November 2016 SDR – Voice for the Defense Vol. 45, No. 9

Voice for the Defense Volume 45, No. 9 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

Johnson v. United States, 135 S. Ct. 2551 (2015), which held that the residual clause of the Armed Career Criminal Act was void for vagueness, was a substantive decision that applied retroactively to D’s case. Welch v. United States, 136 S. Ct. 1257 (2016).

        “Federal law makes the possession of a firearm by a felon a crime punishable by a prison term of up to 10 years, 18 U. S. C. §§ 922(g), 924(a)(2), but the Armed Career Criminal Act of 1984 increases that sentence to a mandatory 15 years to life if the offender has three or more prior convictions for a ‘serious drug offense’ or a ‘violent felony,’ § 924(e)(1). The definition of ‘violent felony’ includes the so-called residual clause, covering any felony that ‘otherwise involves conduct that presents a serious potential risk of physical injury to another.’ § 924(e)(2)(B)(ii). In Johnson . . . this Court held that clause unconstitutional under the void-for-vagueness doctrine. . . . Welch was sentenced under the Armed Career Criminal Act before Johnson was decided. On direct review, the Eleventh Circuit affirmed his sentence, holding that Welch’s prior Florida conviction for robbery qualified as a ‘violent felony’ under the residual clause. After his conviction became final, Welch sought collateral relief under 28 U. S. C. § 2255, which the District Court denied. The Eleventh Circuit then denied Welch a certificate of appealability. Three weeks later, this Court decided Johnson. Welch now seeks the retroactive application of Johnson[.]”

        The Johnson rule regarding what constitutes a violent offense for ACCA sentencing applies retroactively; the rule was a substantive rule of criminal procedure because it altered “the range of conduct or class of persons that the law punishes.” Unlike procedural rules that alter the permissible methods for determining whether conduct is punishable, substantive rules affect the reach of the statute itself rather than how it is applied. While procedural rules are generally not retroactive, substantive rules are. Teague v. Lane, 489 U. S. 288 (1989). Therefore, imposing an increased sentence under ACCA’s residual clause violated due process. The Supreme Court vacated the court of appeals’ judgment and remanded.

        “It may well be that the Court of Appeals on remand will determine on other grounds that the District Court was correct to deny Welch’s motion to amend his sentence. For instance, the parties continue to dispute whether Welch’s strong-arm robbery conviction qualifies as a violent felony under the elements clause of the Act, which would make Welch eligible for a 15-year sentence regardless of Johnson. On the present record, however, and in light of today’s holding that Johnson is retroactive in cases on collateral review, reasonable jurists at least could debate whether Welch is entitled to relief.”

When a defendant is sentenced under an incorrect Guidelines range, whether or not the ultimate sentence falls within the correct range, the error most often will suffice to show a reasonable probability of a different outcome absent it; that probability is all that is needed to establish an effect on substantial rights for purposes of obtaining relief. Molina-Martinez v. United States, 136 S. Ct. 1338 (2016).

        D pleaded guilty to being in the United States illegally following deportation proceedings that stemmed from his felony convictions. The district court sentenced D to 77 months in prison, pursuant to the sentencing range established in the U.S. Sentencing Guidelines for his criminal history category. Under the Guidelines, prior sentences are counted as a single sentence if they were imposed on the same day unless the offenses in ques­tion were separated by an intervening arrest. D’s prior of­fenses were not separated by an intervening arrest, so when his probation officer calculated his criminal history points and placed him in category VI, he erred; D should have been placed in category V, which carries a lower sentencing range of 70–87 months. D appealed his sentence on the grounds that the district court erred in sentencing him based on the incorrect criminal history category. The Fifth Circuit held that despite the error in calculation, D failed to show that the error affected his substantial rights. The Supreme Court unanimously reversed.

        If a defendant shows that the court mistakenly applied a higher sentencing range to his sentence, his substantial rights are affected. When appellate courts review errors in the application of the Sentencing Guidelines, the defendant is not re­quired to identify “additional evidence” to show that he re­ceived an incorrect sentence. Nothing in the Guidelines, prec­edent, or the Federal Rules of Criminal Procedure gov­ern­ing appellate review of such an error (Fed. R. Crim. P. 52(b)) required that a defendant make a showing of prejudice beyond the fact that the erroneous, higher Guidelines range set the wrong framework for the sentencing proceedings. By requiring more from the defendant, the Fifth Circuit failed to properly account for the central role the Guidelines play in the sentencing process and the dynamics of sentencing, which often leaves the defendant without any of the evidence the Fifth Circuit would require.

Fifth Circuit

The magazine of an AK-47 is a component of the AK-47 for purposes of laws prohibiting the unlicensed export of firearms and certain related items, regardless of whether it is loaded with cartridges when shipped. United States v. Gonzalez, 792 F.3d 534 (5th Cir. 2015).

        The Fifth Circuit pretermitted whether this determination was normally one for the jury, because D forfeited that issue by treating the determination as a question of law for the court to decide on his motion to dismiss the indictment.

In sentencing D convicted, on her guilty plea, for a conspiracy to defraud Medicare and Medicaid, the district court committed reversible plain error with respect to the restitution order; that error affected D’s substantial rights because it was excessive in the amount of $80,533. United States v. Lozano, 791 F.3d 535 (5th Cir. 2015).

        Particularly, the Fifth Circuit held it was plain error to base restitution on losses outside the proper temporal scope. The temporal scope of the offense of conviction was from April 30, 2005, through January 10, 2006, but the district court ordered restitution for losses commencing September 20, 2001. The Fifth Circuit said it would exercise its discretion to correct the error even on plain-error review; the Fifth Circuit vacated the restitution order and remanded to the district court for a recalculation of the amount.

In trial of BP engineer for obstruction of justice (based on deleting text messages with his boss respecting the amount of oil spilling from the Macondo well in the Deepwater Horizon accident), district court did not abuse its discretion in granting D a new trial based on extrinsic influence on the jury. United States v. Mix, 791 F.3d 603 (5th Cir. 2015).

        The district court granted D a new trial based on extrinsic influence on the jury (namely, one juror’s overhearing that other BP employees were going to be prosecuted and her telling other jurors that she had overheard something that gave her comfort in pleading guilty). To be entitled to a new trial based on an extrinsic influence on the jury, a defendant must first show that the extrinsic influence likely caused prejudice; the government then bears the burden of proving the lack of prejudice. D met his initial burden of showing that prejudice was likely; the government did not meet its burden of showing a lack of prejudice. Accordingly, the Fifth Circuit affirmed the new trial order.

Where Louisiana death-row inmates sued, claiming the heat they endured in the summer violated the Eighth Amendment because of their pre-existing medical problems, the Fifth Circuit affirmed the district court’s conclusion that housing them in very hot cells without access to heat-relief measures, while knowing that each inmate’s condition renders him extremely vulnerable to serious heat-related injury, violated the Eighth Amendment. Ball v. LeBlanc, 792 F.3d 584 (5th Cir. 2015).

        However, the scope of the injunctive relief (effectively ordering air-conditioning installation throughout death row) exceeded the Fifth Circuit’s prior precedent. First, the district court erred in failing to consider other acceptable remedies short of facility-wide air conditioning; second, the district court erred in awarding relief facility wide, instead of limiting such relief to the plaintiffs; finally, the relief was not limited to only the months in which the plaintiffs faced heat risk. The Fifth Circuit vacated the district court’s injunction and remanded for reconsideration.

D’s 18 U.S.C. § 1519 conviction for obstructing a federal investigation could not stand in light of an intervening Supreme Court decision that construed “tangible object” in § 1519. United States v. McRae, 795 F.3d 471 (5th Cir. 2015).

        On his second appeal following a remand for resentencing (United States v. McRae, 702 F.3d 806 (5th Cir. 2012)), D contended that his conviction under 18 U.S.C. § 1519 could not stand in light of Yates v. United States, 135 S. Ct. 1074 (2015). D was a former New Orleans police officer charged with offenses arising out of a police cover-up in the aftermath of Hurricane Katrina, including burning a body in a car. Yates, which discussed the meaning of a “tangible object” under § 1519, required that the conviction be vacated. Under that decision, neither a car nor a corpse were “used to record or preserve information” or were “similar to records or documents.” The Fifth Circuit vacated D’s conviction on that count and remanded for resentencing on the remaining counts.

        (2) D was not entitled to a new trial based upon his post-trial diagnosis of post-traumatic stress disorder at the time of the offenses. Likewise, he was not entitled to a new trial based on evidence that persons in the Department of Justice, not directly involved in his trial, made anonymous postings about his proceedings in the comments sections of articles.

A sentence reduction under 18 U.S.C. § 3582(c)(2) does not result in a new judgment, but only in the modi­fi­ca­tion of an existing one, and a defendant may not thereby avoid the requirements for filing second or suc­cessive motions under 28 U.S.C. § 2255. United States v. Jones, 796 F.3d 483 (5th Cir. 2015).

        Because D’s current § 2255 motion raised a claim that he could have raised in a prior application, and because no “new judgment” had intervened between the filing of his current § 2255 motion and the filing of his previous ones, his current § 2255 motion was successive to his previous ones. Accordingly, the Fifth Circuit affirmed the district court’s order transferring D’s case to the Fifth Circuit and ordered D to file a motion for authorization of a successive § 2255 motion pursuant to 28 U.S.C. § 2244(b)(3)(A) within 30 days of notification by the clerk; D was advised that failure to do so would result in an order denying authorization.

Where D’s notice of appeal was not filed within the 14-day period prescribed by Fed. R. App. P. 4(b)(1)(A)(i), nor the 30-day extension period set out in Fed. R. App. P. 4(b)(4)(B), the Fifth Circuit granted the Government’s motion to dismiss the appeal for untimeliness. United States v. Hernandez-Gomez, 795 F.3d 510 (5th Cir. 2015).

        Although the time limits of Fed. R. App. P. 4(b) are not jurisdictional, and thus may be waived, the Government did not waive its right to invoke those limits here. The Fifth Circuit held that a motion to dismiss for untimeliness filed with or before the Government’s first substantive filing (usually its first brief) is timely.

In trial of D charged with violating 18 U.S.C. § 2423(a) by transporting persons under age 18 across state lines with the intent that they engage in criminal sexual activity, the district court did not plainly err in admitting evidence of uncharged sexual assaults by D. United States v. Lewis, 796 F.3d 543 (5th Cir. 2015).

Court of Criminal Appeals

An original writ of habeas corpus in the Court of Criminal Appeals is not the proper avenue for seeking an out-of-time petition for discretionary review from a judgment imposing community supervision. Ex parte Valdez, 489 S.W.3d 462 (Tex.Crim.App. 2016).

        “We filed and set this application for an original writ of habeas corpus to consider whether an original writ of habeas corpus in this Court is the proper avenue for seeking an out-of-time petition for discretionary review (PDR) from a judgment imposing community supervision. . . . Applicant has sought relief in this Court by virtue of a ‘Constitutional writ’ rather than invoking our appellate jurisdiction via PDR from a writ application filed with the trial court and taken through the usual appellate process. Because this is not the type of circumstance calling for this Court’s exercise of its original habeas corpus jurisdiction, we dismiss the application. . . .
[T]his Court will accept a ‘Constitutional writ’ application as an original matter only in extraordinary circumstances.”

Under Tex. Code Crim. Proc. art. 38.43, the trial court has, in the absence of agreement by the State and defendant, the discretion to determine when all necessary biological evidence has been tested; the trial court did not abuse that discretion when it ruled further testing of collected biological material was unnecessary and ordered the case move forward to trial. In re Solis-Gonzalez, 489 S.W.3d 459 (Tex.Crim.App. 2016).

        In 2012, a grand jury indicted D for capital murder. Pursuant to Tex. Code Crim. Proc. art. 38.43, the State moved for DNA testing of biological material collected in the case. The trial court granted that testing. Because of the large number of pieces of biological material, the Texas Department of Public Safety forensics laboratory advised the trial court that it would be unable to complete testing on all pieces until June 2015. The trial court advised the parties of its intent to have a pretrial hearing to determine the applicability of Article 38.43. In a 2014 letter to the defense, the trial court directed the defense to identify any necessary piece of material that it believed the State had failed to submit for testing and provide justification for testing that material. At the hearing, the State asserted it had submitted all of the collected material—more than 200 samples—but argued that testing every sample was unnecessary, and that the testing that had been performed was sufficient. The defense asserted that Article 38.43 created an “absolute right to have all the evidence tested.” The trial court ruled that further testing was unnecessary and that the case would move forward to a May 2015 trial.

        D here filed a motion for leave to file an emergency mandamus application that would require all the biological material be tested. CCA denied relief. “The state submitted all biological material in its possession for forensic analysis. After testing had been performed on a large part, but not all, of the submitted material, the trial court instructed the defendant to identify what untested material was necessary to his defense and to specify, by a date certain, why such testing was so necessary as to delay trial. The trial court found that the defense response did not legally support further delay.”

D argued that charging him witness fees after trial violated his Sixth Amendment right of confrontation and compulsory process; this argument could be raised for the first time on direct appeal because he had no opportunity to raise it in trial court. London v. State, 490 S.W.3d 503 (Tex.Crim.App. 2016).

        “Rather than challenge the constitutionality of the trial court’s imposition of court costs through a hearing . . . or a sep­arate civil lawsuit, Appellant sought to raise, on direct appeal, an as-applied challenge to two provisions in [Tex. Code Crim. Proc. art. 102.011] that impose mandatory court costs upon conviction. The court of appeals . . . held that Appellant failed to preserve error on this claim. We granted review to determine whether Appellant could raise his as-applied challenge for the first time on appeal, and whether a formal bill of exceptions was necessary to provide a sufficient record for the court of appeals. . . . Without considering the merits of the underlying claim, we hold that Appellant was not required to raise his as-applied challenge in the trial court because his first opportunity to do so was on direct appeal. We also hold that Appellant’s as-applied challenge can be evaluated upon the record presented. Consequently, we reverse and remand for the court of appeals to consider the merits of Appellant’s as-applied challenge.”

        Although D could have filed a bill of exceptions under Tex. R. App. P. 33.2, no bill of exceptions was required in this case to provide COA with a sufficient record to evaluate the chal­lenge. Furthermore, D was not required to use the Tex. Code Crim. Proc. art. 103.008 procedure to correct error in the imposition of court costs. It was immaterial which party had summoned each witness because Article 102.011 did not condition the imposition of fees upon which party summoned the witnesses.

During D’s trial on charges of aggravated sexual assault of a child, the trial court abused its discretion by not permitting D to cross-examine the complainant regarding complainant’s sexual abuse of complainant’s sister because such evidence supported D’s theory that complainant had a motive to falsely accuse D of molestation. Johnson v. State, 490 S.W.3d 895 (Tex.Crim.App. 2016).

        D was convicted of two counts of aggravated sexual assault of a child. On appeal, D claimed the trial court erred in excluding evidence of the complainant’s past sexual behavior. D argued that this evidence was relevant to his defense of fabrication, that excluding this evidence violated his right of confrontation, and that it was admissible under the Texas Rules of Evidence. COA held that the trial court did not abuse its discretion in excluding the evidence and affirmed D’s conviction. CCA reversed COA and remanded to that court for a harm analysis under Tex. R. App. P. Rule 44.2(a).

        The proffered cross-examination by D’s counsel should have been permitted. The evidence was admissible under Tex. R. Evid. 412; it was required to be admitted under the Confrontation Clause; and the probative value of the evidence outweighed the danger of unfair prejudice.

Exigent circumstances justified D’s warrantless blood draw; officers reasonably believed D’s intoxication was responsible for the traffic accident, and obtaining a warrant was impractical and would have significantly undermined the efficacy of searching D’s blood. Cole v. State, 490 S.W.3d 918 (Tex.Crim.App. 2016).

        At D’s intoxication-manslaughter trial, the judge overruled D’s motion to suppress evidence obtained by a warrantless blood draw; D was convicted. Holding that the record did not establish exigent circumstances, COA reversed the trial court. CCA reversed and remanded to COA.

        A warrantless search was justified under the exigency ex­ception to U.S. Const. amend. IV’s warrant requirement. Both the time required to complete the accident investigation and the lack of available law enforcement personnel further hin­dered pursuing the warrant process. The record did not establish that there was a readily available officer who could have gotten a warrant while the investigator continued his investigation and another officer kept defendant in custody at the hospital; officers were confronted with the logistical and practical constraints posed by a severe accident involving a death and the attendant duties this accident demanded. Furthermore, without a known elimination rate of methamphetamine, law enforcement faced inevitable evidence destruction without the ability to know how much evidence it was losing as time passed. Only after the investigator measured, calculated, and assessed the vehicles’ damage was he able to form probable cause to believe that D was responsible for the accident and the victim’s death.

The State failed to justify the warrantless taking of D’s blood by failing to demonstrate that practical problems existed in obtaining a warrant within a timeframe that still preserved the opportunity to obtain reliable evidence. Weems v. State, No. PD-0635-14 (Tex.Crim.App. May 25, 2016).

        At his felony driving-while-intoxicated trial, D moved to suppress the results of a warrantless blood draw. The judge denied his request. COA reversed, holding, among other things, that the State failed to establish that D’s warrantless blood draw was justified by exigent circumstances. CCA affirmed COA.

        The State failed to meet its burden and establish that exigent circumstances satisfied the U.S. Const. amend. IV reasonableness standard. While evading law enforcement by fleeing the accident scene and hiding, D’s blood alcohol concentration potentially diminished along with possible evidence to prove or disprove his level of intoxication at the time of driving; aside from D’s own self-imposed delay and the 40 minutes’ worth of alcohol dissipation, little else in the record lent support to finding exigency. The deputy’s testimony suggested that substantial delay in obtaining D’s blood was at least foreseeable. Another officer’s presence at the hospital militated against find­ing that practical problems prevented the State from obtaining a warrant within a timeframe that preserved the opportunity to obtain reliable evidence.

The defense theory raised in voir dire and opening statements opened the door to the extraneous-offense evidence presented by the State, and the State was not required under Tex. R. Evid. 404(b) to provide notice of such rebuttal evidence. Dabney v. State, 492 S.W.3d 309 (Tex.Crim.App. 2016).

        A jury found D guilty of manufacturing methamphetamine, and he was sentenced to 30 years in prison. He appealed, arguing that the trial court erred in admitting evidence of a prior unadjudicated offense of manufacturing meth because the State failed to give proper notice under Tex. R. Evid. 404(b). COA held that the evidence was inadmissable and reversed the trial court. CCA reversed COA.

        COA erred in adding a notice requirement for rebuttal evidence to Rule 404(b) and in failing to defer to the trial court’s decision. COA improperly substituted its judgment for the trial judge’s in concluding that the prosecutor was engaging in gamesmanship instead of legitimately rebutting a defensive theory. There was no evidence that the State’s presentation of this extraneous-offense evidence as rebuttal was an attempt to circumvent the pretrial discovery order.

D failed to object, on three occasions, to the testimony about his DWI blood test; because D failed to obtain a ruling on this Fourth Amendment complaint, he failed to preserve error. Smith v. State, No. PD-1615-14 (Tex.Crim.App. June 8, 2016).

        D was convicted of driving while intoxicated. His conviction was based in part on evidence obtained in a warrantless mandatory blood draw conducted pursuant to Tex. Trans. Code § 724.012(b). COA reversed D’s conviction on the basis that drawing D’s blood without a warrant violated U.S. Const. amend. IV. In its petition for review, the State contended that D failed to preserve error with respect to this complaint. CCA agreed, reversed COA, and remanded for COA to consider D’s remaining points of error.

        D never obtained a ruling on this complaint; D never asked for a ruling on the issue, nor did he object to the judge’s failure to rule. After finding D guilty, the judge reiterated that the Fourth Amendment issue had not been resolved. Even if D had obtained a ruling on his objection to the blood vial itself, the test results were already in evidence. It is well settled that the erroneous admission of testimony is not cause for reversal if the same fact is proven by other testimony not objected to.

Court of Appeals

Trial court did not err in denying D’s motion to suppress because the issue of her unlawful detention was an element of the charged offense, failure to identify, and thus improperly raised in a pretrial motion. Gonzalez v. State, No. 13-16-00092-CR (Tex.App.—Corpus Christi Sept 1, 2016).

        D was charged with two counts of failure to identify, Tex. Penal Code § 38.02. D filed a motion to suppress, challenging the unlawful nature of her detention as a vehicle passenger. D argued that her rights under U.S. Const. amend. IV; Tex. Const. art. 1, § 9; and Tex. Code Crim. Proc. art. 38.23 were vio­lated because the officers had no reasonable suspicion to detain her.D requested the suppression of all evidence seized as a result of the warrantless search, which included all evidence obtained from D, all statements provided by D, and all testimony of officers working at the scene concerning D’s con­duct after officers detained her. The trial court denied D’s mo­tion. Subsequently, D pleaded guilty to failure to identify. D appealed, challenging the denial of the motion to suppress. COA affirmed.

        The trial court did not err in denying D’s motion to suppress because, by asking the trial judge to suppress her arrest and the details of failing to provide her name to the officer as the product of an unlawful detention, D was in effect asking the judge to rule on whether the State had proof of an element of the charged offense of failure to identify, i.e., lawful detention under § 38.02(2). She was asking the judge to address the merits of the case itself, not to address issues that can be determined before a trial on general issues of the case. D, in essence, tried to argue in her motion and on appeal that the State could not prove one of the elements of the crime—that the State could not prove the detention for which she provided a false or fictitious name was lawful because it was unreasonable. If the trial judge granted D’s motion to suppress her misidentification and ensuing detention, the State could no longer prosecute D for failure to identify. A suppression hearing is for the limited purpose of addressing preliminary matters, not the merits of the case itself, and it may not be used to decide the sufficiency of the evidence to support an element of the offense.

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