July/August 2017 SDR – Voice for the Defense Vol. 46, No. 6

Voice for the Defense Volume 46, No. 6 Edition

Editor: Michael Mowla

From editor Michael Mowla:

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

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

3. I provide a thorough recitation of the facts in the electronic version of SDR.

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

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

Supreme Court of the United States

Davila v. Davis, 16-6219, 2017 U.S. LEXIS 4060 (U.S. June 26, 2017)

        Martinez and Trevino do not supply cause to excuse the procedural default of state habeas counsel’s failure to raise ineffective assistance of appellate counsel during the state habeas proceeding for failure to raise an issue on direct appeal (that should have been raised) because Martinez and Trevino apply exclusively to claims of IATC.

        Except as provided in Martinez and Trevino, in federal review of state convictions under 28 U.S.C. § 2254: (1) a state prisoner must exhaust available state remedies before presenting his claim to a federal habeas court [28 U.S.C. § 2254(b)(1)(A) and Rose v. Lundy, 455 U.S. 509, 518 (1982); and (2) a federal court may not review federal claims that were procedurally defaulted in state court (claims that the state court denied based on an adequate and independent state procedural rule, or for failure to allow the state court of an opportunity to address the merits of the claim).

        Under Martinez v. Ryan, 566 U.S. 1, 16–17 (2012), procedural default will not bar a federal habeas court from hearing a substantial claim of IATC if the default results from the ineffective assistance of habeas counsel. Under Trevino v. Thaler, 133 S.Ct. 1911 (2013), the Martinez exception applies both where state law explicitly prohibits prisoners from bringing claims of IATC on direct appeal and where the State’s procedural framework, because of its design and operation, makes it unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of IATC on direct appeal (such as in Texas).

Editor’s note: summary of the court’s reasoning: “The criminal trial enjoys pride of place in our criminal justice system in a way that an appeal from that trial does not . . . the Constitution twice guarantees the right to a criminal trial, but does not guarantee the right to an appeal at all . . . the trial “is the main event at which a defendant’s rights are to be determined . . . and not simply a tryout on the road to appellate review . . . a claim of appellate ineffectiveness premised on a preserved trial error thus does not present the same concern that animated the Martinez exception because at least “one court” will have considered the claim on the merits . . . flooding the courts with defaulted claims . . .”

Translated: The 5–4 majority believes that appeals (even in death-penalty cases) are not that important.

Honeycutt v. United States, 16-142, 2017 U.S. LEXIS 3556 (U.S. June 5, 2017)

        Joint-and-several liability applies when there has been a judgment against multiple defendants. In a forfeiture case, when two or more defendants conspire to violate the law, each defendant is held liable for a forfeiture judgment based not only on property that he used in or acquired because of the crime, but also on property obtained by his co-conspirator.

        Under 21 U.S.C. § 853, forfeiture applies to “any person” convicted of certain serious drug crimes, but is limited to only tainted property as follows: (1) § 853(a)(1) limits forfeiture to “property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of” the crime; (2) § 853(a)(2) restricts forfeiture to “property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of,” the crime; and (3) § 853(a)(3) applies to persons “convicted of engaging in a continuing criminal enterprise”—a form of conspiracy—and requires forfeiture of “property described in paragraph (1) or (2)” as well as “any of [the defendant’s] interest in, claims against, and property or contractual rights affording a source of control over, the continuing criminal enterprise.”

        Under 21 U.S.C. § 853(d), there is a rebuttable presumption that property is subject to forfeiture only if the Government proves that: (1) the property was acquired by the defendant during the period of the violation; and (2) there was no likely source for such property other than the crime. Joint-and-several liability would mandate forfeiture of untainted property that the defendant did not acquire because of the crime, and this is not allowed.

        Under 21 U.S.C. § 853(p)(1), the government may confiscate property untainted by the crime (permits forfeiture of “substitute property”) and applies “if any property described in subsection (a), as a result of any act or omission of the defendant” either: (A) cannot be located upon the exercise of due diligence; (B) has been transferred or sold to, or deposited with, a third party; (C) has been placed beyond the jurisdiction of the court; (D) has been substantially diminished in value; or (E) has been commingled with other property which cannot be divided without difficulty. Under 21 U.S.C. § 853(p)(2), only if the Government can prove that one of these five conditions was caused by the defendant may it seize “any other property of the defendant, up to the value of” the tainted property-rather than the tainted property itself.

        Under 21 U.S.C. § 853(a)(1), forfeiture is limited to property the defendant personally acquired as the result of the crime.

Jae Lee v. United States, 16-327, 2017 U.S. LEXIS 4045 (U.S. June 23, 2017)

        If a noncitizen proves defective advice regarding the risk of deportation if the noncitizen pleads guilty to an offense for which deportation is presumably mandatory (and satisfies prong 1 of the IATC standard of Strickland v. Washington), to prove the prejudice-prong of Strickland (prong 2), the noncitizen need not prove that he would have likely prevailed at trial.

Editor’s Note 1: I have been asked whether Lee will be held to be retroactive. In Chaidez, 133 S.Ct. 1103 (2013), the SCOTUS held that Padilla was not retroactive. Chaidez was decided based on the flawed reasoning of Teague v. Lane, 489 U.S. 288 (1989), a badly flawed opinion. It is likely that once the courts apply Teague to Lee, the same result will occur.

Editor’s Note 2: There is concern in the defense-bar among trial lawyers that with the SCOTUS relaxing the prejudice-prong of Strickland on the issue in Lee, this will harm criminal trial attorneys. I disagree. The advice that trial counsel must give to clients under Lee is the same as before: If the client is pleading guilty or no-contest to a crime that is an aggravated felony under Title 8 or carries with it presumably mandatory deportation, trial counsel’s written advice to the client is that if he pleads guilty, deportation will be presumably mandatory. And if deportation will be presumably mandatory, trial counsel should advise the client in writing to seek counsel from an immigration lawyer before he pleads guilty or no-contest. This is nearly verbatim from Padilla. There are many CLE presentations that explain what offenses are aggravated felonies or carry presumably mandatory deportation, or both (I wrote and presented on this topic several times.) Further, I was the amicus curiae attorney on Torres, 483 S.W.3d 35 (Tex. Crim. App. 2016), in which the TCCA set the impossibly high standard for the prejudice-prong of having to prove that your client would likely have succeeded at trial. Lee overturns Torres, and rightfully so. There are very few sets of circumstances where a defendant can prove by a preponderance of the evidence that he would have succeeded at trial.

Jenkins v. Hutton, 16-1116, 2017 U.S. LEXIS 3875 (U.S. June 19, 2017) (per curiam)

        Under Sawyer v. Whitley, 505 U.S. 333 (1992), a habeas petitioner may obtain review of a defaulted claim upon “showing by clear and convincing evidence that, but for a constitutional error, no reasonable jury would have found him eligible for the death penalty under the applicable state law.” Sawyer does not allow a court to consider whether the alleged error might have affected the jury’s verdict such as where the jury might have been relying on invalid aggravating circumstances when it recommended a death sentence.

McWilliams v. Dunn, 16-5294, 2017 U.S. LEXIS 3876 (U.S. June 19, 2017)

        Under Ake v. Oklahoma, 470 U.S. 68 (1985), a state must provide an indigent defendant with a qualified mental health expert retained specifically for the defense team, not a neutral expert available to both parties.

Packingham v. North Carolina, 15-1194, 2017 U.S. LEXIS 3871 (U.S. June 19, 2017)

        A state is permitted to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that may presage a sexual crime, like contacting a minor or using a website to gather information about a minor. However, a law that forecloses access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.

Weaver v. Massachusetts, 16-240, 2017 U.S. LEXIS 4043 (U.S. June 22, 2017)

        Although closing a courtroom is structural error not subject to harmless-error analysis, and trial counsel’s failure to object to the closure is objectively unreasonable under the first prong of Strickland, a defendant must show that trial counsel’s failure to object caused defendant prejudice (second prong of Strickland).

        Under Arizona v. Fulminante, 499 U.S. 279 (1991), the SCOTUS again recognized Chapman, 386 U.S. at 24, and Neder, 527 U.S. 1, 7 (1999), that some errors (structural) cannot be deemed harmless beyond a reasonable doubt, which ensures certain basic, constitutional guarantees that should define the framework of any criminal trial. A structural error “affects the framework within which the trial proceeds,” rather than being “simply an error in the trial process itself.” It means only that the government is not entitled to deprive the defendant of a new trial by showing that the error was “harmless beyond a reasonable doubt.”

        Structural error occurs where the: (1) right is not designed to protect the defendant from erroneous conviction but instead protects some other interest (i.e., right to conduct own defense, based on the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty); (2) effects of the error are simply too hard to measure (i.e., defendant denied right to select his own attorney, the precise “effect of the violation cannot be ascertained”); (3) error always results in fundamental unfairness (i.e., indigent defendant is denied an attorney or if the judge fails to give a reasonable-doubt instruction, the resulting trial is always a fundamentally unfair one).

        The violation of the right to a public trial is structural error because: (1) it is difficult to assess the effect of the error; and (2) protects the rights of the defendant; and (3) protects the rights of the public at large and the press, but it is subject to exceptions if the trial court deems it necessary to conduct a trial and makes proper FFCL in support of the decision to do so.

        Under Neder, 527 U.S. 1, 7 (1999), if there is structural error (such as the closure of the courtroom) that is objected to and the issue is raised on direct appeal, the defendant generally is entitled to automatic reversal regardless of the error’s “effect on the outcome.” But if the closure of a courtroom is not objected to at trial, to show IATC, a defendant must show that trial counsel’s error was “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” (prong 1) and trial counsel’s error prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).

United States Court of Appeals for the Fifth Circuit

United States v. Brooker, 16-10698, 2017 U.S. App. LEXIS 10152 (5th Cir. June 7, 2017) (designated for publication)

        The decision to revoke supervised release is reviewed for an abuse of discretion. The sentence imposed is reviewed under a plainly unreasonable standard: (1) the reviewing court ensures that the district court committed no significant procedural er­ror; and (2) if the district court’s sentencing decision lacks pro­cedu­ral error, the reviewing court considers the substantive rea­son­ableness of the sentence imposed. If the reviewing court finds the sentence unreasonable, the court may reverse the district court only if the reviewing court determines the error was obvious under existing law.

        Under 18 U.S.C. § 3583(g), revocation of supervised release is mandatory if a defendant possesses a controlled substance, re­fuses to comply with drug-testing imposed as a condition, or tests positive for illegal controlled substances more than 3 times over the course of 1 year.

        Under 18 U.S.C. § 3583(d), if a defendant fails a drug test, the court shall consider whether the availability of appropriate substance abuse treatment programs, or an individual’s current or past participation in such programs, warrants an exception from 18 U.S.C. § 3583(g).

        If a defendant argues to the district court that a substance-abuse treatment program should be imposed and the court still revokes supervised release, it is understood that the court implicitly considered and rejected application of the drug-treatment exception.

United States v. Colorado-Cessa, 16-50328, 2017 U.S. App. LEXIS 11303 (5th Cir. June 9, 2017) (designated for publication)

        To determine a Brady motion, a district court must conduct a Brady analysis by making findings on the record regarding all three Brady prongs. Under Brady, a defendant’s due process rights are violated when the prosecution suppresses evidence that is exculpatory. To establish a Brady violation, a defendant must show the evidence was: (1) favorable because it was exculpatory or impeaching; (2) suppressed by the prosecution; and (3) material, which occurs if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.

        Under Giglio v. United States, 405 U.S. 150, 152–154 (1972), Brady applies to evidence that could be used to impeach prosecution witnesses.

United States v. Rodriguez, 15-40357, 2017 U.S. App. LEXIS 9957 (5th Cir. June 5, 2017) (designated for publication)

        Attorney abandonment does not, by itself, excuse a petitioner from his duty of diligence under 28 U.S.C. § 2255(f)(4) when litigating a postconviction motion to obtain an out-of-time appeal, and complete inactivity in the face of no communication from trial counsel does not constitute diligence.

Editor’s Note: The rule in the Fifth Circuit is different than in Texas proceedings, where attorney abandonment alone in the 30-day post-judgment phase is often sufficient to constitute ineffective counsel for failing to secure a defendant’s right to an appeal. The remedy for a defendant whose trial counsel failed to take measures to make certain that the applicant’s appellate rights or rights to discretionary review are protected is the granting of an out-of-time appeal or discretionary review. See Ex parte Edwards, 688 S.W.2d 566, 568 (Tex. Crim. App. 1985); Ex parte Axel, 757 S.W.2d 369, 371 (Tex. Crim. App. 1988) (representation by trial counsel does not terminate at end of trial); and Ex parte Steptoe, 132 S.W.3d 434, 435–436 (Tex. Crim. App. 2004).

Sorto v. Davis, 16-70005, 2016 U.S. App. LEXIS 21470 (5th Cir. June 15, 2017) (designated for publication) (death penalty case)

        A certificate of appealability (“COA”) is not required for an appeal of a district court’s denial of funding under 18 U.S.C. 3599.

        An inmate may appeal a denial of habeas relief with respect to nonfunding claims only if the USCA5 grants COAs for those claims.

        Under 28 U.S.C. § 2253(c)(1), an inmate may appeal a denial of habeas relief with respect to nonfunding claims only if the appellate court grants COAs for those claims.

        A COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” For claims denied on the merits, a defendant must demonstrate that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’” For claims denied on procedural grounds, the defendant must show that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.”

        If an inmate seeks a COA on a claim that was adjudicated in state court, the claim must be reviewed under 28 U.S.C. § 2254(d), which imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt: A federal court may not grant habeas relief unless the state-court adjudication: (1) resulted in a decision that was contrary to or involved an unreasonable application of clearly established federal law as determined by the SCOTUS; or (2) resulted in a decision that was based on an unreasonable determination of the facts considering the evidence presented in the State court proceeding.

        A state court’s decision is “contrary to” clearly established SCOTUS law if it: (1) applies a rule that contradicts the governing law set forth in SCOTUS opinions; or (2) confronts a set of facts that are materially indistinguishable from a decision of the SCOTUS and nevertheless arrives at a result different from SCOTUS precedent. A state court’s decision is “an unreasonable application” of SCOTUS law if it identifies the correct governing legal principle from the SCOTUS but unreasonably applies that principle to the facts of the petitioner’s case.

United States v. Zuniga, 14-11304, 2017 U.S. App. LEXIS 9958 (5th Cir. June 14, 2017) (designated for publication)

        A stop based on the collective-knowledge doctrine is valid if: (1) there existed enough information to support a finding of reasonable suspicion to stop the vehicle; and (2) that knowledge can be imputed under the “collective knowledge doctrine” to the officer who did not witness possible criminal activity but who seized the defendant and evidence. An officer initiating the stop need not have personal knowledge of the evidence that gave rise to the reasonable suspicion or probable cause so long as there is “some degree of communication” between the stopping officer and the officer with personal knowledge of the facts.

        Although an officer may stop a vehicle for a traffic or parking violation, under Whren v. United States, 517 U.S. 806, 810 (1996), when an officer is in possession of information that creates the basis for probable cause, he is required to act upon this information within a reasonable time, otherwise the existence of probable cause becomes stale.

Editor’s Note: In Texas, the collective-knowledge doctrine is used permissively. See Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987). The collective-knowledge doctrine was intended that each officer know something about the underlying facts leading to reasonable suspicion or probable cause, and collectively, all the officers possess reasonable suspicion or probable cause. However, the USCA5 appears content with this application of the doctrine:

Texas Court of Criminal Appeals

Arteaga v. State, PD-1648-15 & PD-1649-15, 2017 Tex. Crim. App. LEXIS 533 (Tex. Crim. App. June 7, 2017) (designated for publication)

        If the State prosecutes under Tex. Penal Code § 22.011(f), which elevates a sexual assault from an F-2 to an F-1 if the defendant would be committing bigamy if he “marries” the alleged victim, the jury charge must include language from the bigamy statute, Tex. Penal Code § 25.01.

Ex parte Carter, WR-85,060-01 & WR-85,060-02, 2017 Tex. Crim. App. LEXIS 564 (Tex. Crim. App. June 7, 2017) (Alcala, J. dissenting) (Richardson, J. dissenting) (designated for publication)

        Under Tex. Penal Code § 3.03(a), when a defendant is found guilty of more than one offense arising out of the same criminal episode and those offenses are prosecuted in a single criminal action, “the sentences shall run concurrently.” A defendant sentenced under an improper cumulation order in violation of Tex. Penal Code § 3.03(a) must raise the issue on direct appeal or is procedurally defaulted, and an improper cumulation order is no longer void.

Hopper v. State, PD-0703-16, 2017 Tex. Crim. App. LEXIS 531 (Tex. Crim. App. June 7, 2017) (designated for publication)

        Under Barker v. Wingo, 407 U.S. 514, 530 (1972), in addressing a speedy-trial claim, a court must balance the following: (1) the length of delay (12 months between the time of the accusation and the time of trial is presumptively prejudicial); (2) the State’s reason for the delay (deliberate attempts by the State to delay the trial to hamper the defense are weighed heavily against the State. Neutral reason such as negligence or overcrowded courts are weighted less heavily but should be considered since the ultimate responsibility for such circumstances rests with the State rather than with the defendant. When the record is silent regarding the reason for the delay, a court may presume neither a deliberate attempt on the part of the State to prejudice the defense nor a valid reason for the delay); (3) defendant’s assertion of his right to a speedy trial (although the defendant has no duty to bring himself to trial, he does have the responsibility to assert his right to a speedy trial); and (4) prejudice to the defendant because of the length of delay (i) preventing oppressive pretrial incarceration, (ii) minimizing anxiety and concern of the defendant, and (iii) most importantly, limiting the possibility that the defense will be impaired.

        Under Doggett v. U.S., 505 U.S. 647, 651–652 (1992), before a court engages in an analysis of each Barker factor, the defendant must “first make a threshold showing that ‘the interval between accusation and trial has crossed the threshold dividing ordinary from “presumptively prejudicial” delay.’” Affirmative proof of prejudice is not essential to every speedy trial claim because excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or even identify, but the presumption of prejudice to a defendant’s ability to defend himself is extenuated by the defendant’s acquiescence in some or all the delay.

        The Interstate Agreement on Detainers (IAD) is a compact between states (and some other jurisdictions) that enables a party state to obtain custody of an out-of-state prisoner for prosecution and imposes duties to ensure a prisoner’s quick return to the sending state. Under Tex. Code Crim. Proc. Art. 51.14 I–IX, if a defendant is serving a term of imprisonment in another state and Texas files a detainer in that other state, both Texas and the defendant have a right to demand the transfer of the defendant to Texas for a final disposition of the Texas charge. If the defendant initiates a demand under the IAD, then Texas must bring the defendant to trial within 180 days after the prosecutor and court receive the defendant’s demand. If Texas initiates a demand under the IAD, then Texas must bring the defendant to trial within 120 days of his arrival in Texas. The IAD accords the governor of the state that holds the prisoner the power to disapprove a demand initiated by the State but accords no such power with respect to a demand initiated by the defendant.

        A defendant’s failure to invoke the IAD to call himself to the attention of the authorities is not the kind of affirmative conduct that would make him partially responsible for delay. However, the same is not necessarily true of criminal conduct that results in a defendant’s incarceration in another jurisdiction. By leaving Texas and committing crimes in another state, a defendant creates at least a modest impediment to prosecution in Texas. Although that impediment was likely to be easily surmounted by a request under the IAD, in addition to the cost of bringing the defendant back to Texas, the prosecution of the case would be subject to the IAD’s requirements that might be far more restrictive than required by the Sixth Amendment’s speedy-trial clause.

        Where a defendant creates an impediment to his prosecution that he could have easily lifted that barrier by invoking the IAD that lifting that barrier would also have imposed time requirements that would have ensured a speedy trial, and that the State’s invocation of the IAD was not guaranteed to succeed, and if successful, had costs, the defendant’s failure to invoke the IAD contributes to the delay to be relevant to the reasons-for-delay factor. This does not absolve the State of responsibility for failing to invoke the IAD, as the State shoulders blame for failing to even attempt to procure the defendant.

Moore v. State, PD-1056-16, 2017 Tex. Crim. App. LEXIS 529 (Tex. Crim. App. June 7, 2017) (Walker, J. dissenting) (designated for publication)

        An automobile is not designed, made, or adapted for inflicting death or serious bodily injury, but it may in the manner of its use or intended use may cause death or serious bodily injury. See Penal Code § 1.07(a)(17)(B).

        In any felony offense in which it is shown that the defendant used or exhibited a deadly weapon, the trial court shall enter a deadly-weapon finding in the judgment, which impacts the defendant’s eligibility for community supervision, parole, and mandatory supervision. See Gov. Code §§ 508.145(d)(1), 508.149(a)(1), and 508.151(a)(2).

        To justify a deadly-weapon finding, the State need not establish that the use or intended use of an implement caused death or serious bodily injury, but only that the way it was either used or intended to be used can cause death or serious bodily injury. Nor does the actor need to intend death or serious bodily injury.

Queeman v. State, PD-0215-16, 2017 Tex. Crim. App. LEXIS 573 (Tex. Crim. App. June 14, 2017) (designated for publication)

        Under Tex. Penal Code §§ 6.03(d) and 19.05(a), to prove criminally negligent homicide, the State must prove that: (1) the defendant’s conduct caused the death of an individual; (2) the defendant ought to have been aware that there was a substantial and unjustifiable risk of death from his conduct; and (3) his failure to perceive the risk constituted a gross deviation from the standard of care an ordinary person would have exercised under like circumstances. The circumstances are viewed from the standpoint of the actor at the time that the allegedly negligent act occurred.

        “Criminal negligence does not require proof of a defendant’s subjective awareness of the risk of harm, but rather the defendant’s awareness of the attendant circumstances leading to such a risk.” The key is not the actor’s being aware of a substantial risk and disregarding it, but rather it is the failure of the actor to perceive the risk at all.”

        Criminal negligence is different from ordinary civil negligence: Civil or “simple” negligence means the failure to use ordinary care, or failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances. Criminal negligence involves a greater risk of harm to others without any compensating social utility than does simple negligence. The carelessness required for criminal negligence is significantly higher than that for civil negligence; the seriousness of the negligence would be known by any reasonable person sharing the community’s sense of right and wrong. The risk must be “substantial and unjustifiable,” and the failure to perceive it must be a “gross deviation” from reasonable care as judged by general societal standards by ordinary people.

Rodriguez v. State, PD-1391-15, 2017 Tex. Crim. App. LEXIS 569 (Tex. Crim. App. June 7, 2017) (designated for publication)

        A dorm room is the same as an apartment or a hotel room. Although under the “contract” between a student and the university dorm personnel can enter dorm rooms and examine (without a warrant) the room to maintain a safe and secure campus or to enforce a campus rule or regulation, students still enjoy the right of privacy and freedom from an unreasonable search or seizure. The student is the tenant, the college the landlord.

        The private-party-search doctrine provides that the Fourth Amendment’s warrant requirement applies only to government agents, not private actors. In United States v. Jacobsen, 466 U.S. 109 (1984), invasions of privacy by the government agent in addition to a private-party-search must be tested by the degree to which they exceeded the scope of the private search (where FedEx employees opened a damaged box, found a tube wrapped in newspaper, cut open the tube, discovered clear plastic bags containing a white powdery substance, notified the DEA, who sent an agent to reopen the box, the DEA did not invade upon any reasonable expectation of privacy by physically examining the powdery substance because the expectations of privacy in the package had already been frustrated by the actions of nongovernmental third parties).

        The private-party-search doctrine of Jacobsen does not extend to homes: If a private party searches a home (or a dorm room), an exception to the warrant requirement is necessary for law enforcement to also conduct a search of the premises.

        The “special-needs exception” of New Jersey v. T.L.O., 469 U.S. 325 (1985), in which the Court held that school teachers and administrators could search students without a warrant if: (1) there exists “reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school”; and (2) the search is “not excessively intrusive in light of the age and sex of the student and the nature of the infraction” does not apply to dorm rooms because unlike the situation in L.O., a college dorm room does not involve unemancipated minors required by compulsory attendance laws to attend classes, and T.L.O. was based on the need of grade-school administrators to maintain discipline, order, and student safety.

        For the plain-view doctrine to apply, the officer must have had lawful authority to be in the location from which he viewed the item, and the incriminating nature of the item must be immediately apparent.

        A third party can consent to a search to the detriment of another’s privacy interest if the third party has actual authority over the place or thing to be searched. See Hubert v. State, 312 S.W.3d 554, 560 (Tex. Crim. App. 2010), and United States v. Matlock, 415 U.S. 164, 170 (1974). Actual authority exists if the third party may give valid consent when he and the absent, non-consenting person share “common authority” over the premises or property, or if the third party has some “other sufficient relationship” to the premises or property. Common authority is shown by mutual use of the property by persons generally having joint access or control for most purposes. With joint access and control, it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

        Where an officer reasonably, though mistakenly, believes that a third party purporting to provide consent has actual authority over the place or thing to be searched, apparent authority. Apparent authority is judged under an objective standard: “Would the facts available to the officer at that moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises?”

Texas Courts of Appeals

$102,450 et al v. State, 09-16-00171-CV, 2017 Tex. App. LEXIS 5761 (Tex. App. Beaumont, June 22, 2017) (designated for publication)

        In State v. One (1) 2004 Lincoln Navigator, 494 S.W.3d 690, 701 (Tex. 2016), the SCOT held that Tex. Code Crim. Proc. Ch. 59 neither provides for exclusion of illegally obtained evidence nor requires the state to prove lawful seizure as a prerequisite to commencing a forfeiture proceeding. Trial courts considering civil-forfeiture proceedings do not need to conduct a Fourth Amendment reasonableness inquiry because Chapter 59 contains neither an exclusionary rule nor a procedural prerequisite requiring the state to show a legal search (i.e., Tex. Code Crim. Proc. Art. 38.23 applies in criminal proceedings).

In re Bell, 01-17-00373-CR, 2017 Tex. App. LEXIS 5347 (Tex. App. Houston [1st Dist.] June 13, 2017)

        Under Tex. Rule App. Proc. 25.2(g), generally all trial court proceedings are suspended once the record is filed in the appellate court except those permitted by law or rules.

        Code Crim. Proc. Art. 44.04(d) permits the trial court to alter bail while an appeal is pending.

        Under Tex. Code Crim. Proc. Art. 44.04(b), when a conviction is reinstated upon issuance of a mandate, a defendant must be “immediately placed in custody” by the trial court.

Fraser v. State, 07-15-00267-CR, 2017 Tex. App. LEXIS 5308 (Tex. App. Amarillo June 9, 2017) (designated for publication)

        When reviewing the legal sufficiency of the evidence, a court views the evidence “in the light most favorable to the verdict and determine whether, based on the evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318–319 (1979). The jury is the sole judge of the credibility of witnesses and the weight to be given to their testimonies, and the reviewing court must not usurp this role by substituting its own judgment for that of the jury. The duty of the reviewing court is to ensure that the evidence presented supports the jury’s verdict and that the State has presented a legally sufficient case of the offense charged. When the reviewing court is faced with a record supporting contradicting inferences, the court must presume that the jury resolved any such conflicts in favor of the verdict, even if not explicitly stated in the record. Evidence may be legally insufficient when the record contains either no evidence of an essential element, merely a modicum of evidence of one element, or if it conclusively establishes a reasonable doubt.

        Murder and Manslaughter are “result-oriented” offenses because the proscribed conduct must have caused the death of the victim (as opposed to engaging in conduct that results in death). The only difference between Murder and Manslaughter is the mens rea associated with the result of the conduct.

        Where neither the indictment nor the jury-charge limits the jury’s consideration to conduct what was committed intentionally or knowingly (thereby permitting a conviction based upon reckless or criminally negligent conduct), the court examines the record to determine whether the underlying felony supports felony-murder conviction based on whether: (1) the offense as charged merged with the act clearly dangerous to human life, and (2) that offense is manslaughter or a lesser-included offense.

        Under the “merger doctrine,” the court considers whether an act constituting the underlying felony and the act resulting in the death were the same. If the underlying felony and the act clearly dangerous to human life resulting in death are “one and the same,” thus being subsumed within the definition of manslaughter (or a lesser-included offense), then the merger doctrine renders a felony-murder conviction invalid.

        Under Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. 2012), if an appellate court finds the evidence is legally insufficient, the court is not limited to ordering an acquittal, but may instead reform the judgment to reflect a conviction as to the lesser-included offense and remand the case to the trial court for a new punishment hearing.

        If the erroneous charge deals with the merits of the offense and not the range of punishment, thus the verdict rendered by the jury was a general one (the court is unable to determine whether some or all the jurors believed Appellant was guilty of murder based upon a theory authorized by law (intentional or knowing conduct) or a theory not authorized by law (reckless or criminally negligent conduct), the appropriate remedy is not to acquit or to reform the judgment of conviction, but to reverse and remand for a new trial.

Lovett v. State, 02-16-00094-CR & 02-16-00095-CR, 2017 Tex. App. LEXIS 5486 (Tex. App. Fort Worth June 15, 2017) (designated for publication)

        Under Feiner v. New York, 340 U.S. 315, 320 (1951), when clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order appears, the State’s power to prevent or pun­ish is “obvious.”

        The government has a significant interest in ensuring public safety and order. A traditional exercise of the State’s police powers is to protect its citizens’ health and safety. Police officers have the lawful authority to maintain public safety, particularly when crowds of people are gathered and when a perceived possibility exists of a riot or other threat to public safety. A government “must have some ability to protect” its citizens and both public and private property. In keeping with this authority, the police’s specific ability to lawfully disarm someone is broad.

        Under Tex. Gov. Code § 411.207(a), a peace officer who is lawfully discharging his official duties “may disarm a license holder [to carry a handgun] at any time the officer reasonably believes it is necessary for the protection of the license holder, officer, or another individual.” If an officer may disarm even a license holder for safety reasons, an officer may disarm anyone of a deadly weapon for the same reasons.

Luckenbach v. State, 14-15-01048-CR, 2017 Tex. App. LEXIS 5148 (Tex. App. Houston [14th Dist.] June 6, 2017) (Brown, J. dissenting) (designated for publication)

        When a trial court determines probable cause to support the issuance of a search warrant, there are no credibility calls and instead the court rules on what falls within the four corners of the affidavit. When reviewing a magistrate’s decision to issue a warrant, courts apply a highly deferential standard of review because of the constitutional preference for searches conducted under a warrant over warrantless searches. So long as the magistrate had a substantial basis for concluding that probable cause existed, the magistrate’s probable-cause determination is upheld. The magistrate may draw reasonable inferences from the facts and circumstances contained in the affidavit’s four corners.

        Under Tex. Code Crim. Proc. Art. 18.02(a)(10), a search warrant may be issued to search for and seize property or items, except the personal writings by the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense. Under Tex. Code Crim. Proc. Art. 18.01(c), a warrant may not issue unless a sworn affidavit required by Tex. Code Crim. Proc. Art. 18.01(b) sets forth sufficient facts to establish probable cause that: (1) a specific offense was committed, (2) the specifically described property or items to be searched for or seized constitute evidence of that offense or evidence that a particular person committed that offense, and (3) the property or items constituting evidence to be searched for or seized are located at or on the particular person, place, or thing to be searched.

        Probable cause exists when, under the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found at the specified location.

Rodriguez v. State, 14-16-00107-CR, 2017 Tex. App. LEXIS 5589 (Tex. App. Houston [14th Dist.] June 20, 2017) (designated for publication)

        When the trial court erroneously omits a defensive instruction over objection, under Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013), and Almanza v. State, 686 S.W.2d 157 171 (Tex. Crim. App. 1985), the conviction must be reversed if the appellant suffered some harm, which is error calculated to injure the rights of the appellant. The harm must be actual and not merely theoretical. To determine whether “some harm” occurred, the court must consider: (1) the arguments of counsel, (2) the entire jury charge, (3) all the evidence, and (4) any other relevant factors.

        To evaluate harm where the jury received an instruction for one confession-and-avoidance defense but not another, a reviewing court considers whether the: (1) defenses overlapped to such an extent that the instruction given precluded harm from the absence of the instruction denied; and (2) jury’s rejection of the charge given provides assurance that the defendant suffered no harm.

        Under Tex. Penal Code § 9.22 (necessity), conduct is justified if: (1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm; (2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear. A proper jury charge on necessity includes (1) and (2) but not (3), which is a question of law.

        To be entitled to a necessity instruction, there must be some evidence that the defendant reasonably believed that: (1) a specific harm was imminent; and (2) the criminal conduct was immediately necessary to avoid the imminent harm.

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

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

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