May 2022 SDR – Voice for the Defense Vol. 51, No. 4

Voice for the Defense Volume 51, No. 4 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

All I wanna do is zoom-a-zoom zoom zoom and a . . . not be physically present for confrontation clause purposes poom poom. What I mean to convey is there’s a pretty excellent Zoom case in this edition and it’s important. Justice Kagan rejects the notion that time is a flat circle. Omissions are acts if acts are part of the omission. If you’re confused, you won’t find more answers by reading this, but you should do it anyway!

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

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

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

Kyle Therrian

United States Supreme Court

Wooden v. United States, 142 S. Ct. 1063 (2022)

Issue & Answer. The Armed Career Criminal Act (ACCA) enhances a defendant’s minimum sentence when that defendant has three prior violent offenses “committed on occasions different from one another.” Does “occasions different from on another” mean anything separated by any amount of time no matter how small? No.  

Facts. In a single evening, the defendant burglarized ten units in a single storage facility. He pleaded guilty and was convicted on ten criminal counts. 20 years later, in the instant case, a federal court determined those convictions were sufficient to subject him to the Armed Career Criminal Act (ACCA) mandating a 15-year minimum sentence on his unlawful possession of a firearm charge. His sentence was 13 years longer than it would have been without the enhancement. The ACCA is triggered by three prior violent felonies “committed on occasions different from one another” and the district court reasoned that entry into each unit constituted a distinct commission of a separate offense on separate occasions despite the burglaries occurring in the course of a single crime spree, under a single roof, and were charged in a single indictment.  

Analysis. The ACCA is triggered by three prior violent felonies “committed on occasions different from one another.” The trial court accepted the Government’s erroneously strict temporal definition of “occasion” as meaning incidents occurring one after another. An “occasion” is essentially an episode or event. An ordinary person would describe his conduct this way: “on one occasion, Wooden burglarized ten units in a storage facility.” They wouldn’t say “On ten occasions, Wooden burglarized a unit in the facility.” Here the legislature placed two conditions on the applicability of the ACCA: (1) different offenses, and (2) different occasions. The commission of multiple offenses can almost always be separated by at least a small moment in time. If every time someone commits more than one offense it also constituted more than one occasion, it would render these two distinct requirements under the ACCA meaningless. Proximity and timing do matter, but not in the strictly technical sense that the Government would have it. This interpretation is consistent with the legislative history, as well. Congress specifically amended the ACCA to exclude the use of multiple convictions in a single criminal episode. The design and focus of the statute are aimed at the career criminals, not criminals who happen to commit multiple offenses on the same night. 

Concurrence (Sotomayor, J.) Justice Gorsuch might be right that the record is unclear, but clarity in the record cuts against the Government. Justice Gorsuch is correct to apply the rule of lenity as an independent basis for ruling in favor of the defendant.

Concurrence (Kavanaugh, J.) Addressing Justice Gorsuch’s lenity argument, the rule should only apply when a criminal statute is “grievously ambiguous.” It is only applied after all other rules of interpretation fail. To presume mens rea where the legislature has stated none is a better approach.

Concurrence (Barret, J.) The majority opinion’s historical analysis of the ACCA is incorrect.

Concurrence (Gorsuch, J.) The majority’s multi-factor approach to considering proximity, timing, and intertwining of offenses lends little help for future cases.  The rule of lenity offers more guidance. “If the law inflicting punishment does not speak plainly to the defendants conduct, liberty must prevail.” Judges should not expand penal laws to “cover problems Congress failed to anticipate in clear terms.”

Comment. Okay, here is another quote which was not necessary to a summary of the case, but which I loved:

The occasion of a wedding, for example, often includes a ceremony, cocktail hour, dinner, and dancing. Those doings are proximate in time and place, and have a shared theme (celebrating the happy couple); their connections are, indeed, what makes them part of a single event. But they do not occur at the same moment: The newlyweds would surely take offense if a guest organized a conga line in the middle of their vows. That is because an occasion may—and the hypothesized one does—encompass a number of non-simultaneous activities; it need not be confined to a single one.

Fifth Circuit

United States v. Sheperd, 27 F.4th 1075 (5th Cir. 2022)

Issue & Answer. The defendant’s lawyer represented the Government’s star witness when that witness debriefed and provided assistance to the Government detrimental to the defendant. The Government was aware of this conflict, but the lawyers on both sides disregarded. Does this constitute a scenario requiring dismissal for denial of conflict-free counsel under the Sixth Amendment? Maybe.

Facts. The Government accused the defendant of Medicare fraud. The lawyer who represented her until days before trial also represented the Government’s star witness. During his representation of defendant, defendant’s lawyer represented another client at a debrief with the FBI and prosecutor. Attorney’s other client would ultimately provide useful information about the defendant and serve as a witness the Government intended to sponsor at defendant’s trial. Notwithstanding all lawyers recognizing the conflict, the debrief went forward. During the next several months the Government added six more counts of healthcare fraud while the lawyers continued to keep the conflict-infected debrief secret from the defendant. Months before trial, defendant’s attorney secured a replacement attorney on account of the conflict. The replacement attorney asked for more time to prepare, and the parties explained the situation to the trial court. The trial court proceeded as planned but excluded the testimony of the conflicted witness. However, the trial court declined to dismiss the case on defendant’s motion raising Sixth Amendment violations. The jury convicted and the judge sentenced the defendant to 30 years in prison.

Analysis. The right to counsel is one of the most important rights afforded a criminal defendant.

One of the most indispensable duties that any counsel owes his client is the duty of loyalty. Counsel breaches that duty when he labors under an actual conflict of interest. And if he breaches the bedrock duty of loyalty, then his representation will fall below the objective standard of reasonableness that the Constitution requires.

In cases where a defendant can show her counsel had a conflict of interest there exists a limited presumption of prejudice where a reviewing court will reverse if the defendant can show that the conflict adversely affected counsel’s performance (as opposed to a probability that it affected the outcome). An attorney’s performance is affected if his judgment was “fettered by concern over the effect of certain trial decisions on other clients.” There is a possibility that the attorney could have persuaded defendant to proceed to trial in order to benefit the conflicted witness. But this record is not sufficiently developed for the court to reach such a conclusion. Therefore, the case must be remanded for further hearing. 

Comment. I don’t mess with representing federal co-defendants if they know each other. Inevitably, one of your client’s names will come out of the other client’s mouth with the intent to reduce a sentence. Probably no conflict exists until something like that occurs, and as long as both clients know of the potential for conflict and sign off on it. A common situation where a lawyer might do something like this is in representing two people arrested in a car with weed in it. Except, in a federal case, there are Title III wiretaps, GPS tracking, search warrants on search warrants, confidential informants, undercover federal agents, probably a lot more money you have to refund after a potential conflict becomes a real one, and a federal judge who will not be so happy about your last-minute motion to withdraw. So, again, I wouldn’t represent federal co-defendants except in limited circumstances.

Texas Court of Criminal Appeals

Garcia v. State, No. PD-0025-21 (Tex. Crim. App. 2022)

Issue & Answer. A restitution order can rest on a faulty legal basis or can lack evidentiary support. It is well established that an objection is required to complain about a faulty legal basis on appeal. Is an objection required to complain about lack of evidentiary support, as well? Yes.

Facts. A jury convicted defendant of aggravated sexual assault. Evidence showed that the Bell County District Attorney paid for a sexual assault exam and was reimbursed by the Attorney General. At the conclusion of defendant’s punishment hearing, the trial court ordered $1,000 restitution payable to the Attorney General. Trial counsel did not object, however the court of appeals found the record to lack evidentiary sufficiency to support the conclusion that the $1,000 restitution would “compensate a victim for loss or injury.”

Analysis. In Idowu v. State the court “drew a distinction between challenges to the factual basis of restitution orders and those that challenge the propriety of such orders; challenges to ‘the appropriateness of (as opposed to the factual basis for) a trial court’s restitution order’ must be explicitly raised in the trial court.” Idowu did not address whether a sufficiency challenge requires error preservation through an objection raised in the trial court. The court of appeals’ reliance on this distinction as permission to review an unpreserved error was incorrect. A complaint about the evidence supporting a restitution order is a due process complaint, and due process complaints can be forfeited by a failure to object. Moreover, the “distinction between factual basis and appropriateness is unclear, we should not rely on it to decide whether challenges to restitution orders must be preserved in the trial court.”

Dissent (Yeary, J.). “I would remand the case to the court of appeals to address the procedural default question in the first instance.”

Comment. The court distinguishes this scenario from assessment of court-appointed attorney fees which requires no objection if assessed without a finding of the defendant’s ability to pay. The Code of Criminal Procedure imposes an affirmative duty on the trial court in the context of court-appointed attorney fees. The Restitution statute has no such affirmative duty, rather it imposes an obligation to consider factors. In my opinion, if both tasks require factual findings, they are not that dissimilar.

Swinney v. State, No. PD-0216-21 (Tex. Crim. App. 2022)

Issue & Answer. A defendant receives ineffective assistance of counsel when his attorney incorrectly advises him that he is eligible for probation from the trial court. But in order to obtain reversal, an appellate court must find prejudice. Does prejudice require a showing that the defendant would have received probation had his attorney given him correct advice? No.

Facts. A jury convicted defendant of aggravated assault with a deadly weapon. Before trial he filed an election for trial court punishment as opposed to jury punishment. In argument, counsel argued for probation. The trial court questioned its ability to grant probation. Counsel insisted defendant was statutorily eligible. He was not. A jury could have granted probation under appropriate circumstances, but the trial court could not. The court of appeals affirmed the defendant’s sentence citing his inability to show that he would have received a better result had he requested probation from a jury.

Analysis. “A successful IAC [ineffective assistance of counsel] claim depends on (1) deficient performance and (2) prejudice. Prejudice may be measured in one of two ways: a reasonable probability of a different outcome or a reasonable probability of a different decision by the defendant.” If the deficient performance pertains to a guilty verdict, prejudice is evaluated by looking to the potential for having achieved a not guilty verdict. If the deficient performance pertains to punishment, prejudice is evaluated by looking to the potential for having achieved a better result. “But if the deficient performance might have caused the defendant to waive a proceeding he was otherwise entitled to, then the reasonable probability that the deficient performance caused the waiver fulfills the prejudice requirement.” The different-outcome analysis is somewhat relevant to deciding whether the defendant would have made a different decision, but it is not the proper analysis for deciding prejudice arising from erroneous probation eligibility advice. Ultimately, the record says nothing about the impact of the attorney’s erroneous advice and some evidence suggested a viable strategy of electing the trial court for punishment. Thus, the defendant failed to show he would have made a different decision had he been properly advised.

Comment. I think the failure to properly advise on probation eligibility should be evaluated at a near-per-se-prejudice level. I’m not aware of many instances in practice where a client says, “let’s go the non-probation route in punishment.”

Ratliff v. State, No. PD-0545-20 (Tex. Crim. App. 2022)

Issue & Answer 1. A person commits the offense of tampering with a governmental record when that person makes, presents, or uses the record with knowledge of its falsity. When an officer enters into a person’s home in clear violation of the Fourth Amendment, but omits this fact from an offense report intentionally, has the drafting officer committed the offense of tampering with a governmental record? No.

Issue & Answer 2. An officer commits the offense of official oppression when the officer intentionally subjects another to mistreatment or unlawful arrest or intentionally denies or impedes another in the exercise or enjoyment of any right. To justify an otherwise illegal entry into a home (and thus defend an official oppression case), can an officer rely on hot pursuit when he was not actively pursuing the arrestee? No.

Facts. Defendant was the Llano chief of police. He was one of three responding officers when an angry officer (“Angry Officer”) attempted to arrest his neighbor (“Neighbor”) for public intoxication after Neighbor told Angry Officer to slow down while driving in the RV park. 20 minutes after this interaction, the defendant and two other officers arrive to help Angry Officer conduct a public intoxication arrest. But at this point Neighbor had already gone back inside of his RV. The officers demanded defendant come outside, but Neighbor adamantly refused. As reflected on a bodycam recording, he not only refused, but did so on 13 occasions.

00:11-00:13: “The best thing I can tell you is get off my door.”
00:23-00:24: “I am not stepping out.”
00:26-00:27: “You are not coming in.”
00:28-00:34: “This is my personal owned property. I am not. And I am not.”
00:56-00:56: “No sir.” (In response to ‘step outside’)
01:24-01:25: “Get your hands off my door.”
01:29-01:33: “Get your hands off my door. This is my property.”
01:35-01:36: “Take your hands off.”
01:40-01:42: “Take your hands off of my door.”
01:49-01:51: “Take your hands off my door.”
01:55-01:56: “Please take your.”
04:11-04:13: “Why am I stepping out of my.”
04:24-04:25: “For what.” (In response to ‘come down those steps’)
09:31-09:34: “Are you coming in for what reason?”
10:48-10:50: “I don’t wanna walk outside.”

Angry Officer attempted to get Neighbor out of his RV by threatening him. He threatened to call his supervisor, threatened to forcibly remove him, and threatened resisting arrest charges. Another officer pointed a taser at Neighbor’s crotch and threatened to electrocute him. The defendant eventually showed up, entered Neighbor’s trailer, positioned himself behind Neighbor, and directed Neighbor outside in handcuffs. Angry Officer prepared an offense report detailing the accusation of Neighbor’s intoxication. The report did not make any suggestion that officers did something improper or reference the additional non-officer witnesses at the scene. Defendant signed off on the offense report. 

Analysis 1. The State’s witnesses detail the importance of an offense report and the need for a comprehensive description of events and witnesses. The report at issue did neither of these things. “At most, the State’s witness testimony supports the proposition that these witnesses disagree with [the reporting officer’s] reporting style.” Though the report omits important information, nothing contained in the report is false. An omission can serve as the actus reus for an offense only when the defendant has the legal duty to act. Here, there is no statute which dictates the contents of an offense report.

Analysis 2. Exigent circumstances arise from the need to (1) provide aid, (2) protect officers from a person who is presently armed and dangerous, or (3) prevent the destruction of evidence or contraband. Hot pursuit would also justify warrantless entry into a home. Here the closest justification was hot pursuit. But hot pursuit was not established. First, hot pursuit requires a pursuit of a felony offense. This was a Class C misdemeanor. Second, the pursuit must be continuous. Here the continuity of pursuit was broken when Angry Officer chose to go work on a different case before returning to the resolve the instant offense. 

Concurrence / Dissent (Keller, J.). The Code of Criminal Procedure permits an officer to arrest for offenses viewed in his presence. There was some indication in the record that Angry Officer re-engaged with Neighbor after tending to whatever emergency required him to initially disregard Neighbor’s purported intoxication upon his initial contact. This is when Neighbor fled into his home. The defendant had no reason to conclude that hot pursuit was not an available justification in the case of a Class C misdemeanor. This is the first the Court has stated this.

Comment. It is a slippery slope to hold officers criminally accountable for offense report omissions, and lawyer-like understandings of Fourth Amendment law. I agree with a lot of what Judge Keller is saying. But her rationale relies on the theory that the hot pursuit occurred when Angry Officer re-engaged with Neighbor after the first break in continuity. It probably did. But the problem is that this rationale points to some evidence in the record supporting innocence as a basis for finding evidence insufficient. This isn’t the standard. It’s any evidence in the record supporting the conviction, and a jury was free to disregard the witness testimony supporting Judge Keller’s rationale.

Ex parte Dotson, No. WR-74,562-02 (Tex. Crim. App. 2022)

Issue & Answer. Was appellate counsel ineffective for failing to raise an illegal sentence claim based on the improper use of enhancements? Yes.

Facts. The facts are as stated in Judge Slaughter’s dissent as it is the only opinion providing background. In 2009 a jury convicted the defendant for a state-jail felony offense of possession of less than a gram of cocaine. The defendant pled true to two prior felony enhancements which raised his offense level to a second degree. He was sentenced to 18 years in prison. One of the enhancements to which defendant pled true was a state jail felony and thus not a valid prior felony enhancement. Defendant’s appellate counsel did not raise this on direct appeal. 12 years later defendant amended a pending writ of habeas corpus to incorporate this new ineffective assistance of appellate counsel claim.

Dissent (Keller, J.). This case should be decided on Lockhart v. Fretwell, 506 U.S. 364 (1993). In Fretwell the Supreme Court reversed a court of appeals decision holding that an error judged by a previous statute in effect at the time of trial is reversible notwithstanding its subsequent repeal. The Supreme Court indicated the analysis should focus on whether the proceeding was fundamentally unfair or unreliable, and not on the outcome. Here there was no fundamental unfairness because applicant’s actual criminal history supports his enhancement. Moreover, on resentencing, the exact same punishment range will be available to the State using a different enhancement.

Dissent (Slaughter, J.). “In his application, Applicant candidly acknowledges that he had other prior felony convictions that could have supported enhancement . . .” This precludes him from relief under Ex parte Parrott, 396 S.W.3d 531 (Tex. Crim. App. 2013). A habeas applicant cannot establish harm from improper enhancement if his enhanced punishment range was otherwise supported by criminal history. Applicant focuses on ineffective assistance of appellate counsel and not ineffective assistance of trial counsel for this reason—had trial counsel objected, the State would have substituted a proper conviction. At the time of Applicant’s direct appeal there was a lack of clarity in the law as to whether an improper enhancement appeal was meritorious without a trial objection. The failure to raise a murky issue is not ineffective assistance of appellate counsel. Also, this application should be barred by laches.

Comment. I wish the court’s opinion provided some analysis. They don’t typically in routine habeas appeals. Judges Slaughter and Keller are making good points. There must be a counterargument if a five-judge majority felt differently.

Gutierrez v. State, No. AP-77,102 (Tex. Crim. App. 2022)

Issue & Answer. A federal district court declared Texas’s post-conviction DNA testing statute unconstitutional for failing to provide a mechanism to vindicate an erroneous death sentence which stands on an otherwise good conviction. Does the constitutional invalidation of the DNA testing statute eliminate post-conviction jurisdiction of the sentencing court such that inmates may no longer bring post-conviction DNA testing motions? No.

Facts. The State is seeking to kill the defendant, and the defendant is seeking to test various items for DNA. He requires DNA testing to explore his theory that the victim’s nephew was the true perpetrator of the offense. The Court of Criminal Appeals has twice previously affirmed a trial court’s finding that the defendant cannot establish a likelihood of having avoided conviction with the benefit of favorable test results.  Defendant filed a civil rights lawsuit in federal district court and obtained a ruling in his favor. The federal district court declared Texas’s procedural requirements for post-conviction DNA testing unconstitutional for failing to provide a mechanism for DNA testing to prove oneself “innocent of the death penalty.” Defendant subsequently filed his third motion for post-conviction DNA testing in a state district court. That court dismissed defendant’s motion and claimed it no longer had jurisdiction in light of the federal invalidation of the relevant statute.  

Analysis. The federal district court did not invalidate what the statute validly authorizes: motions to attack a conviction. The federal district court opinion is not final because it is now pending in the Fifth Circuit. Moreover, the decisions of federal district and circuit courts are not binding authority on Texas state courts. “The trial court in this case was not divested of its jurisdiction to entertain and resolve Appellant’s third motion for post-conviction DNA testing by the federal district court’s opinion.”

Comment. The Court’s opinion puts “innocent of the death penalty” in quotes throughout. They don’t define the concept or explain why. I wasn’t sure whether the Court meant to convey a belief that the concept is silly, that the phrasing is silly, or that it is an elsewhere-defined concept. So, I researched. It means that “no reasonable juror would have found [the defendant] eligible for the death penalty under applicable state law.”  Sawyer v. Whitley, 505 U.S. 333, 336 (1992).

Alcoser v. State, No. PD-0166-20 (Tex. Crim. App. 2022)

Issue & Answer. This case involved a multi-count jury trial with 13 unobjected-to jury charge errors. Only a few affected the jury’s consideration of the State’s allegation that the defendant committed assault family violence. Where errors are the type where a defendant might have derived some benefit had they not existed, has a defendant shown sufficient harm to secure a reversal? No.

Facts. Defendant and complainant were in a verbal altercation. Complainant testified that she confronted the defendant when he began gathering his clothing and while he was attempting to leave the house. According to the complainant, defendant grabbed her by her face, pushed her to the ground, put his hands on her throat, and choked her. After a break in the assault, complainant attempted to call 911 but Appellant took her phone and broke it. Appellant then chased her around the house with a bat and threatened to kill her. Eventually she got away with one of her children; the other child ran to the neighbor’s house to ask for help. Appellant claims to have acted in self-defense because the complainant attacked him. A jury convicted defendant of family violence (enhanced with prior conviction), endangering a child, and interference with emergency request for assistance. On appeal, defendant claimed that an array of erroneous jury charges caused him egregious harm (standard for reversing unobjected-to jury charge error). The court of appeals found defendant was “egregiously harmed by the cumulative errors.”

Analysis. The jury charge contained 13 errors ranging from improper definitions of culpable mental states to misplacement of the self-defense instruction and omission of abstract paragraphs and definitions. The State concedes the Court of Appeals correctly reversed defendant’s convictions for endangering a child and interference with emergency request for assistance. The remaining analysis is focused on the errors which affected the family violence charge: an incorrect definition of “knowingly,” the placement of the self-defense instructions, the self-defense application paragraph, and the omission of the presumption of reasonableness instruction (home defense). The erroneous definition of “knowingly” was harmless. Defendant admitted that he acted knowingly when he defended his case by self-defense. The misplacement of the self-defense instruction was harmless. Though its placement made it applicable to the offense of interference with emergency request for assistance, the language of the self-defense instruction made it applicable to assault. The omission of a self-defense application paragraph and appropriate presumption of reasonableness are more nuanced issues to which the court must apply the multi-factor egregious harm test for unobjected-to jury charge set forth in Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984). Here, under the Almanza analysis, there was not egregious harm. The state of the evidence suggested that the State’s case was not necessarily strong enough to likely overcome a presumption of reasonableness. However, the arguments of counsel did not focus on whether defendant’s use of force was reasonable or necessary. The arguments were a traditional he-said-she-said juxtaposition. This was sufficient to overcome any likelihood of acquittal which may have flowed from the appropriate instruction.

Concurrence (Yeary, J.). The court of appeals shouldn’t be pointing out things a trial court did wrong when they weren’t pointed out by the parties. The court of appeals shouldn’t have cumulated the jury charge error and applied it to all offenses. Instead, each error should have been carefully assigned to the offense to which it applied.

Comment. Almanza is a four-factor test: (1) the entirety of the jury charge, (2) the state of the evidence, (3) arguments of counsel, and (4) other stuff. The court acknowledges this jury charge is a mess and that the state of the evidence was such that a correct jury charge would have put the defendant in a better position. The only factor militating against reversal was the fact that the attorneys didn’t really argue about whether the defendant was acting reasonably. This is an example of why factor tests aren’t that helpful. They provide a nice way to format a brief, but they don’t tell you who wins.

Patterson v. State, No. PD-0322-21 (Tex. Crim. App. 2022)

Issue & Answer. Does a warrant sufficiently describe the place to be searched when the warrant only describes a fraternity house but the incorporated affidavit describes the room inside the fraternity house officers wish to search? Yes.

Facts. Police received multiple calls regarding a drug overdose at the Texas A&M Sigma Nu fraternity house. Upon arrival and discovery of a deceased fraternity member, the police treated the fraternity house as a murder scene. They conducted a protective sweep of the house and discovered narcotics and paraphernalia in plain view in common areas and in certain rooms, including defendant’s room 216. Both the warrant affidavit and the resulting warrant described the suspected place as the fraternity house. However, the warrant affidavit also described the suspected room 216 and what law enforcement had seen in the room giving rise to probable cause. This information did not appear under the heading “suspected place” but rather ‘synopsis of investigation.” The court of appeals pointed to this as the basis for why the incorporated warrant affidavit did not cure the warrant’s non-specificity.

Analysis. “When a search warrant affidavit is incorporated into a search warrant, it becomes a part of, and can be used to aid the description in, the search warrant.” When read in a common-sense manner, the affidavit described Appellant’s room as the place to be searched.

Valadez v. State, No. PD-0574-19 (Tex. Crim. App. 2022)

Issue & Answer. Can the State use the “doctrine of chances” to present evidence of numerous context-less marijuana “incidents” involving a defendant who denies at trial knowledge of marijuana hidden inside a vehicle. No.  

Facts. Defendant was the backseat passenger in a car that smelled like marijuana. A DPS trooper stopped the vehicle for a window tint violation. During the stop the trooper noted the smell of marijuana and the fact that the three passengers behaved nervous and did not have consistent stories about their plans. Eventually the DPS trooper discovered 18 pounds of marijuana concealed in the vehicle. Defendant claimed at trial he was an innocent passenger uninvolved in the distribution. Defendant sponsored the testimony of vehicle’s driver who had already pleaded guilty and taken responsibility for the marijuana. The driver testified that the defendant had no knowledge of the marijuana or his plans to distribute. Over Defendant’s Rule 404(b) and Rule 403 objections, the State introduced evidence of six prior instances where the defendant was “connected with” marijuana. The trial court also denied defendant’s request for a limiting instruction on this issue. The court of appeals held that the defendant opened the door to the State’s use of these prior acts by advancing a theory that he was innocent.

Analysis. Under Rule of Evidence 404(b) evidence of prior bad acts is not admissible to prove character conformity. One of the numerous exceptions to Rule 404(b) is the “doctrine of chances.” Evidence is admissible under this doctrine if it shows “highly unusual events that are unlikely to repeat themselves inadvertently or by happenstance.” The similarity between the two events is probative of the fact that the instant offense, alleged to have been committed similarly to the prior one, was committed by the defendant. Upon request, a trial court must instruct the jury that it may consider the doctrine of chances only if it finds the extraneous offense true beyond a reasonable doubt and limits its consideration to its intended purpose. Evidence admissible under Rule 404(b) may still be inadmissible under Rule 403—when probative value is substantially outweighed by danger of unfair prejudice or misleading the jury. Where strong evidence already supports the State’s conviction the probative value of objectionable evidence is reduced. Here the doctrine of chances “did not justify the admission of extraneous incidents because they were not highly unusual or exactly the same as the charged offense.” The State provided the jury only with generic details surrounding the other offenses. Thus, the jury was left to speculate about the meaning of the prior drug offenses. This problem was exacerbated by the trial court’s erroneous denial of a limiting instruction. The State’s evidence was already sufficiently strong, and the prior convictions did not meaningfully advance their proof in a permissible way.

Dissent (Yeary, J.). The trial court’s determination was at least within the zone of reasonable disagreement. This court should give deference to that ruling. The prior marijuana incidents at least provided some evidence that the defendant would have been familiar with the odor of marijuana. Because the defendant claimed to be innocent, he opened the door. Rule 403 favors admissibility. Once a prosecutor establishes some relevance to the defendant’s prior bad acts beyond character conformity, it should be admitted.

1st District Houston

Navarro v. State, No. 01-20-00308-CR (Tex. App.—Houston, March 31, 2022)

Issue & Answer. When a defendant “provokes the difficulty” of resisting arrest but some evidence shows officers used unlawful or excessive force in response to this, is the defendant entitled to a necessity defense in the ensuing prosecution for assaulting a police officer? No. Not in the First District Court of Appeals.

Facts. The State charged the defendant with (1) aggravated assault with deadly weapon against a peace officer (striking Officer 1 with a trophy and attempting to strike Officer 1 with a screwdriver), (2) aggravated assault with deadly weapon against public servant (attempting to strike Officer 2 with a screwdriver), (3) assault of public servant (biting Officer 1), and (4) attempted arson. The evidence presented at trial showed officers were dispatched to multiple 911 hang-ups at an upholstery business. When they arrived several car radios were on with volume full blast. Defendant’s mother approached officers in the parking lot covered in transmission fluid. Defendant stepped outside of the business briefly to yell at officers and to tell them his mother was a “black widow” and a “drug dealer.” When officers entered the business, it was in disarray and transmission fluid was everywhere. Officer 1 had his handcuffs out. When the defendant saw Officer 1, the defendant retreated to an office and refused to come out. He soaked a towel in transmission fluid, lit it on fire, and threatened to burn everyone in the building. Officer 2 used a steel baton to smack the flaming towel out of defendant’s hand. Officer 1 tasered the defendant who was unphased by electrocution. The defendant hid under a desk and tried again to light the transmission fluid on fire. Officer 1 tasered the defendant again and defendant was again unphased by the electrocution. Officers flipped the desk over and the defendant “rode the desk to his feet.” Officers tackled the defendant and during a struggle the defendant struck Officer 1 with a trophy, grabbed a screwdriver and attempted to stab him, then bit him in the arm. Officer 2 punched defendant in the face until he was sufficiently dazed that he could be handcuffed. Officer 1 testified that the trophy blow caused pain but no injury. He also testified that the bite resulted in a loss of a chunk of flesh which required hospitalization and a week-long antibiotic soap regimen. The defendant testified that he “had a feeling they were going to take me to jail for whatever reason they could find,” admitted he did not obey commands, and admitted he resisted being pulled by the arm out of the office. According to the defendant he did not bite Officer 1 until the encounter escalated into a physical altercation due to his resistance.

Analysis. A defendant is not entitled to a necessity defense instruction “if it is undisputed that he provoked the difficulty that made it necessary for him to commit the offense.” “[O]ne who unlawfully resists detention or arrest by peace officers cannot claim that later criminal conduct, such as an assault, is a necessary response to any further efforts to detain or arrest him that his initial resistance precipitates.” The defendant disobeyed orders and physically resisted detention and later bit an officer in an altercation that his disobedience and resistance precipitated. This is distinguishable from a case where a defendant resists a person and claims he was unaware that person was a police officer.

Comment. The Fifth Court of Appeals and the Tenth Court of Appeals do not believe that “provoking the difficulty” is a doctrine which makes a defendant ineligible for a necessity defense.

2nd District Fort Worth

Thetford v. State, No. 02-18-00488-CR (Tex. App.—Fort Worth, Mar. 3, 2022)

Issue & Answer. An offense which requires “an act” cannot be predicated on “an omission.” Rodriguez v. State, 454 S.W.3d 503 (Tex. Crim. App. 2014). Rodriguez was an insufficient evidence reversal of a felony murder conviction—murder in the course of committing injury to a child, to wit: failing to feed a child (alleged numerous ways). Did Rodriguez create a per se rule that evidence is always insufficient to support a conviction when the relevant statute requires an act, but the State alleges an omission? No.

Facts. The State charged the defendant with attempted murder “by failing to provide adequate food and/or nutrition.” The evidence showed that the defendant, in addition to passively failing to feed her son, told friends and family not to feed him, led people to believe that feeding her son caused him pain, interfered with a gastrostomy button placed into her son’s stomach by doctors, asked medical staff to keep him asleep, and removed her son from Ronald McDonald House when she learned medical staff provided him with food after it was requested.

Analysis. Criminal attempt requires an act—not an omission—that amounts to more than mere preparation and tends but fails to affect the commission of the offense intended. The Penal Code defines an “act” as a “bodily movement” and an “omission” as the “failure to act.” Tex. Penal Code § 1.07(a)(1). When the State alleges a failure to do something, a conviction can be supported by a showing that the defendant committed acts in the course of an omission. The record established that the defendant committed both acts and omissions. She deterred and interfered with attempts to provide nourishment. This was sufficient to support a conviction for attempted murder despite the non-statutory allegation that the defendant committed the offense by omission.

Comment. The defendant filed a motion to quash the indictment alleging that failure to do something can’t serve as a predicate “act.” The Court agrees but was previously satisfied with the sufficiency of the indictment by summarily holding that Rodriguez is a sufficiency case and has no bearing on whether the indictment alleged an offense. Despite the court’s previous resolution of the question, it remains unclear to me how a defendant has notice of what acts she must defend herself from allegedly committing when the indictment alleges only an omission. Alleging an omission to inform a person about the acts they committed is as useful as not alleging any acts or omission at all.

3rd District Austin

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

4th District San Antonio

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

5th District Dallas

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

6th District Texarkana

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

7th District Amarillo

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

8th District El Paso

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

9th District Beaumont

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

10th District Waco

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

11th District Eastland

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

12th District Tyler

Ex parte Herrington, No. 12-21-00168-CR (Tex. App.—Tyler, Mar. 23, 2022)

Issue & Answer. The State may re-try a case after an objected-to mistrial if there was a “manifest necessity” for the trial court to grant the mistrial. Does manifest necessity exist when the State learns that an un-subpoenaed officer who promised to be present is missing at trial? No.

Facts. After a jury was empaneled and sworn, the State realized their DPS trooper had been deployed to the Texas border. The trial court declared a mistrial without the consent of the defendant. Before retrial, defendant filed a writ of habeas corpus challenging continued prosecution on double jeopardy grounds.

Analysis. Prosecution after mistrial is not barred if a trial court grants the mistrial on the basis of manifest necessity. A manifest necessity mistrial is justified only in extraordinary circumstances. A missing officer who the State did not subpoena does not create grounds for granting a mistrial on the basis of manifest necessity. “[W]hen a prosecutor empanels a jury without first ascertaining that his witnesses are present to testify, the prosecutor takes a chance” and gambles on proceeding without that witness’s testimony.  

13th District Corpus Christi/Edinburg

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

14th District Houston

Ex parte Pham, No. 14-20-00872-CR (Tex. App.—Houston [14th Dist.], Mar. 1, 2022)

Issue & Answer. Is a defendant’s plea involuntary when he represented himself, made it known to the prosecutor that eligibility for a dentistry license was his concern, then enters a no-contest plea which ultimately resulted in his ineligibility to apply for a dentistry license? No.

Facts. Defendant was a dentist. While subject to a disciplinary action he continued to practice dentistry when he should not have. The State charged him with unlawfully practicing dentistry. Defendant initially retained a lawyer, but that lawyer never appeared in court. Defendant requested the court’s permission to represent himself. After a Faretta hearing and the defendant’s acknowledgment of the dangers and disadvantages of self-representation, the trial court permitted the defendant to proceed pro se. Defendant entered a no contest plea to the offense.  In the plea paperwork he struck references to guilt and even wrote the phrase “not guilty” in various places. After the trial court accepted the defendant’s no-contest plea and placed defendant on community supervision, the defendant learned the disposition of his criminal case made him ineligible to reinstate his dentistry license. With assistance of new counsel, the defendant filed a writ of habeas corpus challenging his plea on the basis of voluntariness and ineffective assistance of counsel. In an affidavit to the habeas court, the defendant articulated his misunderstanding about the consequences of his plea on his dentistry license.

Analysis. “A plea is voluntary if (1) the defendant is fully aware of the direct and punitive consequences of the plea . . . and (2) the plea is not induced by threats, misrepresentations, or improper promises.” The record does not reveal that the defendant’s plea was induced by any misrepresentation by the trial court or the prosecutor. Because the defendant elected to represent himself, “he was expected to discover for himself that certain consequences would result from his plea. Pham’s failure to understand that he would become ineligible for a dental license did not render his plea involuntary, unless the trial court was required to admonish him of that consequence sua sponte.” The trial court only had a duty to admonish the defendant regarding the direct consequences that are punitive in nature and enunciated in the law. 

Hughes v. State, No. 14-20-00628-CR (Tex. App.—Houston [14th Dist.], Mar. 15, 2022)

Issue & Answer 1. Is there a Sixth Amendment right to confrontation in a revocation hearing? Yes.

Issue & Answer 2. Is the physical presence aspect of the Sixth Amendment’s right to confrontation violated by conducting a Zoom revocation hearing without obtaining sufficient waiver of physical presence? Yes. Even though counsel did not object? Yes.

Facts. Defendant was a deferred adjudication probationer. The State filed a motion to adjudicate guilt alleging that defendant had committed a new offense (forgery). The trial court conducted a Zoom hearing. Counsel was present in the courtroom for the hearing, but the State, the witnesses, and the defendant all attended via Zoom. The trial court indicated that the defendant remained on a video in the jail because he had been exposed to COVID-19 while in the jail. During the hearing the defendant was not given an opportunity to speak or communicate except when he testified in his own defense.

Analysis 1. Ex parte Doan, 369 S.W.3d 205 (Tex. Crim. App. 2012) controls the question of confrontation in a revocation hearing. Doan declared that revocations are not administrative in nature, but rather judicial proceedings. Thus, they are governed by the rules applicable to judicial proceedings. This includes the right to confront witnesses.  

Analysis 2. The right to be present for witness confrontation is a waivable-only right (objection unnecessary, the right is not forfeited absent a valid waiver).

“Appellant was in a separate break-out room with no possibility to communicate with his counsel in private regarding how to confront and cross-examine [the sole witness proving the offense of forgery]. Appellant was not truly present during his hearing. Instead he was relegated to being a distant observer with no opportunity to confront or cross-examine as envisioned by the Confrontation Clause.”

The defendant was not present at his hearing for Sixth Amendment purposes. Had he been present he may have offered assistance in pointing out inconsistencies in testimony which would have enabled counsel to cast doubt on the accusation.

Dissent (Wise, J.). The record does not reflect that the defendant was unable to communicate with counsel.

Comment. The Fourteenth Court provided this disclaimer: “However, we are neither prepared to make blanket pronouncements in this case nor conclude that a defendant is not present at a proceeding under the Sixth Amendment if he is present via video-conferencing.” I think this alludes to the possibility of conducting a Zoom proceeding in a different manner which alleviates the problems articulated in this case; namely that the defendant could not privately and effectively communicate with counsel during cross-examination. I think this would be exceptionally difficult within the Zoom platform itself in cases where the defendant and his or her attorney are in separate locations. Even the break-out functionality which conceivably creates an opportunity for attorney-client consultation is a poor substitute for real-time interaction in a courtroom. First, it requires stopping down the proceedings, interrupting the flow of cross-examination. Second, it places an unfair burden on the defendant that he chooses between imposing upon the trial participants and consulting with his or her lawyer. Third, so long as the defendant remain under guard (either in the courtroom or the jail) the conversation is neither private nor privileged.

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

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

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