March 2012 SDR – Voice for the Defense Vol. 41, No. 2

Voice for the Defense Volume 41, No. 2 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

The Court unanimously rejected the comparable-grounds approach to determining whether a noncitizen convicted of a crime and facing deportation or removal can obtain relief under former Immigration and Nationality Act § 212(c). Judulang v. Holder, 132 S. Ct. 476 (2011)

        The U.S. Government initiated deportation proceedings against a resident alien who entered the United States in 1974, pled guilty to voluntary manslaughter in 1988, and pled guilty to a theft crime in 2005. The Board of Immigration Appeals (BIA) applied the comparable-grounds approach in deciding whether the alien was allowed to seek relief from deportation under former § 212(c) of the Immigration and Nationality Act, codified at 8 U.S.C.S. § 1182(c) (repealed). The BIA found that the alien was not allowed to seek § 212(c) relief because he was being deported pursuant to 8 U.S.C.S. § 1227(a)(2)(A)(iii) for committing an aggravated felony involving a crime of violence, and the “crime of violence” deportation ground was not comparable to any ground for exclusion, including the one for crimes of moral turpitude. The Supreme Court found that use of the comparative-grounds approach was arbitrary and capricious and violated the Administrative Procedure Act, 5 U.S.C.S. § 706(2)(A). The BIA was required to use an approach that was tied to the purposes of the immigration laws or the appropriate operation of the immigration system, and the comparable-grounds approach had no connection to those factors.

Due process does not require an inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances by law enforcement. Perry v. New Hampshire, 132 S. Ct. 716 (2012)

        D was charged with unauthorized taking and criminal mischief after police responded to a caller who reported that an African-American male was trying to break into cars outside his apartment; and, at the scene, the caller’s wife told police that she saw D open the trunk of a neighbor’s car. D moved to suppress the wife’s identification; the trial court denied the motion and convicted D of theft. The Supreme Court held that the Fourteenth Amendment’s Due Process Clause did not require trial judges to conduct preliminary assessments of the reliability of eyewitness identifications that were made under suggestive circumstances when the circumstances were not created by law enforcement personnel. A primary aim of the line of cases which excluded eyewitness identification evidence that was obtained under unnecessarily suggestive circumstances that police created was to deter police from using improper procedures, and that rationale was inapposite in cases where there was no improper police conduct.

Fifth Circuit

Although there was evidence that D was suffering from a mental condition, the court gave the question of D’s competency diligent attention over the course of five hearings, with the benefit of several professionals’ examinations. United States v. Simpson, 645 F.3d 300 (5th Cir. 2011)

        District court’s conclusion that D was refusing to do what he was volitionally capable of doing (i.e., that he was purposefully refusing to communicate with his attorneys) was neither arbitrary nor unwarranted.

        Second, D was not entitled to appointment of substitute counsel; even if there was a complete breakdown of communications between D and counsel, that was attributable to D’s refusal to talk with counsel and not to the neglect of counsel or the court. Nor did the appointment of “liaison counsel”—whose role was to bridge communication between D and his appointed counsel—violate the Sixth Amendment right to counsel. Liaison counsel’s role was not impermissibly ambiguous or indefinite. The Fifth Circuit also rejected D’s claim that liaison counsel had a conflict of interest because he was serving two masters (D and the court).

        Third, where noncapital D was scheduled to be tried with a defendant against whom the government was seeking the death penalty, but that defendant pleaded guilty after the jury had been selected, it did not violate D’s Fifth and Sixth Amendment rights when D was tried by the death-qualified jury. In such a circumstance, the trial court need not—but of course may—allow new jury selection.

The public authority defense requires a law enforcement officer who engages a defendant in covert activity to possess actual, rather than only apparent, authority to authorize the defendant’s conduct. United States v. Sariles, 645 F.3d 315 (5th Cir. 2011)

A habeas petitioner must overcome the limitations of 28 U.S.C. § 2254(d)(1) based solely on the record that was before the state court. Pape v. Thaler, 645 F.3d 281 (5th Cir. 2011)

        Although federal district court had, after an evidentiary hearing, granted federal habeas relief on the ground of ineffective assistance of counsel in the investigation and presentation of the defense case in D’s prosecution for aggravated sexual assault of a child and indecency with a child, the Fifth Circuit reversed the court’s decision and denied the habeas petition. The federal district court violated Cullen v. Pinholster, 131 S. Ct. 1388 (2011), in holding an evidentiary hearing on D’s allegations and relying upon evidence developed at that hearing to grant D relief. On the merits, and as judged on the state record alone, the state court did not unreasonably apply Supreme Court precedent when it found that defense counsel’s actions were legitimate trial strategy not constituting ineffective assistance.

Prosecutor’s closing argument crossed the line from permissible response on the issue of the agents’ lack of motive to lie into an impermissible emotional appeal to believe the agents simply because of their status as agents. United States v. Aguilar, 645 F.3d 319 (5th Cir. 2011)

        On appeal of ambulance driver’s convictions for conspiracy to possess, and possession of, marijuana found in a hidden compartment in the ambulance, prosecutor’s error was plain as the argument was clearly impermissible under existing precedent. Moreover, even on plain-error review, the improper argument merited reversal of D’s convictions, given that credibility—and, particularly, the content of an alleged statement by D—was central to the case. The Fifth Circuit vacated the convictions and remanded for a new trial.

D’s appeal of the district court’s disposition of his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (based on the retroactive amendments to the crack cocaine Guidelines) was rendered moot by his release from prison onto his term of supervised release. United States v. Booker, 645 F.3d 328 (5th Cir. 2011)

The State and the co-defendant did not have to reach a bona fide, enforceable deal to implicate the Brady disclosure requirement. LaCaze v. Warden La. Corr. Inst. for Women, 645 F.3d 728 (5th Cir. 2011), as amended on denial of reh’g, 647 F.3d 1175 (5th Cir. Aug 2, 2011)

        In Louisiana second-degree murder case, prosecution withheld material exculpatory/impeachment information in violation of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. Particularly, because D allegedly solicited Robinson to kill her husband, it violated Brady to withhold that the prosecution had promised Robinson that his 14-year-old son (who drove his father to and from the shooting) would not be arrested. There was a reasonable probability that disclosure of this agreement would have produced a different result. Robinson’s testimony was the only direct evidence of D’s intent; disclosure of Robinson’s bias might have put the whole case in a different light. The Fifth Circuit reversed the district court and remanded with instructions to grant the writ of habeas corpus.

D’s federal habeas petition was not time-barred under the AEDPA because, even though D voluntarily dismissed his Texas direct appeal, he could still have filed a PDR with CCA within 30 days after the dismissal. Mark v. Thaler, 646 F.3d 191 (5th Cir. 2011)

        Accordingly, his conviction did not become final until 30 days after the dismissal of his appeal, which meant that his federal habeas petition was (with applicable exclusions) filed within the Antiterrorism and Effective Death Penalty Act’s one-year limitation. The Fifth Circuit reversed the district court’s dismissal of the petition and remanded for further consideration. (Judge Garwood dissented. He would hold that D’s conviction became final not later than the date the state appeal was dismissed; this date would render D’s federal habeas petition untimely.)

Remote-in-time instances of sexual abuse or exploitation of a minor may form the basis of a 5-level “pattern of activity” enhancement under USSG § 2G2.2(b)(5). United States v. Bacon, 646 F.3d 218 (5th Cir. 2011)

        District court did not err in applying the enhancement to child pornography to D on the basis of his sexual abuse of his daughters over 30 years before. The Fifth Circuit agreed with all other circuits that have decided this question.

A Fed. R. Crim. P. 35(a) motion cannot preserve an error unless the error is arithmetical, technical, or otherwise clear. United States v. Henderson, 646 F.3d 223 (5th Cir. 2011)

        D’s motion to correct sentence under Rule 35(a) did not preserve for appeal the claimed error (i.e., that the district court impermissibly increased D’s sentence—from a Guideline range of 33 to 41 months up to 60 months—for rehabilitative purposes, in violation of Tapia v. United States, 131 S. Ct. 2382 (2011)). The claimed error was not clear in the Fifth Circuit at the time of sentencing; therefore, the Rule 35(a) motion did not preserve error, and the Fifth Circuit reviewed only for plain error. Likewise, because the error was not clear in the Fifth Circuit before Tapia, D’s plain-error claim foundered upon the second requirement of plain-error review—namely, the requirement that the error be “plain” at the time of trial.

District court committed reversible plain error in applying both an enhancement under USSG § 2T1.4(b)(1) and an enhancement under USSG § 3B1.3. United States v. Mudekunye, 646 F.3d 281 (5th Cir. 2011)

        Application Note 2 to § 2T1.4 clearly establishes that this is error. Moreover, D’s substantial rights were affected because, although the correct and incorrect Guideline ranges overlapped by one month, D was sentenced well outside the one-month overlap. The fourth prong of plain-error review was satisfied because the substantial disparity between the imposed sentence and the applicable Guideline range warranted the court’s exercise of its discretion to correct the error. The Fifth Circuit vacated D’s sentence and remanded for resentencing. (Judge Barksdale dissented, decrying what he viewed as an insufficiently stringent application of plain-error review to Guideline calculation errors.)

Although two defense witnesses declined to testify after being visited by government agents, the government had a right to talk to these witnesses, and the agents engaged in no behavior constituting a substantial interference with the witnesses’ free choice to decide whether to testify for the defense. United States v. Girod, 646 F.3d 304 (5th Cir. 2011)

        In this healthcare fraud prosecution, government did not impermissibly intimidate defense witnesses so as to require dismissal of the indictment. Nor did the government impermissibly impede defense access to a prosecution witness.

        Evidence that one defendant provided alcoholic beverages and marijuana to two of D’s company’s clients was not “intrinsic” to D’s charges, but rather was “extrinsic” evidence subject to the strictures of Fed. R. Evid. 404(b). The Fifth Circuit also expressed “skeptic[ism]” that this evidence would pass a Fed. R. Evid. 403 inquiry. Nevertheless, error in the admission of this evidence was harmless.

Government’s proof at trial was not a constructive amend­ment of the indictment, although the proof fo­cused on the obtaining of property from an individual—as opposed to the indictment, which focused on the ob­tain­ing of property from a political entity. United States v. Thompson, 647 F.3d 180 (5th Cir. 2011)

        In this Hobbs Act extortion prosecution under 18 U.S.C. § 1951, the Fifth Circuit did not believe that the jury was permitted to convict D upon a factual basis that effectively modified an essential element of the offense charged or on a materially different theory or set of facts than what was charged. To the extent there was a variance short of a constructive amendment, D conceded he was not prejudiced thereby, so that did not require reversal either.

        The compensation paid to the individual extortion victim did not preclude a finding that the victim was deprived of property as required under Hobbs.

Court of Criminal Appeals

While good behavior in prison is a factor to consider, it does not preclude a finding of future dangerousness. CCA can review the objective evidence of future dangerousness but does not review the jury’s normative decision on mitigation. Devoe v. State, 354 S.W.3d 457 (Tex.Crim.App. 2011)

        D was convicted of capital murder and sentenced to death. In this direct appeal, he raised nine points of error. CCA found them to be without merit, most notably D’s challenges to the sufficiency of the evidence at the punishment phase of trial. The following was sufficient to show future dangerousness: (1) during D’s crime spree, he attempted to kill one victim and killed three others; (2) he had a lengthy criminal history; (3) he had a lengthy history of abusing women; (4) he once attempted to strangle his mother; (5) he abused alcohol and drugs and tended to become more violent when he did so; and (6) inmates in Texas have access to drugs, alcohol, and weapons, and many violent crimes occur inside Texas prisons.

        CCA also rejected D’s claims that the trial court erred in allowing him “to be tried on copious amounts of extraneous offense evidence” at the guilt phase. Whether extraneous offense evidence has relevance apart from character conformity, as required by Tex. R. Evid. 404(b), is a question for the trial court. The trial court did not abuse its discretion by admitting extraneous evidence of D’s theft of a gun, the aggravated assault of one victim, the killing of the victim from whom he stole the vehicle, and the robbery of yet another victim. It was within the zone of reasonable disagreement to find the various offenses to be contextual evidence. D did not rest between incidents, and he stole the gun to go after women and to flee.

An Article 38.072 hearing is intended only to determine the reliability of complainant’s out-of-court statement; D’s opportunity for cross-examining the outcry witness at such a hearing is inadequate to allow the admission of the hearing testimony at trial. Sanchez v. State, 354 S.W.3d 476 (Tex.Crim.App. 2011)

        D was convicted of four counts of indecency with a child by sexual contact and one count of aggravated sexual assault of a child. Because the State’s outcry witness suffered a loss of mental faculties and was unavailable to testify at trial, the trial court allowed the witness’ testimony from a pretrial Tex. Code Crim. Proc. art. 38.072 § 2(b)(2) hearing to be read to the jury. CCA held that because an Article 38.072 hearing provides a defendant with an inadequate opportunity to cross-examine an outcry witness’ credibility, the trial court erred by admitting the testimony since the witness was unavailable; doing so violated D’s Sixth Amendment rights. CCA reversed COA and remanded for an analysis of the harm caused by the admission of the testimony.

In the debit-card-abuse statute, “use” and “present” may overlap in meaning, and a transaction need not be consummated to support a finding that a defendant used a debit card. Clinton v. State, 354 S.W.3d 795 (Tex.Crim.App. 2011).

        A jury convicted D for debit card abuse under Tex. Pen. Code § 32.31(b)(1). COA reversed for insufficient evidence and reformed the judgment to reflect a conviction for the lesser-included offense of attempted debit card abuse. The State contends that COA erred by finding D’s presentation of the debit card failed to prove she “used” the debit card and by requiring that “use” of a debit card include proof of consummation of the transaction.

        The statute provides that a person may be guilty of debit card abuse either by using it or presenting it. But because the indictment limits the manner and means of committing debit card abuse to only “use,” the State must prove that D used the debit card for the evidence to be sufficient. Based on the ordinary meaning of the words as used in the statute, CCA concluded that “use” and “present” may overlap in meaning, that a transaction need not be consummated to support a jury finding that a defendant used a debit card, and that COA erred by determining that the evidence is insufficient to establish debit card abuse. Because the dictionary definitions of “use” and “present” do not depend on obtainment of a benefit, the plain language of the statute makes apparent that an individual need only have utilized the card for the intended purpose of obtaining a benefit. Examining all the evidence in the record in the light most favorable to the verdict, the evidence shows that D “used” the card when she swiped it through the card reader for the purpose of purchasing cigarettes. CCA reinstated the trial court’s judgment.

A 23-year pre-indictment delay for the offense of murder does not offend due process. State v. Krizan-Wilson, 354 S.W.3d 808 (Tex.Crim.App. 2011)

        For the offense of murder, the Texas legislature has intentionally chosen not to define a statute of limitations, explicitly allowing prosecutors to indict suspected murderers when they are ready to do so, and has determined that any such delay, without more, does not offend the community’s sense of fair play and decency. Even though D suffered prejudice from the lengthy delay, as her original attorney and investigator had died and their files had been lost, D failed to prove that the State delayed its prosecution to gain tactical advantage or for other bad faith purposes; therefore, the trial court erred in dismissing the indictment.

The trial court erred in refusing to instruct the jury on the medical-care defense to digital penetration because D’s conduct fell within the purview of the defense. Cornet v. State, No. 1067-10 (Tex.Crim.App. Jan 25, 2012)

        CCA held that (1) the availability of the defense did not turn upon the accused’s familiarity with the science of medicine; (2) the defense could be raised by evidence supporting a “mere” medical inspection; and (3) the evidence, if believed by the jury, would support a rational inference that D’s touching of the child victim was, in fact, an inspection for a medically relevant purpose. D claimed that he examined the victim, his stepdaughter, to see if she had any physical evidence of sexual contact or injury and that the examination came to a halt once he determined that there was nothing wrong with her. CCA further held that sufficient evidence existed to show that D essentially admitted, under the doctrine of confession and avoidance, to the element of penetration. CCA remanded to COA to determine the extent of the harm, if any, resulting from the trial court’s error.

The trial court erred in including in the jury charge a definition of the statutorily undefined term “operate” as it is used in the DWI statute. Kirsch v. State, No. 0245-11 (Tex.Crim.App. Jan 25, 2012)

        D petitioned that COA erred by affirming the trial court’s charge to the jury, which included a definition of “operate” as used in the DWI statute. In defining “operate” as “to exert personal effort to cause the vehicle to function,” the trial court selected one definition of a statutorily undefined, common term that the jury could have selected to assess the evidence and instructed the jury that they “must be governed by” that definition. Although this is an appropriate definition for an appellate court to apply in assessing the sufficiency of the evidence to support the “operate” element, instructing the jurors as to that definition in this case impermissibly guided their understanding of the term. Furthermore, the definition emphasizes evidence tending to show “personal effort” toward causing the vehicle to function over evidence that would tend to show “merely preparatory attempts to start the motorcycle,” which the jury could have reasonably decided did not constitute “operating.” CCA remanded to COA to determine whether D suffered harm as a result of the erroneous instruction.

D did not invoke his right to counsel, even though he previously said he wanted a lawyer, because he was willing to talk to police without counsel; detectives gave D his Miranda warnings in Spanish three separate times, and at no time did he invoke his right to an attorney. Pecina v. State, No. 1095-10 (Tex.Crim.App. Jan 25, 2012)

        A jury convicted D of the murder of his wife. The trial judge denied D’s motion to suppress his statements to police during custodial questioning at a hospital after a magistrate gave him his Tex. Code Crim. Proc. art. 15.17 rights. The trial judge rejected D’s claim that he had invoked both his Fifth and Sixth Amendment rights to counsel when he asked the magistrate for an appointed attorney but also said he wanted to talk to the police who were standing outside the hospital room. The Fifth Amendment right to interrogation counsel is triggered by the Miranda warnings police must give before custodial questioning. The Sixth Amendment right to trial counsel is triggered by judicial arraignment or Article 15.17 magistration. Both the Fifth and Sixth Amendment rights to counsel apply to post-magistration custodial interrogation, but each is invoked and waived in exactly the same manner—under Fifth Amendment Miranda rules. CCA held that because D never invoked his right to interrogation counsel after the police gave him Miranda warnings, the trial judge did not err in denying D’s motion to suppress.

An oral ruling is not “an order” for the purposes of es­tab­lishing the decision of the trial court. State v. Sanavongxay, No. 1809-10 (Tex.Crim.App. Jan 25, 2012)

        The trial judge orally ruled on the defense motion for a continuance and did not rule on the defense motion to suppress DNA evidence but, on its own motion, chose to exclude the DNA evidence because of the State’s tardy notice to the defense. No order was signed. Because there was no order from which to appeal, no writing that memorialized the trial court’s informal notations on the motion to suppress or the judge’s explanation of her non-ruling, COA correctly held that it had no jurisdiction over the State’s appeal.

D’s choice to testify during sentencing was voluntary, and his Fifth Amendment right to remain silent was not violated, because neither statement by the trial court amounted to a threat that D would be penalized for exercising his constitutional right to remain silent. Johnson v. State, No. 0527-11 (Tex.Crim.App. Jan 25, 2012)

        The trial court’s first statement asking whether D would be testifying was a reasonable exercise of control over the mode and order of interrogating witnesses and presenting evidence pursuant to Tex. Code Crim. Proc. art. 37.07 § 3(a)(1). The trial court’s second statement, asking about what D did in the 18 years between his arrests, would be perceived by a reasonable person as a request to offer mitigating evidence rather than an implied threat of punishment.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Officer asking about driver’s previous whereabouts “is standard procedure during [any] traffic stop.” Cantu v. State, No. 04-10-00533-CR (Tex.App.—San Antonio Sep 14, 2011)

        “Moreover, the overall duration of the traffic stop was relatively short. . . . The record does not support the conclusion that [officer] strayed from the initial purpose of the stop or that [officer] unnecessarily delayed the detention.”

A reminder that stopping a driver on suspicion of being intoxicated is proper even if the driver did not commit a traffic offense. Powell v. State, No. 03-10-00728-CR (Tex.App.—Austin Sep 14, 2011)

D unsuccessfully argued that (1) because search warrant affidavit described an uncontrolled buy, it was insufficient to show that contraband would be found at specific address; and (2) presence of the unknowing participant described in the affidavit interposed a layer between the confidential source and the transaction that misplaced reliance on said transaction. Bibbs v. State, No. 07-11-00064-CR (Tex.App.—Amarillo Sep 15, 2011)

        D contended that within the drug trade, such elaborate subterfuge and misdirection may be reasonably expected due to paranoia regarding police or rival drug dealers. “While we agree with [D] that it is possible that a drug dealer might employ such elaborate precautions, it is more logical to infer that the unknowing participant in this case went to [specific address] to pick up the cocaine from that location. Thus, we conclude that the magistrate made a practical, common sense decision that, given the totality of the circumstances set forth in the affidavit, there was a fair probability that contraband or evidence of a crime would be found at [specific address].”

D lacked standing to challenge search of vehicle, despite undisputed testimony that owner of vehicle had loaned D the vehicle for several months to drive at D’s will. Castaneda v. State, No. 08-10-00050-CR (Tex.App.—El Paso Sep 28, 2011)

        “[D] testified that he had access to the vehicle and was allowed to drive it, with or without [the owner], for a period of about two or three months.” COA concluded that D had no standing because at the time the vehicle was searched, D was not occupying it nor did he own it.

Sufficient evidence to support DWI, despite testimony from the manager of the bar from which D was driving that “[D] commonly mumbles and giggles and talks to herself as a result of her prior head injury.” Zill v. State, No. 01-10-00679-CR (Tex.App.—Houston [1st Dist] Oct 6, 2011)

        “Although [D’s] behavior during the traffic stop may have been consistent with a head injury, her behavior also constitutes recognized evidence of intoxication. . . . The jury was fully entitled to believe [officer] that [D] was intoxicated and disbelieve [D’s] alternative explanation that her prior head injuries caused her behavior.”

D deemed intoxicated at the time of accident, despite negative results of blood-alcohol test and despite expert testimony that D’s drunken-like demeanor is consistent with the symptoms of D’s mental disorders. Kiffe v. State, No. 01-10-00746-CR (Tex.App.—Houston [1st Dist] Oct 13, 2011)

        D admitted taking certain prescription drugs such as valium on a regular basis (including the night before the accident) but not necessarily on the day of the accident. “[The expert] testified that [reasons other than intoxication] could explain all of the symptoms observed by [officer and other eyewitnesses]. . . . The jury could have reasonably chosen to place greater weight on the testimony of the witnesses, who observed [D] on the day of the offense, than [the expert], who observed him months later.”

Officer lacked RS to stop vehicle leaving neighborhood despite the late hour (1 a.m.) and despite officer’s hunch that the occupants were part of a burglary ring. Turner v. State, No. 05-10-01225-CR (Tex.App.—Dallas Oct 18, 2011)

        “[D] was not pulling out from a dark area behind a business that had been closed for an hour. Rather, he was parked on a neighborhood street, turned on his light, and pulled away from the curb as [officer] pulled onto the street. . . . In fact, [officer] could not give an exact date as to whether or not there had been any recent car thefts, but he estimated there may have been five in the neighborhood within the past year. While he did testify the number of occupants in the car could indicate a burglary ring because such rings usually travel in groups, he did not see a lookout, he did not see anyone running from the house towards the car or wearing dark clothes, nor did the car appear to be weighted down with stolen merchandise. Thus, his testimony that [D] and his occupants might be part of a burglary ring was based on nothing more than a mere suspicion or a hunch, rather than articulable facts.”

Trooper had RS to continue detention while awaiting a canine to sniff vehicle based on D’s nervousness and officer’s belief that D had misrepresented that she had never been arrested when, in fact, she had nine prior arrests. Hamal v. State, No. 02-09-00448-CR (Tex.App.—Fort Worth Sep 22, 2011), reh’g overruled Oct 27, 2011

        However, because of the ambiguous wording of officer’s question (“Have you ever been in any trouble for anything?”), it was debatable whether officer was reasonable in believing D correctly heard his question and understood it as asking whether she had ever been arrested. COA held that an exclusionary-rule instruction was warranted. Trial court’s failure to include said instruction constituted egregious harm, resulting in reversal.

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