March 2021 SDR – Voice for the Defense Vol. 50, No. 2

Voice for the Defense Volume 50, No. 2 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

It was a slow post-holiday month, but at least one branch of our government remained chill in January. We have more unsuccessful COVID-19 litigation in both state and federal court with the normal consolation prize of really strong language for some future situation with a perfect set of facts. Check out Weatherly v. State, below, for a case which might have PDR legs—it involves the right to redress (or lack thereof) when a court orders potentially unconstitutional sex-offender registration requirements by way of nunc pro tunc order.

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.

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.

This publication is intended as a resource for the membership and I welcome feedback, comments, or suggestions: (972) 369-0577.

United States Supreme Court

The United States Supreme Court did not hand down any published opinions since the last Significant Decisions Report.

Fifth Circuit

United States v. Bonilla-Romera, 984 F.3d 414 (5th Cir. 2020)

Issue. Can a trial court graft the sentencing range for second-degree murder onto the offense of first-degree murder to punish a defendant who is constitutionally ineligible for first-degree sentencing (life imprisonment or death) because he was under the age of 18 when he committed his offense?

Facts. Defendant was involved in a gang-related murder when he was 17. The government tried him as an adult and he ultimately pleaded guilty to first-degree murder under 18 U.S.C. §1111(b). Because this provision required a sentence of either death or life imprisonment but Miller v. Alabama, 567 U.S. 460, 479 (2012), and Roper v. Simmons, 543 U.S. 551 (2005) prohibit both punishments for a defendant under the age of 18 at the time of his offense, the district court severed these provisions from the statute. The district court concluded that §111(b) authorizes the punishment of such an individual for “any term of years or for life” and sentenced the defendant to 460 months. Defendant argued that the sentencing range fashioned by the trial court did not reflect a severance of unconstitutional provisions, but a merging of first- and second-degree murder sentencing ranges to invent a totally new sentencing range.

Holding. Yes. When a portion of a statute is unconstitutional “the traditional rule is that the unconstitutional provision must be severed unless the statute created in its absence is legislation that Congress would not have enacted.” Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S.Ct. 2183, 2209 (2020). There is no indication Congress would have decriminalized murder had it legislated with the benefit of the Miller and Roper decisions. Courts must use the test from United States v. Booker to craft a constitutional statute by excising the unconstitutional provisions. 543 U.S. 220 (2005). Booker requires the court to retain portions of the statute that are (1) constitutionally valid, (2) capable of functioning independently, and (3) consistent with Congress’ basic objectives in enacting the statute. Because the federal murder statute provides a sentencing scheme, and second-degree murder is a lesser-included offense of first-degree murder the outcome under Booker would be to excise the totality of the first-degree sentencing range and simply apply the second-degree sentencing range.

Comment. The prosecution and defense had agreed to a 30-year sentence which the trial court rejected. Then in defendant’s sentencing hearing the prosecution argued for a 35-year sentence. It baffles me why there are so many cases where the judge rejects a plea agreement, then in sentencing the prosecution argues for more than what they had negotiated as a fair punishment.

United States v. Thompson, 984 F.3d 431 (5th Cir. 2021)

Issue. Does the combination of hypertension, high cholesterol, and a previous stroke present the type of extraordinary circumstances meriting compassionate release (early prison release) during the COVID-19 pandemic for an inmate who has served only eight of his twenty years of imprisonment.

Facts. Defendant, an inmate at FCI Texarkana, presented a request for compassionate release on account of underlying health conditions during the COVID-19 pandemic. Defendant cited hypertension, high cholesterol, and a stroke he suffered over ten years ago as grounds making him uniquely at risk to COVID-19. Procedurally his request was first presented to the warden of the prison who recognized that Defendant presented “legitimate concerns and fears about the spread and effects of COVID” but ultimately denied the request. Defendant then presented his motion to the district court who rejected his request as well.

Holding. No. Compassionate release is governed (though not dispositively) by § 1B1.13 of the United States Sentencing Guidelines (“Guidelines”). The Guidelines provide that compassionate release should be granted only for “extraordinary and compelling” reasons. The Guidelines provide four “extraordinary and compelling reasons” for consideration (1) medical conditions, (2) age, (3) family circumstances, and (4) other. Medical conditions are limited to terminal illness or conditions where the defendant is substantially unable to provide self-care. Defendant’s conditions are managed effectively by medication, his conditions are common conditions, and there is no indication that he is at higher risk than the average inmate. Some courts have found underlying health conditions combined with the COVID-19 pandemic to justify release under “other” considerations, but courts which have granted this form of compassionate release have done so for “defendants who had already served the lion’s share of their sentences and presented multiple, severe, health concerns.”

United States v. Morton, 984 F.3d 421 (5th Cir. 2021)

Issue. Does the good faith exception to the exclusionary rule apply where an officer relied on an invalid search warrant authorizing the search of a cell phone photographic evidence of drug trafficking where that officer’s investigation and accusation led only to the conclusion that the defendant possessed personal quantities of drugs?

Facts. Defendant was stopped for speeding. After officers smelled marijuana in his vehicle, defendant consented to a search of the vehicle. Officers found 16 ecstasy pills, a small bag of marijuana, a glass pipe, children’s school supplies, a lollipop, 14 sex toys, and 100 pairs of women’s underwear. The arresting officer became concerned the defendant might be a pedophile and applied for a search warrant of defendant’s three cellphones. In his application the officer did not mention any concerns about child exploitation, instead he expressed his desire to seek more evidence of drug activity based on his many years of experience. A warrant was authorized and the arresting officer eventually found 19,270 images of sexually exploited minors. In the trial court, the defendant challenged the probable cause supporting the warrant issuance and the government argued the good faith exception to the exclusionary rule. 

Holding. No. The good faith exception allows officers to rely on a defective warrant unless the warrant “so lacked indicia of probable cause that the officers’ reliance on it was entirely unreasonable” citing United States v. Leon, 468 U.S. 897, 923 (1984)(cleaned up). The probable cause affidavit sought permission to search contacts, call logs, text messages, and photographs. Separate probable cause is required to search each of these categories. Citing Riley v. California, 573 U.S. 373 (2014). While it is logical to believe that texts, call logs, and contacts might contain information pertaining to the purchase of drugs the defendant possessed, the same cannot be said about his photographs. The officer’s assertion that co-conspirators often take pictures of their drugs and their drug proceeds was not pertinent to what the offense for which defendant was being accused. Defendant was accused of drug possession, not drug trafficking. Nor did the facts surrounding his arrest did not give rise to an assumption that he was trafficking. “Under these facts, reasonably well-trained officers would have been aware that searching digital images on [defendant’s] phone—allegedly for drug trafficking-related evidence—was unsupported by probable cause.” Thus, the good faith exception to the exclusionary rule does not apply.

Comment. Watch this space. The good faith exception to the exclusionary rule is popping up on the radar more and more.

Texas Court of Criminal Appeals

Ex parte Casey, WR-90,442-01 (Tex. Crim. App, 2021)(not designated for publication)

Issue. Can a Brady violation render a guilty plea involuntary when the matter not disclosed rebuts an affirmative representation made by the prosecutor or in the discovery?

Facts. Defendant shot at two police officers at nighttime in an alleyway. He was subsequently charged and convicted with aggravated assault on a public servant and sentenced to 25 years. The proceeding in the trial court appears to have been an open plea of guilty (a guilty plea followed by sentencing hearing). Defendant filed the instant writ of habeas corpus alleging that the prosecutor withheld a crucial fact which officers testified to at defendant’s punishment hearing: that they did not identify themselves as police officers. Trial counsel provided an affidavit indicating that the discovery provided by the State indicated that officers identified themselves repeatedly. Appellate counsel provided an affidavit that the officers’ failure to identify was not contained in the discovery. Defendant testified that he would not have pleaded guilty if he had known this favorable evidence, that evidence was improperly withheld under Brady v. Maryland, and that his plea was involuntary. The trial court found that the alleged failure to identify was either untrue or unknown to the prosecutor and that the Brady violation is based on speculation. 

Holding. Yes. At least here it did where the discovery materials affirmatively establishes that officers identified themselves and their testimony in punishment proved otherwise. The possibility of the prosecution’s ignorance of the failure to identify evidence is irrelevant to a claim of involuntary plea.

Concurrence (Keel, J.)(joined by Hervey, Richardson and Walker, JJ.). “The prosecution has an inescapable duty to disclose favorable evidence, even if it is known only to the police.” A Brady violation can render a guilty plea involuntary, particularly where a defendant is affirmatively misled about the prosecution’s case—as he was here.

Dissent (Keller, J.)(joined by Yeary, Slaughter, and McClure, J.J.) It is unsettled whether Brady applies to a guilty plea. Brady definitely does not require the disclosure of all exculpatory evidence prior to the guilty plea. Affirmative false representations by the State may render a guilty plea involuntary. Here, the exculpatory evidence was revealed during the punishment stage of trial and counsel did not complain at that time. All of these dilemmas and nuances aside, the false representation that officers repeatedly identified themselves when they did not identify at all is neither material nor prejudicial. Defendant testified in his hearing that he knew the two individuals he shot at were police officers. This fact, alone, eliminates the possibility of materiality or prejudice under a claim of involuntary plea, or even ineffective assistance of counsel (for failing to request a mistrial during sentencing).

Comment. There is clearly a split among the judges on the Court here. We may someday see a more nuanced and published opinion on this issue. Should that day come, I would hope that the fact that the prosecution successfully induced the Defendant into giving up the details of his guilt is not a basis for forgiving the wrongfulness of the inducement. A criminal defendant has a constitutional right to withhold information, stand behind the presumption of innocence, and demand the State satisfy its burden. We don’t celebrate these rights because we love guilty people going free. We celebrate them so they remain intact for the falsely accused staring down the most lopsided fight in history. 

1st District Houston

The First District Court of Appeals in Houston did not hand down any significant or published opinions since the last Significant Decisions Report.

2nd District Fort Worth

Weatherly v. State, No. 02-19-00394 (Tex. App.—Ft. Worth, Jan. 7, 2021)

Issue. (1) May a trial court, years after entering its judgment, enter a nunc pro tunc order to add an omitted sex-offender-registration requirement and a finding that the victim was under the age of 17? (2) Is the application of sex-offender-registration requirements to a person convicted of a non-sex-offense unconstitutional?

Facts. In 2015, defendant pleaded guilty to unlawful restraint and was sentenced, pursuant to an open plea of guilty (plea without punishment recommendation), to 15 years confinement. The trial court’s judgment reflected that sex-offender-registration requirements did not apply and that the age of the victim at the time of the offense was “N/A.” In 2019, the trial court entered a nunc pro tunc order (its fourth in a series dating back to 2017) amending the judgment to reflect that sex-offender registration requirements apply and that the age of the victim was “younger than 17 years of age.”

Holding. (1) Yes. “A judgment nunc pro tunc is the appropriate avenue to make a correction when the court’s records do not mirror the judgment that was actually rendered.” Such orders are limited to the correction of clerical errors, but not errors which were the result of judicial reasoning. “When the law requires the trial court to enter a particular finding in the written judgment of conviction, the trial court retains no discretion to do otherwise, and the failure of the trial judge to do so is not an error of judicial reasoning but rather an error of clerical nature.” Chapter 62 of the Texas Code of Criminal Procedure requires a judgment convicting a defendant of unlawful restraint include sex-offender-registration requirements and a child victim’s age. These are clerical acts which involve no judicial reasoning. (2) Dodged – no jurisdiction. “Just as a trial court may not correct errors that are the result of judicial reasoning via nunc pro tunc . . . we do not have authority to review the underlying conviction or other ancillary matters related to the conviction.”

Concurrence (Sudderth, C.J.). Urges the Court of Criminal Appeals to reconsider what constitutes “judicial error” and what constitutes “clerical error.” The error corrected in this case should be considered “judicial error” not subject to a nunc pro tunc. Procedural due process rights are denied by the binding standard that the majority has to follow.

Dissent (Wallach, J.). Defendant objected and then appealed when the registration requirements were imposed. Defendant may seek redress on appeal regarding the constitutionality of imposing a sex-offender-registration requirement. Because such a requirement has not rational relation to the government’s interest in heightened public awareness of and protection from sexual offenders, imposing a sex-offender-registration requirement here is unconstitutional.

Comment. To challenge the validity of an unconstitutional condition imposed in sentencing a defendant must object at the time of sentencing. This is typically the rule imposed for probation conditions, but it has also been applied to certain trial court findings, including age-of-victim. Keller v. State, 125 S.W.3d 600, 606 (Tex. App.—Houston [1st Dist], 2003). Now, you might ask “how does a defendant object when a condition is not imposed at sentencing?” It’s actually simple:

COUNSEL: I object to you making that finding.
COURT: I didn’t.
COUNSEL: Then, I appeal!
COURT: ???

I guess habeas relief still remains a potentially viable option for the defendant in this case. Ex parte Chamberlain, 352 S.W.3d 121, 122 (Tex. App.—Ft. Worth, 2011). Indeed, the defendant attempted this. But when the case was forwarded to the Court of Criminal Appeals, the State successfully argued (with their fingers crossed behind their backs, I guess) that the defendant has direct appeal remedies which he must first exhaust in the Ft. Worth Court of Appeals. This was surely fantastic news for the defendant to hear—that the State agrees he should have his day in court. But lo, the State made the opposite argument in the Ft. Worth Court of appeals. So, in the CCA, the State argued the defendant must pursue his ability to seek redress in the COA. And in the COA, the State argued the defendant cannot seek redress in the COA. Is this “see[ing] that justice is done?” See Tex. Code Crim. Proc. Art. 2.01.

3rd District Austin

The Third District Court of Appeals in Austin did not hand down any significant or published opinions since the last Significant Decisions Report.

4th District San Antonio

The Fourth District Court of Appeals in San Antonio did not hand down any significant or published opinions since the last Significant Decisions Report.

5th District Dallas

The Fifth District Court of Appeals in Dallas did not hand down any significant or published opinions since the last Significant Decisions Report.

6th District Texarkana

The Sixth District Court of Appeals in Texarkana did not hand down any significant or published opinions since the last Significant Decisions Report.

7th District Amarillo

Ex parte McManus, No. 07-20-00152-CR (Tex. App.—Amarillo, Jan. 26, 2021)

Issue. After a year of pretrial confinement for two nonviolent offenses, and amidst the COVID-19 pandemic, is defendant’s argument that he cannot afford bail and has health conditions making him an increased risk for COVID-19 a sufficient basis for reduced bail without supporting evidence?

Facts. Defendant failed to appear for his Evading Arrest jury trial. He was subsequently arrested on the new charge of Failure to Appear. Nearly a year after his arrest, defendant filed an application for writ seeking personal bond or reduction in bond to $10,000. He articulated the following bases for relief: (1) more than 1-year of custody, (2) nonviolent offenses, (3) health concerns pertaining to his pre-existing health condition and the COVID-19 pandemic, (4) lack of resources to afford his current bail. The district court set bond at $200,000 in both cases. Defendant argued on appeal that his bail is oppressive and calculated to punish him for his failure to appear.

Holding. No. “While [defendant’s] argument has the potential of being persuasive due to the unprecedented delays in trial being experienced due to the COVID-19 pandemic, [defendant] has not provided any evidence supporting his position on these points and the record before us contains none.” Texas Code of Criminal Procedure Article 17.15 provides the appropriate factors for determining the amount of bail; they include: the ability to make bail, work record, family ties, length of residency, prior criminal record, compliance with the provisions and conditions of any previous bond. Defendant did not present evidence on these factors, he presented mere argument. The record failed to establish his financial inability or his unique medical vulnerabilities which he presented as bases for reduced bail. Courts “must be innovative in dealing with the delicate balance between an accused’s right to be released on reasonable bail pending trial and the unparalleled delays courts are experience in the trial of pending offenses.” However, a court cannot be faulted for failing to invent solutions when the record is devoid of factual support.

Comment. I half agree. According to the State’s briefing, this matter was resolved in the trial court without a hearing and without consideration of evidence. In that regard, the record is insufficient to substantiate the defendant’s medical condition. However, I believe that a year of pretrial confinement, having not posted bail, is prima facia evidence that the defendant can’t make bail. I may have just made that rule up – but it seems like a pretty solid one.

8th District El Paso

The Eighth District Court of Appeals in El Paso did not hand down any significant or published opinions since the last Significant Decisions Report.

9th District Beaumont

The Ninth District Court of Appeals in Beaumont did not hand down any significant or published opinions since the last Significant Decisions Report.

10th District Waco

The Tenth District Court of Appeals in Waco did not hand down any significant or published opinions since the last Significant Decisions Report.

11th District Eastland

The Eleventh District Court of Appeals in Eastland did not hand down any significant or published opinions since the last Significant Decisions Report.

12th District Tyler

The Twelfth District Court of Appeals in Tyler did not hand down any significant or published opinions since the last Significant Decisions Report.

13th District Corpus Christi/Edinburg

The Thirteenth District Court of Appeals in Corpus Christi/Edinburg did not hand down any significant or published opinions since the last Significant Decisions Report.

14th District Houston

Bleimeyer v. State, No. 14-18-01082-CR (Tex. App.—Houston [14th Dist.], Jan. 7, 2021)

Issues. This case is an injury-to-child-by-omission arising from allegations that defendant-stepmother, together with her husband, starved her stepson to near death. The most significant issues presented include: (1) Can a stepmother who disclaims responsibility for a stepchild avoid omission-culpability when she has a history of at least fulfilling some parental responsibilities for the injured child? and (2) When a stepmother presents evidence that she merely sat idly by while her husband starved her stepchild, is she entitled to a lesser-included offense instruction on child endangerment?

Facts. Defendant was the stepmother of a starving five-year-old child. A doctor who ultimately treated the child for his injuries reported that the child was terribly malnourished and underweight (one pound shy of what W.H.O. would classify as a famine victim). The doctor described the condition as chronic starvation with the onset of liver and kidney failure and near death. In addition to the complainant, the defendant had five children of her own, and two mutual children with the complainant’s father. Defendant indicated that the complainant was “part of the family and participated in family events.” Defendant testified that her relationship with complainant was similar to a nephew, but that complainant called her “mom.” In addition to managing the household, defendant assumed the responsibility of complainant’s medical visits. Defendant’s children testified that their mom was in control of the household and that their mom and stepfather would starve the complainant as a form of discipline. On one occasion defendant prevented her longtime friend from taking the child to the hospital for his starvation. On another occasion defendant’s son got into a physical altercation with defendant’s husband about complainant’s care. This physical altercation culminated in the defendant and her husband fleeing the home with the complainant to avoid the police. Defendant, her husband, and defendant’s niece all testified that there was an explicit agreement in the relationship that defendant would care for her own children and husband would care for his own children (i.e. the complainant). Defendant also presented evidence that she never actually punished the complainant herself, that her husband and complainant only lived with her off-and-on, that her husband was abusive toward her, and that she was prohibited from doing anything with the complainant without her husband’s permission. Much of this evidence was controverted.

Holding. (1) No. “To be convicted of injury to a child by omission, a defendant need not have an in loco parentis relationship with the child—that is, the defendant need not assume all the duties of a parent.” The record reflects ample evidence that defendant assumed care over the complainant and would lead a reasonable person to assume she accepted responsibility for the child’s nourishment and wellbeing. (2) No. A lesser-included instruction is required when: (1) the lesser-included offense is included within the proof necessary to establish the charged offense, and (2) there is some (more than a scintilla) of evidence that suggests that if the defendant is guilty, she is only guilty of the lesser-included offense. The defensive evidence which painted a picture of the defendant having a more passive role did not refute the causation element of injury to a child. “The evidence does not show that appellant’s omissions merely placed the complainant in danger of injury, rather than caused injury.”

Comment. Defendant went on Dr. Phil and said she was busy with her other kids and that feeding her stepson was not her responsibility. Defendant’s biological children understandably did not have many good things to say about her—at trial or on Dr. Phil.

Root v. State, No. 14-19-00075-CR (Tex. App.—Houston [14th Dist.] Jan. 21, 2021)

Issue. This case involves the seven-day requirement for registering as a sex offender after release from prison. The statute defines compliance as a meeting occurring either within a seven-day-literal window, or a seven-day-expanded window (the earliest day the police choose to meet). Where the State specifically alleges that a defendant failed to report his new email address within seven days of release from prison, may the State rely on the seven-day-expanded definition in the statute to convict at trial?

Facts. In July 2015 defendant was released from prison and went to Houston PD to set up his sex-offender registration. Houston PD set up a meeting for November 2015. At the November meeting defendant completed a “registration update form” where he verified “Email: None.” Three months later, defendant admitted to an investigator that he had the email address . It was shown that this address was created on August 10, 2015 (one month after release, three months prior to his registration meeting). The State charged the defendant with failure to register—by failing to provide his email address within seven days of release from a penal institution. Defendant argued the State’s theory was impossible because he did not create the email address until the 13th day after his release. The State argued that the indictment language was unimportant and that the statutory seven-day requirement is broader than a literal seven-day period. Under the statute, the seven-day requirement also means a date that is on “the first date the local law enforcement authority . . . allows the person to register . . . “ The State’s argument followed: because defendant’s seven-day window was expanded to a date after the creation of the email, the law required the defendant to disclose it at his meeting.

Holding. No. Sufficiency of evidence is evaluated against a hypothetically correct jury charge. An unproven allegation is to be included in the hypothetically correct jury charge when the variance between the allegation and proof is material. The Court of Criminal Appeals has identified three categories of variance:

(1) a statutory allegation that defines the offense, which is either not subject to a materiality analysis, or, if it is, is always material; the hypothetically correct jury charge always will include the statutory allegations in the indictment;

(2) a non-statutory allegation that is descriptive of an element of the offense that helps define the allowable unit of prosecution, which is sometimes material; the hypothetically correct jury charge sometimes will include the non-statutory allegations in the indictment and sometimes will not;

(3) a non-statutory allegation that has nothing to do with the allowable unit of prosecution, which is never material; the hypothetically correct jury charge will never include the non-statutory allegations in the indictment.

The variance here, the seven-day-literal window the State pleaded and the seven-day-expanded window the State proved, is a variance of the first category. The State’s indictment provided a definition for the offense. The State did not prove the offense as they defined it. This variance is material, the hypothetically correct jury charge incorporates only the definition from the indictment, and the evidence is therefore insufficient. Defendant could not have reported the existence of within seven days of his release from prison, because it did not yet exist on that date. 

Comment. A quick TDCJ offender lookup shows the defendant was born in 1969.

Kyle Therrian
Kyle Therrian
Kyle’s practice has always been criminal defense. In McKinney, where he has practiced for the past 10 years, he represents individuals in all aspects of criminal accusations, including dozens of appeals before the various Courts of Appeal and Court of Criminal Appeals. He enjoys being a resource to his colleagues and, as he describes it, “nerding out on the law.” He is an active member and leader in TCDLA. In addition to his new role as Significant Decisions Report Editor, Kyle serves as Vice Chair to Texas Criminal Defense Lawyers Education Institute, Vice Chair on the COVID-19 Taskforce, is a long-time member of the Amicus committee, and a regular lecturer as part of the Criminal Defense Lawyers Project.

Kyle’s practice has always been criminal defense. In McKinney, where he has practiced for the past 10 years, he represents individuals in all aspects of criminal accusations, including dozens of appeals before the various Courts of Appeal and Court of Criminal Appeals. He enjoys being a resource to his colleagues and, as he describes it, “nerding out on the law.” He is an active member and leader in TCDLA. In addition to his new role as Significant Decisions Report Editor, Kyle serves as Vice Chair to Texas Criminal Defense Lawyers Education Institute, Vice Chair on the COVID-19 Taskforce, is a long-time member of the Amicus committee, and a regular lecturer as part of the Criminal Defense Lawyers Project.

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