June 20, 2011 SDR

Vol. XXVI, No. 16: Electronic Edition


Please do not rely solely on the summaries below. Each case name links to the full text of the opinion, which we recommend you read in addition to these brief synopses. The SDR is sent to current TCDLA members.


Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham




Certiorari from the Ninth Circuit

Chamber of Commerce of the United States v. Whiting, 563 U.S. ____, 09–115 (5/26/11)

Affirmed: Roberts (5-3); Breyer dissented w/Ginsburg; Sotomayor dissented

Various business and civil-rights organizations challenged the enforceability of The Legal Arizona Worker’s Act (LAWA) in an Arizona federal district court. They argued that federal law preempted LAWA, which requires Arizona employers to use the federal E-Verify employment verification system and revokes business licenses of those who hire unauthorized workers. The district court upheld the statute.

The Ninth Circuit affirmed, holding that LAWA was not preempted explicitly or impliedly by the federal Immigration Reform and Control Act (IRCA). The court reasoned that although IRCA expressly preempts all state and local laws imposing sanctions for hiring or recruiting unauthorized aliens, it excepts licensing laws—like LAWA—from preemptive reach. The court also reasoned that mandating the use of E-Verify is not impliedly preempted by IRCA because Congress could have, but did not, expressly forbid states form requiring E-Verify participation.

Question: An Arizona law requires state employers to check the immigration status of job applicants through a federal computer database, although the federal law creating the database makes its use voluntary. Arizona also revokes the business license of state companies that hire undocumented workers. Are these provisions pre-empted by federal immigration laws?

Conclusion: No. “Arizona’s licensing law falls well within the confines of the authority Congress chose to leave to the States and therefore is not expressly preempted.” All five members of the majority did not join the chief justice’s opinion in full. Meanwhile, Justice Breyer dissented: “Congress did not intend its ‘licensing’ language to create so broad an exemption, for doing so would permit States to eviscerate the federal Act’s preemption provision.” Justice Sotomayor authored a separate dissent in which she contended that she “would also hold that federal law pre-empts the provision of the Arizona Act making mandatory the use of E-Verify, the federal electronic verification system.”


Certiorari from the Eleventh Circuit

Fowler v. United States, 563 U.S. ____, 10–5443 (5/26/11)

Vacated, remanded: Breyer (7-2); Scalia concurred; Alito dissented w/Ginsburg

Charles Andrew Fowler shot and killed Christopher Todd Horner for trying to interfere with his plan to rob a bank with four other men. Horner had approached Fowler’s accomplices as they sat in a stolen car, decked out in black clothes and gloves. Fowler, who had stepped out of the car to use cocaine, snuck up behind Horner, grabbed his gun, forced him to get on his knees and shot him in the back of the head. One of Fowler’s accomplices later implicated him in the murder, and a jury convicted Fowler of killing Horner with the intent to prevent him from communicating information about a federal offense. He was sentenced to life in prison, plus 10 years. Fowler claimed the government failed to prove that a federal investigation would have been likely, and that Horner would have transferred the information to a federal officer or judge. But the Eleventh Circuit affirmed the ruling.

Question: To prove a criminal violation of the federal witness tampering statute when a defendant allegedly kills a witness, must the government prove that the victim would have provided information regarding a crime to a court or a law enforcement officer?

Conclusion: Yes. “The Government must show that there was a reasonable likelihood that a relevant communication would have been made to a federal officer.” Justice Scalia filed a concurring opinion in which he wrote, “although I agree the case should be remanded for the Eleventh Circuit to consider whether the objection to sufficiency of the evidence was preserved or whether the District Court committed plain error, I would hold that there was insufficient evidence to support Fowler’s conviction.” Meanwhile, Justice Alito dissented that the majority opinion “veers off course when it goes on to hold that the prosecution was required to show that, if Officer Horner had not been killed, there was a ‘reasonable likelihood’ that his information would have reached a federal officer.”


Certiorari from the Ninth Circuit

Camreta v. Greene, 563 U.S. ____, 09–1454 (5/26/11)

Vacated in part, remanded: Kagan (7-2); Scalia concurred; Sotomator concurred w/Breyer; Kennedy dissented w/Thomas

Sarah Greene filed a lawsuit against Bob Camreta, a caseworker with the Oregon Department of Human Services, and Deputy Sheriff James Alford, contending they interviewed her daughter without a warrant, probable cause or parental consent. The girl’s father, Nimrod Greene, was arrested for allegedly molesting a 7-year-old boy. The boy’s mother told police that Sarah Greene had complained that she “doesn’t like the way Nimrod makes (his daughters) sleep in his bed when he is intoxicated and she doesn’t like the way he acts when they are sitting in his lap.” After interviewing one of the girls, Camreta concluded that she had been sexually abused and had the girls removed from the home. Nimrod was charged with sexually assaulting the boy and one of his daughters. After a mistrial, he accepted a plea bargain in which he maintained his innocence but admitted there was enough evidence to convict him. Greene insisted the allegations were lies, and the daughter who was interviewed later recanted her statements. A district court judge dismissed the lawsuit. In December 2009, the Ninth Circuit partially reversed, allowing Greene to pursue her Fourth Amendment claims against both defendants.

Question: Does the Fourth Amendment require a warrant, a court order or parental consent before law enforcement and child welfare officials may conduct a temporary seizure and interview at a public school of a child whom they reasonably suspect was being sexually abused?

Conclusion: The Supreme Court declined to address the Fourth Amendment question in the case. “We conclude that this Court generally may review a lower court’s constitutional ruling at the behest of a government official granted immunity. But we may not do so in this case for reasons peculiar to it. The case has become moot because the child has grown up and moved across the country, and so will never again be subject to the Oregon in-school interviewing practices whose constitutionality is at issue.” Justice Sotomayor concurred: “I agree with the Court’s conclusion that this case is moot and that vacatur is the appropriate disposition; unlike the majority, however, I would go no further…. The majority suggests that we must decide whether Camreta has a ‘right to appeal’ in order to vacate the judgment below. But that view does not accord with our past practice.” Justice Kennedy dissented: “The correct solution is not to override jurisdictional rules that are basic to the functioning of the Court and to the necessity of avoiding advisory opinions.”


Certiorari from the Sixth Circuit

United States v. Tinklenberg, 563 U.S. ____, 09–1498 (5/26/11)

Affirmed: Breyer (8-0); Scalia concurred w/Roberts, Thomas

Following a jury trial in the U.S. District Court for the Western District of Michigan, Jason Louis Tinklenberg was convicted of possessing firearms after having been convicted of a felony and possessing materials used to manufacture methamphetamine. He was sentenced to 33 months of imprisonment, to be followed by three years of supervised release.

Before trial, the district court had denied Tinklenberg’s motion to dismiss the indictment for a violation of the STA. On appeal following Tinklenberg’s conviction, the U.S. Court of Appeals for the Sixth Circuit held that the trial court had indeed violated the act and remanded the case with instructions to dismiss the indictment with prejudice.

Question: Is the time between the filing of a pretrial motion and its disposition automatically excluded from the deadline for commencing trial under the Speedy Trial Act?

Conclusion: Yes, the Speedy Trial Act “contains no requirement that the filing of a pretrial motion actually caused, or was expected to cause, delay of a trial.” Justice Scalia filed an opinion concurring in part and concurring in the judgment: “I agree with the judgment of the Court in Part II that a pretrial motion need not actually postpone a trial, or create an expectation of postponement, in order for its pendency to be excluded under the Speedy Trial Act…. But I think that conclusion is entirely clear from the text of the Speedy Trial Act, and see no need to look beyond the text.”


Summaries by Oyez. For a list of issues pending before the Court, click here.




United States v. Garza-Robles, 627 F.3d 161 (5th Cir. 2010). In prosecution for kidnapping/conspiracy to kidnap in foreign commerce, in violation of 18 U.S.C. § 1201, evidence was insufficient to sustain the kidnapping convictions on an “inveigling” theory. Inveigling requires that the victim was lured or enticed by false representations or promises or other deceitful means; here, the victim well knew that by going to Mexico with one of the defendants, he faced reprisals from the Gulf Cartel for a load of marijuana that his working partner had absconded with. However, the evidence was sufficient to sustain the kidnapping conviction on a theory of non-physical restraint—i.e., the victim’s fear that if he did not go to Mexico with one of the defendants, his family would be killed. With respect to the conspiracy conviction, there was sufficient evidence to support a conclusion that the defendants knew of the conspiracy and were acting in furtherance of that conspiracy both when one defendant transported the victim in foreign commerce to Mexico and when both defendants guarded the victim while he was in captivity in Mexico. It did not matter that the second defendant did not join the conspiracy until after the victim had been transported in foreign commerce; joining the conspiracy even after the transportation creates criminal responsibility for the prior acts.


United States v. Echeverria-Gomez, 627 F.3d 971 (5th Cir. 2010). District court did not plainly err in applying an 8-level enhancement under USSG § 2L1.2(b)(1)(C) on the ground that defendant was deported following an “aggravated felony” conviction; defendant’s prior felony conviction for first-degree residential burglary under Cal. Penal Code §§ 459 & 460(a) (burglary of an inhabited dwelling house) was a “crime of violence” under 18 U.S.C. § 16(b) (and hence an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(F)) because it presented a substantial risk that physical force would be used in committing the offense in the form of a confrontation with the householder.


United States v. Morin, 627 F.3d 985 (5th Cir. 2010).

(1) In drug prosecution, although district court committed no error in admitting some background-type testimony from testifying Border Patrol and DEA agents, it plainly erred in admitting other testimony that crossed over the line into impermissible drug-courier-profile evidence or impermissible evidence on the ultimate issue of knowledge. However, these errors did not require reversal on plain-error review because the defendant failed to show a reasonable probability of a different outcome at trial but for the erroneously admitted evidence. The Fifth Circuit “again ‘pause[d] to caution that it is time for our able trial judges to rein in this practice’ of permitting prosecutors to rely on opinion testimony that is unacceptable profile evidence.”

(2) It was improper for prosecutor to ask defendant, on cross-examination at trial, “Do you know or do you call other drug dealers?” because there was no factual predicate laid that defendant had made other calls to drug dealers. However, when viewed in the context of the proceedings as a whole and the totality of the evidence arrayed against defendant at trial, this isolated question did not affect the jury’s verdict and hence did not require reversal on plain-error review.





Writ of Mandamus from Williamson County

Bowen v. Carnes, __S.W.3d__ (Tex.Crim.App. Nos. 76,519-20, 6/15/11)

Relief granted: Price (8-0)

Relators, Kevin and Jennifer Bowen, were charged by separate indictments with the capital murder of Jennifer’s ex-husband. Both relators retained Phillips to represent them. Before trial, Ballenger, a jailhouse informant, gave a statement to police in which he detailed what he asserts Kevin told him with respect to this offense. Ballenger had also retained Phillips to defend him against unrelated charges of capital murder, murder, and aggravated assault. As of February 2010, when the State first revealed Ballenger’s statement to Phillips, Ballenger had already entered a negotiated guilty plea to murder, but his sentencing had not taken place. In April 2010, the State filed its motion to disqualify Phillips from representing relators. The State claimed, inter alia, that in the very likely event that the State should call Ballenger to testify against the relators, Phillips would be put in the compromising position of either having to vigorously attack Ballenger’s credibility on cross-examination, in relators’ interest, or to refrain from doing so, which would be in Ballenger’s best interest but detrimental to relators’ best interest.

CCA questions whether, under these circumstances, respondent abused his discretion to deprive relators of their Sixth Amendment right to counsel of choice on the sole basis of his concern with the public’s perception of fairness. CCA finds no actual or serious potential for conflict of interest; this overrides the concern about the public perception of fairness that can defeat the Sixth Amendment presumption in favor of retained counsel.


State’s PDR from Harris County

Lopez v. State, __S.W.3d__ (Tex.Crim.App. No. 0481-10, 6/15/11)

Reversed, remanded: Johnson (7-0)

Appellant was convicted for aggravated sexual assault of a child and sentenced to 50 years in prison. On direct appeal, COA reversed appellant’s conviction based on a finding of ineffective assistance of counsel, and remanded the case to the trial court. CCA granted the State’s PDR to determine whether COA erred in reversing the trial court on grounds of ineffective assistance when the record is silent as to whether trial counsel’s acts or omissions were based upon tactical decisions.

Because the record is silent as to why counsel failed to object to the outcry-witness testimony, CCA cannot fairly evaluate the merits of such a serious allegation. The record could have been supplemented through a hearing on a motion for new trial, but appellant did not produce additional information about trial counsel’s reasons for allowing all three outcry witnesses to give similar testimony about the same events or for allowing opinion testimony about the credibility of the complainant, both without objection. Appellant has thus failed to meet his burden under the first prong of Strickland, and COA erred in finding otherwise.


State’s PDR from Travis County

State v. Chupik, __S.W.3d__ (Tex.Crim.App. No. 0960-10, 6/15/11)

Reversed, remanded: Womack (7-2); Johnson concurred; Price dissented w/Meyers; Hervey concurred

Late one night, a police officer stopped appellee’s vehicle after seeing it weave on a public street. The officer asked appellee some questions, then gave him three field-sobriety tests, the first of which was a Horizontal Gaze Nystagmus (HGN) test. After the tests, the officer arrested appellee, and he was subsequently charged by information with DWI. At a hearing on appellee’s pretrial motion to suppress evidence, he argued that the stop and the initial questions violated his federal constitutional rights. The trial court ruled that the stop and the initial questions were permissible, but made written findings of fact and conclusions of law that appellee was “under arrest at the conclusion of the administration of the HGN test,” and was thereafter “subjected to custodial interrogation without having had his Miranda warnings recited to him.” The trial court therefore suppressed “the answers to all questions asked of [appellee] after the administration of the [HGN test] … exclusive of his response to the question as to whether he would give a breath or blood sample.” The trial court also concluded that “the evidence suppressed in this case is not of substantial importance relative to the quantity and quality of other evidence the State has available[.]” The State appealed the trial court’s order under Code Crim. Proc. art. 44.01(a)(5), and COA affirmed.

CCA granted review to determine whether, in a State’s appeal of a pretrial order to suppress evidence, the record must reflect the evidence that was suppressed. CCA holds that the record need not reflect the suppressed evidence in order for an appellate court to consider a State’s interlocutory appeal under Article 44.01(a)(5). It is sufficient that the prosecutor certifies that the suppressed evidence is of substantial importance in the case.


State’s PDR from Angelina County

Gear v. State, __S.W.3d__ (Tex.Crim.App. No. 1069-10, 6/15/11)

Reversed COA, affirmed trial court: Hervey (5-4); Cochran dissented w/Price, Johnson; Meyers dissented

Appellant was convicted in a bench trial of attempted burglary of a habitation. COA decided the evidence is legally insufficient to support appellant’s conviction because it would have been unreasonable for a fact finder to infer that appellant “intended to commit a felony, theft, or an assault inside the house.” Applying the Jackson v. Virginia, 443 U.S. 307 (1979), standard, CCA holds that a fact finder could reasonably find beyond a reasonable doubt that the recently unemployed appellant, with about one dollar in his pocket, intended to commit theft inside complainant’s home when he attempted to enter the home through the window he had just broken and where the evidence also shows that appellant ran when interrupted by complainant and that appellant gave conflicting and implausible explanations. The cumulative force of all the incriminating circumstances is sufficient to support appellant’s conviction for attempted burglary of a habitation.


State’s PDR from San Patricio County

Limon v. State, __S.W.3d__ (Tex.Crim.App. No. 1320-10, 6/15/11)

Reversed, remanded: Johnson (8-1); Meyers dissented

Appellant was convicted of deadly conduct and sentenced to three years’ imprisonment. On appeal, he challenged the trial court’s denial of his motion to suppress evidence, and COA reversed. CCA granted the State’s PDR to decide the following: (1) Is it reasonable for police to believe that a person who answers the door of a residence in the middle of the night has authority to invite police to enter, or must police inquire as to that person’s authority? (2) Does a teenager lack authority to invite officers inside a residence simply because he is a minor? (3) Does Illinois v. Rodriguez, 497 U.S. 177 (1990), require officers to make further inquiry when they are faced with ambiguity regarding the authority of a third party to consent to an entry or search?

CCA notes five key facts that support the reasonableness of the officer’s belief. First, the teenager opened the door by himself in response to the officer’s knock. Second, viewing the evidence in the light most favorable to its ruling, the trial court reasonably could have inferred from the officer’s testimony that the teenager appeared to be of significant maturity, if not a young adult. Third, the teenager consented to mere entry through the front door, as opposed to entry or search of less public areas of the house. Fourth, the officer’s announced purpose was to conduct an emergency public-safety function. It is an even more widely shared social expectation that a teenager would have authority to permit entry for an emergency public-safety function than, for example, entry for a salesperson to make a sales pitch. Finally, CCA considers the time of the entry: 2:00 a.m.

Based on the above factors and Georgia v. Randolph, 547 U.S. 103 (2006), CCA holds that the Fourth Amendment does not prohibit a minor child from consenting to entry when the record shows the officer’s belief in the child’s authority to consent is reasonable under the facts known to the officer. Accordingly, CCA need not address COA’s formulation of the rule under Rodriguez, because there is no ambiguity with respect to the teenager’s apparent authority.


Appellant’s PDR from McLennan County

Phillips v. State, __S.W.3d__ (Tex.Crim.App. No. 1402-09, 6/15/11)

Reversed, remanded: Cochran (5-3); Keller dissented w/Keasler, Hervey

Appellant was convicted of 12 counts of sexual offenses against his daughter that occurred in 1982 and 1983. However, prosecution under the 2007 indictment charging appellant with these offenses was absolutely barred by the statute of limitations in 1993. These charges could not be resurrected by a 1997 statute extending the statute of limitations for sexual offenses. Despite this, no one—not the trial judge, prosecution, defense, or COA—recognized this constitutional ex post facto violation. Because this is an important constitutional issue that will undoubtedly recur given the even more recent statutory elimination of the statute of limitations for some sexual offenses, CCA granted appellant’s PDR. Although the State Prosecuting Attorney agrees that the statute of limitations had run before appellant’s indictment, she argues that appellant failed to preserve this issue for appeal because he did not object in the trial court. CCA reaffirms its prior opinions that have stated that an absolute statute-of-limitations bar is not forfeited by the failure to raise it in trial court.


Appellant’s PDR from Comal County

Young v. State, __S.W.3d__ (Tex.Crim.App. No. 1030-10, 6/15/11)

Affirmed: Cochran (7-1); Womack dissented

Appellant, a registered sex offender, moved to a new residence but failed to notify authorities of his move as required by statute. The two-paragraph indictment alleged that appellant (1) failed to notify the county sheriff’s office seven days prior to changing his address; or (2) failed to provide the sheriff’s office with proof of identity and residence within seven days after the move. At trial, the jury charge tracked the disjunctive wording of the indictment and permitted a conviction if the jury unanimously found that appellant failed to report his change of address. The jury charge did not require the jury to be unanimous on whether appellant failed to report before or after moving. COA affirmed appellant’s conviction, holding that the trial judge did not err in his jury charge.

CCA granted appellant’s PDR to address jury unanimity in the context of a defendant’s failure to comply with sex-offender reporting requirements. In sum, appellant was indicted for a single offense of failing to report a change of address, and the State alleged he committed it in one of two alternative ways. The jury was charged by the trial judge in the disjunctive regarding these alternative manners and means. COA correctly decided that unanimity was required as to the failure to report a change of appellant’s address, but not required as to whether appellant committed the offense by failing to report before the move, after it, or both.


Appellant’s PDR from Denton County

Fleming v. State, __S.W.3d__ (Tex.Crim.App. No. 1529-10, 6/15/11)

Vacated, remanded: Per Curiam (8-0); Keasler concurred w/Hervey, Cochran

Appellant was convicted of four counts of aggravated sexual assault under Texas Penal Code Section 22.021(a)(1)(B)(iii), (2)(B), Texas’s strict-liability child-sexual-assault statute. Before trial, appellant filed a motion to quash the indictment, challenging the constitutionality of the statute under the Due Process Clause to the U.S. Constitution and the Texas Constitution’s due course of law provision. Appellant claimed that the statute is unconstitutional because it does not have a mens rea requirement and does not permit the affirmative defense of mistake of fact. The trial judge denied the motion. Following his no contest plea and sentencing, appellant appealed the trial judge’s ruling. COA held that, under the Due Process Clause, the statute is constitutional. COA declined to address appellant’s due course of law claim, holding that appellant failed to preserve the issue for appeal because he failed to assert or brief “an argument that the due course of law analysis under the Texas constitution is different or provides greater protections” than the Due Process Clause.

CCA’s review of appellant’s motion reveals that this conclusion was improvident. With respect to the constitutionality of our strict-liability child-sexual-assault statute, an issue never decided by the U.S. Supreme Court, appellant briefed the issue under both constitutional provisions, describing the pertinent history of each constitutional provision in support of his specific argument. CCA therefore vacates COA’s judgment and remands so COA can reconsider appellant’s contention that Section 22.021(a)(1)(B)(iii), (2)(B) violates Texas’s due course of law provision. In doing so, COA will be required to decide the scope of the protections afforded by Texas’s due course of law provision as it applies in this case. Thus, COA must discern whether the provision, based on appellant’s argument and supporting authority, provides greater, lesser, or the same protections as its federal analog.


Appellant’s PDRs Granted from Young County

11-0287 – Crystal Michelle Watson – Attack By Dog Resulting In Death

11-0288 – Jack Wayne Smith – Attack By Dog Resulting In Death

1. Texas Health and Safety Code Section 822.005 is unconstitutionally vague and therefore void.

2. Appellants’ convictions violate both the unanimous jury guarantee of the Texas Constitution and the “substantial majority” requirement of the Sixth Amendment of the United States Constitution.


State’s PDR Granted from Harris County

11-0442 – Courtney Jay Scales – Aggravated Robbery

1. COA erred in affording the trial court no discretion in relying upon a jury foreman’s testimony to support the showing of another juror’s disability, and instead requiring the testimony of the dismissed juror.

2. When confronted with an alleged violation of article 33.011, the Court of Appeals erred in applying a constitutional harm analysis in disregard of binding precedent from this Court.


For a list of issues pending before the court, click here.



Summaries by Chris Cheatham of Cheatham Law Firm, Dallas


Kuykendall v. State, No. 09-10-00161-CR, 2011 WL 834060 (Tex.App.-Beaumont Mar 9, 2011). That D was observed to be the only occupant in a stationary vehicle justified (in part) officer’s approach of D pursuant to officer’s “community caretaking function,” apparently under the assumption that when one is alone in their vehicle they’re more likely to need a dose of community caretaking.


Dixon v. State, No. 01-09-00340-CR, 2011 WL 839689 (Tex.App.-Houston [1 Dist] Mar 10, 2011). A statement made by complainant one hour after D chased her down with his vehicle as she tried to run away deemed an “excited utterance,” despite the one-hour time lapse, where officer described complainant as “very visibly shaken, very upset, scared, excited, and crying.”

“[D] suggests that the passage of one hour between the event and the statement is too long for an excited utterance in light of evidence that in that time [complainant] left the scene of the offense, walked home, and made two 911 calls to the police…. Based on [officer’s] description of [complainant’s] emotional state, the one hour time lapse does not make the statement inadmissible[.]”

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