Fifth Circuit remanded for reconsideration of whether defendant’s successive petition was timely and, if it was found to be timely, whether the Atkins claim succeeded on the merits. (Judge Wiener filed a dissenting opinion, in which he opined that the AEDPA’s statute of limitations was never meant to apply, and never should be applied, to claims that a person is categorically ineligible for the death penalty under Atkins or similar rules.)

Rocha v. Thaler, 626 F.3d 815 (5th Cir. 2010)

Texas state death-sentenced defendant was not entitled to federal habeas relief under Brady v. Maryland, 373 U.S. 83 (1963), that the State withheld material impeaching evidence about one of the investigating detectives (namely, his relationship with the sister of a State’s witnesses and a disciplinary record). The evidence did not create a reasonable probability of a different outcome, and hence was not material under Brady. Furthermore, defendant was not entitled to a certificate of appealability on the questions of whether the State violated his rights (as a Mexican citizen) under the Vienna Convention and whether such a violation requires suppression of his confession. On initial consideration, the panel held that under Balentine v. Thaler, 609 F.3d 729 (5th Cir. 2010), withdrawn by 626 F.3d 842 (5th Cir. 2010), defendant had at least a colorable argument that his ineffective-counsel claim (based on the failure to investigate/produce mitigation evidence) was denied by CCA on the merits, not as the result of an adequate and independent state law procedural ground; the panel initially granted a certificate of appealability on this claim. However, on denial of rehearing, the panel held that under a proper view of the law (also reflected in the substituted opinion in Balentine), the state court’s decision on this issue had to be viewed as rested on an adequate and independent state law procedural bar, thus precluding federal habeas relief.

Balentine v. Thaler, 626 F.3d 842 (5th Cir. 2010), with­drawing 609 F.3d 729 (5th Cir. 2010)

In its initial opinion, the Fifth Circuit panel had held that in light of Ex parte Campbell, 226 S.W.2d 418 (Tex.Crim.App. 2007), and Ruiz v. Quarterman, 504 F.3d 523 (5th Cir. 2007), the district court should have, pursuant to Fed. R. Civ. P. 60(b), set aside its judgment denying Texas death-sentenced defendant federal habeas relief due to a supposedly adequate and independent state procedural default. Accordingly, the Fifth Circuit initially reversed the district court’s order denying defendant’s Rule 60(b) motion and remanded for consideration of defendant’s ineffective-counsel claim, including any necessary evidentiary hearing. However, in the substituted opinion, the panel held that it erred in interpreting Ruiz to mean that uncertainty about the basis of a state-court decision should give rise to a presumption that the state court reached the merits rather than relying upon a state procedural bar. In light of this correct understanding of Ruiz, the district court did not err in denying defendant’s Rule 60(b) motion because the district court did not err in concluding that the state-court decision on defendant’s ineffective-counsel claim was grounded on an adequate and independent state procedural bar; the Fifth Circuit affirmed the district court’s denial of defendant’s Rule 60(b) motion. On petition for rehearing en banc, the poll for rehearing en banc failed by a vote of 11–4. Judges Dennis, Benavides, and Haynes dissented from the denial of rehearing en banc.

United States v. Hoeffner, 626 F.3d 857 (5th Cir. 2010)

The State’s abandonment of the honest-services theory dur­ing the first trial meant the Double Jeopardy Clause barred retrial on the honest-services theory where (1) defendant was indicted for mail and wire fraud under alternative theories of deprivation of honest services and deprivation of money and property, (2) the State abandoned the honest-services theory during trial, and (3) the jury failed to reach a verdict, resulting in the declaration of a mistrial. However, retrial was not precluded on the money-and-property-fraud theory; the district court did not err in denying defendant’s double-jeopardy-based motion to dismiss the indictment filed following the mistrial.

United States v. Garcia-Paulin, 627 F.3d 127 (5th Cir. 2010)

District court committed reversible plain error in finding an adequate factual basis to support defendant’s guilty plea to bringing an alien to the United States, in violation of 8 U.S.C. §1324(a)(1)(A)(i) and 18 U.S.C. §2; “bringing to the United States” under this statute contemplates that the defendant actually accompanied the alien, or arranged to have him accompanied, across the border into the United States, or at least lead them to or meet them at the border. Defendant did not commit this offense by his stipulated conduct of obtaining a fraudulent immigration stamp for the alien’s Mexican passport and telling the alien the stamp would not work to accomplish entry at the border, but would allow the alien to work once he came over illegally on his own power. The error was clear and obvious; it affected defendant’s substantial rights.

United States v. Thomas, 627 F.3d 146 (5th Cir. 2010).

(1) The evidence was sufficient for a rational jury to find defendants guilty of numerous bank robberies and related offenses; circumstantial evidence that is not incriminating standing alone may recur in a pattern, from which jurors can reasonably infer that evidence otherwise susceptible of innocent interpretation is plausibly explained only as part of the pattern. Under this rubric, a reasonable inference is that the defendants committed all the robberies: four of them shared a number of common characteristics. Although the evidence was weaker as to one defendant on the fifth one, the jury could reasonably infer that the other defendant had the same partner on that robbery.

(2) Where two defendants (half-brothers) were charged with numerous bank robberies and related offenses, district court did not abuse its discretion in refusing to sever the two defendants’ trials; the defendants failed to demonstrate, even on appeal, any prejudice that could not be cured by the limiting instructions given.

(3) Defendant’s 1,435-month conviction (151 months for conspiracy and bank robbery, and 1,284 months for firearms offenses) did not constitute cruel and unusual punishment under the Eighth Amendment, because it was not grossly disproportionate to the violent crimes.

(4) District court did not abuse its discretion in denying defendant’s motion for a new trial, or for an evidentiary hearing, on defendant’s allegations that by withholding information during voir dire, a biased juror sat on his jury. A party seeking a new trial on this basis must demonstrate that a juror failed to answer honestly a material question on voir dire, and must further show that a correct response would have provided a valid basis for a challenge for cause. Here, defendant failed to show even that the juror lied, much less any actual or implied bias.

Court of Criminal Appeals

Direct Appeal

Ex parte Gutierrez, 337 S.W.3d 883 (Tex.Crim.App. 2011); Affirmed

Appellant was convicted of capital murder and sentenced to death for his participation in the robbery and murder of 85-year-old Escolastica Harrison. Appellant raised 5 issues on appeal.

HELD: (1) appellant is not entitled to appointed counsel because “reasonable grounds” do not exist for the filing of a motion for post-conviction DNA testing; (2) appellant’s second issue is without merit because appellant was “at fault” in not seeking DNA testing at trial; (3) appellant has not shown that “the single loose hair” that he would like to have tested exists or could be delivered to the convicting court; (4) the trial judge acted within his discretion in finding that identity was not and is not an issue in this case; (5) appellant has failed to establish, by a preponderance of evidence, that he would not have been convicted of capital murder if exculpatory results had been obtained through DNA testing. In sum, granting DNA testing would “merely muddy the waters.” Appellant does not seek testing of biological evidence left by a lone assailant, and a third-party match to the requested biological evidence would not overcome the overwhelming evidence of his direct involvement in the multi-assailant murder.

State’s PDRs

Ex parte Garza, 337 S.W.3d 903 (Tex.Crim.App. 2011); Affirmed

After the jury was empaneled and sworn but before trial commenced in this misdemeanor DWI case, one juror became at least temporarily indisposed and the trial was continued for a few days. Ultimately, the trial court declared a mistrial over appellant’s objection. When the case was reset, appellant filed a pretrial application for writ of habeas corpus arguing that because a manifest necessity for the mistrial was lacking, his re-prosecution violated double jeopardy. The convicting court denied relief but COA reversed and remanded, presumably so that the convicting court might dismiss the information against appellant.

HELD: CCA rejects the State’s arguments that there was manifest necessity for a mistrial. Under circumstances in which appellant’s counsel at least suggested a willingness to waive his constitutional right to a full complement of jurors, the failure of the trial court even to explore that option cannot be attributed to appellant, whether or not he obtained an express ruling on his suggested alternative or actually executed a formal waiver.

Meekins v. State, __S.W.3d__ (Tex.Crim.App. No. PD-0261-10, 5/4/11); Reversed COA, affirmed trial court

An officer stopped appellant for a traffic offense and, during that stop, asked if he could search the car. In appellant’s pocket, officer found a pill bottle containing marijuana. Appellant filed a motion to suppress the evidence, arguing that he did not voluntarily consent to the search of his car. The trial judge denied the motion and appellant pled guilty to possession of marijuana. COA reversed.

HELD: Careful listening of the audio recording of officer and appellant’s interaction supports an implied finding that appellant replied “yes” to officer’s sixth and final request to search appellant’s car. At a minimum, the recording fails to clearly rebut the officer’s testimony that appellant said “yes.” But even if the trial judge concluded that appellant said “I guess,” that phrase could reasonably be interpreted as a positive response, a colloquial equivalent of “yes.”

Regardless of whether appellant said “yes” or “I guess,” the trial judge was also required to decide what an objectively reasonable person standing in the arresting officer’s shoes would conclude that response meant. Both officer’s and appellant’s actions immediately after the response supports the trial judge’s implicit finding that appellant intended to consent. While appellant’s response of “yes” or “I guess” may be open to interpretation, there can be little doubt that officer believed appellant consented because he immediately asked appellant to step out of the car so that he could search it. If appellant intended to refuse consent, it seems reasonable that he would have objected, complained, or refused to get out of his car. Instead, he complied.

Griego v. State, 337 S.W.3d 902 (Tex.Crim.App. 2011); Vacated & remanded COA

A jury convicted appellant of evading arrest or detention, and assessed punishment at confinement of ten years. COA found the evidence legally insufficient to support a third-degree felony offense level because the State failed to present proof of a prior conviction at the guilt/innocence stage of trial. Additionally, COA remanded the case for a new trial having determined the evidence was factually insufficient to prove appellant evaded arrest or detention.

The State contends, among other things, that the case should be remanded to COA in light of CCA’s recent opinion in Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010), in which CCA overruled Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996), and set aside its factual sufficiency standard of review, holding that the Jackson v. Virginia, 443 U.S. 307 (1979), standard for legal sufficiency is the “only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.”

HELD: CCA remands this case for reconsideration in light of Brooks.

Archie v. State, __S.W.3d__ (Tex.Crim.App. No. 0189-10, 6/8/11); Reversed & remanded

A jury convicted appellant of murder, and the trial judge assessed punishment at 40 years’ imprisonment. COA reversed the conviction and remanded the cause to the trial court, concluding that the trial court abused its discretion by denying appellant’s motion for a mistrial. The State argues that COA erred when it found the prosecutor improperly commented on appellant’s failure to testify during his closing argument. Moreover, even assuming the prosecutor’s argument was improper, the State contends, it was within the trial court’s discretion to deny the motion for mistrial.

HELD: COA did not err in holding that at least two of the rhetorical questions posed by the prosecutor directly to appellant during his final argument constituted improper comment on his failure to testify. However, the prejudice caused by the prosecutor’s two improper questions was not so great that a jury would necessarily have discounted the trial court’s firm instructions to disregard them. It is unlikely that the jury would have ignored the court’s explicit instructions and convicted appellant, not on the compelling evidence introduced against him, but because he failed to take the witness stand to explain himself. Under these circumstances, it was well within the trial court’s discretion to deny appellant’s motion for mistrial.

Davis v. State, __S.W.3d__ (Tex.Crim.App. No. 0845-10, 6/8/11); Vacated & remanded

A jury convicted appellant of felony escape; he escaped the Dallas County Jail while being treated at Parkland Hospital, stole a taxicab, and drove to Oklahoma, leading lawmen on a protracted high-speed chase. On appeal, appellant argued that the State failed to bring him to trial within the time limits of the Interstate Agreement on Detainers Act (IADA), and that the trial court therefore erred in failing to dismiss the indictment with prejudice in accordance with the terms of that statute. COA agreed and ordered the trial court to dismiss the indictment with prejudice. The State argues that the trial court committed an error that prohibited the proper presentation of the case for appeal, and, therefore, COA should have remanded the cause to the trial court, under Tex. R. App. P. 44.4, to remedy that error. The State maintains that, upon a proper presentation of the record for appeal, it should be evident to COA that the IADA was not violated.

HELD: CCA agrees with appellant that there is nothing in IADA Article IV that imposes a burden on the trial court, expressly or by necessary implication, to ensure that any proffer of good cause (though it must be made in open court) is memorialized by the court reporter. If no such burden exists by virtue of the IADA, then Rule 44.4 cannot be invoked to require COA to remand the cause for remedial action without first identifying some other provision of law that assigns a burden exclusively to the trial court to secure the presence of a court reporter.

However, as the appealing party, appellant had an obligation to present a record to COA that demonstrated he was entitled to appellate relief. In the IADA context. This meant he had to show that the State did not satisfy its trial-level burden to present good cause for the continuance, and that the trial court therefore abused its discretion to grant it. On the state of the record, the appellate court could not say that the trial court abused its discretion to find that the continuance was necessary or reasonable for purposes of Article IV. It appears that the State proffered the re-indictment as its good cause.

Writs of Habeas Corpus

Ex parte Evans, 338 S.W.3d 545 (Tex.Crim.App. 2011); Granted

Applicant contends that the Texas Department of Criminal Justice-Parole Division improperly and without due process placed “Special Condition X” (sex-offender conditions) on him after he had been released on mandatory-supervision parole. Based on the evidence in the record, the habeas judge entered findings that applicant had not been convicted of a sex offense, and that his conviction for injury to a child did not involve evidence of sexual abuse. The habeas judge further found that applicant was not afforded constitutional due process before the sex-offender conditions were imposed.

HELD: CCA agrees with the habeas judge that applicant is entitled to immediate reinstatement of his release on mandatory supervision and removal of “Special Condition X” from the terms of his parole.

Ex parte Kerr, __S.W.3d__ (Tex.Crim.App. No. 62,402-03, 4/28/11); Dismissed

In 2003, a jury convicted applicant of capital murder. The jury answered the special issues submitted pursuant to Tex. Code Crim. Proc. art. 37.071, and the trial court, accordingly, set applicant’s punishment at death. CCA affirmed applicant’s conviction and sentence on direct appeal. In 2004, applicant filed in the trial court his initial post-conviction application for writ of habeas corpus. CCA denied relief. Applicant filed his first subsequent application in the trial court in 2006. CCA dismissed that application because it failed to meet the dictates of Tex. Code Crim. Proc. art. 11.071, §5. This, his second subsequent application, was filed in the trial court on April 27, 2011. Applicant presents a single allegation that his initial state habeas counsel rendered ineffective assistance, which denied applicant a proper review of his ineffective assistance of trial counsel claims.

HELD: CCA simply said it reviewed the application and finds that applicant failed to meet the requirements of Article 11.071, § 5. CCA dismisses the application and denies the stay of execution. Judge Price dissented: “The applicant presents a more-than-colorable claim of ineffective assistance of counsel at the punishment phase of his capital murder trial[.]”

Ex parte Bohannan, __S.W.3d__ (Tex.Crim.App. No. 76,363, 5/11/11); Dismissed

In 1983, applicant was convicted of aggravated rape and sentenced to 25 years’ imprisonment. He did not appeal. In this writ, applicant contends he was denied a timely preliminary hearing to determine whether there is probable cause to believe he violated his parole. Although applicant has received a preliminary hearing, he argues that this case is not moot because the issues involved herein are clearly capable of repetition, yet evading review, due to the fact that when a writ of habeas corpus is filed seeking to ensure the constitutional right to a preliminary hearing, the Texas Department of Criminal Justice (TDCJ) now convenes a late preliminary hearing.

HELD: Applicant’s claim is not justiciable under the “capable of repetition, yet evading review” doctrine of Weinstein v. Bradford, 423 U.S. 147 (1975), because CCA cannot assume applicant will again be held in custody facing the prospect of a preliminary hearing to determine whether there is cause to believe he violated a condition of his parole. And, applicant has already received such a preliminary hearing on the instant alleged violation. CCA notes that TDCJ must conduct preliminary hearings, as required by Tex. Gov’t Code § 508.2811 and Morrissey v. Brewer, 408 U.S. 471 (1972), within a time frame that meets the demands of due process so that releasees will not be required to seek CCA’s intervention to enforce these rights.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Glenn v. State, No. 11-09-00099-CR, 2011 WL 322451 (Tex.App.—Eastland 1/27/11)

The following exchange was deemed sufficient to constitute D’s consent to search. In response to officer’s request for permission to search the vehicle, D asked the officer: “You want to have a look inside?” Then D asked the officer: “You want me to open the trunk?”

Jones v. State, Nos. 01-08-00828-CR, 01-08-01015-CR, 01-08-01016-CR, 2011 WL 339213 (Tex.App.—Houston [1st Dist] 1/31/11)

Lack of specific dates in search warrant affidavit was not fatal to search warrant because the affidavit “includes several direct and indirect references to the timing of the controlled buy. First, [officer] described his contact with the first confidential informant as having occurred ‘recently.’ . . . The investigation culminated in the controlled buy forming the basis for probable cause, which was described as occurring ‘after’ [officer] ‘recently’ met with the first confidential informant.”

Sosa v. State, No. 06-10-00161-CR, 2011 WL 346215 (Tex.App.—Texarkana 2/4/11)

The following was insufficient to give rise to RS: D was present just outside a storage facility after its normal business hours, D failed to pass through the gate in 30 or 40 seconds of observation, and the storage facility is occasionally broken into. “‘The fact that a car is parked in close proximity to a business that is [closed], is not, in and of itself, suspicious; instead, it is only a factor to consider in deciding whether there is reasonable suspicion.’ . . . In addition, the time of day is not sufficient. . . . All the facts indicate is that [D] was present in front of a business late at night, after normal business hours, and that storage buildings are occasionally broken into.”

In re A.M., 333 S.W.3d 411 (Tex.App.—Eastland 2011)

The main issue in this appeal is whether it is a 5th Amendment violation for the State to subject a juvenile to a polygraph exam as a condition of probation, and then to use statements made in the exam as evidence in a subsequent criminal proceeding. The probation officer said the examination was “voluntary,” even though it was a condition of probation. The trial court, as fact finder, and COA agreed that it was voluntary.

Miles v. State, No. 11-09-00090-CR, 2011 WL 494885 (Tex.App.—Eastland 2/11/11)

Officer’s observation of D in the act of “talking to a known cocaine addict” deemed a partial basis for RS as to D. “[Officer] testified that there had been at least two robberies in the recent past involving the convenience store where the incident occurred. He also testified that the owner of the convenience store had requested that the police provide extra patrolling in the area due to the high-crime activity. [Officer] observed [D] talking to a known cocaine addict, and he also observed [D] and the known cocaine addict acting suspiciously when he drove up. These facts provided [officer] reasonable suspicion to detain [D] for a Terry stop.”

Carlson v. State, No. 01-09-01030-CR, 2011 WL 649682 (Tex.App.—Houston [1st Dist] 2/17/11)

Minor victim took possession of videotapes containing her nude image with intent to turn them over to police, and, thus, said evidence was not subject to suppression under criminal procedure provision forbidding the admission of evidence seized by any person or officer when that evidence has been obtained in violation of state or federal law. Also, the minor victim, unlike D, had a lawful ownership interest in the images. The court observed that the minor victim filed a police report within 48 hours of retrieving the videotapes from D’s home. In addition, the minor victim had ownership interest in possessing the images, even though the images were illegal, because she did so to preserve her own privacy and to prevent further publication of the images.

Hughes v. State, 337 S.W.3d 297 (Tex.App.—Texarkana 2011)

Interaction between officer and D was a mere “encounter” rather than an investigative detention, because officer activated squad car’s white overhead lights rather than the red and blue lights. Also, the position of the car relative to D’s vehicle did not entirely prevent D from leaving. “[Officer] observed [D’s] car in a parking lot of [a park] legally parked with the headlights on. As [officer] approached, the headlights of [D’s] vehicle turned off. . . . [Officer] parked his marked police jeep at an angle to [D’s] car and turned on the vehicle’s bright overhead white lights. [Officer] then illuminated the front of [D’s] vehicle with his spotlight. [Officer] testified he did not observe any illegal activity, but testified the [the park] area has a high incidence of drug and prostitution activity. . . . [T]he lights activated by the police officer in this case were not his overhead emergency lights which flash red and blue, but rather the overhead white safety or ‘take-down’ lights. We believe this distinction to be extremely important. . . . [U]nder some circumstances, overhead ‘take-down’ lights could be sufficient along with other circumstances to indicate a sufficient demonstration of authority[.]”

Tijerina v. State, 334 S.W.3d 825 (Tex.App.—Amarillo 2011)

After D told officers to leave his property, actions taken by eyewitness at officer’s behest, in approaching D’s residence and peering through a window, constituted a “search” for Fourth Amendment purposes. Because the officers no longer enjoyed the implied authority to approach D’s residence, neither did the eyewitness acting at officer’s behest.

State v. Molder, 337 S.W.3d 403 (Tex.App.—Fort Worth 2011)

While trooper’s testimony established that DPS has a general policy to inventory vehicles following arrest, the testimony was deficient in that it related nothing about the scope of said policy and how it affects closed containers such as D’s cloth bag; D’s motion to suppress deemed properly granted. “We recognize that courts have held that an officer does not need to specifically mention ‘closed containers’ to establish a policy regarding them. . . . But we hold that in this case, [trooper’s] testimony, as the sole evidence at the suppression hearing, was too barren to show any particular standardized criteria or routine concerning the scope of the inventory; the testimony is therefore insufficient for us to infer the extent of DPS’s policy regarding closed containers. Also, we conclude that we cannot infer DPS’ policy to open closed containers from the mere fact that [trooper] did so; such an inference would eviscerate the requirement described in [Florida v. Wells, 495 U.S. 1 (1990)].”

Wise v. State, No. 02-09-00267-CR, 2011 WL 754415 (Tex.App.—Fort Worth 3/3/11)

Evidence that D knowingly possessed the child porn discovered on his computer deemed insufficient because D bought the computer second-hand at a flea market, the computer contained viruses capable of covertly placing images on the computer, and it was impossible to determine when the images were placed on, accessed, or deleted from, the computer.

Dissent: “[T]he majority holds that when defendants possess illegal pornographic images on their computers but delete them and send them to their hard drives’ free space before the police discover them, the State cannot prove intentional or knowing possession of the images. . . . The majority mischaracterizes the evidence about the viruses on [D’s] computer. [The] State’s digital forensic examiner testified that the computer had several viruses and then said that some viruses, hypothetically, are capable of remotely accessing a computer and storing images on it. [The forensic examiner] did not say that the viruses found on [D’s] computer served such a purpose. She did explain, however, that the probability of a malicious outsider using a virus to store child pornography in the free space of another computer is low. . . . [A] lack of direct evidence and the existence of alternative hypotheses will be common features of many cases in which illegal images have been deleted[.]”

Miller v. State, 335 S.W.3d 847 (Tex.App.—Austin 2011)

D was without a reasonable expectation of privacy as to thumb drive (containing child pornography) that he left in a computer at his place of employment (a police station) and thus lacked standing to challenge search of the thumb drive because D had previously left the thumb drive in an area accessible to others, the drive did not contain any marks identifying D, and D did nothing to prevent others from accessing the drive (e.g., password) even though he possessed advanced computer knowledge.

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