July/August 2012 SDR – Voice for the Defense Vol. 41, No. 6

Voice for the Defense Volume 41, No. 6 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

In the Torture Victim Protection Act, “individual” encompasses only natural persons; the Act does not impose liability against organizations. Mohamad v. Palestinian Auth., 132 S. Ct. 1702 (2012).

      Petitioners, relatives of a deceased naturalized citizen, sued Palestinian organizations under the Torture Victim Protection Act of 1991. The district court granted the organizations’ motion to dismiss, and the U.S. Court of Appeals for D.C. affirmed. The Supreme Court affirmed COA.

The naturalized citizen was allegedly imprisoned, tortured, and killed by officers of one of the organizations. The Supreme Court resolved a split among the circuits by holding that the TVPA did not impose liability against organizations because “individual” as used in the TVPA encompassed only natural persons. The relatives argued that the TVPA contemplated liability against natural persons and nonsovereign organizations, but the Court disagreed based on the ordinary meaning of “individual” and its statutory context. “Individual” was ordinarily used to denote a natural person, and federal statutes routinely distinguished between an “individual” and an organizational entity. A broader or different meaning could not be assumed absent some indication from Congress. Although the relatives argued that limiting liability to natural persons could foreclose effective remedies, that limitation was imposed by Congress and had to be respected.

COAs have the authority to raise a forfeited timeliness defense in exceptional cases. Wood v. Milyard, 132 S. Ct. 1826 (2012).

      D filed a habeas corpus writ in federal court, claiming his murder convictions violated double jeopardy and challenging his jury trial waiver. The district court denied relief. The Tenth Circuit directed the parties to address the timeliness of D’s petition, and then found that D’s petition was untimely. The Supreme Court reversed and remanded the Tenth Circuit’s decision to resurrect the statute of limitations issue instead of reviewing the district court’s disposition on the merits.

      District courts are permitted to consider sua sponte the timeliness of a state prisoner’s habeas petition. Only where the State did not strategically withhold the limitations defense or did not choose to relinquish it, and where the prisoner was accorded a fair opportunity to present his position, could a district court consider the defense on its own initiative if justice was better served by dismissing a petition as time barred. No absolute rule barring COAs from raising a forfeited timeliness defense was adopted; thus, appellate courts, like district courts, have the authority to raise a forfeited timeliness defense. But that authority is reserved for exceptional cases. The Tenth Circuit abused its discretion in overriding the State’s deliberate waiver of the limitations defense. In the district court, the State was well aware of the available limitations defense and the arguments in support of the defense, yet it twice informed the court that it would “not challenge” but was “not conceding” timeliness.

An alien living in the United States as a child must meet the continuous residency requirements on his own, without counting a parent’s years of residence or immigration status. Holder v. Martinez Gutierrez, 132 S. Ct. 2011 (2012).

      Respondent aliens sought cancellation of removal; Board of Immigration Appeals denied cancellation, rejecting the aliens’ imputation arguments under 8 U.S.C.S. § 1229b(a). The Ninth Circuit granted the aliens’ petitions for review and remanded the cases to BIA. Attorney General’s petitions for certiorari were granted and consolidated. The Supreme Court unanimously reversed the Ninth Circuit and remanded the cases.

      Two aliens committed offenses before satisfying the requirements for cancellation of removal under § 1229b(a), which required holding the status of a lawful permanent resident for at least five years and living in the United States for at least seven continuous years after lawful admission. The aliens sought to impute their parents’ years of continuous residence or LPR status to themselves. The Court determined that BIA could rea­son­ably conclude that an alien living in the United States as a child must meet those requirements on his own because BIA’s approach was based on a permissible construction of the statute since, inter alia, (1) the language of § 1229b(a) at least permitted BIA to say that “the alien” must meet the statutory conditions independently, without relying on a parent’s history; (2) the Court could not conclude that Congress ratified an imputation requirement when it passed § 1229b(a); and (3) the Court could not read a silent statute as requiring (not merely allowing) imputation just to be family-friendly.

Fifth Circuit

D’s motion to sever the trial of his co-defendant did not pre­serve his appellate claim that the court should have sev­ered various counts in which D was charged. United States v. Bernegger, 661 F.3d 232 (5th Cir. 2011).

      Although the appellate court retains discretion to review an unpreserved severance claim for plain error, here the district court did not clearly err in finding that the bank fraud count was closely enough related to the mail and wire fraud counts to justify joinder. Nor did D show that failure to sever these counts affected his substantial rights, especially in light of the jury instruction requiring separate consideration of each count and Ds’ acquittals on various counts.

      (2) District court did not violate D’s confrontation rights by refusing to permit testimony of a government witness regarding a transaction that was subject to a confidentiality agreement. D did not show that the transaction was relevant or that testimony regarding the transaction was more than marginally relevant to the witness’ credibility. Additionally, the court did not prohibit D from cross-examining the witness on the one discrepancy be­tween his testimony before the jury and his outside-the-presence testimony.

      (3) In fraud case, district court erred in attributing to D two loans totaling $471,000 as “relevant conduct.” To be “relevant conduct,” conduct must be shown to be criminal. There was no evidence that the loans were obtained in a fraudulent or criminal manner. The fact that the presentence report listed the grantors of the loans as victims was not sufficient; bare assertions in a PSR are not evidence absent any facts or evidence supporting them. This error was harmless vis-à-vis the prison sentence, as subtraction of the amount of the two loans would not change D’s Guideline offense level; the error did require modification of the restitution D was ordered to pay.

D’s proceeding to trial and asserting that the evidence was insufficient to convict him—resulting in a jury verdict of guilty—were incompatible with his claim that he provided the government with all the information he had regarding the offense. United States v. Moreno-Gonzalez, 662 F.3d 369 (5th Cir. 2011).

      On the record of this case, and given the jury verdict, the district court did not clearly err in disbelieving the latter claim and in denying safety-valve relief pursuant to 18 U.S.C. § 3553(f) and USSG § 5C1.2.

Immigrant’s prior Georgia conviction for possession of an unspecified amount of marijuana with intent to distribute was properly considered a felony under the federal Controlled Substances Act and hence a removable aggravated felony under 8 U.S.C. § 1101(a)(43)(B). Moncrieffe v. Holder, 662 F.3d 387 (5th Cir. 2011), writ granted, 132 S. Ct. 1857 (2012).

An alien who has been deported pursuant to a final removal order is no longer in custody for purposes of a ha­beas petition challenging that removal order. Merlan v. Holder, 667 F.3d 538 (5th Cir. 2011).

      Absent any showing that the U.S. deportation was the result of extreme circumstances or that alien was subject to restraints in Mexico, alien was not “in custody” within 28 U.S.C. § 2241 for a habeas petition. Nor did the district court have jurisdiction to review the final removal order pursuant to the provisions of the REAL ID Act. Accordingly, the district court did not err in dismissing the petition for lack of subject matter jurisdiction.

In the appeal of D’s conviction for mail theft by a postal employee, the Fifth Circuit noted a split of authority as to whether pre-arrest, pre-Miranda silence in the face of law enforcement questioning was admissible; the Fifth Circuit declined to take sides in this debate because, regardless, any error in this case was harmless. United States v. Ashley, 664 F.3d 602 (5th Cir. 2011).

      The First, Sixth, Seventh, and Tenth Circuits hold that the Fifth Amendment’s privilege against self-incrimination prohibits the use of pre-arrest, pre-Miranda silence as substantive evidence, while the Fourth, Ninth, and Eleventh Circuits allow its use.

District court did not err in denying D’s motion to suppress the fruits of a search of her cell phone; officers’ war­rant­less entry into the mobile home where D was staying was justified by exigent circumstances (i.e., occupants were destroying evidence) and probable cause. United States v. Aguirre, 664 F.3d 606 (5th Cir. 2011).

      Furthermore, the court did not clearly err in finding that the search of D’s cell phone did not occur until a search warrant was issued two hours later; that warrant, which was based only on information possessed by the police prior to their entry into the home, set out probable cause to search. Finally, although the warrant did not specifically describe cell phones among the items to be searched, D’s phone—using a mode of spoken and written communication and containing text message and call logs—was the equivalent of records and documentation of sales or other drug activity, which the warrant did list as general categories of things to be searched.

In case of D convicted of one count of transportation of child pornography, D’s within-Guidelines prison sentence of 220 months was not substantively unreasonable; the district court considered all the statutory factors in im­pos­ing sentence. United States v. Miller, 665 F.3d 114 (5th Cir. 2011).

      The Fifth Circuit distinguished from United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), which was highly critical of child pornography Guidelines.

      Nor did the district court abuse its discretion in imposing a special condition of supervised release forbidding use of any computer or device with Internet access (including phones) without written permission. The ban was not absolute or unconditional, and the probation officer could grant permission to use a computer or the Internet. Nor did the district court plainly err in imposing a special condition of supervised release forbidding D to own a camera, photographic device, or video recording equipment without approval of the probation officer, given that D’s activities involved misuse of photographic recording equipment. Nor did the court plainly err in imposing a special condition of supervised release forbidding D to acquire or possess “sexually stimulating or sexually oriented materials,” given D’s background (involving consumption of adult pornography); likewise, it was not plainly overbroad in violation of the First Amendment, nor was it so vague as to violate due process.

Court of Criminal Appeals

D’s evidence objections were not so clearly connected to constitutional protections that they could be assumed to be due-process objections. Clark v. State, 365 S.W.3d 333 (Tex.Crim.App. 2012).

      COA affirmed D’s capital murder conviction and life sentence with no possibility of parole. CCA granted review to determine whether objections D made at trial put the trial court on notice of his due-process, fair-trial complaint. CCA affirmed COA.

      Nothing showed that the judge or prosecutor understood that D’s complaints about the evidence were complaints of a denial of due process. The badgering, sidebar, argumentative, invading the province of the jury, and mischaracterization objections were not clearly connected to constitutional pro­tections. The court needed to be presented with and given the opportunity to rule on a constitutional objection. There was no prosecutorial misconduct, and D did not make such an objection. The prosecutor’s actions, while aggressive when cross-examining D, did not amount to fundamental error, and D forfeited his due process claim by not properly preserving error at trial, for Tex. R. App. P. 33.1(a)(1)(A).

Officer lacked reasonable suspicion that D was driving il­le­gally on an improved shoulder; D used the improved shoulder to pass a slowed car, which was authorized by statute. Lothrop v. State, No. PD-1489-11 (Tex.Crim.App. May 9, 2012).

      D was convicted of DWI. COA affirmed the conviction and affirmed the trial court denial of D’s motion to suppress. CCA held that COA erred in affirming the denial of D’s motion; CCA reversed and remanded.

      D claimed his driving was legal under Tex. Transp. Code § 545.058(a), which states that “[a]n operator may drive on an improved shoulder to the right of the main traveled portion of a roadway if that operation is necessary and may be done safely . . . to pass another vehicle that is slowing. . . .” COA held that driving on an improved shoulder, regardless of circumstance, is prima facie evidence of an offense, and that § 545.058(a) merely establishes defenses a defendant may raise at trial and consists of three elements. CCA read the statute such that “necessary” was a free-standing requirement. As the statute envisioned drivers legally using improved shoulders so they could pass left-turning vehicles, interpreting “necessary” to mean absolutely necessary would thwart legislative intent. In this case, officer lacked reasonable suspicion that D was driving illegally; D used the improved shoulder to pass a slowed car, which was authorized by the statute.

The State provided a race-neutral reason for striking a venire­person; he shared the same last name as a criminal family. Nieto v. State, 365 S.W.3d 673 (Tex.Crim.App. 2012).

      D appealed the trial court’s denial of his Batson motion. COA held that the court clearly erred in failing to find the State’s race-neutral reasons were a pretext for racial discrimination. CCA reversed and remanded for COA to consider any remaining issues.

      At D’s murder trial, he filed a Batson claim after the State struck all five black prospective jurors. The State provided a race-neutral reason for striking a venireperson; he shared the same last name (“Mauldin”) as a known criminal family. The venireperson did not respond when the panel was asked if anyone they were related to had been convicted of a crime. And, because defense counsel did not rebut the State’s description of the venireperson’s glaring, his demeanor was proven on the record. Therefore, the trial court’s determination that the strike was racially neutral was not clearly erroneous.

Because the trial court was best positioned to evaluate of­fi­cer’s credibility at the hearing, it was also in the best po­si­tion to clarify its ambiguous findings and make an ex­plicit credibility determination. State v. Mendoza, 365 S.W.3d 666 (Tex.Crim.App. 2012).

      A trial court granted D’s motion to suppress on the ground that officer lacked reasonable suspicion to make the traffic stop. COA reversed. CCA remanded to COA with instructions to abate the case to the trial judge for supplemental findings.

      CCA held that because the written findings of the trial court were ambiguous, and that the trial court made no credibility determination, supplemental findings by the trial court were necessary. The written findings could be construed to imply that the trial judge believed officer was entirely reasonable and that the judge simply misapplied the law of reasonable suspicion; if that were the case, COA’s application of de novo review was proper and its ruling should stand. However, CCA held that it was at least equally possible that the trial court made an implied credibility finding that supported its ruling—namely that it disbelieved officer or the reasonableness of his beliefs, feelings, and statements.

Absent contrary evidence, a mandate is presumed to issue at 9:00 a.m. on the day COA issues it, thereby making any writ application filed later in the day timely. Ex parte Hastings, 366 S.W.3d 199 (Tex.Crim.App. 2012).

Questioning jury panelists’ understanding of the differences between the criminal and civil burdens of proof is relevant to a legitimate defensive challenge for cause. An­der­son v. State, 366 S.W.3d 198 (Tex.Crim.App. 2012).

      Like in Fuller v. State, 363 S.W.3d 583 (Tex.Crim.App. 2012), the trial court abused its discretion by refusing D’s questions on criminal versus civil burdens of proof. CCA remanded to COA in light of Fuller.

The court erred by including in its jury instructions the unknown manner-and-means of death theories because the instructions should have reduced the four alternatives for murder to the two theories supported by evidence; how­ever, the error was harmless. Sanchez v. State, No. PD-0961-07 (Tex.Crim.App. May 16, 2012).

      COA found harmful error in the jury instruction and reversed D’s murder conviction and remanded for a new trial. CCA reversed.

      COA erred by applying the Hicks v. State, 860 S.W.2d 419 (Tex.Crim.App. 1993), rule to charge-error complaints because it was a sufficiency of the evidence rule and because the Hicks rule is defunct. CCA agreed with COA that the trial court erred by including in its jury instructions the unknown manner-and-means of death theories because the instructions should have reduced the four alternatives for murder to the two theories with the specified manner and means that were supported by the evidence. However, the error was harmless because the jury could have convicted D of murder without being unanimous as to the manner or means of death, as all four of the alternatives required the jury to be convinced beyond a reasonable doubt that D caused the victim’s death, and the evidence established that. The victim was heard screaming just before a stun gun fired, and she was found dead by officers who entered the room immediately. D was found alone with the victim, and no one could have left or entered without being seen by officers.

The trial court had insufficient information to dismiss a ju­ror as disabled. Scales v. State, No. PD-0442-11 (Tex.Crim.App. May 16, 2012).

      A jury convicted D of aggravated robbery with a deadly weapon. COA reversed and remanded for a new trial. CCA affirmed; COA correctly held that a dismissed juror was not “disabled” as defined in Tex. Code Crim. Proc. art. 33.011. Statements by the foreman tended to show that the dismissed juror’s perceptions about the evidence were not shared by the other jurors, and that the dismissed juror’s refusal to deliberate was actually a refusal to change her mind. The trial court had insufficient information to determine that the juror was unable to perform her duties.

The statutory county judge lacked jurisdiction to issue a search warrant beyond his county. Sanchez v. State, 365 S.W.3d 681 (Tex.Crim.App. 2012).

      D was charged with DWI. The trial court denied his motion to suppress the blood test results. COA reversed the trial court because the search warrant for D’s blood draw was invalid. CCA affirmed COA. The warrant was issued by a judge of a statutory county court in Montgomery County for D’s blood draw in Harris County, where D was arrested. The Montgomery County judge did not have jurisdiction under Tex. Const. art. V § 1 to issue a search warrant for an individual to be found in Harris County. Statutory county court judges are magistrates, and the duty of a magistrate is “to preserve the peace within his jurisdiction. . . .” Tex. Code Crim. Proc. art. 2.10.

The evidence failed to show a reasonable likelihood that the false testimony affected D’s sentence. Ex parte Chavez, No. AP-76,665 (Tex.Crim.App. May 23, 2012).

      D sought habeas relief from his 55-year sentence for aggravated robbery. D claimed that a legal basis that was unavailable when he filed his first habeas application entitled him to consideration of, and relief on, his due-process false-testimony claim. Ex parte Chabot, 300 S.W.3d 768 (Tex.Crim.App. 2009). CCA determined that although D was not procedurally barred from raising his claim, he failed to establish a due-process violation by the State’s unknowing use of false testimony at trial. The present standard for materiality of false testimony, under Chabot, is whether there is a reasonable likelihood that the false testimony affected applicant’s conviction or sentence. Examination of the entire record did not reveal a reasonable likelihood that the jury was affected by the false testimony in assessing punishment, and the record contained substantial incriminating circumstantial evidence that further supported the sentence.

While the temporal proximity of the seizure of the ecstasy to the illegal traffic stop supported suppression, that factor did not weigh heavily in light of the intervening dis­cov­ery of D’s outstanding arrest warrants. State v. Mazuca, No. PD-1035-11 (Tex.Crim.App. May 23, 2012).

      COA upheld the trial court’s order granting D’s motion to suppress after he was charged with possession of ecstasy. CCA reversed COA and remanded to the trial court.

      CCA held that while the trial court was correct that the temporal proximity of the seizure of the ecstasy to the illegal stop for perceived taillight infractions supported suppression, that factor did not weigh heavily in light of the intervening circumstance of the discovery of his outstanding arrest warrants. The officers were part of a unit specifically tasked with looking for traffic violators. There was no indication that they were making traffic stops for any purpose other than to enforce the traffic laws. Officers’ behavior, although clearly unlawful at the outset, was not so particularly purposeful and flagrant that the discovery of D’s arrest warrants could not have served to break the causal connection between the illegal stop and the discovery of the ecstasy in his pocket, thus purging the primary taint.

COA should consider the property-based approach to the Fourth Amendment as an alternate to the expectation of privacy approach. State v. Bell, 366 S.W.3d 712 (Tex.Crim.App. 2012).

      D, employed as a shopping mall property manager, was charged with unauthorized discharge of industrial waste after a pressure-washing contractor allegedly discharged contaminated water. D filed a motion to suppress evidence, which the trial judge granted after an evidentiary hearing. The judge concluded that the two searches upon D were improper under the Fourth Amendment because both police sergeant and informant were trespassers on the property at the time they entered, searched, and seized evidence from the mall premises. COA reversed. CCA remanded to COA in light of United States v. Jones, 132 S.Ct. 945 (2012), which reaffirmed the continued vitality of the property-based approach to the Fourth Amendment as an alternate to the more recent “expectation of privacy” approach.

      COA, when concluding that D failed to establish his standing to contest the search of the closed parking lot because he did not have a “reasonable expectation of privacy” in that lot, did not have the benefit of Jones. The trial judge based his findings and conclusions on the property-based approach, not the “reasonable expectation of privacy” approach.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Statute requiring that if no stop line exists for a stop sign, driver must stop at the place nearest the intersecting road­way where driver can view traffic does not impose a re­quire­ment to stop behind the stop sign. State v. Javari Ed­ward Police, Nos. 10-11-00108-CR, 10-11-00109-CR, 10-11-00110-CR (Tex.App.—Waco Jan 4, 2012).

      “The plain language of the statute does not refer to a stop sign as an indicator of anything other than a signal that a stop is required prior to entering the intersection. . . . [T]he statute indicates that a stop must be made exactly where it states, which may or may not be behind a stop sign[.]”

      Furthermore, quick right turn into a neighborhood known for criminal activity, which D made almost immediately after officer pulled behind D’s vehicle to perform a license check, did not, by itself, give rise to RS. “The facts before the officer were: (1) it was around midnight; (2) [D’s] car was unfamiliar to him; (3) when he pulled behind [D’s] vehicle to run a license check, [D] almost immediately turned right onto a street that curved in a horseshoe shape; (4) rather than follow [D], the officer waited for [D] to exit the neighborhood; (5) the officer did not believe that [D] resided in that neighborhood, having patrolled that area for approximately four years; (6) the neighborhood had a reputation for burglaries and narcotics transactions; (7) [D] emerged on the other end of the street in less than ninety seconds; (8) [D] pulled up past the stop sign at that intersection but not in the intersecting roadway; (9) [D] turned onto the original roadway and the officer initiated the traffic stop. . . . With these facts, [D’s] behavior was not bizarre and nothing suggests a pattern or repetition of unusual behavior[.]”

D could be arrested for reckless driving even though he was driving on private property. Salcedo v. State, Nos. 04-11-00232-CR, 04-11-00233-CR (Tex.App.—San Antonio Jan 11, 2012).

      “Appellant contends the mobile home park was private property; therefore, a police officer could not detain or arrest him for such driving. We disagree. . . . The Texas Penal Code broadly defines ‘public place’ to mean ‘any place to which the public or a substantial group of the public has access.’ . . . Here, [officer] described the area in which [D] had been driving as very dense with several children running around. [D’s] mother testified 500 to 600 people lived in the community. It was undisputed that the public had unrestricted access to the mobile home park. Therefore, we conclude the park was within the Penal Code’s definition of ‘public place.’”

Contents of text messages found on cell phone were hearsay since messages were produced by human thought rather than computer-generated data. Black v. State, 358 S.W.3d 823 (Tex.App.—Fort Worth 2012).

      “A police officer could testify that she saw a message on the cell phone screen. The ticklish question is the degree to which the officer could properly describe the message. The officer could say that the message was short or long but could not lawfully describe its nature absent a hearsay exception.”

Prior felony convictions to impose enhancement for DWI sufficiently shown, even though the indictment misstated when the convictions were final; the court did not err by refusing to track the indictment’s defective sequence al­le­ga­tion in the jury charge. Derichsweiler v. State, 359 S.W.3d 342 (Tex.App.—Fort Worth 2012).

Information in officer’s warrant affidavit was not stale though four months had passed between D’s last electronic communication to child; a pornographic video trans­mit­ted over the Internet is the type of item that is stored on a computer and often retrievable even if erased. State v. Cotter, 360 S.W.3d 647 (Tex.App.—Amarillo 2012).

      Furthermore, that type of property is not transient, unlike consumable drugs.

Officer’s perception of D punching someone gave rise to PC for disorderly conduct regardless of whether it turned out that sufficient evidence supported D’s defense of self-defense. Rangel v. State, No. 11-10-00038-CR (Tex.App.—Eastland Jan 26, 2012).

      “Additionally, [D’s] act of fleeing the scene when [officer] arrived was not consistent with the contention that [D] was acting in self-defense.”

The trial court did not err in admitting evidence of an audio-visual recording of D making phone calls at a police sta­tion; D’s Sixth Amendment right to counsel had not yet attached. Vinez v. State, No. 08-10-00195-CR (Tex.App.—El Paso Feb 1, 2012).

            “Upon arrival at the police station, the police placed [D] in an interview room and informed him that he was in custody and not free to leave. . . . After the police questioned him for some time, he asked to use the police station telephone to call an attorney. The police then ceased the questioning and left the interview room, but they did not turn off the audio-visual recorder. [D] proceeded to make several telephone calls to family and friends, none of whom was an attorney, seeking advice and assistance. During the calls, [D] made certain statements that could be considered incriminating. . . . [D] made the telephone calls in question while the police were still investigating the offense, i.e., at a point before adversary judicial proceedings began. Therefore, [D’s] Sixth Amendment right to counsel had not yet attached. . . . There was no evidence that the police told [D] that he had privacy, nor was there any evidence that the police even closed the door to the interview room when they left following the interrogation. In our view, these circumstances did not justify an expectation that [D’s] oral communications were not subject to police interception.”

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