May 2015 SDR – Voice for the Defense Vol. 44, No. 4

Voice for the Defense Volume 44, No. 4 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

D, convicted under 18 U.S.C. § 1519 for purportedly destroying undersized fish harvested from the Gulf of Mexico after officer issued him a civil citation and instructed him to bring them back to port, was deprived of fair notice that destruction would fall within § 1519, where “tangible object” covered only objects used to record or preserve information. Yates v. United States, 135 S. Ct. 1074 (2015).

        While conducting an offshore inspection of a commercial fishing vessel, a federal agent found that the ship’s catch contained undersized grouper, in violation of federal conservation regulations. The officer instructed the ship’s captain, petitioner D, to keep the undersized fish segregated from the rest of the catch until the ship returned to port. After officer departed, D instead told a crewmember to throw the undersized fish overboard. D was charged with destroying, concealing, and covering up undersized fish to impede a federal investigation, in violation of 18 U. S. C. § 1519. That section provides that a person may be fined or imprisoned for up to 20 years if he “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence” a federal investigation. At trial, D moved for an acquittal on the § 1519 charge; pointing to § 1519’s origin as a provision of the Sarbanes-Oxley Act of 2002, a law designed to protect investors and restore trust in financial markets, D argued that § 1519’s reference to “tangible object” subsumes objects used to store information, such as computers, not fish. The district court denied D’s motion, and a jury found him guilty of violating § 1519. The Eleventh Circuit affirmed, concluding that § 1519 applies to the destruction or concealment of fish because, as objects having physical form, fish fall within the dictionary definition of “tangible object.” The Supreme Court reversed and remanded.

        The Eleventh Circuit erred when it found that D was properly convicted of violating § 1519 where “tangible object” was ambiguous and undefined and, unlike the nouns accompanying “tangible object,” possessed no record-keeping, documentary, or informational content or purpose. The term did not include all objects in the physical world, and did not include fish.

Satellite-based monitoring of a recidivist sex offender constituted a search within the Fourth Amendment because attaching a monitoring device to the offender involved physically intruding on the offender’s body without consent to obtain information concerning the offender’s movements. Grady v. North Carolina, 135 S. Ct. 1368 (2015).

        D was separately convicted of two sexual offenses; after he was released for the second time, a trial court civilly committed D to take part in North Carolina’s satellite-based monitoring program for the duration of his life. The program required participants to wear a GPS monitoring bracelet for authorities to make sure participants are complying with schedule and location requirements. D challenged the constitutionality of the program and argued that the constant tracking amounted to an unreasonable search that was prohibited under U.S. Const. amend. VI. Both the trial court and North Carolina Court of Appeals held that wearing a GPS monitor did not amount to a search. The U.S. Supreme Court unanimously vacated the Supreme Court of North Carolina’s judgment and remanded.

        The trial court and appellate court failed to apply the correct law based on United States v. Jones, 132 S. Ct. 945 (2012), which held that placing a GPS tracker on the bottom of a vehicle constituted a Fourth Amendment search. Participation in the North Carolina program amounted to a search because requiring someone to wear a bracelet that tracks the person’s whereabouts constitutes what Jones termed a “physical occup[ation of] private property for the purpose of obtaining information.” The U.S. Supreme Court remanded to the trial court for a determination of whether or not this search was unreasonable under the Fourth Amendment.

The lower court’s conclusion that an attorney provided per se ineffective assistance when he was briefly absent during testimony concerning other defendants is reversed; no Supreme Court decision clearly established that this respondent is entitled to relief. Woods v. Donald, 135 S. Ct. 1372 (2015).

        D and four other defendants apparently robbed a local drug dealer; during the robbery, several shots were fired and the dealer was later discovered dead. Two of the other defendants pled guilty, and D was tried with the two others for one count of first-degree felony murder and two counts of armed robbery. When the government sought to admit evidence of phone communication among the defendants, D’s lawyer indicated that evidence did not affect his client; the judge allowed testimony to proceed when D’s lawyer was not in the courtroom. The jury convicted D on all three counts. He appealed and argued that his lawyer’s absence during the phone call testimony denied his Sixth Amendment right to effective assistance of counsel. The Michigan Court of Appeals rejected the claim, and the Michigan Supreme Court denied review. D moved for federal habeas relief, which the district court granted and the Sixth Circuit affirmed by holding that the Michigan Court of Appeals did not properly apply United States v. Cronic, 466 U.S. 648 (1984); Cronic held that courts may presume a defendant’s Sixth Amendment rights have been violated when he is denied the assistance of counsel at a critical stage in his trial, which the appellate court found happened in this case.

        The Supreme Court held that the appellate court erred in concluding that the state court’s decision rejecting a state pris­oner’s ineffective assistance of counsel claim was contrary to federal law where the U.S. Supreme Court had never addressed whether the Cronic rule applied to testimony regarding codefendants’ actions. The state court’s decision was not an unreasonable application of federal law where, within the Cronic rule, a fair-minded jurist could have concluded that a presumption of prejudice was not warranted by counsel’s short absence during testimony about other defendants where that testimony was irrelevant to the defendant’s theory of the case. The Supreme Court reversed the Sixth Circuit and remanded.

Fifth Circuit

There was no plain error in the sentence the district court imposed upon revocation of D’s supervised release (24 months in prison, followed by 24 months of supervised release); the revocation Guidelines were 3 to 9 months, and the government recommended 9 months with no more supervised release. United States v. Walker, 742 F.3d 614 (5th Cir. 2014).

        Although it is error for a district court to impose, or lengthen, a revocation prison sentence for the purpose of rehabilitation or treatment, here rehabilitation was not the “dominant factor” in the court’s sentence. Rather, it was, at most, a secondary concern or additional justification for the sentence. The record showed that the district court had fully justified its sentence with permissible sentencing factors under 18 U.S.C. § 3553(a), before even mentioning the possibility of rehabilitation almost as an afterthought. The district court explained at length that it had been lenient in D’s prior sentences and that D had violated his supervised release conditions repeatedly.

District court did not err in applying the two-level en­hancement of USSG § 2G2.2(b)(3)(F) (for distribution of child pornography) even absent evidence that D knowingly distributed the pornography (he claimed he was unaware that others could download files from his computer via FrostWire file-sharing); § 2G2.2(b)(3)(F) contains no scienter requirement. United States v. Baker, 742 F.3d 618 (5th Cir. 2014).

Immigrant’s conviction for delivery of cocaine in violation of Fla. Stat. § 893.12(1)(a)(1) was not an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(B) because, unlike the federal drug-trafficking offenses covered in § 1101(a)(43)(B), the Florida offense does not require the state to prove that the defendant knew the illicit nature of the substance. Paez Sarmientos v. Holder, 742 F.3d 624 (5th Cir. 2014).

        Rather, the Florida legislature made lack of knowledge an affirmative defense to be shouldered by the defendant. This difference in mens rea meant that immigrant’s conviction was not analogous to the federal offense of distribution of a controlled substance. Accordingly, the Fifth Circuit granted immigrant’s petition for review, vacated the Board of Immigration Appeals’ order upholding immigrant’s removal, and remanded.

D’s challenge to a special condition of supervised release, for a re-imposed term of supervised release upon revocation of the original term, was preserved for review; although D did not fully articulate the grounds on which he later attacked the condition on appeal, that was because the district court cut off defense counsel and made it clear that further argument would not be entertained. United States v. Salazar, 743 F.3d 445 (5th Cir. 2014).

        Furthermore, upon revocation of supervised release for D originally convicted of failing to register under the Sex Offender Registration and Notification Act, the district court abused its discretion in imposing (for the re-imposed term) a special condition of supervised release broadly prohibiting the purchase, possession, or use of “any sexually stimulating or sexually oriented materials.” The record did not demonstrate, and the district court did not explain, how this condition was reasonably related to the statutory factors informing the imposition of special conditions of supervised release. The Fifth Circuit vacated the condition at issue and remanded for the district court to either articulate a reasonable relationship between the condition and the statutory factors or dismiss the condition.

Where, in prior Colorado case, D was sentenced to 24 months in jail but received a 254-day credit for time served and the sentence was suspended, the district court did not err in assigning this case two criminal history points under USSG § 4A1.1(b), rather than just one under USSG § 4A1.1. United States v. Fernandez, 743 F.3d 453 (5th Cir. 2014).

        Because a time-served “credit” noted in a prior sentencing order cannot be suspended, the period credited serves as the measure for assessing criminal history points in accordance with USSG § 4A1.2(b)(2) when the prior sentence is otherwise suspended.

Where death-sentenced Texas D’s attorney failed to file a timely notice of appeal from the order denying federal habeas relief, the district court could not use Fed. R. Civ. P. 60(b)(6) to vacate and then reenter its judgment so as to enable D to take a timely appeal. Castro Perez v. Stephens, 745 F.3d 174 (5th Cir. 2014).

        The timely filing of a notice of appeal in a civil case is a jurisdictional requirement, and the time for filing a notice of appeal may only be extended in accordance with 28 U.S.C. § 2107 and Fed. R. App. P. 4(a). Using Fed. R. Civ. P. 60(b)(6) to circumvent the exceptions codified in these provisions runs afoul of the directive in Bowles v. Russell, 551 U.S. 205 (2007), that courts cannot create exceptions to jurisdictional requirements that are statutorily based. Accordingly, on the State’s appeal, the Fifth Circuit vacated the district court’s Rule 60(b)(6) order; because this rendered D’s appeal untimely, the Fifth Circuit dismissed that appeal for want of jurisdiction.

Where D, a resident alien, sought to withdraw her guilty plea (to a charge of marijuana possession with intent to distribute) on the ground that her previous attorneys failed to inform her of the immigration consequences of her plea (as required under Padilla v. Ken­tucky, 559 U.S. 356 (2010)), district court erred in holding that a Padilla claim could not be addressed on a motion to withdraw a guilty plea but only in a collateral attack on the conviction. United States v. Urias-Marrufo, 744 F.3d 361 (5th Cir. 2014).

        When a Padilla claim is sufficiently presented, both legally and factually, via a motion to withdraw a plea, a district court errs in failing to address the claim. Furthermore, if the district court determines that a Padilla violation occurred, that finding compels the district court to permit the defendant to withdraw her guilty plea. Accordingly, the Fifth Circuit vacated the judgment of conviction and remanded to the district court to consider D’s squarely presented Padilla claim.

The district court did not give proper AEDPA deference to the state court’s decision denying D’s Atkins claim. Brumfield v. Cain, 744 F.3d 918 (5th Cir. 2014).

        The district court reversibly erred in granting federal habeas relief and permanently enjoining Louisiana death-sentenced D’s execution under Atkins v. Virginia, 536 U.S. 304 (2002) (holding that the Eighth Amendment forbids the execution of the mentally retarded). Neither of the reasons relied on by the federal district court for failing to defer to the state-court decision was valid. No authority required the state court to provide D with funds to develop his claim, and the state court did not abuse its discretion in denying D an evidentiary hearing on his claim. Because the state court’s judgment was entitled to AEDPA deference, there was no reason for the federal district court to conduct an evidentiary hear­ing; because it was error for the district court to conduct such a hearing, the Fifth Circuit disregarded the evidence adduced for the first time in that hearing. Accordingly, the Fifth Circuit reversed the district court’s grant of habeas relief and its permanent injunction on D’s execution.

Where Ds claimed that their attorneys provided ineffective assistance by not filing timely notices of appeal, district court did not err in denying relief under 28 U.S.C. § 2255; even assuming arguendo that the attorneys were deficient for not sufficiently consulting with Ds, the record did not demonstrate a reasonable probability that, but for the failure to consult, Ds would have timely appealed. United States v. Bejarano, 751 F.3d 280 (5th Cir. 2014).

In case alleging various federal crimes arising from a bribe and kickback scheme involving a community hos­pi­tal (conspiracy, federal-program bribery, paying and receiving healthcare kickbacks, embezzlement, and making false statements to federal agents), the district court erred in granting a post-verdict judgment of acquittal as to all of one D’s convictions and some of the other D’s convictions. United States v. Shoemaker, 746 F.3d 614 (5th Cir. 2014).

        The district court also erred in granting (either in the alternative to the judgment of acquittal or standing alone) a new trial on many of the counts of conviction. The grant of a new trial on some of the counts rested on a basis that was not included in Ds’ motions for a new trial; under Fed. R. Crim. P. 33, a new trial may not be granted on a basis not included in a defendant’s motion for a new trial. With respect to other counts as to which a new trial was granted, the district court’s basis for granting the new trial was legally erroneous; contrary to the district court’s conclusion, the jury instructions adequately explained all the requisite elements for criminal liability, and the evidence did not preponderate heavily against the verdict. The Fifth Circuit remanded for reinstatement of the jury verdict and for sentencing.

Court of Criminal Appeals

D was not exempt from the death penalty under U.S. Const. amend. VIII because, given the entire body of evidence taken from trial and the habeas hearing, including D’s school records and the death-row cell exhibits of his readings and writings, D failed to prove he suffered from significant adaptive deficits or limitations. Ex parte Cathey, 451 S.W.3d 1 (Tex.Crim.App. 2014).

        D was convicted of capital murder and sentenced to death in 1997 for a fatal shooting in a kidnapping. CCA affirmed and denied relief on his first habeas application. The day before his scheduled execution, D filed a subsequent writ alleging, for the first time, that he was mentally retarded and thus exempt from the death penalty. The next day CCA stayed D’s execution and issued an order finding that his claim satisfied Tex. Code Crim. Proc. art. 11.071, § 5, and remanded to the trial court to conduct a hearing on his mental retardation claim. The trial judge conducted a five-day hearing that included testimony from numerous expert witnesses. Both the State and applicant filed proposed findings of fact and conclusions of law. In December 2012, two years after the hearing and on the last day of her term of office, the trial judge signed applicant’s proposed findings of fact and conclusions of law. CCA filed this case and ordered briefing by the parties.

        CCA held that D did not establish that he was mentally retarded under Atkins v. Virginia, 536 U.S. 304 (2002), and Ex parte Briseno, 6 135 S.W.3d 1 (Tex.Crim.App. 2004). The record did not support the habeas judge’s factual findings or legal conclusions. The judge erred in finding: (1) the “Flynn Effect” authorized her to subtract 5.4 points from D’s IQ score of 77, and the standard measurement of error authorized her to subtract another 5 points, thus concluding that D’s “true” IQ score was as low as 66.6; (2) the State was not allowed to have D’s IQ retested with a more recently normed test when Dr. Flynn testified that his purpose in the “Flynn Effect” is to show that IQ tests should be normed and revised with greater frequency; (3) the Vineland test answers given by D’s sister trying to remember her brother’s behavior 26 years earlier and by his former wife were scientifically valid; (4) the Vineland test answers given by D’s sister and former wife were reliable when, in fact, they contradicted their prior trial testimony at a time that they had no motive to exaggerate D’s poor adaptive behavior; (5) D is mentally retarded or intellectually disabled, because the evidence clearly demonstrated his intellectually competent adult behavior.

Habeas corpus relief granted because the capias was issued after the expiration of applicant’s period of su­per­vision under Tex. Code Crim. Proc. art. 42.12, § 5(h), and the trial court did not retain jurisdiction to proceed to adjudicate applicant guilty and sentence her. Ex parte Moss, 446 S.W.3d 786 (Tex.Crim.App. 2014).

        Applicant pled guilty to aggravated assault and was placed on deferred-adjudication community supervision for five years in October 2000. Her community supervision was subsequently revoked, and she was sentenced to confinement in a state penitentiary. Here, she argued that the trial court lacked jurisdiction to revoke her supervision and adjudicate her guilty because the motion to adjudicate was not timely filed and the capias was not timely issued. CCA granted relief and vacated the conviction. D’s claim was not procedurally barred under Ex parte Townsend, 137 S.W.3d 79 (Tex.Crim.App. 2004), because the case was inapplicable to jurisdictional claims raised in an initial writ application. Nor did the doctrine of laches bar D’s claim because the State was not prejudiced by her tardy filing of her writ application.

Counsel’s failure to object to crucial evidence was deficient and prejudiced D. Ex parte Bryant, 448 S.W.3d 29 (Tex.Crim.App. 2014).

        Applicant was convicted of capital murder and sentenced to life imprisonment without parole. Applicant here argued that he received ineffective assistance of counsel. CCA granted relief. Counsel was ineffective under U.S. Const. amend. VI for repeatedly failing to object to references to a witness’ polygraph test because counsel stated that he should have objected, the strategy was not reasonable because the prosecutor drew the jury’s attention to it, and counsel also asked questions about the polygraph test. D was prejudiced by counsel’s deficient conduct because the other evidence of guilt was weak.

Counsel’s duty to represent death-row inmate did not extend beyond the point at which, following the court’s denial of state habeas relief, counsel satisfied his duty to file a motion in federal court for appointment of counsel in federal habeas review. Ex parte Gallo, 448 S.W.3d 1 (Tex.Crim.App. 2014).

        Tex. Code Crim. Proc. art. 11.071, §§ 6(b-1) and 6(b-2), required the convicting court, upon receiving notice from the court that a subsequent post-conviction habeas application would be allowed to proceed, to formally appoint and compensate counsel for a indigent death-row inmate, and the attorney had not been appointed as required. Despite contentions that the inmate lacked mental capacity, he had affirmatively stated that he did not want to file the subsequent writ and did not want his former state habeas counsel to file it for him. “[W]e dismiss the subsequent writ application that [state habeas counsel] has filed, but without prejudice to the applicant to later file a subsequent writ application that will be evaluated for abuse-of-the-writ purposes, under Section 5 of Article 11.071, as if it were the applicant’s first subsequent writ application.”

In D’s trial for the long-running sexual abuse of his two nephews, there was ample evidence that D began sex­ually abusing one victim in 1995 (before the 1997 amendment permitting cumulation of sentences, Tex. Penal Code § 3.03(b)(2)(A)) and continued until 2002; because there was evidence that the offenses occurred after September 1, 1997, the court did not err in stacking the sentences for one victim consecutive to the sentences for the other victim. Bonilla v. State, 452 S.W.3d 811 (Tex.Crim.App. 2014).

        “The issue . . . is who bears the burden of showing that the trial judge erred in cumulating indecency-with-a-child sentences when some sexual abuse took place before the 1997 Penal Code amendments permitting cumulation of sentences for child sexual offenses and some took place after that date. We will apply our normal appellate rule of review: The party who complains about the trial judge’s action on direct appeal bears the burden of objecting at trial and providing a record that shows the trial judge’s error.

        “Appellant relies upon the 1995 dates set out in the indictment and in the judgment as being the only dates on which the jury could have found that the offenses occurred. But appellant did not show, either at trial or on appeal, that the jury could not have found him guilty of an offense that occurred after September 1, 1997, the effective date of the cumulation statute. Instead, there is ample evidence to show that appellant began sexually abusing D.B. in 1995 (before the 1997 amendment permitting cumulation became effective) and continued to sexually abuse him until 2002 (at least five years after the 1997 amendment became effective). We therefore agree with the court of appeals that the trial judge ‘did not err in stacking the sentences’[.]”

Laches applies to habeas applications; however, the State did not prove laches by only pointing to the length of D’s delay. Ex parte Bowman, 447 S.W.3d 887 (Tex.Crim.App. 2014).

        In 2005, D was convicted of DWI. In 2013, he filed a Tex. Code Crim. Proc. art. 11.072 habeas application. The trial court denied relief. COA reversed, finding that counsel was in­effective and rejecting the State’s appellate laches argument, finding laches inapplicable to Art. 11.072 and concluding that the State’s contention was waived when not raised in trial court. The State filed this petition, relying on Ex parte Smith, 444 S.W.3d 661 (Tex.Crim.App. 2014).

        “In Smith, we held that a court may consider sua sponte whether laches should bar an applicant’s habeas claim. . . . Pursuant to Smith, the State is correct that laches applies to Art. 11.072. Our rationale in Smith, based on equity and fairness, applies to any habeas case, regardless of which statute or provision it invokes. The State is also correct that its laches argument was not waived. The Court of Appeals erred to refuse to consider the argument.

        “[COA] correctly noted, however, that ‘[l]aches is a question of fact’ and, in Art. 11.072 cases, ‘the trial judge is the sole finder of fact.’ Here, there is nothing in the trial record, other than the length of the delay, from which to ascertain whether laches has been proved. . . . [W]e grant the State’s petition for discretionary review on ground two, vacate the judgment of the Court of Appeals, and remand this case to the Court of Appeals for proceedings consistent with this opinion. The State’s first and third grounds are dismissed without prejudice.”

Tex. Health & Safety Code § 822.013(a), which permits killing an animal who recently attacked, provides a de­fense to criminal prosecution; such a defense can be raised in a prosecution under Tex. Penal Code § 42.092(b)(6), cruelty to non-livestock animals. Chase v. State, 448 S.W.3d 6 (Tex.Crim.App. 2014).

        D killed a neighbor’s dog after the dog attacked D and D’s dog. D was convicted of cruelty to non-livestock animals, Tex. Penal Code § 42.092(b)(6). COA reversed and remanded. CCA affirmed COA.

        D preserved his objection to the trial court’s failure to in­struct that Tex. Health & Safety Code § 822.013(a) could provide a defense to his prosecution under § 42.092(b)(6) because counsel pointed out the statute he relied on, explained its substance, contended it was a defense, and sought an instruction based on it; this was a sufficiently specific objection in compliance with Tex. Code Crim. Proc. art. 36.14. Furthermore, § 822.013(a) provided a defense to a criminal prosecution under § 42.092(b)(6) because Tex. Penal Code § 1.03(b) did not bar application of defenses outside the Penal Code to Penal Code offenses, § 822.013 was not solely a civil statute, and this did not render the defense in Tex. Penal Code § 42.092(e)(1) meaningless.

D was entitled to habeas relief because the State’s medical witness no longer stood by her testimony that the child’s death was a homicide; had the revised evidence been presented at trial, D would not have been convicted. Ex parte Robbins, No. WR-73,484-02 (Tex.Crim.App. Nov 26, 2014).

        D was convicted in 1999 of the capital murder of his girlfriend’s toddler. The State did not seek the death penalty, and D was sentenced to life in prison. CCA affirmed on direct appeal. D filed his first habeas application in 2011, alleging actual innocence based on new evidence and due process claims for the use of false testimony, which CCA denied. D filed this subsequent habeas application on September 3, 2013, pursuant to Tex. Code Crim. Proc. art. 11.073. Article 11.073 became effective on September 1, 2013. There were no factual changes in D’s case since the filing of his first application; the only difference between the two applications was the enactment of the new law on which D relied. In both habeas applications D argued he was entitled to a new trial because the medical examiner who testified for the prosecution could no longer stand by her trial testimony regarding the cause of death. CCA granted D’s request for relief and set aside the conviction.

        D met the requirements for submission of a subsequent habeas application, under Tex. Code Crim. Proc. art. 11.07, § 4(a)(1), because D alleged prima facie facts sufficient to invoke the new law, article 11.073. D was entitled to relief under article 11.073 because the medical examiner reevaluated her testimony and opinion and no longer stood by her testimony that the child’s death was a homicide; the evidence was relevant scientific evidence that contradicted scientific evidence relied on by the State at trial; the examiner’s revised opinion was “scientific knowledge”; the opinion was not available at the time of trial; the opinion would have been admissible at trial; and, had the evidence been presented at trial, D would not have been convicted.

D was entitled to habeas relief from his original sentence due to newly available scientific evidence. Ex parte Tiede, 448 S.W.3d 456 (Tex.Crim.App. 2014).

        D was convicted of murder and sentenced to life imprisonment. COA affirmed. D filed this Tex. Code Crim. Proc. art. 11.07 habeas application. D alleged there was newly available relevant scientific evidence that contradicted the scientific evidence relied on by the State at trial, and that false evidence was presented at trial thus undermining confidence in the verdict at sentencing. The trial court, after conducting a live hearing and based on an extensive record, recommended that D be granted relief in the form of a new punishment hearing; the State agreed. CCA granted relief, set aside the sentence, and remanded D to the custody of the Panola County Sheriff for a new punishment hearing.

COA erred by determining that D’s failure to raise a U.S. Const. amend. V objection to the conditions of community supervision at the time they were imposed resulted in procedural default of his complaint because D could not be faulted for failing to object to the conditions on the basis that they violated his U.S. Const. amend. V right when he was not placed on notice that he would be required to “incriminate himself” as part of those conditions. Dansby v. State, 448 S.W.3d 441 (Tex.Crim.App. 2014).

        This, D’s second petition for discretionary review, presented only a question of preservation of error; D challenged COA’s determination on remand that error was not preserved with respect to his complaint regarding his conditions of community supervision, which led that court to affirm the trial court’s judgment revoking his deferred-adjudication community supervision and ordering his imprisonment for indecency with a child. D contended that COA erred by determining that his failure to raise a Fifth Amendment objection to the con­ditions of community supervision at the time they were imposed resulted in procedural default of his complaint on appeal. D argued that he cannot be faulted for failing to object to the conditions on the basis that they violated his Fifth Amendment constitutional right because he was not placed on notice that he would be required to “incriminate himself” as part of those conditions. CCA agreed with D. The provisions describing the requirements for sex offender treatment (22 Tex. Admin. Code §§ 810.2(b)(22), (26), (29), and 810.64) did not place D on constructive notice that he would have to waive his U.S. Const. amend. V right. CCA reversed COA and remanded for that court to address the merits of D’s Fifth Amendment complaint.

The Legislature did not intend to authorize separate punishments for aggravated assault with a deadly weapon against a public servant, Tex. Penal Code § 22.02(a), (b)(2)(B), and intoxication assault, § 49.07, when the convictions were based on the same assaultive conduct against a single person; D’s dual convictions for both violated double jeopardy. Shelby v. State, 448 S.W.3d 431 (Tex.Crim.App. 2014).

        Appellant argued that the Double Jeopardy Clause of the U.S. Constitution disallowed dual convictions for aggravated assault with a deadly weapon against a public servant and in­tox­i­ca­tion assault stemming from the same criminal act; appellant argued that COA erred by upholding both of his convictions.

        Agreeing with appellant, CCA analyzed the eight factors of Ervin v. State, 991 S.W.2d 804 (Tex.Crim.App. 1999), and concluded that the Texas Legislature did not intend to authorize separate punishments for aggravated assault with a deadly weapon against a public servant and intoxication assault if the convictions for those offenses are based on the same assault­ive conduct against a single person. CCA reversed COA and vacated D’s conviction for the less serious offense, intoxication assault.

The warrantless, nonconsensual blood draw from an individual suspected of driving while intoxicated, conducted pursuant to the implied-consent and mandatory-blood-draw provisions in the Texas Transportation Code, violated U.S. Const. amend. IV. State v. Villarreal, No. PD-0306-14 (Tex.Crim.App. Nov 26, 2014).

        The State filed this interlocutory appeal challenging the grant of a motion to suppress in favor of D, who was arrested for felony DWI and subjected to warrantless blood-specimen collection over his objection, as a repeat offender, pursuant to Tex. Transp. Code §§ 724.011(a), 724.012(b), 724.013. The State challenged the trial court and COA’s conclusion that the warrantless search of D’s blood under statutory authority providing for implied consent and mandatory blood-specimen collection violated the Fourth Amendment.

        CCA concluded that the warrantless, nonconsensual testing of a DWI suspect’s blood is not categorically within any recognized exception to the Fourth Amendment’s warrant requirement, nor can it be justified under a general Fourth Amendment balancing test; the Supreme Court has held that in an active criminal investigation, and when the primary goal of law-enforcement activity is the gathering of evidence, a warrantless search of a person is unreasonable unless it falls within an established exception to the warrant requirement. With respect to the State’s specific complaints regarding COA’s analysis, CCA concluded that although COA erred by determining that the State forfeited its implied-consent argument on appeal through stipulation, remand is unnecessary in light of both COA’s implicit rejection of that argument and CCA’s express rejection of that argument here. CCA further concluded that COA erred to address the constitutionality of the mandatory-blood-draw statute, and CCA declined to review that matter in light of its holding that this circumstance was unconstitutional.

Court of Appeals

The warrantless taking of D’s blood pursuant to Tex. Transp. Code § 724.012(b)(3)(B) violated his U.S. Const. amend. IV rights by requiring him to submit to a blood test without a warrant or a recognized exception to the warrant requirement; the error was not harmless. Perez v. State, No. 01-12-01001-CR (Tex.App.—Houston [1st Dist] Mar 17, 2015).

        A jury convicted D of DWI, third offense, and the trial court assessed his punishment at 25 years’ confinement. In two points of error, D argued that the trial court erred in denying his motion to suppress. Though, contrary to D’s first point of error, COA found that the arresting officer had probable cause to arrest D without a warrant, COA reversed and remanded his conviction, holding that the warrantless taking of his blood sample violated his Fourth Amendment rights.

Trial court erred in denying D’s motion for a new trial on punishment based on ineffective assistance; counsel failed to perform as reasonably competent because he did not participate in collecting mitigation evidence, did not review the mitigation evidence that D collected without his assistance, and did not present mitigation evidence at the sentencing hearing. Lopez v. State, No. 01-13-01079-CR (Tex.App.—Houston [1st Dist] Feb 26, 2015).

        “[D] pleaded guilty to aggravated robbery without a recommended sentence. Following a presentence investigation, the trial court sentenced [D] to 30 years’ confinement. [D] filed a motion for new trial, arguing that his trial attorney provided ineffective assistance of counsel. The motion was denied.

        “In one issue, [D] argues that his attorney provided ineffective assistance during the punishment phase of his trial and the trial court, therefore, erred in denying his motion for new trial. Specifically, [D] alleges that his attorney failed to investigate his background or gather and present mitigating evidence at the sentencing hearing and, instead, left it to [D]—who is alleged to be ‘significantly developmentally disabled [with] various mental health problems.’ . . . Because we conclude that the attorney was deficient and that [D] established prejudice as a result of the ineffective assistance, we reverse the trial court’s order and remand for a new sentencing hearing.”

D was entitled to a new trial because the court reporter failed to file a record of the trial; a record was necessary because D argued the evidence supporting his con­viction was insufficient. Bryant v. State, No. 14-13-00922-CR (Tex.App.—Houston [14th Dist] Apr 7, 2015).

        D who was convicted of misdemeanor assault of a family member and sentenced to confinement for one year and a $4,000 fine was entitled to a new trial pursuant to Tex. R. App. P. 34.6(f) because the court reporter failed to file the record, apparently having neither a complete stenographic record nor a complete audio recording, or she willfully refused to tran­scribe her notes, in violation of her oath under Tex. Gov’t Code § 52.045(b). A new trial was necessary because D argued that the evidence supporting the conviction was insufficient, an argument the court could not review without a transcript of the evidence. The trial judge concluded that appellant was en­titled to a new trial; COA affirmed.

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