November 2015 SDR – Voice for the Defense Vol. 44, No. 9

Voice for the Defense Volume 44, No. 9 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

Where teachers discovered red marks on a three-year-old who identified D as his abuser, the Confrontation Clause did not prohibit prosecutors from introducing those statements when the child was not available to be cross-examined because the child’s statements to his teachers were not testimonial. Ohio v. Clark, 135 S. Ct. 2173 (2015).

        A preschool teacher noticed facial injuries on one of her three-year-old students. When the teacher inquired about the injuries, the student indicated that his mother’s boyfriend, D, caused them. The teacher forwarded her concerns to a child-abuse hotline, which resulted in charging D with child abuse. Prior to trial, a judge ruled the three-year-old was incompetent to testify but refused to exclude the child’s out-of-court identification of D as his abuser. D was found guilty. D appealed that the admission of the out-of-court statements violated his U.S. Const. amend. VI right to confront witnesses. The Supreme Court of Ohio reversed the lower court and held that because state law required the teacher to report suspected incidences of child abuse, the teacher was acting as an agent for law enforcement when inquiring about the child’s injuries; therefore, the child’s out-of-court statements could only be admitted if the primary purpose of the teacher’s questioning was to address an ongoing emergency. Because the child was not in immediate danger of further injury, the out-of-court statement could not be admitted. The U.S. Supreme Court reversed the Supreme Court of Ohio and remanded.

        The Court held that the three-year-old’s statements to his teachers were non-testimonial because the totality of the circumstances indicated that the primary purpose of the conversation was not to create an out-of-court substitute for trial testimony. There was an ongoing emergency because the child, who had visible injuries, could have been released into the hands of his abuser, and therefore the primary purpose of the teachers’ questions was most likely to protect the child. Moreover, a very young child who does not understand the details of the criminal justice system is unlikely to be speaking for the purpose of creating evidence. Finally, the Court held that a mandatory reporting statute does not convert a conversation between a concerned teacher and a student into a law enforcement mission for purposes of the Confrontation Clause.

Any federal constitutional error that may have occurred by excluding the attorney for a defendant in a capital murder trial from part of the Batson hearing was harmless. Davis v. Ayala, 135 S. Ct. 2187 (2015).

        D, a Hispanic man, was charged with three counts of murder and one count of attempted murder. During jury selection for his California state trial, the prosecution used seven preemptory challenges to exclude each black or Hispanic prospective juror. D contested the prosecution’s preemptory challenges as a violation of Batson v. Kentucky, 476 U.S. 79 (1986). In accordance with Batson, if a party can make a prima facie showing that preemptory challenges are being used in a racially motivated way, the other party must give a non-racially motivated reason for their use of the challenges. The state court allowed the prosecution to give their non-racially motivated reasons in a closed hearing, from which D and his attorneys were excluded, and subsequently found the prosecution’s use of preemptory challenges was not racially motivated. D was not given the prosecution’s reasoning or a transcript of the meeting until after the conclusion of his trial. Additionally, after trial it was discovered that the vast majority of the questionnaires all the potential jurors had to fill out had been lost. D was found guilty of the majority of the charges against him and sentenced to death.

        The California Supreme Court found that the state court erred in excluding D from the Batson hearing, but that the error and loss of the questionnaires were harmless. D appealed to the Ninth Circuit; in accordance with the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the appellate court found that the California Supreme Court had not adjudicated D’s constitutional claims on the merits but determined the procedure used for the Batson hearing violated California state law. The Ninth Circuit reviewed D’s claims de novo and found that the exclusion of D from the Batson hearing, and the loss of the questionnaires, violated D’s constitutional rights.

        Here, the Supreme Court reversed D’s conviction and remanded to the trial court for a determination of whether the facts established a prima facie case for purposeful discrimination in the prosecution’s use of peremptory challenges. Habeas petitioners are not entitled to relief unless they can establish that the alleged error resulted from actual prejudice. This requires the reviewing court find there was more than a reasonable possibility that the error was harmful; there must be grave doubt as to whether the error had a substantial or injurious effect or influence on the jury. The Court also held that the California Supreme Court had adjudicated the case on the merits based on the language of the AEDPA, which meant that the highly deferential AEDPA standard applied to a federal habeas petition to review the state court’s decision; thus, a federal court cannot overturn a state court’s determination unless the decision was contrary to clearly established law or based on an unreasonable view of the facts. Because the record supports the state court’s interpretation of the facts, the federal appellate court erred in holding that the prosecution’s use of peremptory strikes was not harmless. The Supreme Court overruled Swain v. Alabama, 380 U.S. 202 (1965), to the extent that it required petitioner to establish a systematic pattern of discrimination in jury selection.

Fifth Circuit

Where D agreed to plead guilty to conspiracy to transport an illegal alien, but then withdrew his plea as a mat­ter of right before it was accepted by the district court, it was reversible error, at the later trial on that charge, to allow the prosecution to introduce evidence of the withdrawn guilty plea and related inculpatory state­ments. United States v. Escobedo, 757 F.3d 229 (5th Cir. 2014).

        Although the plea agreement for the failed plea purported to contain a waiver of D’s rights (under Fed. R. Crim. P. 11(f) and Fed. R. Evid. 410) to keep out such evidence, the Fifth Circuit concluded that the plea agreement was ambiguous regarding whether that waiver provision was meant to be effective immediately or whether it was meant to be contingent on the court’s acceptance of the plea, which never occurred. Because an ambiguous plea agreement must be reasonably construed in favor of the defendant, the district court erred in reading the waiver as taking effect immediately rather than upon its acceptance of the guilty plea. Hence, the court also erred in allowing the government to introduce D’s withdrawn guilty plea and related inculpatory statements at trial. The Fifth Circuit reversed D’s conviction and remanded.

D was not entitled to a certificate of appealability to appeal the denial of federal habeas relief from his death sentence based on his attorneys’ failure to investigate whether he had “organic brain damage” mitigating his culpability, because there was a reasonable argument that D was not prejudiced thereby. Mays v. Stephens, 757 F.3d 211 (5th Cir. 2014).

        Likewise, even if trial counsel provided ineffective assistance by failing to request a competency hearing, D could not establish prejudice. There was no evidence presented that D was incompetent (as opposed to simply mentally ill), and consequently D failed to show that there was a reasonable probability that, but for the alleged ineffective assistance of counsel, he would have been found incompetent to stand trial.

        (2) D was also not entitled to a certificate of appealability (COA) on his claim that he was intellectually disabled, thereby precluding his execution under the Eighth Amendment; along the way, the Fifth Circuit held that Hall v. Florida, 134 S. Ct. 1986 (2014), did not render unconstitutional the Texas Court of Criminal Appeals’ test for finding intellectual disability (see Ex parte Briseño, 135 S.W.3d 1 (Tex.Crim.App. 2004)). Hall simply dealt with the constitutionality of mandatory, strict IQ test cutoffs in making the intellectual-disability determination.

        (3) Finally, D was not entitled to a COA on his claim that his mental illness precluded his execution under the Eighth Amendment; no Supreme Court opinion prohibits the execution of mentally ill persons who are not legally insane.

Texas capital defendant was not entitled to a certificate of appealability to appeal the denial of federal habeas relief from his death sentence on his claim that he was intellectually disabled, precluding his execution; reasonable jurists would not debate the state court’s rejection of that claim based on the failure to make a prima facie showing of intellectual disability. Garcia v. Stephens, 757 F.3d 220 (5th Cir. 2014).

        Furthermore, reasonable jurists would also not debate the federal district court’s alternative resolution of this claim under de novo review because, even considering the evidence D presented for the first time in federal court, D failed to dem­onstrate that he had significantly sub-average intellectual func­tioning. Hall v. Florida, 134 S. Ct. 1986 (2014), did not cast doubt on the debatability of the decision denying habeas relief; unlike in Hall, Texas does not preclude individuals with an IQ score between 70 and 75 from presenting additional evidence of difficulties in adaptive functioning in support of an intellectual-disability claim.

        (2) D was also not entitled to a COA on his claim that his attorneys provided ineffective assistance by eliciting, from defense witness Dr. Walter Quijano (who was testifying for the de­fense on the question of future dangerousness), testimony that minorities (blacks and Hispanics) “are overrepresented in the . . . so-called dangerous population”; the state court reasonably concluded that Dr. Quijano’s isolated comment was not harmful.

Government’s appeal of dismissal of charge was not un­timely, even though it was filed 60 days after the initial dismissal, because it was filed within 30 days after the district court denied the government’s motion to recon­sider. United States v. Rainey, 757 F.3d 234 (5th Cir. 2014).

        Under United States v. Healy, 376 U.S. 75 (1964), a timely motion for reconsideration by the government filed within the permissible time for appeal renders the judgment not final for purposes of appeal until the court disposes of the motion for reconsideration. There was some tension between Healy and its progeny on one hand and Bowles v. Russell, 551 U.S. 205 (2007), on the other. The Fifth Circuit—in this prosecution of BP’s vice president of exploration for obstructing a congressional investigation into the 2010 explosion on a drilling rig (in violation of 18 U.S.C. § 1505)—elected to follow the directly controlling precedent (Healy) in the absence of further direction from the Supreme Court.

        (2) The Fifth Circuit declined the government’s request to hold the appeal in abeyance pending the resolution of D’s motion to dismiss the superseding indictment, because resolution of this appeal would clarify the proceedings below, and because the superseding indictment might also be dismissed.

        (3) The Fifth Circuit reversed the district court’s first basis for dismissing the § 1505 count against D—namely, that D could not be prosecuted under § 1505 for obstructing a con­gressional subcommittee; the Fifth Circuit interpreted the statutory class of “any committee of either House” to include congressional subcommittees. The Fifth Circuit also rejected the district court’s alternative basis for dismissing this charge—namely, that the indictment did not adequately allege that D knew of the pending congressional investigation that he allegedly obstructed; read as a whole, the indictment fairly imported the element of knowledge.

Immigrant’s 1998 conviction for auto burglary was an “aggravated felony”; a conviction for unauthorized en­try of a vehicle with intent to commit a theft therein (N.M. Stat. § 30-16-3(B)) constituted an attempted theft offense under 8 U.S.C. § 1101(a)(43)(G), (U), thus rendering immigrant ineligible to apply for cancellation of removal under § 1229b(a)(3). Garcia v. Holder, 756 F.3d 839 (5th Cir. 2014).

In alien-smuggling case, culminating in a vehicle crash where one alien was severely injured and died months later after being air-lifted back to Honduras, district court did not err in applying to Ds a 10-level enhancement under USSG § 2L1.1(b)(7)(D) based on that death. United States v. Ramos-Delgado, 763 F.3d 398 (5th Cir. 2014).

        This enhancement does not require proof that Ds’ conduct was the proximate cause of the death; it does, however, impose a requirement of but-for causation. Here, the district court did not, on the record, clearly err in finding Ds’ conduct to be a but-for cause of the death.

Considering all D’s evidence, including that presented for the first time in federal court, reasonable jurists would not debate the district court’s decision that D’s ineffective assistance of counsel claim lacked merit. New­bury v. Stephens, 756 F.3d 850 (5th Cir. 2014).

        On remand from the U.S. Supreme Court in light of Tre­viño v. Thaler, 133 S. Ct. 1911 (2013), the Fifth Circuit once again denied death-sentenced Texas D’s request for a certificate of appealability (COA) on his claims of ineffective assistance of counsel (IAC); because the federal district court addressed the merits of D’s IAC claims, including the evidence presented for the first time in federal court, D already received all the relief available to him under Treviño and Martinez v. Ryan, 132 S. Ct. 1309 (2012)(which, Treviño held, applied with equal force to Texas). Because D did not present a debatable IAC claim, he was not entitled to a COA notwithstanding the district court’s procedural error in concluding that ineffective habeas counsel could not constitute cause for a procedural default.

The Fifth Circuit upheld D’s SORNA conviction because even though the Wisconsin statute of D’s prior conviction did not include a four-year age differential as an element, the Wisconsin judgment listed D as 24 years old. United States v. Gonzalez-Medina, 757 F.3d 425 (5th Cir. 2014).

        For purposes of determining whether D’s prior Wisconsin conviction for sexual intercourse with a child 16 or older (Wis. Stat. § 948.09) was a qualifying “sex offense” triggering a duty to register under the Sex Offender Registration and Notification Act, 42 U.S.C. §§ 16901 et seq., the age-differential portion of the exception contained in 42 U.S.C. § 16911(5)(C)(namely, that an offense is not a sex offense where it involved consensual sexual activity between a victim at least 13 years old and an offender not more than 4 years older than the victim) is not sub­ject to the categorical/modified categorical approach to prior convictions, but rather is a circumstance-specific provision that is subject to broader methods of proof than under the categorical/modified categorical approach.

D was not entitled to relief based on trial attorney’s fail­ure to research the statute-of-limitations because the in­dictment was, in fact, timely. United States v. Curtis, 769 F.3d 271 (5th Cir. 2014) (on reh’g).

        Federal D convicted of bankruptcy fraud under 18 U.S.C. § 152 challenged his conviction under 28 U.S.C. § 2255 for alleged ineffective assistance of counsel (IAC). Pursuant to Fed. R. Crim. P. 45(a)(1)(A) (which the Fifth Circuit said applied here), where D’s bankruptcy discharge occurred July 23, 2003, the statute of limitations did not begin to run until the next day; therefore, the indictment, which was filed July 23, 2008, was filed within (albeit on the last day of) the five-year limitations period.

        (2) Although criminal trial attorney failed to contact D’s bankruptcy attorney about the bankruptcy matter that was at the heart of the criminal charge, D was not entitled to § 2255 relief for IAC because he failed to show that had the criminal trial attorney contacted the bankruptcy attorney, what the criminal trial attorney would have learned would have persuaded him to advise D not to plead guilty and instead to insist on going to trial.

        (3) Although trial attorney’s apparent failure to get and look at evidence and discovery “was less than commendable,” D was not entitled to § 2255 relief for IAC where he failed to demonstrate that he was prejudiced by such deficient performance; he did not even allege that he would not have pleaded guilty but for this deficiency.

Court of Criminal Appeals

The admission of the supervising DNA analyst’s opinion, which was based on computer-generated data obtained through batch DNA testing, regarding the DNA match to D did not violate the Confrontation Clause; the analyst did not introduce evidence or testify regarding a formal report or assertion from a non-testifying analyst but used non-testimonial information to form an independent opinion, and D was given the opportunity to cross-examine her. Paredes v. State, 462 S.W.3d 510 (Tex.Crim.App. 2015).

        “Does the admission of a supervising DNA analyst’s opinion regarding a DNA match violate the [U.S. Const. amend. VI] Confrontation Clause when that opinion is based upon computer-generated data obtained through batch DNA testing? Neither this Court nor the United States Supreme Court has squarely answered this question. In this case, we hold that it does not. Consequently, we affirm the court of appeals’ holding that the admission of the supervising analyst’s testimony did not violate the Confrontation Clause.” This upheld D’s capital murder conviction and sentence of life in prison without parole.

Following D’s acquittal for capital murder, successive prosecution of D for burglary from the same incident was barred by double jeopardy. Ex parte Castillo, No. PD-0545-14 (Tex.Crim.App. June 3, 2015).

        D allegedly stabbed his estranged wife and stabbed and killed his wife’s boyfriend, after breaking into the boyfriend’s house. D was charged in two separate indictments; all the charges stemmed from the same incident. The first indictment alleged that D committed capital murder when he intentionally caused the boyfriend’s death while “in the course of committing or attempting to commit the offense of burglary of a habitation owned by” the boyfriend. The second indictment charged D with aggravated assault and burglary; the first count stated that D intentionally, knowingly, or recklessly caused serious bodily injury to his wife using a deadly weapon, and the second count alleged that D intentionally or knowingly en­tered the habitation of the boyfriend without his effective con­sent and “attempted to commit and committed the felony offense of aggravated assault[] against” his wife. Before the capital-murder trial, D moved to consolidate the indictments and for the State to specify how the predicate burglary for the capital-murder charge was committed. The State objected, and the trial court denied D’s motions. At the charge conference, D asked for lesser-included-offense instructions on murder and manslaughter, which the court denied. D was acquitted of capital murder. After his acquittal, and before his second trial for burglary and aggravated assault, D filed a pretrial writ application arguing that the second prosecution was jeopardy barred. The trial court denied D’s application, and D appealed. COA reversed the trial court and remanded for the second indictment to be dismissed. CCA affirmed in part and reversed in part.

        D’s successive prosecution for burglary was jeopardy barred under U.S. Const. amend. V, cl. 2, by his prior acquittal for capital murder because the burglary charge was a lesser-included offense of capital murder as pled, despite the fact that the burglary charge alleged a completed burglary and the other charge did not. D’s successive prosecution for aggravated assault was not jeopardy barred by his prior acquittal for capital murder, even though aggravated assault was within the proof necessary for the State to establish capital murder as charged, because the aggravated assault charge related to a different victim.

This subsequent habeas application failed to satisfy Tex. Code Crim. Proc. art. 11.071, § 5(a); CCA dismissed the application as an abuse of the writ without considering the merits of the claims. Ex parte Gonzales, 463 S.W.3d 508 (Tex.Crim.App. 2015).

        In 1995, D was convicted of capital murder and sentenced to death. CCA affirmed on direct appeal and denied relief on D’s post-conviction habeas application. D’s federal habeas petition was denied as to his conviction but granted as to punishment, and the case was remanded for a new punishment hearing; the Fifth Circuit affirmed the federal district court.

        The trial court held a new punishment hearing in May 2009. Based on the jury’s answers to the special issues, the trial court sentenced D to death on May 7, 2009. On May 8, 2009, the trial court determined that D was indigent and asked whether he desired appointment of counsel to file a habeas application. D stated that he wanted no appeals filed on his behalf and no attorneys appointed. Because direct appeal cannot be waived, the trial court appointed counsel to represent D on di­rect appeal. For the purpose of Article 11.071, the trial court found that D was proceeding pro se on habeas. CCA affirmed the judgment and sentence on direct appeal. When D failed to timely file a post-conviction habeas application, CCA issued an order stating: “Because of applicant’s expressed desire to waive habeas, the lack of any vacillation of that waiver appearing in the record, and applicant’s failure to timely file an application, we hold that applicant has waived his right to the review of an initial Article 11.071 habeas application. Any writ application filed hereafter by applicant . . . will be labeled a subsequent application and reviewed under Article 11.071 § 5.”

        The federal district court entered an order staying its proceedings for D to return to state court to consider his current unexhausted claims. D thereafter filed the instant post-conviction habeas application in the trial court in September 2014. D presented four allegations in the instant application. CCA reviewed the application and found that applicant failed to satisfy the requirements of Article 11.071, § 5(a). CCA dismissed the application as an abuse of the writ without considering the merits.

Nothing in the record suggested that D was deprived of actual notice of his transfer hearing from juvenile court to district court; even if there were defects in the service of summons, the statute permitted a waiver of defects. Ex parte Rodriguez, 466 S.W.3d 846 (Tex.Crim.App. 2015).

        D was a juvenile when he allegedly committed murder; he was certified to stand trial as an adult and transferred to district court, where he was convicted. In this habeas application, he claimed he was not properly served with a summons to the transfer hearing in juvenile court. He further claimed that as a consequence of that failure, the juvenile court did not have jurisdiction to transfer him and the district court did not have jurisdiction to try him. CCA filed and set D’s habeas application to determine whether the district court lacked jurisdiction and whether this claim should be barred under the doctrine of laches. CCA denied relief.

        Even though D received the summons after the August 1, 1995, transfer hearing and the summons did not mention the August 4 transfer hearing, CCA found that D was served with a summons for a transfer hearing, and any defects associated with that service were waivable under the unambiguous language of Tex. Fam. Code § 51.09, as the Family Code governs juvenile transfer proceedings. Although § 51.09 requires that the waiver be in writing or occur in a hearing that was recorded, such a waiver could have occurred at a recorded hearing on August 1 or August 4, with the record of the relevant hear­ing no longer being in existence. CCA did not have, and could not obtain, recordings of the hearings, and any uncertainty about whether the hearings were recorded had to be held against D, as the party attempting to disturb the juvenile court’s disposition in a collateral attack. Consequently, the rec­ord did not affirmatively establish that the juvenile court lacked jurisdiction to transfer the case, and therefore did not affirmatively establish the absence of jurisdiction in the district court.

Although D’s false-evidence claim was not subject to procedural default because its factual and legal bases were not reasonably available in an earlier proceeding, D failed to demonstrate that the introduction of false evidence at his trial violated due process. Ex parte De La Cruz, 466 S.W.3d 855 (Tex.Crim.App. 2015).

        “In this application for a post-conviction writ of habeas corpus, we consider a claim that the use of false testimony in a criminal trial violated a defendant’s due-process rights. We additionally consider whether such a claim may be subject to procedural default for failure to raise it at some earlier stage of the proceedings. We address these matters in the context of considering the false-evidence claim raised by [D] on his assertion that his 2000 conviction for murder was procured in violation of his due-process rights as a result of the introduction of false testimony from eyewitness Marcos Torres at his trial. Concluding that applicant’s present claim is not procedurally barred because he had no prior opportunity to fully litigate it, we reach the merits of his claim. We determine that the record fails to demonstrate that applicant’s conviction was procured on the basis of false testimony, and, alternatively, even assuming that false testimony was admitted at applicant’s trial, that testimony was not material to his conviction. We, accordingly, deny relief.”

        D’s claim was not procedurally barred because he had no opportunity to fully litigate it, as it was based on the 2011 amended autopsy report and the legal basis underlying the claim was not firmly established by the court until 2009. However, D failed to show that the introduction of false evidence at trial violated his due process rights where the new evidence that the deceased was shot twice causing two wounds to his head failed to adequately demonstrate that the eyewitness’ testimony was false, as the new evidence was only moderately different from the trial evidence that the deceased was shot once, causing two wounds to his head, and the deputy chief medical examiner’s new habeas testimony addressing the probable location of the shooting was largely redundant of the assistant medical examiner’s testimony on the same subject at trial.

In charging D with fraudulent possession of identifying information, the jury instructions properly did not limit the jury with respect to the number of separate tangible documents on which the identifying information appeared. Cortez v. State, No. PD-0501-14 (Tex.Crim.App. June 17, 2015).

        Police officer stopped a truck for a traffic violation, arrested the driver, and inventoried the contents of the truck, which included a folder containing identifying information of other individuals. D was a passenger in the truck. Later, police found D’s fingerprints on three of the documents in the folder. A grand jury indicted D for fraudulent possession of fifty or more items of identifying information. Tex. Penal Code § 32.51(b)(1), (c)(4). The indictment identified seven complainants and detailed the identifying information D possessed that belonged to each complainant. An amended indictment reduced the number of complainants to five, including the two com­plainants whose documents contained D’s fingerprints, and the State prosecuted D for the lesser offense of fraudulently pos­sessing ten or more, but less than fifty, items of identifying information, § 32.51(c)(3). In three application paragraphs, the court’s instructions permitted the jury to find D guilty of fraudulent possession of identifying information in certain amounts that would constitute a second-degree felony, a third-degree felony, or a state-jail felony. Each paragraph named the five complainants and delineated the identifying information. The jury found D guilty of the third-degree-felony offense.

        D appealed that the jury charge erroneously used “identifying information” in place of “item of identifying information.” He contended this permitted the jury to convict him of a higher level of offense by allowing it to count each piece of in­formation listed in the application paragraph as an “item of identifying information,” rather than requiring it to determine whether those individual pieces of information would have to be aggregated to form each item or items of identifying information. COA affirmed the trial court, and CCA affirmed.

        CCA said § 32.51 was ambiguous; although it enhanced the punishment range based on the number of “items,” the stat­utory language did not plainly define what constitutes “an item of identifying information.” The statute states, “A person commits an offense if the person, with the intent to harm or defraud another, obtains, possesses, transfers, or uses an item of: (1) identifying information of another person without the other person’s consent[.]” The statute elevates punishment depending on “the number of items” of identifying information, making the possession of one to four items a state-jail felony, the possession of five to nine items a third-degree felony, the possession of ten to forty-nine items a second-degree felony, or, alternatively, the possession of fifty or more items a first-degree felony; “item” could refer to each piece of information that identifies a person but could also be understood as a thing that contains a group of information that identifies a person, such as a single driver’s license. CCA analyzed legislative intent and concluded that because “item of identifying information” means any piece of identifying information enumerated in the statute that alone or in conjunction with other information identifies a person, and does not mean each document containing a group of identifying information, a court must not limit the jury’s consideration under Tex. Code Crim. Proc. art. 36.14 to each tangible document bearing multiple pieces of an individual’s identifying information.

There was no valid law on which to base D’s conviction for online solicitation of a minor because CCA previously held that Tex. Penal Code § 33.021(b) was facially unconstitutional. Smith v. State, 463 S.W.3d 890 (Tex.Crim.App. 2015).

        “A jury convicted appellant of possession of child pornography, two counts of sexual assault of a child, and online solicitation of a minor. . . . [COA] reformed the trial court’s judgments to delete the specific amount of assessed costs and affirmed the judgments as reformed. . . .

        “In [Ex parte Lo, 424 S.W.3d 10 (Tex.Crim.App. 2013)], we specifically held that Section 33.021(b) is unconstitutionally over-broad. The state does not challenge our prior holding as to the statute’s constitutional deficiency; it takes issue only with the procedural posture in which appellant seeks to apply that holding. . . . [I]n affirming appellant’s conviction for the online-solicitation offense, the court of appeals implicitly determined that there was no constitutional impediment to prosecuting that offense. Accordingly, we have determined that we have jurisdiction to review the court of appeals’ decision. And because this case involves a conviction under a statutory provision that we have previously determined is facially unconstitutional, addressing the merits of appellant’s challenge to his conviction under that very same statutory provision allows us to dispose of the case in the name of judicial economy if the proper solution of the issue is clear. . . . A Marin ‘category one’ right, which is not subject to forfeiture or waiver by the failure to object, is a right that was recognized as fundamental before the defendant made his present claim. Any defendant, convicted or not, may obtain relief from a conviction under a statute that has already been held void. Imagine that the Supreme Court holding that the constitution does not permit the execution of juveniles was interpreted by trial courts to not apply to juveniles who were tried before the . . . decision and who did not object at trial. . . . [W]e sustain appellant’s ground for review in petition number PD-1793-13, reverse the judgment of the court of appeals in its case number 14-11-00841-CR, and render a judgment of acquittal for the online-solicitation offense. . . .

        “The state’s petitions challenge the court of appeals’ treatment of the trial court’s assessment of court costs. After the court of appeals handed down its opinion, we decided Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014), which sets out a roadmap for resolving questions concerning court costs. . . . [W]e grant the state’s petitions for discretionary review in petition numbers PD-1790-13, PD-1791-13, and PD-1792-13, vacate the judgments of the court of appeals in those cases, and remand those three cases to the court of appeals for reconsideration in light of our Johnson opinion.”

Court of Appeals

D did not clearly and unambiguously invoke his right to counsel despite saying several times he wanted to get a lawyer; D was entitled to a new punishment hearing because the court erred by admitting extraneous-offense evidence about dismissed out-of-state charges since the danger of unfair prejudice outweighed the probative value for purposes of Tex. R. Evid. 403. Beham v. State, No. 06-14-00174-CR (Tex.App.—Texarkana Sept 18, 2015).

        D was convicted of aggravated robbery and sentenced to 25 years’ imprisonment. D appealed that the trial court erred in (1) denying his motion to suppress his statements because he invoked his right to counsel and to remain silent, and (2) admitting evidence of extraneous bad acts during the punishment phase because its probative value was substantially outweighed by unfair prejudice. COA affirmed D’s conviction, but reversed his sentence and remanded for a new punishment trial.

        “We are to evaluate whether Beham’s right to counsel was invoked based on the totality of the circumstances. . . . Beham signed a document stating that he understood and waived his rights, including his right to counsel. A review of the recorded interview fails to reveal an unambiguous request for counsel. Beham’s first statement, that he was ‘gonna try to see if [he] could get a lawyer’ fails to definitively request counsel. In his second statement, he said, ‘Aaahh, I [unintelligible] want to talk to the lawyer and see what’s going on.’ However, the unintelligible word or words could have been any number of different words, and because the statement is open to two or more reasonable interpretations, it is ambiguous. When [detective] again asked whether Beham wanted to talk, reminding him that he could terminate the interview at any time, rather than clearly invoking his right to counsel, Beham said he would see what [detective] had to say first.”

During D’s trial for capital murder and aggravated assault, even though the jury charge did not apprise the jury of the proper unanimity requirement as it did not specify the killing of any one of the deceased as the predicate murder and did not require the jury to specify which two or more of the deceased they agreed D murdered, the error was not egregious. Saenz v. State, No. 04-12-00238-CR (Tex.App.—San Antonio Aug 26, 2015).

        Five patients died and five or more patients suffered episodes of unexplained illnesses and cardiac arrest while undergoing dialysis treatment; D, a nurse employed at the dialysis clinic, was charged with five counts of aggravated assault involving five separate individuals and one count of capital murder also involving five different individuals. A jury found D guilty of capital murder and three counts of aggravated assault. In 2014, this court overruled each of D’s twenty-one issues and affirmed the trial court. CCA reversed this court’s holding regarding the jury charge and remanded for an egregious harm analysis under Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1985) (op. on reh’g).

        COA held the record did not establish egregious harm, and affirmed the trial court. The state of the evidence and the record as a whole substantially supported a finding of guilt with regard to each of the five capital murder victims, although both the jury charge and argument of counsel weighed in favor of egregious harm as the prosecutor exacerbated the error by telling the jury it need not agree as to the same two victims; the record clearly supported that any of the five victims could have served as the predicate murder as each murder was based on similar factual situations, and the jury rejected D’s ultimate defense by finding D guilty on three aggravated assault charges.

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