March 2015 SDR – Voice for the Defense Vol. 44, No. 2

Voice for the Defense Volume 44, No. 2 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

No clearly established federal law required placing the restriction of a closing argument in the narrow category of structural error; preventing the defense from arguing in the alternative and forcing them to choose between legal theories did not rise to this level of error. Glebe v. Frost, 135 S. Ct. 429 (2014).

        On the witness stand, D admitted his involvement in several robberies but claimed he acted under duress. As closing arguments drew near, D’s lawyer expressed the desire to contend that (1) the State failed to prove D was an accomplice to the crimes and (2) D acted under duress. The trial judge insisted that the defense choose between these alternative arguments, explaining that state law prohibited a defendant from simultaneously contesting the elements of the crime and presenting the affirmative defense of duress. Accordingly, D’s lawyer limited his summation to duress. The jury convicted D of six counts of robbery, one count of attempted robbery, one count of burglary, and two counts of assault.

        The Washington Supreme Court sustained D’s conviction; by preventing the defense from presenting both theories during summation, the court said, the trial court violated the U.S. Constitution’s Due Process and Assistance of Counsel Clauses. But the State Supreme Court continued; this improper restriction of closing argument qualified as a trial error (a mistake reviewable for harmlessness) rather than a structural error (a mistake that requires automatic reversal). Because the jury heard three taped confessions and D’s admission of guilt on the witness stand, and because it received proper instructions on the State’s burden of proof, the State Supreme Court held that any error was harmless. D filed a habeas corpus petition. The district court dismissed the petition, and COA affirmed. The Ninth Circuit reversed and instructed the district court to grant relief.

        The U.S. Supreme Court unanimously reversed the Ninth Circuit. “Assuming for argument’s sake that the trial court violated the Constitution, it was not clearly established that its mistake ranked as structural error. Most constitutional mistakes call for reversal only if the government cannot demonstrate harmlessness. . . . Only the rare type of error—in general, one that ‘infect[s] the entire trial process’ and ‘necessarily render[s] [it] fundamentally unfair’—requires automatic reversal.”

A police officer’s reasonable mistake of law could provide the individualized reasonable suspicion that the Fourth Amendment required to justify a traffic stop. Heien v. North Carolina, 135 S. Ct. 530 (2014).

        A sheriff’s sergeant pulled over a vehicle with a broken brake light and noticed D lying under a blanket in the backseat. Sergeant spoke with the two men, felt that their stories did not match, and was concerned that D had not gotten up from the backseat. Sergeant asked to search the vehicle. D agreed, and sergeant found a bag containing 54.2 grams of cocaine.

        A grand jury indicted D for two counts of trafficking cocaine. D filed a motion to suppress the evidence; the trial court denied the motion. The North Carolina Court of Appeals reversed and held that the traffic stop was not objectively reasonable because North Carolina law only required one working brake light. The North Carolina Supreme Court reversed and held that when an officer’s mistake of the law is reasonable, it may give rise to the “reasonable suspicion” required by the Fourth Amendment; the North Carolina Supreme Court sent the case back to COA. COA found no error in the trial court’s judgment. A dissenting judge, however, stated that the North Carolina Supreme Court’s ruling created “fundamental unfairness” because it held citizens to the traditional rule that “ignorance of the law is no excuse” while allowing police to be ignorant of the law. Based on this dissent, D again appealed to the North Carolina Supreme Court and was rejected. The U.S. Supreme Court affirmed.

        Under the Fourth Amendment, reasonable suspicion could rest on a mistaken understanding of the scope of a legal pro­hi­bition. The Fourth Amendment tolerated only reasonable mistakes, and those mistakes, whether of fact or law, had to be objectively reasonable; an officer cannot gain the benefits of Fourth Amendment reasonableness through a sloppy or in­com­plete knowledge of the law. An officer’s error of law in stopping a vehicle for a violation of N.C. Gen. Stat. § 20-129(g) because one of its two brake lights was out was objectively rea­son­able, thereby justifying the stop, where the statute had not previously been construed by North Carolina’s appellate courts, and under the language of the statute, it was reasonable to conclude that the word “other” meant that the rear lamps dis­cussed in § 20-129(d) included brake lights.

D who entered a woman’s home through an unlocked door after his attempt to rob a bank was subject to an enhanced penalty under 18 U.S.C.S. § 2113(e) because he guided the woman from a hallway to a computer room where she suffered a fatal heart attack. Whitfield v. United States, 135 S. Ct. 785 (2015).

        Petitioner, fleeing a botched bank robbery, entered 79-year-old Parnell’s home and “encountered a terrified Parnell and guided her from the hallway to a computer room (which Whitfield estimates was between four and nine feet away . . .). There, Parnell suffered a fatal heart attack. Whitfield fled, and was found hiding nearby.” D was convicted of, among other things, violating 18 U.S.C. § 2113(e), which establishes enhanced penalties for anyone who “forces any person to accompany him without the consent of such person” in the course of committing or fleeing a bank robbery. On appeal, the Fourth Circuit held that the movement D required the woman to make satisfied the forced-accompaniment requirement. The Supreme Court unanimously affirmed.

        A bank robber “forces [a] person to accompany him,” for purposes of § 2113(e), when he forces that person to go somewhere with him, even if the movement occurs entirely within a single building or over a short distance. At the time the forced-accompaniment provision was enacted, just as today, to “accompany” someone meant to “go with” him. The word does not, as D argued, connote movement over a substantial distance. Accompaniment requires movement that would normally be described as from one place to another. Here, D forced Parnell to accompany him for at least several feet, from one room to another, and that surely sufficed. The severity of the penalties for a forced-accompaniment conviction—a mandatory minimum of 10 years, and a maximum of life imprisonment—does not militate against this interpretation, for the danger of a forced accompaniment does not vary depending on the distance traversed. This reading also does not make any other part of § 2113’s graduated penalty scheme superfluous.

Fifth Circuit

Where death-sentenced Texas D claimed he should have been exempt from the death penalty under Roper v. Simmons, 543 U.S. 551 (2005)(holding that the Eighth Amendment bars the death penalty for a person younger than 18), he was not entitled to a certificate of appealability to appeal district court’s denial of federal habeas relief on that claim. Tercero v. Stephens, 738 F.3d 141 (5th Cir. 2013).

        The state court’s rejection of D’s claim was an adjudication on the merits entitled to deference under the AEDPA; furthermore, the state court’s rejection of D’s Roper claim was not an unreasonable determination of the evidence presented in the state habeas proceedings, given the suspect nature of the evidence that D was under 18 at the time of his offense, and the considerable amount of contrary evidence.

District court did not abuse its discretion in giving a “deliberate ignorance” instruction as the record showed that D had a subjective awareness of a high probability of illegal conduct, and that she purposefully contrived to avoid learning of the illegal conduct. United States v. St. Junius, 739 F.3d 193 (5th Cir. 2013).

        Likewise, the district court did not plainly err in instructing the jury that the “deliberate ignorance” instruction was limited to only this D and not her co-defendants.

        (2) Where district court told the jury that it used pens with different colors of ink to note particular types of things about the trial, the Fifth Circuit rejected D’s claim that amounted to plain error warranting reversal of D’s convictions.

        (3) The Government conceded and the Fifth Circuit agreed that, as to two Ds, the district court had improperly assessed restitution in excess of the losses that stemmed from the offenses of which Ds were convicted. The Fifth Circuit vacated these two Ds’ restitution orders and remanded for resentencing.

Death-sentenced Texas D claiming ineffective assistance (based on (1) allegedly inadequate voir dire, (2) failure to call an investigator as a witness and failure to introduce hospital records at the guilt/innocence phase, and (3) failure to present mitigating evidence at the punishment phase) was not entitled to a certificate of appealability to appeal district court’s denial of habeas relief on these claims. Garza v. Stephens, 738 F.3d 669 (5th Cir. 2013).

In Clean Water Act trial, even if district court abused its discretion in excluding certain defense-requested evidence (including evidence about the lack of environmental harm caused by the allegedly violating discharges, which the court excluded as irrelevant), the error did not affect D’s substantial rights; the lack of environmental harm did not absolve D of criminal liability, which was based solely on the act of discharging untreated water. United States v. Tuma, 738 F.3d 681 (5th Cir. 2013).

         (2) District court did not abuse its discretion in denying D the right to depose a Canadian witness either pursuant to Fed. R. Crim. P. 15(a) or pursuant to the letters-rogatory provision of 28 U.S.C. § 1781(b)(2). Nor did the inability to secure this foreign witness violate D’s rights under the Compulsory Process Clause.

        (3) District court did not violate D’s confrontation rights, or abuse its discretion, in limiting D’s cross-examination of his son, a co-defendant-turned-government-witness. D was given an adequate opportunity to bring out information about son’s bias and motives for testifying against his father; for this reason, it was also not plain error to exclude the testimony of two proposed defense witnesses, as the testimony would have been essentially cumulative of impeachment evidence already before the jury.

In denying D’s motion to suppress gun seized from car search, district court erred in finding probable cause to search based on D’s statement that there was a gun in the car. United States v. Guzman, 739 F.3d 241 (5th Cir. 2014).

        If the police officer prompted that statement by a false claim of lawful authority (i.e., a statement that he was “going to search the car”), that could taint both D’s statement (thus preventing it from being used as the basis for probable cause) and the consent that D allegedly gave to a search of the car. Although the Fifth Circuit will normally affirm even in the absence of specific findings so long as any reasonable view of the evidence supports the district court’s ruling, the “any reasonable view of the evidence” rule rests on two assumptions: first, that the district court asked the right legal questions in making its ruling and, second, that it actually weighed the evidence bearing on the facts needed to answer them. Doubting the validity of both assumptions in this case, the Fifth Circuit vacated D’s conviction and sentence and remanded to the district court.

In healthcare-fraud trial, there was no reversible error in introducing evidence of civil violations of Medicare and Medicaid regulations, even without a limiting instruction. United States v. Imo, 739 F.3d 226 (5th Cir. 2014).

        This was unlike United States v. Christo, 614 F.2d 486 (5th Cir. 1980), where the civil violations were bootstrapped into criminal liability; the violations here were permissibly used for more limited purposes. Furthermore, though it would have been preferable for the district court to give the requested limiting instruction, the refusal to give such an instruction was not an abuse of discretion where the regulatory violations were not used improperly, where the jury was generally instructed not to judge Ds on conduct other than that alleged in the indictment and where the defense was free to argue that regulatory violations were not evidence of criminal guilt.

        (2) District court did not abuse its discretion in allowing prosecution to cross-examine D doctor on (a) evidence that she signed blank prescription forms while working at two pain management clinics, (b) the fact that the clinics required patients to pay cash, and (c) a letter in D’s safe from an anonymous person, which letter warned her that prescriptions bearing her name were being sold on the street. The first and third of these were probative of D’s character for truthfulness; the second was as well, although less so. Finally, any prejudice D may have incurred as the result of this evidence was reduced by the limiting instructions given by the court.

In sentencing D convicted of child-pornography offenses, district court probably erred in applying a two-level vulnerable-victim enhancement under USSG § 3A1.1(b)(1); however, any error was harmless. United States v. Ramos, 739 F.3d 250 (5th Cir. 2014).

        Under United States v. Jenkins, 712 F.3d 209 (5th Cir. 2013), the vulnerable-victim inquiry should focus on whether the factor that makes the person a vulnerable victim is incorporated in the offense guideline. Here, the only factor that made the children in the child-pornography images vulnerable as compared to other prepubescent children was the fact that some images depicted the children bound to chairs with rope; however, this was already accounted for in the sadistic-conduct enhancement of USSG § 2G2.2. Nevertheless, any error was harmless; the district court did not sentence within the erroneous range of 188 to 235 months, but rather varied downward to a 120-month sentence. Because it did not appear that the district court’s variance was arrived at by calculating downward from improperly calculated Guidelines, but rather was arrived at independently, the record showed that the district court would have imposed the same sentence even if the Guideline range had been properly calculated (as 151 to 188 months).

Child-pornography D validly waived appeal of his sen­tence where D affirmed that he had read the plea agree­ment containing the appeal-waiver provision and had understood that agreement. United States v. Higgins, 739 F.3d 733 (5th Cir. 2014).

        The plain language of the waiver (allowing only an appeal of a sentence in excess of the statutory maximum) barred D’s claim that the district court had improperly assessed D’s statutory minimum sentence as 15 years, rather than 5 years; the appeal waiver also barred D’s appellate claim that the written judgment’s recitation of the conditions of supervised release conflicted with the oral pronouncement of the supervised-release conditions. The written judgment, no less than the oral pronouncement, is also the “sentence” for purposes of appeal; therefore, an appeal regarding a potential conflict between the two sentences is an appeal of a sentence under the appeal waiver. Finding all of D’s appellate challenges barred by the appeal waiver, the Fifth Circuit dismissed his appeal.

Where Texas inmate challenged the constitutionality of the Texas statute providing that inmates must pay a $100 annual health care services fee when they receive medical treatment in the prison system (Tex. Gov’t Code § 501.063), district court did not err in granting prison director’s motion to dismiss. Morris v. Livingston, 739 F.3d 740 (5th Cir. 2014).

Noting that the circuits are split on whether the district court must instruct the jury to disregard evidence of a defendant’s pre-18 conduct when assessing guilt in a continuing crime, such as a conspiracy, but that the Fifth Circuit has not yet taken sides on that split, the Fifth Circuit held here that the court’s failure to give such an instruction did not constitute plain error given the substantial amount of evidence relating to D’s conduct after he turned 18. United States v. Harris, 740 F.3d 956 (5th Cir. 2014).

Court of Criminal Appeals

Evidence of the content from six calls over a ten-month period, combined with evidence of D’s combative conduct and verbal abuse toward complainant, was sufficient for D’s phone-harassment conviction. Wilson v. State, 448 S.W.3d 418 (Tex.Crim.App. 2014).

        D appealed her telephone-harassment conviction and claimed the evidence was legally insufficient. COA acquitted, finding that D’s calls were neither repeated nor reasonably likely to harass or annoy. CCA reversed and remanded, holding that (1) “repeated telephone communications” in Tex. Penal Code § 42.07(a)(4) does not require the communications to occur within a certain time frame in relation to one another, and (2) a facially legitimate reason for the communication does not negate per se an element of the statute. The jury could have rationally found that D, with the intent to harass, annoy, alarm, abuse, torment, or embarrass complainant, made repeated phone communications to complainant in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend her.

Trial court did not abuse its discretion in denying D’s new-trial motion on the ground that his trial counsel had a conflict of interest, despite counsel’s refusal to testify. Odelugo v. State, 443 S.W.3d 131 (Tex.Crim.App. 2014).

        After pleading guilty, on the advice of his retained trial counsel, to engaging in organized criminal activity, D filed a new-trial motion alleging a conflict of interest on counsel’s part. At the trial court’s hearing on the motion, trial counsel, accused of having misappropriated certain funds entrusted to him by his client, invoked his Fifth Amendment right to refuse to be a witness against himself. In response, D argued that
“[a]n inference can be taken from that” that counsel had misappropriated the funds. The court declined to adopt that inference and denied the motion. COA, noting that the entirety of the evidence offered by D in support of his new-trial motion was “uncontroverted due to [trial counsel]’s invocation of his Fifth Amendment right not to incriminate himself,” held that the trial court abused its discretion in denying the motion. It reversed the trial court (thereby vacating D’s conviction) and remanded for a new trial. CCA reversed and remanded.

        “[T]he trial court’s ruling . . . must be inspected from every reasonable vantage in the light most favorable to the trial court’s ruling, and found to have been deficient in each, before it may be overturned as an abuse of discretion. And in this case, there is at least one reasonable view of the record that would support the trial court’s denial of the appellant’s motion for new trial, notwithstanding the ‘uncontroverted’ nature of the appellant’s evidence. . . .” Furthermore, appellant’s right to effective, conflict-free counsel was not per se violated by counsel’s invocation of his Fifth Amendment right. “[G]iven our determination that the trial court reasonably found that trial counsel had not rendered ineffective assistance pre-conviction (that is, in the events leading up the trial court’s entry of a judgment of conviction, including the appellant’s failure to make the promised restitution payments), counsel’s conduct after that point in time (i.e., his assertion of his Fifth Amendment right) could only have affected what occurred post-conviction (i.e., at the hearing on the motion for new trial). Were we even inclined to afford the appellant any relief on the basis of trial counsel’s refusal to testify, it would be to grant him a new hearing on his motion for new trial—not summarily to grant him a new trial outright[.]”

        “Because the court of appeals sustained the appellant’s first and second issues on appeal, it did not reach the appel­lant’s ‘third and fourth issues, in which he argue[d] that the trial court erred in denying his new-trial motion on the ground that his trial counsel failed to adequately inform him of the im­migration consequences of his guilty plea.’ Accordingly, the cause is remanded to the court of appeals[.]”

D did not violate the unlawful carrying weapons statute by carrying a gun in the common area of his condominium complex because that area qualified as his own premises. Chiarini v. State, 442 S.W.3d 318 (Tex.Crim.App. 2014).

        D, a condominium owner, carried a handgun in the common area of the condo complex. The complex had 180 units, and the president of the homeowners’ association testified that D owned a 1/180th undivided interest in the common area. D was convicted of unlawfully carrying a weapon under Tex. Penal Code § 46.02. COA rendered an acquittal, which CCA af­firmed.

        D did not violate the “unlawful carrying weapons” (UCW) statute, which generally prohibits the carrying of a hand­gun but does not prohibit carrying a handgun on “the per­son’s own premises.” “We do not agree with the State that the plain language of the statute leads to absurd results, and in any event, we do not agree that extratextual factors support the State’s interpretation of § 46.02. We conclude that appellant’s undivided ownership interest in the common area of the condominium complex made the common area appellant’s ‘own premises’ under the UCW statute. Because appellant was carrying a handgun on his own premises, he did not violate § 46.02.”

Tex. Penal Code § 21.15(b)(1), which makes it a crime to photograph or electronically record an image of another person under broad circumstances, is facially unconstitutional. Ex parte Thompson, 442 S.W.3d 325 (Tex.Crim.App. 2014).

        D was charged with 26 counts under Texas Penal Code § 21.15(b)(1), which states, “A person commits an offense if the person . . . photographs or by videotape or other electronic means records . . . a visual image of another at a location that is not a bathroom or private dressing room . . . without [consent and] with intent to arouse or gratify the sexual desire of any person.” Each count of the indictment alleged that D, “with intent to arouse or gratify the sexual desire of THE DEFENDANT, did by electronic means record another . . . at a location that was not a bathroom or private dressing room.” Some of the counts contained additional information, describing “unknown female[s]” with various colors of bathing suits at “a water park.”

        D filed a pretrial habeas application, alleging that the statute on which his prosecution was based was facially unconstitutional. The trial court denied the application, and D appealed. COA held that § 21.15(b)(1) was void on its face in violation of the U.S. Constitution’s First Amendment. CCA affirmed COA.

        “It is obvious that the portion of the statute at issue is not the least restrictive means of protecting the substantial privacy interests in question. One need only look at the next subsection of the statute—§ 21.15(b)(2)—to see an example of a provision that is in fact narrowly drawn to protect substantial privacy interests—the provision that makes it a crime to ‘photograph or . . . record[] . . . a visual image of another at a location that is a bathroom or private dressing room.’. . . By its very wording negating the ‘bathroom or private dressing room’ element, the provision before us, § 21.15(b)(1), was designed as a catch-all. . . . The statutory provision at issue is extremely broad, applying to any non-consensual photograph, occurring anywhere, as long as the actor has an intent to arouse or gratify sexual de­sire. This statute could easily be applied to an entertainment reporter who takes a photograph of an attractive celebrity on a public street. But the statute operates unconstitutionally even if applied to someone who takes purely public photographs of another for personal reasons with the requisite intent. . . . [W]e must look to whether the improper reach of the statute is ‘real,’ as well as substantial. . . . And we can look to the prosecution before us as evidence of the real danger posed by the statute. The record in the present case consists solely of the indictments, but the descriptions in a number of the counts suggest that the images recorded were of people in a public place (a water park) and of areas of the person that were exposed to the public (wearing swimsuits).”

COA failed to analyze two of the four prongs that must be satisfied for the new-trial claim at issue and, therefore, failed to address every issue necessary to the disposition of the appeal. Carsner v. State, 444 S.W.3d 1 (Tex.Crim.App. 2014).

        D was convicted of capital murder and sentenced to life in prison without the possibility of parole. COA held that she was entitled to a new trial on the basis of newly discovered evi­dence. CCA concluded that COA neglected to analyze two prongs of the applicable four-pronged test and to address the State’s arguments regarding those prongs; the State argued in its brief for COA that those two prongs had not been met. CCA vacated COA’s decision and remanded to that court.

CCA remanded for COA to address whether D was harmed by any error in the jury charge; the charge allowed the jury to convict only if D “changed his address for more than seven days and intentionally or knowingly failed to report in person” to the police department to register the address, rather than the broader manner and means of conviction authorized by the registration statute. Thomas v. State, 444 S.W.3d 4 (Tex.Crim.App. 2014).

        “There was sufficient evidence to sustain Appellant’s conviction for failure to report a change in his address under Article 62.055(a) of the Texas Code of Criminal Procedure as alleged in the indictment. However, we remand this case to the court of appeals to decide whether Appellant was harmed by any error in the jury charge.”

A court may consider sua sponte whether laches should bar an applicant’s claim; CCA remanded D’s habeas application to give D an opportunity to explain his ten-year delay in filing the claim. Ex parte Smith, 444 S.W.3d 661 (Tex.Crim.App. 2014).

        Although the State did not plead laches in its answer to D’s application, CCA held that a court may consider sua sponte whether laches should bar an applicant’s claim. CCA further held that the current record supports a sua sponte laches inquiry. D’s application was remanded to the habeas court to give D an opportunity to explain his delay and for the entry of findings of fact and conclusions of law.

Habeas relief denied based on D’s unreasonable and unjustified delay in filing the application and the State’s assertion that it was prejudiced as a result. Ex parte Perez, 445 S.W.3d 719 (Tex.Crim.App. 2014).

        In his post-conviction habeas application, D raised claims of ineffective assistance of appellate counsel and sought permission to file an out-of-time petition for discretionary review to appeal his 1991 murder conviction. After D filed this 2011 application, and after an initial remand to the trial court for evidentiary development of D’s claims, CCA issued an opinion in which it revised its approach to laches as that doctrine applies to a long-delayed application for a post-conviction habeas writ. See Ex parte Perez, 398 S.W.3d 206 (Tex.Crim.App. 2013) (adopting Texas common-law doctrine of laches as proper standard in post-conviction writ proceedings). CCA then remanded to the trial court a second time for consideration of D’s claims in light of this revised approach. The trial court recommended relief be denied. CCA agreed.

        “[A]pplicant’s delay is unreasonable and unjustified in light of his failure to diligently assert his rights within an appropriate time period once he realized that he had been deprived of his right to seek discretionary review. We further agree with the trial court’s conclusion that the State has been prejudiced as a result of the delay in light of the faded memories of witnesses and the lack of available evidence, both of which have compromised the reliability of any future trial proceedings. See Perez, 398 S.W.3d at 219 (stating that laches should apply as bar to relief ‘when an applicant’s unreasonable delay has prejudiced the State, thereby rendering consideration of his claim inequitable’). The trial court also took into account the State’s and society’s interest in the finality of this now twenty-three-year-old conviction as a relevant factor, and we agree. . . . Although applicant has attempted to justify his delay by claiming that he was unaware of the proper procedural vehicles by which to further challenge his conviction in this Court, we find that those justifications are inadequate to warrant a grant of equitable relief in light of the excessive delay and applicant’s failure to take any meaningful action to assert his rights during the past decade and a half. Agreeing with the trial court’s assessment that there are no other equitable considerations that weigh in favor of granting relief, we hold that the application is thus barred by the equitable doctrine of laches.”

The balance of the warrant affidavit failed to provide probable cause; CCA remanded for COA to address the good-faith issue. McClintock v. State, 444 S.W.3d 15 (Tex.Crim.App. 2014).

        Having concluded that a Fourth Amendment violation occurred, COA held that the trial court should have granted appellant’s motion to suppress. The State petitioned to CCA that COA should not have reversed appellant’s conviction without first deciding whether the good-faith exception to the exclusionary rule applied. CCA granted the State’s petition to examine whether COA erred in that respect and also to determine whether COA erred in one of the questions it did decide—namely, whether after excluding (what it found to be) illegally obtained information from the search-warrant affidavit, the remaining information still served to supply probable cause to search. Concluding that COA did not err to hold that the balance of the warrant affidavit failed to provide probable cause, CCA vacated COA’s judgment and remanded for that court to address the good-faith issue in the first instance. The motion to suppress should not have been granted without first considering whether the good-faith exception to the exclusionary rule ought to apply.

D could not claim for the first time on appeal that the restitution was for items that she was not charged with stealing; she accepted the restitution requirement as a condition of probation by failing to object. Gutierrez-Rodriguez v. State, 444 S.W.3d 21 (Tex.Crim.App. 2014).

        During two vehicle burglaries, a number of items were stolen. D was charged with misdemeanor theft for stealing two of these items. After she was convicted, the trial judge placed her on probation and, as a condition of probation, imposed restitution for some of the missing items that D had not been charged with stealing. Evidence in the record showed the value of these items. Although the issue of restitution and the basis for imposing it were thoroughly discussed at trial, D raised no objection to the restitution requirement. Relying on Speth v. State, 6 S.W.3d 530 (Tex.Crim.App. 1999), CCA held that she could not claim for the first time on appeal that the restitution was for items she was not charged with stealing because, in accordance with Speth, she accepted the restitution requirement as a condition of probation by failing to object.

The State was permitted to bring its argument that the amended right-to-appeal certification was inaccurate for the first time on appeal, and the evidence showed that D did waive his right to appeal. Marsh v. State, 444 S.W.3d 654 (Tex.Crim.App. 2014).

        After D’s pretrial motion to suppress was denied, he pled nolo contendere. The written plea agreement included a waiver of appeal, and D asserted that he understood this when questioned by the trial judge. The judge then sentenced D as agreed and entered a certification that stated D had no right of appeal. One month later, D filed a motion to amend the certification to reflect that he did have a right to appeal, which COA granted, ordering the trial court to correct the certification. With the amended certification, D appealed the denial of his motion to suppress. COA affirmed the denial, but also asserted that the State had not preserved its argument that the amended certification was defective, and concluded that the evidence did not support the State’s argument that D had waived his right to appeal.

        CCA held that Tex. R. App. P. 25.2(f) did not require the State to preserve its argument that D waived his right to appeal; COA failed to acknowledge that this rule’s language plainly bears no mandate that the State raise a complaint about an amended certification as a prerequisite to arguing such issue on appeal. “Because the State was permitted to bring its argument that the amended certification was inaccurate for the first time on appeal and the evidence shows that Appellant did, in fact, waive his right to appeal the pretrial motion to suppress, we vacate the court of appeals’ decision. Further, because Appellant had validly waived his right to appeal, the court of appeals never acquired jurisdiction. Therefore, we order the court of appeals to withdraw its opinion and dismiss the appeal.”

The evidence was insufficient to support D’s convictions for money laundering and conspiracy to commit money laundering; what the State proved did not constitute either alleged offense. Delay v. State, 443 S.W.3d 909 (Tex.Crim.App. 2014).

        D was convicted of (1) money laundering funds of an aggregate value of $190,000, a first-degree felony at the time, and (2) conspiracy to commit money laundering of the same aggregate amount, then a second-degree felony. COA reversed both convictions and rendered acquittals, determining that the evidence was legally insufficient. CCA affirmed COA.

        “To be convicted of money laundering, the accused must be shown to have ‘knowingly . . . conduct[ed], supervise[d], or facilitate[d] a transaction involving the proceeds of criminal activity[,]’ and the crime that generated the proceeds must generally rise to the level of a felony. The appellant was convicted of having facilitated and conspired to facilitate the making of campaign contributions to certain Texas candidates with funds that were tainted because they were generated under cir­cumstances that constituted a felony-grade violation of the Texas Election Code. The appellant has steadfastly insisted, both at trial and on appeal, that the funds were not tainted, for purposes of either money laundering or conspiracy to commit the same, because as a matter of law, the circumstances under which the funds were generated did not violate any felony provision of the Election Code.

        “[S]ometimes appellate review of legal sufficiency involves simply construing the reach of the applicable penal provision in order to decide whether the evidence, even when viewed in the light most favorable to conviction, actually establishes a violation of the law. . . . ‘If the evidence establishes precisely what the State has alleged, but the acts that the State has alleged do not constitute a criminal offense under the totality of circumstances, then that evidence, as a matter of law, cannot support a conviction.’ We agree with the court of appeals’ ultimate conclusion that, as a matter of law, what the State has proven in this case does not constitute either of the alleged criminal offenses.”

Court of Appeals

In a trial for official oppression, Tex. Penal Code § 39.03(a)(1), there was sufficient evidence to reject a claim that police officer D’s use of force was necessary and to find that he knew his use of force was unlawful because a videotape of the arrest showed that after the victim was struck by a police car and fell to the ground, officers encircled him, and D kneed him four times as at least five other officers held, kicked, and stomped on him. Ryser v. State, No. 01-13-00634-CR (Tex.App.—Houston [1st Dist] Nov 25, 2014).

        “Houston Police Department Officer Drew Ryser’s use of force while arresting a burglary suspect, C. Holley, led to a police department internal investigation, termination of Ryser’s employment, and criminal charges against him. A jury convicted Ryser of the Class A misdemeanor offense of official oppression. . . . We affirm. . . . When viewing the evidence in the light most favorable to the verdict—including the arrest videotape—we conclude that there was legally sufficient evidence from which the jury could have concluded that Ryser intended to knee and strike Holley, and that he knew he was using more force than was immediately necessary to effectuate the arrest, i.e., that he knew his mistreatment of Holley was unlawful.”

        Furthermore, it was proper to instruct the jury on the victim’s right to self-defense. And, because the videotape of the beating was admitted at trial, the earlier publication of the video was not, by itself, so prejudicial and inflammatory that a change in venue was required. Finally, no harm resulted when a juror looked up and shared the dictionary definition of “mistreatment” regarding § 39.03(a)(1) (providing that a public servant acting under color of his office or employment commits an offense if he “intentionally subject another to mistreatment . . . that he knows is unlawful”).

The evidence was insufficient to support D’s conviction of tampering with physical evidence under Tex. Penal Code § 37.09(a)(1) because the State alleged only one specific means of tampering; evidence that D took the firearm from the scene on the night of the shooting before police were aware that an offense had been committed did not show that he removed the firearm from the scene at a time when he knew an investigation was pending or in progress. Graves v. State, No. 06-13-00233-CR (Tex.App.—Texarkana Dec 11, 2014).

Jury charge error egregiously harmed D because D was indicted for failing to comply with sex-offender registration, but the jury was charged with the law pertaining to the commission of that offense by a manner and means not alleged in the indictment. Thomas v. State, No. 06-13-00046-CR (Tex.App.—Texarkana Dec 30, 2014).

        D appealed his conviction of failure to comply with sex-offender registration requirements. In 2013, this court reversed the trial court. CCA reversed that judgment, holding that the evidence was legally sufficient to support D’s conviction. In this opinion on remand, COA was called on to consider whether D was harmed by any error in the jury charge. Finding that error in the charge did egregiously harm D, COA reversed the trial court and remanded for a new trial.

        The jury charge said that a person commits “Failure to Comply with Sex Offender’s Registration Requirements,” under Tex. Code Crim. Proc. ch. 62, namely, if a person required to register changes address and fails to report in person to the local law enforcement authority, and provide the authority with proof of identity and proof of residence, where the person has resided for more than seven days. This was an incorrect statement of the law as applied to this case. The jury charge, unlike the indictment, did not include the failure to comply with registration requirements by failing to advise the police de­partment of the anticipated move date and new address at least seven days before the move. At trial, D defended against the offense as set out in the jury charge (failure to report after moving). He testified that he did not change his registered address because he did not actually move from his registered address. Although D admitted that he told police that he lived at a different address, he explained that this misinformation was provided in an attempt to protect his family from eviction. Furthermore, the State’s arguments and evidence at trial exacerbated the jury-charge error.

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