June 2015 SDR – Voice for the Defense Vol. 44, No. 5

Voice for the Defense Volume 44, No. 5 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

Absent reasonable suspicion, police extension of a traffic stop to conduct a dog sniff violated the U.S. Constitution’s shield against unreasonable seizures; lacking the same close connection to roadway safety as ordinary inquiries, a dog sniff was not fairly characterized as part of officer’s traffic mission. Rodriguez v. United States, 135 S. Ct. 1609 (2015).

        A K-9 officer stopped D for driving on a highway shoulder, a violation of Nebraska law. After officer attended to everything relating to the stop, including checking the driver’s licenses of D and his passenger and issuing a written warning, he asked D for permission to walk his dog around the vehicle. When D refused, officer detained him until a second officer arrived. The first officer then retrieved his dog, who alerted to the presence of drugs in the vehicle; the ensuing search revealed methamphetamine. Seven or eight minutes elapsed from the time officer issued the warning until the dog alerted.

        D was indicted on federal drug charges. He moved to suppress the evidence seized from the vehicle on the ground, among others, that officer prolonged the stop without reasonable suspicion in order to conduct the dog sniff. The magistrate judge found no reasonable suspicion supporting detention; however, under Eighth Circuit precedent, he concluded that prolonging the stop by seven to eight minutes was only a de minimis intrusion on D’s Fourth Amendment rights and was permissible. The district court then denied the motion to suppress. D entered a conditional guilty plea. The Eighth Circuit affirmed. The Supreme Court vacated the Eighth Circuit and remanded.

        A routine traffic stop is more like a brief stop under Terry v. Ohio, 392 U.S. 1 (1968), than an arrest. Its tolerable duration is determined by the seizure’s “mission,” which is to address the traffic violation that warranted the stop and attend to related safety concerns. The Fourth Amendment may tolerate certain unrelated investigations that do not lengthen the roadside detention, like questioning or a dog sniff, but a traffic stop “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a warning ticket. Illinois v. Caballes, 543 U.S. 405 (2005). In concluding that the de minimis intrusion here could be offset by the Government’s interest in stopping the flow of illegal drugs, the Eighth Circuit relied on Pennsylvania v. Mimms, 434 U. S. 106 (1977). The officer-safety interest in Mimms, however, stemmed from the danger to the officer as­so­ciated with the traffic stop itself. On-scene investigation into other crimes detours from the officer’s traffic-control mission and therefore gains no support from Mimms. Furthermore, the Government’s argument that an officer who completes all traffic-related tasks expeditiously should earn extra time to pursue an unrelated criminal investigation was unpersuasive. “The critical question is not whether the dog sniff occurs before or after the officer issues a ticket, but whether conducting the sniff adds time to the stop. . . . The determination adopted by the District Court that detention for the dog sniff was not independently supported by individualized suspicion was not reviewed by the Eighth Circuit. That question therefore remains open for consideration on remand.”

Fifth Circuit

In multi-defendant trial on drug charges, the district court properly allowed an agent to testify about the mean­ing of drug jargon used on wiretap recordings in the case. United States v. Akins, 746 F.3d 590 (5th Cir. 2014).

        For the most part, this agent was, as billed, a lay witness who had acquired his knowledge based on first-hand observations in this particular investigation. To the extent the testimony might have impermissibly strayed into the area of expert-witness testimony, any error was harmless, as such testimony was cumulative of other trial testimony. Nor did the agent become an impermissible “summary witness” or simply serve to tell the jury what result to reach.

        (2) As to a second agent who testified as an expert witness on drug jargon, the district court committed no error in designating the agent as an expert on drug slang, and defense counsel received proper pretrial notification that agent was go­ing to testify as an expert. Nor did agent’s testimony violate Ds’ Confrontation Clause rights because it contained no “testimonial” statements or any impermissible hearsay; an expert may base an opinion on facts outside the case or inadmissible evidence if an expert in the field would reasonably rely on such things in forming an opinion on the subject.

Where the Government agreed in the plea agreement that D (who pleaded guilty to conspiracy to commit wire fraud, 18 U.S.C. § 1349) should receive a four-level enhancement for number of victims pursuant to USSG § 2B1.1(b)(2)(B), the Government breached the agreement when it objected that the higher, six-level enhancement of § 2B1.1.(b)(2)(C) should apply; however, the breach was cured when the Government withdrew its objection and urged application of the lower enhancement and the court acted consistently. United States v. Purser, 747 F.3d 284 (5th Cir. 2014).

        Because the breach was cured, the Fifth Circuit had no occasion to decide whether harmless-error review would apply. The Fifth Circuit noted that precedent appeared to preclude harmless-error review for preserved claims of breach, although the Supreme Court had signaled that might not be a foregone conclusion. The Fifth Circuit rejected the separate claim that the government had implicitly breached the plea agreement by advocating for an aggravating-role adjustment under USSG § 3B1.1(a); the agreement did not purport to commit the government to any position on Guideline provisions not listed in the plea agreement. Finding no breach of the plea agreement, the Fifth Circuit held that D was bound by the appeal waiver of that agreement and dismissed D’s appeal.

In rejecting D’s claim that the evidence was insufficient to convict him of conspiracy to possess marijuana with intent to distribute, the en banc Fifth Circuit took the opportunity to repudiate the “equipoise rule” found in some of its cases. United States v. Vargas-Ocampo, 747 F.3d 299 (5th Cir. 2014). 

        The majority said that the “equipose rule” (which held that if the evidence construed in light of the verdict gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence, the appellate court must find the evidence insufficient and reverse the conviction) was inconsistent with Jackson v. Virginia, 443 U.S. 307 (1979), and reliance on it was abandoned.

Under Treviño v. Thaler, 133 S. Ct. 1911 (2013), it might be possible for the district court to hear at least some of Texas state D’s claims of ineffective assistance of trial counsel, which would otherwise be defaulted. Neathery v. Stephens, 746 F.3d 227 (5th Cir. 2014).

        To the extent D either lacked counsel or had ineffective counsel in his initial collateral-review proceeding in state court, the Fifth Circuit could not determine from the record which, if any, of D’s ineffective-assistance-of-counsel claims might be preserved for review under Treviño. The Fifth Circuit remanded to the district court for reconsideration of D’s ineffective-assistance-of-trial-counsel claims.

The jury instruction was erroneous because it did not explain that a good-faith misunderstanding of the law need not be objectively reasonable; nevertheless, the error was harmless because the evidence against Ds was overwhelming and because Ds were able to fully present their good-faith defense to the jury. United States v. Montgomery, 747 F.3d 303 (5th Cir. 2014).

        In prosecution of Ds for tax-evasion conspiracy and filing false tax returns, the district court’s jury instruction was erroneous because it did not explain, as required by Cheek v. United States, 498 U.S. 192 (1991), that a good-faith misunderstanding of the law did not need to be objectively reasonable; nevertheless, the error was harmless because the evidence showing that Ds intentionally underreported their income was overwhelming and because, in fact, Ds were able to fully present their good-faith defense to the jury.

        (2) The district court did not err in calculating the tax loss for purposes of Ds’ Sentencing Guideline calculation. Under Fifth Circuit law, Ds were not entitled to offset the tax loss with legitimate unclaimed deductions; although Amendment 774 to the Guidelines resolved the circuit split on this point against the Fifth Circuit’s position, that amendment, even if applicable to Ds, would not assist them because the amendment requires that the deduction be “reasonably and practicably ascertainable” and supported by sufficient information to determine its reliability; Ds did not meet that burden.

D’s offense of failure to register under the Sex Offender Registration and Notification Act, 18 U.S.C. § 2250(a), was not a “sex offense” for which the Guidelines recommended (USSG § 5D1.2(b)(2) & cmt. n.1) the statutory maximum term of supervised release; however, this error was not plain. United States v. Segura, 747 F.3d 323 (5th Cir. 2014).

        This error was not “plain,” did not affect D’s substantial rights, and did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. Accordingly, the Fifth Circuit declined to reverse.

Texas death-sentenced D, convicted for capital murder of a police officer, was not entitled to federal habeas relief on his claim that the jury instructions at the punishment phase of trial unconstitutionally precluded the jury from considering voluntary intoxication as mitigating evidence. Sprouse v. Stephens, 748 F.3d 609 (5th Cir. 2014).

        In rejecting that claim, the state courts did not unreasonably apply relevant Supreme Court precedents.

District court abused its discretion in issuing a preliminary injunction on death-sentenced Texas D’s execution to wait for the disclosure of information about the lethal drugs that would be used to execute him. Sells v. Livingston, 750 F.3d 478 (5th Cir. 2014).

        No appellate decision supports the notion that a defendant has a liberty interest in obtaining information about execution protocols. Thus, D failed to make a sufficient showing of a likelihood of success on the merits. The Fifth Circuit reversed the injunction and vacated the district court’s stay of execution.

Court of Criminal Appeals

The evidence was sufficient to sustain D’s theft conviction because evidence of D’s inability to satisfy his other contractual obligations before his dealings with complainants showed that by the time he induced them to pay, he was aware that he would be unable to make good on his agreement. Taylor v. State, 450 S.W.3d 528 (Tex.Crim.App. 2014).

        D appealed that he was convicted of theft solely because his apparent “ineptitude” prevented him from fulfilling his contractual obligations. In a split decision, COA affirmed D’s conviction for theft in an amount between $1,500 and $20,000, Tex. Penal Code § 31.03. In light of disagreement among the justices below, CCA granted D’s petition for review and affirmed COA.

        “Although far from conclusive, the evidence supports a rational inference that, at least by the time the appellant induced the second payment on the contract, he had formulated the requisite intent to deprive [complainant] of his money without consideration. Bearing in mind that by statute, the appellant’s failure to perform on the contract will not suffice to establish that he did not intend to, or at least knew he would not, fulfill his contract obligations, we still believe that the evidence is legally sufficient to establish an intent to deprive [complainant] of property of a value of at least $1,500 by deception. Specifically, the evidence of the appellant’s inability to satisfy his other contractual obligations before his dealings with [complainant] supports a rational inference that, by the time he induced them to make the $10,000 payment at the end of November, he was aware of a reasonable certainty that he would be unable—whether by unavoidable circumstances or simply by his own ‘monumental ineptitude in business’—to make good on his agreement to produce and install the LED signs.”

Where D was convicted of capital murder under Tex. Penal Code § 19.03(a)(7), her right to a unanimous verdict was violated because the jury charge did not specify the killing of any one victim as the predicate murder and the jury was not required to specify which two of five people they agreed D murdered. Saenz v. State, 451 S.W.3d 388 (Tex.Crim.App. 2014).

        D was indicted for five counts of aggravated assault and one count of capital murder. The five counts alleged aggravated assaults of five patients of a dialysis clinic who suffered adverse episodes but did not die. The sixth count charged her with capital murder by murdering more than one person during the same criminal transaction or pursuant to the same scheme or course of conduct. The capital-murder language of the jury charge instructed jurors to determine if D “did intentionally or knowingly cause the death of more than one of the following persons[.]” The jury found her guilty of three of the aggravated assaults and capital murder. COA affirmed.

        CCA found that COA erred in holding that the jury charge was not erroneous. “The language used in the jury charge . . . made it possible for the jurors to convict without agreeing that any one particular person was murdered by the appellant. Although the charge required the jury to unanimously agree that she killed at least two of the five named victims, there was no requirement that the jurors agree on any one specific murder, which would have served as the predicate murder [as required for Section 19 of the Texas Penal Code]. Six jurors could have agreed she killed victims A, B, and C, while the other six agreed she killed victims D and E.” Because D did not object to the jury charge, the trial court’s error had to be analyzed for egregious harm under Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1985); CCA therefore vacated COA’s judgment and remanded to that court.

D was not entitled to a lesser-included instruction on manslaughter because the proof on which she relied was also sufficient to prove another, greater lesser-included offense to capital murder: felony murder based on felonious injury to a child. Hudson v. State, 449 S.W.3d 495 (Tex.Crim.App. 2014).

        A jury convicted D of capital murder and assessed her punishment as life imprisonment without parole. COA affirmed her conviction after remand from CCA. CCA here granted review to examine COA’s holding that D was not entitled to a lesser-included instruction on manslaughter and, if necessary, to reconsider its jurisprudence on lesser-included offenses. CCA affirmed COA.

        “Appellant cannot prove that she is guilty of only manslaughter, even if the jury believed that her evidence of recklessness negated the intentional-murder requirement of capital murder, and the trial court did not err when it rejected Appellant’s request for the manslaughter instruction. We write additionally only to clarify the caselaw from this Court. . . . [I]n this case, even if the jury believed the evidence that Appellant was only reckless in killing her child, that evidence supported two lesser-included offenses, one of which was a lesser included of capital murder but greater than manslaughter, felony murder. Therefore, Appellant was not entitled to the requested instruction on manslaughter. Finally, although Appellant may have been entitled to a different lesser-included-offense instruction if she had requested one, such as felony murder, Appellant made no such request, and that issue is not before us.”

COA properly undertook a factual-sufficiency review of the evidence underlying the juvenile court’s waiver of jurisdiction over appellant; furthermore, the evidence failed to support waiver of juvenile-court jurisdiction. Moon v. State, 451 S.W.3d 28 (Tex.Crim.App. 2014).

        CCA granted the State’s petition to address the appellate review of a juvenile court’s waiver of its otherwise-exclusive jurisdiction over a person alleged to have committed a murder at age 16: What, exactly, is the appellate court’s appropriate role in reviewing the adequacy of the juvenile court’s statutorily required written order transferring the child to a criminal district court for prosecution as an adult? CCA held that COA conducted an appropriate review of the juvenile court’s transfer order, and CCA affirmed that the juvenile court abused its discretion in waiving jurisdiction.

        When reviewing a juvenile court’s transfer order, factual-sufficiency review of the Tex. Fam. Code § 54.02(f)(4) factor as to public protection and the rehabilitation of D was proper because any issue subject to a burden of proof less than beyond a reasonable doubt could be reviewed for factual sufficiency. The juvenile court abused its discretion by waiving jurisdiction based on the seriousness of the alleged offense because it found no specifics; in its transfer order, the court only stated the alleged offense and its finding that the offense was committed against the person of another. Any findings of the juvenile’s background did not support transfer because the written order did not give this as a reason for transfer.

Where D was convicted of felony DWI, the evidence was insufficient to support a deadly-weapon finding; he briefly crossed the center line when there were very few oncoming cars. Brister v. State, 449 S.W.3d 490 (Tex.Crim.App. 2014).

        A jury convicted D of felony driving while intoxicated under Tex. Penal Code §§ 49.04, 49.09(b), found that D did “use or exhibit a deadly weapon, to wit: a motor vehicle during the commission of the offense or during immediate flight therefrom,” and assessed punishment at 40 years’ imprisonment. On direct appeal, D claimed the evidence was legally and factually insufficient to support the deadly-weapon finding. COA sustained that claim, struck the portion of the trial court’s judgment that found use or exhibition of a deadly weapon, and affirmed the judgment as modified. Both the State and D petitioned CCA. CCA affirmed COA.

        “By statute, a motor vehicle is not a deadly weapon per se, but it can be found to be one if it is used in a manner that is capable of causing death or serious bodily injury. Therefore, sufficiency of the evidence is dependent upon the specific testimony in the record about the manner of use. . . . The state asserts that the basis for a deadly-weapon finding is the danger created by the act of driving while intoxicated and advocates for a deadly-weapon finding in all felony cases of DWI without the need for reviewing the specific evidence. If we take that argument to its logical end, any intoxicated driver, whether ‘operating’ a vehicle on a crowded freeway, on a deserted public roadway, or while napping in a rest area with the key in the ignition, presents an actual danger to any ‘other,’ fore or aft, near or far, including the driver, and thus any and all DWI charging instruments, felony or misdemeanor, should include a deadly-weapon allegation. We are unpersuaded that such an across-the-board holding of use of a deadly weapon is appropriate. . . . [O]n a single occasion, appellant briefly crossed the center line into the oncoming lane of traffic at a time at which there were very few, if any, cars in that lane. After the officer activated his emergency lights, appellant committed no other traffic offenses and appropriately stopped. There is no testimony that appellant caused another vehicle or person to be in actual danger. On this record, the court of appeals correctly determined that there was no reasonable inference that appellant used his motor vehicle as a deadly weapon.”

Though the jury instructions failed to identify the particular acts necessary to support each count against D, the evidence in the entire record and the analytical meaning of the jury’s verdicts in the aggregate showed that the erroneous instructions did not cause D actual harm. Arrington v. State, 451 S.W.3d 834 (Tex.Crim.App. 2015).

        “This case addresses whether a defendant suffers egregious harm from erroneous jury instructions permitting a non-unanimous verdict when a jury confronted with two diametrical positions reaches multiple verdicts signifying, in the aggregate, its belief in the credibility of the State’s evidence and its disbelief in the defendant’s evidence. The State’s petition for discretionary review argues that the court of appeals erred by determining that erroneous jury instructions permitting non-unanimous jury verdicts caused egregious harm to [D]. The State challenges the court of appeals’ judgment in favor of appellant that reversed his six convictions, including five convictions for aggravated sexual assault of a child and one conviction for indecency with a child by contact. We conclude that by improperly failing to consider all of the evidence that was admitted at trial and by finding dispositive the jury’s inability to reach a verdict on a single count without considering other rational reasons for the lack of a verdict on that single count, the court of appeals erroneously determined that the faulty instructions egregiously harmed appellant. We reverse the judgment of the court of appeals and remand this case for consideration of appellant’s other issues on appeal.”

Court of Appeals

D was entitled to a new trial because the court reporter was unable to provide a complete record on appeal for Tex. R. App. P. 34.6(f). Castillo v. State, No. 01-13-00632-CR (Tex.App.—Houston [1st Dist] Apr 16, 2015).

        D was convicted by a jury of misdemeanor assault. D timely appealed on July 2, 2013. The trial court clerk filed the clerk’s record on October 22, 2013. The reporter’s record from the trial was due October 30, 2013. On November 7, 2013, the clerk of this court notified the court reporter, Sondra Humphrey, that the reporter’s record was late. Humphrey responded January 16, 2014, by filing a motion for a time extension. COA granted the motion and ordered Humphrey to file the record by February 14, 2014. On February 25, 2014, Humphrey filed a second motion for extension, which COA denied and required Humphrey to file the record by March 14, 2014. On April 15, 2014, COA remanded to the trial court for a determination regarding why the reporter’s record had not been filed and for the court to set a date when the record would be filed. “The Honorable Sherman A. Ross, the former Presiding Judge of the Harris County Criminal Courts at Law, was assigned to hear the proceedings regarding the past due reporter’s records taken by Humphrey in this case and eight other cases. . . . Judge Ross issued many orders and conducted numerous hearings in an effort to obtain the reporter’s records. . . . Although Judge Ross afforded Humphrey multiple opportunities to file the record, it became apparent that she was unable to provide a complete record in this case. . . . Further, after finding that Humphrey violated several of the court’s orders, Judge Ross held her in contempt. . . .

        “Pursuant to Texas Rule of Appellate Procedure 34.6(f), if, through no fault of the appellant, a reporter’s record is lost or destroyed, and the portion of the record that is lost or destroyed is necessary to the appeal’s resolution and cannot be replaced by agreement of the parties, the appellant is entitled to a new trial. . . . We agree with the trial court’s conclusion that appellant is entitled to a new trial. Although Judge Ross provided Humphrey with numerous opportunities to provide a complete record and . . . appointed a substitute court reporter to transcribe the record from Humphrey’s stenographic notes and audio recordings, no record has been prepared or certified, and the substitute reporter testified that she was unable to prepare, certify, and file a reporter’s record from Humphrey’s notes and audio recordings. . . . The record further supports the trial court’s finding that the missing reporter’s record is necessary to appellant’s appeal. See Tex. R. App. P. 34.6(f)(3). There is no reporter’s record from any portion of the trial. . . . [W]e reinstate this appeal, reverse the trial court’s judgment, and remand the cause for a new trial.”

D’s 62-year sentence was illegal because it exceeded the maximum sentence for a second-degree felony under Tex. Penal Code § 12.42(a), 20 years, as the jury never found a fact necessary to elevate the punishment range. Vidales v. State, No. 07-13-00286-CR (Tex.App.—Amarillo May 15, 2015).

            Appellant was convicted by a jury of evading arrest or detention with a vehicle. Finding two enhancement paragraphs true, the jury sentenced him to 62 years’ confinement. By three issues raised through his original briefing, appellant contended (1) his initial detention was unlawful, (2) his trial counsel was ineffective, and (3) error in the jury charge failed to instruct on unanimity of the verdict regarding what he perceived to be two separate evading arrest offenses on the same date. After original submission on the briefs, COA ordered the parties to brief a previously unassigned, potentially meritorious issue concerning the legality of the sentence imposed. By a supplemental brief, appellant added a fourth issue contending he was egregiously harmed when the trial court authorized the jury to assess a sentence within the statutory punishment range provided by Tex. Penal Code § 12.42(d) without requiring the jury to first find an element essential to the enhanced punishment range: the sequential finality of his prior convictions. By its supplemental brief, the State responded to the fourth issue by conceding appellant was egregiously harmed by the omission of an essential instruction in the punishment charge. As to this error, the State contended that COA should reverse the sentence and remand for a new trial on punishment. COA agreed, and affirmed in part and reversed and remanded in part.

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