May 2011 SDR – Voice for the Defense Vol. 40, No. 4

Voice for the Defense Volume 40, No. 4 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

Pepper v. United States, 131 S. Ct. 1229 (U.S. 2011); Vacated in part, affirmed in part & remanded: Sotomayor (6–2)

Jason Pepper pleaded guilty in a federal district court to conspiracy to distribute 500 grams or more of a substance containing meth. In the latest of a series of appeals and remands, a newly assigned Iowa federal district court sentenced Pepper to 77 months in prison and 12 months supervised release—a 20 percent downgrade from the Federal Sentencing Guidelines advisory range. Thereafter, the district court granted the government’s motion to reduce Pepper’s sentence further to 65 months because of assistance Pepper provided after he was initially sentenced. Pepper appealed, arguing in part that the district court should consider evidence of his post-sentence rehabilitation to reduce his sentence further. The Eighth Circuit affirmed Pepper’s sentence, holding in part that evidence of a defendant’s post-sentence rehabilitation was not relevant at resentencing.

HELD: When the defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant’s rehabilitation after the initial sentences; and that evidence may, in appropriate cases, support a downward variance from the sentencing guidelines. Because the Eighth Circuit set aside Pepper’s entire sentence and remanded for de novo resentencing, the district court was not bound by the law of the case doctrine to apply the same 40 percent departure applied by the original sentencing judge. To avoid undermining a district court’s original sentencing intent, an appellate court when reversing one part of a sentence may vacate the entire sentence so that, on remand, the trial court can reconfigure the sentencing plan to satisfy 18 U.S.C.S. § 3553(a)’s sentencing factors. That is what the Eighth Circuit did here.

Michigan v. Bryant, 131 S. Ct. 1143 (U.S. 2011); Reversed & remanded: Sotomayor (6–2)

A trial court convicted Richard Perry Bryant of second-degree murder, being a felon in possession of a firearm, and possession of a firearm during commission of a felony. On appeal, Bryant challenged the admission of the victim’s statements at trial for violating his Sixth Amendment right of confrontation. The victim stated that Bryant shot him, but died shortly thereafter. The Michigan Supreme Court reversed, holding that the statements that the victim made to police before his death were testimonial and their admission violated Bryant’s right to confrontation. The court reasoned that the victim’s statements were made in the course of a police interrogation whose primary purpose was to establish or prove events that had already occurred, not to enable police to meet an ongoing emergency. Therefore, the statements were “testimonial” for the purposes of the enhanced confrontation protections set forth in Crawford v. Washington, 541 U.S. 36 (2004), and should not have been admitted against Bryant because he did not have the opportunity to cross-examine the victim prior to his death.

HELD: Inquiries of wounded victims concerning the perpetrator are non-testimonial if they objectively indicate that the purpose of the interrogation is to enable police assistance to meet an ongoing emergency, and, thus, not afforded heightened protection under Crawford. The identification and description of the shooter and the location of the shooting were “not testimonial statements because they had a ‘primary purpose . . . to enable police assistance to meet an ongoing emergency.’ Therefore, their admission at Bryant’s trial did not violate the Confrontation Clause.”

Wall v. Kholi, 131 S. Ct. 1278 (U.S. 2011); Affirmed: Alito (9–0)

In 1993, a Rhode Island jury convicted Khalil Kholi on ten counts of first-degree sexual assault. A judge on the state superior court sentenced Kholi to two consecutive terms of life in prison, and the state supreme court affirmed the conviction in 1996. Kholi did not file a federal writ of habeas corpus at that time. Instead, he filed a motion seeking sentence reduction as a form of post-conviction relief, which was denied. Kholi exhausted his procedural options regarding sentence reduction in 2007, at which time he began his appeal for federal writ of habeas corpus, which was well beyond the Antiterrorism and Effective Death Penalty Act’s standard one-year limitation on filing. In 2009, the First Circuit reversed and remanded the district court’s judgment that a petition for leniency is different from an appeal to correct legal errors and therefore does not result in a tolling of the statute of limitations under AEDPA. The First Circuit’s decision was in line with a Tenth Circuit ruling, but the Third, Fourth, and Eleventh circuits have previously ruled that a petition for leniency does not toll the statute of limitations under AEDPA.

HELD: Because the parties agree that a motion to reduce sentence under Rhode Island law is not part of the direct review process, respondent’s motion tolled the AEDPA limitation period; his federal habeas petition was timely. Inmates have one year to file a habeas challenge to their sentence in federal court after conviction. The running of that time is delayed while the conviction is under review in state court. The time is also tolled while a state court considers an inmate’s request for a sentence reduction.

Skinner v. Switzer, 131 S. Ct. 1289 (U.S. 2011); Reversed: Ginsburg (6–3)

A Texas state court convicted Henry Skinner of capital murder and sentenced him to death. Subsequently, Skinner brought a 42 U.S.C. §1983 suit against the prosecuting attorney in a federal district court alleging that his Fourteenth Amendment right to due process and Eighth Amendment right to be free from cruel and unusual punishment were violated when the district attorney refused to allow him access to biological evidence for DNA testing. The district court dismissed the case. The Fifth Circuit affirmed, holding that precedent established that Skinner’s claim was not cognizable as a 42 U.S.C. § 1983 action, but instead must be brought as a petition for writ of habeas corpus.

HELD: A convicted prisoner seeking access to biological evidence for DNA testing may assert that claim in a civil rights action under 42 U.S.C. § 1983.

Connick v. Thompson, 131 S. Ct. 1350 (U.S. 2011); Reversed: Thomas (5–4)

John Thompson sued the Orleans Parish District Attorney’s Office, District Attorney Harry Connick, in his official and individual capacities, and several assistant district attorneys in their official capacities under 42 U.S.C §1983 in a Louisiana federal district court. Thompson served 14 years on death row for a crime he did not commit because prosecutors failed to turn over blood work in a related case. The jury awarded Thompson $14 million against Connick in his official capacity. On appeal, an en banc Fifth Circuit rendered a tie vote and, thus by rule, affirmed.

HELD: A prosecutor’s office cannot be held liable for the illegal conduct of one of its prosecutors when there has been only one violation resulting from deficient training.

Fifth Circuit

United States v. Johnson, 619 F.3d 469 (5th Cir. 2010)

In sentencing defendant convicted of bank robbery under 18 U.S.C. §2113(a), district court did not err in applying a 4-level enhancement under USSG § 2B3.1(b)(4)(A) for abduction of a victim; even though the victim (a teller) was not made to enter or exit a building, defendant did (1) force teller from behind her counter to the front of the bank, (2) force her back to her drawer for a key to the back door, and (3) force her to accompany him to the rear door to unlock it, facilitating his escape.

Stevens v. Epps, 618 F.3d 489 (5th Cir. 2010)

Death-sentenced defendant was not entitled to federal habeas relief on his claim that the prosecution exercised a peremptory challenge on a black prospective juror in violation of Batson v. Kentucky, 476 U.S. 79 (1986), and its progeny. The prosecution offered more than one race-neutral reason for striking the juror, and defendant failed to rebut one of those reasons (the prospective juror’s alleged inattentiveness). The Mississippi Supreme Court’s decision that the trial judge allowed the strike because it implicitly credited the prosecutor’s assertion of inattentiveness, and its decision to defer to the trial court’s implicit factual finding, is not an unreasonable application of Batson. The Fifth Circuit noted that in Thaler v. Haynes, 130 S. Ct. 1171 (2010) (per curiam), the Supreme Court reversed the Fifth Circuit’s understanding of Snyder v. Louisiana, 552 U.S. 472 (2008), and limited the latter decision’s holding to cases where a trial judge did not explain why he overruled a Batson challenge and one of the allegedly race-neutral reasons offered by the prosecutor was race-based. The Fifth Circuit also denied a certificate of appealability on defendant’s claim that the representation afforded him in the Mississippi post-conviction review process was so deficient as to deny him due process. A defendant has no constitutional right to appointed counsel in post-conviction proceedings, and hence no constitutional redress if post-conviction counsel performs deficiently. Judge Haynes concurred; she affirmed on the Batson issue “only because of the highly deferential review standard required by AEDPA” and noted that given some of the “disturbing and inappropriate” remarks in the record, “[h]ad this been a direct appeal of the state trial court’s decision, [her] decision very likely would have been different.”

United States v. De Cay, 620 F.3d 534 (5th Cir. 2010)

To satisfy restitution obligations owed by two defendants, the federal government could garnish those defendants’ retirement benefits held by a Louisiana state pension fund. Neither the Internal Revenue Code, the Tenth Amendment, nor Louisiana law barred garnishment of those retirement benefits. Moreover, the federal government could compel a “cash-out” of one defendant’s benefits. However, as to a second defendant, whose benefits were paid monthly, the Consumer Credit Protection Act limited the federal government’s right to garnish defendant’s pension to 25 percent of his monthly benefits. The Fifth Circuit affirmed the garnishment order against the first defendant but reversed and remanded the order as to the second.

United States v. Meza, 620 F.3d 505 (5th Cir. 2010)

Where (1) district court mistakenly sentenced defendant to 33 months on a new charge, plus a consecutive 10-month sentence for supervised release revocation, for a total of 43 months, but then, recognizing its error, (2) changed the new charge sentence to 30 months and increased the supervised release revocation sentence to 13 months, so as to keep the sentence at 43 months, the district court did not exceed its authority or jurisdiction. Unlike the sentence increase overturned in United States v. Ross, 557 F.3d 237 (5th Cir. 2009), the application for a modification (albeit of the sentence on the new charge) was made by a party and occurred in the same hearing, and within moments of, the original pronouncement. The instant case was also distinguishable from United States v. Cross, 211 F.3d 593, 2000 WL 329247 (5th Cir. 2000) (unpublished), in which the court had already gaveled the sentencing hearing to a close and had to reconvene to enter a new sentence; here there was no formal break in the proceedings from which to logically and reasonably conclude that sentencing had finished.

United States v. Gonzalez-Rodriguez, 621 F.3d 354 (5th Cir. 2010)

(1) In drug prosecution, although district court committed no error in admitting some background-type testimony from the DEA case agent, it plainly erred in admitting other testimony that crossed the line into impermissible drug-courier-profile evidence or impermissible evidence on the ultimate issue of knowledge; however, these errors did not require reversal on plain-error review because defendant failed to show a reasonable probability of a different outcome but for the erroneously admitted evidence.

(2) District court did not err in denying defendant’s motion to dismiss under the Speedy Trial Act (STA). The delay associated with the government’s oral motion for detention was excludable under 18 U.S.C. §3161(h)(1)(D); thus defendant’s indictment was returned within the 30 days prescribed by the STA. The Fifth Circuit “join[ed] almost all of [its] sister circuits in holding that when an oral pretrial motion is made on the record with both parties present, it is ‘filed’ just like a written motion for purposes of § 3161(h)(1)(D).”

Jimenez v. Wood County, 621 F.3d 372 (5th Cir. 2010), reh’g en banc granted, 626 F.3d 870 (5th Cir. 2010)

The panel was bound by Fifth Circuit precedent holding that a strip search of an individual arrested for a minor offense must be premised on reasonable suspicion that the detainee is carrying weapons or contraband. If the rule is to be changed, it must be done by the Fifth Circuit sitting en banc (as the Ninth and Eleventh circuits recently have done). Under this rule, plaintiffs were entitled to relief under 42 U.S.C. §1983 because they were arrested for minor offenses and were strip-searched without reasonable suspicion.

Court of Criminal Appeals

Appellant’s PDRs

State v. Rhinehart, 333 S.W.3d 154 (Tex.Crim.App. 2011); COA reversed, trial court affirmed

Appellee was charged in juvenile court with an aggravated robbery committed 44 days before his 17th birthday. Three days after appellee’s 18th birthday, the State filed a petition in juvenile court to transfer appellee’s case to a criminal district court, where appellee would be tried as an adult. Appellee claimed at a transfer hearing that the State did not use due diligence in proceeding with his case in juvenile court before his 18th birthday. The juvenile court waived its jurisdiction and transferred appellee to district court, after which he was indicted for aggravated robbery. Appellee raised the due-diligence issue in the district court in a “motion to quash indictment.” The district court held a hearing on the motion, during which the parties relitigated the due-diligence issue. The State’s only argument was that it had used due diligence. The district court granted appellee’s motion.

On appeal, the State claimed for the first time that (1) the criminal court was without jurisdiction to review “the evidence underlying the juvenile court’s decision to transfer this case” because appellee “had no statutory right to appeal the sufficiency of the evidence in the juvenile court’s transfer proceedings prior to being finally convicted in the criminal district court,” and (2) the district court erred to grant appellee’s motion on a ground not authorized by law because the sufficiency of the evidence supporting a juvenile court’s order to transfer a case to district court is not a valid ground for granting a motion to quash an indictment as a matter of statutory law. COA sustained the State’s second issue, found it unnecessary to address its first issue, reversed the order quashing the indictment, and remanded the case to the district court.

HELD: The State, as the losing party in the district court, could not raise for the first time on appeal a claim that there was no valid basis for the court to have quashed the indictment.

Howard v. State, 333 S.W.3d 137 (Tex.Crim.App. 2011); Affirmed

Appellant entered a store wielding a rifle and concealing his face with fabric. The store’s owner and cashier, Mukesh Patolia, was alone in the store and in a back office. After observing appellant on his security-camera monitor and through a one-way window, Patolia locked the office and called 911. There is no evidence in the record showing appellant was aware of Patolia. Appellant was unable to open the cash register, but took Patolia’s wallet from the counter and money from underneath. A jury convicted appellant of aggravated robbery and sentenced him to life in prison. COA affirmed.

CCA granted review on this novel issue: “Does the offense of aggravated robbery require interaction between the accused and the purported victim?” Appellant contests that because he could not intentionally or knowingly place in fear “a person whose presence or even existence [was] unknown” to him, the evidence was legally insufficient to support a robbery conviction, and the conviction should be reformed to theft. Because the jury could have found appellant guilty for either of these culpable mental states, CCA only addressed the less-culpable mental state of knowingly.

HELD: “Knowingly” does not refer to the defendant’s knowledge of the actual results of his actions, but knowledge of what results his actions are reasonably certain to cause. Using this definition, robbery-by-placing-in-fear does not require that a defendant know he actually places someone in fear, or know whom he actually places in fear. Rather, it requires that the defendant is aware that his conduct is reasonably certain to place someone in fear, and that someone actually is placed in fear. Given the video evidence, a rational juror could have inferred that appellant was aware it was reasonably certain his actions would place someone in fear of imminent bodily injury or death. The fact that appellant did not see Patolia—who testified that he was frightened by appellant—does not negate appellant’s culpable mental state.

Byrd v. State, __S.W.3d__ (Tex.Crim.App. No. 0738-10, 3/30/11); Reversed & acquittal ordered

Appellant contended that the State’s evidence was insufficient to support a conviction of misdemeanor theft because the State alleged the wrong owner at trial. A sharply divided en banc COA held that the discrepancy between the alleged owner and the proof at trial was an immaterial variance.

HELD: “‘[V]ariance’ ought to be used to describe instances in which there is a minor discrepancy between the facts alleged and those proved, such as a difference in spelling, in numerical digits, or in some other minor way.” But when the discrepancy between the charging instrument and the proof at a theft trial is that of an entirely different person or entirely different property, that discrepancy is not merely a variance, it is a failure of proof. Thus, because the State failed to prove that the named owner had any ownership interest in the property, the evidence is insufficient under the principles in the Malik, Gollihar, and Fuller trilogy.

Davis v. State, __S.W.3d__ (Tex.Crim.App. No. 1400-10, 3/30/11); Reversed & remanded

Appellant was convicted of aggravated robbery, and a jury sentenced him to ten years’ confinement. During voir dire, defense counsel asked: “Let’s talk about factors in [assessing] the sentence in a case of aggravated robbery with a deadly weapon. What factors do y’all think are important?” Without an objection from the State, the court interjected, “[Counsel], that’s a commitment question. You can’t ask that question.” Appellant petitioned that COA erred in affirming this as an improper commitment question.

HELD: Where jurors will be required to choose between only two possibilities, inquiries into what will influence their decision are more likely to require commitments than in situations where jurors can choose among a broader range. COA compared appellant’s question to one posed in Standefer v. State, 59 S.W.3d 177 (Tex.Crim.App. 2001). “What circumstances in your opinion warrant the imposition of the death penalty?” Standefer is distinguishable as it asked jurors to define situations in which they would impose a specific sentence. Had counsel asked jurors what circumstances would warrant the maximum punishment, that would have been an impermissible commitment question. Instead, the question sought to discover which factors would be important to jurors’ decisions, without inquiring how those factors would influence the decision. The question in this case is also distinguishable from the death-penalty question because sentencing for a capital felony has only two possible outcomes. In this case, there is a much broader range of sentencing possibilities.

State’s PDRs

Rice v. State, 333 S.W.3d 140 (Tex.Crim.App. 2011); Affirmed

Appellant was charged with two counts of aggravated assault with a deadly weapon—to wit, a motor vehicle. A jury convicted him of both counts and sentenced him to five years’ imprisonment on each charge. COA reversed and remanded, concluding that the trial court erred by failing to instruct the jury on the lesser-included offense of reckless driving and that appellant was harmed by such error. CCA granted review to determine whether the lesser-included-offense instruction should have been given when the indictment did not allege that appellant drove a motor vehicle.

HELD: The first step of the Hall lesser-included-offense analysis requires courts to determine if reckless driving is a lesser-included offense of aggravated assault as charged. Courts do not consider the evidence that was presented at trial; they consider only the statutory elements of aggravated assault with a deadly weapon as modified by the particular allegations in the indictment. Under this analysis, the elements of reckless driving are not included within the facts required to establish aggravated assault with a deadly weapon as charged.

Taylor v. State, 332 S.W.3d 483 (Tex.Crim.App. 2011); Reversed & remanded

Appellant was convicted of three offenses of aggravated sexual assault and sentenced to 70 years’ confinement with a $30,000 fine. Much of the testimony related to acts committed before appellant turned 17. COA held that he was denied a fair trial because the jury charges did not limit the jury’s consideration to evidence of acts committed after his 17th birthday. CCA granted review to consider the effects of the jury instructions given and not given. The State petitioned that in the absence of a request for a Tex. Penal Code §8.07(b) instruction from defense counsel, the judge is not required to sua sponte instruct the jury on this point. The State also argued that COA should have found any error to be harmless.

HELD: A charge is erroneous if it presents the jury with a much broader chronological perimeter than is permitted by law. The trial judge is “ultimately responsible for the accuracy of the jury charge and accompanying instructions,” and this is an “absolute sua sponte duty.” In this case, the judge had a sua sponte duty to provide an 8.07(b) instruction. While the jury instruction did not specifically refer to “any offense anterior to the presentment of the indictment,” it did not limit the jury’s consideration of such. The absence of an 8.07(b) instruction, combined with the evidence of appellant’s conduct as a juvenile and the instruction that the jurors did receive—that “a conviction may be had” for any offense committed before the victim’s 28th birthday—resulted in inaccurate charges that omitted an important portion of applicable law. Therefore, CCA found a violation of Tex. Code Crim. Proc. art. 36.14. In determining whether the error resulted in egregious harm, CCA looked to the facts that show appellant’s 17th birthday fell in the middle of an eight-year pattern of abuse. The jury could have convicted appellant of the same offense even if the proper instruction had been given and appellant’s pre-17 acts were disregarded by the jury. COA was correct that the court erroneously failed to instruct the jury on Section 8.07(b); however, the error did not result in egregious harm.

Prudholm v. State, __S.W.3d__ (Tex.Crim.App. No. PD-1611-08, 3/16/11); COA affirmed, remanded to trial court

This is an appeal from a sentence enhanced under Tex. Penal Code §12.42(c)(2), which mandates a life sentence for a defendant convicted of a sex-related offense listed in Subsection A if the defendant has been previously convicted of a Texas offense listed in Subsection B or an offense “under the laws of another state containing elements that are substantially similar to the elements” of a Texas offense listed in Subsection B. Here, CCA must decide whether the California offense of sexual battery contains elements that are substantially similar to the elements of the Texas offenses of sexual assault or aggravated kidnapping.

HELD: Sexual battery does not contain elements that are substantially similar to aggravated kidnapping or sexual assault. While the elements of the California and Texas offenses may be similar in a general sense, they do not display the high degree of likeness required to be substantially similar.

State v. Johnston, __S.W.3d__ (Tex.Crim.App. No. PD-1736-09, 3/16/11); COA reversed, remanded to trial court

COA held that the unrecorded and compelled draw of appellee’s blood by police officer, who was a seasoned EMS provider, in the police station’s blood-draw room while appellee was restrained violated the Fourth Amendment’s reasonable manner requirement.

HELD: CCA clarified the necessity to consider both reasonableness questions under Schmerber v. California, 384 U.S. 757 (1966): (1) whether the test chosen was reasonable; and (2) whether it was performed in a reasonable manner. For the general population, the Supreme Court has determined that a blood test is a reasonable means in which to analyze an individual’s blood alcohol level. For the second prong of the reasonableness question, the reasonableness of the manner in which a DWI suspect’s blood is drawn should be assayed on an objective, case-by-case basis in light of the totality of the circumstances. The officer’s specific training and experience as an EMT qualified him to perform the blood draw. Furthermore, while a medical environment may be ideal, it does not mean that other settings are unreasonable under the Fourth Amendment. An environment is deemed safe (reasonable) if it is in accordance with accepted medical practices and therefore does not “invite an unjustified element of personal risk of infection or pain.” Under the totality of the circumstances, appellee’s blood was drawn in accordance with acceptable medical practices and was therefore reasonable.

State v. Robinson, __S.W.3d__ (Tex.Crim.App. No. PD-1206-10, 3/16/11); COA & trial court reversed, remanded to trial court

Appellee was arrested without a warrant for DWI. He was transported to a hospital, where he consented to have his blood drawn. Appellee filed a motion to suppress the results, claiming his blood was drawn without a warrant and without consent and was not drawn by a qualified person; thus, it should have been suppressed under both the Fourth Amendment and Tex. Code Crim. Proc. art. 38.23. The State stipulated to the unwarranted arrest, relieving appellee from the burden of rebutting the presumption of proper police conduct in making the arrest. The State argued that the trial court improperly shifted the burden of proof on the 38.23 suppression issue; because appellee brought the motion to suppress, he retained the burden of proof to establish that the blood draw was not in accordance with the statutory requirements.

HELD: The defendant has the initial burden of proof under 38.23, which shifts to the State only when a defendant has produced evidence of a statutory violation. However, appellee never produced evidence of a statutory violation. Therefore, the State never had the burden to prove that the blood sample was drawn by a qualified person.

Writs of Habeas Corpus

Ex parte Ghahremani, 332 S.W.3d 470 (Tex.Crim.App. 2011); Granted

Applicant was convicted of two separate accounts of sexual assault and aggravated sexual assault of two minors. The jury assessed the maximum punishment—20 years for one assault and 28 years for the other. The convictions and sentences were affirmed on appeal. Applicant asserted that the State failed to disclose favorable evidence and “presented [one of the victim’s] parents’ misleading testimony creating the false impression that her physical, emotional, and psychological problems resulted solely from her sexual encounter with applicant.” The essence of applicant’s claim was that the State knowingly presented false testimony; the suppression of a particular police report is merely evidence that the testimony was false (and that the State knew it was false). The convicting court made findings of fact and recommended relief.

HELD: There is a reasonable likelihood that the false testimony affected applicant’s sentences. Applicant must also show that this due process violation was not harmless. When the State knowingly uses false testimony, the determinative factor in whether the defendant can raise the issue on direct appeal is, frequently, how well the State hid its information. Here, applicant had no opportunity to present his claim on direct appeal, in large part because the State concealed information suggesting that the testimony was misleading. When a habeas applicant has shown that the State knowingly used false, material testimony, and the applicant was unable to raise this claim at trial or on appeal, relief from the judgment obtained by that use will be granted. Therefore, relief is granted; the convicting court may hold new punishment hearings.

Ex parte Thiles, 333 S.W.3d 148 (Tex. Crim. App. 2011); Granted

Applicant alleged that he was “constructively released” from custody erroneously and through no fault of his own and is therefore entitled to credit towards time served from the time that the mandate of affirmance was issued in 1987. The State, applicant, and trial court agreed that the principle of reasonableness underlying the erroneous release cases should apply to this case and that applicant should be granted relief.

HELD: This principle should apply here. Because of the inaction of the State, applicant was never informed that a mandate of affirmance had issued in his case. He never violated the conditions of his appellate bond, having never been called to appear before the court upon the affirmance of his conviction on appeal. Instead, he was allowed to remain at large erroneously, without his knowledge and through no fault of his own. Applicant is entitled to day-for-day time credit from the time the appellate mandate issued (1987) to the time he was finally arrested on the warrant (2007). Had he been incarcerated in 1987, his sentence would have discharged in 2001. CCA ordered applicant’s immediate release.

Ex parte Niswanger, __S.W.3d__ (Tex.Crim.App. No. AP-76,302, 3/16/11); Denied

Applicant was charged with and pled guilty to impersonating a public servant for a sentence of 10 years’ confinement, as opposed to the minimum sentence of 25 years. Applicant filed this pro se writ of habeas corpus, claiming his plea was involuntary because his attorney was ineffective for failing to investigate the facts. The trial court entered findings of fact and conclusions of law recommending relief be denied.

HELD: Applicant did not prove by a preponderance of the evidence that counsel’s representation fell below the objectively reasonable standard. Therefore, applicant failed to show that his plea was unknowingly or involuntarily made because of ineffective assistance.

Direct Appeal

Freeman v. State, __S.W.3d__ (Tex.Crim.App. No. AP-76,052, 3/16/11); Affirmed

A jury convicted appellant for capital murder of a Texas game warden. Based on the jury’s answers to the special issues in Tex. Code Crim. Proc. art. 37.071, the trial court sentenced appellant to death.

HELD: Appellant’s 12 points of error, the most notable listed below, are without merit; the trial judgment and sentence are affirmed.

Appellant alleged the trial court erred in denying his motion for change of venue because he could not obtain a fair trial in Wharton County. Appellant presented only speculation that the court abused its discretion in denying this motion.

Appellant complained it was harmful, reversible error when the prosecutor compared him to a serial killer and described his experts as “hired guns” during the State’s closing arguments at the guilt phase. Given the brevity of the prosecutor’s comments, the lack of prejudice, and the strength of the evidence supporting appellant’s conviction, any errors associated with those comments were harmless. Likewise, the court did not err in overruling his objection to the prosecutor’s argument that he tried “to commit the worst criminal act on law enforcement ever in the United States’ history.”

Appellant complained the court “continually den[ied] defense counsel’s attempts to explore mercy as a consideration during the individual voir dire.” Appellant did not show that he was forced to accept any objectionable jurors.

Appellant alleged the court erred in refusing to grant a hearing on his motion for new trial on the following grounds: (1) there was unauthorized communication between the bailiff and jury that violated his Sixth Amendment right to an impartial jury, and (2) the future dangerousness question violates due process. On the first point, the bailiff’s direction to jurors to keep their voices down so that they could not be heard outside the jury room did not implicate appellant’s right to an impartial jury. Regarding the second point, CCA has repeatedly stated that the facts of an offense alone may support an affirmative future dangerousness finding.

Motion for Leave to File Original Writ of Mandamus

State v. Dittman, __S.W.3d__ (Tex.Crim.App. No. 74,593-01, 3/30/11); Denied

A sexual assault case is pending in the district court. Complainant was interviewed at the Child Advocacy Center. The State has a DVD recording of the interview, and the court has ordered the State to make a copy of the recording for defense counsel. The prosecutor sought a writ ordering the district judge to rescind his order. The issue is whether the order to make the defense a copy is permitted under the discovery statute, Tex. Code Crim. Proc. art. 39.14(a).

HELD: In applying the plain language of the statute, CCA held that the court’s order for the State to make the DVD copy, which is an easy and inexpensive task, is reasonable. Alternatively, the court could have ordered the State to deliver the original copy of the DVD to defendant to duplicate, which is a seemingly less desirable option.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Parks v. State, 330 S.W.3d 675 (Tex.App.—San Antonio 2010, pet. ref’d)

Encounter between D and officers was not consensual. One officer used a spotlight to illuminate D, who was walking behind a mall with three other men, and the officers communicated in an authoritative tone to D to walk to the patrol car and place his hands on the car. The court emphasized that two officers were present (armed and uniformed). Although D did not immediately place his hands on the car, he yielded to officer’s request/command by stopping his path of travel. Officers were without RS, even though one officer noticed that D and the three accompanying men had blue rags in their pockets, and even though officer associated blue rags with gang members and believed that gang members often carry weapons to protect themselves or drugs. “While the State correctly argues that gang membership may be a factor to be considered in determining if reasonable suspicion exists, it has not cited any authority holding that gang membership alone provides reasonable suspicion for an investigative detention or a Terry frisk.” Moreover, officer did not testify that any particular gang identified with blue rags or that such a gang was active in the area, and officer did not explain how he acquired his knowledge about the weapon-carrying propensities of that gang.

Gonzales v. State, 330 S.W.3d 691 (Tex.App.—San Antonio 2010)

DWI conviction upheld, even though officers were unable to locate D after the accident for up to 30 minutes, at which point officers found D at his residence—where he had partaken in post-accident drinking. “[D] testified that the cause of his intoxication was his consumption of three glasses of wine after arriving at his residence,” and D alleged that the accident was due to a tire blowout and sleep deprivation. The court nevertheless determined that various circumstantial evidence was sufficient to support the conviction: a one-vehicle accident, no skid marks, driver left scene of accident, and officer’s testimony that “a person would not likely have reached the level of intoxication he observed in [D] unless the person drank continuously for twenty minutes, and he saw no evidence near [D] that indicated [D] had been drinking at his residence.”

Tanner v. State, No. 09-09-00458-CR, 2010 WL 4263822 (Tex.App.—Beaumont 10/27/10)

Prosecutor’s calling attention to D’s lack of witnesses did not constitute an improper comment on D’s failure to testify because D was not the only witness who could have been called to testify. “A remark that calls attention to the absence of evidence which only the defendant could supply will result in reversal; however, if the language can reasonably be construed to refer to appellant’s failure to produce evidence other than his own testimony, the comment is not improper.”

Vasquez v. State, 324 S.W.3d 912 (Tex.App.—Houston [14th Dist] 2010)

The State argued successfully that the following gave rise to RS: “(1) the initial stop was out of the ordinary when [D] pulled to the left rather than to the right; (2) [D’s] distant travel plans to Greenspoint Mall when there were several major malls in between his home and Greenspoint Mall; (3) [Trooper’s] knowledge of the Greenspoint Mall being a ‘high-crime area’ and a ‘source location for the ultimate destination of drugs and narcotics’[;] (4) [D’s] absence from work during the day; (5) [D’s] desire to travel so far when gas prices were almost $4.00 a gallon; (6) [D’s] failure to identify the store or the type of dress he was looking for; (7) [Trooper’s] past training in identifying signs of someone involved in a crime; and (8) [D’s] frequent face scratching and the appearance of his very pronounced and pulsating carotid arteries.” Furthermore, consent to search was “voluntary,” even though officer withheld D’s driver’s license while he asked D for consent, in large part because officer told D “he could hit the switch in the patrol car if he wanted to stop the search” and D never hit the switch. Also, D was not in handcuffs during search.

Colford v. State, No. 05-09-01360-CR, 2010 WL 4370952 (Tex.App.—Dallas 11/5/10)

Officers entered residence “voluntarily,” where, after knocking, officers heard one inhabitant yell “come in,” even if that particular inhabitant was a guest and had no actual authority over the premises. “[Officers] responded to a dispatch call regarding a citizen’s complaint that someone was selling drugs at a Dallas residence. . . . The officers could hear movement inside the house and knocked on the door. [Officer] testified that after a voice in the house said ‘come in’ in a ‘really agitated voice,’ he opened the door. He saw five or six people sitting on a couch in the living room. Two or three of the individuals had crack pipes in their hands. . . . Officer further stated that ‘[a]t the time someone said come in, [he] was under the belief that it was the person that was in charge of the house, saying come in. . . .’ A third party’s consent is valid if the facts available to the officer at the time of the search would allow a person of reasonable caution to believe that the consenting party had authority over the premises. . . . Thus, even if it was not [D] who said ‘come in,’ [officer] reasonably believed that someone with authority to consent to the officers’ entry provided consent.”

Moskey v. State, No. 01-09-00532-CR, 2010 WL 4484190 (Tex.App.—Houston [1st Dist] 11/10/10)

D unsuccessfully argued that inventory search did not comply with police department policy. “Both [officers] testified that they needed to impound the vehicle [D] was driving and conduct an inventory search because there was no one to whom the officers could release the vehicle. According to [officer], even if [D] had not been alone in the vehicle, the expired registration, inspection sticker, and lack of proof of insurance rendered the car unable to be legally driven from the scene. . . . [Officer] stated that the glove compartment was unlocked, and he therefore opened the compartment to complete the inventory pursuant to departmental policy. [Officer] then discovered the marijuana in the unlocked glove compartment. . . . [B]ased upon the testimony of [officers], the trial court reasonably could have determined that [officer] conducted the inventory search of [D’s] vehicle in accordance with standardized police procedures.”

Hogan v. State, 329 S.W.3d 90 (Tex.App.—Fort Worth 2010)

Blood-extraction search warrant affidavit sufficiently described D as person who was driving vehicle, even though affidavit never specifically stated D was the person driving. The affidavit explained that officer “had good reason to believe that appellant had operated a motor vehicle, described how officers saw a car progress recklessly and illegally through the streets of Fort Worth, explained that officers stopped the car that they observed being driven recklessly and illegally, and then said that at the scene of the stop, [officer] made contact with [D]. The affidavit does not indicate that anyone other than [D] (and other police officers) was at the scene (and therefore does not create doubt that someone else could have driven the ‘IMP’). Thus, we conclude that the magistrate could have reasonably inferred that [D] drove the vehicle described in the affidavit.”

Furthermore, the affidavit sufficiently described D’s performance on field sobriety tests, even though the affidavit contained technical acronyms that were undefined in the affidavit. The affidavit also withstood D’s other challenges, including that the affidavit failed to explain the nature or significance of the tests and was silent regarding officer’s experience in DWI cases. “[E]ven if we assume that the magistrate did not understand [officer’s] acronyms or know about the tests, the affidavit still informed the magistrate in plain language that [D] showed 15 combined clues of intoxication on the tests. . . . Finally, although the affidavit might have been more complete if it had detailed [officer’s] experience in DWI cases, we hold that such information was not required[.]”

Somers v. State, No. 10-09-00387-CR, 2010 WL 4813681 (Tex.App.—Waco 11/24/10)

Results of EMIT test for drugs were unreliable unless accompanied by a positive confirmation test and, thus, inadmissible. “[T]he EMIT test was positive for cocaine, but the confirmation GC test was negative. . . . The trial court did not abuse its discretion in excluding the test results.” The State did not withhold evidence in violation of Brady by relying on two separate drug testing methods, even though “[t]he DPS scientists agreed with [toxicologist’s] testimony that the failure to properly preserve the blood sample could have contributed to the negative GC test.” In finding no Brady violation, the State satisfied its obligation to provide D with scientists’ analysis prior to trial.

Victim’s statement of “whatever” in response to her employer’s decision to fire her for failing a drug test was not an admission of drug use and, thus, did not constitute a statement against interest for purposes of hearsay.

State’s closing argument during sentencing to the effect that D would serve merely a fraction of the sentence he received did not result in reversible error. “[Earlier in the proceeding,] [t]he State noted [to the jury] that [D] might not receive parole. . . . [However,] [t]he State later argued: ‘Now on these facts, with his history, you would certainly be within your rights to go back in this jury room and return the maximum sentence. That is a lot of time. He’ll do ten years of that. He’ll be a young man when he gets out.’ [D] objected that it was unknown if he would receive parole at that time. The trial court overruled the objection.”

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