March 2016 SDR – Voice for the Defense Vol. 45, No. 2

Voice for the Defense Volume 45, No. 2 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

The judge in D’s murder trial did not violate U.S. Const. amend. VI by dismissing a juror who provided equivocal answers when asked if he could impose the death penalty if D was convicted. White v. Wheeler, 136 S. Ct. 456 (2015).

        The Supreme Court held that the Sixth Circuit did not give the required deference to the state court’s ruling under the Antiterrorism and Effective Death Penalty Act of 1996 and failed to ask the critical question: Was the Kentucky Supreme Court’s decision affirming the trial judge’s decision so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement? In this per curiam opinion, the Court said: “The Kentucky Supreme Court was not unreasonable in its application of clearly established federal law when it concluded that the exclusion of Juror 638 did not violate the Sixth Amendment. Given this conclusion, there is no need to consider petitioner’s further contention that, if there were an error by the trial court in excluding the juror, it should be subject to harmless-error analysis. . . . [T]his Court again advises the Court of Appeals that the provisions of AEDPA apply with full force even when reviewing a conviction and sentence imposing the death penalty. . . . The petition for certiorari and respondent’s motion to proceed in forma pauperis are granted. The judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded[.]”

Fifth Circuit

District court did not err in treating illegal-reentry D’s prior Texas conviction for possession of 4 to 200 grams of cocaine with intent to distribute as a crime of violence under USSG § 2L1.2 and an aggravated felony under § 1101(a)(43)(B). United States v. Teran-Salas, 767 F.3d 453 (5th Cir. 2014).

        On the face of the Texas delivery statute, the offense of delivery could theoretically be committed in a way that did not qualify under USSG § 2L1.2 or § 1101(a)(43)(B), namely, by “administering” a controlled substance. However, the Fifth Circuit held that D had not shown a reasonable probability that Texas would prosecute under such a non-qualifying theory; under Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), this failure precluded a finding that D’s prior Texas conviction was non-qualifying. 

        Where death-sentenced Texas D filed for Fed. R. Civ. P. 60(b) relief from a judgment denying federal habeas relief, the motion was properly treated as a successive habeas petition because the claims it made—relating to evidence previously undiscovered because of ineffective assistance of counsel—were fundamentally substantive, not procedural as required under Rule 60(b). In re Coleman, 768 F.3d 367 (5th Cir. 2014).

        D was not entitled to relief on the successive petition because the claim was previously raised and rejected and, in any event, did not meet the standard for a successive petition. For these reasons, D was also not entitled to a stay of execution.

The offense of theft by deception under Texas law is within the generic definition of “theft”; therefore, D’s Texas theft conviction was a “theft offense” and thus an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(G). United States v. Rodriguez-Salazar, 768 F.3d 437 (5th Cir. 2014).

In sentencing D for a hostage-taking conspiracy, 18 U.S.C. § 1203(a), district court did not err in applying a six-level enhancement pursuant to USSG § 2A4.1(b)(1) for a ransom demand. United States v. Fernandez, 770 F.3d 340 (5th Cir. 2014).

        The ransom enhancement applies anytime a defendant demands money from a third party for release of a victim, re­gard­less of whether that money is already owed to the de­fen­dant. Thus, D’s belief that he and his co-conspirators were going to demand repayment of a debt was a sufficient ground to apply the ransom enhancement; it did not have to be foreseeable to D that the original scheme was going to morph into a classic kidnapping of another person with a demand for ransom.

Board of Immigration Appeals properly determined that D was ineligible for cancellation of removal under 8 U.S.C. § 1229b(a) due to his 18 U.S.C. § 554(a) conviction because under the modified categorical approach, § 554(a) was divisible and constituted the aggravated felony of illicit trafficking in firearms under 8 U.S.C. § 1101(a)(43)(C). Franco-Casasola v. Holder, 773 F.3d 33 (5th Cir. 2014) (on reh’g).

        Under Descamps v. United States, 133 S. Ct. 2276 (2013), the statute of immigrant’s prior conviction (18 U.S.C. § 554(a), prohibiting the export of “merchandise, article[s], or object[s] contrary to any law or regulation of the United States”) was a “divisible” statute; the statute sets out a finite, though lengthy, list of every U.S. statute or regulation that prohibits such export. Because the statute was “divisible,” it was permissible under Descamps to use the “modified categorical approach” to narrow the basis for immigrant’s prior conviction and, under that approach, determine that the conviction was for the unlawful purchase of firearms for export and thus an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(C) (including “illicit trafficking in firearms” as an aggravated felony).

Where drug D’s first sentence reduction under 18 U.S.C. § 3582(c)(2) lowered his offense level under USSG § 2D1.1 sufficiently to cause his sentence instead to be calculated under the “career offender” Guidelines (USSG §§ 4B1.1 and 4B1.2), D was not entitled to a sec­ond sentence reduction under § 3582(c)(2), notwithstanding a further reduction in the offense level under § 2D1.1. United States v. Banks, 770 F.3d 346 (5th Cir. 2014).

        D’s new sentence was not imposed under § 2D1.1, but rather §§ 4B1.1 and 4B1.2, so the latest Guideline amendment to § 2D1.1 would not result in a lower Guideline range applicable to D.

Where D raised a meritorious sentencing issue for the first time in her untimely reply brief, the Fifth Circuit exercised its discretion to consider the brief and consider the issue, notwithstanding the usual rule that the Fifth Circuit will not consider issues raised for the first time in a reply brief. United States v. Myers, 772 F.3d 213 (5th Cir. 2014).

        (2) In this false-claims/fraud/identity-theft/tax-fraud case, it was a plain violation of the Ex Post Facto Clause (applicable to the advisory Sentencing Guidelines, as made clear in Peugh v. United States, 133 S. Ct. 2072 (2013)) to sentence D under the 2012 Guidelines in effect on the date of sentencing because the 2007 Guidelines in effect on the date of the commission of the offense were significantly more lenient. Particularly, due to a more stringent definition of who constituted a “victim” of the offense, D would not have received a six-level enhancement for 250 or more “victims”; because this raised D’s Guideline range from 46 to 57 months, up to 87 to 108 months, D’s substantial rights were affected, and the Fifth Circuit exercised its discretion to remand for resentencing.

        (3) The district court did not clearly err in applying to D a two-level “vulnerable victim” enhancement under USSG §3A1.1(b)(1). D knew she had gotten names and identities from a list of persons at a nursing home; D should have known that at least some people in nursing homes suffer from physical and mental disabilities that render them vulnerable.

D, stopped at the El Paso border crossing in a bus bound for Mexico, was properly prosecuted for being “found in” the United States after deportation in violation of 8 U.S.C. § 1326. United States v. Quezada Rojas, 770 F.3d 366 (5th Cir. 2014).

        Although a line of cases holds that an alien is not “found in” the United States if he voluntarily presents himself to immigration authorities when seeking entry into the United States, that rule has not been extended to the case of an alien, like D, seeking to exit the country. Likewise, although some cases hold that an alien has not truly “entered” the United States if he was never free of “official restraint” from the time he crossed the border, the “official restraint” doctrine has been applied only to persons entering the country, not to persons leaving.

Court of Criminal Appeals

It was error to determine D was entitled to have an original plea agreement presented to a second judge af­ter a first judge was recused. Rodriguez v. State, 470 S.W.3d 823 (Tex.Crim.App. 2015).

        D was charged with ten counts of sexual assault of a child and indecency with a child. Based on the advice of his counsel, he declined the State’s plea bargain recommending a 10-year sentence and proceeded to trial. The jury found D guilty and assessed a punishment of 8 life sentences and one 20-year sen­tence. He filed a motion for new trial claiming ineffective as­sis­tance of counsel. The trial judge granted the motion for new trial and motion to require the State to reinstate the plea-bargain offer of 10 years. The State reinstated the plea offer, and D accepted. After admonishing D and accepting his stipulations of guilt, the trial judge rejected the plea agreement and advised D that he could withdraw his guilty plea and go to trial or accept a 25-year sentence. D rejected the 25-year sentence and moved to recuse the judge based on demonstrated prejudice. The judge voluntarily recused herself, and a new judge was assigned. D filed another motion to require the State to re-offer the 10-year deal. The new judge declared the slate was wiped clean by the original judge’s recusal but that she would accept a new agreement if one were reached. The State offered a deal of 25 years and D accepted, pleading guilty to 5 of the counts in exchange for waiver of the other 5 counts. The judge accepted and signed the judgments of conviction.

        D appealed, claiming that he was entitled to a 10-year plea-bargain offer from the State, and that the trial court was required to accept the 10-year plea agreement. To determine whether D was prejudiced by his counsel’s deficient performance, COA considered whether D would have accepted the original plea had he been given competent advice by counsel, whether the State was likely to withdraw the plea bargain, and whether the trial court was likely to accept the plea bargain. Concluding that D was prejudiced, COA determined that the proper remedy was to require the State to reoffer the 10-year plea bargain and to have the agreement presented to a judge who had not recused herself. COA disagreed with D that he was entitled to specific performance of the plea agreement and stated that the new judge had the discretion to accept or reject the agreement.

        CCA reversed COA and reinstated the 25-year sentence. COA erred by finding the second judge was required to order the State to re-offer the 10-year plea a second time. The motion to recuse did not state any basis for prejudice on the part of the first judge, other than she had granted D’s motion for the State to re-offer a 10-year plea deal and then rejected that deal; the first judge’s comment that she was rejecting the deal because she had sat through the evidence was not a basis for finding prej­udice. Upon the voluntary recusal of the judge, however, the case started over from the beginning as if no plea negotiations had occurred.

Ds did not commit the crime of securing the execution of documents by deception by filing a false mechanic’s lien with a county clerk; Ds did not cause “another” to “execute” a document affecting property or pecuniary interests under Tex. Penal Code § 32.46(a)(1). Liverman v. State, 470 S.W.3d 831 (Tex.Crim.App. 2015).

        Ds filed mechanic’s lien affidavits in the county clerk’s office, alleging they performed “labor and/or materials” worth a certain amount on a house. As a result of these filings, the State charged Ds with securing the execution of documents by deception. The indictments alleged that Ds caused the county clerk to sign or execute the affidavits. Ds were convicted, fined, and placed on community supervision. COA reversed, holding that the evidence was legally insufficient because “the conduct of the court clerk filing and recording” the mechanic’s lien af­fi­davit in each case “was not the signing or executing of a doc­u­ment as contemplated by subsection 32.46(a)(1).” In this conclusion, COA held it need look no further than the two sub­sections of § 32.46. COA observed that subsection (a)(1) used the verbs “sign and execute” while subsection (a)(2) used “file and record.” CCA affirmed COA.

        “[COA]’s reliance upon § 32.46(a)(2) is misplaced, and we also conclude, contrary to various arguments advanced by the parties, that the text and history of that subsection is simply inconclusive with respect to the meaning of the term “execute” in § 32.46(a)(1). . . . The remaining question, then, is whether the county clerk’s acceptance of the document at the time of filing constitutes execution of the document by the clerk. We conclude that it does not. The Property Code characterizes the filing in question as the person claiming the lien filing the affidavit ‘with the county clerk.’ This language in the Property Code describes the county clerk as a mere recipient of the filing; the clerk need not have any active involvement in that occurrence. For many courts, electronic filing is now possible, and in those situations the entire transaction of receiving and acknowledging the filing may be handled by machine. We conclude that it is the filing person, not the clerk, who brings the mechanic’s lien affidavit into its final, legally enforceable form.”

CCA found, without a majority reason, that D was not entitled to habeas relief. Ex parte Marascio, 471 S.W.3d 832 (Tex.Crim.App. 2015).

        CCA’s entire opinion stated: “Applicant was convicted of three charges of felony Bail Jumping and Failure to Appear, and he was sentenced to eight years’ imprisonment for each charge, to run concurrently. In these applications for writ of habeas corpus under Article 11.07 of the Code of Criminal Procedure, Applicant contends that these multiple convictions violate the constitutional prohibition against double jeopardy. We filed and set these applications to determine several issues associated with Applicant’s double-jeopardy claims. We now conclude that Applicant is not entitled to relief. Relief is denied.”

CCA dismissed D’s habeas application because the final conviction D challenged was not the source of a later en­hancement; therefore, the later enhancement was not a collateral consequence of that conviction. Ex parte Cooke, 471 S.W.3d 827 (Tex.Crim.App. 2015).

        D was placed on deferred adjudication for family-violence assault in this Tarrant County case, and he was later adjudicated, Tex. Penal Code § 22.01(b)(2) (2000, 2006), (b)(2)(A) (2014). He filed here for habeas relief, claiming that a prior New Mexico conviction was improperly used for enhancement. His sentence in this case had discharged; he claimed, though, that CCA could still reach his complaint because he was suffering a collateral consequence of his conviction—namely, the use of the Tarrant County offense to enhance a third offense, a family-violence assault in Hood County. CCA disagreed.

        “Because applicant has discharged his sentence, the ques­tion here is whether he is suffering any collateral con­se­quence of his conviction. The only collateral consequence that has been alleged is the enhancement of the Hood County offense. . . . When applicant’s first Texas family-violence offense—the Tar­rant County offense—was committed, the assault statute provided that a prior family-violence-assault conviction alleged for enhancement had to be ‘under this section.’ Applicant’s claim is based on the ‘under this section’ language, which the parties and the habeas court agree would not include a conviction in New Mexico. But, as we shall explain, because a prior ‘conviction’ used for enhancement can be a deferred adjudication, the enhancement of the Hood County offense is not a collateral consequence of the Tarrant County conviction for habeas purposes. . . . [T]he conviction that resulted from applicant’s adjudication in the Tarrant County case—which is the conviction that he challenges in this proceeding—was not alleged in the Hood County indictment. The prior ‘conviction’ alleged for enhancement is the deferred adjudication. . . . [A]pplicant had not even been adjudicated when the Hood County indictment was returned. Moreover, applicant’s Tarrant County deferred adjudication would have been available to enhance the Hood County offense even if he had successfully completed his period of deferred adjudication and had never been adjudicated. And if that had occurred, he would clearly have had no remedy for the Tarrant County offense under [Tex. Code Crim. Proc. art.] 11.07 because he would not have a final conviction. In short, contrary to the parties’ contentions, the Tarrant County conviction that applicant challenges in this proceeding was not used to enhance the Hood County offense.”

The evidence was sufficient to show D had the requisite intent when he impersonated an assistant district attorney; he told an actual assistant district attorney that he undertook certain acts as an assistant district attorney upon which he intended the actual assistant district at­torney to rely in deciding whether to grant his “personal favor” in a friend’s case. Cornwell v. State, 471 S.W.3d 458 (Tex.Crim.App. 2015).

        D was convicted of impersonating a Dallas County assistant district attorney and sentenced to two years’ imprisonment. COA affirmed, holding the evidence was sufficient to show D impersonated a public servant with the intent to in­duce another to rely on his pretended official acts. Tex. Pen. Code § 37.11(a)(1). D conceded that he impersonated a public ser­vant but argued that the evidence failed to establish he did so with the requisite specific intent. CCA affirmed.

        “Section 37.11(a)(1) breaks down into two components, a culpable act component (actus reus) and a culpable mental state component (mens rea). It is essentially a nature-of-conduct offense with an accompanying specific intent. The State must prove both the conduct (impersonation) and the specific intent (to induce another to submit or rely). . . . We therefore focus on the second component of Section 37.11(a)(1), the culpable mental state and, specifically, the reliance theory: does the evidence show that Appellant had the specific ‘intent to induce another . . . to rely on his pretended official acts’? Does the phrase ‘pretended official act’ implicitly require a second actus reus beyond impersonation? Must an accused not only hold himself out falsely to be a public servant, but also ‘act as such,’ before it may be said that he intended to induce another to rely on that false impersonation?

        “[W]hile it is not necessary for the State to allege or prove a specific ‘pretended official act’—as an element, as under the former statute—it may be the case that, as a practical matter, the State will be unable to prove the requisite specific intent without evidence of such a ‘pretended official act’ upon which the accused intended to induce another to rely. For reasons similar to those that the court of appeals gave, we conclude that the evidence does establish that Appellant engaged in ‘pretended official acts’ upon which he intended [the actual assistant district attorney] to rely. . . . Appellant did not ask for this favor in his capacity as an ordinary citizen or concerned friend. The jury could readily have found that Appellant intended for [the actual assistant district attorney] to take into account his pretended official capacity as an assistant district attorney—including his pretended official act of telling her about his previous pretended official acts—and to rely on that in deciding whether to grant his ‘personal favor.’ By calling and speaking to an assistant district attorney as a purported member of the ‘same team,’ Appellant obviously hoped to gain her trust and good will. The jury was entitled to infer that Appellant believed his pretended status as an assistant district attorney, bolstered by his false claims of certain actions he had taken in that capacity, would render [the actual assistant district attorney] more predisposed to grant his request.”

CCA upheld dismissing the charge against D for violating Texas’ flag desecration statute; the statute was overbroad and covered expressive conduct protected by the First Amendment. State v. Johnson, 475 S.W.3d 860 (Tex.Crim.App. 2015).

        Based on constitutionality, the trial court dismissed the information charging D with violating Texas’ flag desecration statute, Tex. Penal Code § 42.11, arising out of D’s jumping from a sidewalk for a hanging flag, causing the flag to come off in his hand, and throwing it in the street. COA affirmed, find­ing § 42.11 was unconstitutional on its face because it was overbroad in violation of U.S. Const. amend. I.

        CCA affirmed. “With respect to constitutional provisions other than the First Amendment, a facial challenge to the constitutionality of a statute can succeed only when it is shown that the statute is unconstitutional in all of its applications. And usually, a defendant does not have standing to challenge a statute on the ground that it may be unconstitutionally applied to the conduct of others. But under the First Amendment’s ‘overbreadth’ doctrine, a law may be declared unconstitutional on its face, even if it may have some legitimate application and even if the parties before the court were not engaged in ac­tivity protected by the First Amendment. . . . [T]he Texas flag-destruction statute, by its text and in actual fact, prohibits a substantial amount of activity that is protected by the First Amendment, judged in relation to its legitimate sweep.”

Trial court erred by denying D’s request for an in­struc­tion on sudden passion where D testified he was scream­ing in panic before his accomplice stabbed the victim; D was awakened by the victim sexually assaulting him; the sexual assault, the stabbing, and D’s grabbing of the victim all occurred in a very brief timespan; and the jury could have deduced that the victim’s assault of D and D’s sudden reaction triggered a chain reaction that resulted in the victim’s death. Beltran v. State, 472 S.W.3d 283 (Tex.Crim.App. 2015).

        D was convicted of murder and sentenced to 70 years’ imprisonment. In a single issue on direct appeal, D asserted the trial court erred in denying his request for an instruction on sudden passion during the penalty phase under Tex. Penal Code § 19.02(d). COA affirmed and held that the court did not err in refusing the instruction because there was no evidence that D caused the victim’s death under the immediate influence of sudden passion. CCA reversed COA and remanded for an Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1984) harm analysis.

        “In order to have raised sudden passion, the defense would have had to put on some evidence: (1) that [D] acted under the immediate influence of terror, anger, rage, or resentment; (2) that [D]’s sudden passion was induced by some provocation by McKnight, and that such provocation would commonly produce such passion in a person of ordinary temper; (3) that [D] committed the murder (in this case, as a party) before regaining his capacity for cool reflection; and (4) that there was a causal connection between McKnight’s provocation, [D]’s passion, and the homicide. We conclude that the appellate court failed to consider the evidence raising the issue of sudden passion and erroneously focused on the evidence tending to show that [D] did not act under the immediate influence of sudden passion.” Furthermore, the law of the parties did not apply at the punishment phase of trial, and therefore the conduct of the primary actor was not relevant to whether D was entitled to a sudden passion instruction.

D’s statements asserting a blood draw was conducted without a warrant were not enough to apprise the trial court that it must consider whether there were exigent circumstances to permit the warrantless search; D failed to preserve error with respect to his Fourth Amendment complaint for purposes of Tex. R. App. P. 33.1(a). Douds v. State, 472 S.W.3d 670 (Tex.Crim.App. 2015).

            “Are isolated statements globally asserting that a blood draw was conducted without a warrant enough to apprise the trial court that it must consider whether there were exigent circumstances to permit a warrantless search in a driving while intoxicated case, when the context of the entire record in a motion to suppress refers to a different complaint? We conclude that the answer to this question is ‘no.’ Because this record shows [D] failed to preserve his complaint that the search was conducted in the absence of exigent circumstances or some other valid exception to the warrant requirement, we sustain the State’s first ground in its petition for discretionary review that contends that the court of appeals erred by reversing his conviction for misdemeanor DWI. . . . We accordingly reverse the judgment of the court of appeals and render judgment af­firm­ing appellant’s conviction.” D’s arguments presented a challenge to the admissibility of the blood evidence only on the basis of the officer’s application of the mandatory-blood-draw statute, Tex. Transp. Code § 724.012(b). Nothing about D’s arguments indicated that he was further challenging the constitutionality of the search based on the fact that it had been conducted without a warrant.

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