March 2020 SDR – Voice for the Defense Vol. 49, No. 2

Voice for the Defense Volume 49, No. 2 Edition

Editor: Michael Mowla

From Editor Michael Mowla:

Please do not rely solely on the summaries set forth below. The reader is advised to read the full text of each opinion in addition to the brief synopses provided.

TCDLA thanks the Court of Criminal Appeals for graciously administering a grant which underwrites the majority of the costs of our Significant Decisions Report. We appreciate the Court’s continued support of our efforts to keep lawyers informed of significant appellate court decisions from Texas, the United States Court of Appeals for the Fifth Circuit, and the Supreme Court of the United States. However, the decision as to which cases are reported lies exclusively with our Significant Decisions editor. Likewise, any and all editorial comments are a reflection of the editor’s view of the case, and his alone.

SUPREME COURT OF THE UNITED STATES

Editor’s note: No significant criminal cases were handed down by the SCOTUS since the last SDR.

United States Court of Appeals for the Fifth Circuit

United States v. Foley, No. 19-20129, 2020 U.S.App.LEXIS 61 (5th Cir. Jan. 3, 2019) (designated for publication)[Bare allegations in revocation petitions] 

• A sentence imposed on revocation of supervised release is reviewed under a “plainly unreasonable” standard: (1) ensure that the district court committed no significant procedural error (failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, failing to adequately explain the sentence, including explaining deviations from the Guidelines range; then (2) consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard (A sentence is substantively unreasonable if it (1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrelevant or improper factor that a dominant factor in the sentence, or (3) represents a clear error of judgment in balancing the sentencing factors. Even if a sentence is substantively unreasonable, it is vacated it if the error is obvious under existing law so it must be plainly unreasonable.  
• No limitation is placed on information about the background, character, and conduct of a person convicted of an offense that a district court may consider for imposing a sentence. But it is improper to rely on a bare arrest record. An arrest record is bare if it refers to the mere fact of an arrest—date, charge, jurisdiction and disposition—without information about the underlying facts. An arrest record is not bare and may be relied on when accompanied by facts that gave rise to an unadjudicated arrest and has an adequate evidentiary basis with sufficient indicia of reliability. A district court errs when it relies on a bare allegation of a criminal violation in a revocation petition unless it is supported by evidence adduced at a hearing or contains other indicia of reliability. 

Editor’s note: although all factors of an impermissible upward-variance exist because the petition contained “bare allegations” of new criminal violations, the error was “not clear under existing law because the court has never held in a published opinion that it is impermissible for it to rely on ‘bare allegations’ of new criminal violations.” Circular reasoning?  

United States v. Tapia, No. 18-10161, 2020 U.S.App.LEXIS 206 (5th Cir. Jan. 6, 2019) (designated for publication) [Preservation of error and plain error review] 

• To preserve error, a party must raise an objection that is sufficiently specific to: (1) alert the court to the nature of the error; and (2) provide an opportunity for correction. A party is not required to object in ultra-precise terms but must provide the court an opportunity to adjudicate the issue and cure any alleged breach. 
• When the defendant does not object to error, plain error review applies. Under Fed. Rule Crim. Proc. 52(b), Molina-Martinez v. United States, 136 S.Ct. 1338 (2016) and United States v. Olano, 507 U.S. 725 (1993), a reviewing court may consider errors that are plain and affect substantial rights even though they are raised for the first time on appeal. The defendant must show that the error: (1) was not intentionally relinquished or abandoned; (2) is plain (clear or obvious); (3) affected substantial rights (must show a reasonable probability that but-for the error, the outcome of the proceeding would have been different); and (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.

United States v. Varner, No. 19-40016, 2020 U.S.App.LEXIS 1346 (5th Cir. Jan. 15, 2019) (designated for publication) [Jurisdiction of district courts; postconviction means to amend a judgment] 

• Absent jurisdiction conferred by statute, district courts lack power to consider claims and appellate courts may only correct the error of the district court in entertaining the suit. 
• Postconviction statutes to amend a judgment are: Fed. Rule Crim. Proc. 35 (14 days post-sentencing to correct arithmetical, technical, or other clear error; or government motion for sentence reduction); Fed. Rule Crim. Proc. 36 (correction of a clerical error); 18 U.S.C. § 3582(c)(2) (amendment to guidelines for modification of sentence based on a range lowered by the Sentencing Commission per 28 U.S.C. § 994(o)); 18 U.S.C. § 3742 (modification during direct appeal); and 28 U.S.C. § 2255 (writ of habeas corpus challenging the validity of conviction or sentence).

United States v. Mazkouri, No. 18-20650, 2019 U.S.App.LEXIS 37167 (5th Cir. Dec. 16, 2019) (designated for publication) [Healthcare Fraud per 18 U.S.C. § 1347; Fed. Rule Evid. 1006; deliberate-ignorance instruction; factual basis for a sentence under Gall v. United States, 552 U.S. 38 (2007); financial loss caused by fraud under U.S.S.G. § 2B1.1(b)(1); vulnerable victims under U.S.S.G. § 3A1.1(b)] 

• Under Fed. Rule Evid. 1006, a summary, chart, or calculation to prove the content of voluminous writings that cannot be conveniently examined in court is allowed. A summary’s proponent must make the originals or duplicates available at a reasonable time and place but there is no rule about when the summary itself must be disclosed. The essential requirement of summaries is not that they be free from reliance on any assumptions but rather that the assumptions be supported by evidence in the record. 
• A district court’s evidentiary rulings are reviewed for an abuse of discretion. Mistakes are subject to harmless-error review.  
• A witness-accomplice’s guilty plea may generally be admitted into evidence if it serves a legitimate purpose and a proper limiting instruction is given. Legitimate purposes include blunting the potential effects of impeachment and clarifying the nature of the arrangement between the Government and the witness for determining credibility.  
• Jury instructions are reviewed for an abuse of discretion, affording substantial latitude in describing the law to the jury. The 5th Circuit assesses whether the charge was a correct statement of the law applicable to the factual issues confronting the jury. The district court may not instruct the jury on a charge the evidence does not support. The evidence is viewed in the light most favorable to the Government.  
• A deliberate-ignorance instruction informs the jury that it may consider evidence of the defendant’s charade of ignorance as circumstantial proof of guilty knowledge. Under United States v. Threadgill, 172 F.3d 357, 368 (5th Cir. 1999), it is appropriate when the evidence shows: (1) subjective awareness of a high probability of the existence of illegal conduct, and (2) purposeful contrivance to avoid learning of the illegal conduct. Even if the district court erred by instructing the jury on deliberate ignorance, substantial evidence of actual knowledge renders error harmless.  
• Under Gall v. United States, 552 U.S. 38, 51 (2007), when the factual basis for a sentence is challenged, the 5th Circuit considers whether the district court relied on clearly erroneous facts. A factual finding is clearly erroneous only if after reviewing all the evidence the court has a definite and firm conviction that the district court erred. The district court’s factual findings at sentencing must be found by a preponderance of the evidence.  
• Generally, a PSR bears sufficient indicia of reliability to be considered as evidence by the sentencing judge in making factual determinations. A district court may adopt facts contained in the PSR without further inquiry if those facts have an adequate evidentiary basis with sufficient indicia of reliability and the defendant does not present rebuttal evidence or otherwise demonstrate that the information in the PSR is unreliable. 
• Under U.S.S.G. § 2B1.1(b)(1) & cmt. n.3(C), an increase is allowed in the offense level based on the amount of financial loss caused by fraud. The district court need only make a reasonable estimate of the loss, which is the greater of actual loss or intended loss.  
• The amount fraudulently billed to Medicare is prima facie evidence of the intended loss, but the parties may introduce evidence showing the amount billed overstates or understates the billing party’s intent.  
• When fraud is so pervasive that separating legitimate from fraudulent conduct is not reasonably practicable, the burden shifts to the defendant to show that certain amounts are legitimate. Absent such evidence, the district court may treat the entire claim for benefits as intended loss.  
• Under U.S.S.G. § 3A1.1(b)(1) and § 1B1.3, a 2-point increase applies when the defendant knew or should have known that a victim was vulnerable due to age, physical or mental condition, or otherwise particularly susceptible to the criminal conduct. Under U.S.S.G. § 3A1.1(b)(1) and § 1B1.3, another 2-point increase applies if the offense involved many vulnerable victims.  

Editor’s note: Defendant “sometimes billed more than 24 hours of services in one day, and in one case 58.9 hours for 106 patients in a day.”    

United States v. Noria, No. 19-20286, 2019 U.S.App.LEXIS 37514 (5th Cir. Dec. 18, 2019) (designated for publication) [First page of Immigration Form I-213s; Confrontation clause, public records exception under Fed. Rule Evid. 803(8)] 

• The first page of I-213s are not testimonial because it contains only routine biographical information and is primarily used as a record for tracking the entry of aliens.  
• Under Crawford v. Washington, 541 U.S. 36, 53-54 (2004), a defendant’s confrontation right is violated when the government introduces testimonial statements of a witness who did not appear at trial unless that witness was unavailable to testify and the defendant had a prior opportunity for cross-examination. Under Davis v. Washington, 547 U.S. 813, 821 (2006), “testimony” means a declaration or affirmation made for establishing or proving some fact and includes prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and interrogations. The testimonial character of the statement separates it from other hearsay that while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause. The “testimonial” statement must have a primary purpose of establishing or proving past events potentially relevant to later prosecution. Thus, business and public records are generally not testimonial because they are created for the administration of an entity’s affairs and not for establishing or proving some fact at trial. But if a public record is prepared for use at trial, it is testimonial and inadmissible absent its creator’s testimony. 
• Under Fed. Rule Evid. 803(8), public records are not excluded by the rule against hearsay regardless of whether the declarant is available as a witness. A “record or statement of a public office” qualifies: (A) it sets out: (i) the office’s activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and (B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness. This exception permits the admission of public records prepared for reasons independent of specific litigation. It assumes that the lack of motivation on the part of the official to do other than mechanically register an unambiguous factual matter makes such records inherently reliable. 
• Under Fed. Rule Evid. 803(8)(A)(ii), the prohibition against public records of matters observed by law enforcement in criminal cases does not prevent the admission of all reports prepared by officers. Reports prepared in a routine, nonadversarial setting are allowed by those resulting from the subjective endeavor of investigating a crime and evaluating the results of that investigation are not. 
• Under Idaho v. Wright, 497 U.S. 805, 814 (1990), although hearsay rules and the Confrontation Clause are generally designed to protect similar values, they are not wholly congruent. Even if evidence is sufficiently reliable to qualify for admission under a recognized exception to the hearsay rule, it cannot be admitted if it violates the Confrontation Clause. 

United States v. Ramirez-Cortinas, No. 19-50182, 2019 U.S.App.LEXIS 36958 (5th Cir. Dec. 13, 2019) (designated for publication) [Illegal reentry under 8 U.S.C. § 1326(a); review of the dismissal of an indictment; asylum under 8 U.S.C. § 1101(a)(42)(A); & withholding of deportation under 8 U.S.C. § 1231(b)(3)(A)] 

• Under 8 U.S.C. § 1326(a), it is a crime for aliens who have been previously deported from the United States to reenter the country unlawfully. Under 8 U.S.C. § 1326(d) and United States v. Mendoza-Lopez, 481 U.S. 828, 838-839 (1987), an alien charged under § 1326(a) may collaterally attack the validity of the underlying deportation order by showing: (1) exhaustion of administrative remedies available; (2) deportation proceedings at which the order was issued improperly deprived him the opportunity for judicial review; and (3) entry of the order was fundamentally unfair. A showing of actual prejudice is required, meaning that the defendant has the burden to show there was a reasonable likelihood that but-for the errors, he would not have been deported. 
• Under INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) and 8 U.S.C. § 1101(a)(42)(A), asylum is available to an alien who is unable or unwilling to return to his home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a social group or political opinion.  
• Under 8 U.S.C. § 1231(b)(3)(A), to be eligible of withholding of deportation, the alien must demonstrate a clear probability of persecution upon return. 

United States v. Thompson, No. 18-11224, 2019 U.S.App.LEXIS 37512 (5th Cir. Dec. 18, 2019) (designated for publication) [Sufficiency of the evidence; but-for causation; penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C)] 

• Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), when reviewing the sufficiency of the evidence, a court views all evidence whether circumstantial or direct in the light most favorable to the government, with all reasonable inferences and credibility choices to be made in support of the jury’s verdict. The jury has the sole authority to weigh conflicting evidence and evaluate the credibility of witnesses. Evidence is sufficient to support a conviction if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The inquiry is limited to whether the jury’s verdict was reasonable, not whether the reviewing court believes it to be correct. A preserved sufficiency claim is reviewed de novo but with substantial deference to the jury verdict.  
• If a defendant fails to file motions for judgment of acquittal under Fed. Rule Crim. Proc. 29 after the close of the government’s evidence and after the verdict, review is under the manifest miscarriage of justice standard, in which a claim of insufficiency is rejected unless the record is devoid of evidence pointing to guilt or if the evidence is so tenuous that a conviction is shocking. 
• Under Burrage v. United States, 571 U.S. 204, 218-219 (2014), where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless such use is a but-for cause of the death or injury. It does not require that the defendant directly distribute the drugs to the end-user or that another be the final link in the causal chain.  
• Under United States v. Salinas, 918 F.3d 463, 466 (5th Cir. 2019), but-for causation requires the Government to show merely that the harm would not have occurred but-for (in the absence of) the defendant’s conduct. The standard is not difficult to meet because it asks whether the outcome would have occurred in the absence of the action. There may be many but-for causes of any given event.  

Editor’s note: Despite four other dangerous drugs in her system (meth, cocaine, opiates, and benzodiazepine), and Mason alone injecting heroin into Myers, per the government’s expert it was Myers’s use of heroin that was the but-for cause of her “serious bodily injury” even though it’s not clear whether it was Thompson’s heroin that Mason injected into Myers. This gives special meaning to a rule of statistics known as “correlation does not imply causation,” the false cause-and-effect relationship between two variables solely based on an observed association or correlation between them.    

Texas Court of Criminal Appeals

Burg v. State, No. PD-0527-18, 2020 Tex.Crim.App. LEXIS 55 (Tex.Crim.App. Jan. 29, 2020) (designated for publication) (DWI, Montgomery Co.) [License-suspension by a court for DWI is not part of the sentence; waivable error cannot be raised for the first time on appeal] 

• A license-suspension by a trial court for DWI is not part of a sentence that can render a sentence “illegal” because it is a collateral consequence rather than a punishment.  
• Under Tex. Rule App. Proc. 33.1, a contemporaneous objection must be made to preserve error. Rule 33.1 applies to category-three “forfeitable” Marin rights and not to category-one “absolute” or category-two “waivable-only” Marin rights—once that are fundamental to the proper functioning of the system.  
• The right to be sentenced legally is an absolute or waivable-only right. The right to be free of an unauthorized collateral consequence of a criminal conviction is a forfeitable right.  

A person does not have the “right” to be free from a license-suspension because driving is a privilege, not a right. License-suspensions upon conviction are not a “punishment” required in a judgment as part of a sentence. An unauthorized suspension falls outside of an “illegal sentence.” 

Jordan v. State, No. PD-0899-18, 2020 Tex.Crim.App. LEXIS 101 (Tex.Crim.App. Feb. 5, 2020) (designated for publication) (Deadly Conduct, Bowie Co.) [Jury instruction for deadly force in self-defense; multiple aggressors] 

• Under Tex. Penal Code § 9.31(a), a person is justified in using force when and to the degree he reasonably believes necessary to protect against another’s use or attempted use of unlawful force. Under Tex. Penal Code § 9.32(a), a person is justified in using deadly force if he would be justified in using force per § 9.31(a) and reasonably believes deadly force is immediately necessary to protect himself against the another’s use or attempted use of unlawful deadly force. The evidence does not have to show that the complainant was using or attempting to use unlawful deadly force because a person has the right to defend himself from apparent danger as he reasonably apprehends it. Self-defense is a confession-and-avoidance defense requiring the defendant to admit his otherwise illegal conduct so he cannot invoke it and deny the conduct.  
• Regardless of the strength or credibility of the evidence, a defendant is entitled to an instruction on any defensive issue that raised by the evidence. A defensive issue is raised by the evidence if there is sufficient evidence to support a rational jury finding on each element of the defense. The evidence is viewed in the light most favorable to the defendant’s requested instruction.  
• If the evidence viewed from the defendant’s standpoint shows an attack or threatened attack by more than one assailant, the defendant is entitled to a multiple-assailants instruction. The issue may be raised against nonaggressors if they seem to be encouraging, aiding, or advising the aggressor.  

Under Ngo v. State, 175 S.W.3d 738, 743-744 (Tex.Crim.App. 2005) and Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994), if a timely objection is made to jury-charge error, the finding of “some harm” requires reversal. Under Cornet v. State, 417 S.W.3d 446, 449 (Tex.Crim.App. 2013), “some harm” means actual and not theoretical harm. Reversal is required if the error was calculated to injure the rights of the defendant. If error is urged for the first time on appeal, the reviewing court may reverse only upon the finding of “egregious harm.” Under Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) and Stuhler v. State, 218 S.W.3d 706, 719 (Tex.Crim.App. 2007), jury-charge error is egregiously harmful if it affects the basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. To determine whether error was so egregious that a defendant was denied a fair and impartial trial, a reviewing court must examine: (1) the entire jury charge; (2) the state of the evidence; (3) the arguments of counsel; and (4) other relevant information in the record. Under Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App. 1996), direct evidence of harm is not required to establish egregious harm.  

Dixon v. State, No. PD-0048-19, 2020 Tex.Crim.App. LEXIS 2 (Tex.Crim.App. Jan. 15, 2020) (designated for publication) (Murder, Lubbock Co.) [Constitutional error and harm] 

• Under Tex. Rule App. Proc. 44.2(a) (Constitutional error in criminal cases), if the appellate record reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. 

Facts: 

• Appellant Dixon was a plastic surgeon in Amarillo. Sonnier was a physician in Lubbock. Shepherd was a friend of Dixon’s. 
• On July 10, 2012, Shepard killed Sonnier. The State’s theory was that Dixon hired Shepard to kill Sonnier.
• Sonnier was dating Dixon’s former girlfriend and Dixon wanted her back. Shepard’s roommate said that Shepard told him that Dixon paid him to kill Sonnier. 
• The State introduced 55 pages of cellphone records that showed numerous phone calls and text messages between Dixon and Shepard in the months leading up to the murder and on the day of the murder. These records also included cell-site location information. 51 of the pages were from Shepard’s cellphone provider. From the records, the State showed that Dixon and Shepard exchanged hundreds of texts in the months leading up to the murder and some of them were about the victim. 
• The day before the murder, Shepard texted, “Perfect day to travel to hub city” and Dixon responded, “Need it done ASAP.”
• On the day of the murder, Dixon and Shepard exchanged 41 texts. •CSLI from Shepard’s cellphone showed him in Lubbock when he was communicating with Dixon on March 12, 2012.
• CSLI from Dixon’s phone showed that he was in Lubbock on March 12, 2012.
• The State did not obtain a warrant for the CSLI for Dixon’s phone.
• Dixon told the police that he was not in Lubbock on March 12 but at trial he conceded that he must have traveled to Lubbock because the cellphone records showed him there. A gas-station receipt showed that Dixon had bought gasoline in Plainview on March 12.
• Although Dixon told the police that he knew nothing about Sonnier, he admitted at trial that he had hired Shepard to track and photograph Sonnier—hoping to obtain photos that would cause Dixon’s former girlfriend to break up with Sonnier—and he understood that Shepard would plant a camera at Sonnier’s house for this purpose. 
• Shepard’s phone records showed that Dixon called Shepard within minutes after the police finished speaking to Dixon.
• On appeal, relying on Carpenter v. United States, 1138 S.Ct. 2206 (2018), the court of appeals held that the trial court erred in failing to suppress CSLI from Dixon’s cellphone records and that Dixon was harmed by the error. 

The error was harmless

• Under Tex. Rule App. Proc. 44.2(a) (Constitutional error in criminal cases), if the appellate record reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.
• The CSLI evidence showed that Dixon was in Lubbock on March 12, 2012, but the victim was killed on July 10, 2012. Because this was a murder-for-hire case, the evidence did not have to show that Dixon was in Lubbock at all. The evidence showed that Dixon was not in Lubbock on the day of the murder. His presence in Lubbock on some other day, even coupled with Shepard’s presence and their conversation, was not important to the prosecution.
• Of the 55 pages of cellphone records introduced by the State, only 4 pages were from Dixon’s cellphone provider. The other 51 pages were records from Shepard’s cellphone provider, the admission of which is not challenged. Shepard’s records provided plenty of evidence that Dixon and Shepard were working together. 
• Thus, the March 12 CSLI information was not significant considering the evidence from Shepard’s phone.
• Dixon’s whereabouts on March 12 and deception about those whereabouts were not a significant part of the State’s case. 

Simpson v. State, No. PD-0578-18, 2020 Tex.Crim.App. LEXIS 5 (Tex.Crim.App. Jan. 15, 2020) (designated for publication) (Abandoning or Endangering a Child, Houston Co.) [collateral estoppel does not apply when in an earlier revocation proceeding the defendant could have claimed self-defense but instead pleaded “true.”] 

• The State cannot invoke collateral estoppel offensively to prevent a defendant from claiming self-defense when in an earlier revocation proceeding the defendant could have claimed self-defense but instead pleaded “true.”  
• Under State v. Waters, 560 S.W.3d 651, 663 (Tex.Crim.App. 2018), jeopardy does not attach in revocation proceedings for an offense alleged as a violation of the terms of community supervision. Collateral estoppel applies only when facts in the first proceeding were necessarily decided and essential to the judgment, a criterion not satisfied by a finding of “not true” in a revocation proceeding. 
• A trial carries substantial procedural consequences, including the right to a determination of guilt or innocence. There is a notable difference in the quality and extensiveness of the procedures followed in a motion to revoke as compared to a trial, weighed against the application of collateral estoppel.  

Facts: 

• Simpson pleaded guilty in 2015 to abandoning or endangering a child and was placed on one year of deferred adjudication. 
• While still on probation, during a fight Simpson hit her roommate in the head with an ashtray. Simpson was arrested for assault. 
• While being taken to jail, Simpson assaulted an officer.
• The state moved to adjudicate Simpson, alleging that she: (1) assaulted her roommate with a deadly weapon; (2) assaulted a public servant lawfully discharging an official duty; (3) tested positive for marijuana use once; and (4) admitted to using marijuana another time. Simpson pleaded true to these allegations. 
• The trial court convicted Simpson of abandoning or endangering a child, revoked her probation, and sentenced her to 6 months in SJ.
• Simpson was later tried for Aggravated Assault on a public servant (Count 1) and Aggravated Assault with a deadly weapon against the roommate (Count 2). Simpson testified and admitted that she hit her roommate with the ashtray but did so in self-defense. She claimed to have attacked the officer in self-defense. 
• Simpson requested a self-defense instruction for both offenses.
• The trial court denied the requested self-defense instruction based on res judicata based on the prior plea of “true” to the assaults.
• On Count 1, the jury found Simpson guilty of the lesser-included offense of assault on a public servant and sentenced her to 10 years.
• On Count 1, the jury found Simpson guilty of aggravated assault and sentenced her to 11 years in TDCJ.
• Simpson did not appeal Count 1. Simpson appealed Count 2, arguing that the trial judge erred to deny her a self-defense instruction as to that count. The court of appeals thus decided that despite her earlier plea of true” in the revocation proceeding, Simpson’s self-defense claim was not barred by collateral estoppel and that she was harmed.
• The State filed a PDR. 

The State cannot invoke collateral estoppel offensively to prevent a defendant from claiming self-defense when in an earlier revocation proceeding the defendant could have claimed self-defense but instead pleaded “true.” 

• Under State v. Waters, 560 S.W.3d 651, 663 (Tex.Crim.App. 2018), jeopardy does not attach in revocation proceedings for an offense alleged as a violation of the terms of community supervision.
• Collateral estoppel applies only when facts in the first proceeding were necessarily decided and essential to the judgment, a criterion not satisfied by a finding of “not true” in a revocation proceeding.
• The motion to proceed against Simpson alleged that Simpson: (1) assaulted her roommate (offense underlying this appeal); (2) assaulted a public servant; (3) tested positive for marijuana use on one occasion; and (4) admitted to using marijuana on another occasion. Any of these allegations, alone or in any combination, would have authorized the judge to proceed to an adjudication of guilt. Thus, the necessary or essential requirement for common law estoppel is not established.
• A trial carries substantial procedural consequences, including the right to a determination of guilt or innocence. There is a notable difference in the quality and extensiveness of the procedures followed in a motion to revoke as compared to a trial, weighed against the application of collateral estoppel. 
• The judgment of the court of appeals is affirmed.

Texas Courts of Appeals

State v. Hodges, No. 07-19-00237-CR, 2020 Tex.App.-LEXIS 250 (Tex.App.-Amarillo, Jan. 8, 2020) (designated for publication) (DWI, Lubbock Co.) [What is a sworn affidavit supporting a search warrant] 

• Under Marcopoulos v. State, 538 S.W.3d 596, 600 (Tex.Crim.App. 2017), review of a ruling on a MTS is for abuse of discretion: the reviewing court considers the evidence in the light most favorable to the trial court’s ruling—with almost complete deference to the trial court’s express or implied findings of historical fact—and de novo on the application of the law to those facts.  
• Under Tex. Code Crim. Proc. Art. 18.01(b) and Clay v. State, 391 S.W.3d 94 (Tex.Crim.App. 2013), no search warrant shall issue unless sufficient facts are presented to satisfy the magistrate that probable cause exists for its issuance. A sworn affidavit setting forth substantial facts establishing probable cause shall be filed if a search warrant is requested. The affidavit must be administered before a magistrate or other qualified officer before it becomes a valid sworn affidavit.

Mendoza v. State, No. 01-18-01140-CR, 2019 Tex.App.-LEXIS 8654 (Tex.App.-Houston [1st Dist.] Sep. 26, 2019) (designated for publication) (Sexual Assault, Brazoria Co.) [Withdrawal of a guilty plea] 

• Under Mendez v. State, 138 S.W.3d 334, 336, 345 (Tex.Crim.App. 2004), a defendant may withdraw a guilty plea if he does so before the jury retires to deliberate its verdict. His right is unqualified, and the trial court has no discretion to deny the request.  
• Under Payne v. State, 790 S.W.2d 649, 651 (Tex.Crim.App. 1990), when a trial court errs by refusing a defendant’s timely request to withdraw a guilty plea, the error is harmless if there is no evidence suggesting that the defendant is not guilty or is guilty only of a lesser-included offense. The defendant’s testimony denying guilt is sufficient to raise a fact issue rendering the error harmful. 

Perez-Mancha v. State, No. 14-18-00713-CR, 2019 Tex.App.-LEXIS 10110 (Tex.App.-Houston [14th Dist.] Nov. 21, 2019) (Continuous Sexual Abuse of a Child, Harris Co.) [Jury charge with a “broader chronological perimeter” than the statute permits is error] 

A jury charge with a “broader chronological perimeter” than the statute permits is error. 

Porras v. State, No. 05-18-01108-CR, 2020 Tex.App.-LEXIS 678 (Tex.App.-Dallas Jan. 24, 2020) (designated for publication) (probation revocation, Dallas Co.) [Trial court’s jurisdiction to hear a motion to revoke community supervision after community supervision is expired] 

• Under Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App. 2006), Review of an order revoking probation is for an abuse of discretion standard. The State must prove by a preponderance of the evidence that a defendant violated the terms. The trial court is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. The evidence is reviewed in the light most favorable to the trial court’s ruling.  
• Under Garcia v. State, 387 S.W.3d 20, 26 (Tex.Crim.App. 2012), any violation of a condition is sufficient to support revoking probation.  
• Under Ex parte Moss, 446 S.W.3d 786, 792 (Tex.Crim.App. 2014), a probation revocation proceeding is an administrative hearing, not civil or criminal. It is an extension of the original sentencing and is subject to the continuing jurisdiction of the trial court. The trial court maintains its jurisdiction to hear a motion to adjudicate guilt if the motion is filed, and a capias is issued before the end of the probationary period.  
• Under Tex. Code Crim. Proc. Art. 42A.103(a), in a felony case the period of deferred adjudication may not exceed ten years. For a defendant charged under Tex. Penal Code §§ 21.11, 22.011, or 22.021, regardless of the age of the victim the period of deferred adjudication may not be less than 5 years. A court may extend deferred adjudication per Arts. 42A.753 or 42A.757 as frequently as it determines necessary but for no more than 10 years.

Prestiano v. State, No. 01-17-00763-CR, 2019 Tex.App.-LEXIS 7326 (Tex.App.-Houston [1st Dist.] Aug. 20, 2019) (op. on reh.) (designated for publication) (Aggravated Sexual Assault under Tex. Penal Code § 22.021, Tom Green Co.) [Legal sufficiency; Aggravated Sexual Assault by contact and Aggravated Sexual Assault by penetration] 

• Under Villalon v. State, 791 S.W.2d 130, 133-335 (Tex.Crim.App. 1990), the uncorroborated testimony of the child is sufficient to support a conviction and the child need not directly and explicitly testify as to contact or penetration with the same clarity and ability of an adult. 
• Under Green v. State, 476 S.W.3d 440, 447 (Tex.Crim.App. 2015), because “penetration” is not defined by statute, its ordinary meaning in the context of aggravated sexual assault is assigned, which means “to enter into” or “to pass through.” This definition distinguishes penetration from “mere contact with the outside of an object” per Vernon v. State, 841 S.W.2d 407, 409 (Tex.Crim.App. 1992). 
• Under Lee v. State, 537 S.W.3d 924, 927 (Tex.Crim.App. 2017), when an appellate court finds the evidence legally insufficient to prove an element of the charged offense but finds the defendant guilty of a lesser-included offense, the court must reform the judgment to reflect conviction for the lesser-included offense.  
• Aggravated Sexual Assault by contact and Aggravated Sexual Assault by penetration differ only in the degree of physical invasion involved, with the latter factually subsuming the former. Though criminalized by the same statute and subject to the same range of punishment, Aggravated Sexual Assault by contact is a lesser-included offense of Aggravated Sexual Assault by penetration.

Privette v. State, No. 06-19-00162-CR, 2019 Tex.App.-LEXIS 10213 (Tex.App.-Texarkana, Nov. 26, 2019) (designated for publication) (Aggravated Assault, Hopkins Co.) [Deferred adjudication stacked on sentence for crime arising out of the same criminal episode] 

• When a defendant is charged with more than one offense arising out of the same criminal episode—and guilt for one of the offenses is deferred through deferred adjudication—the probation for the deferred adjudication may be stacked on any sentence for the other convicted offenses 
• Under LaPorte v. State, 840 S.W.2d 412, 415 (Tex.Crim.App. 1992) and Tex. Penal Code § 3.03(a), when the defendant is convicted of more than one offense arising out of the same criminal episode—and prosecuted in a single criminal action—a sentence for each shall run concurrently unless one of the § 3.03 exceptions apply. A defendant is prosecuted in “a single criminal action” if allegations and evidence of more than one offense arising out of the same criminal episode are presented in a single trial whether under one or several charging instruments.  
• Under Tex. Penal Code § 3.01(1), criminal episode means the commission of two or more offenses—regardless of whether the harm is directed toward more than one person—that are committed during the same transaction.  
• Under Donovan v. State, 68 S.W.3d 633, 636 (Tex.Crim.App. 2002), when a defendant receives deferred adjudication, there is no finding of guilt—instead the court finds that the evidence substantiates guilt and then defers adjudication. 

Alcoser v. State, No. 07-18-00032-CR, 2019 Tex.App.-LEXIS 11107 (Tex.App.-Amarillo Dec. 20, 2019) (designated for publication) (Assault family violence, McLennan Co) [Egregious harm in the jury charge] 

• Under Tex. Code Crim. Proc. Art. 36.14 and Beltran De La Torre v. State, 583 S.W.3d 613, 617 (Tex.Crim.App. 2019), the trial court shall deliver to the jury a written charge distinctly setting forth the law applicable to the case. A jury charge: (1) must be in writing; (2) must distinctly set forth the law applicable to the case; (3) cannot express any opinion as to the weight of the evidence; (4) may not sum up the testimony; and (5) cannot discuss the facts or use any argument calculated to arouse sympathy or excite the passions of the jury. The abstract paragraph of a jury charge serves as a guide to help the jury understand the meaning of concepts and terms used in the application paragraph. The failure to give an abstract instruction is reversible error it is necessary to correct or complete the jury’s understanding of concepts or terms in the application paragraph. A trial court must maintain neutrality in providing such information and guidance and avoid any special allusion to a certain fact as the jury might construe this as judicial endorsement or imprimatur. An instruction is improper if it impermissibly guides a jury’s consideration of the evidence or focuses the jury on certain evidence because it amounts to an impermissible comment on the weight of the evidence.  
• Under Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985), a reviewing court must: (1) determine whether charge error occurred; and (2) analyze the error for harm. Charge error requires reversal when a proper objection has been made and a reviewing court finds some harm (error calculated to injure the rights of the defendant). If the alleged error was not preserved, only egregious harmed allows reversal, which is error that affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. The harm must be determined considering: (1) the instructions, (2) the state of the evidence, (3) the arguments of counsel, and (4) any other relevant information in the record. There is no burden of proof or persuasion in a harm analysis conducted under Almanza.  
• When trying multiple offenses in the same proceeding, a trial court must distinguish in the jury charge the culpable mental states applicable to each offense because the failure to do so is error. Under Tex. Penal Code § 6.03, the culpable mental states are intentionally, knowingly, recklessly, and criminally negligent. Under Young v. State, 341 S.W.3d 417, 423 (Tex.Crim.App. 2011), offenses must be distinguished into three categories based on the offense-defining statute’s gravamen or focus: (1) result-of-conduct offenses (result or product of the complained-of conduct), (2) nature-of-conduct offenses (defined by the act or conduct that is prohibited regardless of the result that occurs), and (3) circumstances-of-conduct offenses (prohibit otherwise innocent behavior that becomes criminal only under specific circumstances like failure to register as a sex-offender it is criminalized only if one must register). A trial court errs by failing to limit the definitions of the culpable mental states to the conduct element or elements of the offense to which they apply.  
• Under Medina v. State, 7 S.W.3d 633, 640 (Tex.Crim.App. 1999), generally no egregious harm results from an erroneous abstract paragraph when the application paragraph is correct.  

Davis v. State, No. 01-18-00519-CR, 2019 Tex.App.-LEXIS 9073 (Tex.App.-Houston [1st. Dist.] Oct. 15, 2019) (designated for publication) (Theft & probation revocation, Harris Co.) [Factors under Tex. Code Crim. Proc. Art. 42.037(h) supporting revocation] 

• Under Hacker v. State, 389 S.W.3d 860, 865 (Tex.Crim.App. 2013, when reviewing an order revoking community supervision, the sole question is whether the trial court abused its discretion. Under DeGay v. State, 741 S.W.2d 445, 450 (Tex.Crim.App. 1987), The central issue to be determined in reviewing a trial court’s discretion in a community supervision revocation is whether the defendant was afforded due process of law. 
• Under Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App. 1984), the limits to a trial court’s discretion to revoke supervision are: (1) the State must prove at least one violation of the terms and conditions; (2) an appellate court reviews the trial court’s decision for an abuse of discretion; and (3) federal due process requires that a trial court consider alternatives to imprisonment before incarcerating an indigent defendant who is unable to pay amounts due under community supervision. The State has the burden to establish by a preponderance of the evidence that appellant committed a violation. The standard is met when the greater weight of credible evidence supports a reasonable belief that a condition was violated.  
• Under Tex. Code Crim. Proc. Art. 42.037(h), in determining whether to revoke community supervision, parole, or mandatory supervision, the court or parole panel shall consider: (1) the defendant’s employment status; (2) the defendant’s current and future earning ability (the amount and frequency of earnings compared to the frequency of court-ordered restitution should be considered with this factor); (3) the defendant’s current and future financial resources (If defendant has the ability to borrow money but unreasonably fails to employ this option, this factor weighs in favor of revocation); (4) the willfulness of the defendant’s failure to pay; (5) any special circumstances that affects the defendant’s ability to pay; and (6) the victim’s financial resources or ability to pay expenses incurred by the victim because of the offense. Under Bryant v. State, 391 S.W.3d 86, 93 (Tex.Crim.App. 2012), Art. 42.037(h) is a mandatory evidentiary provision. So long as a trial court considers the factors in its decision whether to revoke, a court is not required to weigh the factors in any particular manner. No element is necessary to justify revocation or alone is sufficient to justify revocation. Under Carreon v. State, 548 S.W.3d 71, 78 (Tex.App.-Corpus Christi-Edinburg 2018, no pet.), there must be some evidence of each Art. 42.037(h) for the trial court to consider. 
• Under Tex. Code Crim. Proc. Art. 42A.751(i), in a revocation hearing at which it is alleged only that the defendant violated conditions by failing to pay fees or court costs or by failing to pay the costs of legal services under Art. 42A.301(11), the state must prove by a preponderance of the evidence that the defendant was able to pay and did not pay as ordered by the judge. 
• Usually a plea of true to any alleged violation is sufficient to support a revocation order. But if all alleged violations are based on financial obligations, imprisonment is allowed only when the failure to pay was willful. 

Ex parte Edwards, No. 01-19-00100-CR, 2019 Tex.App.-LEXIS 7755 (Tex.App.-Houston [1st Dist.] Aug. 27, 2019) (designated for publication) (Habeas corpus, Harris Co.) [Pretrial habeas corpus attacking running of the statute of limitations; tolling of the statute of limitations for prosecution of sexual assault under Tex. Code Crim. Proc. Art. 12.01(1)(C)(i)] 

• Under Ex parte Smith, 178 S.W.3d 797, 802 (Tex.Crim.App. 2005) and Ex parte Tamez, 38 S.W.3d 159, 160 (Tex.Crim.App. 2001), a defendant may use a pretrial writ of habeas corpus to challenge a court’s jurisdiction if the face of the indictment shows that the statute of limitations bars prosecution.  
• Under Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App. 2006, the applicant for a writ of habeas corpus has the burden to establish entitlement to relief by preponderance of the evidence. Review is for an abuse of discretion. The reviewing court considers the facts in the light most favorable to the ruling and defers to the trial court’s implied factual findings that are supported by the record. When resolution of the ultimate issue turns on an application of purely legal standards, review is de novo.  
• Under Tex. Code Crim. Proc. Arts. 12.01(2)(E), 12.03(d), and Ex parte Goodbread, 967 S.W.2d 859, 865 (Tex.Crim.App. 1998), the statute of limitations for Aggravated Sexual Assault (adult) is 10 years from the offense. Under Tex. Code Crim. Proc. Art. 12.01(1)(C)(i), there is no statute of limitations if during the investigation biological matter is collected and subjected to DNA-testing and the results show that the matter does not match complainant or another whose identity is readily ascertained. 

Espino-Cruz v. State, 586 S.W.3d 538, 2019 Tex.App.-LEXIS 8560 (Tex.App.-Houston [14th Dist.] Sep. 24, 2019) (designated for publication) (Possession with Intent to Deliver a Controlled Substance, Harris Co.) [Sufficient evidence to prove possession with intent to deliver contraband; affirmative links] 

• Under Blackman v. State, 350 S.W.3d 588, 594 (Tex.Crim.App. 2011), to support a defendant’s conviction as a principal actor, the State must prove that the defendant knowingly possessed the contraband, which requires proof that the defendant: (1) exercised actual care, custody, control, or management over the substance; and (2) knew the substance was contraband. Under Tex. Health & Safety Code § 481.002(8), “deliver” means to transfer—actually or constructively—to another a controlled substance, including an offer to sell a controlled substance. The State need not show exclusive possession to support conviction as a principal actor because control may be exercised by more than one person.  
• To prove possession of a controlled substance as a party, the State must show: (1) that another possessed the contraband; and (2) with the intent that the offense be committed, the defendant solicited, encouraged, directed, aided, or attempted to aid the other’s possession. Events occurring before, during, and after the commission of the offense may be considered, including the defendant’s actions that show an understanding or common design to commit the offense. Mere presence or knowledge of an offense does not make one a party to possession. The evidence must show that at the time of the offense, the parties were acting together, each contributing towards the execution of their common purpose.  
• Under Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App. 2005), when a defendant is not in exclusive possession of the place where the contraband is found, the defendant is not considered to have knowledge of and control over it unless the State establishes an affirmative link between the defendant and the contraband. A link generates a reasonable inference that the defendant knew of the contraband’s existence and exercised control over it. It may be proven through direct or circumstantial evidence. The evidence must establish that the defendant’s connection with the contraband was more than fortuitous. The nonexclusive factors are: (1) whether defendant was present when a search is conducted; (2) whether the contraband was in plain view; (3) defendant’s proximity to and the accessibility of the contraband; (4) whether defendant was under the influence of narcotics when arrested; (5) whether defendant possessed other contraband when arrested; (6) whether defendant made incriminating statements when arrested; (7) whether defendant attempted to flee; (8) whether defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the drugs were found; (12) whether the place where the drugs were found was enclosed; (13) whether the defendant was found with a large amount of cash; (14) whether the conduct of defendant indicated a consciousness of guilt; (15) the quantity of contraband found. The number of factors is not as important as the logical force they collectively create to prove that a crime has been committed. The absence of links does not constitute evidence of innocence to be weighed against the links present.  
• Intent to deliver contraband may be proved by circumstantial evidence, including evidence that the defendant possessed the contraband and the quantity of the drugs possessed. Intent can be inferred from the acts, words, and conduct of the defendant: (1) the nature of the location at which defendant was arrested, (2) the quantity of contraband in the defendant’s possession, (3) the manner of the packaging of the contraband, (4) the presence of or lack of narcotics paraphernalia for either use or sale, (5) large amounts of cash, or (6) defendant’s status as a narcotics user. The quantity of the factors is not as important as the logical force the factors have in establishing the elements of the offense. Expert testimony by experienced officers may be used to establish a defendant’s intent to deliver. 

State v. Fikes, No. 03-19-00338-CR, 2019 Tex.App.-LEXIS 8157 (Tex.App.-Austin Sep. 6, 2019) (designated for publication) (DWI, Travis Co.) [Reasonableness of the procedures of a blood-draw] 

• Under Schmerber v. California, 384 U.S. 757, 769 (1966) and Missouri v. McNeely, 569 U.S. 141, 148 (2013), a blood-draw is a Fourth Amendment search and an invasion of bodily integrity that implicates an individual’s most personal and deep-rooted expectations of privacy.  
• Under State v. Johnston, 336 S.W.3d 649, 658 (Tex.Crim.App. 2011), a blood-draw is reasonable if police had justification for requiring it and reasonable means and procedures were used in obtaining the sample. When assessing whether the means and procedures were reasonable, courts must consider whether the test was reasonable and was performed in a reasonable manner.  
• Under State v. Cortez, 543 S.W.3d 198, 203 (Tex.Crim.App. 2018), review of a trial court’s ruling on a MTS is for an abuse of discretion. The record is viewed in the light most favorable to the trial court’s ruling and the judgment is reversed only if it is outside the zone of reasonable disagreement.  
• Under Crain v. State, 315 S.W.3d 43, 48 (Tex.Crim.App. 2010), Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000) and Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997), a ruling on a MTS is reviewed under a bifurcated standard of review: almost total deference to the trial court’s determination of historical facts that turn on credibility and demeanor, de novo on other application-of-law-to-fact issues, nearly total deference to application-of-law-to-fact questions (mixed questions of law and fact) if their resolution turns on an evaluation of credibility and demeanor, and de novo on mixed questions of law and fact if their resolution does not turn on an evaluation of credibility and demeanor. Under Osbourn v. State, 92 S.W.3d 531, 538 (Tex.Crim.App. 2002) and State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App. 2008), the trial court’s decision must be affirmed if it is correct on any theory of law that finds support in the record. 

Fraser v. State, No. 07-15-00267-CR, 2019 Tex.App.-LEXIS 11105 (Tex.App.-Amarillo Dec. 20, 2019) (designated for publication) (Murder, McLennan Co.) [Egregious harm; jury charge for felony murder] 

• Under Tex. Code Crim. Proc. Art. 36.14 and Beltran De La Torre v. State, 583 S.W.3d 613, 617 (Tex.Crim.App. 2019), the trial court shall deliver to the jury a written charge distinctly setting forth the law applicable to the case. The charge: (1) must be in writing; (2) must distinctly set forth the law applicable to the case; (3) cannot express any opinion as to the weight of the evidence; (4) may not sum up the testimony; and (5) cannot discuss the facts or use any argument calculated to arouse sympathy or excite the passions of the jury. The abstract paragraph of a jury charge serves as a guide to help the jury understand the meaning of concepts and terms used in the application paragraph. The failure to give an abstract instruction is reversible error it is necessary to correct or complete the jury’s understanding of concepts or terms in the application paragraph. A trial court must maintain neutrality in providing such information and guidance and avoid any special allusion to a certain fact as the jury might construe this as judicial endorsement or imprimatur. An instruction is improper if it impermissibly guides a jury’s consideration of the evidence or focuses the jury on certain evidence because it amounts to an impermissible comment on the weight of the evidence.  
• Under Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985), a reviewing court must: (1) determine whether charge error occurred; and (2) analyze the error for harm. Charge error requires reversal when a proper objection has been made and a reviewing court finds some harm (error calculated to injure the rights of the defendant). If the alleged error was not preserved, only egregious harmed allows reversal, which is error that affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. The harm must be determined considering: (1) the instructions, (2) the state of the evidence, (3) the arguments of counsel, and (4) any other relevant information in the record. There is no burden of proof or persuasion in a harm analysis conducted under Almanza.
• Under Tex. Penal Code § 19.02(b), a person commits Murder if she intentionally or knowingly causes death ; intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes death; or commits or attempts to commit a felony other than manslaughter and during the commission, attempt, or in immediate flight from the commission or attempt, commits or attempts to commit an act clearly dangerous to human life that causes death. Under Schroeder v. State, 123 S.W.3d 398, 400 (Tex.Crim.App. 2003), the statutory focus (gravamen) of Murder is causing death so Murder is a result-of-conduct or result-oriented offense (the proscribed conduct must have caused the death) as opposed to simply engaging in conduct that results in death. For felony murder, the factfinder must determine that the act clearly dangerous to human life must have caused death. 

Analysis:

• The entire charge: was affected because the definition of reckless was not properly tailored to Murder. This error was emphasized by the failure of the application paragraphs to include an application of the law concerning the elements of injury to a child and child endangerment to the facts of the case. 
• State of the evidence: no one maintains that Appellant intended to cause the infant’s death. When it comes to intent, the State’s evidence at best shows that Appellant intentionally engaged in conduct that ultimately caused the infant’s death, but this alone is not Murder. 
• Arguments of counsel: The prosecution pursued a conviction based in part upon the theory that Appellant recklessly or with criminal negligence committed either injury to a child or child endangerment. During the entire trial the prosecution emphasized the reckless nature of the alleged conduct. It seems apparent that the prosecution did not understand the distinction between a result-of-conduct offense and a nature-of-conduct offense. The prosecutor repeatedly told the jury that a conviction could be based on reckless conduct alone. 
• Any other information in the record: A review of the record illustrates the inherent risks of relying upon reckless or criminally negligent injury to a child or endangerment as the underlying felony offense for felony murder.
• The judgment is reversed, and the case is remanded for a new trial.

TCDLA

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 https://www.mowlalaw.com.