Voice for the Defense Volume 43, No. 5 Edition
When an occupant objecting to a search was removed from the premises, a remaining occupant could consent to the search. Fernandez v. California, 134 S. Ct. 1126 (2014).
D’s motion to suppress evidence found in his apartment was denied. He pled nolo contendere to firearms and ammunition charges, and was found guilty by a jury of robbery and infliction of corporal injury. The California Court of Appeal affirmed. The California Supreme Court denied review. The U.S. Supreme Court affirmed the Court of Appeal.
Our cases firmly establish that police officers may search jointly occupied premises if one of the occupants consents. . . . In Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515, 164 L. Ed. 2d 208 (2006), we recognized a narrow exception to this rule, holding that the consent of one occupant is insufficient when another occupant is present and objects to the search. In this case, we consider whether Randolph applies if the objecting occupant is absent when another occupant consents. Our opinion in Randolph took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present. We therefore refuse to extend Randolph to the very different situation in this case, where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared.
District court’s factual finding of bodily injury was clearly erroneous because the presentence report did not specify whether the victim sustained any injury, and because a significant injury did not invariably follow from this type of conduct. United States v. Zuñiga, 720 F.3d 587 (5th Cir. 2013).
In Hobbs Act robbery/firearm case, the district court reversibly erred in applying a two-level enhancement under USSG § 2B3.1(b)(3)(A) for causing bodily injury to a victim during the robbery. Although the presentence report stated that one of the defendants stepped on the victim as he was attempting to leave the scene of the robbery, it did not adequately specify how the victim was injured by this action. The presentence report’s recounting of a witness statement that it caused the victim pain in her arm said nothing about the degree of the victim’s injury. The Fifth Circuit remanded for resentencing.
For D convicted of failing to register as a sex offender, district court abused its discretion in imposing, as a condition of supervised release, a blanket ban on internet use without prior approval by a probation officer. United States v. Tang, 718 F.3d 476 (5th Cir. 2013).
Neither the instant offense nor the prior offense (the one triggering D’s requirement to register as a sex offender under SORNA) involved use of the internet. Additionally, where the district court orally imposed a supervised-release condition that D not cohabitate with anyone who has children under 18 without prior approval by a probation officer, but the written judgment broadened the condition by forbidding D to cohabitate with or date such a person without prior approval by a probation officer, the additional restriction in the written judgment improperly conflicted with the oral pronouncement. The Fifth Circuit vacated both the internet ban and the dating restriction.
Louisiana state D was not entitled to either statutory tolling or equitable tolling of AEDPA’s one-year statute of limitations with respect to his federal habeas petition because D failed to show it was the State’s failure to provide notice that caused his late filing. Clarke v. Rader, 721 F.3d 339 (5th Cir. 2013).
Although the state did not notify D of the Louisiana Supreme Court’s denial of his state writ application on January 29, 2010, D’s own counsel learned of the denial and mailed D a notice in February 2010, at which time a federal habeas petition would have been timely; nevertheless, D did not file his federal petition until April 30, 2010. The Fifth Circuit affirmed the district court’s judgment denying D’s federal habeas petition as untimely.
District court impermissibly participated in plea negotiations by suggesting that a condition of accepting D’s plea in one case would be that he resolve another pending case. United States v. Peña, 720 F.3d 561 (5th Cir. 2013).
In case involving alleged bribery of El Paso officials, the court impermissibly participated in plea negotiations, in violation of Fed. R. Crim. P. 11(c)(1), with comments suggesting that a condition of accepting D’s plea in one case would be that he had to resolve another pending case, even though the court later attempted to retract those comments. D was entitled to vacatur of his guilty plea, even if plain-error review applied, because D’s substantial rights were affected under the circumstances; the fairness, integrity, and public reputation of judicial proceedings required that remedy. The Fifth Circuit vacated D’s guilty pleas, convictions, and sentence, and remanded for proceedings before a different district judge.
In sentencing D for illegal reentry after deportation, district court reversibly erred in applying a 16-level crime of violence enhancement under USSG § 2L1.2(b)(1)(A)(ii) based on D’s prior New Jersey conviction for third-degree aggravated assault. United States v. Martinez-Flores, 720 F.3d 293 (5th Cir. 2013).
The N.J. Stat. § 2C:12-1b(7) requirement of only “significant bodily injury” differed in a critical way from the generic definition of “aggravated assault,” which requires “serious bodily injury” for its injury-alone prong. Nor did the New Jersey offense have as an element the use, attempted use, or threatened use of physical force against the person of another. Because the government failed to show that the Guideline calculation error was harmless, the Fifth Circuit vacated D’s sentence and remanded.
The district court reversibly erred in imposing supervised-release conditions on D on the basis of bare arrest records. United States v. Windless, 719 F.3d 415 (5th Cir. 2013).
A court may not rely on a “bare arrest record” at sentencing. An arrest record is “bare” when it refers only to the facts of an arrest (date, charge, jurisdiction, and disposition) without corresponding information about the underlying facts or circumstances regarding the defendant’s conduct that led to the arrest. An arrest record is not “bare” when it is accompanied by a factual recitation of the defendant’s conduct that gave rise to a prior unadjudicated arrest and that factual basis has an adequate evidentiary basis with sufficient indicia of reliability. If the factual recitation lacks sufficient indicia of reliability, it is error for the district court to consider it at sentencing, regardless of whether the defendant objects or offers rebuttal evidence.
Additionally, the district court committed substantive error by imposing on D (convicted of failure to register under SORNA) a supervised-release conviction forbidding him to have any direct or indirect contact with children under 18, absent adult supervision and probation officer pre-approval. Under the circumstances, a restriction of this breadth worked a greater deprivation of liberty than reasonably necessary. Accordingly, the Fifth Circuit vacated one condition and remanded for reconsideration, and it completely reversed the “no contact” condition with instructions that it could not be imposed as currently phrased.
Texas death-sentenced D was not entitled to a certificate of appealability on his claim that trial counsel was ineffective in various ways, including failing to investigate and present evidence at both the guilt/innocence phase and punishment phase. Trottie v. Stephens, 720 F.3d 231 (5th Cir. 2013).
D was also not entitled to a certificate of appealability on his claims of suppression of material exculpatory evidence, in violation of Brady v. Maryland, 373 U.S. 83 (1963), and prosecutorial misconduct (referring to evidence outside the record).
It was not unreasonable for the state court to determine that appellate counsel did not provide deficient performance by failing to argue racial discrimination in jury selection on direct appeal. Higgins v. Cain, 720 F.3d 255 (5th Cir. 2013).
D convicted of murder in Louisiana state court was not entitled to federal habeas relief on the basis of his claim that his state appellate counsel was ineffective for failing to raise, on direct appeal, three issues related to alleged racial discrimination in jury selection, in violation of Batson v. Kentucky, 476 U.S. 79 (1986).
D was entitled to a hearing on the allegation in his 28 U.S.C. § 2255 motion that he went to trial only because of the ineffective assistance of counsel in erroneously and significantly overestimating the Guideline range if D accepted the government’s plea offer. United States v. Reed, 719 F.3d 369 (5th Cir. 2013).
D, convicted of trafficking counterfeit goods, specifically alleged in the affidavit accompanying his § 2255 motion that counsel predicted a 36-month sentence if D accepted the government’s plea offer, and that he would have pleaded guilty had he been apprised of his correct Guideline sentencing exposure. Because D’s affidavit was sufficient to prove his allegation and was not speculative, conclusory, plainly false, or contradicted by the record, the district court erred in rejecting it without holding an evidentiary hearing. The Fifth Circuit vacated the court’s order dismissing the motion and remanded for further proceedings, to include an evidentiary hearing.
D’s conviction for federal drug conspiracy in Pennsylvania did not create a double-jeopardy bar to his later conviction, in Texas, for possession of marijuana with intent to distribute, interstate travel in aid of racketeering, and possession of an unregistered short-barrel shotgun; conspiracy and its object offense(s) are separate offenses, with distinct elements, and thus a defendant may be convicted of both. United States v. Tovar, 719 F.3d 376 (5th Cir. 2013).
(2) The district court did not err in denying D’s motion to suppress evidence. The search warrant and affidavit pursuant to which his home was searched were not so bare-bones, boilerplate, or obviously lacking in probable cause to preclude the searching officers from relying on them in good faith.
(3) The district court did not err in denying D’s motion to suppress statements. Even if D’s first, pre-Miranda admissions were unlawfully obtained, they did not require the suppression of D’s later, post-Miranda statements.
Court of Criminal Appeals
D had a duty to register as a sex offender under Tex. Code Crim. Proc. art. 62.002 because the savings clause that previously exempted him was deleted by the 2005 amendments. Reynolds v. State, 423 S.W.3d 377 (Tex.Crim.App. 2014).
D was convicted as a sex offender in 1990 and served a five-year sentence. Relying on a letter from the Texas Department of Public Safety that stated he did not have to register under the new law, D never registered. In 2009, he was convicted for failing to register. COA and CCA affirmed.
In 1991, the Texas Legislature enacted its first sex-offender registration provision; it required registration for people with a reportable conviction on or after September 1, 1991. Because D’s conviction occurred in 1990, the statute did not require him to register. In 1997, the Legislature redesignated the statute as chapter 62 of the Code of Criminal Procedure and instituted its retroactive application to individuals with convictions on or after September 1, 1970. This was accompanied by an uncodified “savings clause” that restricted its application to people who were “confined in a penal institution . . . or . . . under the supervision . . . the Texas Department of Criminal Justice” on or after September 1, 1997. D completed his sentence in 1995; the “savings clause” applied to him. However, in 2005, the Legislature repealed Article 62.11, which had contained the rule on applicability and the uncodified savings clause. “There is no language within the statute that indicates the ‘savings clause’ was to be retained. . . . Chapter 62 does apply to Appellant and he was required to register under Chapter 62.”
Courts of appeals lack jurisdiction to consider an interlocutory appeal of a pretrial motion for bond reduction. Ragston v. State, 424 S.W.3d 49 (Tex.Crim.App. 2014).
D was indicted for one count of capital murder, one count of murder, and one count of aggravated robbery. D was jailed and held on no bond for the capital murder charge, and $500,000 bond for each of the murder and robbery charges. D motioned for bond reduction. The trial court ordered that D would be held without bond on the murder charges and reduced the bond on the aggravated robbery charge. D filed an interlocutory appeal. COA dismissed for want of jurisdiction. CCA affirmed.
The courts of appeals have been divided on whether they have jurisdiction to review interlocutory orders regarding excessive bail or the denial of bail. The courts that found jurisdiction relied on Tex. R. App. P. 31 and a footnote in Primrose v. State, 725 S.W.2d 254 (Tex.Cr.App. 1987). They argue there is an exception allowing jurisdiction over interlocutory orders for the denial of a motion to reduce bail.
CCA disagreed: “A rule of appellate procedure cannot, by itself, grant the courts of appeals jurisdiction to hear interlocutory appeals regarding excessive bail or the denial of bail, because this Court’s rules cannot enlarge the rights of litigants beyond those provided in the constitutions or a statute. There is no constitutional or statutory authority granting the courts of appeals jurisdiction to hear interlocutory appeals regarding excessive bail or the denial of bail.”
Upholding prior denials of DNA testing, CCA said D did not establish that biological evidence exists or that exculpatory test results would have affected his trial. State v. Swearingen, 424 S.W.3d 32 (Tex.Crim.App. 2014).
D was convicted of capital murder and sentenced to death. CCA affirmed. D filed seven habeas applications, which were denied. Here, the State appeals a trial court decision granting D’s fourth motion for DNA testing. CCA reversed the trial court’s order: The law-of-the-case doctrine provides that an appellate court’s resolution of questions of law is binding in subsequent appeals concerning the same issue. Although Tex. Code Crim. Proc. art. 64.01 regarding DNA testing was amended in 2011, CCA found that the amendments did not affect its previous determinations. The amendment required only that the results be run through the Combined DNA Index System and did not set a standard for exculpatory results. Under Article 64.01(a), D could still not prove the existence of biological material in the case of the ligature, the other half of the pantyhose, the cigarette butts, or the decedent’s clothing. The results showing the presence of another DNA donor in the fingernail scrapings would not overcome the “mountain of evidence” of D’s guilt, and the decedent’s having encountered another person would not factually exclude D from having killed her.
D’s mistake in sending his notice of appeal to the court of appeals instead of the district court was a harmless procedural defect because the appellate procedure rules required the COA clerk to forward D’s notice of appeal to the trial-court clerk, and because his notice of appeal was actually received by the convicting court within the time limits established by the mailbox rule. Taylor v. State, 424 S.W.3d 39 (Tex.Crim.App. 2014).
CCA reversed COA’s dismissal and remanded.
Venue error is reviewed using the standard for non-constitutional errors; the State’s failure to prove venue was harmless. Schmutz v. State, No. PD-0530-13 (Tex.Crim.App. Jan 29, 2014).
D was indicted in Titus County for the offense of hindering a secured creditor by misappropriating proceeds of secured property. The indictment alleged that venue lay in Titus County based on D “sell[ing] or dispos[ing] of secured property” there. Tex. Code Crim. Proc. art. 13.09. The undisputed facts at trial, however, showed that D sold property in Erath, not Titus, County. Titus was the county from which the property had been removed, but the State’s indictment did not allege that as a basis for venue. D repeatedly, yet unsuccessfully, challenged venue on the ground that he had not disposed of any property in Titus County, as alleged in the indictment. The jury convicted D, and COA and CCA affirmed.
CCA first held that because venue is not an element of the offense, failure to prove venue does not implicate sufficiency of the evidence, nor does it require acquittal. Second, applying the Tex. R. App. P. 44.2(b) standard for non-constitutional errors, CCA determined that the State’s failure to prove its alleged venue was harmless because the record did not show that D’s substantial rights were affected by the venue of his trial, which occurred at one of the places permitted under Tex. Code Crim. Proc. art. 13.09, the applicable specialized venue statute.
While testimony of a prosecution witness about his lack of delusions was false, D failed to prove that the false testimony was material; the State corroborated many of the facts to which the witness testified, and D’s murder conviction was supported by an abundance of evidence unrelated to the testimony. Ex parte Weinstein, 421 S.W.3d 656 (Tex.Crim.App. 2014).
D, convicted of murder, filed a habeas application alleging he was denied due process because the State (1) failed to disclose that its key witness had hallucinations and delusions, and (2) presented false testimony when the witness lied about not having hallucinations and delusions. On remand, the habeas judge found that the State unknowingly presented false testimony when the witness testified that he did not have hallucinations. The judge also found that the witness was a key witness in establishing D’s intent to murder. The judge concluded there was a reasonable likelihood that the outcome of the trial would have been different had the witness admitted to having hallucinations. CCA adopted the habeas judge’s factual findings that the witness’ testimony about his lack of delusions was false but concluded that D failed to prove that the witness’ false testimony was “material,” i.e., reasonably likely to have affected the jury’s judgment. CCA denied relief.
CCA now limits the allowed length for pleadings; D’s 328-page habeas petition was deemed too long but allowed because it was filed before CCA’s length limit. Ex parte Walton, 422 S.W.3d 720 (Tex.Crim.App. 2014).
D was convicted of aggravated sexual assault and sentenced to 40 years’ imprisonment. COA affirmed, and CCA refused D’s PDR. D filed this habeas application pursuant to Tex. Code Crim. Proc. art. 11.07, employing the 11.07 form in use at the time he filed the application in district court. That form allowed for an attached memorandum of law of unspecified length. D’s memorandum was 328 pages long, 138 pages of which relate to Ground Number One. Additionally, D filed motions to supplement this memorandum.
The length of this pleading is excessive. . . . [T]his Court has amended the rules governing the application process for post-conviction applications for a writ of habeas corpus. Our revisions include a new length restriction for any memorandum of law. Texas Rule of Appellate Procedure 73.1(d) now provides:
“Each ground for relief and supporting facts raised on the form shall not exceed the two pages provided for each ground in the form. The applicant or petitioner may file a separate memorandum. This memorandum shall comply with these rules and shall not exceed 15,000 words if computer-generated or 50 pages if not. If the total number of pages, including those in the original and any additional memoranda, exceed the word or page limits, an application may be dismissed unless the convicting court for good cause shown grants leave to exceed the prescribed limits…”
Under Rules 73.1(d) and 73.2, an application such as the one before us would be subject to dismissal for being excessively long. However, since these rules were not in place when this application was filed, the court has considered it on the merits. Upon review of the application and the record, we deny relief.
D did not have the right to counsel in a competency examination of child-complainant because the examination was not a critical stage of the proceedings. Gilley v. State, 418 S.W.3d 114 (Tex.Crim.App. 2014).
The jury convicted D of aggravated sexual assault of a child and sentenced him to 30 years’ imprisonment. On the morning jury selection was to begin, the trial court heard argument on D’s pretrial motion for a hearing to determine the 6-year-old complainant’s competency to testify. Over D’s objection, the court conducted its Tex. R. Evid. 601(a)(2) competency examination of the complainant in the absence of D and the attorneys for both sides. The court then found complainant competent. COA and CCA affirmed.
CCA said the right to counsel extends to all “critical stages” of the criminal proceeding, not just the actual trial, but not every event in adversary judicial proceedings constitutes a critical stage. The court concluded D was not denied his U.S. Const. amend. VI right to counsel in the competency examination because it was not a critical stage of the proceedings, given defense counsel’s later opportunities to challenge the complainant’s deficiencies during trial. D was able to participate in the examination by submitting questions for the court to ask complainant, and defense counsel was able to review a transcript of the examination and cross-examine complainant during trial.
It was inappropriate to presume error and materiality in every case in which the culpable Houston lab technician worked; the habeas court had to determine whether D established an inference of falsity and, if so, to what extent it was material. Ex parte Coty, 418 S.W.3d 597 (Tex.Crim.App. 2014).
In CCA’s original opinion, it granted D relief based on a presumptive violation of due process because the technician solely responsible for testing the evidence in his case was found to have committed misconduct, and the evidence had been destroyed and could not be retested. CCA then withdrew its opinion and ordered this case be filed to answer “under what circumstances, if any, [CCA] should presume a due-process violation in a case handled by a forensic scientist who has been found to have committed misconduct in another case.” CCA here remanded to the habeas court.
“[W]e now recognize that it is not appropriate to presume error and materiality in every case on which [this lab technician] worked. We believe the better method for resolving these claims is to allow an applicant to shift the burden of the falsity issue to the State if the requisite predicate is proven, but the burden of persuasion with respect to materiality will always remain with the applicant. Thus, even if the State fails to rebut an inference of falsity, an applicant still must prove that the ‘false evidence’ was material to his or her conviction. Having answered the question that we filed and set this case for, we remand this cause to the habeas court to apply the principles of this opinion in Applicant’s case[.]”
An ambiguous reference in the jury charge did not cause egregious harm; also, the judge’s recollection of whether defense counsel objected to a juror was sufficient to reject D’s appeal. Nava v. State, 415 S.W.3d 289 (Tex.Crim.App. 2013).
Ds were both convicted of felony murder and organized criminal activity. CCA granted review to determine whether they suffered egregious harm from an error in the jury instructions on the law of parties and whether their appeals were prejudiced due to a missing portion of the voir dire record. Finding against Ds on both issues, CCA affirmed.
The abstract portion of the jury charges correctly instructed the jury on the “intent to promote or assist” and conspiracy theories of party liability under Tex. Penal Code § 7.02(a)(2), (b). The ambiguous reference to “offense” in the application paragraph was harmless, as it was unlikely the jury convicted Ds of felony murder based solely on their involvement in the theft.
On the second issue, the “trial judge recalled with certainty and precision: whether the defense identified an objectionable person who actually sat on the jury. None of the attorneys contradicted the judge’s recollection, and nothing in the record that actually is before us leads us to doubt that recollection. At least under these circumstances, we hold that the court of appeals was correct to credit the trial judge’s recollection as it related to the question of whether the missing record was necessary to the resolution of the appeal. Accordingly, the court of appeals correctly determined that, because the defense attorneys did not identify an objectionable person who would sit on the jury, the defendants had no viable appellate claim with respect to the denial of challenges for cause. . . . Appellant contends that he might still have had a viable claim of ineffective assistance of counsel. . . . As part of an ineffective-assistance claim based upon an attorney’s failure to identify an objectionable juror, a defendant would have to show who the objectionable juror was. Because this issue is raised on direct appeal, any such showing would have to have been made in the trial court[.]”
Court of Appeals
The State was required to reoffer the 10-year plea bargain after the original trial judge recused herself because the only way to neutralize the taint of trial counsel’s ineffective assistance and the judge’s voluntary recusal was to return D to the position he would have been in prior to his counsel’s improvident advice to reject a reasonable plea-bargain offer. Rodriguez v. State, 424 S.W.3d 155 (Tex.App.—San Antonio 2014, pet. granted).
“[T]here is a reasonable probability that the trial court would have accepted the plea agreement prior to trial. Additionally, assuming the ten-year plea bargain offered by the prosecution was within the boundaries of acceptable plea bargains . . . the eight life sentences imposed after the trial in this case amplifies the prejudice that resulted from trial counsel’s ineffective assistance.”
Tex. R. Evid. 608(b) prohibits “general character assassination.” Tollett v. State, 422 S.W.3d 886 (Tex.App.—Houston [14th Dist] 2014, pet. ref’d).
DWI D first contended that the court erred by precluding cross-examination of police officer regarding officer’s termination from another police department, the Dickinson Police Department. “We disagree that the trial court denied appellant his constitutional right to cross-examine Officer Hernandez regarding his 2006 termination. . . . Evidence that, during a hearing six years ago, Officer Hernandez intentionally withheld testimony about his failing to report a weapon discharge would not have achieved appellant’s specific goal of proving Officer Hernandez lied about appellant’s reckless driving. . . . In his second issue, appellant contends the trial court violated Rule 608(a) and the Confrontation Clause by precluding him from questioning Ron Morales—who was Officer Hernandez’s former police chief at the Dickinson Police Department—about Officer Hernandez’s reputation for truthfulness. . . . ‘The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but . . . the evidence may refer only to character for truthfulness or untruthfulness.’ Tex. R. Evid. 608(a). Assuming without deciding that the trial court violated the Texas Rules of Evidence by excluding Chief Morales’ opinion/reputation testimony about Officer Hernandez’s character for truthfulness, we hold such nonconstitutional error was harmless.”
D’s request for a jury instruction on theft as a lesser-included offense of aggravated robbery was properly denied since there was no evidence of the value of the vehicle stolen to establish the applicable grade of theft. Ramirez v. State, 422 S.W.3d 898 (Tex.App.—Houston [14th Dist] 2014, pet. ref’d).
While the failure of defense counsel to elicit testimony concerning the value of the vehicle appeared to lack any strategic reason, any deficient performance of counsel was not prejudicial since the evidence was sufficient to show that D threatened the victim, which precluded a finding of theft.
The trial court properly excluded testimony about psychologist’s “weapon focus effect” because D provided insufficient information to determine that the testimony was reliable. Blasdell v. State, 420 S.W.3d 406 (Tex.App.—Beaumont 2014).
CCA had reversed and remanded, holding that “even the ‘possibility’ of distorted perception under the circumstances was sufficient to establish a ‘fit’ with the facts of the case, and hence, the relevance of Rubenzer’s expert testimony.” Here, COA again determined that the testimony was properly excluded.
“During the trial of this aggravated robbery case, the trial court excluded the testimony of Dr. Steven Rubenzer, a forensic psychologist, concerning witness identifications that occur during crimes that involved guns. . . . The trial court conducted a hearing outside the jury’s presence to determine the admissibility of Dr. Rubenzer’s testimony regarding [the victim’s] identification of Blasdell. . . . Rubenzer defined the ‘weapon focus effect’ as ‘a tendency, when there is a weapon involved, particularly in brief encounters, for the weapon to essentially attract attention away from the perpetrator’s face and, by doing so, result in lesser accuracy for the identification.’ In forming his opinion in Blasdell’s case, Dr. Rubenzer stated that he reviewed the offense report, the photo spread, [victim’s] description of her assailant, and that he had discussed the case with defense counsel; however, he agreed that he had not interviewed [victim] or any of the police involved in the investigation of the robbery. With respect to whether [victim’s] identification was inaccurate, Dr. Rubenzer stated that in his opinion, the weapon pointed in [victim’s] face had ‘possibly’ impacted her ability to accurately identify. . . . Without more, such as information about what the studies Dr. Rubenzer cited had shown regarding the impact of a weapon being displayed on the reliability of a witness’ identification of the perpetrator, the trial court was not able to determine whether Dr. Rubenzer’s testimony about the weapon focus effect in Blasdell’s case was reliable.”