March 2014 SDR – Voice for the Defense Vol. 43, No. 2

Voice for the Defense Volume 43, No. 2 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

When a defense expert who examined the defendant testifies that the defendant lacked the requisite mental state to commit a crime, the prosecution may offer evidence from a court-ordered psychological exam for the limited purpose of rebutting defendant’s evidence. Kansas v. Cheever, 134 S. Ct. 596 (2013).

        The Kansas Supreme Court vacated D’s murder conviction, holding that he had not waived his Fifth Amendment privilege and that the federal court-ordered psychiatric examination should not have been used against him at trial. Certiorari was granted to consider whether the Fifth Amendment prohibited the government from introducing the evidence to rebut expert testimony offered in support of a voluntary intoxication defense. The U.S. Supreme Court unanimously vacated the Kansas Supreme Court and remanded.

        The U.S. Supreme Court reaffirmed the rule that where a defense expert who has examined the defendant testified that the defendant lacked the requisite mental state to commit an offense, the prosecution was allowed to present psychiatric evidence in rebuttal. In the instant case, the prosecution elicited testimony from its expert only after D offered expert testimony about his inability to form the requisite mens rea due to the temporary and long-term effects of D’s drug use. The testimony of the government expert rebutted that of D’s expert. The court therefore did not violate the Fifth Amendment when it allowed the prosecution’s expert to testify that D made a choice to shoot because the State permissibly followed where the defense led.

Fifth Circuit

The pleadings of pro se inmates, including petitions for state post-conviction relief, are deemed filed at the time they are delivered to prison authorities. Richards v. Thaler, 710 F.3d 573 (5th Cir. 2013).

        Campbell v. State, 320 S.W.3d 338 (Tex.Crim.App. 2010), made clear that under Texas law the pleadings of pro se inmates, including petitions for state post-conviction relief, are deemed filed when they are delivered to prison authorities, not when they are received and stamped by the court clerk. Although in Howland v. Quarterman, 507 F.3d 840 (5th Cir. 2007), the Fifth Circuit declined to apply such a mailbox rule, the conclusion in Howland—that Texas does not apply the prison mailbox rule in criminal proceedings—was contradicted by the Campbell holding that the rule does apply in criminal cases. Applying a mailbox rule, only 351 days elapsed between Texas prisoner’s state and federal habeas filings; thus his federal petition was filed within AEDPA’s one-year statute of limitations. The Fifth Circuit reversed the district court’s dismissal of the federal petition as untimely.

D showed at best a possibility—and not the requisite reasonable probability—that the outcome would have been different but for the district court’s error in considering the outdated version of USSG § 5D1.1. United States v. Cancino-Trinidad, 710 F.3d 601 (5th Cir. 2013).

        The district court committed plain error by imposing a supervised release term on deportable alien D under an outdated version of USSG § 5D1.1 that did not included § 5D1.1(c), which advises that supervised release should “ordinarily” not be imposed on deportable aliens. However, this error did not affect D’s substantial rights, warranting reversal on plain-error review, because the court’s comments indicated implicit consideration of the deterrent effect of supervised release on D and because D’s substantial criminal history supported the necessary finding that the imposition of supervised release would provide an added measure of deterrence and protection based on the facts and circumstances of this case.

Where undefined predicate offenses are not common-law offenses, a court should derive their generic, contemporary meaning rather than examining how the predi­cate offenses are defined in the codes of most states. United States v. Cabecera Rodriguez, 711 F.3d 541 (5th Cir. 2013).

        Overruling a number of panel decisions, the en banc Fifth Circuit held that where undefined predicate offenses are not common-law offenses, a court should derive their “generic, contemporary meaning” from the common usage of their terms as stated in legal and other well-accepted dictionaries, rather than examining how the predicate offenses are defined in the criminal codes of most states. Under this rubric, the Fifth Circuit determined that the undefined term “sexual abuse of a minor” in USSG § 2L1.2 includes any offense with a victim under 18; further, the Fifth Circuit determined that “statutory rape” in § 2L1.2 includes sexual intercourse with a person below the age of sexual majority as defined by the jurisdiction where the crime occurred. Accordingly, the Fifth Circuit rejected D’s argument that his Texas conviction for sex­ual assault of a “child” under 17 was outside the generic definition of these terms.

Though in 2004 D had encounters with state police, a federal probation officer, and a federal court, he was not “found” by immigration authorities until 2010; therefore, the statute of limitations had not elapsed at the time of D’s indictment. United States v. Compian-Torres, 712 F.3d 203 (5th Cir. 2013).

        For the crime of being found unlawfully in the United States after deportation, in violation of 8 U.S.C. § 1326, being “found” requires that the alien’s physical presence be discovered and noted by immigration authorities, and the illegality of the alien’s presence must be reasonably attributable to immigration authorities.

        The Fifth Circuit noted an intra-circuit split about whether a general motion for judgment of acquittal preserves a sufficiency-of-the-evidence claim that turns on a purely legal question that was not specifically preserved in the district court; however, the court declined to address this because D lost even under the more generous de novo standard.

District court did not err in applying a vulnerable vic­tim enhancement under USSG § 3A1.1(b)(1) based on the age of the children in the pornography. United States v. Jenkins, 712 F.3d 209 (5th Cir. 2013).

        Although the specific offense guideline already contains an enhancement for victims under age 12, the “vulnerable victim” enhancement may still apply when the victims are especially vulnerable due to their age. The Fifth Circuit also rejected D’s argument that even if the victims were especially vulnerable with respect to the production of child pornography, they were not especially vulnerable with respect to the crimes of which D was convicted (receipt, distribution, and possession of child pornography).

A state habeas petitioner’s disclaimer of an argument has the same effect as his failure to raise it in the first place. Johnson v. Cain, 712 F.3d 227 (5th Cir. 2013).

        Federal district court did not err in dismissing Louisiana defendant’s federal habeas petition as unexhausted; even if D fairly presented in state court his federal claim that his attorney interfered with his right to testify, D explicitly disclaimed that federal argument twice (once in the state habeas court and once on a state appeal of that ruling) and relied solely on a state ground for relief. Moreover, the failure to exhaust could not be excused because D lacked good cause for the procedural default and because he did not show that this dismissal would result in a fundamental miscarriage of justice.

District court committed reversible plain error in basing D’s supervised-release revocation sentence on the court’s perception of D’s rehabilitative needs. United States v. Culbertson, 712 F.3d 235 (5th Cir. 2013).

        Under United States v. Garza, 706 F.3d 655 (5th Cir. 2013), it is error to consider rehabilitative needs in imposing or lengthening a supervised-release revocation sentence; moreover, the error was plain in light of Garza, even though Garza did not clarify the law until this case was already on appeal. Furthermore, the error affected D’s substantial rights because, in giving D a sentence that was three times his Guideline range, the district court repeatedly referred to D’s need for rehabilitation, including after defense counsel specifically questioned why the sentence so greatly exceeded the Guidelines. Finally, the Fifth Circuit determined that it would exercise its discretion to correct this error and remanded for resentencing.

D, a sophisticated computer user, downloading child pornography from a peer-to-peer network and storing it in a shared folder accessible to other users amounted to distribution under 18 U.S.C. § 2252A(a)(2)(B). United States v. Richardson, 713 F.3d 232 (5th Cir. 2012).

        Furthermore, application of a Sentencing Guideline enhancement under USSG § 2G2.2(b)(6) for use of a computer did not constitute impermissible “double counting.” Double counting is prohibited only if the relevant Guideline expressly forbids it, and the Guideline here does not. Furthermore, the offense of conviction can be committed in a way that does not involve a computer. Finally, any error would have been harmless in light of the district court’s clear statements that it would have imposed the same sentence regardless of the correctness of the Guideline calculation.

Court of Criminal Appeals

To support a deadly-weapon finding under Tex. Code Crim. Proc. art. 42.12, the weapon must have facilitated the associated felony offense; D’s mere exhibition of a deadly weapon during a felony was not covered by this provision. Plummer v. State, 410 S.W.3d 855 (Tex.Crim.App. 2013).

        A deadly weapon finding under Article 42.12, § 3g, was not supported because there was no evidence that D’s posses­sion of a pistol facilitated his possession of body armor by a felon. Both the body armor and the pistol were used for a common purpose—looking like a security guard—but neither offense facilitated or furthered the commission of the other. CCA deleted the deadly-weapon finding and affirmed the conviction for unlawful possession of body armor by a felon.

D was properly denied an instruction on voluntariness because even if he had ingested one medication thinking it was a different one, he still voluntarily ingested that medication. Farmer v. State, 411 S.W.3d 901 (Tex.Crim.App. 2013).

        The question was whether the evidence at D’s DWI trial entitled him to a jury-charge instruction on voluntariness. COA held that D was entitled to a voluntariness instruction. CCA reversed COA and affirmed the trial court. Whether D took Ambien by mistake or on purpose was irrelevant to the court’s analysis of whether there was a voluntary act under Tex. Penal Code § 6.01(a), because the proper inquiry was whether he voluntarily picked up and ingested prescription medication. This was not a case of unknowingly or unwillingly taking medication; this was a case of knowingly taking a medication but mistakenly taking the wrong one, and D was involved in two accidents because of his mistake.

The jury instructions properly defined the punishment range of a third-degree felony because there was no conflict between Tex. Penal Code §§ 19.05(b) and 12.35(c), the state-jail felony deadly-weapon enhancement was applicable to criminally negligent homicide, and its application was not contrary to legislative intent. Chambless v. State, 411 S.W.3d 498 (Tex.Crim.App. 2013).

        “The statutes’ plain language and placement within the Penal Code is evidence of their distinct purposes and subjects: one defines the offense, the other defines the offense’s pun­ish­ment range. Section 19.05—found in Chapter 19, titled ‘Criminal Homicide’—defines criminally negligent homicide as ‘caus[ing] the death of an individual by criminal negligence.’ Although classifying criminally negligent homicide as a state-jail felony, it makes no mention of an applicable punishment range. Section 12.35—in Chapter 12, titled ‘Punishments’—defines how state-jail felonies shall be punished.”

A trial court must sua sponte give an accomplice-witness instruction when the evidence raises the issue under the theory that the witness was a party as a co-conspirator. Zamora v. State, 411 S.W.3d 504 (Tex.Crim.App. 2013).

        “Furthermore . . . when the issue of a trial court’s failure to give an accomplice-witness instruction is raised on appeal, a court of appeals should first determine whether a trial court erred by failing to sua sponte give that instruction before it considers whether a defendant preserved his complaint for appeal, a matter that is pertinent to a harm analysis. Because it failed to address the question of charge error in the first instance, we hold that the court of appeals erred by determining that [D] forfeited his jury-charge complaint by failing to request an accomplice-witness instruction that was based specifically on a co-conspirator theory of party liability. We, therefore, reverse the judgment of the court of appeals and remand[.]”

COA did not have the benefit of a recent Supreme Court determination that a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home is a search. Rivas v. State, 411 S.W.3d 920 (Tex.Crim.App. 2013).

        D was charged with two counts of possession of a controlled substance with intent to deliver. A dog sniff at his front door led to the charges. He filed a motion to suppress, which the trial court denied. D then pleaded guilty. D appealed that the court erred in denying his motion to suppress. COA disagreed and affirmed the convictions. D filed for discretionary review arguing that COA erred under Florida. v. Jardines, 133 S. Ct. 1409 (2013). In Jardines, the Court held that using a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home is a “search” within the Fourth Amendment. Jardines was handed down 12 days after COA decided this case. Accordingly, CCA vacated COA’s judgment and remanded.

Due to insufficient evidence and conflicting testimony of medical experts, the State did not prove beyond a reasonable doubt that D acted with negligence. Britain v. State, 412 S.W.3d 518 (Tex.Crim.App. 2013).

        A jury convicted D of manslaughter and injury to a child for recklessly causing the death of her stepdaughter. COA held there was insufficient evidence that D was “aware of but consciously disregard[ed] a substantial and unjustifiable risk” as required to prove recklessness. COA reversed the trial court and acquitted on both counts. CCA granted the State’s petition to answer one question: Should COA have reformed the verdict to the lesser-included offense of criminally negligent homicide rather than rendering a verdict of acquittal? CCA affirmed COA.

        When COA held that there was no evidence of the required mental state of recklessness under Tex. Penal Code § 6.03(c) for manslaughter, COA did not also find that there was evidence of the lesser mental state of negligence for criminally negligent homicide purposes. CCA could not say that the State proved that D acted with negligence, as one could not impute to D as a layperson the standard of care of medical professionals, and there was no evidence on the standard of care an ordinary person should have been held to or that showed D should have been aware of the risk.

Even if evidence had been presented at trial that decedent’s blood was not on the knife found in D’s car, it is unlikely that such evidence would have overcome the testimony of witnesses who saw D with a knife, saw D use a knife, or were injured by a knife D wielded, whether or not it was the same knife in his car after the offense. Ex parte Holloway, 413 S.W.3d 95 (Tex.Crim.App. 2013).

        CCA held that D was not entitled to habeas relief from his manslaughter conviction based on post-conviction DNA testing of blood on a knife. The absence of decedent’s DNA from the blood was not clearly exculpatory, as testimony from witnesses indicated D stabbed people during the fight; even if the knife was the tangible evidence the jury relied on to convict D, ample “intangible” evidence supported the conviction, and clear and convincing evidence did not show that no reasonable juror would have convicted D with the new DNA evidence.

COA erred by failing to (1) apply a de novo standard of review to the trial court’s legal determination that D was in custody when he made incriminating statements, and (2) abate the appeal for further findings of fact. State v. Saenz, 411 S.W.3d 488 (Tex.Crim.App. 2013).

        Because the matter of whether appellee was in custody when interrogated was a mixed question of law and fact that did not turn on credibility or demeanor, CCA applied a deferential standard of review to the assessment of the circumstances surrounding the interrogation and a de novo review to the legal determination that D was in custody. COA apparently focused only on the first part of the test, without addressing the second that required the appellate court to analyze de novo whether the facts determined by the trial court amounted to custody. Because the factual findings were inadequate to assess whether the circumstances fit within a certain custody situation described in case law, further findings were necessary. CCA reversed and remanded with instructions to abate to the trial judge for supplemental findings.

Written findings are required in all cases concerning voluntariness. Vasquez v. State, 411 S.W.3d 918 (Tex.Crim.App. 2013).

        Tex. Code Crim. Proc. art. 38.22, § 6 clearly requires that the trial court make written findings in all cases concerning voluntariness; the statute has no exceptions. No findings of fact were filed here, and COA erred by not abating for such findings. CCA remanded for the trial court to determine (1) whether the original, unrecorded interview of D was custodial in nature, (2) whether D was Mirandized prior to the original interrogation, (3) if not, whether the police deliberately employed an unconstitutional two-step interrogation process, and (4) if they did, whether curative measures were taken before the second confession.

Court of Appeals

Releasing a sergeant from further testimony did not violate D’s right to compulsory process because evidence that sergeant believed the arresting officer was untruthful during an unrelated incident was inadmissible under Tex. R. Evid. 608(b). Freeman v. State, 413 S.W.3d 198 (Tex.App.—Houston [14th Dist] 2013).

        Furthermore, the trial court properly denied D’s lesser-included offense instruction for misdemeanor DWI because an expert witness’ fingerprint analysis linked D to both prior DWI judgments. The jury charge correctly stated the applicable law by requiring the jury to find beyond a reasonable doubt that D was twice convicted of an offense related to the operating of a motor vehicle while intoxicated.

Exigent circumstances did not justify the warrantless entry and search of D’s home; officer’s testimony did not support a concern for the child’s safety but instead showed his reasons and actions upon entry were focused on preserving evidence. Turrubiate v. State, 415 S.W.3d 433 (Tex.App.—San Antonio 2013).

        D appealed his conviction for possession of marijuana. In a 2012 opinion, this court reversed D’s conviction after concluding the trial court erred in denying D’s pretrial motion to suppress. CCA agreed “that probable cause to believe that illegal drugs are in a home coupled with an odor of marijuana from the home and a police officer making his presence known to the occupants do not justify a warrantless entry.” However, CCA remanded for COA to decide (1) whether the State made the argument at trial that exigent circumstances existed regarding the imminent risk of harm to a child allegedly inside the home and, if not, (2) whether COA may nonetheless address that argument on appeal as an alternative basis to uphold the trial court’s denial of the motion to suppress.

        COA held here that the totality of the circumstances did not reveal any evidence from which it would be reasonable to infer that any exigency existed requiring a warrantless entry into D’s home. COA reversed the trial court’s order on the mo­tion to suppress and remanded.

Trial counsel’s deficient performance in failing to take the statutory steps to depose an eyewitness prejudiced D because D’s conviction was dependent on the complainant’s credibility, and the eyewitness’ testimony would have corroborated the most important points of D’s version of events and contradicted complainant. Frangias v. State, 413 S.W.3d 212 (Tex.App.—Houston [14th Dist] 2013).

        There was no physical evidence that a sexual assault occurred; and the eyewitness, had she been deposed, would have testified that although D assisted the drunk complainant upstairs and delivered towels to her room, he did not enter. “[D] argues that the trial court abused its discretion in failing to grant his motion for new trial based on ineffective assistance of counsel. On original submission, we held that the record did not show that his attorneys’ performance fell outside the broad range of prevailing professional norms. The Court of Criminal Appeals reversed, holding that ‘by any view of the evidence,’ counsel failed to render reasonable professional assistance. . . . The Court of Criminal Appeals remanded the case for this court to determine whether appellant was prejudiced. . . . We conclude there is a reasonable probability that but for his trial attorneys’ failure to take the steps necessary to procure and introduce the deposition testimony of a crucial witness, the result of appellant’s trial would have been different. We therefore reverse his conviction and remand[.]”


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