March 2019 SDR – Voice for the Defense Vol. 48, No. 2

Voice for the Defense Volume 48, No. 2 Edition

Editor: Michael Mowla

From Editor Michael Mowla:

        1. I summarize each opinion in a manner that allows readers to generally use this SDR instead of reading every opinion.

        2. If you determine that a summarized opinion is relevant to one of your cases, I urge you to read the opinion and not rely solely upon these summaries.

        3. The summaries reflect the facts and relevant holdings and do not reflect my opinion of whether the cases correctly: (1) recite the facts presented at trial; or (2) apply the law. My opinions (if any) are preceded by “Editor’s Note.”

        4. This SDR is for you. Send me suggestions on how I may improve it.

Supreme Court of the United States

Shoop v. Hill, 586 U.S. ____, No. 18-56, 2019 U.S.LEXIS 13 (Jan. 7, 2019) [Application of 28 U.S.C. §2254(d)(1)]

      Under 28 U.S.C. § 2254(d), federal habeas relief may be granted only if the state court’s adjudication resulted in a decision that was (1) contrary to or involved an unreasonable application of SCOTUS precedent that was clearly established at the time of the adjudication; or (2) based on an unreasonable determination of the facts (considering) the evidence presented in the State court proceeding.

      Under Harrington v. Richter, 562 U.S. 86, 103 (2011), a state court’s ruling must be so lacking in justification that “there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.

Stokeling v. United States, No. 17-5554, 2019 U.S. LEXIS 725 (U.S. Jan. 15, 2019) [Robbery and the ACCA]

      Under the Armed Career Criminal Act [18 U.S.C. § 924(e)(2)(B)] (ACCA), “violent felony” means any crime punishable by imprisonment for a term exceeding one year that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

      Under Johnson v. United States, 559 U.S. 133 (2010), actual and intentional touching (the level of force necessary to commit common-law misdemeanor battery) did not require the degree of force necessary to qualify as a violent felony under the ACCA’s elements clause because physical force means violent force (force capable of causing physical pain or injury to another person).

      Robbery that has as an element the use of force sufficient to overcome a victim’s resistance necessitates the use of “physical force” within the meaning of the ACCA [18 U.S.C. § 924(e)(2)(B)(i)].

      The force necessary to overcome a victim’s physical resistance is inherently “violent” and suggests a degree of power that would not be satisfied by the merest touching. Robbery that must overpower a victim’s will and necessarily involves a physical confrontation and struggle. The altercation need not cause pain or injury or even be prolonged, but it is the physical contest between the criminal and the victim that is itself capable of causing physical pain or injury.

United States Court of Appeals for the Fifth Circuit

United States v. Baker, No. 17-51034, 2019 U.S.App.LEXIS 623 (5th Cir. Jan. 7, 2019) (designated for publication) [Fed. Rule Evid. 1006 (summary testimony), Fed. Rule Evid. 804(b)(1) (former testimony), and 18 U.S.C. § 1343 (wire fraud) does not require an intent to obtain property directly from a victim]

      Summary testimony is allowed in limited circumstances in complex cases. While appropriate for summarizing voluminous records per Fed. Rule Evid. 1006, summary witnesses are not to be used as a substitute for, or a supplement to, closing argument. To minimize the danger of abuse, summary testimony must have an adequate foundation in evidence that is already admitted and should be accompanied by a cautionary jury instruction. Full cross-examination and admonitions to the jury minimize the risk of prejudice.

      Under Fed. Rule Evid. 804(b)(1) (former testimony), former testimony is not excluded as hearsay if the witness is now unavailable and: (A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and (B) is now offered against a party who had (or in a civil case, whose predecessor in interest had) an opportunity and similar motive to develop it by direct, cross or redirect examination.

      Two federal agencies are considered the “same party” for purposes of Fed. Rule Evid. 804(b)(1) (former testimony) only if one is statutorily required to report to the other or they cooperate to enforce the same statutory scheme.

      The SEC is an independent agency with its own litigating authority apart from the DOJ.

      When testimony in a prior civil proceeding is being offered against the government in a subsequent criminal proceeding, to determine whether the two agencies are predecessors in interest, a court considers: (1) the type of proceeding in which the testimony is given, (2) trial strategy, (3) the potential penalties or financial stakes, and (4) the number of issues and parties.

      A “scheme to defraud” means any plan, pattern, or course of action intended to deprive another of money or property or bring about some financial gain to the person engaged in the scheme.

      18 U.S.C. § 1343 (wire fraud) does not require an intent to obtain property directly from a victim.

United States v. Piper, No. 17-10913, 2019 U.S. App. LEXIS 901 (5th Cir. Jan. 10, 2019) (designated for publication) [Plain error, compulsory due process, motion for continuance based on a missing witness]

      When the defendant does not object to error before the district court, plain error review applies. Under Fed. Rule Crim. Proc. 52(b), a court of appeals may consider errors that are plain and affect substantial rights even though they are raised for the first time on appeal. Under Molina-Martinez v. United States, 136 S.Ct. 1338 (2016), and United States v. Olano, 507 U.S. 725 (1993), these conditions must be met before a court may consider plain error: (1) error that has not been intentionally relinquished or abandoned; (2) the error must be plain (clear or obvious); (3) the error must have affected the defendant’s substantial rights, which requires the defendant to show a reasonable probability that, but for the error, the outcome of the proceeding would have been different; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

      Under United States v. Valenzuela-Bernal, 458 U.S. 858, 872 (1982), the Due Process Clause of the Fifth Amendment guarantees that a defendant will be treated with that fundamental fairness essential to the very concept of justice.

      Under Washington v. Texas, 388 U.S. 14, 19 (1967), due process includes the right to present witnesses to establish a defense.

      Under Taylor v. Illinois, 484 U.S. 400, 408 (1988), the Compulsory Process Clause of the Sixth Amendment ensures that defendants have the right to the government’s assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt.

      Under United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982), to demonstrate a constitutional violation under either due process or compulsory process based on the deprivation of witness testimony, a defendant must make some plausible showing of how the testimony would have been both material and favorable to his defense. In exercising the right to present witnesses, a defendant must comply with established rules of evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.

      Under Fed. Rule Evid. 804(b)(3), statements against penal interests are admissible if: (1) the declarant is unavailable, (2) the statement subjects the declarant to criminal liability such that a reasonable person would not have made the statement unless he believed it to be true, and (3) the statement is corroborated by circumstances clearly indicating trustworthiness.

      Under Fed. Rule Evid. 804(a)(1), a declarant who invokes the Fifth Amendment privilege against self-incrimination is unavailable to testify.

      Under Williamson v. United States, 512 U.S. 594, 600–601 (1994), the rule of statements against interests per Fed. Rule Evid. 804(b)(3) does not allow admission of non-self-inculpatory statements even if made within a broader narrative that is generally self-inculpatory.

      Under Lilly v. Virginia, 527 U.S. 116, 124–125 (1999), statements against interests per Fed. Rule Evid. 804(b)(3) require an “indicia of reliability” such that adversarial testing would be expected to add little, if anything, to the reliability.

      A district court has broad discretion in deciding whether to grant a request for a continuance, and review is for an abuse of that discretion resulting in serious prejudice.

      When a defendant requests a continuance based on an unavailable witness, he must demonstrate that: (1) due diligence was exercised to obtain the attendance of the witness; (2) the witness would tender substantial favorable evidence; (3) the witness will be available and willing to testify; and (4) denial of the continuance would materially prejudice the defendant.

Editor’s note: The court should have allowed Ely’s testimony. Under Williamson v. United States, 512 U.S. 594, 600–601 (1994), the court could have prohibited the admission of the non-self-inculpatory parts of the statement and allowed the self-inculpatory parts. Not all statements made by a declarant that are within the broad range of what the declarant yaps about are 100% self-inculpatory.

United States v. Arellano-Banuelos, No. 17-11490, 2019 U.S. App. LEXIS 1233 (5th Cir. Jan. 14, 2019) (designated for publication) [Miranda in prisons and jails; Miranda applies in civil investigations]

      Under Miranda v. Arizona, 384 U.S. 436 (1966), Edwards v. Arizona, 451 U.S. 477, 481–482 (1981), and Rhode Island v. Innis, 446 U.S. 291, 300 (1980), the Fifth and Fourteenth Amendments’ prohibition against compelled self-incrimination requires that custodial interrogation be preceded by advice to the defendant that he has the right to remain silent and to the presence of an attorney. Miranda warnings are required only if an individual is “in custody” and “subjected to interrogation.” Interrogation refers not only to express questioning but also to words or actions by the police (other than those normally attendant to arrest and custody) that police should know are reasonably likely to elicit an incriminating response. This inquiry is focused primarily upon the perceptions of the suspect and not the intent of the police. An officer’s subjective intent may be relevant to what an officer should know, but proof of subjective intent is not required to establish that an interrogation occurred.

      Under Mathis v. United States, 391 U.S. 1 (1968), that the initial purpose of an investigation is civil rather than criminal does not render Miranda inapplicable.

      Under Maryland v. Shatzer, 559 U.S. 98, 114 (2010), Howes v. Fields, 565 U.S. 499, 514–515 (2012), and Thompson v. Keohane, 516 U.S. 99, 102 (1995), inmates are not automatically “in custody” within Miranda. When a prisoner is questioned, the determination of custody should focus on all the features of the interrogation to determine whether the circumstances of the interview are consistent with an interrogation environment in which a reasonable person would have felt free to terminate the interview and leave. A prisoner is free to leave if he is free to return to his “normal life” within the prison. Custody determinations under Miranda are a mixed question of law and fact, with relevant factors including: the location of the questioning, duration, statements made, presence or absence of physical restraints, and the release of the suspect at the end of questioning.

      Under Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990) (plurality opinion), and United States v. Virgen-Moreno, 265 F.3d 276, 293 (5th Cir. 2001), Miranda warnings are not required when an officer asks only routine booking questions to secure biographical data necessary to complete booking or pretrial services. Permissible booking questions include a suspect’s name, address, height, weight, eye color, date of birth, and current age. Questions designed to elicit incriminatory admissions are not covered under the routine booking question exception.

United States v. Freeman, No. 17-40739, 2019 U.S. App. LEXIS 2622 (5th Cir. Jan. 25, 2019) (designated for publication) [Roving border-patrol stops]

      Under United States v. Arvizu, 534 U.S. 266, 273 (2002), the Fourth Amendment extends to roving patrol stops.

      To temporarily detain a vehicle for investigatory purposes, an agent on roving patrol must be aware of specific articulable facts together with rational inferences from those facts that warrant a reasonable suspicion that the vehicle is involved in illegal activities such as transporting undocumented immigrants.

      Under United States v. Brignoni-Ponce, 422 U.S. 873, 884–885 (1975), the factors to be considered when determining if reasonable suspicion exists for a roving border-patrol stop are: (1) the area’s proximity to the border; (2) characteristics of the area; (3) usual traffic patterns; (4) the agents’ experience in detecting illegal activity; (5) behavior of the driver; (6) particular aspects or characteristics of the vehicle; (7) information about recent illegal trafficking of aliens or narcotics in the area; and (8) the number of passengers and their appearance and behavior. No single factor is determinative, and the totality of the circumstances known to the agents are examined when evaluating the reasonableness of a roving border patrol stop. The elements of a determination of reasonable suspicion or probable cause are the events that occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause.

      Under United States v. Jacquinot, 258 F.3d 423, 428 (5th Cir. 2001) (per curiam), a car traveling more than 50 miles from the border is too far from the border to support an inference that it originated its journey there. If there is no reason to believe that the vehicle came from the border, the remaining factors must be examined carefully. The proximity element is satisfied if the car was first observed within 50 miles of the border but was stopped more than 50 miles from the border, but this fact alone cannot support reasonable suspicion because otherwise agents would be free to stop any vehicle on any road near the border.

      Under United States v. Jones, 149 F.3d 364, 370 (5th Cir. 1998), when the officer’s actions are such that any driver, whether innocent or guilty, would be preoccupied with his presence, then any inference that might be drawn from the driver’s behavior is destroyed.

Editor’s note: One of the members of the panel dissented with this leadoff:

“There is no Fourth Amendment violation. Nevertheless, the majority—guided by the erroneous decision of the district court—misapplies Supreme Court and Fifth Circuit precedent in determining that the exclusionary rule applies. The majority’s well-intended blunder means that a clear violation of the immigration laws—transportation of an illegal alien—may go unpunished.”

Contrary to this judge’s introspective analysis, there was an egre­gious Fourth Amendment violation and it was not close. CBP had no idea that Freeman was transporting an illegal alien until the stop was completed. The Brignoni-Ponce factors notwithstanding (which still did not support the stop), if this stop occurred anywhere other than “near the border” (and 50 miles is not “near” the border), it would have been a patently illegal stop. Further, this nonsense that CBP stops every vehicle that turns on FM 2050 is a reason why the Fourth Amendment exists. This is not the former East Germany. CBP is not the Staatssicher­heitsdienst (Stasi, East Germany’s secret police). Law enforcement here does not decide who can drive on which public road. Agent Perez claimed that there are “legitimate reasons” to be on FM 2050 since there are “homes, ranches, and businesses” on the road. How about this for a “legitimate reason”: A person drives on FM 2050 (or any other public road in America) because HE CAN. It is not up to government agents to decide “legitimate reasons” for a person to drive on ANY public road in America. That a federal appellate judge would find nothing wrong with this attitude is troubling.

      The problems near the border are profound. CBP must be given the tools to patrol the area efficiently and legally. But “stopping every vehicle” on a public road 50 miles from the border be­cause CBP agents subjectively decide “legitimate reasons” for driving on that road is absurd. The agent even admitted that of the 30 stops he’s made, only 2–3 resulted in seizures (a success rate of 6–10%).

United States v. Hughes, No. 18-20015, 2019 U.S. App. LEXIS 3327 (5th Cir. Feb. 1, 2019) (designated for publication) [Payment of restitution or fines per 18 U.S.C. §§ 3572(d)(1), § 3664(f)(2), and 3664(n)]

      Under 18 U.S.C. §3664(f)(2), the district court shall specify in the restitution order the manner and schedule in which restitution is paid. It is the district court and not the government that determines how a defendant is to pay restitution, and the government can enforce only what the district court has ordered the defendant to pay.

      Under 18 U.S.C. §3572(d)(1), when a restitution order specifies an installment plan, unless there is language directing that the funds are also immediately due, the government cannot attempt to enforce the judgment beyond its plain terms absent a modification of the restitution order or default on the payment plan.

      Under 18 U.S.C. §3664(n), if a person obligated to provide restitution or pay a fine receives substantial resources from any source, including inheritance, settlement, or other judgment, during a period of incarceration, such person shall be required to apply the value of such resources to any restitution or fine still owed. However, the gradual accumulation of prison wages are not “substantial resources,” which refers to windfalls or sudden financial injections (i.e., unanticipated resources that become “suddenly available.”).

United States v. Sarli, No. 17-50294, 2019 U.S. App. LEXIS 1455 (5th Cir. Jan. 16, 2019) (designated for publication) [Scope of consent to search; confrontation clause]

      Under Florida v. Jimeno, 500 U.S. 248, 251 (1991), the standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of objective reasonableness: what a reasonable person would have understood by the exchange between the officer and the suspect. Under United States v. Garcia, 604 F.3d 186, 190 (5th Cir. 2010), an affirmative response to a general request is evidence of general consent to search. Where there is ambiguity regarding the scope of a consent, the defendant has the responsibility to affirmatively limit its scope.

Under Chapman v. California, 386 U.S. 18, 24 (1967), for a verdict to survive a Confrontation Clause violation, there must be no reasonable possibility that the evidence complained of might have contributed to the conviction.

Texas Court of Criminal Appeals

French v. State, No. PD-0038-18, 2018 Tex.Crim.App.LEXIS 1241 (Tex.Crim.App. Dec. 19, 2018) (designated for publication) [Some-harm factors under Almanza]

      Under Tex. Const. Art. V § 13 and Jourdan v. State, 428 S.W.3d 86, 94 (Tex.Crim.App. 2014), a defendant in a criminal trial has the right to a unanimous jury verdict on each element of the charged offense.

      Under Tex. Code Crim. Proc. Art. 36.29(a) and Ngo v. State, 175 S.W.3d 738, 745 (Tex.Crim.App. 2005), at least 12 jurors must render and return a verdict in a felony case. It must be concurred in by each juror and signed by the foreman.

      The standard to determine whether sufficient harm resulted from a jury-charge error to require reversal depends upon whether an appellant objected to the charge at trial. Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994). If a timely objection was made during trial, the finding of “some harm” requires reversal. If error is urged for the first time on appeal, the reviewing court may reverse only upon the finding of “egregious harm.” Ngo v. State, 175 S.W.3d 738, 743–744 (Tex.Crim.App. 2005). Under Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985), to determine whether unobjected-to jury-charge error was so egregious that a defendant was denied a fair and impartial trial, a reviewing court should examine: (1) the entire jury charge; (2) the state of the evidence; (3) the arguments of counsel; and (4) any other relevant information in the record.


  • The indictment presented the jury with four options to convict: (1) contacted J.F.’s anus with his sexual organ; (2) penetrated J.F.’s anus with his sexual organ; (3) contacted J.F.’s sexual organ with his sexual organ; and (4) penetrated J.F.’s sexual organ with his sexual organ, any of which is an F-1 under Tex. Penal Code § 22.021(e).
  • The jury charge authorized the jury to convict Appellant based on any one of the four theories alleged in the amended indictment.
  • The application paragraph characterized the two elements as: The defendant intentionally or knowingly caused the contact with or penetration of the anus of J.F. with his male sexual organ, or the defendant caused contact with or penetration of the female sexual organ of J.F. with his male sexual organ; and J.F. was at the time a child younger than 14 years of age.
  • On the issue of jury unanimity, the jury charge instructed the jury: “You must all agree on elements 1 and 2 listed above. With regard to element 1, you need not all agree on the manner in which the sexual assault was committed.” Thus, the jury was authorized to convict Appellant without agreeing as to which orifice he contacted or penetrated.
  • Appellant’s trial counsel objected, arguing that it should read, “With regard to element 1, you must all agree on the manner in which the sexual assault was committed.” The trial court overruled Appellant’s objection.
  • The court of appeals reversed, holding that the jury charge violated the juror unanimity requirement because it did not require the jury to agree as to which orifice Appellant contacted or penetrated (or both). The court also found Appellant’s objection to the erroneous jury charge sufficient to invoke the “some harm” standard of review under Almanza.

There was not “some harm” under Almanza

  • Under Tex. Const. Art. V § 13 and Jourdan v. State, 428 S.W.3d 86, 94 (Tex.Crim.App. 2014), a defendant in a criminal trial has the right to a unanimous jury verdict on each element of the charged offense.
  • Under Tex. Code Crim. Proc. Art. 36.29(a) and Ngo v. State, 175 S.W.3d 738, 745 (Tex.Crim.App. 2005), at least 12 jurors just render and return a verdict in a felony case. It must be concurred in by each juror and signed by the foreman.
  • Under Tex. Penal Code § 22.021(a)(1)(B)(i), (iii), & (iv), a person commits aggravated sexual assault of a child if he intentionally or knowingly (i) causes the penetration of the anus or sexual organ of a child by any means; (iii) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; or (iv) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor.
  • In the context of double jeopardy claims, each of the ways alleged in the indictment of committing aggravated sexual assault is a separate offense.
  • The Legislature intended that penetration of a child’s anus should be regarded as a distinct offense from penetration of her sexual organ even if they occur during the course of the same incident or transaction.
  • The court of appeals was correct to hold that the trial court erred by failing to require the jury to attain unanimity with respect to which of the two orifices alleged in the amended indictment that the Appellant contacted or penetrated before finding him guilty.
  • The standard to determine whether sufficient harm resulted from a jury-charge error to require reversal depends upon whether an appellant objected to the charge at trial. Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994). If a timely objection was made during trial, the finding of “some harm” requires reversal. If error is urged for the first time on appeal, the reviewing court may reverse only upon the finding of “egregious harm.” See also Ngo v. State, 175 S.W.3d 738, 743–744 (Tex.Crim.App. 2005), and Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (To determine whether unobjected-to jury charge error was so egregious that a defendant was denied a fair and impartial trial, a reviewing court should examine: (1) the entire jury charge; (2) the state of the evidence; (3) the arguments of counsel; and (4) any other relevant information in the record).
  • Factor (1)—the entire jury charge: Nothing other than the erroneous instruction itself either exacerbates or ameliorates the error.
  • Factor (2)—state of the evidence: Although the State primarily presented evidence of a sexual assault of J.F.’s anus by Appellant with his penis, Beard [CAC forensic-interviewer] said that J.F. reported that after Appellant had finished assaulting her, he would clean her “pee-pee” with “wipeys,” and there were one or two instances where “[J.F.] said that it was his private in her pee-pee, but she self-corrected” to “butt.” The jury could have inferred from J.F. that Appellant wiped her “pee-pee” and “butt” after he had assaulted her sexual organ and anus. It is possible that the jury could have inferred that Appellant may have been cleaning up after himself after he had contacted or penetrated not just her anus, but also her sexual organ, with his own sexual organ. This evidence might have taken on particular significance to jurors considering J.F.’s statements to the CAC that Appellant penetrated her “pee-pee,” but it also demonstrated that after each such claim by J.F., she consistently and expressly recanted it, denying that Appellant penetrated her “pee-pee” with his sexual organ. The jury was also presented with testimony from the CAC and from J.F. that Appellant caused J.F. to sit on his lap while the two were both naked.
  • Factor (3)—jury arguments: Nothing in the arguments of the parties explicitly encouraged the jurors to be non-unanimous with regard to which orifice Appellant contacted or penetrated.
  • Factor (4)—any other relevant information: Nothing else “particularly militates in favor of a finding of harm.”
  • “But even in light of all of this evidence, we still cannot say that Appellant suffered some harm, as a result, after our consideration of all four of the Almanza factors.”
  • The risk that a rational juror would have convicted Appellant on the basis that he contacted or penetrated J.F.’s sexual organ with his own and not also on the basis that he contacted or penetrated her anus is not “remotely significant,” and is so “highly unlikely” as to be “almost infinitesimal.” There was overwhelming evidence presented at trial that Appellant contacted and penetrated J.F.’s anus with his sexual organ on multiple occasions in several different locations.
  • The judgment of the court of appeals is reversed.

State v. Martinez, No. PD-0324-17, 2019 Tex.Crim.App.LEXIS 1 (Tex.Crim.App. Jan. 9, 2019) (designated for publication) [Collective-knowledge doctrine and probable cause to arrest under Tex. Code Crim. Proc. Art. 14.01(b)]


  • After Appellee was arrested for public intoxication without a warrant, he filed an MTS. To satisfy its burden, the State tried to show that Appellee was committing public intoxication, relying upon the exception for offenses committed in the presence of the police per Tex. Code Crim. Proc. Art. 14.01(b) (officer may arrest without a warrant for any offense committed in his presence or within his view). The State presented the testimony of officers Guerrero and Ramirez that they saw Appellee in a public place, intoxicated, and Appellee posed a danger to himself or others. However, Officer Quinn physically arrested Appellee, and he was not available to testify.
  • Because the trial court believed there was no evidence showing whether Quinn had knowledge of sufficient facts to constitute probable cause, the trial court granted Appellee’s MTS.
  • On appeal, the Court of Appeals affirmed the trial court’s ruling due to a lack of evidence about Quinn’s observations of Appellee’s intoxication or what, if anything, the testifying officers, Guerrero and Ramirez, told Quinn about their observations of Appellee’s intoxication.
  • When a defendant seeks to suppress evidence under the Fourth Amendment violation, the burden of proof is initially upon the defendant, who must produce evidence that defeats the presumption of proper police conduct (warrantless search or seizure occurred). The burden of proof then shifts to the State. If the State produces a warrant, the burden of proof shifts back to the defendant to show the invalidity of the warrant. If the State fails to produce a warrant, it must prove the reasonableness of the search or seizure.
  • Under the collective-knowledge doctrine, when several officers are cooperating, their cumulative information may be considered in assessing reasonable suspicion or probable cause. When there has been some cooperation between law enforcement agen­cies or between members of the same agency, the sum of the information known to the agencies or officers at the time of an arrest or search by any of the officers is to be considered in determining whether there was sufficient probable cause. It is not necessary for the arresting officer to know all the facts amounting to probable cause provided there is some degree of communication between the arresting officer and an officer who has knowledge of all the necessary facts. But evidence of communication between officers is not always a necessary re­quire­ment to apply the collective-knowledge doctrine.
  • Here, arresting officer Quinn is clearly cooperating with Gue­rrero and Ramirez.
  • Under the facts of this case, the sum of the information known to the cooperating officers—their cumulative information—should be considered in assessing probable cause.
  • A police officer may arrest an individual without a warrant only if probable cause exists with respect to the individual in question, and the arrest falls within one of the exceptions set out in the Code of Criminal Procedure. Probable cause for a warrantless arrest under Tex. Code Crim. Proc. Art. 14.01(b) may be based on an officer’s prior knowledge and personal observations, and an officer may rely on reasonably trustworthy information provided by another person in making the overall probable-cause determination. All the information to support probable cause does not have to be within an officer’s personal knowledge. The question is whether at that moment the facts and circumstances within the officer’s knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the arrested person had committed or was committing an offense.
  • Here, there was evidence that Appellee was in a public place, and that he was intoxicated to the extent that he was a danger to himself or to others.

Editor’s note: Another example of the “collective-knowledge doctrine”:

Ritcherson v. State, No. PD-0021-17, 2018 Tex.Crim.App.LEXIS 1208 (Tex.Crim.App. Dec. 12, 2018) (designated for publication) [Jury charge on lesser-included offense]

      Under Tex. Code Crim. Proc. Art. 37.09, an offense is a lesser-included offense if: (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission; (3) it differs from the offense charged only in the re­spect that a less culpable mental state suffices to establish its commission; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense. Under Rousseau v. State, 855 S.W.2d 666, 672–673 (Tex.Crim.App. 1993), and Bullock v. State, 509 S.W.3d 921, 924 (Tex.Crim.App. 2016), a defendant is entitled to a lesser-included instruction if: (1) the requested instruction is a lesser-included offense per Art. 37.09 (determined by comparing the elements of the lesser offense and descriptive averments in the indictment); and (2) there was evidence from which a rational jury could find the defendant guilty of only the lesser offense.

      Evidence that directly refutes or negates other evidence establishing the greater offense and raises the lesser-included offense or that is susceptible to different interpretations, one of which refutes or negates an element of the greater offense and raises the lesser offense. Evidence raising the lesser offense must be affirmatively in the entire record, and it does not matter whether the evidence is controverted or even credible).

Hall v. State, No. AP-77,072, 2019 Tex.Crim.App. LEXIS 43 (Tex.Crim.App. Jan. 30, 2019) (designated for publication) [Requirements for DNA-testing]

      To be entitled to postconviction DNA testing, a convicted person must show by a preponderance of the evidence (greater than 50% chance) that he would not have been convicted if exculpatory results had been obtained through DNA testing. “Exculpatory results” means only results excluding the convicted person as the donor of the DNA. In considering the likelihood of conviction, the reviewing court limits its review to whether exculpatory results would alter the landscape of evidence at trial and does not consider post-trial factual developments. Whether the DNA of a third party establishes a greater than 50% chance that the defendant would not have been convicted depends on the circumstances. In a case, the presence of a third party’s DNA may not exonerate the defendant from the crime. And even when its presence may tend to be exonerating, the convicted person’s burden will not be satisfied if the record contains other substantial evidence of guilt independent of that for which the movant seeks DNA testing. But under some circumstances, the presence of DNA from a third party is so strongly exonerating that the convicted person’s burden will be met despite the existence of other substantial inculpatory evidence. The presence of a third party’s DNA is so strongly exonerating when it is clear that the biological material in question was left by a lone assailant.

      The “lone assailant” theory provides that there was a lone assailant regardless of who it was—i.e., victim testifies that a single individual sexually assaulted her, semen was deposited inside her, victim claims she had not recently had sex with anyone else, and she identifies the defendant as her attacker. The fact that the victim was sexually assaulted by one individual does not depend on the accuracy of her identification. If the semen does not match the defendant’s DNA, the victim’s identification must have been wrong, however credible it might otherwise seem.

      DNA analysis is not as probative when the items tested are not at a place where only a reasonably limited number of DNA contributors would be found. Touch-DNA poses problems because: (1) epithelial cells are ubiquitous on handled materials, (2) there is an uncertain connection between the DNA profile identified from the epithelial cells and the person who deposited them, and (3) it cannot determine when an epithelial cell was deposited.

      Whether the burden has been met to show that the request for DNA testing has not been made to unreasonably delay the execution of sentence is a fact-specific and subjective inquiry. Circumstances include the promptness of the request, the temporal proximity between the request and the sentence’s execution, or the ability to request testing earlier.

Rhomer v. State, No. PD-0448-17, 2019 Tex.Crim.App. LEXIS 42 (Tex.Crim.App. Jan. 30, 2019) (designated for publication) [Expert testimony under Rule 702 and the difference between hard-science testimony under Kelly and soft-science testimony under Nenno]

      Under Tex. Rule Evid. 702 and Osbourn v. State, 92 S.W.3d 531, 537 (Tex.Crim.App. 2002), an expert may offer an opinion if he is qualified to do so by his knowledge, skill, experience, training, or education and if scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or determining a fact in issue. Witnesses who are not experts may testify about opinions or inferences when those opinions or inferences are rationally based on their perception and helpful to a clear understanding of their testimony or the determination of a fact in issue. There is no distinct line between lay opinion and expert opinion.

      Three requirements must be met before expert testimony can be admitted: (1) the witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will assist the fact-finder in deciding the case (qualification, reliability, and relevance).

      The specialized knowledge that qualifies a witness to offer an expert opinion may be derived from specialized education, practical experience, a study of technical works, or a combination of these things. An expert must have a sufficient background in a field, but a trial judge must also determine whether that background goes to the very matter on which the witness is to give an opinion. The expert’s background must be tailored to the specific area of expertise in which he desires to testify. The party offering expert testimony has the burden to show the witness is qualified on the matter in question.

      To determine whether a trial court has abused its discretion in ruling on an expert’s qualifications, an appellate court considers: (1) Is the field of expertise complex? (2) How conclusive is the expert’s opinion? (3) How central is the area of expertise to the resolution of the lawsuit? Greater qualifications are required for more complex fields of expertise and for more conclusive and dispositive opinions.

      An expert does not need to use scientific methods to be quali­fied. Because an expert is qualified by specialized knowledge, training, or experience, there is no requirement that the specialized knowledge, training, or experience be based on scientific principles.

      When an expert’s testimony is based on a hard science involving precise calculations and the scientific method, the expert must satisfy the test set forth in Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App. 1992): (1) the underlying scientific theory must be valid, (2) the technique applying the theory must be valid, and (3) the technique must have been properly applied on the occasion in question.

      When an expert’s testimony is based on fields of study outside the hard sciences, the test is under Nenno v. State, 970 S.W.2d 549, 561 (Tex.Crim.App. 1998): whether (1) the field of expertise is a legitimate one, (2) the subject matter of the expert’s testimony is within the scope of that field, and (3) the expert’s testimony properly relies upon or utilizes principles involved in the field.

      The hard sciences are areas in which precise measurement, calculation, and prediction are possible, which include mathematics, physical science, earth science, and life science. The soft sciences generally include psychology, economics, political science, anthropology, and sociology. Distinctions between hard and soft sciences may be blurred, and the reliability inquiry is flexible.

Texas Courts of Appeals

Duntsch v. State, No. 05-17-00235-CR, 2018 Tex.App.-LEXIS 10131 (Tex.App.—Dallas Dec. 10, 2018) (designated for publication) (Extraneous-offense evidence under Tex. Rule Evid. 404(b)(2), doctrine of chances, Tex. Rule Evid. 403]

      Under Tex. Rule Evid. 404(b)(1), evidence of an extraneous act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with this character. Under Tex. Rule Evid. 404(b)(2), such evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Under Devoe v. State, 354 S.W.3d 457, 469 (Tex.Crim.App. 2011), whether extraneous offense evidence has relevance apart from character conformity is a question for the trial court, the ruling from which is generally within the zone of reasonable disagreement if the extraneous offense evidence is relevant to a material, nonpropensity is­sue and the probative value of that evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury.

      Under Dabney v. State, 492 S.W.3d 309, 317 (Tex.Crim.App. 2016), the “doctrine of chances” provides that highly unusual events are unlikely to repeat themselves inadvertently or by happenstance. For the doctrine to apply, there must be a similarity between the charged and extraneous offenses since it is the improbability of a like result being repeated by mere chance that gives the extraneous offense probative weight. No rigid rules dictate what constitutes sufficient similarities. An extremely high degree of similarity is not required where intent, as opposed to identity, is the material issue.

      An extraneous offense may be used to illustrate intent where it cannot be inferred from the act.

      Under Gigliobianco v. State, 210 S.W.3d 637, 641–642 (Tex.Crim.App. 2006), when conducting an analysis under Tex. Rule Evid. 403, courts must balance: (1) the inherent probative force of the proffered item of evidence, along with (2) the proponent’s need for that evidence, against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.

State v. Opare, No. 02-18-00247-CR, 2018 Tex.App.-LEXIS 10851 (Tex.App.—Fort Worth, Dec. 27, 2018) (designated for publication) (op. on reh.) [Unpublished opinions have no precedential value and evidence not admitted but considered or viewed during trial]

      Under Tex. Rule App. Proc. 47.7(a), opinions that are “not designated for publication” or unpublished have no precedential value.

      Under Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007), when parties treat an exhibit, document, or other material as if those items had been admitted into evidence even though they were never formally offered or admitted in the trial court, they can be considered as part of the evidence on the theory that in the absence of a timely objection, displaying the evidence before the jury and eliciting testimony about it is tantamount to introducing it into evidence.

      Evidence that was not admitted may be treated as if it had been admitted for purposes of appellate review if: (1) the record clearly reflects that a jury saw, heard, or felt the unobjected-to item; or (2) the record clearly reflects that the trial court and the parties treated the evidence as admitted, and there is nothing about the evidence itself that requires discretion, interpretation, or authentication—i.e., the evidence “speaks for itself.”

Sheldon v. State, Nos. 05-17-00900-CV – 05-17-00903-CV, 2019 Tex. App. LEXIS 346 (Tex.App.—Dallas Jan. 17, 2019) (designated for publication) [Indigent defendants are not exempt from paying court costs; costs in multiple causes]

      Under Johnson v. State, 423 S.W.3d 385, 390 (Tex.Crim.App. 2014), the imposition of court costs is a nonpunitive recoupment of the costs of judicial resources expended in connection with the trial of the case.”

      Under Tex. Code Crim. Proc. Art. 42.16, court costs are assessed against a defendant where punishment consists of anything other than a fine. Per Tex. Gov. Code § 102.021, court costs are mandated.

      Unlike the statute providing for the recovery of fees for court-appointed attorneys, indigent defendants are not exempt from paying court costs.

      Under Armstrong v. State, 340 S.W.3d 759, 767 (Tex.Crim.App. 2011), fines are different than court costs because fines are punitive and are imposed as part of the sentence.

      Under Tex. Code Crim. Proc. Art. 102.073, in a single criminal action in which a defendant is convicted of two or more offenses or of multiple counts of the same offense, the court may assess each court cost or fee only once against the defendant. Each court cost or fee the amount of which is determined according to the category of offense must be assessed using the highest category of offense that is possible based on the defendant’s convictions.

      Under Tex. Code Crim. Proc. Art. 42.03 § 1(a) and State v. Crook, 248 S.W.3d 172, 174 (Tex.Crim.App. 2008), the trial court’s sentence must be orally pronounced in the defendant’s presence. A fine is part of a sentence. A judgment, including the sentence assessed, is merely the written declaration and embodiment of that oral pronouncement.

      Under Tex. Penal Code § 3.03(a) and State v. Crook, 248 S.W.3d 172, 177 (Tex.Crim.App. 2008), with few exceptions, sentences shall run concurrently when the defendant accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action. The judgment should not reflect a cumulated fine when sentences are ordered to run concurrently.

Totten v. State, No. 01-14-00189-CR, 2019 Tex. App. LEXIS 532 (Tex.App.—Houston [1st Dist.] Jan. 29, 2019) (designated for publication) [Art. 38.23(a) instruction]

      Under Tex. Code Crim. Proc. Art. 38.23(a), no evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of Texas or of the Constitution or laws of the United States shall be admitted in evidence against the accused on the trial of any criminal case. Under Art. 38.23(b), the jury shall be instructed that if it believes or has a reasonable doubt that the evidence was obtained in violation of the provisions of Art. 38.23, then the jury shall disregard any such evidence so obtained.

            Under Oursbourn v. State, 259 S.W.3d 159, 177 (Tex.Crim.App. 2008), to be entitled to an instruction under Tex. Code Crim. Proc. Art. 38.23(a): (1) the evidence heard by the jury must raise an issue of fact; (2) the evidence on that fact must be affirmatively contested; and (3) the contested factual issue must be material to the lawfulness of the challenged conduct. The evidence raising a fact issue may be strong, weak, contradicted, unimpeached, or unbelievable. To raise a disputed fact issue warranting the instruction, there must be some affirmative evidence that puts the existence of that fact into question. A cross-examiner’s questions do not create a conflict in the evidence although the witness’s answers to those questions might.

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

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