May 2020 SDR – Voice for the Defense Vol. 49, No. 4

Voice for the Defense Volume 49, No. 4 Edition

Editor: Michael Mowla

From Editor Michael Mowla:

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

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

Supreme Court of the United States

Holguin-Hernandez v. United States, No. 18-7739, 206 L.Ed.2d 95,  2020 U.S. LEXIS 1365 (U.S. Feb. 26, 2020) (Slip Op.) (5th Cir.) [Specificity required for preserving error]

A defendant who wishes a court of appeals to consider a claim that a ruling of a trial court was in error must make his objection known to the trial-court judge. Per Fed. Rule Crim. Proc. 51(b), a party preserves error by informing the court of the action the party wishes the court to take, or the party’s objection to the court’s action and the grounds for that objection. Per Rule 52(b), errors not brought to the court’s attention in these ways are subject to only plain-error review. Parties need not use certain language or even to wait until a court issues its ruling. Defendants must only bring the error “to the court’s attention.” 

To preserve sentencing error, defendants are not required to refer to the “reasonableness” of a sentence.

Facts:

Petitioner was convicted of drug-trafficking and sentenced to 60 months BOP. At the time of conviction, he was also serving supervised release related to an earlier crime.

• The Government asked the court to find that petitioner had violated the conditions of supervised release, revoke it, and impose a consecutive prison term per USSG §§ 7B1.4(a) & 7B1.3(f).
• Petitioner argued that under 18 U.S.C. § 3553,a consecutive sentence would not get Petitioner’s attention “any better than” the 60 months imposed.
• The district court imposed a consecutive term of 12 months, a sentence at the bottom of the USSG-range.
• Petitioner appealed, arguing that under Kimbrough v. United States, 552 U.S. 85, 101 (2007) and Gall v. United States, 552 U.S. 38, 49-50 the 12-month sentence was unreasonably long because it was greater than necessary to accomplish the goals of sentencing.
• The Court of Appeals held petitioner forfeited this argument by failing to object to the “reasonableness” of the sentence imposed and it found no plain error.

The defendant’s district-court argument for a specific sentence—nothing or less than 12 months—preserved his claim on appeal that the 12-month sentence was unreasonably long

• A defendant who wishes a court of appeals to consider a claim that a ruling of a trial court was in error must make his objection known to the trial-court judge. Per Fed. Rule Crim. Proc. 51(b), a party preserveserrorby informing the court of the action the party wishes the court to take, or the party’s objection to the court’s action and the grounds for that objection. Per Rule 52(b),errors not brought to the court’s attention in these ways are subject to only plain-error review. Parties need not use certain language or even to wait until a court issues its ruling. Defendants must only bring the error “to the court’s attention.” 
• To preserve sentencing error, defendants are not required to refer to the “reasonableness” of a sentence.
• Petitioner properly preserved the claim that his 12-month sentence was unreasonably long by advocating for a shorter sentence and in effect arguing that this shorter sentence would have proved “sufficient” while a sentence of 12 months or more was “greater than necessary” to “comply with” 18 U.S.C. § 3553(a).
• The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings.

McKinney v. Arizona, 140 S.Ct. 702, 2020 U.S. LEXIS 1363 (U.S. Feb. 25, 2020) (Supreme Court of Arizona) [After Eddings error is identified, an appellate court may resentence a capital defendant]

• Under Eddings v. Oklahoma, 455 U.S. 104, 113-114 (1982), a capital sentencer may not refuse as a matter of law to consider mitigating evidence. After Eddingserror is identified, an appellate court may resentence a capital defendant.
• Under Clemons v. Mississippi, 494 U.S. 738, 745-750 (1990), an appellate court can reweigh permissible aggravating and mitigating evidence. This reweighing is not a resentencing but instead is like harmless-error review that may be conducted by an appellate court. Appellate courts can fully consider and give effect to the mitigating evidence at the sentencing phase.

Facts:

• In 1991, McKinney and Hedlund burglarized five residences in the Phoenix area. During one, they beat, stabbed, and shot Mertens in the back of the head, killing her. In another, they killed McClain by shooting him in the back of the head with a sawed-off rifle.
• An Arizona jury convicted McKinney of two counts of first-degree murder. The trial judge found that McKinney killed Mertens for pecuniary gain and in an especially heinous, cruel, or depraved manner and that McKinney killed McClain for pecuniary gain and had been convicted of another offense with a potential sentence of life imprisonment or death (Mertens murder). The trial judge sentenced McKinney to death for both murders. The Arizona Supreme Court affirmed.
• 20 years later, on federal habeas corpus review, an en banc panel of the 9th Circuit decided 6-5 that in sentencing McKinney, the Arizona courts failed to properly consider McKinney’s PTSD and had thus violated Eddings v. Oklahoma (capital sentencer may not refuse as a matter of law to consider mitigating evidence).
• The Arizona Supreme Court reviewed the evidence and reweighed the relevant aggravating and mitigating circumstances, including McKinney’s PTSD, and upheld both death sentences. 

After Eddings error is identified, an appellate court may resentence a capital defendant

• Under Tuilaepa v. California, 512 U.S. 967 (1994), Zantv. Stephens, 462 U.S. 862 (1983), and Gregg v. Georgia, 428 U.S. 153 (1976), a defendant convicted of murder is eligible for a death sentence if at least one aggravating circumstance is found.
• Under Eddings v. Oklahoma, 455 U.S. 104, 113-114 (1982), a capital sentencer may not refuse as a matter of law to consider mitigating evidence. After an Eddings error is identified, an appellate court may resentence a capital defendant.
• Under Clemons v. Mississippi, 494 U.S. 738, 745-750 (1990), an appellate court can reweigh permissible aggravating and mitigating evidence. This reweighing is not a resentencing but instead is like harmless-error review that may be conducted by an appellate court. Appellate courts can fully consider and give effect to the mitigating evidence at the sentencing phase.
• The judgment of the Arizona Supreme Court is affirmed.

Shular v. United States, No. 206 L.Ed.2d 81, 2020 U.S. LEXIS 1366  (U.S. Feb. 26, 2020) (11th Cir.) [“Serious drug offense” definition of the ACCA]

• The “serious drug offense” definition under the ACCA [18 U.S.C. § 924(e)(2)(A)(ii)] does not require a comparison to a generic offense. It requires only that the prior offense involve the conduct specified in the federal statute.
• Under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), a 15-year minimum sentence is mandated for defendants with prior convictions for “serious drug offenses,” which involve manufacturing, distributing, or possessing with intent to manufacture or distribute a controlled substance.
• The “serious drug offense” definition under the ACCA [18 U.S.C. § 924(e)(2)(A)(ii)] does not require a comparison to a generic offense. It requires only that the prior offense involve the conduct specified in the federal statute.
• Under Mathis v. United States, 136 S.Ct. 2243, 2251 (2016), to determine whether a prior conviction qualifies for ACCA-enhancement, the “categorical approach” is used: a court looks to the statutory definitions of the prior and not the underlying facts nor the label a State assigns to the prior. To apply the ACCA’s definition of “violent felony” to burglary, the court asks only whether the elements of the prior constitute burglary, not about the facts or whether it was called “burglary.” Sometimes the categorical approach requires a court to come up with a “generic” version of a crime—elements as commonly understood—if the statute refers to an offense without specifying its elements. The court must define the offense so that it can compare elements, not labels.  Other times the categorical approach requires a court to determine whether the prior meets some other criterion rather than determining whether it was for a certain offense.

Facts:

• Shular pleaded guilty to felon in possession of a firearm per 18 U.S.C. § 922(g)(1) and possessing with intent to distribute cocaine and cocaine base per 21 U.S.C. § 841(a)(1) and (b)(1)(C).
• The District Court sentenced Shular to 15 years, the mandatory minimum under  the ACCA, taking into account Shular’s prior six Florida convictions for selling controlled substances and finding that they qualified as “serious drug offenses” triggering the ACCA under 18 U.S.C. § 924(e)(2)(A)(ii).
• The 11th Circuit affirmed, finding that a court applying § 924(e)(2)(A)(ii) need not search for the elements of “generic definitions” of any offense because the ACCA requires only that the predicate offense involve certain activities.
• The conflict between Courts of Appeals is whether § 924(e)(2)(A)(ii)’s “serious drug offense” definition requires a comparison to a generic offense.

The “serious drug offense” definition under the ACCA [18 U.S.C. § 924(e)(2)(A)(ii)] does not require a comparison to a generic offense. It requires only that the prior offense involve the conduct specified in the federal statute.

• Under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), a 15-year minimum sentence is mandated for defendants with prior convictions for “serious drug offenses,” which involve manufacturing, distributing, or possessing with intent to manufacture or distribute a controlled substance.
• The “serious drug offense” definition under the ACCA [18 U.S.C. § 924(e)(2)(A)(ii)] does not require a comparison to a generic offense. It requires only that the prior offense involve the conduct specified in the federal statute.
• Under Mathis v. United States, 136 S.Ct. 2243, 2251 (2016), to determine whether a prior conviction qualifies for ACCA-enhancement, the “categorical approach” is used: a court looks to the statutory definitions of the prior and not the underlying facts nor the label a State assigns to the prior. To apply the ACCA’s definition of “violent felony” to burglary, the court asks only whether the elements of the prior constitute burglary, not about the facts or whether it was called “burglary.” Sometimes the categorical approach requires a court to come up with a “generic” version of a crime—elements as commonly understood—if the statute refers to an offense without specifying its elements. The court must define the offense so that it can compare elements, not labels.  Other times the categorical approach requires a court to determine whether the prior meets some other criterion rather than determining whether it was for a certain offense.
• The terms in § 924(e)(2)(A)(ii)—”manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance”—are unlikely names for generic offenses. They can be used to describe conduct. They are not universal names of offenses. States define drug offenses with trafficking, selling, giving, dispensing, distributing, delivering, promoting, and producing.
• But § 924(e)(2)(B)(ii), the enumerated-offense clause of ACCA’s “violent felony” definition, refers to the Career Criminals Amendment Act of 1986, which refers to “burglary, arson, or extortion” and requires a generic-offense analysis. These terms unambiguously name offenses.
• § 924(e)(2)(A)(ii)’s text and context refer to an offense involving the conduct of “manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.” Because they describe conduct and do not name offenses, a court applying § 924(e)(2)(A)(ii) need not delineate the elements of generic offenses. 
• The judgment of the 11th Circuit is affirmed.

Editor’s note: Does hoarding and reselling toilet paper and toiletries at scumbag prices fall under “manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance” under the ACCA?

United States Court of Appeals for the 5th Circuit

United States v. Butler, No. 19-10065, 2020 U.S.App.LEXIS 3444 (5th Cir. Feb. 4, 2020) (designated for publication) [ACCA, Bank Robbery is divisible under Mathis]

• Under 18 U.S.C. § 924(e)(2)(B)(i) and Welch v. United States, 136 S.Ct. 1257, 1261 (2016), the Armed Career Criminal Act (ACCA) imposes a 15-year-minimum if the defendant has 3 prior convictions for violent felonies or serious drug offenses. “Violent felony” means a crime punishable by more than one year of prison that has as an element the use, attempted use, or threatened use of physical force against another person (elements clause). 
• Under Mathis v. United States, 136 S.Ct. 2243, 2248 (2016), whether a conviction satisfies the elements clause of the ACCA depends on whether the offense-statute is divisible. An indivisible statute lays out a single set of elements to define a single crime. Indivisible statutes are evaluated using the categorical approach, assessing whether the elements include the use of force. The facts of the case are ignored, and the question is whether the defendant’s conviction means he must have used, attempted to use, or threatened to use physical force to commit it. A divisible statute lists its elements in the alternative and defines multiple crimes. When a statute describes multiple crimes, the modified categorical approach permits courts to look to certain documents (indictment, jury instructions, plea agreement and colloquy) to figure out which of the statute’s crimes the defendant was convicted of.  Once the court has narrowed the crime of conviction to a specific offense, it applies the same analysis as the categorical approach, asking whether the elements of that crime include the use of force. The modified approach makes a difference when a statute describes one offense that qualifies as a violent felony and another that does not. Any doubt about whether a defendant committed a violent felony allows him to avoid the ACCA-punishment for armed career criminals because the categorical approach requires certainty. 

Facts:

• Butler pleaded guilty to felon in possession of a firearm per 18 U.S.C. § 922(g)(1), punishable by up to 10 years per § 924(a)(2). Butler had four convictions for federal bank robbery and two Texas convictions for robbery.
• The indictments for federal bank robbery show that Butler committed bank robbery by intimidation.
• The district court concluded that the federal bank robbery convictions were violent felonies, qualifying Butler under the ACCA, so Butler was sentenced to the 15 year-minimum.

Bank Robbery is divisible under Mathis because it lists elements in the alternative and thus defines multiple crimes

• Under 18 U.S.C. § 924(e)(2)(B)(i) and Welch v. United States, 136 S.Ct. 1257, 1261 (2016), the Armed Career Criminal Act (ACCA) imposes a 15-year-minimum if the defendant has 3 prior convictions for violent felonies or serious drug offenses. “Violent felony” means a crime punishable by more than one year of prison that has as an element the use, attempted use, or threatened use of physical force against another person (elements clause). 
• Under Mathis v. United States, 136 S.Ct. 2243, 2248 (2016), whether a conviction satisfies the elements clause of the ACCA depends on whether the offense-statute is divisible. An indivisible statute lays out a single set of elements to define a single crime. Indivisible statutes are evaluated using the categorical approach, assessing whether the elements include the use of force. The facts of the case are ignored, and the question is whether the defendant’s conviction means he must have used, attempted to use, or threatened to use physical force to commit it. A divisible statute lists its elements in the alternative and defines multiple crimes. When a statute describes multiple crimes, the modified categorical approach permits courts to look to certain documents (indictment, jury instructions, plea agreement and colloquy) to figure out which of the statute’s crimes the defendant was convicted of.  Once the court has narrowed the crime of conviction to a specific offense, it applies the same analysis as the categorical approach, asking whether the elements of that crime include the use of force. The modified approach makes a difference when a statute describes one offense that qualifies as a violent felony and another that does not. Any doubt about whether a defendant committed a violent felony allows him to avoid the ACCA-punishment for armed career criminals because the categorical approach requires certainty. 
• 18 U.S.C. § 2113(a) (Bank Robbery) is divisible because it lists elements in the alternative and thus defines multiple crimes: Whoever: “(1) by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or (attempts to or extorts)…property or money…in the…possession of, any bank, credit union…or (2) enters or attempts to enter any bank, credit union…or any building used in whole or in part as a bank, credit union…with intent to commit in such bank, credit union…or building, or part thereof…any felony affecting such bank…or (3) takes and carries away, with intent to steal or purloin, any property or money…exceeding $1,000 belonging to…or in the possession of any bank, credit union…”
• 18 U.S.C. § 2113(a) (Bank Robbery) could mean traditional bank robbery or burglary of a bank.
• Because § 2113(a) is divisible, the district court properly used the indictments showing bank robbery by intimidation to narrow the convictions to the violent felonies of taking bank property from another through intimidation. With at least three such violent felonies, he was properly sentenced as an armed career criminal.
• The judgment is AFFIRMED.

United States v. Mecham, No. 19-40319, 2020 U.S.App.LEXIS 4768 (5th Cir. Feb. 14, 2020) (designated for publication) [Morphed porn; enhancement under U.S.S.G. § 2G2.2(b)(4)(A) for child porn that involves material that depicts violence]

• Under Osborne v. Ohio, 495 U.S. 103 (1990) and New York v. Ferber, 458 U.S. 747 (1982), “real” child porn is not protected speech.  Under Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002), “virtual” child porn—sexually explicit images created by using adults who “look like” minors or using computer imaging—is protected speech. 
• Under Miller v. California, 413 U.S. 15, 16, 24 (1973), the government must prove that an allegedly obscene work appeals to the prurient interest, is offensive considering community standards, and lacks serious literary, artistic, political, or scientific value. 
• The First Amendment does not protect “morphed” child porn, which uses an image of a real child who is not involved in a sex act and falls between “real” and “virtual” child porn.
• Under U.S.S.G. § 2G2.2(b)(4)(A), 4-levels are added for child porn that involves material that portrays sadistic or masochistic conduct or other depictions of violence. 
• An image is sadistic if it depicts conduct that an objective observer perceives as causing the victim physical or emotional pain contemporaneously with the image’s creation. This ensures that not every child-porn conviction receives the enhancement as all victim-children are likely to experience emotional pain once they learn that porn depicting them exists. Without contemporaneous emotional harm, an image must portray physical pain to be sadistic. Sexual penetration of an actual prepubescent child qualifies.  But for morphed porn involving the use of an adult body, intercourse alone does not involve the requisite pain.
• Morphed porn can qualify for the sadism-or-masochism enhancement if the body image is of a prepubescent child, just not the one whose face is shown, the body image shows conduct that is painful or cruel even for an adult (i.e., forced sex), or it reasonably appears that the body image is of a prepubescent child—even though it is not—for whom the sex act is painful.  The inquiry is whether a reasonable viewer would conclude that the image depicts the contemporaneous infliction of pain. 

Facts:

• Mecham took his computer to a tech for repairs, who discovered thousands of images of nude adult bodies with faces of children superimposed. The tech called the police, who executed a search warrant and seized electronic devices.
• Mecham waived his Miranda rights and admitted he added the faces of his four granddaughters to photos and videos of adults engaged in sex because after years interacting with his grandchildren, his daughter denied him contact. By creating the images, he sought to get back at his family for cutting him off.
• A forensic analysis revealed over 30,000 of morphed child-porn of faces of Mecham’s grandchildren, ages 4, 5, and 16.
• Mecham emailed videos to his oldest granddaughter, one of which—lasting over 9 minutes—showing her face on an adult female having sex and Mecham’s face superimposed on the male. The video uses animation to show the male ejaculating, with semen shooting to the granddaughter’s mouth. All show Mecham’s face morphed into the face of the men.
• Mecham was indicted for possession of child porn.
• Mecham filed a motion to dismiss the indictment, arguing that the First Amendment protects morphed child porn. The district court denied the motion.
• After a stipulated bench trial, the district court found Mecham guilty and sentenced him to 97 months in BOP.

The First Amendment does not protect “morphed” child porn, which uses an image of a real child who is not actually involved in a sex act and is porn that falls between “real” and “virtual” child porn.

• Under Osborne v. Ohio, 495 U.S. 103 (1990) and New York v. Ferber, 458 U.S. 747 (1982), “real” child porn is not protected speech.  Under Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002), “virtual” child porn—sexually explicit images created by using adults who “look like” minors or using computer imaging—is protected speech. 
• Under Miller v. California, 413 U.S. 15, 16, 24 (1973), the government must prove that an allegedly obscene work appeals to the prurient interest, is offensive considering community standards, and lacks serious literary, artistic, political, or scientific value. 
• The First Amendment does not protect “morphed” child porn, which uses an image of a real child who is not involved in a sex act and falls between “real” and “virtual” child porn.
• Because the porn was created without a child in a sex act means that a sentencing enhancement for images that display sadistic or masochistic conduct does not apply.

The district court erred in applying the 4-level enhancement for child porn that involves material that portrays sadistic or masochistic conduct or other depictions of violence. 

• Under U.S.S.G. § 2G2.2(b)(4)(A), 4-levels are added for child porn that involves material that portrays sadistic or masochistic conduct or other depictions of violence. 
• The 4 points meant Mecham’s advisory range was 97-121 months instead of 63-78 months.
• An image is sadistic if it depicts conduct that an objective observer perceives as causing the victim physical or emotional pain contemporaneously with the image’s creation. This ensures that not every child-porn conviction receives the enhancement as all victim-children are likely to experience emotional pain once they learn that porn depicting them exists. Without contemporaneous emotional harm, an image must portray physical pain to be sadistic. Sexual penetration of an actual prepubescent child qualifies.  But for morphed porn involving the use of an adult body, intercourse alone does not involve the requisite pain.
• Morphed porn can qualify for the sadism-or-masochism enhancement if the body image is of a prepubescent child, just not the one whose face is shown, the body image shows conduct that is painful or cruel even for an adult (i.e., forced sex), or it reasonably appears that the body image is of a prepubescent child—even though it is not—for whom the sex act is painful.  The inquiry is whether a reasonable viewer would conclude that the image depicts the contemporaneous infliction of pain. 
• The district court did not make this finding and the record does not support the sadism enhancement, so the district court erred in including the four points.
• To show a sentencing error is harmless, the government must convincingly demonstrate that the district court would have: (1) imposed the same sentence had it not made the error, and (2) done so for the same reasons it gave at the prior sentencing.
• The government argues harmlessness but fails the first step. The district court did not say it would have given the same 97-month sentence without the enhancement, which is the most straightforward way to prove harmlessness. 
• The sentence is vacated, and the case is remanded for Mecham to be sentenced with an advisory range of 63-78 months.

Texas Court of Criminal Appeals

Holder v. State, No. PD-1269-16, 2020 Tex.Crim.App.LEXIS 180 (Tex.Crim.App. March 11, 2020) (designated for publication)  (Capital Murder, Collin Co.) [Tex. Const. Art. I, § 9, third-party doctrine, and CSLI records]

• Under Tex. Const. Art. I, § 9, the third-party doctrine does not apply to CSLI records
• Under Sims v. State, 569 S.W.3d 634, 642 (Tex.Crim.App. 2019), suppression is not an available remedy for nonconstitutional violations of the Stored Communications Act. Even if the State did not meet the SCA’s “specific and articulable facts” standard, the CSLI should not be suppressed on that basis. 
• Under Tex. Const. Art. I, § 9, the people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches and no warrant to search shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation. A person has an expectation of privacy if he has a subjective privacy interest that society recognizes as objectively reasonable. There is no implicit warrant requirement in Article I, § 9.
• A warrant is generally needed under the Fourth Amendment to access seven or more days of CSLI information.

Facts:

• In 2012, Appellant, his girlfriend Casey James, and her children moved into Tanner’s home, who was James’s ex-stepfather.
• The relationship between Appellant and James soured, so Tanner asked Appellant to move out, which he did.
• A month later, James told Appellant that her daughter C.J. told her that Tanner was “nasty” and slept without his underwear. James asked Appellant if he had ever seen Tanner act inappropriately around C.J., and he said yes. Appellant hadn’t said anything to James because James was in the room when it happened.
• James concluded that Tanner had not been inappropriate after she spoke to C.J.
• James told Appellant that she would be out of town November 9-11 and her kids were going to be with one of her friends.
• When James returned to Tanner’s home on November 11 at about 8:00 p.m., the garage-door opener did not work, and Tanner’s truck was not at the house. James entered the house through a sliding glass door, it was pitch black, which was unusual, and there was a horrible smell. Someone had hung a blanket over the sliding glass door and there was liquid running down the hallway. James was afraid and went back to her vehicle where her children were sleeping. James called the police.
• Police found Tanner’s body in the house. It looked like the body had been there awhile. Tanner had suffered blunt-force trauma to the head, was stabbed 20 times, and had defensive-wounds on his hands. There was blood all over his body and around it.
• Police concluded that the murder was a crime of passion, not a burglary gone wrong even though Tanner’s wallet was stolen. They found two black latex gloves on the kitchen table, which James said were not there when she left. James had never seen black latex gloves at the house or seen Tanner with black latex gloves.
• On Facebook there was a picture of Appellant wearing black latex gloves while tattooing someone. DNA-testing on three glove swabs showed it was extremely unlikely that anyone other than Appellant was a major contributor.
• On November 12, police obtained a court order directing AT&T to disclose call log and CSLI (Cell Site Location Information) records showing the location of Appellant’s cellphone between October 20 to November 12, but AT&T declined to produce them because they said the order had to be based on probable cause.
• The second petition claimed authority under Tex. Code Crim. Proc. Art. 18.21 § 5, seeking all records regarding the identification of Appellant’s account including name, address, date of birth, status of account, history, call detail records, tower information for all calls for October 20, 2012 to November 12, 2012, service and billing address, ANI, method of payment, information on all other numbers ever assigned to the account or user. The officer changed “reasonable suspicion” to “probable cause” for an investigation into a violation of Tex. Penal Code § 19.03. A judge signed the new order.
• Police interviewed Appellant and asked him where he was the weekend of November 9 and whether he had his cellphone. Appellant said he was in Irving and that he had his cellphone. Police confronted Appellant with the CSLI showing that he was in Tanner’s coverage area multiple times that weekend, which contradicted his story that he was out of town. Appellant remembered that he was near Tanner’s house that weekend, but he was there to buy drugs and never went to Tanner’s house. The police asked Appellant about Tanner and C.J., and Appellant told them that “children shouldn’t be molested.”
• Call log records showed that Tanner was alive until at least 2:35 p.m. on November 10 because that is when he ended a call with his parents. The records showed that between 3:28 p.m. and 4:16 p.m. the same day, Appellant’s cellphone connected to the tower that best served Tanner’s home. By 4:16 p.m., Appellant’s cellphone had left the area but reentered at 12:41 a.m. on November 11. Appellant’s phone was pinging in Tanner’s coverage area until 12:44 a.m. From 12:44 a.m. to 2:11 a.m., there was no activity on Appellant’s phone. At 2:11 a.m., it pinged a tower near the parking garage where police found Tanner’s abandoned truck.
• An inmate named Uselton contacted Plano detectives and told them that he knew Appellant for a few years. Appellant called him on November 10 around 3:00 p.m. because he wanted to buy drugs. Appellant sounded hysterical. Appellant called back later that day and asked him to help with “something.” Appellant and his ex-girlfriend picked up Uselton. She drove them to Appellant’s tattoo parlor, where Appellant picked up bleach and black latex gloves, then to Tanner’s house. When they entered, Appellant told him “he’s dead.” Uselton saw Tanner’s body around the corner. Appellant said that Tanner molested a little girl. Appellant’s ex-girlfriend drove them back to Appellant’s tattoo shop. Uselton went to a store to buy cigarettes. When he returned, he overheard Appellant’s ex-girlfriend ask Appellant, “Why did you do it?” Appellant replied, “I had to.” Uselton told police other details that were not public: Appellant unplugged the garage-door opener and Uselton helped Appellant cover up windows and the sliding glass door with blankets and pour gas around the house.

Under Tex. Const. Art. I, § 9, the third-party doctrine does not apply to CSLI records

• Under Sims v. State, 569 S.W.3d 634, 642 (Tex.Crim.App. 2019), suppression is not an available remedy for nonconstitutional violations of the Stored Communications Act. Even if the State did not meet the SCA’s “specific and articulable facts” standard, the CSLI should not be suppressed on that basis. 
• Under Tex. Const. Art. I, § 9, the people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches and no warrant to search shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation. A person has an expectation of privacy if he has a subjective privacy interest that society recognizes as objectively reasonable. There is no implicit warrant requirement in Article I, § 9.
• A warrant is generally needed under the Fourth Amendment to access seven or more days of CSLI information.
• Under Ford v. State, 477 S.W.3d 321 (Tex.Crim.App. 2015), the Fourth Amendment third-party doctrine applies to CSLI under Tex. Const. Art. I, § 9.
• Under Carpenter, 138 S.Ct. at 2218, CSLI presents great privacy concerns because cellphones are “almost a feature of human anatomy” that track nearly exactly with the movements of its owner, and while individuals regularly leave their vehicles, they carry cellphones with them all the time. A cellphone follows its owner beyond public thoroughfares and into buildings, homes, doctor’s offices, and other potentially revealing locales. When the Government tracks the location of a cellphone, it achieves near perfect surveillance as if it had attached an ankle monitor to the user. Giving the Government access to such records contravenes society’s expectation that law enforcement cannot secretly monitor and catalogue every movement of an individual’s car for long period.
• Under Tex. Const. Art. I, § 9, the third-party doctrine does not apply to CSLI records
• The petition did not support a probable cause finding.
• Appellant had a reasonable expectation of privacy under Tex. Const. Art. I, § 9 in the 23 days of his CSLI accessed by the State. The judgment of the court of appeals is reversed and the case is remanded for a harm analysis.

Walker v. State, No. PD-0399-17, 2020 Tex.Crim.App.LEXIS 176 (Tex.Crim.App. Feb. 26, 2020) (designated for publication)  (Engaging in Organized Criminal Activity, Orange Co.) [Reformation to a lesser-included offense when the greater-inclusive offense is nonexistent]

• A court may reform a judgment after an acquittal of a greater-inclusive offense to a lesser-included offense if: (1) the jury necessarily found every element necessary to convict of the lesser-included offense when it convicted of the greater-inclusive offense, and (2) there is sufficient evidence to support a conviction for the lesser-included offense. Where the greater-inclusive offense is nonexistent, a court may reform to a lesser-offense authorized by the indictment. A conviction for a charged but nonexistent offense can be reformed to a subsumed and proven offense that exists.
• Under Hughitt v. State, 583 S.W.3d 623 (Tex.Crim.App. 2019), Possession of a Controlled Substance with intent to deliver is not a predicate offense for Engaging in Organized Criminal Activity

Facts:

• Appellant, her two daughters, and a man nicknamed “Pill” lived in a house that was a major distribution point for drugs. Two times, a CI purchased marijuana and synthetic marijuana there. People known to the police made short, frequent stops when Appellant was believed to be present.
• One night, three intruders broke in through the front door and a shootout occurred. One escaped, another limped away, and the third crawled out and died on the lawn.
• Surveillance cameras showed that after the shootout—but before the police arrived—Appellant made several trips to an Infiniti parked outside carrying a bag of more than 400 grams of dihydrocodeinone pills, sprayed Febreze in the air, and gave a pistol to “Pill,” who left.
• Police arrived to find the dead body, and occasional guest Brian Grant, who had been shot, sitting near the porch. A search of the house uncovered large amounts of marijuana, cocaine, PCP, Xanax, codeine syrup in a baby bottle, and paraphernalia including digital scales, resealable plastic bags, and cash. The pills Appellant placed in the Infiniti were also found.
• Appellant was indicted for Engaging in Organized Criminal Activity with the predicate offense of Possession of a Controlled Substance with intent to deliver. Appellant did not object to the indictment for alleging a nonexistent offense.
• The jury charge tracked the indictment and instructed the jury to determine whether Appellant or another member of a criminal combination possessed at least 400 grams of dihydrocodeinone with intent to deliver. Appellant was convicted.

A conviction for a charged but nonexistent offense can be reformed to a subsumed and proven offense that exists

• Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), to determine legal sufficiency, after viewing the evidence in the light most favorable to the verdict, a reviewing court considers whether the factfinder was rationally justified in finding the essential elements of the crime beyond a reasonable doubt. The reviewing court does not substitute its judgment for that of the factfinder by reevaluating the weight or credibility of the evidence but defers to the factfinder’s resolution of conflicts in testimony, weighing of evidence, and drawing reasonable inferences from the facts. The evidence is measured by the elements of the offense as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). Circumstantial evidence and direct evidence can be equally probative in establishing the guilt of a defendant, and guilt can be established by circumstantial evidence alone. Under Hart v. State, 89 S.W.3d 61, 64 (Tex.Crim.App. 2002), proof of mental state will almost always depend upon circumstantial evidence, and knowledge may be inferred from the person’s acts, words, and conduct. The standard of review is the same for direct and circumstantial evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). A factfinder is allowed to draw reasonable inferences that are supported by evidence, Jackson, 443 U.S. at 319 (emphasis supplied), but “[t]heorizing or guessing as to the meaning of the evidence is never adequate to uphold a conviction because it is insufficiently based on the evidence to support a belief beyond a reasonable doubt.” Cary v. State, 507 S.W.3d 761, 766 (Tex.Crim.App. 2016).
• Sufficiency of the evidence may turn on the meaning of the statute. Alfaro-Jimenez v. State, 577 S.W.3d 240, 244 (Tex.Crim.App. 2019); Liverman v. State, 470 S.W.3d 831, 836 (Tex.Crim.App. 2015). A reviewing court must consider whether certain conduct constitutes an offense under the relevant statute. A court must conduct a statutory construction analysis de novo.
• Under Hughitt v. State, 583 S.W.3d 623 (Tex.Crim.App. 2019), Possession of a Controlled Substance with intent to deliver is not a predicate offense for Engaging in Organized Criminal Activity
• Measuring the evidence against the hypothetically correct jury charge, more than some evidence existed to enable a rational jury to find that Appellant was part of a criminal combination and that Appellant—or a member of the combination—possessed the alleged controlled substance in the requisite amount.
• A court may reform a judgment after an acquittal of a greater-inclusive offense to a lesser-included offense if: (1) the jury necessarily found every element necessary to convict of the lesser-included offense when it convicted of the greater-inclusive offense, and (2) there is sufficient evidence to support a conviction for the lesser-included offense. Where the greater-inclusive offense is nonexistent, a court may reform to a lesser-offense authorized by the indictment. A conviction for a charged but nonexistent offense can be reformed to a subsumed and proven offense that exists.
• Appellant is acquitted of EOCA. Reformation to possession of a controlled substance with the intent to deliver is authorized by the indictment. The case is remanded to the court of appeals to determine if the remaining conditions for reformation are met.

Texas Courts of Appeals

In re Cook, No. 14-19-00664-CR, 2020 Tex.App.-LEXIS 1563 (Tex.App.-Houston [14th Dist.] Feb. 25, 2020) (designated for publication) (Mandamus, Harris Co.) [Standing in attorney-client casefiles, attorney-client privilege, work-product privilege]

• Under In re Powell, 516 S.W.3d 488, 494-495 (Tex.Crim.App. 2017) (orig. proceeding), to be entitled to mandamus relief, a relator must show: (1) that he has no adequate remedy at law for obtaining the relief; and (2) what he seeks to compel involves a ministerial act and not a discretionary act. A ministerial act does not involve judicial discretion and is plainly prescribed under the law. The relator must have a clear right to the relief sought and its merits of are beyond dispute. The facts and circumstances dictate only one rational decision under unequivocal, well-settled, and clearly controlling legal principles. A relator can show that no adequate legal remedy exists if it is too uncertain, tedious, burdensome, inappropriate, or ineffective to be deemed inadequate.
• Under Bailey v. State, 507 S.W.3d 740, 745 (Tex.Crim.App. 2016), the attorney-client privilege is personal to the client and the right to waive the privilege belongs solely to the client. Under In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 221-222 (Tex. 2004) (orig. proceeding), Cook has the right to assert the work-product privilege to prevent documents falling within the scope of the privilege from being produced to another party. Under In re McCann, 422 S.W.3d 701, 705 (Tex.Crim.App. 2013), a client owns the contents of his file. 
• Under Tex. Rule Evid. 503(b), confidential communications between client and counsel made to facilitate legal services are generally insulated from disclosure. Under Upjohn Co. v. United States, 449 U.S. 383, 389 (1981), the purpose of the privilege is to encourage full and frank communication between attorneys and their clients and promote broader public interests in the observance of law and administration of justice.
• Under In re Bexar Co. Crim. Dist. Attorney’s Office, 224 S.W.3d 182, 186 (Tex. 2007) (orig. proceeding), the primary purpose of the work product rule is to shelter the mental processes, conclusions, and legal theories of the attorney, providing a privileged area within which the lawyer can analyze and prepare his case. The work-product privilege is broader than the attorney-client privilege because it includes all communications made in preparation for trial, including an attorney’s interviews with witnesses. 

Facts:

• Amy Castillo was a client of attorney Woodfill. Castillo alleged that Woodfillmisapplied funds from her divorce by using unearned funds for services rendered for other clients.
• Vaclavik, chief fraud examiner for the DA’s Office, investigated Castillo’s allegations by obtaining IOTLA statements.
• During the investigation, it appeared funds belonging to another Woodfill’s client, Cook, were used contrary to her attorney-client agreement, which required a $75,000 retainer. The $75,000 was deposited into the IOLTA on June 13, 2013. A day before, the account was overdrawn by $49,679.18. Cook’s funds were used to offset the negative balance and to cover a check payable to a party unrelated to the representation of Cook.
• Cook’s billing for June 6-12, 2013, showed that the firm had only earned $1,313.29 of Cook’s retainer.
• On June 13, 2013, the IOLTA balance was $25,320.82, indicating that Woodfillhad used more than $45,000 of Cook’s retainer for purposes unrelated to her case.
• In his affidavit in support of the search warrant, Vaclavik stated that he had reason to believe the firm had had evidence of felony misapplication of fiduciary property, theft, and money laundering.
• Vaclavik asked permission to seize “Any and all financial, legal files, documents, records, books, ledgers and correspondence containing the names of Amy Castillo and Teresa Cook.”
• The trial court signed a search warrant, authorizing the seizure of all files pertaining to Castillo and Cook; and logins and passwords for computers, software, file sharing access, telephones, and communication devices owned by Woodfilland the firm.
• The search warrant was executed, and police PD took 127 boxes.
• Cook refused to waive her privileges to her files. Cook filed a brief asking the trial court to order the DA to return her files to her. The trial court held an in-chambers hearing during which the ADA advised the court that the taint team (ADAs not involved in the case) was ready to start going through Cook’s files. Cook argued that permitting the taint team to look at her files violates her constitutional right to privacy and evidentiary privileges. The trial court urged the parties to reach an agreement.
• The DA filed a motion for protective order and procedure for review of confidential or privileged discovery materials, which would allow the taint team to conduct the review.
• Cook filed a brief regarding the validity of the search warrant.
• The trial court held another hearing and signed an order allowing the taint team to review the alleged confidential or privileged materials but forbad them from discussing their content with other members of the DA’s office or law enforcement. The United States Secret Service forensic services team was necessary to image or format electronically stored data for review. Their review was limited to that task and they were forbidden from discussing the content with prosecutors or law enforcement not members of the taint team. The materials are to be assigned three categories: (1) evidence that the State and Cook agree is not subject to the attorney-client privilege, (2) evidence that the State and Cook agree is subject to the attorney-client privilege, and (3) evidence that the State and Cook do not agree is subject to the attorney-client privilege, which will be designated for in-camera review.
• Cook filed mandamus, alleging a clear abuse of discretion.

Requirements for mandamus

• Under In re Powell, 516 S.W.3d 488, 494-495 (Tex.Crim.App. 2017) (orig. proceeding), to be entitled to mandamus relief, a relator must show: (1) that he has no adequate remedy at law for obtaining the relief; and (2) what he seeks to compel involves a ministerial act and not a discretionary act. A ministerial act does not involve judicial discretion and is plainly prescribed under the law. The relator must have a clear right to the relief sought and its merits of are beyond dispute. The facts and circumstances dictate only one rational decision under unequivocal, well-settled, and clearly controlling legal principles. A relator can show that noadequatelegal remedy exists if it is too uncertain, tedious, burdensome, inappropriate, or ineffective to be deemed inadequate.

Cook has standing

• Under Bailey v. State, 507 S.W.3d 740, 745 (Tex.Crim.App. 2016), the attorney-client privilege is personal to the client and the right to waive the privilege belongs solely to the client. Under In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 221-222 (Tex. 2004) (orig. proceeding), Cook has the right to assert the work-product privilege to prevent documents falling within the scope of the privilege from being produced to another party. Under In re McCann, 422 S.W.3d 701, 705 (Tex.Crim.App. 2013), a client owns the contents of his file. 
• Cook owns her files, and she has standing to assert her rights to her property and the attorney-client and work-product privileges.

There was probable cause that evidence of the felonies would be found in the files. 

• Vaclavik’s affidavit described the deposit of Cook’s check into IOLTA and the use of it to cover a negative balance in the account. The affidavit described the retainer and that it was expended for reasons unrelated to Cook’s case. The trial court could have inferred that evidence related to the allegations could have been found in Cook’s files. Deferring to all reasonable inferences the trial court could have made, it could have found probable cause.

The taint team is allowed but work product documents must be included

• Under Tex. Rule Evid. 503(b), confidential communications between client and counsel made to facilitate legal services are generally insulated from disclosure. Under Upjohn Co. v. United States, 449 U.S. 383, 389 (1981), the purpose of the privilege is to encourage full and frank communication between attorneys and their clients and promote broader public interests in the observance of law and administration of justice.
• Under In re Bexar Co. Crim. Dist. Attorney’s Office, 224 S.W.3d 182, 186 (Tex. 2007) (orig. proceeding), the primary purpose of the work product rule is to shelter the mental processes, conclusions, and legal theories of the attorney, providing a privileged area within which the lawyer can analyze and prepare his case. The work-product privilege is broader than the attorney-client privilege because it includes all communications made in preparation for trial, including an attorney’s interviews with witnesses. 
• Cook has the right to assert the work-product privilege to prevent discovery of it. But Cook’s right must be balanced against the DA’s Office’s interest in conducting a criminal investigation. The use of taint teams has been authorized by courts based on the expectation and presumption that the team and prosecutors will conduct themselves with integrity.
• When Cook sought mandamus relief, the parties and the taint team had not started reviewing Cook’s files. Thus, the parties have not decided what materials are privileged, not privileged, or disputed and require an in-camera review. Thus, Cook’s request for relief as to privileged documents is premature.
• The trial court abused its discretion by not including work product materials as part of the taint team procedures. The petition for writ of mandamus was conditionally granted in part, and the trial court is directed to modify the order so that the review also applies to work product. After the review process, the DA’s Office: (1) must expeditiously return to Cook documents the parties agree are covered by the attorney-client and work-product privileges; (2) may retain copies of documents necessary to prosecute the alleged offenses committed by Woodfill that the parties agree are not privileged but must promptly return the original nonprivileged documents to Cook; and (3) must return all disputed documents on which the trial court rules in Cook’s favor.

Editor’s note: members of a “taint team” answer to the same DA or U.S. Attorney who supervise the case prosecutors. Should we be skeptical?

Fernandez v. State, No. 08-17-00217-CR, 2020 Tex.App.-LEXIS 1482 (Tex.App.-El Paso Feb. 20, 2020) (designated for publication) (Aggravated Assault and Assault family violence, El Paso Co.) [Ex parte communications; writ of attachment; lack of notice of extraneous offenses; less than 12 jurors under Art. 36.29]

• To determine whether a violation of the Code of Judicial Conduct is reversible error, a court examines the entire record to determine whether the trial judge engaged in impropriety that was harmful. Under Tex. Code Jud. Conduct Canon 3(B)(8), a judge “shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex partecommunications or other communications made to the judge outside the presence of the parties between the judge and a party, an attorney…or any…court appointee concerning the merits of a pending or impending judicial proceeding. A judge shall require compliance by court personnel subject to the judge’s direction and control. This does not prohibit communications concerning uncontested procedural matters. The purpose of prohibiting ex partecommunications is to ensure all legally interested parties are given their full right to be heard under the law and to ensure equal treatment of all parties. 
• Under Wesbrook v. State, 29 S.W.3d 103, 121 (Tex.Crim.App. 2000), mere violations of the Code of Judicial Conduct alone are not reversible error, and even unethical conduct is not necessarily grounds for reversal. The Code is designed to provide guidance to judges and a structure for regulating conduct through the State Commission on Judicial Conduct. For reversal, there must be judicial impropriety plus probable prejudice to the complaining party plus rendition of an improper verdict. For complaints regarding ex partecommunications, no prejudice is shown if the appellant fails to point to record support showing that the communications influenced the court’s decision-making. 
• Under Tex. Code Crim. Proc. Arts. 24.11 & 24.12, an attachment is a writ issued by the clerk in a criminal action commanding a peace officer to bring the witness to court to testify for either the State or the defendant. When a witness  resides in the county of prosecution has been duly served with a subpoena to appear and testify in any criminal action or proceeding fails to appear, the requesting party may request that the court issue an attachment for the witness. The request must be filed with the clerk and must include an affidavit of the requesting party stating that the affiant has good reason to believe and does believe that the witness is a material witness.
• Under Tex. Code Crim. Proc. Art. 24.011(a), (b-1), if issuance of an attachment is requested for a witness younger than 18, the request must include the applicable affidavit from the requesting party described by Art. 24.12. 
• The court shall appoint an attorney to represent the witness at the hearing under subsection (b), to include representing the witness at a hearing conducted outside the presence of the witness. Tex. Code Crim. Proc. Art. 24.111(d).
• Under Chavez v. State, 9 S.W.3d 817, 819 (Tex.Crim.App. 2000), the right to complain about an illegal search and seizure is a privilege personal to the injured party and is not available to others. This includes complaints about Tex. Code Crim. Proc. Art. 38.23(a).
• Under Tex. Rule Evid. 404(b) and Hernandez v. State, 176 S.W.3d 821, 822 (Tex.Crim.App. 2005), extraneous-offense evidence may be admissible for limited, noncharacter conformity purposes provided that upon timely request by the defendant, the State gives reasonable notice before trial of its intent to use such evidence during its case-in-chief. The admission of extraneous offenses when the State failed to provide reasonable notice is nonconstitutional error, reversable only if it affected the defendant’s substantial rights per Tex. Rule App. Proc. 44.2(b). To determine harm, a court must analyze whether and how the notice deficiency affected the defendant’s ability to prepare for the evidence. To determine this, a court looks at whether the defendant was surprised by the substance of the testimony and if it affected his ability to prepare cross-examination or to mitigate against the evidence. A defendant may demonstrate surprise by showing how his defense strategy might have been different had the State notified him that it intended to offer the extraneous-offense evidence. Error in admitting the evidence does not have an injurious effect on the verdict if the defendant was not surprised by its admission. If the trial court allows a continuance or recess to mitigate unreasonable notice, it can be harmless where the defendant fails to request additional time to address it or object based on having a potentially different strategy foreclosed by an already undertaken one. 
• Under Tex. Code Crim. Proc. Art. 36.29(a), and Scales v. State, 380 S.W.3d 780, 784 (Tex.Crim.App. 2012), not less than 12 jurors can render a verdict in a felony case. However, 11 jurors may render the verdict where—after the trial of any felony case begins and before the charge of the court is read to the jury—the trial court determines that a juror has become disabled from sitting—and in such case, the verdict shall be signed by every member of the jury. A disabled juror is one who suffers from a physical illness, mental condition, or emotional state that would hinder the juror from performing duties as a juror or the juror was suffering from a condition that inhibited him from fully and fairly performing the functions of a juror. The determination of a juror’s disability is reviewed for an abuse of discretion.  The trial court is the sole factfinder and judge of the credibility of the evidence. Although the record must show the basis of the trial court’s reason, there is no requirement that the disabled juror testify regarding the disability. The burden is on the complaining party to develop a sufficient record to show the nature of the error on appeal regarding a ruling on juror disability. 

Facts:

• Fernandez was indicted for Aggravated Assault with a deadly weapon and felony Assault family-violence after a previous conviction for allegedly striking Cynthia Flores with a clothing iron.
• The trial court entered a pretrial discovery order requiring the State to give written notice 7 days before trial of extraneous acts it intended to introduce in its case-in-chief. Fernandez also filed a request for the same be given not later than 7 days before trial.
• Prior to trial, the State filed a series of notices to the defense that detailed extraneous acts it would potentially use during its case-in-chief, alleging a dozen unreported bad acts committed against Flores characterized as demonstrating “continuous physical, verbal and emotional abuse.”
• After the jury and an alternate were empaneled and sworn, the jurors received preliminary instructions and departed for lunch.
• Outside the jury’s presence, the State requested a forfeiture-by-wrongdoing hearing under Tex. Code Crim. Proc. Art. 38.49, informing that Flores failed to appear for trial despite having being served with a subpoena compelling her attendance, which included a duces tecum to bring her daughter A.F. The State asserted it could establish through witnesses that wrongdoing by Fernandez led to Flores’s nonappearance. The State argued that Fernandez should forfeit his right to object to the admissibility of prior statements by Flores so he could not benefit from his alleged wrongdoing.
• Defense counsel suggested that the State could request a writ of attachment to address Flores’s absence. The trial court acknowledged having earlier signed a writ of attachment as requested by the State. Defense counsel objected to the prolonged delay caused by the proposed hearing given that the State had earlier announced ready for trial. The trial court asked whether defense counsel thought that the State had witnesses ready for trial. Counsel responded that he knew there was a possibility that Flores would not cooperate because she had expressed to him her not wanting to go through with the case and was afraid to appear because she had given a false statement to the police about the events in question.
• At the hearing, the State called a DA employee assigned to victims’ assistance and others to establish that Fernandez engaged in conduct designed to cause Flores to not be present for trial. The victim assistance witness testified that Flores had 5-10 contacts with her over many months and had described ongoing incidents of abuse against her, but at times recanted allegations of abuse. The witness described that she received an email purportedly from Flores but with Fernandez’s email stating that she wanted the charges dropped since she was back with Fernandez and they were doing great. Later, when Flores came into her office, she denied sending the email and said it had been sent by Fernandez. The witness testified that Flores signed an affidavit attesting that she had not sent the email. The last contact with Flores 11 months prior.
• During the hearing, when the trial court asked defense counsel if he objected to admitting the copy of the writ of attachment that had been issued (State’s Exhibit 2), counsel expressed his concern at how the writ had been signed by the court without counsel’s knowledge and outside his presence, but he sought no ruling from the court nor lodged an objection for the hearing but stated he will have an objection later.
• The trial court denied the State’s request for forfeiture based on insufficient evidence to show conduct by defendant designed to keep the complainant from appearing, but recessed the case until the next morning to give the State time to attach Flores per the writ.
• The next morning, the defense announced ready but the State did not, requesting a 3-day continuance to locate Flores and A.F. Defense counsel objected, but the trial court, noting concern about jeopardy attaching if it declared a mistrial, granted the recess.
• 3 days later, the defense announced ready for trial, but the State announced it would again need a continuance for more time to locate Flores and A.F. A detective appeared to inform the court that El Paso PD had just then found Flores and A.F. at a hotel. The court excused the detective to allow him to proceed with the writ of attachment. Defense counsel renewed his concern about the trial court’s issuance of the writ of attachment and objected that proper procedures under Art. 24.12 were not followed because the State should have articulated on the record grounds for its motion for writ of attachment and sufficient information about the expected testimony to show materiality. The State asserted that Fernandez had no standing to contest or question any subpoena issued by the State for its witnesses or for a writ of attachment. The trial court overruled defense counsel’s objection to the issuance of the writ.
• The State informed the court that Flores expressed anger at being brought to court and claimed that the allegations against Fernandez were based on lies she had made up.
• The State indicated that A.F.—who was 13—had divulged that her mother and Fernandez had been trying to keep her and her mother hidden so that they would not be available to testify and her mother asked her to lie if called as a witness. The State also disclosed that A.F. described a series of bad acts committed by Fernandez against her and her mother. The State acknowledged that neither side was previously aware of the alleged incidents. Defense counsel responded that the timing of any disclosures would be “unbelievably disadvantageous” because it caught him by “utter surprise” and would not give him opportunity to prepare a defense.
• Defense counsel requested a continuance, which the trial court denied based on the impact of the continuance on the “victims.”
• The trial court brought A.F. to the witness stand to give both sides an opportunity to determine how she might testify by examining her outside the presence of the jury.
• A.F. testified about how Flores, Fernandez, and two of Fernandez’s children, conspired to keep A.F. and Flores hidden so they could not be brought to court, believing that “if they don’t find us until Friday, this case is going to be dropped.” Flores told A.F. to lie and not say anything about the allegations against Fernandez. After testifying about her knowledge of Fernandez’s charged offenses, A.F. testified about numerous bad acts committed by Fernandez against her mother, and defense counsel cross-examined her.
• The trial court recessed for the weekend, but excused a juror for medical reasons without objections, and replaced that juror with the alternate who was sworn with the other jurors.
• Pending the resumption of trial, the trial court detained Flores in the County Jail per the writ of attachment and allowed A.F. to leave with Flores’s sister.
• When trial began, Juror Garcia expressed that he was feeling a “little sick.” The trial court retired the jury. The trial court stated on the record that Garcia said he had gotten lightheaded and felt like he was going to faint. When the trial court asked Garcia if he wanted to go home, Garcia said that he did not. After another recess, the trial court stated that the court staff made a call to EMS to check on Garcia’s vitals because he was not feeling better. After yet another recess, the trial court stated that Garcia felt “shaky, nervousness and wanting to faint.” The trial court informed Garcia would be excused as disabled. Garcia could not drive himself from the courthouse.
• Defense counsel objected to only 11 jurors and requested a mistrial because he believed that not less than 12 jurors can render and return a verdict in a felony case, citing Art. 36.29. The trial court overruled the objection.
• Flores testified that she and Fernandez had “ups and downs” and that her history of mental health issues of bipolar and had post-traumatic stress disorder, anxiety, and depression caused the problems. Flores claimed that she made a false police report after getting drunk, and lied about Fernandez hitting her with an iron, which led to Fernandez’s arrest. Flores claimed that she did not come to court because A.F. was sick and had cramps and that she and A.F. got a hotel room “because I wanted to.”
• A.F. testified that they stayed in the hotel because her mother was trying to avoid being tracked down and brought to court. Fernandez initially treated her mother well, but Fernandez changed and became abusive to her mother. A.F. also heard Fernandez threaten to kill her mother multiple times during fights. A.F. said that on the day the alleged offense occurred, her mother called her and said, “[Fernandez] beat me and he hit me with an iron. I’m at my friend’s house and I need someone to come pick me up right now.”
• A.F. hung up and told her grandmother about the call. Later that same evening, A.F. testified that her uncle Pat came to her grandmother’s home, but she was excluded from their conversation and had no further contact that day from her mother.
• Patrick, Flores’s brother, also testified that Flores told him, “He beat me. He hit me with an iron.”
• Fernandez admitted a copy of a 911 call he made that day in which he claimed that Flores had stolen his vehicle and phone about 40 minutes prior to him calling 911. The two had gotten into an argument he reported that neither had struck the other.
• The jury convicted Fernandez of both counts as charged.
• Fernandez pleaded true to felony enhancements alleged in the indictment, so he was subject to first-degree felony punishment range for the aggravated-assault count and to second-degree felony punishment range for the family-violence count per Tex. Penal Code §§ 12.42(a), (b); 22.01(a)(1), (b)(2)(A); 22.02(a)(2), (b).
• A.F. and Flores’s sister testified about how Fernandez threatened to rape and kill A.F., kept A.F. in fear, and kept Flores in an isolated, abusive situation.
• Flores acknowledged that she should have protected A.F., but always put Fernandez first. While she did not acknowledge having lied in the guilt phase, Flores testified that though she loved Fernandez, she was tired of hiding and going through pain caused by his abusive conduct.
• The jury sentenced Fernandez to 40 years for Aggravated Assault and 20 years for Assault family violence. The trial court sentenced and ordered the sentences to run concurrently.

The ex parte communication did not violate due process

• To determine whether a violation of the Code of Judicial Conduct is reversible error, a court examines the entire record to determine whether the trial judge engaged in impropriety that was harmful. 
• Under Tex. Code Jud. Conduct Canon 3(B)(8), a judge “shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex partecommunications or other communications made to the judge outside the presence of the parties between the judge and a party, an attorney…or any…court appointee concerning the merits of a pending or impending judicial proceeding. A judge shall require compliance by court personnel subject to the judge’s direction and control. This does not prohibit communications concerning uncontested procedural matters.
• The purpose of prohibiting ex partecommunications is to ensure all legally interested parties are given their full right to be heard under the law and to ensure equal treatment of all parties. 
• Under Wesbrook v. State, 29 S.W.3d 103, 121 (Tex.Crim.App. 2000), mere violations of the Code of Judicial Conduct alone are not reversible error, and even unethical conduct is not necessarily grounds for reversal. The Code is designed to provide guidance to judges and a structure for regulating conduct through the State Commission on Judicial Conduct. For reversal, there must be judicial impropriety plus probable prejudice to the complaining party plus rendition of an improper verdict. For complaints regarding ex partecommunications, no prejudice is shown if the appellant fails to point to record support showing that the communications influenced the court’s decision-making. 
• Even if an improper ex partecommunication occurred, Fernandez cannot show judicial impropriety plus probable prejudice to the complaining party plus rendition of an improper verdict.  Fernandez did not show how his lack of presence at the time of the alleged communication regarding the noncompliance of a complaining witness in responding to a subpoena had caused prejudicial harm or how his presence would have made a difference in the trial court’s ruling. 

The trial court did not err in granting the writ of attachment, and Fernandez has no standing to complain

• Under Tex. Code Crim. Proc. Arts. 24.11 & 24.12, an attachment is a writ issued by the clerk in a criminal action commanding a peace officer to bring the witness to court to testify for either the State or the defendant. When a witness resides in the county of prosecution has been duly served with a subpoena to appear and testify in any criminal action or proceeding fails to appear, the requesting party may request that the court issue an attachment for the witness. The request must be filed with the clerk and must include an affidavit of the requesting party stating that the affiant has good reason to believe and does believe that the witness is a material witness.
• Under Tex. Code Crim. Proc. Art. 24.011(a), (b-1), if issuance of an attachment is requested for a witness younger than 18, the request must include the applicable affidavit from the requesting party described by Art. 24.12. 
• The court shall appoint an attorney to represent the witness at the hearing under subsection (b), to include representing the witness at a hearing conducted outside the presence of the witness. Tex. Code Crim. Proc. Art. 24.111(d).
• Under Tex. Code Crim. Proc. Art. 38.23(a) and Wilson v. State, 311 S.W.3d 452, 459 (Tex.Crim.App. 2010), no evidence obtained by an officer or other person in violation of the laws or Constitutions of Texas or the United States shall be admitted in evidence against the accused. This protects a person’s privacy, property, and liberty rights against overzealous law enforcement. 
• Under Chavez v. State, 9 S.W.3d 817, 819 (Tex.Crim.App. 2000), the right to complain about an illegal search and seizure is a privilege personal to the injured party and is not available to others. This includes complaints about Tex. Code Crim. Proc. Art. 38.23(a).

Fernandez received reasonable notice of the extraneous offenses

• Under Tex. Rule Evid. 404(b) and Hernandez v. State, 176 S.W.3d 821, 822 (Tex.Crim.App. 2005), extraneous-offense evidence may be admissible for limited, noncharacter conformity purposes provided that upon timely request by the defendant, the State gives reasonable notice before trial of its intent to use such evidence during its case-in-chief. The admission of extraneous offenses when the State failed to provide reasonable notice is nonconstitutional error, reversable only if it affected the defendant’s substantial rights per Tex. Rule App. Proc.44.2(b). To determine harm, a court must analyze whether and how the notice deficiency affected the defendant’s ability to prepare for the evidence. To determine this, a court looks at whether the defendant was surprised by the substance of the testimony and if it affected his ability to prepare cross-examination or to mitigate against the evidence. A defendant may demonstrate surprise by showing how his defense strategy might have been different had the State notified him that it intended to offer the extraneous-offense evidence. Error in admitting the evidence does not have an injurious effect on the verdict if the defendant was not surprised by its admission. If the trial court allows a continuance or recess to mitigate unreasonable notice, it can be harmless where the defendant fails to request additional time to address it or object based on having a potentially different strategy foreclosed by an already undertaken one. 
• Even assuming that the State’s notice of intent was unreasonable, its admission was harmless because once the State informed Fernandez of its intent to introduce extraneous-offense evidence that it had newly gained knowledge from A.F., Fernandez objected because the timing of the disclosure was disadvantageous, caught him by surprise, and would not give him adequate opportunity to prepare a defense against the evidence. The trial court brought A.F. into the courtroom so that both sides had the opportunity to explore the content of her potential testimony. The court afforded Fernandez recess until Monday. When trial resumed and A.F. took the stand, Fernandez neither requested additional time to prepare a defense to the extraneous offenses nor made an objection that his defensive theory was hamstrung.

The trial court did not abuse his discretion in finding that Juror Garcia was disabled under Art. 36.29

• Under Tex. Code Crim. Proc. Art. 36.29(a), and Scales v. State, 380 S.W.3d 780, 784 (Tex.Crim.App. 2012), not less than 12 jurors can render a verdict in a felony case. However, 11 jurors may render the verdict where—after the trial of any felony case begins and before the charge of the court is read to the jury—the trial court determines that a juror has become disabled from sitting—and in such case, the verdict shall be signed by every member of the jury. A disabled juror is one who suffers from a physical illness, mental condition, or emotional state that would hinder the juror from performing duties as a juror or the juror was suffering from a condition that inhibited him from fully and fairly performing the functions of a juror. The determination of a juror’s disability is reviewed for an abuse of discretion.  The trial court is the sole factfinder and judge of the credibility of the evidence. Although the record must show the basis of the trial court’s reason, there is no requirement that the disabled juror testify regarding the disability. The burden is on the complaining party to develop a sufficient record to show the nature of the error on appeal regarding a ruling on juror disability. 
• Fernandez did not ask for a hearing to elicit live testimony from any witnesses and did not object on that basis even when given the opportunity to do so after he was interrupted by the court.
• Before excusing Juror Garcia for being disabled, the trial court informed the parties of Garcia’s condition: (1) Garcia said he was lightheaded and felt like he was going to faint; (2) EMS was called upon to check his vitals; (3) although he did not want to leave, he felt shaky and faint; (4) he did not feel better after eating and having his vitals checked; and (5) he was in such an ill state that he did not feel he could drive himself from the courthouse. The trial court acted within its discretion to determine that Garcia was disabled due to a physical illness that would inhibit him from fully and fairly performing the functions of a juror. 
• The conviction and sentence are affirmed.

Editor’s note: A judge should not issue a writ of attachment without defense counsel knowing about it. What’s next, rulings on the State’s motion in limine without defense counsel present? Still, I save complaints about judicial misconduct for when it may make a difference. I decide whether my presence would have made a difference. Here, the writ of attachment would have issued even if trial counsel was given notice. If a witness disobeys a subpoena, a writ of attachment should issue once it is determined that the testimony is material, and this witness’s testimony was material. It does not make such behavior less irritating, and fortunately, most judges do not allow ex parte communications like this. Pick your battles carefully.

Harrison v. State, No. 14-18-00372-CR, 2020 Tex.App.-LEXIS 728 (Tex.App.-Houston [14th Dist.] Jan. 28, 2020) (designated for publication) (Injury to a Child, Williamson Co.) [Standard of review for MNT; McCoy v. Louisiana and requirement to inform the defendant of facts that go to the decision to plead or withdraw a guilty plea]

• If an attorney withholds information from the client relevant to the client’s decision to withdraw her plea and maintain her innocence, the attorney is ineffective. The likelihood of a better outcome from a waived or forfeited proceeding is not the correct prejudice standard because one cannot accord any presumption of reliability on judicial proceedings that never took place. The proper remedy is to give the defendant an opportunity to reject her plea agreement and opt for a jury trial.
• Under Burch v. State, 541 S.W.3d 816, 820 (Tex.Crim.App. 2017), review of the denial of a MNT is for an abuse of discretion and is reversed only if no reasonable view of the record could support the trial court’s ruling.  Evidence is viewed in the light most favorable to the trial court’s ruling and the trial court’s ruling must be upheld if it is within the zone of reasonable disagreement, which occurs when there are two reasonable views of the evidence. 
• Under Strickland v. Washington, 466 U.S. 668, 684-686 (1984), the Sixth Amendment guarantees a defendant the right to effective assistance of counsel. A defendant must prove by a preponderance of an evidence that: (1) trial counsel’s representation fell below an objective standard of reasonableness; and (2) prejudice. Trial counsel’s actions are presumed to have fallen within the wide range of reasonable and professional assistance. A defendant must overcome the presumption that under the circumstances, the challenged action might be considered sound trial strategy. 
• Under McCoy v. Louisiana, 138 S.Ct. 1500, 1508 (2018) and Turner v. State, 570 S.W.3d 250, 274 (Tex.Crim.App. 2018), some decisions belong to the defendant and are not a matter of trial strategy, including to plead guilty or waive the right to a jury trial. These are not strategic choices about how best to achieve a client’s objectives but are choices about what the client’s objectives are. The Sixth Amendment guarantees that a defendant has the right to insist that counsel refrain from admitting guilt even when counsel’s experienced-based view is that confessing guilt is in the defendant’s best interest.

Facts:

• While Appellant was working in her in-home daycare, a five-month-old baby stopped breathing. Appellant did not immediately call 911 and instead called an employee, who told her to call 911. Appellant called the other parents and asked them to pick up their children.
• When the employee arrived 10-15 minutes later, appellant still had not called 911. The employee insisted and appellant finally did. Appellant destroyed phone logs showing calls made and text messages sent before she called 911.
• Appellant pleaded no contest to injury to a child by omission and guilty to tampering with evidence. The trial judge initially said he would find appellant guilty of injury to a child. Defense counsel replied that deferred adjudication was available, so the judge did not make a finding of guilt and reset the case for sentencing.
• After appellant made her plea, Defense Counsel went to the judge’s chambers where the judge was with the court coordinator and asked the judge whether he wanted her to provide caselaw show that deferred adjudication was allowed. The judge replied, “A deferred on an injury to a child case where there’s a dead baby? I don’t think so.” Defense Counsel consulted with Cocounsel and they decided not to tell appellant about the comment.
• After sentencing, appellant retained new counsel and filed a MNT with a supporting affidavit stating that the possibility of deferred adjudication was the only she went to the judge for punishment.
• At the MNT-hearing presided over by a different judge, it was established that the comment was made. The trial judge admitted that his comment was “absolutely not appropriate” yet claimed it to be a “smart-aleck comment,” and that he did consider the full range of punishment. Cocounsel testified that Defense Counsel texted him after she heard the comment, “We’re fucked,” yet they did not tell appellant since the same judge “was still the best option” and it was better to go with “the devil you know than the devil you don’t.”
• The judge found the trial judge to be credible, believed that he considered the full range of punishment, and denied the MNT, finding that there was no IAC since the appellant failed to show that a favorable ruling on the MNT would have changed the outcome of the case.

The trial court abused its discretion in denying the MNT because her attorneys failed to advise her of the judge’s comment, thus depriving her of the right to ask to withdraw her plea, ask for a jury trial, or move to recuse the sentencing judge

• Under Burch v. State, 541 S.W.3d 816, 820 (Tex.Crim.App. 2017), review of the denial of a MNT is for an abuse of discretion and is reversed only if no reasonable view of the record could support the trial court’s ruling.  Evidence is viewed in the light most favorable to the trial court’s ruling and the trial court’s ruling must be upheld if it is within the zone of reasonable disagreement, which occurs when there are two reasonable views of the evidence. 
• Under Strickland v. Washington, 466 U.S. 668, 684-686 (1984), the Sixth Amendment guarantees a defendant the right to effective assistance of counsel. A defendant must prove by a preponderance of an evidence that: (1) trial counsel’s representation fell below an objective standard of reasonableness; and (2) prejudice. Trial counsel’s actions are presumed to have fallen within the wide range of reasonable and professional assistance. A defendant must overcome the presumption that under the circumstances, the challenged action might be considered sound trial strategy. 
• Under McCoy v. Louisiana, 138 S.Ct. 1500, 1508 (2018) and Turner v. State, 570 S.W.3d 250, 274 (Tex.Crim.App. 2018), some decisions belong to the defendant and are not a matter of trial strategy, including to plead guilty or waive the right to a jury trial. These are not strategic choices about how best to achieve a client’s objectives but are choices about what the client’s objectives are. The Sixth Amendment guarantees that a defendant has the right to insist that counsel refrain from admitting guilt even when counsel’s experienced-based view is that confessing guilt is in the defendant’s best interest.
• The record shows that counsel understood the seriousness of the judge’s comment and the impact that learning this information would have had on their client (telling cocounsel, “We’re fucked”). Counsel was aware that appellant likely would have changed her position had she known about the comment. The decision not to tell appellant about the judge’s statement was not a strategic choice.
• Appellant adequately preserved her IAC claim and defense counsel were deficient when they failed to tell appellant of the judge’s statement implicating his ability to consider the full range of punishment, thus depriving appellant of the opportunity to maintain her innocence.
• If an attorney withholds information from the client relevant to the client’s decision to withdraw her plea and maintain her innocence, the attorney is ineffective. The likelihood of a better outcome from a waived or forfeited proceeding is not the correct prejudice standard because one cannot accord any presumption of reliability on judicial proceedings that never took place. The proper remedy is to give the defendant an opportunity to reject her plea agreement and opt for a jury trial.
• The trial court abused its discretion in denying the MNT.

Editor’s note: How did the judge of the 368th Dist. Ct., Williamson Co. REALLY feel about this defendant?

TCDLA

Michael Mowla

Michael Mowla’s office is in Dallas. He is Board Certified in Criminal Appellate Law by the Texas Board of Legal Specialization. He represents clients at trial, on appeal, and on postconviction habeas corpus. He also handles complex state and federal civil litigation and appeals of civil cases. He may be contacted at 972-795-2401, , and https://www.mowlalaw.com.