November 2020 SDR – Voice for the Defense Vol. 49, No. 9

Voice for the Defense Volume 49, No. 9 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

Big opinions on the way. The Court of Criminal Appeals is back from break. The Supreme Court 2020-21 session is now under way. I hope the new format is an easy read; let me know what you think!

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

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

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

United States Supreme Court

The United States Supreme Court did not hand down any published opinions since the last Significant Decisions Report.

Fifth Circuit

United States v. Lima-Rivero, 971 F.3d 518 (5th Cir. 2020)

Issue. Is a trial court bound by the government’s conclusion that the defendant did not provide truthful information when deciding whether to give a reduced sentence under the Federal Sentencing Guidelines’ safety valve provision—a provision which requires a defendant to provide the government with truthful information? Does throwing drugs out of a window during a police chase constitute reckless endangerment under the Sentencing Guidelines?

Facts. The defendant was involved in a drug transaction which resulted in a police chase where he was a passenger in the chased vehicle. During the chase, the defendant threw a bag of methamphetamine out of the passenger window. The defendant also apparently gave a debrief with agents which left agents dissatisfied.

Holding. No. A district court has discretion to apply the safety valve provision and is not bound by the government’s determination of whether a defendant provided truthful information. Yes. Throwing drugs out of a window is reckless endangerment.

Dissent (Haynes, J.) The trial court erred in its deference to the Government’s opinion on safety valve eligibility. However, the agent testified that that it was his opinion that the defendant did not provide truthful information which is sufficient evidence. 

Comment. The Court found that the DEA agent’s conclusory statement was not an adequate substitute for the prosecutor’s conclusory statement. The DEA’s statement was that the defendant was “less than forthcoming regarding many things.”

United States v. Valdez, 973 F.3d 396 (5th Cir. 2020)

Issue. Is counsel ineffective when his Sentencing Guideline estimation is wrong by more than 300 months and the defendant is sentenced to a statutory maximum sentence of ten years?

Facts. Defendant pleaded guilty—without agreement—to possessing a firearm as a convicted felon. Because he used the firearm to commit murder, the guideline range was 324 to 405 months. His attorney estimated a range of 24-36 months. The trial court sentenced the defendant to the statutory maximum of 120 months. Defendant filed a motion under 28 U.S.C. § 2255 claiming his counsel was ineffective and had he known he would be subjected to the statutory maximum punishment under the guidelines, he would have proceeded to trial.

Holding. Counsel’s estimation was not unreasonable and there was no reasonable probability that but for the erroneous guideline calculation the defendant would have insisted on going to trial. He changed his plea the morning of trial after it became clear that the Government had secured a witness damning to his defense.

Dissent (Wiener, J.) “The Sentencing Guidelines play such an important role in federal criminal defense that it is unreasonable for counsel to make a grossly inaccurate estimate of the applicable range . . .”

Comment. Who wouldn’t go to trial if their Guideline calculation was triple the statutory maximum of 10 years? The dissent’s criticism that the majority opinion renders counsel’s familiarity with the Sentencing Guidelines optional is persuasive.

United States v. Beaulieu, 973 F.3d 354 (5th Cir. 2020)

Issue. When a prosecutor who granted testimonial immunity to a witness subsequently prosecutes that witness for contempt upon his refusal to testify, is it prosecutorial misconduct for that prosecutor to inject his personal knowledge in closing and cross examination?

Facts. In an interview with FBI agents, defendant identified suspects involved in carjackings and bank robberies. At trial on these offenses, the defendant refused to testify and invoked Fifth Amendment privilege. The district court appoints Attorney 1 after the invocation. The Department of Justice granted the defendant immunity from prosecution. After he was ordered by the trial court to testify, the defendant still refused. The trial court appointed the same prosecutor to prosecute contempt proceedings against the defendant. Attorney 2 is appointed to represent the defendant in contempt proceedings. Attorney 2 moves to disqualify the prosecutor as a material witness for the defense. Attorney 1 testified at the contempt trial and indicated that the prosecutor had withdrawn a “complete immunity agreement.” The prosecutor advanced his own recollection of what had occurred in cross-examination. In closing argument, the prosecutor disclosed even more facts within his personal knowledge but outside of the record.

Holding. Yes. “There is no gray zone here.” The prosecutor repeatedly expressed personal opinions on the merits of the case, credibility of witnesses, and made arguments not based on evidence presented. The misconduct was prejudicial—the trial was three hours long and filled with misconduct. There were no cautionary instructions to counteract the misconduct. “The proceeding below was obviously contentious, with numerous accusations of dishonesty and bad faith.” This resulted in the prosecutor abdicating his role to see that justice is done.

Comment. It is not often that a trial court cites a prosecutor’s special role and duty in the context of the justice system and then reverses a conviction as it did here. The trial court should have granted the disqualification, or the prosecutor should have withdrawn.

United States v. Soriano, —F.3d—, No. 19-50832 (5th Cir. Sept. 18, 2020)

Issue. Was consent to search given voluntary when given in the context of a traffic stop involving numerous probing questions about unrelated criminal activity?

Facts. Defendant indicated he was travelling from El Paso to Odessa for a short stay with family. Officer testified that travelling between those two cities on Sunday is rare. Officer found it suspicious when defendant asked officer to repeat herself after she asked if defendant had ever been arrested. Defendant ultimately responded that he had been previously arrested for tickets. Officer eventually saw a large duffle bag in the back seat inconsistent with a short stay. Defendant changed his answer on how long he intended to stay in Odessa. The defendant appeared nervous. The defendant showed the officer the top layer of clothes in the suitcase as well as his trunk. Inside the trunk were several cans of gasoline. Officer informs defendant that he was going to receive a ticket for speeding. When she ran his criminal history, she found an undisclosed arrest for Theft. When the officer returned to the vehicle, she asked the defendant whether there was anything illegal in the vehicle, requested consent to search, and asked if a drug dog would discover illegal substances. The defendant said she could check the car and that she was welcome to bring the drug dog. Officer discovers cocaine in the duffel bag.

Holding. Yes. Evaluating voluntariness of consent requires consideration of six factors: (1) voluntariness of defendant’s custodial status, (2) presence of coercive police procedures, (3) extent and level of defendant’s cooperation with police, (4) the defendant’s awareness of his right to refuse consent, (5) defendant’s education and intelligence, (6) defendant’s belief that no incriminating evidence will be found. Although the defendant was not free to leave, there were no coercive procedures, defendant remained cooperative during the encounter, he was imputed with knowledge of a right to refuse based on his experience with criminal justice system, nothing about his intelligence indicated he was susceptible to coercion, and the defendant indicated that there would be no incriminating evidence in the vehicle.

Comment. The defendant raised in the trial court an argument that officers unjustifiably prolonged the detention beyond the amount of time needed to complete the purpose of the traffic stop. It appears this issue was abandoned on appeal. The Fifth Circuit has issued a few recent opinions defining certain activity as consistent with drug couriers, for instance: being on certain highways, telling confusing stories, and responding to the question “are there drugs in the car” with anything more than a simple “no.”

Texas Court of Criminal Appeals

Crider v. State, No. PD-1070-19 (Tex. Crim. App. 2020)

Issue. Must a DWI blood warrant specifically authorize both the blood draw and the blood testing?

Facts. Officer obtains a blood search warrant authorizing the drawing of blood but not the subsequent chemical testing.

Holding. No. While in State v. Martinez, 570 S.W.3d 278 (Tex. Crim. App. 2019) the Court held that chemical testing of blood constitutes a separate and discrete invasion of privacy for Fourth Amendment purposes, a magistrate who has found probable cause to extract blood from a DWI suspect has necessarily found probable cause to conduct a chemical test on that blood. Martinez is distinguishable on this basis. In Martinez, the State did not extract the blood in the first instance. In Martinez the State obtained the blood from the already-extracted blood sample at the hospital, without a finding of probable cause. Then the State tested that blood, also without a finding of probable cause. Under the Martinez circumstances the testing of blood was unconstitutional. Here the blood was taken by a warrant issued upon a probable cause determination that the blood constitutes evidence to prove the offense of driving while intoxicated. This holding does not authorize “general” search warrants for “general exploratory rummaging in a person’s belongings” prohibited by Walthall v. State, 594 S.W.2d 74 (Tex. Crim. App. 1980)(i.e. the State is not authorized to conduct genetic or other biological analysis, only a BAC analysis).

Concurrence (Newell, J.) (Joined by Hervey, Richardson, Slaughter) Appellant raises persuasive concerns about implying authorization for a second search from a warrant that only authorizes seizure. This could lead to general rummaging warrants. This could lead to forensic searches of computers where a warrant only authorizes seizure. When the search warrant incorporates the probable cause affidavit by reference, the scope of the warrant should be judged against both the warrant and the probable cause affidavit. Here the warrant affidavit is requesting the blood draw to prove the offense of DWI which necessarily implies testing.

Dissent (Walker, J.) The court reads “testing” into the warrant where the magistrate did not explicitly permit testing. The question is not whether there is probable cause to test the blood, it is whether the test was authorized. A magistrate can incorporate the probable cause affidavit in its command: “you are commanded to enter the suspected place described in said affidavit and to seize the same and bring it before me,” or it can incorporate generally and in a manner which explains the finding of probable cause: “the officer swore an affidavit establishing probable cause and it is incorporated by reference.” The latter scenario, which occurred here, does not make for an implication that what the officer wanted to do with the blood after the blood draw was authorized by the magistrate.

Comment. Those judges necessary to form a majority opinion also joined in Judge Newell’s concurrence. Do not let the State use this case to get away with more than what Judges Newell, Hervey, Richardson, and Slaughter and Walker would permit in other contexts.

State v. Castanedanieto, No. PD-1154-19 (Tex. Crim. App. Sept. 16, 2020)

Issue. When a trial court suppresses a confession on the basis of noncompliance with the requirements of Miranda and Article 38.23 of the Code of Criminal Procedure, may the Court of Appeals uphold the suppression on a theory of coercive police interrogation instead?

Facts. Defendant was suspected of committing aggravated robbery. Detective 1 begins the first interrogation by reading the defendant Miranda and Article 38.22 rights. The defendant indicated he did not understand. The detective proceeds with the interrogation anyway, and the defendant confesses. Defendant is later taken before a magistrate where he requests appointed counsel. Following arraignment, detective 2 reinterrogates the defendant “suggesting he may have more to tell the second time around.” During both interrogations, detectives spoke to the defendant using declarative statements or commands indicating that an interrogation would take place. In the trial court, after the State abandoned any attempt to defend the first interrogation, the defendant advanced two legal theories for suppressing the second interrogation: (1) his lack of understanding of his Miranda/Article 38.22 warnings in the first interview which carried forward into the second interview, and (2) the State violated the Sixth Amendment by reinitiating questioning after the defendant requested appointed counsel. The Court of Appeals upheld the trial court suppression on a “coercion theory”—that the detectives use of commands and directives regarding the interrogation amounted to coercive police interrogation.

Holding. No. The Court of Appeals erred by upholding the suppression on a theory not litigated below. Not all un-mirandized statements are coerced statements. While coercion has a presumptive taint which carries forth into subsequent interrogations un-Mirandized statements do not (unless part of a strategy to circumvent Miranda). The State was not on notice in the trial court that it needed to defend against a theory that the second interrogation was presumptively tainted by the first interrogation. The Calloway rule (a claim of reversible error on appeal should be rejected if the ruling is correct on any theory of law applicable to the case) should be resisted when it would work a manifest injustice to the party appealing. Here, affirming on a coercion theory would work a manifest injustice to the State.

Comment. The Court’s analysis makes sense. Miranda is a prophylactic against police interrogation, not a barometer for determining when it occurs. However, coercion and Miranda are in the same constitutional wheelhouse (as demonstrated by intuition of the prosecutor to ask the “you weren’t being coercive” questions of the detective). Will this opinion cut both ways? Will it curtail the State raising new theories on appeal? The use of the Calloway rule seems inconsistent across the State. Compare Scott v. State, 572 S.W.3d 755 (Tex. App.—Houston, [14th Dist.] 2019)(trial court is correct that officer did not have probable cause of intoxication to arrest, but he could have arrested for the Class C traffic violations) with State v. Varley, 501 S.W.3d 273 (Tex. App.—Ft. Worth, 2016)(On appeal the State can’t rely on federal three-brake-light rule adopted by the Transportation Code when litigation in trial court focused on the Transportation Code’s two-brake-light rule).

Price v. State, No. PD-0722-19 (Tex. Crim. App. 2020)

Issue. May officers conduct a search incident to arrest (“SITA”) of a person’s luggage after they had already separated the luggage from the defendant and while the defendant was handcuffed and surrounded by officers?

Facts. Police receive a tip that defendant would be arriving at the airport with marijuana purchased out of state. Police detain defendant, handcuff him behind his back, and transported both him and his suitcases to a “secure office” where he is formally arrested. Officers then conduct a SITA of defendant’s suitcases and discover marijuana. The Court of Appeals found that the luggage was not subject to a SITA (defendant separated from luggage, luggage therefore not immediately associated with defendant, police had eliminated threat of defendant gaining access), and that the search could not survive under an inevitable inventory search theory because the doctrine of inevitable discovery is inapplicable to Texas exclusionary rule—Article 38.23 Code of Criminal Procedure.

Holding. Yes. Whether a receptacle is immediately associated with an arrestee should not be defined by the nature or character of the receptacle, but rather in terms of the arrestee’s connection to the receptacle. When an arrestee is in actual possession of a receptacle immediately preceding arrest, and the receptacle must accompany the arrestee to jail, officers are justified in a SITA of that receptacle. The contents of the receptacle would ultimately be inventoried at the jail or police station for the protection of the police, the arrestee, and the public. Lalande v. State, 676 S.W.2d 115 (Tex. Crim. App. 1984). But Lalande is not the application the inevitable discovery rule—it merely stands for the proposition that inevitable discovery by way of inventory is baked into the standard for SITA. Thus, the inapplicability of the inevitable discovery under Texas’ exclusionary rule is irrelevant here.

Dissent (Keller, J.). Inventory searches are not baked into searches incident to arrest. Lalande is an extension of the inventory exception to the Fourth Amendment which permits some inventorying to occur at the scene of arrest. An inventory search must be conducted pursuant to an existing inventory policy. There was none here.

Dissent (Newell, J.) (joined by Hervey, J.). Lalande is the application of the inevitable discovery rule which this Court subsequently found inapplicable to statutory suppressions under Article 38.23. The U.S. Supreme Court has declared that luggage separated from an arrestee is not subject to SITA. United States v. Chadwick, 433 U.S. 1 (1977). But subsequent opinions create numerous distinctions making SITA confusing. The US Supreme Court should fix this. Even if this were justifiable as an inventory, an inventory search must be conducted pursuant to an existing inventory policy. Here there was none.

Dissent (Walker, J.). The purpose of SITA is officer safety and evidence preservation, and neither were threatened here. SITA also requires exigency. Even if the majority were correct in finding that inventories are baked into the SITA exception, there was no chance the luggage was going to the jail with the defendant. They were the physical evidence which provided probable cause for the arrest. Defendants get to walk away from the jail with the property they bring, this doesn’t include big bags of marijuana.

Comment. In the context of inventory searches, the rationale for requiring adherence to an inventory policy is to separate the good faith from the bad faith use of the inventory exception. Neither the State nor the defendant litigated issues pertaining to inventories. With four judges dissenting, this opinion may be ripe for future discussion.

1st District Houston

Malbrough v. State, No. 01-18-00941-CR (Tex. App.—Houston [1st Dist.], Sep. 1, 2020)

Issue. Is evidence sufficient to convict for “directing activities of a criminal street gang” (“DACSG”) when the defendant assisted the leader of a group committing many robberies, but only on an ad-hoc basis? Is it error to instruct the jury that they may convict a person for DACSG under the law of parties? Can the trial court make a deadly weapon finding when a jury sits as trier of fact?

Facts. This case involved a series of aggravated robberies with similar characteristics (firearms, cell phone stores, sophisticated knowledge of cell phone stores, removal of tracker phones, etc.). Robberies were committed by groups of people with significant overlap in participation. Eventually those involved implicated the defendant as a person who vetted individuals for participation, detailed plans, and supervised the robberies. It appeared from the evidence that a separate individual had a superior role in managing the conspiracy.

Holding. A DACSG conviction requires proof that the defendant was: (1) part of identifiable leadership of a criminal street gang, (2) finances, directs, or supervises, (3) the commission or conspiracy to commit an offense in Article 42A.054(a). A criminal street gang is three or more persons having common identifying sign or symbol or identifiable leadership who continuously or regularly associate in the commission of criminal activities. When aggravated robberies are committed pursuant to a similar scheme and significant overlap in participants and a defendant chooses locations, assigns tasks, gives instructions, and acts as a lookout, that conduct is sufficient to sustain a verdict for DACSG. The court assumes without deciding whether it is appropriate to charge the jury in a DACSG case under the law of parties. The Court of Criminal Appeals has indicated “where the evidence clearly supports a defendant’s guilt as a principal actor, any error in the trial court in charging [the jury] on the law of parties is harmless.” The trial court did err by making a deadly weapon finding when a jury sat as trier of fact. When jury sits as trier of fact, trial court may not properly enter an affirmative finding unless: (1) indictment alleges a deadly weapon was used and defendant was found guilty as charged, (2) indictment alleges a deadly weapon per se (such as firearm), or (3) jury finds true a special issue of fact during punishment phase.

Concurrence (Countiss, J.) writes separately in addition to her authorship of the majority opinion to discuss the revitalization of the doctrine of factual sufficiency under the Texas Constitution. In a factual sufficiency analysis, evidence is reviewed in a neutral light, rather in favor of the verdict, and the Court considers whether the evidence is “so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Under this theory, the Texas constitution provides more sufficiency of evidence protection than Jackson v. Virginia. This is an interesting read if you have time.

Comment.  This is a 60-page opinion plus a concurring opinion, thus the long summary. The law of parties issue here is intriguing, and I wish there were more discussion. The defendant’s “absurd result” argument seems to be correct. If all parties who assist the manager can be prosecuted as the manager, then the distinction of being a manager is eviscerated. Justice Countiss’ opinion on reviving factual sufficiency under the Texas Constitution is equally intriguing. There are many states which rely primarily on the superior protections of their own constitutions. In those states, case law cites rarely to the federal constitution. Could the future behold this trend in Texas?

Pacas v. State, No. 01-18-01016-CR (Tex. App.—Houston [1st Dist.] Sep. 22, 2020)

Issue. Does the Texas Constitution prohibit plea bargaining?

Facts. Article I Section 10 provides: “[i]n all criminal prosecutions, the accused shall have a speedy public trial by an impartial jury.” Article I Section 15 provides: “[t]he right of trial by jury shall remain inviolate” but authorizes the legislature to “pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency.” 

Holding. Article I Sections 10 and 15 are in pari materia—when two or more statutes that deal with same general subject, have the same general purpose, or relate to the same person or thing the specific statute prevails. Here Article I Section 15’s delegation to the legislature to regulate jury trials and maintain their efficiency is an acknowledgment that jury trial may be waived, and a defendant sentenced by way of plea bargaining. The history of the Texas Constitution and Code of Criminal Procedure support this conclusion.

Dissent (Goodman, J.). Article I Section 10 creates an absolute requirement that all prosecutions of felony offenses be tried by a jury. The majority’s opinion exacerbates the “the proliferation of the plea bargain and the resultant scourge of mass incarceration.”

Comment. I like this case. It’s got trial by combat, the Constitution of Coahuila & Texas, and it gets real on criminal justice reform.

2nd District Fort Worth

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

3rd District Austin

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

4th District San Antonio

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

5th District Dallas

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

6th District Texarkana

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

7th District Amarillo

Martin v. State, No. 07-19-00082-CR (Tex. App.—Amarillo, Sep. 28, 2020)(not designated for publication)

Issue. Is wearing the insignia of a group labeled as a street gang by the Texas Antigang Center sufficient evidence to establish that an individual is a member of a criminal street gang for purposes of “unlawfully carrying a weapon while a member of a criminal street gang?” (“UCW-CSG”).

Facts. Defendant was stopped for speeding on his motorcycle. The officer noticed that the defendant had a vest which read “Cossacks MC.” During a pat-down the officer discovered a firearm and arrests him for the UCW-CSG. At trial it was shown that the defendant had no prior criminal history, was present at the Waco Twin Peaks during the Cossack-v-Bandido shootout, and had charges arising from that ordeal which were ultimately dismissed.

Holding. No. For purposes of the statute an individual must not only be a member of a three-plus person group with a symbol or sign or identifiable leadership, but also must continuously associate in the commission of criminal activities. Here there was no evidence that the defendant associated in any criminal activities.

Comment. “The only thing I have is just intelligence” was the gang specialist’s reply when asked whether he was aware of any Cossack-related criminal activity in the area. I’m sure it sounded different in person, but it might also be my new favorite phrase.

8th District El Paso

Boltos v. State, No. 08-19-00020-CR (Tex. App.—El Paso, Sep. 11, 2020)

Issue. Can conduct occurring in another state contribute to the basis of an aggregated theft conviction? Does double jeopardy require reversal when conduct forming basis of aggregated theft conviction potentially overlap with conduct forming basis of several individual theft convictions? Does the Miller third-party doctrine (no expectation of privacy in subpoena for bank records) remain good law after recent opinions declining to apply Miller to cell tower location data? 

Facts. A woman in her 30s used fictitious personas and engaged in fake romantic relationships with senior citizens and exploited these relationships to obtain over $1.6 million. Depending on the victim, she presented as a widow, ill with various conditions, a cancer patient, or a homeless mother. The jury convicted her of: (1) an aggregated theft charge for conduct occurring over six years, (2) five individual thefts falling within the same six-year period, and (3) exploitation of elderly.

Holding. Yes—conduct occurring in another state may contribute to an aggregated theft conviction. Aggregation creates a single offense for purposes of jurisdiction and venue. If Texas has jurisdiction over a part of the aggregated theft claim, it has jurisdiction over the entire claim. No—double jeopardy does not require reversal. Unobjected-to double jeopardy claims are reversible only when: (1) undisputed facts show the violation is clearly apparent, and (2) enforcement of waiver would serve no legitimate interest. Here neither prong is met. In theory the jury could have used ABC conduct to convict under the aggregated theft charge, and XYZ conduct to convict under the individual theft charges. Also, the promotion of correcting errors at the trial court level presents a legitimate state interest. Yes—the Miller third party doctrine remains good law until overruled by a higher court. The current state of law provides that there is no expectation of privacy in bank records as they have been turned over to the bank—a third party. United States v. Miller, 425 U.S. 435 (1976). The Court acknowledges recent opinions call this doctrine into question. Carpenter v. U.S., 138 S.Ct. 2206 (2018)(third-party doctrine does not overcome Fourth Amendment in cell tower location data); Holder v. State, 595 S.W.3d 691 (Tex. Crim. App. 2020) (third-party doctrine does not overcome Texas Constitution in cell tower location data).

Comment. The double jeopardy issue here is interesting. While a theoretical jury may have applied a different set of facts to each of their convictions, it’s highly unlikely that someone in the jury room spoke up and said, “for the sake of double jeopardy concerns, let us compartmentalize.” This is a problem with the standard, not the opinion.

Black v. State, No. 08-19-00259-CR (Tex. App.—El Paso, Sep. 15, 2020)

Issue. Does an indictment for aggravated assault by threat fail to provide adequate notice when it does not describe the threatening conduct but does allege that the defendant exhibited a deadly weapon? Did harmful error result by the admission of extraneous offenses without instructing the jury to limit their consideration of such offenses to their probative value in rebutting the defendant’s claim of self-defense?

Facts. Defendant went to Hooters, made inappropriate comments to the hostess and was escorted out of the restaurant by the manager. Defendant pulled out a knife. According to the manager, Defendant was yelling, was waving the knife around, and advanced toward him. According to the defendant, he pulled the knife because the manager was pursuing him, and he felt threatened. Defendant filed a motion to quash the indictment and argued that using a knife (indictments sole allegation) is not inherently criminal and without a description of the threat, he was without sufficient notice and unable to adequately prepare his defense. The trial court denied the motion to quash. At trial the State questioned the defendant about four prior misdemeanor assaults to rebut his claim of self-defense.

Holding. No, the indictment was sufficient. While there is no statutory definition for “threat” and some case law would tend to suggest a threat should be described, here the allegation that a knife was used or displayed provides sufficient description of what the threatening conduct entails. No, the admission of prior offenses to rebut self-defense without a limiting instruction was error, but not harmful error. There were two eyewitnesses to the offense, the defendant admits to being angry and pulling a knife. On direct examination the defendant also admitted to having “quite a bit” of trouble with the law.

Comment. The Court declines to specifically state whether an indictment alleging assault by threat must describe the threat. It discusses a case from the Court of Criminal Appeals which requires a description of the threat in the context of a Retaliation charge. Doyle v. State, 661 S.W.2d 726 (Tex. Crim. App. 1983). The distinction of significance here is the allegation of a deadly weapon, it would seem in the absence of a deadly weapon allegation, the indictment would fail for lack of specificity.

9th District Beaumont

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

10th District Waco

Jones v. State, No. 10-19-00307-CR (Tex. App.—Waco, Sep. 9, 2020)(not designated for publication)

Issue. Does an officer’s potentially mistaken belief about the number of license plate lights required on a vehicle lend itself to an objectively reasonable mistake of law (“not the result of a sloppy study of laws he is duty-bound to enforce”)?

Facts. An officer stops a vehicle equipped with two license plate lights because one license plate light is not emitting light.

Holding. Yes. It is reasonable for an officer to not know whether the Transportation Code requires two illuminated taillights or one. The Court assumes without deciding that the Transportation Code only requires one.

Comment. This is an unpublished opinion, but it is rare for Courts to invoke Heien v. North Carolina. Generally, most courts require officers to have a reasonably strong grasp on the Transportation Code—or as Heien put it not be “sloppy” in the study of laws. The statute here clearly speaks of a license plate “taillamp” in the singular. The court analogized an officer’s mistake about whether a taillight mounted on the cab constituted one of the two lamps required at the “rear of the vehicle” to the instant case. See State v. Varley, 501 S.W.3d 273 (Tex. App.—Ft. Worth, 2016)(caution, all three lamps are indeed required when the State properly argues the correct statute). The issue of whether “rear” means “utmost rear” is of quite a different nature than the issue of whether there is an “s” on the end of the word “taillamp.”

King v. State, No. 10-19-00354-CR (Tex. App.—Waco, Sep. 23, 2020)

Issue. Is a defendant denied a just hearing and reasonable opportunity to defend himself when the trial court resolves an uncontested motion in limine and inquires as to how the defendant intends to plead in his absence?

Facts. The following transpired without the defendant present in the courtroom: (1) trial court granted an uncontested motion in limine, (2) an inquiry and response as to the defendant’s plea and intent to stipulate to indictment paragraphs, (3) an inquiry and response as to whether the defendant intended to be disruptive during trial, (4) a discussion on how voir dire would proceed under an assumption the defendant would plead guilty. The following day the court asked the defendant how he intended to plead and the defendant responded that he wished to plead guilty and have a trial before the jury on punishment.

Holding. No. While both Article 28.01 of the Code of Criminal Procedure and the Sixth Amendment provide that a defendant’s presence at pretrial hearings is required, this error is reversible only when the defendants presence bears a reasonably substantial relationship to the opportunity to defend or when his absence would thwart a fair and just hearing. When the defendant’s insight is not needed for the trial court to rule on an issue or where the defendant does not have any information which varies from that possessed by his attorney, the error is harmless beyond a reasonable doubt (standard of review applicable to constitutional error).

Dissent (Gray, C.J.) When the trial court inquired whether the defendant intended to be disruptive, trial counsel responded that his client believed he could fire counsel and delay trial. Then an unknown conversation took place off the record. This could have impacted the trial court’s attitude toward the defendant. There is insufficient information to find this constitutional error harmless.

Comment. Chief Justice Gray’s argument becomes stronger if the sentencing had been before the trial court. We have all been in the situation where our relationship with a client creates feelings of empathy with those who are responsible for seeking or imposing punishment. While the colloquy outside the presence of the defendant here does not seem particularly damning, it’s always important to remember when you become the subjection of your client’s animosity, he or she may soon be a person with nothing but time and appeals.

11th District Eastland

State v. Whitman, No. 11-18-00001-CR (Tex. App.—Eastland, Sep. 11, 2020)

Issue. Does placing merchandise in a bag of unknown ownership and concealing it inside a store constitute a completed offense sufficient to give rise to probable cause for an arrest? If the offense is completed inside the store (by concealment or staging), does the description of the offense by a loss prevention officer (“LPO”) constitute an offense committed within the view of an officer sufficient to meet the arrest-without-warrant requirement of Article 14.01 of the Code of Criminal Procedure?

Facts. This is a published opinion on denial of rehearing and a case previously summarized in the June SDR. A short recitation facts: LPO observes defendant conceal property in a bag and place under a chair inside the store, LPO tells the reporting officer about it, reporting officer arrests based on LPO’s summary. The trial court suppressed evidence based primarily on the argument that the defendant’s conduct did not give rise to a sufficiently clear intent to appropriate property and distinguished cases where a theft can be completed without exiting the store with property. On the State’s appeal, the defendant presented the additional theory that no offense occurred in the presence of an officer and thus violated Article 14.01 (warrantless arrest requires probable cause + an explicit statutory exemption such as an offense occurring in presence of an officer).

Holding. No—without evidence that an individual placed property into an article or enclosure used to store personal possessions (purse, pockets, etc.), the placing of items in a bag of unknown ownership underneath a chair inside the store does not constitute theft. No—where the theory of theft is concealment of merchandise inside the store, the theft, if any, is complete after items are concealed. Receiving a description of the defendant’s conduct from an LPO does not constitute an offense occurring in the presence of an officer and arrest under these circumstances, without more violates Article 14.01. The 11th Court of Appeals denies rehearing in a written opinion whereby the State proposes Article 14.01 does not require an officer to personally observe any portion of an offense. The Court notes that some intermediate appellate courts take the position that “committed in his presence or within his view” does not mean personal observation. The State cites State v. Woodard, 341 S.W.3d 404 (Tex. Crim. App. 2011) for the proposition that the Court of Criminal Appeals impliedly eliminated the requirement of personal observation. But the Court cited a more recent opinion, State v. Martinez, 569 S.W.3d 621 (Tex. Crim. App. 2019) for the proposition that it did not.

Comment. It will be interesting to see whether the State takes this case further. On one hand, there seems to be disagreement among the Courts what Article 14.01 means. On the other hand, the State lost this case both on probable cause and Article 14.01.

Engel v. State, No. 11-18-00225-CR (Tex. App.—Eastland, Sep. 11, 2020)

Issue. Where a victim flaunts that he stole the defendant’s property, and was the first to draw a firearm, is it proper to charge the jury on “provoking the difficulty” (a circumstance barring self-defense) when a defendant, knowing that the victim was carrying a pistol and behaving erratically, threatens to kick the victim’s ass, and racks his shotgun.

Facts. A neighbor observes a verbal altercation, observed the defendant retrieve something from his truck, and later heard a blast sounding like a gun. Officers later respond to the residence where the altercation took place and discover a sawed-off shotgun inside and a pistol concealed inside a toboggan outside on the porch. Defendant tells police he shot the victim when the victim pulled the pistol from the toboggan and that he did not retrieve a gun from the truck—that it was always inside the house. Defendant testified that they had been in two physical altercations, one earlier in the day, one where the victim pulled a gun on him. The owner of the home testified that the victim had been there and was acting crazy and recklessly with the pistol and took a video camera from the home belonging to the defendant. The owner testified that the victim wanted the defendant to know he was taking the camera. The two ultimately ended up in an argument at the home about the video camera.

Holding. Yes—an instruction on instigating the provocation requires three elements: (1) the defendant did some act or used some words which provoked the attack, (2) such act or words were reasonably calculated to provoke the attack, and (3) the act was done or the words were used for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon the other. The focus here is on the third prong. The Court notes that improper provocation instructions usually involve a defendant and victim who are strangers. The victim and defendant were not strangers—they had an ongoing turmoil. A rational jury could have found beyond a reasonable doubt that the defendant’s acts and words were calculated to provoke the victim to pull a pistol the defendant knew the victim was carrying.

Comment. A very fact specific case. It seems like a toss-up whether the defendant’s aggressive acts and words were meant to scare off the victim who was looking for an altercation or calculated to create a pretext for killing the victim.

12th District Tyler

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

13th District Corpus Christi/Edinburg

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

14th District Houston

Torres v. State, No. 14-19-00286-CR (Tex. App.—Houston [14th Dist], Sep. 3, 2020)

Issue. Was trial counsel ineffective for failing to tie his objection to the Sixth Amendment when complaining that a reviewing analyst was testifying to the results of a test which incorporate work performed by a different testing analyst?

Facts. Forensic examiner takes a buccal swab and a fingernail swab. Testing analyst tested the DNA extracted from the fingernails. Reporting analyst prepares report, testifies to lab procedures, and concludes that defendant could not be excluded as a DNA contributor. Trial counsel’s objection was imprecise but generally communicated a concern that the reporting analyst cannot testify to the results of an analysis she did not perform.

Holding. No—to prevail on a claim of ineffective assistance, a defendant must show that the trial court’s overruling of an imprecise objection would have been in error had a more precise objection been articulated properly. Here the testimony of the reviewing expert did not violate the Confrontation Clause. The important inquiry in determining whether an analysts’ testimony is indispensable under the Confrontation Clause is whether the analyst performed a crucial analysis or merely reported raw data. The Court distinguished Bullcoming v. New Mexico, 564 U.S. 647 (2011)(Analyst who tested blood and prepared report must testify in DWI trial), and Burch v. State, 401 S.W.3d 634 (Tex. Crim. App. 2013) (testimony from a reviewing analyst who double checked everything is not an adequate substitute for cross examination of a testing analyst). The Court found Paredes v. State, 462 S.W.3d 510 (Tex. Crim. App. 2015) controlling. In Paredes, the Court of Criminal Appeals determined that a reviewing expert can offer testimony based on a forensic analysis performed by a testing analyst if the reviewing expert is presenting his or her own opinions and conclusions and not acting as a surrogate for the testing results, and that raw computer-generated data produced by a testing analyst in a DNA case is not testimonial.

Concurrence (Spain, J.) Questions whether the record is sufficient to decide one way or another the issue of ineffective assistance. More detail is needed to determine who the testing analyst was and whether their report was authentic. Points out that the rule from Paredes may be in jeopardy as it has been challenged in a case now before the Court of Criminal Appeals.

Comment. A reviewing expert has no opinion but for the analysis of a testing analyst. So, how one might give an opinion as a non-surrogate is difficult to grasp. If we are to truly compare and distinguish Bullcoming (blood analyst indispensable), the question arises whether the a blood alcohol analyst is looking at the results of a mass spectrometer and giving an opinion as to what they mean, or merely reporting the raw data reported by the machine. If the latter, then the Paredes raw-data-or-crucial-analysis distinction does not seem to hold up.

Macedo v. State, No. 14-19-00386 (Tex. App.—Houston [14th Dist.] Sep. 15, 2020)

Issue. Does Article 37.07 of the Code of Criminal Procedure permit the introduction of a prior criminal offense report into evidence during the punishment phase of trial over a defendant’s hearsay objection?

Facts. The trial court admitted an offense report detailing a previous assault by the defendant committed upon the victim of a murder during the punishment phase of trial.

Holding. No—despite the broad language of Article 37.07 (“evidence may be offered . . . as to any matter the court deems relevant to sentencing”), the Court of Criminal Appeals has at least implied that a trial court may not completely disregard the rules of evidence at the punishment phase of a non-capital case tried to a jury.

Comment. This may not be the case under Section 3(d) which permits the court to consider a PSI which may include prior offenses in the form of hearsay.

Igboji v. State, No. 14-17-00838-CR (Tex. App.—Houston [14th Dist.] Sep. 22, 2020)

Issue. When an investigator tells a suspect he must seize their phone, does an act of compliance (handing the phone over) constitute consent? Is an unarticulated fear of Snapchat’s automatic deletion feature sufficient to justify exigent circumstances?

Facts. KFC is robbed. Several employees including the defendant were present. Investigators interview employees who “seem suspicious” of the defendant. One employee shows an investigator a Snapchat video posted by the defendant showing officers investigating the scene after the robbery. Defendant meets with an investigator who asks the defendant to share his Snapchat videos. Defendant declines. Investigator informs the defendant that he “had no other option but to seize his cell phone” and the defendant “complied” and handed the phone over. Two days later the investigator obtains a warrant by affidavit alleging as probable cause that the defendant is a lazy employee who left the back door unlocked and who didn’t want to share his Snapchat video. In the trial defendant alleges that the seizure of the phone was unconstitutional. On appeal the defendant alleges the seizure was unconstitutional and it was searched without a warrant.

Holding. No—submission to authority of police after declining consent is not consent. The exigent circumstances presented by the auto-deletion feature of Snapchat is undecided here. No—there are not exigent circumstances. The State failed to prove up any facts which would show that defendant’s videos were subject to automatic deletion.

Dissent (Christopher, J.) Believes exigent circumstances were present and that individuals have less privacy interests in a seizure than they do a search. Would find probable cause based on possibility the defendant was involved in a robbery and the possibility that there is evidence on his phone.

Comment. A confusing series of arguments. The issues presented in the fact pattern are: (1) seizure without warrant, and (2) warrant issuance without probable cause. Neither the arguments in the trial court nor the arguments on appeal appear to raise the second issue. The court interpreted the defendant’s brief to raise issue with a warrantless seizure and a warrantless search. Clearly there was a warrant. It was just based on really bad probable cause. Remember, the existence of exigent circumstances alone is not sufficient to conduct a warrantless search, there must also be probable cause. Gutierrez v. State, 221 S.W.3d 680 (Tex. Crim. App. 2007).

Hernandez v. State, No. 14-19-00254-CR (Tex. App.—Houston [14th Dist.] Sep. 22, 2020)

Issue. When a detective misplaces material evidence and later finds it in the middle of trial, is the trial court obligated to grant a mistrial?

Facts. Defendant and complainant were coworkers who carpool. On the date of the incident they both left work early to drink, smoke and hang out. Defendant explained the details of the day which lead to an altercation. Defendant believed he shot the complainant in self-defense. One significant piece of contested testimony was whether the complainant was receiving calls from dangerous people attempting to collect money. The complainant denied this fact and stated it was impossible due to the lack of minutes on his phone. A detective extracted the data from the complainant’s phone near the date of the altercation. This data was placed on a CD which the detective lost before trial. But, during trial she found it. The trial court prohibited the State from using the contents of the disc, but not before the detective testified that nothing useful was found. The trial court gave defense counsel an opportunity in the middle of trial to attempt to analyze 7,098 pages of extracted data on the CD and denied defendant’s motions for mistrial and new trial.

Holding. No—there was no bad faith on the part of the prosecutor or detective thus the extreme remedy of mistrial was not warranted. “Because a mistrial is a serious remedy, it should be reserved for only extreme situations of highly prejudicial and incurable misconduct.” After the defense had an opportunity to review the disc post-verdict and file a motion for new trial, said motion failed to articulate any prejudice in the State’s failure to disclose, i.e. what materially helpful information was contained on the disc. On appeal the information on the disc cited to by the defendant is too hypertechnical for the Court to conclude that it undermines the complainant’s story, nor were they brought to the attention of the trial court (imagine how trial counsel felt).

Dissent (Hassan, J.). A thorough discussion of a defendant’s right to discovery and remedies for violations. “This case represents and abject failure to protect that which due process, Brady, and the Michael Morton Act purport to safeguard in our criminal justice system.” Neither the Michael Morton Act nor Brady require consideration of good faith v. bad faith of the prosecutor.

Comment. “A mistrial is an appropriate remedy in extreme circumstances for a narrow class of highly prejudicial and incurable errors.” Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). In the context of prosecutorial misconduct, some courts add an additional element of “bad faith” on the part of the prosecutor. But what about accidents which rise to the level of highly prejudicial?

Ithalangsy v. State, No. 14-18-00205 (Tex. App. Houston [14th Dist.] Sep. 24, 2020)

Issue. When Victim 1 and Victim 2 are both killed in the course of kidnapping of Victim 2, is the ultimate murder of Victim 2 relevant evidence in the prosecution for capital murder of Victim 1? Does the unfair prejudice substantially outweigh probative value?

Facts. Victim 1’s girlfriend owed money on a drug deal gone bad. Defendant is alleged to have twice kidnapped Victim 1’s girlfriend (Victim 2). At trial, Defendant is alleged to have shot and killed both Victim 1 and Victim 2. The trial court allows the State to introduce evidence of both murders over defendant’s relevance objection.

Holding. No—the State was required to prove that the defendant killed Victim 1 in the course of kidnapping Victim 2. Defendant’s connection to the murder of Victim 2 was insufficiently established, nor did the murder of Victim 2 did help prove that she was kidnapped. Yes—because there was no probative value, the unfair prejudice substantially outweighed the prejudice.

Dissent (Christopher, J.). Rule 404(b) permits the proof of interconnected crimes. Victim 2’s ultimate murder showed that the defendant intended to prevent her liberation by using deadly force—an element of kidnapping and thus an element of Victim 1’s capital murder committed in the course of kidnapping. This probative value is not substantially outweighed by prejudice.

Comment. A capital murder reversal. A 403 reversal. A relevance reversal. These are rare occurrences.

Smith v. Texas, No. 14-19-00097 (Tex. Crim. App.—Houston [14th Dist.] Sep. 29, 2020)

Issue. Prior to sentencing, may a defendant with intellectual disability withdraw his guilty plea by claiming he did not understand the trial court would sentence him as a habitual offender?

Facts. Appellant was charged with Theft Less Than $2,500 enhanced with prior thefts, and enhanced again with previous convictions as a habitual offender. Before his plea, a psychiatrist evaluated the defendant and found he suffered from “Unspecified Intellectual Disability” and “Schizophreniform Disorder” and possessed a “low average IQ.” At the plea, defendant signed paperwork indicating he was aware of the habitual offender punishment range. The trial court admonished the defendant, received the defendant’s plea, found defendant guilty, and set the cause for a punishment hearing. Prior to the punishment hearing, defendant moved to withdraw the guilty plea on the basis of not having understood the enhanced habitual offender punishment range.

Holding. No—a defendant has a right to withdraw a guilty plea only until judgment has been pronounced or the case taken under advisement. Here the case was passed for a presentence investigation which constitutes taking the case under advisement. The trial court’s rejection of defendant’s claim of involuntariness was not an abuse of discretion. Defendant signed and verbalized his acknowledgment of the punishment range.

Concurrence (Frost, C.J.). The arguments on appeal—diminished mental capacity—do not comport with the arguments in the trial court.

Comment. The defendant stole lingerie from Walmart. He was sentenced to 60 years. I sympathize with the defendant’s confusion (with my average mental capacity).

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

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

Previous Story

October 2020 SDR – Voice for the Defense Vol. 49, No. 8

Next Story

December 2020 SDR – Voice for the Defense Vol. 49, No. 10

Latest from SDR