June 2020 SDR – Voice for the Defense Vol. 49, No. 5

Voice for the Defense Volume 49, No. 5 Edition

Editor: Michael Mowla

From Editor Michael Mowla:

Please do not rely solely on the summaries set forth below. The reader is advised to read the full text of each opinion in addition to the brief synopses provided.

TCDLA thanks the Court of Criminal Appeals for graciously administering a grant which underwrites the majority of the costs of our Significant Decisions Report. We appreciate the Court’s continued support of our efforts to keep lawyers informed of significant appellate court decisions from Texas, the United States Court of Appeals for the Fifth Circuit, and the Supreme Court of the United States. However, the decision as to which cases are reported lies exclusively with our Significant Decisions editor. Likewise, any and all editorial comments are a reflection of the editor’s view of the case, and his alone.

Supreme Court of the United States

Kansas v. Glover, No. 18–556, 2020 U.S. LEXIS 2178  (U.S. April 6, 2020) [Investigative traffic stop after learning that the registered owner has a revoked license]

  • An officer does not violate the Fourth Amendment by initiating an investigative traffic stop after running a vehicle’s plate and learning that the registered owner has a revoked driver’s license. When the officer lacks information negating an inference that the owner is the driver of the vehicle, the stop is reasonable.
  • Under United States v. Cortez, 449 U.S. 411, 417-418 (1981) and Terry v. Ohio, 392 U.S. 1, 21-22 (1968), the Fourth Amendment permits an officer to initiate a brief investigative traffic stop if has a particularized and objective basis for suspecting the particular person stopped of criminal activity. Although a mere hunch does not create reasonable suspicion, the level of suspicion the standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause. Reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause. The standard depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Courts must permit officers to make commonsense judgments and inferences about human behavior.
  • Under Delaware v. Prouse, 440 U.S. 648, 658 (1979), States have a vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles and that licensing, registration, and vehicle inspection requirements are being observed.

Facts:

  • Deputy Mehrer was on routine patrol when he observed a 1995 truck with KS plate 295ATJ. He ran it and discovered that it was registered to Glover, who had a revoked DL.
  • Mehrer assumed the registered owner Glover was also the driver.
  • Mehrer did not observe any traffic infractions. Nor did he attempt to identify the driver. Based solely on the information that the registered owner’s DL was revoked, Mehrer initiated a traffic stop.
  • The driver of the truck was Glover.
  • Kansas charged Glover with driving as a habitual violator.
  • Glover filed a motion MTS, arguing that the officer lacked reasonable suspicion. The District Court granted the MTS.
  • The Court of Appeals reversed, holding that it was reasonable for Mehrer to infer that the driver was the owner of the vehicle because “there were specific and articulable facts from which the officer’s common-sense inference gave rise to a reasonable suspicion.”
  • The Kansas Supreme Court reversed, holding that Mehrer did not have reasonable suspicion because his inference that Glover was driving was “only a hunch” that Glover was committing a crime.

An officer does not violate the Fourth Amendment by initiating an investigative traffic stop after running a vehicle’s plate and learning that the registered owner has a revoked driver’s license. When the officer lacks information negating an inference that the owner is the driver of the vehicle, the stop is reasonable.

  • Under United States v. Cortez, 449 U.S. 411, 417-418 (1981) and Terry v. Ohio, 392 U.S. 1, 21-22 (1968), the Fourth Amendment permits an officer to initiate a brief investigative traffic stop if has a particularized and objective basis for suspecting the particular person stopped of criminal activity. Although a mere
  • hunch does not create reasonable suspicion, the level of suspicion the standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause. Reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause. The standard depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Courts must permit officers to make commonsense judgments and inferences about human behavior.
  • Under Delaware v. Prouse, 440 U.S. 648, 658 (1979), States have a vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles and that licensing, registration, and vehicle inspection requirements are being observed.
  • The fact that the 1995 Chevrolet truck with Kansas plate 295ATJ was registered to Glover allowed Mehrer to draw the “commonsense inference” that Glover was likely the driver of the vehicle and provided “more than reasonable suspicion” to initiate the stop. The fact that the registered owner is not always the driver does not negate the reasonableness of this inference.
  • Under Heien v. North Carolina, 574 U.S. 54, 60 (2014), the reasonable suspicion inquiry “falls considerably short” of 51% accuracy since “to be reasonable is not to be perfect.” 
  • The judgment below is reversed, and the case is remanded.

Editor’s note: this opinion allows officers to make stops with impunity based solely on information they receive from databases, which are only as reliable as the information inputted into them. This greatly expands the definition of a Terry-stop.                                                        

Ramos v. Louisiana, No. 18–5924, 2020 U.S. LEXIS 2407 (U.S. April 20, 2020) [Right to unanimous jury verdicts; stare decisis]

  • Under the Sixth Amendment, defendants charged with felonies are entitled to trial by a unanimous, impartial jury. 
  • Stare decisis is not “an inexorable command.” The doctrine is at its weakest when the Constitution is interpreted because a mistaken judicial interpretation is practically impossible to correct through other means. When the SCOTUS revisits a precedent, it considers the quality of the decision’s reasoning, its consistency with related decisions, legal developments since the decision; and reliance on the decision.

Facts:

  • In a 10-2 verdict, Ramos was convicted of murder committed during a rape. He was sentenced to life without parole.

Defendants charged with felonies are entitled to trial by a unanimous, impartial jury

  • Under the Sixth Amendment, defendants charged with felonies are entitled to trial by a unanimous, impartial jury. 
  • Stare decisis is not “an inexorable command.” The doctrine is at its weakest when the Constitution is interpreted because a mistaken judicial interpretation is practically impossible to correct through other means. When the SCOTUS revisits a precedent, it considers the quality of the decision’s reasoning, its consistency with related decisions, legal developments since the decision; and reliance on the decision.

Editor’s note: the jury problem fixed by the SCOTUS:

United States Court  of Appeals for the Fifth Circuit

United States v.  Alvarado-Palacio, 951 F.3d 337  (5th Cir. March 2, 2020) [Waiver of Miranda and waiver forms]

  • In reviewing a ruling on a MTS, the 5th Circuit defers to factfinding by the district court unless clearly erroneous—definite and firm conviction that a mistake was made. The ultimate issue of voluntariness is a legal question reviewed de novo. The evidence is viewed in the light most favorable to the prevailing party.
  • Under Moran v. Burbine, 475 U.S. 412 (1986), Miranda, 384 U.S. at 444, 475, and United States v. Cardenas, 410 F.3d 287, 293 (5th Cir. 2005), a suspect can waive Miranda rights if it is voluntarily, knowingly, and intelligently. A voluntary waiver is the product of a free and deliberate choice rather than intimidation, coercion, or deception. Trickery or deceit is prohibited only to the extent that it deprives the suspect of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them. The voluntariness determination is made case-by-case and is viewed under the totality of the circumstances surrounding the interrogation.
  • Under North Carolina v. Butler, 441 U.S. 369, 373 (1979), though not conclusive, a signed waiver form is strong proof of a knowing and voluntary waiver.
  • Waivers may be direct or may be inferred from the actions and words of the person interrogated. A failure to pay attention to the waiver form a suspect signed is insufficient to show that a waiver was made involuntarily or unknowingly. 

Facts:

  • In March 2017, Alvarado-Palacio—a Mexican citizen—attempted to drive a vehicle containing 9.98 kilograms of meth into the United States. He was detained at a port of entry in El Paso, where CBP found the meth following a secondary inspection of the car. He was arrested for questioning.
  • Homeland Security Investigations (HSI) Agents Hernandez and Flores interrogated him. Hernandez read him his Miranda rights in Spanish. Hernandez asked Alvarado-Palacio in Spanish if he understood his rights, and Alvarado-Palacio said yes.
  • Hernandez informed Alvarado-Palacio that the interrogation was being recorded as “protection for everyone” and Alvarado-Palacio needed to include his name, signature, and date on a Spanish version of a DHS form including a “Declaration of [Miranda] Rights” and “Waiver.” While Alvarado-Palacio picked up the pen to sign, Flores informed him that he can read the rights again if he wants. Alvarado-Palacio filled out the form. Alvarado-Palacio looked at the form again for about 15 seconds, appearing to read its contents and repeat some of it under his breath.
  • Alvarado-Palacio handed the form to Hernandez and said, “…I may have an attorney, it says?” Hernandez answered while holding the signed rights and waiver form, “Yes, you may have an attorney, but right now is when we can speak with you.” Alvarado-Palacio responded, “Ah, ok.”
  • Alvarado-Palacio gave a confession admitting that he knew the drugs were in the car even though he did not know what kind. Alvarado-Palacio admitted he was offered $800 to take the drugs to a delivery point in the United States.
  • Alvarado-Palacio was indicted for importing and possessing with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of meth per 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii) and 21 U.S.C. § 952(a), and 21 U.S.C. § 960(a)(1), (b)(1)(H).
  • Alvarado-Palacio filed a MTS his confession, arguing that he did not voluntarily and knowingly waive Miranda  because Hernandez mischaracterized his right to an attorney.
  • The district court denied the MTS, finding that Alvarado-Palacio was subject to a custodial interrogation but knowingly, intelligently and voluntarily waived those rights. The court also found that Alvarado-Palacio stated rather than asked for clarification when he said, “…I may have an attorney, it says?”
  • The district court found Alvarado-Palacio guilty after a bench trial based on stipulated facts and sentenced him to 46 months in BOP.

The trial court did not err by denying the MTS

  • In reviewing a ruling on a MTS, the 5th Circuit defers to factfinding by the district court unless clearly erroneous—definite and firm conviction that a mistake was made. The ultimate issue of voluntariness is a legal question reviewed de novo. The evidence is viewed in the light most favorable to the prevailing party.
  • Under Moran v. Burbine, 475 U.S. 412 (1986), Miranda, 384 U.S. at 444, 475, and United States v. Cardenas, 410 F.3d 287, 293 (5th Cir. 2005), a suspect can waive Miranda rights if it is voluntarily, knowingly, and intelligently. A voluntary waiver is the product of a free and deliberate choice rather than intimidation, coercion, or deception. Trickery or deceit is prohibited only to the extent that it deprives the suspect of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them. The voluntariness determination is made case-by-case and is viewed under the totality of the circumstances surrounding the interrogation.
  • Under North Carolina v. Butler, 441 U.S. 369, 373 (1979), though not conclusive, a signed waiver form is strong proof of a knowing and voluntary waiver.
  • Waivers may be direct or may be inferred from the actions and words of the person interrogated. A failure to pay attention to the waiver form a suspect signed is insufficient to show that a waiver was made involuntarily or unknowingly. 
  • After Alvarado-Palacio reviewed the form, the agents asked him if he understood it and he responded, “Yes, that I may have an attorney, it says?”
  • Nothing indicates that Alvarado-Palacio did not make a free and deliberate choice to waive his right to counsel. The totality of circumstances shows that the district court’s finding that he knew and understood his rights is not clearly erroneous.                          

United States v. Moton, 951 F.3d 639 (5th Cir. March 2, 2020) [Base offense level; conversion rate for a synthetic cannabinoid]

  • The Controlled Substances Act (CSA) makes it unlawful to knowingly manufacture, distribute, or possess with the intent to distribute controlled substances. The Controlled Substance Analogue Enforcement Act of 1986 (Analogue Act) identifies a category of substances substantially like those listed on the federal controlled substance schedules and instructs courts to treat those analogues—if intended for human consumption—as controlled substances listed on schedule I.
  • The Government must establish that the defendant knew he was dealing with a controlled substance. When the substance is an analogue, knowledge is proven if the defendant knew that the substance was controlled under the CSA or Analogue Act even if he did not know its identity. Knowledge can be established by evidence that a defendant knew: (1) that the substance is a listed controlled substance—regardless of whether he knew the identity of the substance—and circumstantial evidence may suffice showing concealment of activities, evasive behavior with law enforcement, knowledge that a substance produces a “high” like that produced by controlled substances, and knowledge that a substance is subject to seizure at customs; or (2) the analogue he was dealing with, even if he did not know its legal status as an analogue.
  • When a defendant preserved sentencing error, review of the factual findings is for clear error and its application of the U.S.S.G. is de novo. Even if error is established, it must be disregarded if it is harmless—does not affect substantial rights. On clear error review, the Government has the burden to prove the error is harmless.
  • The base offense level reflects the offense of conviction and relevant conduct, which includes acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction. Only criminal conduct is relevant, but the conduct need not have resulted in a conviction. Relevant conduct must be proven by a preponderance of the relevant and sufficiently reliable evidence. The district court may consider any relevant information—without regard to admissibility under the rules of evidence—provided the information has sufficient indicia of reliability to support its probable accuracy. A PSR generally has sufficient indicia of reliability. A defendant’s objections do not cast doubt on the PSR. The defendant must demonstrate its inaccuracy through rebuttal evidence.
  • For a drug offense, the base offense level reflects the amounts of drugs with quantities from multiple transactions added. Where there is no drug seizure or the amount seized does not reflect the scale of the offense, the district court shall approximate the quantity of the controlled substance.
  • To determine the appropriate conversion rate for a synthetic cannabinoid, the equivalency of THC is used—the most closely related controlled substance: 167 grams marijuana per one-gram substance.

Facts:

  • In 2016, Houston PD received a tip regarding narcotics activity at a storage facility. They observed Moton unloading boxes from a minivan into a unit flagged by the facility’s manager. Moton drove to a gas station a few miles away where he deposited a box and two black trash bags into a dumpster. Police recovered the box and trash bags, which contained materials used to produce and tested positive for synthetic cannabinoid: baggies, receipts for acetone, a box for a digital scale, a package for a respirator, bottles of Tasty Puff flavoring, and labels of various “herbal incense.”
  • The police surveilled Moton as he visited other storage facilities and a house on Mulholland Drive in Houston (“House”). Moton was the only person seen visiting the House, regularly dropping off trash bags at storage units for pickup by codefendant Malik. Moton put trash bags in the trunk of Malik’s car. Malik transferred the bags to another vehicle, which was stopped for a traffic violation, and contained 800 baggies of synthetic cannabinoids.
  • Officers arrested Moton at the House, which was not used as a home. It had unfurnished rooms and empty kitchen cabinets. It was a manufacturing lab, with chemical flavoring in a bedroom, acetone in the garage, tubs filled with packaged synthetic cannabinoids, fans blowing chemical odors out of the chimney, and a machine used to seal the drugs. 580 pounds of synthetic cannabinoids were found, along with Moton’s utility bill for the House.
  • Police advised Moton of his rights and interrogated him. Moton described the process for delivering synthetic cannabinoids. He was paid by cash left for him in the units. Police searched the units, including one listed in Moton’s name, and found materials used to produce synthetic cannabinoids.
  • Moton claimed at trial that although he mixed artificial flavoring with dry green leaves, having packaged up to 200,000 bags, he had no idea any aspect of the business was illegal, saying that his difficulty with English left him unaware.
  • The jury found Moton guilty of two counts of possession with intent to distribute synthetic cannabinoids and not guilty on the remaining conspiracy charge.
  • The PSR attributed to him $107,940 in drug proceeds discovered in Malik’s safety deposit box and 434,319 grams of cannabinoids seized at different locations. The drug proceeds and seized cannabinoid totaled 2,593,119 grams. Using an unstated multiplier, the PSR converted this figure to 409,274 kg marijuana, base offense level of 38. The PSR added a two-level enhancement under U.S.S.G. § 2D1.1(b)(12) for maintaining premises for manufacturing or distributing a controlled substance analogue. With a total offense level of 40 and a criminal history category of I, the advisory range was 292-365 months, capped by statute at 240 months. Varying downward, the district court sentenced Moton to 186 months in BOP.

There was sufficient evidence to sustain the jury’s finding that Moton acted with the requisite mens rea

  • The Controlled Substances Act (CSA) makes it unlawful to knowingly manufacture, distribute, or possess with the intent to distribute controlled substances. The Controlled Substance Analogue Enforcement Act of 1986 (Analogue Act) identifies a category of substances substantially like those listed on the federal controlled substance schedules and instructs courts to treat those analogues—if intended for human consumption—as controlled substances listed on schedule I.
  • The Government must establish that the defendant knew he was dealing with a controlled substance. When the substance is an analogue, knowledge is proven if the defendant knew that the substance was controlled under the CSA or Analogue Act even if he did not know its identity. Knowledge can be established by evidence that a defendant knew: (1) that the substance is a listed controlled substance—regardless of whether he knew the identity of the substance—and circumstantial evidence may suffice showing concealment of activities, evasive behavior with law enforcement, knowledge that a substance produces a “high” like that produced by controlled substances, and knowledge that a substance is subject to seizure at customs; or (2) the analogue he was dealing with, even if he did not know its legal status as an analogue.
  • The jury had enough circumstantial evidence to convict Moton.

Any sentencing error was harmless

  • When a defendant preserved sentencing error, review of the factual findings is for clear error and its application of the U.S.S.G. is de novo. Even if error is established, it must be disregarded if it is harmless—does not affect substantial rights. On clear error review, the Government has the burden to prove the error is harmless.
  • The base offense level reflects the offense of conviction and relevant conduct, which includes acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction. Only criminal conduct is relevant, but the conduct need not have resulted in a conviction. Relevant conduct must be proven by a preponderance of the relevant and sufficiently reliable evidence. The district court may consider any relevant information—without regard to admissibility under the rules of evidence—provided the information has sufficient indicia of reliability to support its probable accuracy. A PSR generally has sufficient indicia of reliability. A defendant’s objections do not cast doubt on the PSR. The defendant must demonstrate its inaccuracy by introducing rebuttal evidence.
  • For a drug offense, the base offense level reflects the amount of drugs involved with quantities of drugs from multiple transactions added together. Where there is no drug seizure or the amount seized does not reflect the scale of the offense, the district court shall approximate the quantity of the controlled substance.
  • Because Moton admitted to packaging 750,000-2,000,000 grams of synthetic cannabinoid, which exceeds the minimum weight for a base offense level of 38, any sentencing error was harmless.
  • To determine the appropriate conversion rate for a synthetic cannabinoid, the equivalency of THC is used—the most closely related controlled substance: 167 grams marijuana per one-gram substance.
  • Applying the conversion rate—167 grams marijuana per one-gram substance—to the 2,000,000 grams of synthetic cannabinoid packed by Moton—yields 334,000 kg marijuana. This far exceeds the 90,000 kg of marijuana needed for a base offense level of 38. Thus, errors in the PSR did not affect Moton’s sentence and are harmless.
  • The district court’s judgment is affirmed.

Editor’s note: herbal incense is not “good” for you. Pumping chemicals or smoke into your lungs is not “good” for you. But the similar-harm-comparisons between herbal incense versus meth, cocaine, and pharmaceutical drugs that killed 70,000 Americans in 2017 alone (68% of which by pharmaceuticals) are nonsense.

https://www.cdc.gov/injury/features/prescription-drug-overdose/index.html

United States v. Phea, No. 17-50671, 2020 U.S.App.LEXIS 10101 (5th Cir. March 31, 2020) (designated for publication) [IAC for failing to object to a constructive amendment]

  • When evaluating the denial of a motion under 28 U.S.C. § 2255, the 5th Circuit reviews factual findings for clear error and conclusions of law de novo. A claim of IAC is a mixed question of law and fact that is reviewed de novo. The court independently applies the law to the facts found by the district court provided the factual determinations are not clearly erroneous.
  • Under Strickland v. Washington, 466 U.S. 668, 686 (1984), a defendant claiming IAC must prove: (1) representation that fell below an objective standard of reasonableness; and (2) prejudice to the defense: but-for the errors, the result of the proceeding would have been different. The defendant need only show a probability sufficient to undermine confidence in the outcome. The objective standard of reasonableness is viewed considering the circumstances as they appeared at the time of the conduct and is measured by prevailing professional norms. A strong presumption is made that counsel’s conduct falls within the wide range of reasonable professional assistance. While counsel need not anticipate changes in the law, the absence of directly controlling precedent does not preclude a finding of deficient performance.
  • A constructive amendment of the indictment occurs when the trial court—through its instructions and facts allowed into evidence—allows proof of an essential element of the crime on an alternative basis provided by statute but not charged in the indictment.

Facts:

  • Phea located K.R. (14-year-old girl) on Tagged.com. where her profile stated that she was 18.  K.R. testified Phea thought she was 18, and she told him she was under 18 only after the crime.
  • The indictment alleged: (Count 1) that per 18 U.S.C. § 1591(a), Phea knowingly recruited, enticed, harbored, transported, provided, obtained, and maintained by any means in and affecting interstate commerce K.R.—knowing that K.R. was not 18 and would be caused to engage in a commercial sex act; and (Count 2) per 18 U.S.C. § 1952(a)(3), aiding and abetting the promotion of a business enterprise involving prostitution.
  • The jury instructions for Count 2 did not contain “knowing”: “if the Government proves beyond a reasonable doubt that the defendant had a reasonable opportunity to observe the person… then the Government does not have to prove that the defendant knew that the person had not attained the age of 18 years.” This language tracks § 1591(c): (if) the defendant had a reasonable opportunity to observe the person recruited… transported…the Government need not prove that the defendant knew that the person had not attained…18 years.
  • For Count 1, the district court instructed the jury using language that did not appear in the indictment: “If the Government proves beyond a reasonable doubt that the defendant had a reasonable opportunity to observe the person recruited… transported…the Government does not have to prove that the defendant knew the person (was not 18).
  • Trial counsel did not object to the instruction, which was a constructive amendment to the indictment
  • The jury convicted Phea on both counts.
  • The district court sentenced Phea to 312 months for Count 2 and 60 months for Count 1.
  • On appeal, the 5th Circuit rejected the plain-error argument on the constructive indictment because the court had not yet addressed whether § 1591 permits a conviction based solely on a finding that the defendant had a reasonable opportunity to observe the victim.
  • Phea filed a motion under 28 U.S.C. § 2255, arguing IAC by failing to argue the indictment was constructively amended. The district court denied the motion.

Phea received IAC

  • When evaluating the denial of a motion under 28 U.S.C. § 2255, the 5th Circuit reviews factual findings for clear error and conclusions of law de novo. A claim of IAC is a mixed question of law and fact that is reviewed de novo. The court independently applies the law to the facts found by the district court provided the factual determinations are not clearly erroneous.
  • Under Strickland v. Washington, 466 U.S. 668, 686 (1984), a defendant claiming IAC must prove: (1) representation that fell below an objective standard of reasonableness; and (2) prejudice to the defense: but-for the errors, the result of the proceeding would have been different. The defendant need only show a probability sufficient to undermine confidence in the outcome. The objective standard of reasonableness is viewed considering the circumstances as they appeared at the time of the conduct and is measured by prevailing professional norms. A strong presumption is made that counsel’s conduct falls within the wide range of reasonable professional assistance. While counsel need not anticipate changes in the law, the absence of directly controlling precedent does not preclude a finding of deficient performance.
  • A constructive amendment of the indictment occurs when the trial court—through its instructions and facts allowed into evidence—allows proof of an essential element of the crime on an alternative basis provided by statute but not charged in the indictment.
  • Count 1 of the indictment charged under 18 U.S.C. § 1591(a) and alleged Phea knew K.R. was under 18. But the indictment made no reference to § 1591(c) or its “reasonable opportunity to observe” language. The district court instructed the jury on both the actual-knowledge theory alleged in the indictment and the “reasonable opportunity to observe” language in § 1591(c). The trial court eliminated the scienter requirement of actual knowledge—the element Phea was indicted under—but lowered the factual basis required to prove this essential element from what Phea knew to what he had the reasonable opportunity to observe. 
  • Because no objection was made, trial counsel’s performance was deficient. Phea was also prejudiced since even K.R. believed that Phea thought she was 18, and she was willing to engage in “adult” activities. There is a reasonable probability a jury would have had reasonable doubt that Phea knew K.R. was under 18.
  • The judgment is REVERSED, the conviction under § 1591(a) is VACATED, and the case remanded for further proceedings.

Editor’s note: this clearly was a constructive amendment that should have been objected to.  It is also critical that Phea pleaded not guilty to knowingly trafficking a 14-year-old girl. Had he pleaded guilty, Phea could have still filed a § 2255 motion arguing IAC. But when a defendant pleads guilty, generally the only viable claim of IAC is that counsel was so deficient that the plea was “involuntary and uninformed.” This is a claim under Hill v. Lockhart, 474 U.S. 52, 59 (1985): counsel’s deficient performance “led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of a proceeding itself.” 

When a defendant alleges that IAC led him to accept a guilty plea rather than go to trial, the question is not if he had gone to trial that the result would have been different from the result of the plea, but although a strong presumption of reliability is given to judicial proceedings, the presumption cannot apply to judicial proceedings that never took place. However, a Lockhart claim generally works only if counsel misinformed on a material issue of law or counsel’s failure to investigate caused a critical fact to not be discovered. 

In Lockhart, counsel told Hill that if he pleaded guilty, he would become eligible after serving 1/3 of his sentence, but in fact he was required to serve 1/2. This was bad advice on a material issue of law that prejudiced Hill. See also Lee v. United States, 137 S.Ct. 1958, 1966-1967 (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, he need not prove that he would have likely prevailed at trial, but only that he would have gone to trial.

Thus, had Phea admitted to knowingly trafficking a 14-year-old girl, to prevail on a Lockhart claim, he must prove far more than a variation of “I didn’t really know that she was only 14 years old.”  That the girl was 14 is a fact that may not implicate trial counsel’s advice since Phea either knew or did not know her real age. Phea would have to show that counsel misled him on a material issue of law or that counsel’s failure to investigate caused a critical fact to not be discovered.  

In re Ray, 951 F.3d 650 (5th Cir. March 3, 2020) [Sanctions against an attorney for bad faith or fraud]

  • Sanctions imposed against an attorney by a district court are reviewed for abuse of discretion. The district court abuses its discretion if its ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence. Disbarment of an attorney by a federal court is proper only upon presentation of clear and convincing evidence sufficient to support the finding of one or more violations warranting the sanction.
  • When acting under an inherent power to disbar an attorney, a district court must make a specific finding that an attorney’s conduct constituted or was tantamount to bad faith. When bad faith is patent from the record and specific findings are unnecessary to understand the misconduct giving rise to the sanction, the necessary finding of bad faith may be inferred.

Facts:

  • Hernandez (Army reservist) worked for RSI. He failed to report to work because he went to the ER, complaining of a headache and back pain. RSI fired Hernandez for violating a policy of failing to report four hours prior to a shift if he is unable to appear. 
  • Hernandez hired Ray to file suit against RSI alleging violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). Hernandez alleged that his ER-visit was for treatment of an aggravation of a back condition he suffered while on military duty the preceding weekend. Under USERRA’s convalescence provision, his reporting period was extended because he sustained injury during military service.
  • During discovery, RSI served Hernandez with requests for production of medical records since the injury, including those from the ER trip. In response, Hernandez turned over a doctor’s note stating that Hernandez was under his care that day and could return to work the next day. RSI obtained Hernandez’s signature on an authorization to obtain relevant medical records but did nothing with the document. 
  • At some point, Ray received copies of records from the ER trip and claimed to have faxed them to opposing counsel. Ray later discovered that the fax failed to transmit. Ray never revealed prior to trial that he had the records.
  • After a bench trial, the district court denied Hernandez’s claims and rendered judgment for RSI. Hernandez appealed, and the 5th Circuit reversed and rendered judgment in his favor, remanding for a calculation of damages. 
  • While the case was pending on remand, RSI learned that Ray had Hernandez’s ER records in his possession prior to trial but failed to disclose them. RSI also contended that Hernandez gave false testimony at trial about the true reason for the ER trip. 
  • RSI filed a motion for relief from judgment under Fed. Rule Civ. Proc. 60(b), attaching the ER records, which revealed that Hernandez visited the ER complaining of a migraine-type headache, with back pain an associated symptom from a chronic nondisabling condition. RSI argued that the records proved that the ER trip was not for treatment of an aggravation of a back condition suffered while on military duty the previous weekend as he had testified at trial and argued on appeal. 
  • The district court granted the Rule 60(b) motion, determined that Hernandez intentionally gave false testimony to mislead RSI in its trial preparation, and this testimony misled the Fifth Circuit. 
  • The district court also concluded that Ray failed to take appropriate steps to supplement an incomplete discovery response by providing the ER records to opposing counsel once he received them.
  • The district court ordered Ray to file a response about his conduct and the possibility that the court might issue an order imposing discipline, directing the clerk to remove Ray’s name from the role of attorneys authorized to practice law before the court (disbarment). Ray filed a response arguing against the imposition of sanctions but declined the court’s offer of a hearing.
  • The district court filed a memorandum opinion and order directing the clerk to remove Ray’s name from the list of attorneys authorized to practice law in the N.D. Tex., finding that his conduct unnecessarily cost RSI $340,000 in litigation. Ray’s behavior was of a pattern that tended to be destructive of the administration of justice. He engaged in fraud, misrepresentation, and misconduct that created a false record and provided fodder for false arguments by Hernandez. Ray sat silently when at oral argument in the Fifth Circuit, the court asked the attorney for RSI if there was any evidence in rebuttal to Hernandez’s claim that his trip to the ER was to receive medical attention for a back injury sustained during military duty, to which the RSI attorney responded “there is no other real evidence one way or the other.” Only an attorney completely devoid of an ethical or moral sense of right and wrong would have sat quietly by as the RSI attorney said that, bearing in mind that Ray had in his possession documents showing the real reason Hernandez went to the ER.

The district court did not abuse its discretion by sanctioning Ray

  • Sanctions imposed against an attorney by a district court are reviewed for abuse of discretion. The district court abuses its discretion if its ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence. Disbarment of an attorney by a federal court is proper only upon presentation of clear and convincing evidence sufficient to support the finding of one or more violations warranting the sanction.
  • On appeal, Ray argued that he withheld “significant evidence” from opposing counsel prior to trial because he was “an inexperienced attorney, and not due to fraud.”
  • When acting under an inherent power to disbar an attorney, a district court must make a specific finding that an attorney’s conduct constituted or was tantamount to bad faith. When bad faith is patent from the record and specific findings are unnecessary to understand the misconduct giving rise to the sanction, the necessary finding of bad faith may be inferred.
  • The order imposing disbarment from the N.D. Tex. is affirmed.

Editor’s note: although this proceeding arose from a civil case on the issue of disclosure of discovery, I summarized it to address the importance of candor the court. But it is interesting that an attorney can be disbarred if he fails to abide by civil discovery rules under Fed. Rule Civ. Proc. 26, while prosecutors who violate criminal discovery rules under Fed. Rule Crim. Proc. 16, Tex. Code Crim. Proc. Art. 39.14, and Brady suffer few—if any—consequences. If courts were as hard on prosecutors who fail to disclose material evidence as these courts were on Mr. Ray, prosecutors who cheat or think about cheating may have a whole new attitude towards their duty of candor to the court.

United States v. Rodriguez-Leos, 953 F.3d 320 (5th Cir. March 16, 2020) [Review of the district court’s interpretation of the U.S.S.G.; how an issue is preserved for appeal; U.S.S.G. § 2X1.1(b)(1) (attempt-offenses)]

  • Review of the district court’s interpretation of the U.S.S.G. is de novo and its factual findings is clear error. If an objection is raised for the first time on appeal or raises an objection that is different from what he raised in district court, review is for plain error. 
  • There is no bright-line rule for determining whether an issue is preserved for appeal. A party must press the issue and not merely intimate it in the district court. The objection must be sufficiently specific to alert the district court to the nature of the alleged error and to provide an opportunity for correction. Key is whether the objection is specific enough to allow the court to take evidence and receive argument on the issue. The objection and argument on appeal need not be identical; the objection must merely give the district court the opportunity to address the gravamen of the argument presented on appeal. Once a party raises an objection in writing and receives a ruling, if he subsequently fails to make an oral objection, the error is still preserved because it is about the specificity and clarity of the initial objection, not the defendant’s persistence in seeking relief.
  • An objection is preserved if the defendant made a written objection and did not specifically cite the U.S.S.G.-section to which the PSR applied but used terminology identical to that used in the part the defendant was challenging. 
  • Under U.S.S.G. § 2X1.1(b)(1), for an attempt-offense, the  offense level should be decreased by 3 unless the defendant completed all the acts he believed necessary for successful completion of the substantive offense or the circumstances show that he was about to complete all acts but-for apprehension or interruption by some event beyond his control. Whether a reduction is warranted considers these factors: (1) focus on the substantive offense and the defendant’s conduct in relation to it; (2) no reduction required for a conspirator who has made substantial progress in his criminal endeavor simply because a significant step remains before commission of the substantive offense; (3) a defendant is entitled to the reduction unless the circumstances demonstrate that the balance of the significant acts completed and those remaining tips toward completion of the substantive offense, considering the quality—not just the quantity—of the completed and remaining acts; and (4) the temporal frame of the scheme and the time the defendant would have needed to finish his plan had he not been interrupted because as completion of the offense becomes imminent, the reduction is less appropriate.

Facts:

  • Rodriguez-Leos pleaded guilty to unlawful possession of ammunition by a person admitted to the U.S. under a nonimmigrant visa.
  • Per the PSR, federal agents conducting surveillance operations at an Academy Sports in McAllen observed Rodriguez-Leos purchase 520 rounds of 7.62 x 39mm caliber ammunition. A record-check of the vehicle driven by Rodriguez-Leos revealed that he entered the country at the Hidalgo Port of Entry earlier that day. Agents followed him to a residence in McAllen. Rodriguez-Leos got out of his vehicle with the box of ammunition, walked toward the front of the home out of sight of the agents, and returned to his vehicle without the box. The homeowner consented to a search, which revealed the ammunition concealed underneath a bush near the front entrance of the home.
  • Agents followed Rodriguez-Leos to a store in Hidalgo where they questioned him about the ammunition. After waiving Miranda, he admitted that he purchased the ammunition for one “El Chivo” (“the goat”) and left it at the McAllen home because he did not want it in his vehicle. He also admitted he purchased ammunition for El Chivo twice recently and received $50 each time. He met El Chivo at the port of entry and  received money to purchase ammunition. El Chivo would call him and tell him to meet an unknown male at a Whataburger in Hidalgo, where he delivered the ammunition to the unknown male. Later he understood that the male would smuggle the ammunition into Mexico.
  • The PSR assigned a base offense level of 14 and a 4-level enhancement because he possessed the ammunition with knowledge, intent, or reason to believe that it would be transported out of the U.S., making the offense level 18. Because he possessed it in connection with another offense—exportation of ammunition without a valid export license—the PSR applied the cross reference in § 2K2.1(c)(1), which directs the use of § 2X1.1 if the resulting offense level is greater than previously determined. This made the base offense level 26. 
  • A 3-level reduction is allowed under § 2X1.1(b)(1) if the defendant attempted but did not complete the substantive offense unless he completed all acts he believed necessary for successful completion of it or the circumstances demonstrate he was about to complete all acts but-for apprehension or interruption by some event beyond his control. The PSR stated the decrease was not warranted because he completed all acts necessary but-for the apprehension.
  • Rodriguez-Leos objected in writing to the PSR, arguing that he did not know that El Chivo was involved in organized crime or that the ammunition would be smuggled into Mexico.
  • The district court applied a 3-level reduction for acceptance of responsibility for a total offense level of 23, making the range 46-57 months. The court overruled Rodriguez’s objection, stating it was clear that he knew the ammunition was going to be smuggled to Mexico. The district court did not address Rodriguez’s objections to the application of the cross-reference, the minor participant objection; or the 3-level decrease, and instead implicitly overruled them by adopting the PSR.
  • The court sentenced Rodriguez-Leos to 50 months.

The district court erred by failing to assign him a three-level reduction for attempt under § 2X1.1(b)(1) because there was no evidence that before his arrest, he completed or was about to complete all acts he believed were necessary for the successful completion of the substantive exportation-of-ammunition offense

  • Review of the district court’s interpretation of the U.S.S.G. is de novo and its factual findings is clear error. If an objection is raised for the first time on appeal or raises an objection that is different from what he raised in district court, review is for plain error. 
  • There is no bright-line rule for determining whether an issue is preserved for appeal. A party must press the issue and not merely intimate it in the district court. The objection must be sufficiently specific to alert the district court to the nature of the alleged error and to provide an opportunity for correction. Key is whether the objection is specific enough to allow the court to take evidence and receive argument on the issue. The objection and argument on appeal need not be identical; the objection must merely give the district court the opportunity to address the gravamen of the argument presented on appeal. Once a party raises an objection in writing and receives a ruling, if he subsequently fails to make an oral objection, the error is still preserved because it is about the specificity and clarity of the initial objection, not the defendant’s persistence in seeking relief.
  • An objection is preserved if the defendant made a written objection and did not specifically cite the U.S.S.G.-section to which the PSR applied but used terminology identical to that used in the part the defendant was challenging. 
  • Rodriguez-Leos properly cited U.S.S.G. § 2X1.1 even though he cited subsection (a) when (b) was the subsection that is central to his argument. His written objection that “it can’t be said that defendant completed all necessary acts under [§] 2X1.1(a)” was sufficiently specific to alert the court to the nature of the alleged error and to provide an opportunity for correction.
  • Under U.S.S.G. § 2X1.1(b)(1), for an attempt-offense, the  offense level should be decreased by 3 unless the defendant completed all the acts he believed necessary for successful completion of the substantive offense or the circumstances show that he was about to complete all acts but-for apprehension or interruption by some event beyond his control. Whether a reduction is warranted considers these factors: (1) focus on the substantive offense and the defendant’s conduct in relation to it; (2) no reduction required for a conspirator who has made substantial progress in his criminal endeavor simply because a significant step remains before commission of the substantive offense; (3) a defendant is entitled to the reduction unless the circumstances demonstrate that the balance of the significant acts completed and those remaining tips toward completion of the substantive offense, considering the quality—not just the quantity—of the completed and remaining acts; and (4) the temporal frame of the scheme and the time the defendant would have needed to finish his plan had he not been interrupted because as completion of the offense becomes imminent, the reduction is less appropriate.
  • At the time of his arrest, Rodriguez-Leos was not on his way to deliver the ammo. He was shopping and did not have possession of the ammunition. There is no definitive evidence of a temporal timeframe because it is unclear when El Chivo would have called Rodriguez-Leos or when the crime would have been completed had the officers not seized the ammunition and arrested him.
  • The district court clearly erred in finding that Rodriguez-Leos completed all acts necessary and but-for the apprehension, was able to complete all the acts necessary for completion of the substantive offense of the exportation of ammunition. He did not have possession of the ammunition, nor was on his way to deliver it. The agents apprehended Rodriguez-Leos well before he or any co-conspirator had completed the acts necessary for the substantive offense, so the offense was not on the verge of completion. In both quantity and quality, the balance of the significant acts completed and those remaining does not tip toward completion of the substantive offense. 
  • The sentence is vacated and remanded for resentencing.

Editor’s note: the mystery of “El Chivo” remains. Hopefully Mr. Rodriguez-Leos learned his lesson and will never again traffic with a person known only as “The Goat.”

Texas Court of Criminal Appeals

Metcalf v. State, No. PD-1246-18, 2020 Tex.Crim.App. LEXIS 277 (Tex.Crim.App. April 1, 2020) (designated for publication)  (Sexual Assault of a child) [Party liability under Tex. Penal Code § 7.02(a)(3)]

  • Under Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997), the sufficiency of the evidence is measured by comparing the evidence produced at trial to the essential elements of the offense as defined by the hypothetically correct jury charge, which accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict theories of liability, and adequately describes the offense for which the defendant was tried. The law authorized by the indictment are the statutory elements as modified by indictment allegations. 
  • Under Tex. Penal Code § 7.02(a)(3), a person is criminally responsible for an offense committed by the conduct of another if…having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense. To prove the intent-to-promote-or-assist element, the State must show that it was the defendant’s conscious objective or desire for the primary actor to commit the crime. For evidence of intent, a court looks to events before, during and after the commission. Although a court may look to events after its commission, the intent to promote or assist must have been formed contemporaneously with—or before—the alleged crime was committed.  Circumstantial evidence is as probative as direct evidence when determining whether a person was a party to an offense. Party liability is as much an element of an offense as the enumerated elements prescribed in a statute that defines a crime.
  • Under Gonzales v. State, 304 S.W.3d 838 (Tex.Crim.App. 2010), “penetration of the anus or sexual organ” in the aggravated-sexual-assault statute defined two offenses because Aggravated Sexual Assault is a nature-of-conduct offense, penetration of the anus and penetration of the sexual organ are distinct acts, and “anus” and “sexual organ” are written in the disjunctive. The analysis is the same for Sexual Assault under Tex. Penal Code § 22.011(a)(1)(A), and “penetration of the anus or sexual organ” are different offenses and not merely two ways of committing the same offense.
  • A conviction must be reformed if: (1) in finding a defendant guilty of the greater offense, the jury necessarily found that the defendant committed the lesser offense, and (2) the evidence is legally sufficient to support the defendant’s conviction for the lesser offense. 

Facts:

  • Metcalf’s husband Allen began sexually abusing their daughter Amber when she was 13. In a voluntary statement, Metcalf said that once she woke at 2:30 a.m. when Allen came back to bed, claiming to be “checking on the kids,” which Metcalf found strange.
  • Amber did not tell anyone about the abuse at the time because Allen threatened to hurt her young siblings, and she believed him since he was already sexually abusing her.
  • Amber said that sometimes when she cried out at night, Metcalf would stand by her bedroom door and ask, “What’s going on?” When Allen left Amber’s room, he would tell Metcalf that Amber was having a nightmare. Amber stopped crying out because she thought that Metcalf was “letting it happen.”
  • When she was 15, Amber told Metcalf that Allen was a “monster” who was doing “bad things,” but she gave no details, and Metcalf did not ask what she meant.
  • When Amber was 16, she came home from jogging with Allen and was crying. Amber told Metcalf that Allen had slapped her and tried to pull down her shorts. Allen admitted to slapping Amber and trying to pull down her shorts but denied that it was sexual. He said that Amber started “whining about having to use the bathroom” a few minutes after they left the house, “so he took her behind a tree and pulled at her shorts.” Metcalf did not believe Allen that it was not sexual and kicked him out of the house, but she let him return later that day. She told police that even though she did not believe Allen, she had no proof. Metcalf gave Amber a cellphone and a whistle “in case Allen did something.” Metcalf told Amber to call her—not the police—if something happened. Metcalf also put up a beaded curtain on Amber’s bedroom door.
  • Once Metcalf left the house to stay at a motel for a night. Amber asked to go with her, but Metcalf would not let her. Amber did not know why, but it was suggested that it was because Metcalf had a migraine that day. Allen raped Amber that night.
  • A year later, Metcalf walked into Amber’s room and saw Allen on top of her, touching her vagina. Metcalf kicked him out of the house again. Allen repeatedly called Metcalf, begging to return. Metcalf called Amber and asked if Allen could return. She told her that she should think about the kids because they “need their dad.” Amber finally relented and agreed to let him return. Amber and Metcalf slept in the master bedroom while Allen slept on the couch. Allen never sexually assaulted her again.
  • When Amber was 19, she moved into her great aunt Emma’s house to work towards earning her GED. Blakeman learned of Allen’s sexual abuse a couple of years later when Amber was 22. Emma contacted Metcalf, and this was the first time Amber told Metcalf that Allen began sexually abusing her when she was 13. Emma and Amber went to the Sheriff’s Office and reported the abuse.
  • Allen pled guilty to 12 counts of second-degree Sexual Assault and three counts of Indecency with a Child.
  • Metcalf was indicted for Sexual Assault of a child for a 2010 alleged assault. She was charged as the primary actor, but the jury was instructed that it could convict her as a party.
  • The jury convicted Metcalf as a party, and she was sentenced to three years in prison.
  • The court of appeals reversed based on legal insufficiency, finding that to prove intent to promote or assist, the evidence must show that the parties were acting together, each doing some part of the execution of the common purpose, and the agreement to act must be made before or contemporaneous with the criminal event.
  • The court of appeals also found that the conviction cannot be reformed to Indecency with a Child because the evidence was insufficient to show that Metcalf had the intent to promote or assist the commission  of Indecency with a Child.

The Evidence was insufficient to prove that Metcalf had intent to promote or assist

  • Under Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997), the sufficiency of the evidence is measured by comparing the evidence produced at trial to the essential elements of the offense as defined by the hypothetically correct jury charge, which accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict theories of liability, and adequately describes the offense for which the defendant was tried. The law authorized by the indictment are the statutory elements as modified by indictment allegations. 
  • Under Tex. Penal Code § 7.02(a)(3), a person is criminally responsible for an offense committed by the conduct of another if…having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense. To prove the intent-to-promote-or-assist element, the State must show that it was the defendant’s conscious objective or desire for the primary actor to commit the crime. For evidence of intent, a court looks to events before, during and after the commission. Although a court may look to events after its commission, the intent to promote or assist must have been formed contemporaneously with—or before—the alleged crime was committed.  Circumstantial evidence is as probative as direct evidence when determining whether a person was a party to an offense. Party liability is as much an element of an offense as the enumerated elements prescribed in a statute that defines a crime.
  • Under Gonzales v. State, 304 S.W.3d 838 (Tex.Crim.App. 2010), “penetration of the anus or sexual organ” in the aggravated-sexual-assault statute defined two offenses because Aggravated Sexual Assault is a nature-of-conduct offense, penetration of the anus and penetration of the sexual organ are distinct acts, and “anus” and “sexual organ” are written in the disjunctive. The analysis is the same for Sexual Assault under Tex. Penal Code § 22.011(a)(1)(A), and “penetration of the anus or sexual organ” are different offenses and not merely two ways of committing the same offense.
  • A rational jury could have believed or disbelieved Amber’s testimony that she heard Allen tell Metcalf that Amber was just having nightmares, but there is no evidence from which a rational jury could have reasonably inferred that Metcalf did not believe Allen and that she knew he was sexually assaulting Amber.
  • While Amber’s statements to Metcalf that Allen was a “monster” and was doing “bad things” are incredibly troubling, they were too ambiguous to support a reasonable inference that Metcalf knew that Allen was sexually assaulting Amber. Amber never told Metcalf what she meant, and Metcalf never asked.
  • With respect to the jogging incident, the evidence was sufficient to show that Metcalf thought that Allen was sexually interested in Amber, but Metcalf’s belief does not support a reasonable inference that because Metcalf thought that it was sexual for Allen, she must have known that Allen had been sexually assaulting Amber or that he would in the future.
  • Although the whistle, cellphone, and beaded curtain that Metcalf gave to Amber were woefully inadequate, it tends to show that it was not Metcalf’s intent to promote or assist Allen in sexually assaulting Amber.  While a rational jury did not have to believe that Metcalf gave Amber the cellphone and whistle and put up the beaded curtain to protect her, there is no other evidence showing why Metcalf gave Amber those items and put the curtain up. Even if the jury disbelieved Metcalf, it could not have reasonably inferred from the disbelief that Metcalf gave Amber the cellphone and whistle because it was her intention to promote or assist in the commission of sexual assaults.
  • It is clear that Metcalf knew that Allen was sexually assaulting Amber when she walked into Amber’s room and saw Allen with his hand on Amber’s vagina a year after the charged offense, but it does not prove that Metcalf knew Allen was sexually assaulting Amber at the time of the charged offense, and there is no other evidence showing that it was Metcalf’s conscious objective or desire for Allen to sexually assault Amber, so she could not have intended to promote or assist the commission of that offense.
  • A conviction must be reformed if: (1) in finding a defendant guilty of the greater offense, the jury necessarily found that the defendant committed the lesser offense, and (2) the evidence is legally sufficient to support the defendant’s conviction for the lesser offense. 
  • The court of appeals was correct that the evidence did not show that Metcalf intended to promote or assist in the commission of Indecency with a Child. 
  • The evidence is insufficient to sustain Metcalf’s conviction for Sexual Assault of a child and the conviction cannot be reformed to reflect a lesser-included offense. The judgment of the court of appeals is affirmed, rendering an acquittal.

Ex parte Rodgers, No. WR-89,477-01, 2020 Tex.Crim.App.LEXIS 286 (Tex.Crim.App. April 8, 2020) (designated for publication) (Art. 11.07-proceeding) [Illegal sentence claim raised for the first time on habeas corpus; waiver by not objecting to a defective indictment; Parrott harmless error]

  • A defendant may raise an illegal sentence claim at any time, including for the first time in an initial application for writ of habeas corpus.
  • A defective indictment that purports to charge an offense and is facially an indictment, per Tex. Const. Art. V, § 12(b) is a valid indictment that is sufficient to vest the district court with subject-matter jurisdiction. 
  • When a defendant does not object to even a defective indictment that is facially an indictment, the defendant cannot later challenge its efficacy to invoke the jurisdiction of the district court. This follows Tex. Code Crim. Proc. Art. 1.14(b), which provides that if a defendant does not object to a defect, error, or irregularity of form or substance in an indictment before the date on which the trial on the merits commences, he waives the right to object to the defect, error, or irregularity and may not raise the objection on appeal or in any other postconviction proceeding.
  • Under Ex parte Parrott, 396 S.W.3d 531 (Tex.Crim.App. 2013), even errors that might affect jurisdiction are not automatically insulated from a harm analysis. Generally, an applicant must show harm to obtain habeas relief for an illegal sentence-claim based on the improper use of a prior conviction to enhance punishment. 
  • Under Flowers v. State, 220 S.W.3d 919, 921 (Tex.Crim.App. 2007), to prove up a prior conviction, the State must prove beyond a reasonable doubt: (1) its existence; and (2) that the defendant is linked to the conviction. Evidence linking a defendant to a prior conviction may be circumstantial and may be proved in different ways, including by the defendant’s admission.

Facts:

  • Applicant was indicted for DWI per Tex. Penal Code § 49.04, enhanced to an F-3 per Tex. Penal Code § 49.09(b)(2) because of two prior alleged DWI convictions, enhanced to habitual-offender status under Tex. Penal Code § 12.42(d) to 25-99 years because of two additional DWI convictions, both of which were felonies.
  • Under a plea-agreement in which the State abandoned one of the alleged convictions to obtain habitual-offender status, Applicant pleaded guilty to an F-2. He was admonished about the range of punishment for an F-2 and was sentenced to 15 years TDCJ. Applicant did not appeal.
  • Applicant filed an application for writ of habeas corpus under Tex. Code Crim. Proc. Art. 11.07, arguing that the indictment authorized only a misdemeanor DWI because the State made a mistake in its allegation of the second jurisdictional prior DWI by alleging the same prior conviction twice with a slight variation in the cause numbers: F-9652378-IW, which was genuine, and F-9652378-HW, which did not exist.
  • Applicant’s trial counsel provided an affidavit—found credible by the trial court—explaining that his pretrial investigation revealed that the State had indeed used the nonexistent cause number, but Applicant had two other DWI convictions not alleged in the indictment: F-9949146 and F-9553407. Applicant was on probation in F-9553407 when on November 10, 1999, he was convicted in F-9949146, and his probation in F-9553407 was revoked. Trial counsel believed that either unpled priors would have been available for use as jurisdictional enhancements and could have been alleged in place of the nonexistent F-9652378-HW to raise Applicant’s present offense to an F-3. Thus, filing a motion to quash the indictment would have been poor strategy because the unpled priors would have been available to be substituted as jurisdictional-enhancement allegations and Applicant had the plea-offer in which the State agreed to abandon one of the enhancement-paragraphs and seek only 15 years. Ultimately, despite knowing about the flaw in the indictment, Applicant accepted the State’s offer.

Applicant failed to show harm in the defective indictment

  • A defendant may raise an illegal sentence claim at any time, including for the first time in an initial application for writ of habeas corpus.
  • A defective indictment that purports to charge an offense and is facially an indictment, per Tex. Const. Art. V, § 12(b) it is a valid indictment that is sufficient to vest the district court with subject-matter jurisdiction. 
  • When a defendant does not object to even a defective indictment that is facially an indictment, the defendant cannot later challenge its efficacy to invoke the jurisdiction of the district court. This follows Tex. Code Crim. Proc. Art. 1.14(b), which provides that if a defendant does not object to a defect, error, or irregularity of form or substance in an indictment before the date on which the trial on the merits commences, he waives the right to object to the defect, error, or irregularity and may not raise the objection on appeal or in any other postconviction proceeding.
  • Under Ex parte Parrott, 396 S.W.3d 531 (Tex.Crim.App. 2013), even errors that might affect jurisdiction are not automatically insulated from a harm analysis. Generally, an applicant must show harm to obtain habeas relief for an illegal sentence-claim based on the improper use of a prior conviction to enhance punishment. 
  • Under Flowers v. State, 220 S.W.3d 919, 921 (Tex.Crim.App. 2007), to prove up a prior conviction, the State must prove beyond a reasonable doubt: (1) its existence; and (2) that the defendant is linked to the conviction. Evidence linking a defendant to a prior conviction may be circumstantial and may be proved in different ways, including by the defendant’s admission.
  • The circumstantial evidence supports the convicting court’s finding that the State could have used F-9949146 or F-9553407 in place of the nonexistent F-9652378-HW to cross the jurisdictional divide from misdemeanor DWI to F-3 DWI.
  • Despite having knowledge of the problems with the indictment, Applicant accepted the State’s plea-offer and did not challenge the prior convictions pretrial.
  • The Parrott harmless-error analysis applies, and Applicant failed to meet his burden to show that he was harmed by the invalid enhancement. Relief is denied.

Tracy v. State, No. AP-77,076, 2020 Tex.Crim.App. LEXIS 276 (Tex.Crim.App. April 1, 2020) (designated for publication) (Capital Murder) [No hybrid representation under the Texas Const.; change of venue]

  • Under Tex. Const. Art. I, § 10, the constitutional right of a defendant to be “heard” is to assure the right to testify, not to engage in hybrid representation, and was not intended to encompass the right to self-representation as held in Faretta v. California, 422 U.S. 806 (1975).
  • A change of venue may be granted if the defendant establishes that there exists in the county where the prosecution is commenced so great a prejudice against him that he cannot obtain a fair and impartial trial. A change of venue based on media attention requires a showing that the publicity was “pervasive, prejudicial, and inflammatory.” Widespread publicity by itself is not inherently prejudicial. A defendant must demonstrate an actual, identifiable prejudice attributable to pretrial publicity on the part of the community from which members of the jury will come. A ruling on a motion for change of venue is for an abuse of discretion and will be upheld if it falls within the zone of reasonable disagreement. The primary means of discerning whether publicity is pervasive are a hearing on the motion to change venue and testimony during voir dire.

Facts:

  • Appellant was in prison because in 1998, he entered the home of 16-year-old Kasey Kuhn through an open window and demanded sex. Biting and hitting him, Kuhn refused. Appellant covered her face with a pillow and choked her until he thought she was dead. Appellant dropped her out of her window, put her in his car, and drove around. When Kuhn regained consciousness, Appellant beat her until she lost consciousness. He pulled her out of the car and dragged her into the woods.
  • Officer Britt noticed Appellant’s car on the side of the road, found the situation suspicious, got out of his car, and heard “help me help me.” He saw Appellant on the ground by the car with blood on his hands and believed that he was drunk. Britt pulled his weapon and approached Appellant. Appellant ran away and broke into and hid in several homes, stealing cash and jewelry.
  • Britt noticed Kuhn, covered in blood with her throat slit. Kuhn was transported to the hospital where she was treated for a broken orbital bone, broken nose, and lost teeth. She underwent surgery to have a plate inserted in her face to hold the bones together. She suffered debilitating migraines and permanent injury to her vision.
  • While awaiting trial, Appellant was involved in numerous incidents at Rockwall County Jail, including throwing feces and urine at officers, threatening inmates and officers, attacking inmates, and possessing contraband. One officer described him as “the most difficult inmate he ever had to deal with.” Appellant also attempted to escape by slipping his handcuffs off, taking an officer’s gun, firing, and missing.
  • Appellant was convicted of Aggravated Assault, Assault on a public servant, and Burglary of a habitation. He was sentenced to life.
  • At the Allred Unit, Appellant committed 27 assaults on officers, threatened to kill them, threw darts at them, and was caught in possession of contraband so often that his cell was searched every 4 hours. Chemical agents were used many times to subdue him. Appellant converted a welding rod into a shank and stabbed an officer in the shoulder, causing his transfer to the Clements Unit.
  • At the Clements Unit, Appellant attacked Officer Katie Stanley with a metal shank, kicked her in the head, and unsuccessfully tried to throw her over the railing of the 3rd floor. A video of this assault was created to show new officers during training. Appellant pleaded guilty to Aggravated Assault with a deadly weapon on a public servant, Aggravated Assault causing SBI on a public servant, and Possession of a Deadly Weapon in a Penal Institution. He received 45 years and was transferred to the Robertson Unit.
  • At the Robertson Unit, Appellant was found in possession of contraband like needles, screwdrivers, protractors, sandpaper, razor blades, and sharpened metal. He tampered with a lock and threatened officers. He slashed the face of Officer Lomas with a weapon made from razor blades, requiring 200 stitches. Appellant received a 10-year sentence for Assault on a public servant and was transferred to the Hughes Unit.
  • At the Hughes Unit, Appellant was found in possession of contraband, defeated the facility’s x-ray machine, planned an escape, was found in possession of escape-tools like sandpaper, saw blades, and a homemade Dremel tool. Appellant was transferred to the Telford Unit.
  • At the Telford Unit, Appellant was in administrative segregation. He was escorted by an officer to recreation, where he stretched to prepare his assault on Officer Davison, an officer in segregation. Appellant was escorted back to his cell by Davison, who had chemical spray and a metal slot bar used to open cell doors and food tray slots. As Appellant was escorted, he manipulated his hand restraints and placed them both on his right wrist. When Davison opened Appellant’s cell door, Appellant struck him with his fists until Davison was knocked to the floor. Appellant grabbed the metal slot bar and struck him in the head until he became incapacitated. Appellant continued to strike Davison with the metal bar after he lost consciousness. Appellant  removed the chemical spray from Davison’s belt, grabbed him by his legs, and threw him down the staircase. Appellant threw the slot bar down the stairs and sprayed the spray towards Davison before walking back to his cell and closing the door behind him. Davidson died shortly later at a hospital. DNA-analysis of the slot bar and Appellant’s shoes show a mixture profile that was 3.24 sextillion times more likely to be DNA from Davison and Appellant than two unrelated, unknown individuals. The assault was on video.
  • An extraction team removed Appellant from his cell, and he was placed in a separate holding cell. Appellant made numerous comments to officers about how the staff were “stupid” for not having a lieutenant guard his cell and that this is “just what [he] does.” He told one officer, “yeah I beat [Davison’s] ass why do you care it’s not like y’all are friends,” and said “maybe next time” it would be another officer. Appellant claimed that he could hurt anyone in prison any time he wanted. Officers described Appellant as extremely violent, unpredictable, manipulative, problematic, and resistant to authority.
  • Before trial, Appellant filed a motion to transfer venue from Bowie County, arguing that the Telford Unit is an important economic entity in the county, creating a likelihood that a fair and impartial trial would be impossible.
  • At the hearing, the defense investigator testified to media coverage by print and digital newspapers and social media, including online comments made by correctional employees and other county residents. He acknowledged that he could not estimate how many people saw or read these articles and comments. He also agreed that the facts reported accurately depicted the incident between Appellant and Davison.
  • The Bowie County Judge testified that there are nearly 100,000 residents in Bowie County, and none had contacted him about the case. He also believed Appellant could receive a fair and impartial trial in Bowie County, that there was not excessive prejudicial opinion among county citizens, and the news coverage was not prejudicial or inflammatory.
  • The motion to transfer venue was denied.
  • Appellant filed numerous pro se pretrial motions. At a hearing, the trial court said that Appellant was not entitled to hybrid representation and refused to rule on any of the pro se motions that appointed counsel had not reviewed.
  • The jury found Appellant guilty of Capital Murder, then returned the special verdict answering “yes” to special issue 1 and “no” to special issue 2. The judge sentenced Appellant to death.

The trial court did not commit structural error by denying Appellant’s request for hybrid representation in violation of the Texas Constitution

  • Under Tex. Const. Art. I, § 10, the constitutional right of a defendant to be “heard” is to assure the right to testify, not to engage in hybrid representation, and was not intended to encompass the right to self-representation as held in Faretta v. California, 422 U.S. 806 (1975).
  • There was no structural error in the trial court denying Appellant’s request for hybrid representation.

The trial court did not err in denying the motion to change venue

  • A change of venue may be granted if the defendant establishes that there exists in the county where the prosecution is commenced so great a prejudice against him that he cannot obtain a fair and impartial trial. A change of venue based on media attention requires a showing that the publicity was “pervasive, prejudicial, and inflammatory.” Widespread publicity by itself is not inherently prejudicial. A defendant must demonstrate an actual, identifiable prejudice attributable to pretrial publicity on the part of the community from which members of the jury will come. A ruling on a motion for change of venue is for an abuse of discretion and will be upheld if it falls within the zone of reasonable disagreement. The primary means of discerning whether publicity is pervasive are a hearing on the motion to change venue and testimony during voir dire.
  • Evidence supports the conclusion that the media coverage was not extensive, inflammatory, or prejudicial to such an extent that a fair and impartial trial would be impossible. Although there were print and digital newspaper articles and social media posts relating to the case, there was no estimate of how many people in Bowie County received or read those articles. Testimony showed that many commenting, posting, and responding to the articles were not county residents and would not be in the jury pool. Furthermore, news stories that are accurate and objective in their coverage are generally considered not to be prejudicial or inflammatory.
  • A large part of the jury pool lives in the Texarkana area, so those summoned would not necessarily live near the prison.
  • The trial judge acted within the zone of reasonable disagreement in denying the motion to change venue.
  • The judgment of the trial court is affirmed.

Editor’s note: not included are several death-penalty-specific issues regarding voir dire and punishment that may be of interest to death-penalty practitioners.

Texas Courts of Appeals

Ex parte Moon, No. 01-18-01014-CR, 2020 Tex.App.-LEXIS 1397 (Tex.App.-Houston [1st Dist.] Feb. 20, 2020) (designated for publication) (Pretrial habeas corpus) [Juvenile discretionary transfers; sufficiency of the evidence in habeas cases; double jeopardy]

  • Under Tex. Fam. Code §§ 51.02(2)(A) & 51.04(a), juvenile courts have exclusive original jurisdiction over cases involving delinquent conduct by children ages 10-17 under the Juvenile Justice Code (Tex. Fam. Code §§ 51.01-61.107).
  • Under Tex. Fam. Code  § 54.02(a), a juvenile court may waive its exclusive original jurisdiction and allow transfer of the proceeding to a district court. 
  • If the juvenile is under 18, the court must find: (1) a felony was committed; (2) the child was: (A) 14 or older when the offense was committed if it is a capital, aggravated controlled substance, or F-1, and no adjudication hearing was conducted; or (B) 15 or older when the offense was committed if it is an F-2, F-3, or SJF, and no adjudication hearing was conducted; and (3) after investigation and hearing, the court determines there is probable cause to believe that the child committed the offense and because of its seriousness or his background, the welfare of the community requires transfer, which requires consideration of:
  • (i) whether the offense was against person or property, with greater weight given to offenses against the person;
  • (ii) sophistication and maturity of the child;
  • (iii) previous history of the child; and
  • (iv) prospects of adequate protection of the public and the likelihood of rehabilitation by use of procedures, services, and facilities available to the juvenile court.
  • If he is 18 or older, the court may waive jurisdiction if it finds:
  • (1) he 18 or older;
  • (2) he was: (A) 10 or older and under 17 when a capital felony or Murder was committed; (B) 14 or older and under 17 when an aggravated controlled substance or F-1 other than Murder was committed; or (C) 15 or older and under 17 when an F-2, F-3, or SJF was committed;
  • (3) no adjudication was made, and no hearing was conducted;
  • (4) the court finds from a preponderance of the evidence that: (A) for a reason beyond the control of the state it was not practicable to proceed in juvenile court before his 18th birthday; or (B) after due diligence of the state it was not practicable to proceed in juvenile court before his 18th birthday because: (i) the state did not have probable cause to proceed in juvenile court and new evidence was found after he turned 18; (ii) he could not be found; or (iii) a previous transfer order was reversed by an appellate court or set aside by a district court; and (5) the court determines there is probable cause to believe that the child committed the offense alleged.
  • An attack on the sufficiency of the evidence to support transfer under Tex. Fam. Code  § § 54.02(j) is not cognizable on pretrial writ of habeas corpus because there is an adequate remedy by appeal if the transfer order was entered on or after September 1, 2015, so Tex. Code Crim. Proc. Art. 44.47 applies, which requires the transfer-decision to be reviewed on direct appeal. 
  • Under the Double Jeopardy Clause of the Fifth Amendment, applicable to the states through the Due Process Clause of the Fourteenth Amendment, protects an accused from being placed twice in jeopardy for the same offense. Under Lockhart v. Nelson, 488 U.S. 33, 40-41 (1988), the Double Jeopardy Clause protects defendants from: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. Although the Double Jeopardy Clause precludes retrial of a defendant whose conviction is reversed on appeal because of insufficient evidence, it does not preclude retrial when the conviction is reversed on appeal for trial error. 

Facts:

  • On November 19, 2008 when Moon was 16, the State filed a petition alleging that Moon engaged in delinquent conduct by committing Murder. The State also filed a motion under Tex. Fam. Code § 54.02(a) and (f) asking the juvenile court to waive its exclusive original jurisdiction and transfer Moon to the district court, alleging that because of the seriousness of the offense, the welfare of the community required waiver of juvenile jurisdiction.
  • On December 17, 2008, the juvenile court held a certification hearing and granted the State’s motion to waive jurisdiction.
  • On December 18, 2008, the juvenile court signed an order waiving jurisdiction and transferring the case to the District Court. The order stated that the court determined that there is probable cause to believe that the child committed Murder and because of the seriousness of it, the welfare of the community requires it. The order also found that the offense was against a person, the sophistication and maturity of Moon, his record and previous history, and prospects of adequate protection of the public and likelihood of reasonable rehabilitation.
  • On April 19, 2010, the jury convicted Moon of Murder and assessed punishment at 30 years.
  • On direct appeal, the court of appeals held that the juvenile court abused its discretion in waiving jurisdiction and certifying Moon, vacated the judgment, and dismissed the criminal proceedings. 
  • The TCCA affirmed, holding that to waive original jurisdiction, a juvenile court must state the reasons for waiving and the findings of fact that support the reasons. Failure to do so may result in a finding of insufficient evidence to support the waiver. The only reason stated in the juvenile court’s order to justify waiver was that the offense alleged was serious, and the only fact supporting it was that the offense alleged was committed against a person. 
  • Upon remand to the juvenile court, the State filed a second motion to waive jurisdiction, this time per Tex. Fam. Code § 54.02(j), which applies to those who are 18 or older at the time of the certification hearing. Moon moved to dismiss the juvenile proceeding.
  • At the certification hearing on April 9, 2015, Moon argued that the State could not prove the elements of § 54.02(j) and it violated his constitutional rights to due process, equal protection, and double jeopardy. The juvenile court granted the State’s second motion, recertified Moon, and denied Moon’s motion to dismiss. 
  • On May 7, 2015, the juvenile court signed an order waiving jurisdiction, transferring the case to district court, and found: (1) Moon is 18 years or older; (2) Moon was 10 or older and under 17 when he allegedly committed Murder; (3) no adjudication has been made and no hearing has been conducted; (4) by a preponderance of the evidence after due diligence of the State, it was not practicable to proceed in juvenile court before his 18th birthday because a previous transfer order was reversed; and (5) that there is probable cause to believe that Moon committed Murder.
  • On September 23, 2015, a grand jury indicted Moon for Murder.
  • On June 7, 2018, Moon filed an application for a pretrial writ of habeas corpus challenging the constitutionality of Tex. Fam. Code § 54.02(j) and Tex. Code Crim. Proc. Art. 44.47.
  • On October 24, 2018, the district court denied the application.

Law on discretionary transfers

  • Under Tex. Fam. Code §§ 51.02(2)(A) & 51.04(a), juvenile courts have exclusive original jurisdiction over cases involving delinquent conduct by children ages 10-17 under the Juvenile Justice Code (Tex. Fam. Code §§ 51.01-61.107).
  • Under Tex. Fam. Code  § 54.02(a), a juvenile court may waive its exclusive original jurisdiction and allow transfer of the proceeding to a district court. 
  • If the juvenile is under 18, the court must find: (1) a felony was committed; (2) the child was: (A) 14 or older when the offense was committed if it is a capital, aggravated controlled substance, or F-1, and no adjudication hearing was conducted; or (B) 15 or older when the offense was committed if it is an F-2, F-3, or SJF, and no adjudication hearing was conducted; and (3) after investigation and hearing, the court determines there is probable cause to believe that the child committed the offense and because of its seriousness or his background, the welfare of the community requires transfer, which requires consideration of:
  • (i) whether the offense was against person or property, with greater weight given to offenses against the person;
  • (ii) sophistication and maturity of the child;
  • (iii) previous history of the child; and
  • (iv) prospects of adequate protection of the public and the likelihood of rehabilitation by use of procedures, services, and facilities available to the juvenile court.
  • If he is 18 or older, the court may waive jurisdiction if it finds:
  • (1) he 18 or older;
  • (2) he was: (A) 10 or older and under 17 when a capital felony or Murder was committed; (B) 14 or older and under 17 when an aggravated controlled substance or F-1 other than Murder was committed; or (C) 15 or older and under 17 when an F-2, F-3, or SJF was committed;
  • (3) no adjudication was made, and no hearing was conducted;
  • (4) the court finds from a preponderance of the evidence that: (A) for a reason beyond the control of the state it was not practicable to proceed in juvenile court before his 18th birthday; or (B) after due diligence of the state it was not practicable to proceed in juvenile court before his 18th birthday because: (i) the state did not have probable cause to proceed in juvenile court and new evidence was found after he turned 18; (ii) he could not be found; or (iii) a previous transfer order was reversed by an appellate court or set aside by a district court; and (5) the court determines there is probable cause to believe that the child committed the offense alleged.
  • Under Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App. 2006), review a trial court’s ruling on a pretrial writ of habeas corpus is for an abuse of discretion. Facts are viewed in the light most favorable to the trial court’s ruling. 

An attack on the sufficiency of a discretionary transfer is not cognizable on habeas corpus

  • An attack on the sufficiency of the evidence to support transfer under Tex. Fam. Code  § § 54.02(j) is not cognizable on pretrial writ of habeas corpus because there is an adequate remedy by appeal if the transfer order was entered on or after September 1, 2015, so Tex. Code Crim. Proc. Art. 44.47 applies, which requires the transfer-decision to be reviewed on direct appeal. 
  • Because Moon has an adequate remedy by direct appeal of the discretionary transfer decision under Art. 44.47, he may not use a pretrial writ of habeas corpus to appeal prematurely sufficiency challenges.

Double jeopardy was not violated

  • Under the Double Jeopardy Clause of the Fifth Amendment, applicable to the states through the Due Process Clause of the Fourteenth Amendment, protects an accused from being placed twice in jeopardy for the same offense. Under Lockhart v. Nelson, 488 U.S. 33, 40-41 (1988), the Double Jeopardy Clause protects defendants from: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. Although the Double Jeopardy Clause precludes retrial of a defendant whose conviction is reversed on appeal because of insufficient evidence, it does not preclude retrial when the conviction is reversed on appeal for trial error. 
  • Here, the first order certifying Moon was reversed because the transfer order itself was defective and not because the evidence against him was insufficient. Because Moon’s prior conviction for Murder was reversed due to trial error and not insufficient evidence, double jeopardy does not preclude the juvenile court from waiving jurisdiction and recertifying Moon as an adult. 
  • The denial of Moon’s pretrial writ of habeas corpus is affirmed.

In re M.T.R., No. 01-18-00938-CV, 2020 Tex.App.-LEXIS 1649 (Tex.App.-Houston [1st Dist.] Feb. 27, 2020) (designated for publication) (Expunction proceedings) [Same criminal episode in expunction proceedings]

  • Under State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018), a ruling on a petition for expunction is reviewed for an abuse of discretion. A trial court abuses its discretion if it acts arbitrarily or unreasonably without reference to guiding rules and principles of law. Legal determinations are reviewed de novo. Deference is afforded to factual issues resolved by the trial court.
  • Under State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018), statutes are analyzed as a cohesive, contextual whole with the goal of effectuating Legislative intent and employing the presumption that the Legislature intended a just and reasonable result. Appellate analysis is limited to application of the plain meaning of the statutory language unless a different meaning is apparent from the context or the plain meaning leads to absurd or nonsensical results.
  • Under Tex. Code Crim. Proc. Art. 55.01(c), a court may not order the expunction of records relating to an arrest for an offense for which a person is subsequently acquitted—whether by the trial court appellate court—if the offense arose out of a criminal episode per Tex. Penal Code § 3.01, and was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode.  Under Tex. Penal Code § 3.01, criminal episode means the commission of two or more offenses—regardless of whether the harm is directed toward or inflicted upon more than one person or property—if they are: (1) committed in the same transaction that are connected or constitute a common scheme or plan; or (2) the repeated commission of the same or similar offenses.
  • Tex. Penal Code § 3.01(2) does not impose a time frame within which the same or similar offenses must be repeated. A criminal episode may include multiple arrests or transactions. Nor does it require that the offenses be committed within a geographic location or jurisdiction or that they be committed in the same or similar fashion. It requires only that they are repeated commission of the same or similar offense. The court presumes that the Legislature chose this language “with care” and its decision to omit language imposing a time frame or other limitations on the definition of a criminal episode was purposeful. 

Facts:

  • In 2012, M.T.R. was arrested for BWI. He pleaded guilty, was convicted, and served 3 days in jail.
  • In 2015, M.T.R. was arrested and charged with DWI-2nd. A jury found M.T.R. not guilty.
  • In 2018, M.T.R. filed a petition for expunction seeking to have records of the 2015 DWI-arrest expunged.
  • DPS answered that M.T.R. is barred from expunging those records because M.T.R. was convicted of an offense arising out of the “same criminal episode.”
  • The trial court granted M.T.R.’s petition and DPS appealed.

M.T.R. is not entitled to expunge his 2015 DWI arrest

  • Under State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018), a ruling on a petition for expunction is reviewed for an abuse of discretion. A trial court abuses its discretion if it acts arbitrarily or unreasonably without reference to guiding rules and principles of law. Legal determinations are reviewed de novo. Deference is afforded to factual issues resolved by the trial court.
  • Under State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018), statutes are analyzed as a cohesive, contextual whole with the goal of effectuating Legislative intent and employing the presumption that the Legislature intended a just and reasonable result. Appellate analysis is limited to application of the plain meaning of the statutory language unless a different meaning is apparent from the context or the plain meaning leads to absurd or nonsensical results.
  • Under Tex. Code Crim. Proc. Art. 55.01(c), a court may not order the expunction of records relating to an arrest for an offense for which a person is subsequently acquitted—whether by the trial court appellate court—if the offense for which the person was acquitted arose out of a criminal episode per Tex. Penal Code § 3.01, and was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode.  Under Tex. Penal Code § 3.01, criminal episode means the commission of two or more offenses—regardless of whether the harm is directed toward or inflicted upon more than one person or property—if they are: (1) committed in the same transaction that are connected or constitute a common scheme or plan; or (2) the repeated commission of the same or similar offenses.
  • Tex. Penal Code § 3.01(2)’s plain language does not impose a time frame within which the same or similar offenses must be repeated. A criminal episode may include multiple arrests or transactions. Nor does it require that the offenses be committed within a geographic location or jurisdiction or that they be committed in the same or similar fashion. It requires only that they are repeated commission of the same or similar offense. The court presumes that the Legislature chose this language “with care” and its decision to omit language imposing a time frame or other limitations on the definition of a criminal episode was purposeful. 
  • M.T.R.’s 2015 DWI arrest is the repeated commission of the same or similar offense as his 2012 BWI conviction. 
  • M.T.R. is not entitled to an expunction. The trial court’s expunction order is reversed, and judgment is rendered denying M.T.R.’s petition for expunction related to his 2015 DWI arrest.

Editor’s note: opinions like this ensure continued employment in DPS’s expunction-opposition division.

Spielbauer v. State, No. 07-18-00028-CR, 2020 Tex.App.-LEXIS 591 (Tex.App.-Amarillo Jan. 22, 2020) (Murder) [Preservation of challenges for cause]

  • Under Thomas v. State, 408 S.W.3d 877, 884 (Tex.Crim.App. 2013) and Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App. 1992), preservation of error is not an inflexible concept and should not be mechanically applied. The standards of procedural default are not to be implemented by splitting hairs. All a party must do to avoid forfeiture of a complaint is to let the trial judge know what he wants and why he thinks he is entitled to it clearly enough for the judge to understand him at a time when the trial court is in a position to do something about it.
  • Under Tex. Code Crim. Proc. Art. 35.16(a), a prospective juror may be challenged for cause by making an objection alleging some fact that renders the juror incapable or unfit to serve on the jury. Per Art. 35.16(a)(10), a challenge for cause may be made by either party alleging that from hearsay or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant that influences the juror in finding a verdict. To ascertain whether this cause of challenge exists, the juror must first be asked whether in his opinion the conclusion influences his verdict. If the juror answers yes, he shall be discharged without further interrogation by either party or the court. If the juror answers no, he shall be further examined as to how his conclusion was formed and the extent to which it will affect his action.
  • Under Johnson v. State, 43 S.W.3d 1, 5 (Tex.Crim.App. 2001), failure to discharge a venire member subject to a proper challenge for cause results in error as a matter of law.  
  • Under Tex. Code Crim. Proc. Art. 35.14, a peremptory challenge is a challenge to a member of the jury panel without assigning a reason. It may be made for any reason or for no reason at all. In a noncapital felony case or in a capital case that the State does not seek death, the parties are each entitled to 10 peremptory challenges. After voir dire is complete, the parties shall strike the name of such juror from the list. Each party’s list is delivered to the clerk who calls off the first 12 names not stricken. 
  • Under Buntion v. State, 482 S.W.3d 58, 83 (Tex.Crim.App. 2016), if the trial court errs in overruling a challenge for cause, the appellant must show that he was harmed because he was forced to use a peremptory challenge to remove that member and he suffered a detriment from the loss of that peremptory challenge. To preserve the issue and show harm, the defendant must: (1) make challenges for cause, (2) use peremptory strikes on the complained-of venire members, (3) exhaust all peremptory strikes, (4) request and be denied additional peremptory strikes, and (5) identify the objectionable jurors who sat  on the jury. 

Facts

  • Appellant and Robin were married in 2005. Years later they befriended Katie with whom Appellant began having an affair.
  • In 2012, Robin divorced Appellant. A year later, he married Katie.
  • In 2014, Katie suspected that Appellant and Robin were having an affair. Robin and Katie’s relationship was acrimonious.
  • On April 8, 2014, Robin’s body was discovered by passers-by near her Tahoe on a dirt road.
  • Robin suffered blunt-force trauma and was shot in the back of the head. Pink plastic pieces found at the scene and pink smears transferred onto the window of the Tahoe matched a pink gun owned by Katie.
  • Forensics confirmed that Katie’s pink gun was the murder weapon.
  • Katie was charged with the murder.
  • Before Appellant became a suspect, he retained attorneys to enter into a Use Immunity Agreement with the DA’s Office regarding the case against Katie. Under it, if Appellant gave truthful and complete information about Robin’s death, the information would not be used against him in a prosecution. Otherwise, the agreement would be void. Based on this Agreement, Appellant cooperated.
  • More than a year after Katie was arrested, she was ruled out as a suspect by cellphone forensics, which determined that Katie could not have been where Robin was killed.
  • Appellant became the suspect when experts placed his cellphone near the scene at about the time of Robin’s death, and they located an image of Appellant’s vehicle on a bank’s security camera near the scene and close to the time of death.
  • This evidence contradicted statements Appellant made and showed that he had the opportunity to commit the murder and return home even though he claimed he never left home that night.
  • Authorities theorized Appellant killed Robin with Katie’s pink gun to frame her. Investigators obtained text messages suggesting that Appellant and Robin had planned to meet that night where her body was discovered. When the investigators confronted Appellant, his stories and timelines varied from earlier statements.
  • The grand jury indicted Appellant for capital murder with an underlying felony of Robbery.
  • Venire members were given a questionnaire containing 32 questions that began with a section captioned “AWARENESS OF CASE” with this agreed summary: “It is alleged that…Robin…was shot to death by (Appellant). Robin… was found the next day lying next to an SUV…”  The questionnaire then asked: “(1) Do you think you heard about this case? If yes, give details; and (2) If you heard about this case, based upon what you heard, have you formed an opinion as to (Appellant’s) guilt or innocence that would influence you in finding a verdict?”
  • Six members answered “yes” in response to question 2. Trial counsel argued they were “automatically disqualified” from serving and no further questioning is to be had. The State was not opposed to excusing members who held the position but argued that they could not tell from a simple “yes or no” answer.
  • The trial court requested the clerk to summon the 6 venire members, including Freethy and Havlik. 4 of them were excused by agreement.
  • Freethy said he watches news every day and heard about it but doesn’t remember much. He was not sure why he answered “yes” to question 2. Appellant made an Art. 35.16(a)(10) objection, but the trial court did not provide a ruling.
  • Havlik answered “No” when asked if he had already “formed an opinion. No further questions were permitted to be asked and Havlik was excused from the courtroom. Appellant made an Art. 35.16(a)(10) objection but was overruled. At this point, the trial court also overruled the objection as to Freethy.
  • Appellant renewed his challenge to Freethy and Havlik, which were overruled. He asked for two additional peremptory challenges for the overruled objections, which was denied. Appellant was forced to use two peremptory challenges to strike Freethy and Havlik.
  • Stoffle and Cooper were also objectionable to Appellant, but he was unable to strike them because he did not receive the two additional peremptory challenges.
  • Appellant was convicted and sentenced to life.

Appellant preserved the issue for appeal

  • Under Thomas v. State, 408 S.W.3d 877, 884 (Tex.Crim.App. 2013) and Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App. 1992), preservation of error is not an inflexible concept and should not be mechanically applied. The standards of procedural default are not to be implemented by splitting hairs. All a party must do to avoid forfeiture of a complaint is to let the trial judge know what he wants and why he thinks he is entitled to it clearly enough for the judge to understand him at a time when the trial court is in a position to do something about it.
  • When the objections were made, the members selected had not been sworn and empaneled and the pool was not released. Additional jurors were available, and the trial court could have avoided reversible error by granting the two additional peremptory challenges.
  • Requiring a defendant to identify the venire members he would strike through the use of additional peremptory challenges prior to the exercise of peremptory challenges places him at a disadvantage to the State by requiring that he “tip his hand” as to which members he might find objectionable.
  • Appellant was not attempting to exercise peremptory challenges against Stoffle and Cooper after the clerk called the names of the seated members. He was merely advising the trial court of the objectionable jurors he was forced to accept because he was required to use two peremptory challenges to strike jurors who should have excused for cause. The trial court was aware of the objection at a time and in a manner when it could have been corrected. Appellant preserved the complaint. 

The trial court abused its discretion in denying his challenges for cause as to Freethy and Havlik

  • Under Tex. Code Crim. Proc. Art. 35.16(a), a prospective juror may be challenged for cause by making an objection alleging some fact that renders the juror incapable or unfit to serve on the jury. Per Art. 35.16(a)(10), a challenge for cause may be made by either party alleging that from hearsay or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant that influences the juror in finding a verdict. To ascertain whether this cause of challenge exists, the juror must first be asked whether in his opinion the conclusion influences his verdict. If the juror answers yes, he shall be discharged without further interrogation by either party or the court. If the juror answers no, he shall be further examined as to how his conclusion was formed and the extent to which it will affect his action.
  • Under Johnson v. State, 43 S.W.3d 1, 5 (Tex.Crim.App. 2001), failure to discharge a venire member subject to a proper challenge for cause results in error as a matter of law.  
  • Under Tex. Code Crim. Proc. Art. 35.14, a peremptory challenge is a challenge to a member of the jury panel without assigning a reason. It may be made for any reason or for no reason at all. In a noncapital felony case or in a capital case in which the State does not seek the death, the parties are each entitled to 10 peremptory challenges. After voir dire is complete, the parties shall strike the name of such juror from the list. Each party’s list is delivered to the clerk who calls off the first 12 names not stricken. 
  • Under Buntion v. State, 482 S.W.3d 58, 83 (Tex.Crim.App. 2016), if the trial court errs in overruling a challenge for cause, the appellant must show that he was harmed because he was forced to use a peremptory challenge to remove that member and he suffered a detriment from the loss of that peremptory challenge. To preserve the issue and show harm, the defendant must: (1) make challenges for cause, (2) use peremptory strikes on the complained-of venire members, (3) exhaust all peremptory strikes, (4) request and be denied additional peremptory strikes, and (5) identify the objectionable jurors who sat  on the jury. 
  • The record shows that prior to the petit jury being seated and sworn, Appellant: (1) requested two additional peremptory challenges for the peremptory challenges he was forced to use on Freethy and Havlik, (2) was denied any peremptory challenges, (3) used peremptory challenges on Freethy and Havlik, (4) exhausted his remaining 8 peremptory challenges, and (5) was forced to accept Stoffle and Cooper whom he would have otherwise struck had he been given the 2 additional peremptory challenges.
  • Appellant was harmed by the trial court’s error.

The trial court’s judgment is reversed, and the case is remanded to the trial court for further proceedings.

TCDLA
TCDLA
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.
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