March 2017 SDR – Voice for the Defense Vol. 46, No. 2

Voice for the Defense Volume 46, No. 2 Edition

Editor: Michael Mowla

From author Michael Mowla:

1. I summarize each case in a manner that allows readers to generally use this SDR instead of reading every case. However, if you determine that a summarized case may be relevant to one of your cases, I urge you to read the case and not rely solely upon these summaries.

2. Facts, further analysis and depth is provided in the electronic version of the SDR.

3. Note that I use the following abbreviations: Supreme Court of the United States (“SCOTUS”); Fifth Circuit (“USCA5”); other federal appellate courts (“USCA[court number]”); Texas Court of Criminal Appeals (“TCCA”); and the Texas Courts of Appeals (“TCA[court number], i.e., the Texas Fifth Court of Appeals is “TCA5”).

Supreme Court of the United States

Bravo-Fernandez v. United States, ___ U.S. ___, 137 S.Ct. 352 (Nov. 29, 2016).

        If a jury acquits on one count and convicts on another, and the convicted-count is overturned on appeal, because issue-preclusion is predicated on the assumption that the jury acted rationally, whether the overturned-count is subject to the Double Jeopardy Clause depends on whether the defendant can meet the burden of demonstrating that the jury resolved in their favor the question whether they violated the overturned-count.

United States Court of Appeals for the Fifth Circuit

United States v. Chapple, ___ F.3d ___, No. 15-20662, 2017 U.S. App. LEXIS 1667 (5th Cir. Jan. 30, 2017).

        18 U.S.C. § 3582 cannot be applied to a discharged sentence to reduce overall time spent in prison on consecutive sentences unless the defendant can show that he is subject to a “continuous stream” of imprisonment on multiple, consecutive sentences because he received the sentences at the same time. But, if he received the consecutive sentences on separate occasions, he is not subject to a “continuous stream” of imprisonment.

United States v. Lockhart, 844 F.3d 501, 2016 U.S. App. LEXIS 23254 (5th Cir. 2016).

        A constructive amendment to the indictment occurs if in the jury charge, language is included that materially modifies an essential element of the indictment, such as transforming the offense with which the indictment charged the defendant from one requiring a specific mens rea into a strict liability offense.

United States v. Mendez-Henriquez, ___ F.3d ___, No. 15-41551, 2017 U.S. App. LEXIS 1669 (5th Cir. Jan. 30, 2017).

        Whether an offense merits crime-of-violence (“COV”) sentencing-enhancement depends on whether the statute that constitutes a COV is divisible or indivisible. A statute is in­di­visible if it contains “a single set of elements to define a sin­gle crime.” Here, the court must use a categorical analysis in which it lines up the statute’s elements alongside those of the generic offense and sees if they match. If they match, or if the generic offense is broader, the enhancement applies. A statute is divisible if it “lists elements in the alternative, and thus defines multiple crimes.”

United States v. Mendoza-Velasquez, ___ F.3d ___, No. 16-40194, 2017 U.S. App. LEXIS 1666 (5th Cir. Jan. 30, 2017).

        If a defendant fails to object to error before the district court, review is based on plain error. To show reversible plain error, the defendant must show: (1) an error (2) that is clear or obvious, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings. To show this fourth prong, he must show that the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.”

United States v. Morgan, ___ F.3d ___, No. 15-30420, 2017 U.S. App. LEXIS 622 (5th Cir. Jan. 12, 2017).

        Under Teague v. Lane, 489 U.S. 288, 301 (1989), a new constitutional rule that may be applied retroactively is one that “breaks new ground or imposes a new obligation on the States or the Federal Government.” In Descamps, the SCOTUS held that “sentencing courts may not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements.” Because the ruling in Descamps did not break new ground or impose a new obligation on the States or the Federal Government, it cannot be applied retroactively.

Santillana v. Upton, ___ F.3d ___, No. 15-10606, 2017 U.S. App. LEXIS 747 (5th Cir. Jan. 16, 2017).

        New SCOTUS decisions interpreting federal statutes that substantively define criminal offenses automatically apply retroactively because they “necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal.” This is different than a case that has not yet been held to be retroactive. Burrage is retroactive because its holding goes not to “who decides a given question (judge or jury) or what the burden of proof is (preponderance versus proof beyond a reasonable doubt . . . questions that are the province of Apprendi and Alleyne,” but rather “what must be proved.” And it is a substantive decision narrowing the scope a federal criminal statute, Burrage applies retroactively to cases on collateral review.

Shore v. Davis, ___ F.3d ___, No. 16-70008, 2017 U.S. App. LEXIS 301 (5th Cir. Jan. 6, 2017).

(1) a federal court may not grant habeas relief unless the petitioner has first exhausted state remedies with respect to the claim at issue;

(2) under 28 U.S.C. § 2254(d), a habeas petitioner must prove that the state court’s constitutional adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established SCOTUS law; or “resulted in a decision that was based on an unreasonable determination of the facts (considering) the evidence pre­sented in the State court proceeding,” and a state-court decision is contrary to clearly established SCOTUS law if it “identifies the correct governing legal rule from [SCOTUS] cases but unreasonably applies it to the facts of the particular state prisoner’s case” or “extends a legal principle from [SCOTUS] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply”; and

(3) when ruling on a 2254 petition, a district court must defer to the factual findings of the state habeas court, and is limited to the record before the state court. And if a state habeas court decision is unaccompanied by explanation, the district court must “determine what arguments or theories . . . could have supported the state court’s decision,” and then ask “whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision” of the SCOTUS.

United States v. Solano-Hernandez, ___ F.3d ____, No. 15-41582, 2017 U.S. App. LEXIS 1458 (5th Cir. Jan. 26, 2017).

        To determine whether a prior offense is a crime-of-violence for purposes of enhancement, if the state statute is divisible (having “multiple alternative elements), the court applies the modified categorical approach, which permits the court to look to a limited class of documents (indictment, judgment, or plea agreement) to determine what crime with what elements the defendant was convicted of. Under the modified categorical approach, although judgments are appropriate records to consider for establishing the fact of conviction or to show which part of the statute a defendant was convicted of, if they contain narrowing facts, for a court to use those facts in the modified categorical approach, the facts must be “explicit factual finding[s] by the trial judge to which the defendant assented.” Thus, a court cannot rely on facts merely because they appear in a judgment.

United States v. Tanksley, ___ F.3d ___, No. 15-11078, 2017 U.S. App. LEXIS 913 (5th Cir. Jan. 18, 2017) (panel reh.).

        Whether an offense merits sentencing-enhancement based on a prior conviction depends on whether the underlying statute of the prior conviction is divisible or indivisible. Under Mathis, federal courts must first look to a state-court decision to determine whether a statute is divisible, and for Tex. Health & Safety Code § 481.112(a) (possession with intent to deliver a controlled substance), the TCCA did so in Lopez v. State, 108 S.W.3d 293, 294 (Tex. Crim. App. 2003): A person’s offer to sell cocaine in the morning and his possession of cocaine with the intent to deliver it to complete that sale in the evening constitutes one offense because 481.112 provides several different means for committing delivery of a single quantity of drugs, so no matter where along the line of actual delivery—from the offer to sell, to the possession of the drugs with the intent to deliver them, to the actual delivery itself—the drug dealer should be held accountable for the (single) gravamen of the offense—the distribution of dangerous drugs in society. Thus, 481.112(a) is an indivisible statute to which the modified categorical approach does not apply.

United States v. Thomas, ___ F.3d ___, No. 15-30758, 2017 U.S. App. LEXIS 1668 (5th Cir. Jan. 30, 2017).

        Under 18 U.S.C. § 666, theft from a program receiving federal funds, a person is an “agent” if he was authorized to act on behalf of [the entity receiving federal monies] with respect to its funds. The “funds” need not be purely federal, and the conduct need not have a direct effect on the federal funds, so the statue may reach misuse of virtually all funds of an agency that administers the federal program.

Texas Court of Criminal Appeals

Byram v. State, ___ S.W.3d ___, PD-1480-15, 2017 Tex. Crim. App. LEXIS 83 (Tex. Crim. App. Jan. 25, 2017).

        To determine whether an officer’s invoking the community-caretaking function was reasonable, a reviewing court must inquire: (1) whether the officer was primarily motivated by a community-caretaking purpose; and (2) whether the officer’s belief that the individual needed help was reasonable. Both questions must be answered “yes.” And, the standard for reasonableness is no different when the officer stops a vehicle to check the welfare of a passenger rather than the driver.

Pruett v. State, ___ S.W.3d ___, PD-0251-16, 2017 Tex. Crim. App. LEXIS (Tex. Crim. App. Jan. 25, 2017).

        A fire may be a deadly weapon depending on the manner in which it is used during the commission of an offense. To determine whether fire is a deadly weapon, a fact-intensive in­quiry must be conducted into the way the fire was used. However, fire is inherently dangerous in a way that cars are not and it is capable of inflicting serious bodily harm, especially intentionally started in a residential neighborhood. And, the capability of the fire to cause death or serious bodily injury is not obviated by the fact that neighbors managed to put the fire out or that firefighters arrived on time and did their job.

Texas Courts of Appeals

Buxton v. State, ___ S.W.3d ___, No. 01-15-00857-CR, 2017 Tex. App. LEXIS 456 (Tex. App.—Houston [1st Dist.] Jan. 19, 2017).

(1) In analyzing whether a defendant received notice of the offense adequate to satisfy due process concerns, the court is not required to look solely to the language of the charging instrument, and the defendant suffers no harm unless he did not receive notice of the State’s theory against which he would have to defend, but can consider the criminal complaint and notices filed by the state.

(2) An indictment under Tex. Penal Code § 21.02 (continuous sexual abuse of a child) does not require a specific culpable mental state because 21.02 is defined in terms of other acts that by their terms require a culpable mental state (such as sexual assault of a child or indecency by contact).

(3) Tex. Penal Code § 21.02 does not implicate the double jeopardy cause because the state may try to prosecute the defendant for the underlying charges later. Only when the state attempts such a prosecution can the defendant raise a double jeopardy claim.

Carson v. State, ___ S.W.3d ___, Nos. 06-15-00170-CR, 06-15-00171-CR, 06-15-00172-CR, & 06-15-00173-CR, 2017 Tex. App. LEXIS 811 (Tex. App.—Texarkana, Jan. 31, 2017).

(1) A trial judge who makes decisions based on extrajudicial evidence is not an impartial judge, and structural error occurs where a judge is not impartial.

(2) A presentence waiver of the right to appeal is unknowing and invalid as to any error in the punishment/sentencing phase if the defendant could not have known the nature of the claims he could have brought on appeal in the absence of the waiver.

(3) An appellate court is authorized to correct an inaccurate certificate of the right to an appeal

Fowler v. State, ___ S.W.3d ___, No. 06-16-00038-CR, 2017 Tex. App. LEXIS 734 (Tex. App.—Texarkana, Jan. 27, 2017).

        To authenticate evidence under Tex. Rule Evid. 901(a), the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is, and a “video of a video” is not admissible if the “original video” is not properly authenticated even though the “video of a video” is.

Lathan v. State, ___ S.W.3d ___, No. 02-15-0228-CR, 2017 Tex. App. LEXIS 287 (Tex. App.—Fort Worth, Jan. 12, 2017).

        Under Faretta v. Cal., 422 U.S. 806 (1975), if: (1) a defendant clearly and unequivocally declares to a trial judge that he wants to represent himself and does not want counsel, (2) the record affirmatively shows that a defendant is literate, competent, and understanding and that he is voluntarily exercising his informed free will, and (3) the trial judge warns the defendant that he thinks it is “a mistake not to accept the assistance of counsel,” and that the defendant will “be required to follow all the ‘ground rules’ of trial procedure,” the right of self-representation cannot be denied.

Hartfield v. State, ___ S.W.3d ___, No. 13-15-00428-CR, 2017 Tex. App. LEXIS 394 (Tex. App.—Corpus Christi, Jan. 19, 2017).

        When considering the Barker factors regarding speedy trial of: (1) the length of the delay; (2) the State’s reason for the delay; (3) timing of the defendant’s assertion of his right to a speedy trial; and (4) prejudice to the defendant because of the length of delay, a 33-year delay coupled with the state’s extreme negligence of failing to bring the case to trial amounts to a speedy-trial violation.

Porter v. State, ___ S.W.3d ___, 01-15-00960-CR, 2017 Tex. App. LEXIS 140 (Tex. App.—Houston [1st Dist.] Jan. 10, 2017).

        Tex. Rule Evid. 503(b)(2) recognizes a privilege “to prevent a lawyer . . . from disclosing any other fact that came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship.” This special rule in criminal cases does not broaden the attorney-client privilege to include tampering of evidence by an attorney. An illegal act by an attorney does not involve “legal services,” and such acts cannot be in furtherance of the attorney-client relationship.

Ex parte Smirl, ___ S.W.3d ___, No. 07-16-00055-CV, 2017 Tex. App. LEXIS 318 (Tex. App.—Amarillo, Jan. 12, 2017).

        Expunction order affirmed because although it was based on an “absence of probable cause at the time of the dismissal to believe the person committed the offense” after an order denying a motion to suppress in a DWI case was reversed by the TCA7, the TCA7’s decision found there to be no reasonable suspicion to initiate the stop, so all evidence obtained by the State after the unlawful detention was inadmissible. This left the state with no evidence to proceed on another trial, so a second trial would have resulted in an acquittal.

Weber v. State, ___ S.W.3d ___, 03-16-00338-CR, 2017 Tex. App. LEXIS 205 (Tex. App.—Austin, Jan. 12, 2017).

        Predicate offenses of continuous sexual abuse of a child under Tex. Penal Code § 21.02 (such as aggravated sexual assault of the same child) are always lesser-included offenses of continuous sexual abuse, so if a defendant is convicted of both continuous sexual abuse of a child and a predicate offense for the abuse of the same child, under the double jeopardy clause, the predicate offense must be reversed and dismissed.

Michael Mowla
Michael Mowla
Michael Mowla’s office is in Dallas. He is Board Certified in Criminal Appellate Law by the Texas Board of Legal Specialization. He represents clients at trial, on appeal, and on postconviction habeas corpus. He also handles complex state and federal civil litigation and appeals of civil cases. He may be contacted at 972-795-2401, , and

Michael Mowla’s office is in Dallas. He is Board Certified in Criminal Appellate Law by the Texas Board of Legal Specialization. He represents clients at trial, on appeal, and on postconviction habeas corpus. He also handles complex state and federal civil litigation and appeals of civil cases. He may be contacted at 972-795-2401, , and

Previous Story

January/February 2017 SDR – Voice for the Defense Vol. 46, No. 1

Next Story

April 2017 SDR – Voice for the Defense Vol. 46, No. 3

Latest from SDR