November 2012 SDR – Voice for the Defense Vol. 41, No. 9

Voice for the Defense Volume 41, No. 9 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Fifth Circuit

Though it would abuse discretion to deny an evidentiary hearing on an Atkins claim where the court dismisses a valid Atkins claim without giving the petition adequate opportunity to develop the claim, CCA’s determination that D did not make a prima facie Atkins claim was not objectively unreasonable. Blue v. Thaler, 665 F.3d 647 (5th Cir. 2011).

        Death-sentenced Texas D was not entitled to a certificate of appealability. The federal district court did not abuse its discretion in refusing to hold an evidentiary hearing on D’s claim under Atkins v. Virginia, 536 U.S. 304 (2002) (holding that the Eighth Amendment prohibits the imposition of the death penalty on the mentally retarded). Nor did the district court reversibly err in denying D’s Atkins claim on the existing record.

District court did not err in dismissing superseding indictment because it did not state a crime against D for knowingly and willfully making false statements on loan applications and knowingly making false statements for the purpose of influencing action of a bank. United States v. Fontenot, 665 F.3d 640 (5th Cir. 2011).

        The gravamen of the offenses was that D made false statements on applications to refinance his residence by failing to include an illegal $100,000 campaign loan (D was a Louisiana senator) under “outstanding debts.” However, D’s statements were literally true because, under Louisiana law, the illegal loan was an absolute nullity and consequently was not a debt that ever existed.

Mere payment of the purchase price of drugs by whatever means does not constitute money laundering, and here the government showed nothing more. United States v. Harris, 666 F.3d 905 (5th Cir. 2012).

        Fifth Circuit reversed for insufficient evidence Ds’ convictions for money laundering and attempted money laundering (18 U.S.C. § 1956(a)(1)(B)(i)) and conspiracy to commit money laundering (§ 1956(h)). The government failed to prove that the transactions involved the proceeds of illegal activity; a transaction to pay for illegal drugs is not money laundering, because the funds are not proceeds of an unlawful activity when the transaction occurs but become so only after the transaction is completed.

Though the offense of importation was arguably complete (by the controlled substance reaching its final destination) before D’s possession took place, that means only that she did not import the drugs not that her possession did not “involve” importation. United States v. Rodriguez, 666 F.3d 944 (5th Cir. 2012).

        In sentencing D for possession of meth with intent to distribute, court did not err in enhancing D’s sentence under USSG § 2D1.1(b)(4) on the ground that the offense “involved the importation of amphetamine or meth[.]” The scope of actions that “involve” the importation of drugs is larger than the scope of those that constitute the actual importation. The Fifth Circuit did not reach the question whether § 2D1.1(b)(4) contains an implicit mens rea of possession (requiring that a defendant know the drugs were imported) because there was sufficient evidence to find that this D knew the drugs were imported.

D’s conviction for attempted sexual assault of a child was a qualifying crime of violence for USSG § 2L1.2(b)(1)(A)(ii) because the object offense (sexual assault of a child) was a qualifying crime of violence. United States v. Sanchez, 667 F.3d 555 (5th Cir. 2012).

        The offense of attempt under Texas law is within the “generic, contemporary meaning” of “attempt.” Although Texas’ attempt statute appeared to differ linguistically from the generic definition of attempt, illegal reentry D could not show any case in which a Texas court applied the Texas attempt statute to criminalize conduct that would not satisfy the generic definition of attempt.

D did not meet the standard to file a successive 28 U.S.C.S. § 2255 petition. In re Lampton, 667 F.3d 585 (5th Cir. 2012).

        D’s motion to vacate sentence was “second or successive” within the meaning of 28 U.S.C. § 2255. However, D could not avail himself of Magwood v. Patterson, 130 S. Ct. 2788 (2010), which held that when a first habeas petition results in a new judgment, a later-in-time petition challenging that new judgment is not “second or successive” under the AEDPA. D’s previous § 2255 petition did not result in the issuance of a new judgment within the meaning of Magwood. Rather, the previous § 2255 resulted in the vacatur of the conviction and sentence on a lesser-included count as a remedy for the double-jeopardy violation; the conviction and sentence on the greater offense remained undisturbed. Thus, D was challenging the same judgment of conviction that was the subject of his first § 2255 petition, which was a “second or successive” petition. NOTE: The Second Circuit reached a different result on virtually identical facts in Johnson v. United States, 623 F.3d 41 (2d Cir. 2010); but unlike here, the government had conceded that the petition was not successive. Twice recently, the Ninth Circuit criticized the Fifth Circuit’s holding here.

D’s prior conviction was not an aggravated felony; when Congress passed the immigration reform act of 1996, a majority of states did not consider digital penetration to be rape. Perez-Gonzalez v. Holder, 667 F.3d 622 (5th Cir. 2012).

        On the record of D’s prior conviction for “sexual intercourse without consent,” in violation of Mont. Code § 45-5-503(1), D’s conviction could have rested on the basis of digital penetration. In 1996 a large majority of states did not consider digital penetration to be “rape”; the Fifth Circuit held that digital penetration did not constitute rape within the meaning of 8 U.S.C. § 1101(a)(43)(A). The Fifth Circuit reversed the decision of the Board of Immigration Appeals upholding D’s removal on the basis of that conviction, and remanded.

The totality of the circumstances indicates D was in Miranda custody when he made his incriminating statements. United States v. Cavazos, 668 F.3d 190 (5th Cir. 2012).

        The Fifth Circuit affirmed the district court’s order suppressing statements made by D (charged with offenses arising out of “sexting” a minor) in his home prior to being given Miranda warnings. The totality of the circumstances, drawn from the record and in the light most favorable to D (the prevailing party on the motion to suppress), indicates D was in Miranda cus­tody. D was awakened at 5:30 a.m., identified, and handcuffed, while a dozen officers entered and searched his home; he was separated from his family and interrogated by two federal agents for an hour; he was informed he was free to use the bathroom or get a snack but was followed and monitored when he did so; and he was allowed to make a phone call but only when holding the phone so agents could hear the conversation. These circumstances would lead a reasonable person to believe he was not at liberty to terminate the interrogation and leave, notwithstanding that the interrogation occurred in his home and that he was informed the interrogation was “non-custodial.”

Illegal reentry D was not subject to a 16-level crime of violence enhancement because no removal order issued after his prior convictions. United States v. Nevares-Bustamante, 669 F.3d 209 (5th Cir. 2012).

        Where alien (1) was removed from the United States in March 1989, (2) illegally reentered a month later, (3) was convicted of rape and armed criminal action in Missouri in 1990, (4) was released from Missouri’s custody without being turned over for removal, and then (5) was found illegally present in the United States, D was not subject to a 16-level “crime of vio­lence” enhancement under USSG § 2L1.2(b)(1)(A)(ii) on the basis of the 1990 convictions for rape and armed criminal action. No removal order issued after his 1990 convictions, nor had any prior removal order been reinstated. Although the text of USSG § 2L1.2 could arguably support enhancement on the ground that D had “unlawfully remained in the United States” after a “crime of violence” conviction, the commentary to that Guideline made clear that there had to be a removal order issued after the conviction, which there was not in this case. Moreover, the commentary was binding under the rule of Stinson v. United States, 506 U.S. 36 (1993). The enhancement was erroneous under the Guideline’s commentary; the Fifth Circuit remanded for resentencing.

In prosecution for illegal-alien trafficking, agent’s controverted testimony did not warrant reversal on plain-error review. United States v. Montes-Salas, 669 F.3d 240 (5th Cir. 2012).

        Agent’s testimony that guides usually sit in the front (D was in the front passenger seat) was problematic. However, the error was not so clear or obvious to prevail on plain error review; it was permissible background testimony about how alien trafficking works, rather than impermissible profile testimony. Agent’s testimony that the sister of one of the aliens gave him a phone number she identified as belonging to one of the other smugglers was inadmissible hearsay; however, this error did not affect D’s substantial rights or impugn the fairness, integrity, and public reputation of this proceeding and, thus, did not warrant reversal on plain-error review.

Court of Criminal Appeals

To be considered substantially similar, an out-of-state offense must display a high degree of likeness but can be less than identical. Outland v. State, No. PD-1400-11 (Tex.Crim.App. Sept 12, 2012).

D was not entitled to an Article 38.23 instruction for the jury to disregard evidence obtained during traffic stop because officer had RS. Hamal v. State, No. PD-1791-11 (Tex.Crim.App. Sept 12, 2012).

        D was charged with possession of a controlled substance; the trial court denied her motion to suppress evidence seized from her car. The trial court also denied D’s Tex. Code Crim. Proc. art. 38.23 jury instruction. D was convicted. COA sustained D’s jury instruction claim, reversed her conviction, and remanded for new trial. CCA affirmed the trial court.

        COA erred in holding that D was entitled to an Art. 38.23 jury instruction. After the officer conducted a criminal history check, certain information was sufficient, when viewed as a whole, to establish reasonable suspicion. D was traveling late at night and had exceeded the speed limit. She was nervous, and her hands were shaking. She had a prior criminal record, which included arrests for drug offenses. One of the drug arrests was recent—seven months prior. She responded “no” when officer asked if she had ever been in trouble before.

The trial court properly suppressed cocaine found in D’s home because the search warrant was insufficient for the magistrate to determine PC. State v. Duarte, No. PD-1511-11 (Tex.Crim.App. Sept 12, 2012).

        The boilerplate search warrant affidavit contained insufficient particularized facts about D’s alleged possession to allow the magistrate to determine probable cause to issue a search warrant. There was no substantial basis for crediting the first-time confidential informant’s hearsay statement, as officers failed to corroborate the informant’s tip except to confirm D’s address. The tip was not a statement against interest, was not repeated by other informants, there was no accurate prediction of future behavior, and it contained no particular level of detail regarding D’s premises or his criminal activity. The informant, who was facing criminal charges of his own, merely told officer he saw D at his home on a particular date in possession of cocaine.

D was not entitled to an Article 38.23(a) instruction for the jury to disregard evidence if it found officer’s belief unreasonable, but D could be entitled to suppression of the evidence. Robinson v. State, No. PD-0238-11 (Tex.Crim.App. Sept 19, 2012).

        D filed a motion to suppress evidence stemming from the traffic stop in his possession with intent to deliver case. He argued that the stop, purportedly for failure to signal a turn, was pretext to justify an ongoing investigation of D. The trial court denied D’s motion, finding that probable cause existed to justify the stop, and that D voluntarily consented to the search leading to discovery of the contraband. D was convicted. COA reversed. CCA reversed and remanded to COA for further consideration of D’s first point of error—that the trial court abused its discretion in denying his motion to suppress.

        COA erred by concluding D was entitled to a Tex. Code Crim. Proc. art. 38.23(a) jury instruction; there was no dispute about the material historical facts. The only dispute was about the legal significance of those facts, which the jury was not au­thorized to resolve. The dispute was not about the character of the roadway, but about the legal significance of the character of the roadway. The question of whether D was required to use his turn signal was therefore a question of law, not fact, and the admissibility of evidence officer obtained as a result of the traffic stop did not depend on the reasonableness of his belief that D was legally required to signal.

There was no reasonable probability that counsel’s erroneous advice led to D’s murder conviction and 50-year prison sentence. Riley v. State, No. PD-1531-11 (Tex.Crim.App. Sept 19, 2012).

        The trial court denied D’s appeal, which claimed counsel’s ineffective assistance precluded his opportunity for deferred-adjudication community supervision. COA reversed D’s conviction. CCA reversed COA and remanded.

        D failed to show that if defense counsel properly informed him of his ineligibility for probation, there was a reasonable probability that his trial would have produced a different result. Regardless of whether D proceeded with a jury or plead, the same possible results were available. D’s attorneys informed him before trial that he would be eligible for probation from the jury if he was convicted of murder; D elected a jury trial for guilt and punishment. After D was convicted, defense counsel learned he was ineligible for probation because he was convicted of murder by a jury. While the trial court could have considered D’s self-defense claim in a plea and found him guilty of a lesser-included offense, the trial court implicitly upheld the murder conviction in its denial of D’s appeal; by pleading guilty to murder, D would have waived his opportunity to argue defenses and hold the State to its burden of proof.

D was convicted under the subjective theory of intoxication as alleged in the information; including the per se definition of intoxication in the abstract of the jury charge did not expand the allegations against him. Crenshaw v. State, No. PD-1252-11 (Tex.Crim.App. Sept 26, 2012).

        In this DWI case, the trial court permissibly included in the jury charge both the subjective definition of intoxication in the application paragraph and the per se definition in the abstract portion, though the information alleged only the subjective definition. The Texas Penal Code sets out two definitions of “intoxicated.” The subjective definition is not having the normal use of mental or physical faculties, § 49.01(2)(A); the per se definition is having an alcohol concentration of 0.08 or more, § 49.01(2)(B). Although the State was not required to provide either definition of intoxication in the information, it went beyond the minimum notice requirement by providing the definition that it intended to pursue. Furthermore, this case did not involve a variance because the application paragraph tracked the language of the information.

A general reference to the law of parties in the application paragraph was sufficient and was not error when D did not object and request a narrowing of the specific statutory modes of conduct that constituted party liability. Vasquez v. State, No. PD-0321-11 (Tex.Crim.App. Oct 3, 2012).

        The district court convicted D of aggravated robbery. COA found reversible error because the trial judge, over D’s objection, declined to apply the law of parties more explicitly in the jury charge application paragraph. CCA affirmed the trial court.

        The jury charge contained the correct abstract definition of “party liability.” A reasonable juror would refer to the abstract definition of the law of parties without need to have it repeated in the application paragraph. There was no question that the only theory of D’s liability was that of being a party. He was the getaway driver. He clearly admitted that he acted as the driver for his roommates after the three hatched the robbery scheme the night before. A reasonable juror could infer that D was the one who solicited, encouraged, or directed the other two to com­mit the robbery. D did not suggest how the jury might have been confused by the application paragraph.

Jurors’ testimony regarding another juror’s misconduct was admissible because it concerned an outside influence—something originating from a source outside the jury room and other than from the jurors themselves. McQuarrie v. State, No. PD-0803-11 (Tex.Crim.App. Oct 10, 2012).

        COA affirmed the trial court’s denial of D’s motion for new trial, holding that the trial court properly excluded the jurors’ affidavits and testimony pursuant to Tex. R. Evid. 606(b) and that Rule 606(b) was constitutional. CCA reversed and remanded to the trial court for a new hearing on D’s motion.

        The trial court abused its discretion in excluding jurors’ testimony and affidavits reflecting the misconduct of another juror. The internet research conducted by juror, during an overnight break, about date rape drugs constitutes an “outside influence” to fall squarely within an exception in Rule 606(b). A trial court should be able to inquire as to whether jurors received such outside information and the impact it had on their verdict without delving into their actual deliberations.

D’s substantial rights were violated by the improper removal of the dissenting juror and may not be disregarded. Scales v. State, No. PD-0442-11 (Tex.Crim.App. Oct 10, 2012).

        D was charged with aggravated robbery with a deadly weapon. During a recess in jury deliberations on the second day of trial, the jury foreman sent a note to the judge stating: “We have one juror who refuses to deliberate this case any further nor take the facts, testimony, of this case into account. I request she be removed from the jury.” After questioning the foreman about the juror’s actions, the trial judge indicated an intent to dismiss the juror, Regina Collins, and seat an alternate. Defense counsel requested that the judge question the recalcitrant juror directly, which the judge refused to do. Instead, the judge again questioned the foreman about Collins’ issues and, finding the foreman credible, dismissed Collins over defense counsel’s objection and seated an alternate. Within half an hour of replacing Collins, the jury reached a verdict. It later assessed D’s punishment at 20 years’ confinement. COA correctly held that Collins was not “disabled” as defined in Tex. Code Crim. Proc. art. 33.011. Using the standard in Tex. R. App. 44.2(b), CCA found that the error is reversible and affirmed COA.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Deemed a mere investigative detention, despite use of handcuffs and use of words “under arrest,” and even though the detention lasted 45 minutes and D was moved by officer to a different location; handcuffing was reasonable considering officer was a bike patrol officer. Castro v. State, No. 04-11-00312-CR (Tex.App.—San Antonio Apr 4, 2012).

        “Considering [officer] only maintained access to a bike as opposed to a patrol vehicle, as well as the other circumstances, we cannot say the use of handcuffs in this instance was unreasonable. . . . [Officer’s] testimony showed [D’s] detention lasted approximately 25 to 45 minutes, although an exact time frame was uncertain. This was not an unreasonable amount of time under the circumstances, i.e., the officer had to go inside the restaurant to find and detain the second suspect, and then transport both suspects to the park for the on-site identification. . . . [D’s] detention, which lasted under one hour, falls within the zone of reasonableness contemplated by the court of criminal appeals. And, although officers transported [D] to another location, the distance was minimal and furthered the investigatory purpose of the stop. Finally, [officer’s] testimony that it was an investigatory detention, despite his statement to [D], provides additional support for the trial court’s conclusion that an investigatory detention, rather than an arrest, occurred. The officer explained his use of the word ‘arrest’ when speaking to [D], stating he would not inform an individual that he was ‘under detention.’”

D’s delayed reaction to officer’s emergency lights among factors supporting RS to stop D for DWI. Ritchie v. State, No. 02-10-00512-CR (Tex.App.—Fort Worth Apr 5, 2012, pet ref’d).

        “[D] did not pull over immediately after [officer] activated his emergency lights, and in that regard, the evidence viewed in the light most favorable to the ruling supports a finding that [D’s] response was delayed if not ‘exceedingly slow.’”

D not in custody, despite being transported in the back of patrol car to homicide unit of police department and persistent and continued questioning by officers in a small windowless room with a single door and bathroom access only while escorted by an armed officer. Zuniga-Duarte v. State, No. 14-10-00967-CR (Tex.App.—Houston [14th Dist] Apr 10, 2012, pet ref’d).

        “[D] was not physically deprived of his freedom of action in any significant way. [D] was not handcuffed and went to the station voluntarily. Prior to the unrecorded statement to [officer], [D] was escorted to and from the restroom. This fact indicates a restriction of [D’s] freedom of movement, but alone is not necessarily enough to show custody. [Citing case for proposition that ‘The fact that appellant was accompanied during restroom breaks, although given an innocuous explanation, is also to be considered.’] While he was escorted to the restroom, there was no evidence that officers told [D] he could not leave. Even assuming that the officers never told [D] he was free to leave at any time, they all testified that they would have allowed [D] to leave at any time if [D] had asked. . . . A reasonable person would not believe that his freedom of movement was significantly restricted in this situation, where he voluntarily accompanied officers to the station; was given food; was neither handcuffed nor told he was under arrest; did not ask to leave; and was not threatened or coerced.”

D, an overnight guest, successfully argued that homeowner’s consent to search house did not include D’s backpack; homeowner’s son indicated to officer that backpack was the backpack D carried. State v. Rogers, No. 08-10-00119-CR (Tex.App.—El Paso Apr 11, 2012).

        “[Homeowner’s son] retrieved [D’s] backpack from beneath his bed and handed it to the officer, stating that it was the backpack which [D] carried. The evidence also showed that [officer], at that moment, did not necessarily believe [homeowner’s son] regarding ownership of the backpack because he had been untruthful with the officer throughout their encounter that evening. While [homeowner] had actual authority to consent to a search of the premises for the stolen property, [homeowner’s son’s] statement would have raised a question in the mind of a reasonable person whether [homeowner] had actual authority to consent to a search of the backpack. At the very least, [homeowner’s son’s] statements presented the officer with ambiguous circumstances which obligated him to stop and make inquiries as to the continued effectiveness of [homeowner’s] consent with respect to the backpack. . . . The State failed to prove that [homeowner] had either actual or apparent authority to consent to the search of [D’s] backpack.”

The State established chain of custody as to bag of co­caine found on D during jail intake search, despite State’s failure to identify the seizing officer (the jailer who performed the search). Casas v. State, No. 01-11-00057-CR (Tex.App.—Houston [1st Dist] Apr 12, 2012, pet ref’d).

        “[D] incorrectly assumes that the predicate for the admission of [bag of cocaine] must be established by the jailer who first picked the baggie up off the floor, and not by [a second officer], who was the second person to have custody of the baggie[.]”

D unsuccessfully argued “that six officers in tactical uniforms arriving at a late hour would have given a reasonable person the impression an emergency was occurring and that he or she was not at liberty to refuse to open the door.” Also unsuccessful was D’s argument that those circumstances caused his consent to be coerced. Davalos v. State, Nos. 01-11-00069-CR, 01-11-00070-CR (Tex.App.—Houston [1st Dist] May 3, 2012, pet ref’d).

        “[W]hen [D’s] mother opened the door the officers immediately explained to her they were at the home for the purpose of speaking with [D]. If indeed [D’s] mother had only opened the door to officers because she believed an emergency was occurring, at this point she could have declined to speak further with the officers and closed the door. . . . And, although six officers entered [D’s] home, only two or three sat with him at his kitchen table when consent was obtained, and officers did not block the path from the kitchen table to the front door. . . . While the late-night arrival of six officers dressed in tactical uniforms might create an intimidating environment, we are unpersuaded the circumstances were sufficient to overbear [D’s] will and critically impair ‘his capacity for self-determination.’”

Court committed reversible error by defining “operate” as “to exert personal effort to cause the vehicle to function” in DWI trial because it was an improper restriction on the jury’s understanding of what evidence could constitute “operating,” which vitally affected D’s main defensive theory and made the case for conviction significantly more persuasive. Kirsch v. State, 366 S.W.3d 864 (Tex.App.—Texarkana).

        The main defensive theory was that D was merely sitting on the motorcycle, not operating it. D was in the middle of intersection sitting on his motorcycle attempting to kick-start it and was wearing a helmet and had keys in hand. “[W]hile the evidence is sufficient to support Kirsch’s conviction, the trial court’s definition of ‘operate’ commented on the weight of the evidence, resulting in egregious harm. Accordingly, we reverse the trial court’s judgment and remand for a new trial[.]”

Results of blood test deemed admissible despite six-hour delay in drawing blood following the arrest. Morales v. State, No. 04-11-00363-CR (Tex.App.—San Antonio May 9, 2012).

        “Unlike other cases where retrograde extrapolation testimony has been held to be improper, the expert here . . . did not express an opinion as to a range of alcohol concentration at the time of driving. In fact, he specifically told the jury that he could not determine [D’s] BAC at the time of driving. Given the absence of an estimated BAC at the time of driving, the trial court could have reasonably concluded that the jury was equipped to evaluate the probative force of the blood test result. . . . Further, the admission of the blood test result did not necessarily encourage the jury to engage in its own crude retrograde extrapolation because, under the impairment definition of intoxication submitted to them, the jury did not need to establish [D’s] exact blood alcohol concentration at the time that he drove. . . . [T]he trial court could have reasonably concluded that the probative value of the blood test result was not substantially outweighed by the danger of unfair prejudice.”

Seizure of female underwear during warrant search of home was lawful under plain view doctrine, even though the underwear was not specifically listed on warrant as an item to be seized. Barrett v. State, 367 S.W.3d 919 (Tex.App.—Amarillo).

            “[A]lthough not attached to the search warrant as evidence of probable cause, officers executing the search warrant were aware of chat logs, received from the FBI. . . . [G]iven the chat logs already known to the officers, the ‘incriminating character’ of the underwear was ‘immediately apparent,’ and they had the right to seize that evidence.”

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