May 2012 SDR – Voice for the Defense Vol. 41, No. 4

Voice for the Defense Volume 41, No. 4 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

Offenses relating to a false tax return in which the Government’s loss exceeds $10,000 qualify as aggravated felonies for aliens’ deportation. Kawashima v. Holder, 132 S. Ct. 1166 (2012)

      Resident aliens were convicted of offenses relating to a false tax return and ordered removed by the U.S. Attorney General for being convicted of aggravated felonies involving fraud or deceit under 8 U.S.C.S. § 1101(a)(43)(M)(i). The Supreme Court affirmed the Ninth Circuit’s judgment upholding the removal order.

      Convictions under 26 U.S.C. §§ 7206(1) and (2) in which the Government’s revenue loss exceeds $10,000 qualify as aggravated felonies pursuant to Clause (i). Although the formal elements of the offenses did not include fraud or deceit, and the offenses did not mention fraud or deceit, the offenses were aggravated felonies since the offenses necessarily entailed deceitful conduct. Both knowingly and willfully submitting a tax return that was false as to a material matter, and knowingly and willfully abetting such conduct, involved deceit which met the definition of an aggravated felony warranting removal. Further, the fact that an aggravated felony also expressly included the offense of tax evasion did not establish that removal based on fraud or deceit was inapplicable to tax crimes, since there was no congressional intent to exclude all tax crimes from removable conduct based on fraud and deceit or to circumscribe the broad scope of offenses involving fraud or deceit.

Even if the search warrant was invalid, it was not so obviously lacking in probable cause that the officers could be considered plainly incompetent for concluding otherwise. Mes­ser­schmidt v. Millender, 132 S. Ct. 1235 (2012)

      In this civil suit, the Court determined that the officers acted in a reasonable manner, and that qualified immunity protects government officials from civil liability when their conduct does not violate any clearly established right of which a reasonable person would have known.

      The officers acted in a reasonable manner because, among other things, (1) a reasonable officer could conclude that there would be additional illegal guns among others that the suspect owned, given his possession of one illegal gun, his gang membership, his willingness to use the gun to kill someone, and his concern about the police; (2) it would not have been unreasonable for an officer to believe that evidence regarding his gang affiliation would prove helpful in prosecuting him; and (3) the officers sought and obtained approval of the warrant application from a superior and a deputy district attorney before submitting it to the magistrate.

When evaluating motions to substitute counsel, courts should employ the interests of justice standard; the district court did not abuse its discretion in denying D’s motion. Martel v. Clair, 132 S. Ct. 1276 (2012)

      Before 18 U.S.C.S. § 3599’s passage, courts used an “interests of justice” standard under § 3006A to decide substitutions. That standard comported with the myriad ways that § 3599 sought to promote effective representation for capital defendants. When evaluating motions to substitute counsel in capital cases under 18 U. S. C. § 3599, courts should employ the interests of justice standard that applies in non-capital cases under § 3006A.

      Because a trial court’s decision on substitution is so fact-specific, it deserves deference and may be overturned only for an abuse of discretion. D’s first request to substitute post-conviction counsel was resolved. His second request raised one new claim: refusing to investigate new physical evidence. But, that request was received on the eve of denying the habeas petition. Counsel, old or new, could do nothing more in the proceedings and any conflict with counsel no longer mattered. Any claims stemming from the new evidence would have been new, as the physical evidence did not relate to any of the previous claims. So, at the time of denying the second request, new counsel was not needed to file a futile motion. The Court reversed the Ninth Circuit and remanded.

D who is prohibited by state law from raising on direct appeal any claim of ineffective assistance of trial counsel, but who has a state-law right to raise such a claim in a first post-conviction proceeding, may establish cause for a procedural default ineffective-assistance claim by showing ineffective assistance at the initial-review collateral proceeding. Martinez v. Ryan, 132 S. Ct. 1309 (2012)

      A procedural default would not bar a federal habeas court from hearing a substantial claim of ineffective assistance (IA) at trial if, in the initial-review collateral proceeding (IRCP), there was no counsel or counsel was ineffective. The district court denied petitioner inmate’s habeas claim of IA of trial counsel, ruling that Ariz. Rule Crim. P. 32.2(a)(3) was an adequate and independent state-law ground to bar federal review, and that no case was shown to excuse the procedural default since post-conviction counsel’s errors did not qualify as cause for a default. D’s attorney in the IRCP filed a notice akin to an Anders brief, in effect conceding a lack of any meritorious claim, including a claim of IA at trial, which D argued was IA. The Ninth Circuit did not decide if it was. Rather, it held that because he did not have a right to an attorney in the IRCP, the attorney’s errors in the IRCP could not establish cause for the failure to comply with the State’s rules. Thus, the Ninth Circuit did not determine if the attorney in the IRCP was ineffective or whether the claim of IA of trial counsel was substantial. Nor was prejudice addressed. The Supreme Court reversed the Ninth Circuit’s judgment upholding the denial of habeas relief, and the case was remanded.

Fifth Circuit

Where D was convicted of 13 counts of making bomb threats to ex-girlfriend’s workplace, the court did not err in refusing to group all the counts of the indictment for Sentencing Guidelines purposes. United States v. Simmons, 649 F.3d 301 (5th Cir. 2011)

      Although the calls had a common purpose of disrupting his ex-girlfriend’s workplace generally, they were received by different persons at different locations within that workplace; the district court did not err in concluding that there were multiple victims of D’s offenses.

Although a “close case,” the Fifth Circuit upheld the district court’s denial of D’s motion to suppress the fruits of the roving Border Patrol stop leading to D’s prosecution for alien smuggling. United States v. Soto, 649 F.3d 406 (5th Cir. 2011)

      Under the totality of the circumstances—most prominently, one of the aliens ducking or slumping down in his seat upon seeing the agents—there was reasonable suspicion that illegal activity was afoot.

For D convicted post-trial of perjury and obstruction of justice, there was no reversible error under Brady v. Maryland, 373 U.S. 83 (1963), because the evidence suppressed (or arguably suppressed) by the government (including raw notes of two witness interviews, and grand jury and SEC testimony of another witness) was not material. United States v. Brown, 650 F.3d 581 (5th Cir. 2011)

Under the rule formerly contained in Fed. R. App. P. 22, a district court’s failure to decide whether a certificate of appealability should issue deprives the appellate court of jurisdiction over a habeas appeal. Ramirez Car­denas v. Thaler, 651 F.3d 442 (5th Cir. 2011)

      Although Fed. R. App. P. 2 allows a court of appeals to suspend the Federal Rules of Appellate Procedure in a particular case for good cause shown, Rule 2 cannot be used to bypass a jurisdictional requirement. The Fifth Circuit remanded to the district court for the limited purpose of considering whether a certificate of appealability should issue.

There was insufficient evidence to support the ag­gra­vating circumstance that D knowingly created a great risk of death to many people; nevertheless, the erroneous submission of this aggravator to the jury was harmless under the facts and did not require reversal of D’s death sentence. Simmons v. Epps, 654 F.3d 526 (5th Cir. 2011)

      Nor did the state courts unreasonably apply Supreme Court law in concluding that the refusal to admit, in the penalty phase, a videotape of D (held to be inadmissible hearsay under state law) did not render the trial fundamentally unfair.

District court did not err in adding one Guidelines crim­inal history point, pursuant to USSG § 4A1.1(f), for each of D’s grouped and otherwise uncounted deadly-conduct offenses, even though those offenses arose out of a single criminal episode. United States v. Scott, 654 F.3d 552 (5th Cir. 2011)

      Also, the addition of two criminal history points under USSG § 4A1.1(e) did not render a sentence within the resulting Guideline range unreasonable, even though § 4A1.1(e) was amended after the date of sentencing to delete the § 4A1.1(e) enhancement.

There was sufficient circumstantial evidence to suggest that D asked his minor step-sister to buy the cell phone used to phone in bomb threat. United States v. Robinson, 654 F.3d 558 (5th Cir. 2011)

      District court did not err in applying, pursuant to USSG § 3B1.4, a two-level enhancement for “use of a minor” in connection with the offense. Moreover, nothing in § 3B1.4 requires the use of the minor be tied in some way to her minor status; it was of no moment that D could have employed an adult to buy the cell phone for him.

Juror’s comments to other jurors that she was “all for” a guilty verdict, that men in power always made sexual advances, and that she had been sexually harassed were not extraneous prejudicial information or an outside influence. United States v. Barraza, 655 F.3d 375 (5th Cir. 2011)

      In case alleging that judge offered to fix cases in return for sexual favors, this juror’s comments were not “extraneous prejudicial information” or an “outside influence,” about which jurors could permissibly testify during an inquiry into the verdict pursuant to Fed. R. Evid. 606(b). These were simply emotions influencing the juror or part of the juror’s mental processes, which were off-limits under Rule 606(b).

The government did not breach the plea agreement by filing an opposition to D’s objections to the presentence report suggesting that an above-Guidelines sentence might be appropriate. United States v. Pizzolato, 655 F.3d 403 (5th Cir. 2011)

      D entered into a non-binding recommendation-type plea agreement under Fed. R. Crim. P. 11(c)(1)(B) in which the government stipulated that “the agreed upon Guideline range for this defendant is 151–188 months” and also agreed that the sentences on all counts should run concurrently. By agreeing that a particular range was the applicable range under the Guidelines, the government did not obligate itself to recommend imposition of a sentence within that range. Furthermore, the government’s response consisted principally of permissible factual rebuttal of assertions made by D in his objections to the PSR. Finally, because the government did not breach the plea agreement, D was bound by the appeal-waiver provisions of that agreement, and thus he could not challenge the court’s upward-variance sentence (from a range of 151–188 months, up to a total sentence of 360 months).

District court did not abuse its discretion in declining to reduce crack cocaine D’s sentence by more than the two levels permitted by Amendment 706 to the Sentencing Guidelines. United States v. Garcia, 655 F.3d 426 (5th Cir. 2011)

      The Fifth Circuit held that USSG § 1B1.10(b)—limiting the sentence reductions that district courts could grant under 18 U.S.C. § 3582(c)—did not violate the separation-of-powers doctrine. Congress expressed its wish for the Sentencing Commission’s policy statements to be binding in § 3582(c) proceedings, and it made a valid delegation of the authority to delineate the circumstances under which a § 3582(c) reduction would be appropriate.

Fifth Circuit granted federal D authorization to file a successive motion under 28 U.S.C. § 2255 because the claim D proposed to litigate met the standard for sec­ond or successive motions in § 2255(h). In re Sparks, 657 F.3d 258 (5th Cir. 2011)

      D claimed that under Graham v. Florida, 130 S. Ct. 2011 (2010), his life-without-parole sentence for a carjacking violated the Eighth Amendment because he was under 18 at the time of the crime. Particularly, Graham was a new and retroactive rule of constitutional law; since D made a sufficient prima facie showing that he might be entitled to relief under Graham, he was entitled to file a successive § 2255 motion on that issue.

Court of Criminal Appeals

The evidence was sufficient to support conviction for simulating legal process because, based on the text of the abatement and the circumstances, it was reasonable that a similarly situated person in victim’s position would believe that the abatement was a legal document. Runningwolf v. State, 360 S.W.3d 490 (Tex.Crim.App. 2012)

      Although the document, which D titled “Non-Statutory Abatement,” contained phrases that a trained lawyer would recognize as non-legal and unenforceable, the court could not expect a lay person to distinguish such terms. D’s use of case law, an official seal, fingerprints, Latin phrases, and bold type on certain text created the distinct possibility that a reasonable person in the situation would believe that D and the named “demandants” had authority to interfere with the placement of the child. In addition, D intended for the victim to submit to the authority of the abatement, in violation of Tex. Penal Code § 32.48.

The closure of the courtroom during jury selection violated D’s right to a public trial; the court never articulated substantive threat to its two identified interests in closure and failed to supply specific findings. Steadman v. State, 360 S.W.3d 499 (Tex.Crim.App. 2012)

      D appealed COA’s judgment, which affirmed his convictions for three counts of aggravated sexual assault of a child and two counts of indecency with a child. COA found that the trial court did not violate D’s Sixth Amendment right to a public trial by excluding four members of his family from the courtroom during jury selection. CCA reversed and remanded to the trial court for a new trial.

      D suffered a violation of his right to a public trial. Although the trial court identified two interests in closure of D’s voir dire that could well have proven sufficient to override a defendant’s right to a public trial in the abstract—jury-panel contamination and courtroom security—the trial court never articulated any substantive threat to either of those interests in D’s case and failed to supply findings specific enough that a reviewing court could determine that closure of the courtroom was warranted. Nor did the trial court satisfy the obligation that U.S. Supreme Court case law unequivocally imposed upon trial courts to consider all reasonable alternatives to closure. Because the constitutionally tainted portion of trial encompassed the entire jury selection process, D was entitled to a new trial.

D’s polygraph results were admissible in his community supervision revocation hearing. Leonard v. State, No. 0551-10 (Tex.Crim.App. Mar 7, 2012)

      COA reversed the trial court’s decision to revoke D’s community supervision. The State petitioned for discretionary review. CCA reversed COA.

      When D pleaded guilty to injury to a child and received five years’ deferred adjudication, the conditions of his community supervision required that he submit to, and show no deception on, polygraph exams. Because he showed deception on five of the exams, he was discharged from the treatment program; and, due to his unsuccessful completion of the treatment program, his community supervision was revoked, and he was adjudicated guilty of injury to a child and sentenced to seven years’ confinement. Unlike COA, CCA held that his polygraph results were admissible in the revocation hearing. Because adjudication hearings were administrative proceedings, in which there was no jury and the judge was not determining guilt of the original offense, the results of polygraphs were admissible if they qualified as the basis for an expert opinion under Tex. R. Evid. 703, 705(a).

By raising the issue of the municipal court judge’s authority to preside in place of the county judge in his motion to set aside the orders on the motions to suppress, D adequately preserved his complaint. Lackey v. State, No. 1621-10 (Tex.Crim.App. Mar 7, 2012)

      D was convicted of DWI. COA reversed, holding that the constitutional county judge erred in appointing a local municipal court judge to preside in her place over D’s motion to suppress hearing, and that she should have granted his later request and conducted another suppression hearing. CCA affirmed COA.

      Pursuant to Tex. R. App. P. 33.1(a)(1), D adequately preserved his complaint regarding the municipal court judge’s qualifications in the trial court, even though he did not challenge the municipal court judge’s qualifications during the hearing. By raising the issue of the municipal court judge’s authority in his motion to set aside the orders on the motions to suppress, D notified both the trial court and the State of the procedural irregularity. Whether the municipal court judge’s orders denying D’s motions to suppress were void or merely voidable, D timely challenged them in the trial court, and the county court judge had the authority to rule—and did rule—on the merits of D’s motion to set those orders aside. Having upheld that ruling, COA correctly reversed the trial court and remanded, presumably to include a new hearing on D’s motions to suppress conducted before an individual who was qualified to entertain it on behalf of the trial court.

The convicting court lacked jurisdiction to order a new trial on the basis of DNA-test finding, and COA should not have addressed the sufficiency of the evidence to support that finding. State v. Holloway, 360 S.W.3d 480 (Tex.Crim.App. 2012)

      A jury found D guilty of manslaughter, made an affirmative finding that he used a deadly weapon, and assessed punishment at 20 years in prison. Four years later, D filed a motion for DNA testing of presumptive blood on the knife that was admitted at trial as the murder weapon. The convicting court granted his motion. When the DNA testing revealed that the biological material did not belong to the victim, the convicting court purported to grant D a new trial. COA reversed, holding that the convicting court did not have jurisdiction under Tex. Code Crim. Proc. art. 64.04 to grant D a new trial, and the absence of the victim’s DNA on the knife, by itself, could not support the convicting court’s finding that the jury would not have convicted D had the DNA evidence been available. CCA affirmed COA, but not COA’s process.

      Article 64.04 mandated that should DNA testing be ordered, the convicting court had to hold a hearing and make a finding with respect to the significance of the test results. It authorized no more than a finding. Permitting the convicting court to grant a new trial would conflict with the plainly expressed jurisdictional purpose of Chapter 64. A Chapter 64 movant who obtained a favorable finding under Article 64.04 may yet obtain appropriate relief predicated on that finding. The proper and exclusive vehicle for obtaining judicial relief from a felony conviction on the basis of a favorable finding under Article 64.04 is a post-conviction application for writ of habeas corpus.

Because the variance between the allegations in the charg­ing instrument and the proof at trial involves a non-statutory allegation that does not affect the allowable unit of prosecution, the variance cannot render the evidence legally insufficient to support a conviction. Johnson v. State, No. 0068-11 (Tex.Crim.App. Mar 21, 2012)

      D was convicted of aggravated assault. COA affirmed and held that a variance between the pleading and the proof was not material. CCA affirmed.

      D claimed that the variance between the pleading and the proof rendered the evidence insufficient. The variance concerned the charged acts of hitting the victim with D’s hand and twisting her arm, versus the proven act of throwing the victim against the wall. These acts described the causation element of the offense of aggravated assault, but did not describe the injury the victim suffered. The offense was a result of conduct crime, with the gravamen being the victim and the injury inflicted. Thus, the nature of the conduct was inconsequential. The act that caused injury did not define the allowable unit of prosecution, and thus the variance could not have been material.

Although the evidence in this theft case was not overwhelming, it was not so weak as to have required an acquittal. Wirth v. State, No. 1054-11 (Tex.Crim.App. Mar 21, 2012)

      The State’s PDR claimed that COA erred in its sufficiency analysis. CCA agreed, reversed, and reinstated the conviction, finding that COA did not properly defer to the jury’s verdict. While there was no evidence that D signed any drafts, the jury was charged on the law of parties, and there was sufficient evidence that supported a finding that he authorized the transfer of automobile titles while knowing he would be unable to meet the drafts. CCA agreed with COA to the extent the evidence could have been merely symptoms of a business pulling money from any source, but COA and CCA were not the fact finder. The jury inferred from the circumstantial evidence that D authorized another to issue drafts to car dealerships with the knowledge they would not be satisfied.

The search warrant affidavit provided adequate information regarding the time of the events giving rise to probable cause to support issuance of the warrant because the crucial evidence upon which probable cause was based was obtained after law enforcement’s recent acquisition of information and the affidavit set an outer time limit for when the events must have occurred. Jones v. State, Nos. 0674, 0675, 0676-11 (Tex.Crim.App. Mar 28, 2012)

      A trial court denied D’s motion to suppress evidence, and he was subsequently convicted of possession of firearm by a felon, possession with intent to deliver cocaine, and possession with intent to deliver meth. COA affirmed, and CCA affirmed COA’s judgment.

      The officer stated that he “recently” received information from the first confidential informant and then used a second informant to conduct a controlled buy. The officer also stated that he believed drugs were currently on the premises and that D had previously been arrested for both evading and resisting arrest in 2005 and 2007, allowing the magistrate to reasonably conclude that the arrests preceded the initial “recent” acquisition of information from the first informant.

The trial court abused its discretion by refusing to allow D to ask the venire panel whether they understood that the standard of proof beyond a reasonable doubt constituted a level of confidence under the law that was higher than both the preponderance of the evidence and the clear and convincing evidence standards. Fuller v. State, No. 0779-11 (Tex.Crim.App. Mar 28, 2012)

      The question was relevant to, if not dispositive of, a legitimate challenge to the prospective jurors for cause under Tex. Code Crim. Proc. art. 35.16(c)(2), which allows a challenge for cause if a prospective juror has a bias or prejudice against applicable law. The State’s burden of proof was an issue applicable to any criminal case because the fact-finder had to apply that standard when determining guilt. A trial court abused its discretion if it refused to allow the defendant to voir dire venire­persons about what they think reasonable doubt means.

When a defendant waives his right to appeal before sentencing and without an agreement on punishment, the waiver is not valid. Washington v. State, No. 85-11 (Tex.Crim.App. Apr 4, 2012)

      D pleaded guilty to sexual assault of a child. Pursuant to a plea bargain, he was placed on deferred adjudication for 10 years. The State moved to adjudicate guilt, and D pleaded true to the allegations. Without an agreed recommendation for punishment and before sentencing, D waived his right to appeal in a written stipulation of evidence. The trial judge found D guilty and sentenced him to 20 years’ confinement and a fine of $10,000. COA dismissed D’s pro se appeal for want of jurisdiction, noting that D’s waiver supported the trial judge’s certification that D waived his right to appeal. But when a defendant waives his right to appeal before sentencing and without an agreement on punishment, the waiver is not valid. And the record does not confirm that the State gave any consideration for D’s waiver. CCA reversed COA’s judgment and remanded.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

The interior of truck a “suspicious place” under Tex. Code Crim. Proc. art. 14.03(a)(1) because it was parked in a vacant stadium parking lot in the middle of the night and located in close proximity to the scene of a burglary. Owen v. State, Nos. 13-10-00417-CR, 13-10-00418-CR (Tex.App.—Corpus Christi Nov 10, 2011)

      “At the time of [D’s] arrest, [officer] was aware of the fol­lowing facts: (1) [D] was ‘reclined’ inside a truck about one third of a mile away from the scene of the burglary; (2) the truck was parked, alone, in a high school stadium parking lot, even though it was well after midnight; (3) the truck appeared to be empty mere minutes before [D] was observed in the truck; (4) [D] smelled of alcohol and had slurred speech; (5) [D] appeared to be wet from the waist down; (6) [D] was not in possession of any identification; and (7) [D] met the description of a man observed at a burglary that occurred two weeks earlier in the same town.”

Officer had RS to believe that road traversed by D was private drive—such that D’s corner-cutting constituted traffic offense—even though maps from Internet sites labeled road as public street and even though several official traffic control signs were on road. Meadows v. State, 356 S.W.3d 33 (Tex.App.—Texarkana 2011)

      “[Officer] testified that the Roadway was ‘not on our maps that we use in the police department as a street. It’s just a driveway.’ However, nothing in the record indicates that [officer] had memorized or consulted these police maps prior to the stop. [Officer] had personal experience with the Roadway in dispute because he had ‘used that ATM before.’ . . . Considering the officer’s prior experience in using the Roadway and the conflicting evidence which supports both the view that it was public and that it was private, we find that [officer] had reasonable suspicion to believe that the Roadway was a private drive.”

“Texas law does not require that a copy of the affidavit be given to the owner of the premises to be searched for the search to be valid, so long as the warrant clearly incorporates the affidavit and the affidavit provides the necessary particularity.” Greene v. State, 358 S.W.3d 752 (Tex.App.—Fort Worth 2011)

Officer had PC to arrest D for DWI, even though officer was not certified to administer field sobriety tests on the date she administered the tests to D and even though her administration of the tests was not recorded by the patrol car’s camera. Herrera v. State, No. 08-10-00171-CR (Tex.App.—El Paso Nov 21, 2011)

      “[Officer’s] testimony during the suppression hearing showed that before conducting any field sobriety test, she was both aware that [D] had been involved in a multi-vehicle collision on an interstate highway and had observed [D] to have unsteady balance, bloodshot eyes, slurred and slow speech, and a very strong odor of alcohol emanating from his breath and person. [D] informed [officer] that he had consumed three or four beers, and [officer] testified that [D’s] breath-alcohol results were above .08.”

Officer had PC to arrest D for walking on roadway with adjacent sidewalk, even though officer admitted portions of the sidewalk were obscured. McBride v. State, 359 S.W.3d 683 (Tex.App.—Houston [14th Dist] 2011)

Local officer’s delay of traffic stop while waiting for DPS trooper to perform field sobriety tests deemed reasonable, where trooper had more experience and the local officer’s department had policy against working the in­ter­state. Evans v. State, No. 11-09-00341-CR (Tex.App.—Eastland Nov 30, 2011)

      “[Officer] followed his department’s policy of not working the interstate, waited for assistance from an officer with superior training, and made use of the opportunity to gain more training in field sobriety. We hold that this delay was done for legitimate law enforcement purposes. We further hold that it was reasonable to call [trooper] to the scene, where he then diligently pursued a means of investigation[.]”

Stop was not a reasonable exercise of the community caretaking function where officer merely observed D sitting in the passenger seat of a car talking loudly with the driver, exiting the car, walking around the car, getting in the driver’s seat, and driving off. Alford v. State, No. 05-10-00922-CR (Tex.App.—Dallas Dec 6, 2011)

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