October 2011 SDR – Voice for the Defense Vol. 40, No. 8

Voice for the Defense Volume 40, No. 8 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

DePierre v. United States, 131 S. Ct. 2225 (U.S. 2011); Affirmed (9–0)

DePierre was indicted for distribution of 50 grams or more of cocaine base under 21 U.S.C.S. §841. The district court declined DePierre’s request that the jury be instructed that, in order to find DePierre guilty of distribution of “cocaine base,” it must find that his offense involved crack cocaine. DePierre was convicted, and the court sentenced him to the 120 months in prison mandated by the statute. The First Circuit affirmed, adhering to its precedent that “cocaine base” refers to all forms of cocaine base. The opinion also notes that the Second, Third, Fourth, Fifth, and Tenth Circuits interpret the statute the same way.

HELD: “‘[C]ocaine base,’ as used in § 841(b)(1), means not just ‘crack cocaine,’ but cocaine in its chemically basic form.”

Sykes v. United States, 131 S. Ct. 2267 (U.S. 2011); Affirmed (6–3)

Sykes pleaded guilty to being a felon in possession of a firearm. A district court enhanced Sykes’ sentence under the Armed Career Criminal Act (ACCA) after determining that he had previously been found guilty of three violent felonies. The Seventh Circuit affirmed, noting that “fleeing police in a vehicle in violation of Ind. Code §35-44-3-3(b)(1)(A) is sufficiently similar to ACCA’s enumerated crimes in kind, as well as the degree of risk posed, and counts as a violent felony under ACCA.”

HELD: “Felony vehicle flight, as proscribed by Indiana law, is a violent felony for purposes of ACCA.” Justice Thomas concurred: “[T]he majority errs by implying that the ‘purposeful, violent, and aggressive’ test may still apply to offenses ‘akin to strict liability, negligence, and recklessness crimes.’” Justice Scalia dissented and chastised the majority for an “ad hoc judgment that will sow further confusion.” Justice Kagan also dissented: “Vehicular flight comes in different varieties, and so too the statutes that criminalize the conduct. . . . Because petitioner Marcus Sykes was convicted only of simple vehicular flight, and not of any flight offense involving aggressive or dangerous activity, I would find that he did not commit a ‘violent felony’ under ACCA.”

Flores-Villar v. United States, 131 S. Ct. 2312 (U.S. 2011); Affirmed (4–4)

A federal district court convicted Flores-Villar under the Immigration and Nationality Act (INA) of being a deported alien in the United States. On appeal to the Ninth Circuit, Flores-Villar argued that the relevant provisions of the INA violated the Equal Protection Clause of the Fifth Amendment on the basis of age and gender. The provisions impose a five-year residency requirement, after age 14, on U.S. citizen fathers but not mothers whose residency requirement is merely one year. The Ninth Circuit applied the holding in Nguyen v. INS, 533 U.S. 53 (2001), which did not deal precisely with the provisions before the court, but held that other more onerous residency requirements for fathers but not mothers in the INA did not violate the Equal Protection Clause. The court concluded that the provisions challenged by Flores-Villar also did not violate the Equal Protection Clause and affirmed the district court.

HELD: Without deciding whether Nguyen v. INS permits gender discrimination that has no biological basis, the Court affirmed the lower court.

Tapia v. United States, 131 S. Ct. 2382 (U.S. 2011); Reversed, remanded (9–0)

Tapia was convicted of bringing illegal aliens into the United States and of jumping bail after being charged with immigration crimes. Following the jury trial, a district court judge sentenced Tapia to 51 months in prison, noting that one factor in giving her a longer sentence was to make sure she remained confined long enough to take part in a drug rehab program. Tapia appealed the sentence, arguing that the district court committed plain error by basing her sentence on speculation about whether and when she could enter and complete the Bureau of Prison’s 500-hour drug abuse treatment program. But the Ninth Circuit affirmed the lower court.

HELD: “[18 U.S.C. §] 3582(a) does not permit a sentencing court to impose or lengthen a prison term in order to foster a defendant’s rehabilitation.”

J.D.B. v. North Carolina, 131 S. Ct. 2394 (U.S. 2011); Reversed, remanded (5–4)

J.D.B. was a 13-year-old special education student in 2005 when the police showed up at his school to question him about a string of neighborhood burglaries. The police had learned that the boy was in possession of a camera that had been reported stolen. The boy was escorted to a school conference room, where he was interrogated in the presence of school officials. J.D.B.’s parents were not contacted, and he was not given any Miranda warnings. J.D.B. confessed to the crimes, but later sought to have his confession suppressed on the basis that he was never read his Miranda rights. He argued that because he was effectively in police custody when he incriminated himself, he was entitled to Miranda protections. The North Carolina Supreme Court held that it could not consider the boy’s age or special education status in determining whether he was in custody, and because he was not in custody, he was not entitled to Miranda warnings.

HELD: Courts should consider the age of a juvenile in deciding whether he or she is in custody for Miranda purposes. “It is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave. Seeing no reason for police officers or courts to blind themselves to that commonsense reality, we hold that a child’s age properly informs the Miranda custody analysis.” The Court remanded to the state court to determine whether the youth was in custody when he was interrogated.

Fifth Circuit

United States v. Oliver, 630 F.3d 397 (5th Cir. 2011)

(1) In mail fraud/aggravated identity theft prosecution, district court did not err in denying defendant’s motion to suppress the contents of a box in his girlfriend’s apartment that she searched prior to turning it over to police. Where a private individual examines the contents of a closed container, a subsequent search of the container by government officials is not an unlawful Fourth Amendment search as long as the government search does not exceed the scope of the private search. The lawfulness of the subsequent police search does not depend on the police’s knowledge of the private search. The initial private search, which was reasonably foreseeable, and the searcher’s act, later that day, of voluntarily giving authorities the box, in which no reasonable expectation of privacy remained, rendered the police search permissible. Judge Garza dissented that Fifth Circuit case law did not support the proposition that a private search could validate subsequent police action even if the police did not know about the private search.

(2) District court did not err in denying defendant’s motion to suppress his statements to law enforcement; under the circumstances, defendant validly waived his Miranda rights by voluntarily speaking to police, notwithstanding his refusal to sign a written waiver form.

Hernandez v. Thaler, 630 F.3d 420 (5th Cir. 2011)

Where the district court applied the then-controlling rule of Salinas v. Dretke, 354 F.3d 425 (5th Cir. 2004), to deny defendant’s federal habeas petition as untimely under the AEDPA’s 1-year statute of limitations, but Salinas was later overruled in Jimenez v. Quarterman, 555 U.S. 113 (2009), that change in the law was not the sort of extraordinary circumstance warranting relief under Fed. R. Civ. P. 60(b)(6). Defendant could not use Rule 60(b)(6) to circumvent the principle that when the Supreme Court announces a new rule of law and applies it to the parties before it, the new rule is given retroactive effect only in cases that are still open on direct review.

United States v. Sanchez-Ledezma, 630 F.3d 447 (5th Cir. 2011)

District court did not err in applying an 8-level enhancement under USSG §2L1.2(b)(1)(C) on the ground that defendant was deported following an “aggravated felony” conviction. Defendant’s prior felony conviction for evading arrest or detention with a motor vehicle (in violation of Tex. Penal Code §38.04(b)(1)) was a “crime of violence” under 18 U.S.C. §16(b) (and hence an “aggravated felony” under 8 U.S.C. §1101(a)(43)(F)) because it presented a substantial risk that physical force would be used in the course of committing the offense, in the form of a confrontation.

United States v. Rodriguez-Juarez, 631 F.3d 192 (5th Cir. 2011)

Although, under Fifth Circuit precedent, a sex offense committed with assent that did not amount to legally valid consent was not a “forcible sex offense” under USSG §2L1.2, that precedent was abrogated by the 2008 amendment to USSG §2L1.2 which explicitly provided that “forcible sex offenses” included ones where the consent was not legally valid. This amendment was specifically meant to abrogate cases like the Fifth Circuit’s where courts had excluded offenses without assent in fact, but no legally valid consent; because this amendment scuttled defendant’s challenge to the 16-level “crime of violence” enhancement under USSG §2L1.2(b)(1)(A)(ii), and because defendant had no other nonfrivolous challenge on appeal, the Fifth Circuit granted defense counsel’s motion to withdraw under Anders v. California, 386 U.S. 738 (1967).

Cantu v. Thaler, 632 F.3d 157 (5th Cir. 2011)

In Texas capital murder prosecution where defendant was sentenced to death, trial counsel did not provide ineffective assistance at the sentencing phase by failing to discover and present evidence of defendant’s bipolar disorder. Trial counsel made a reasonable strategic decision not to investigate defendant’s mental health problems, which would have been inconsistent with the strategy used at trial and which would have opened the door to a state psychiatrist’s examination—which could have strengthened the State’s position that defendant was a psychopath and thus a future danger. With respect to defendant’s ineffective assistance claim during the guilt/innocence phase, this claim was procedurally defaulted because the claim had not been raised in state post-conviction proceedings, and Texas state courts would not consider it if raised in a successive state petition. Nor could defendant show cause and actual prejudice, or a fundamental miscarriage of justice, that would allow defendant to overcome the procedural bar and secure federal habeas review of that claim. Finally, even assuming, arguendo, that freestanding actual innocence may in some circumstances be cognizable in federal habeas, defendant did not meet the “extraordinarily high” standard that would be necessary for such a claim.

United States v. Dickson, 632 F.3d 186 (5th Cir. 2011)

(1) For purposes of 18 U.S.C. §2252(a)(4)(B), images of child pornography are “produced” when they are copied or downloaded onto hard drives, disks, or CDs; therefore, because the government presented sufficient evidence that defendant possessed a CD onto which images of child pornography had been downloaded, and because that CD was manufactured in the Republic of China (thereby satisfying the interstate or foreign commerce element of the statute), the Fifth Circuit affirmed defendant’s conviction.

(2) Where defendant was convicted of one count of possession of child pornography and one count of production of child pornography, the district court plainly erred in calculating the Guidelines when it failed to compute the total offense level for each offense and then apply the Guidelines’ grouping rules; the district court instead applied the base offense level for production and then applied an enhancement for sadistic or masochistic images that applied only to the possession offense. The error resulted in a Guidelines range of 360 months to life, rather than the correct range of 235 to 293 months. Nevertheless, while the lack of an overlap usually means that a defendant’s substantial rights were affected by a Guidelines calculation error, that was not true here; the district court’s selection of the statutory maximum sentence of 840 months (240 months on the possession count and a consecutive 600-month sentence on the production count) for the stated purpose of incapacitating defendant from further crimes against children for the rest of his life, indicated that there was not a reasonable probability that defendant would receive a lower sentence but for the error. Moreover, the sadomasochistic content of the photos underlying the possession count could have been considered by the district court in imposing the sentence, albeit not in the way the district court did here.

United States v. Flores, 632 F.3d 229 (5th Cir. 2011)

The Fifth Circuit “wr[o]te in this case to signal a change in th[at] court’s approach to” cases in which counsel filed a brief, and moved to withdraw, under Anders v. California, 386 U.S. 738 (1967). The Fifth Circuit indicated that it would no longer independently scour the record for any possibly nonfrivolous point that could support an appeal; rather, it would henceforth follow the approach of the Third and the Seventh Circuits and would be guided in reviewing the record by the Anders brief itself, provided that the brief is adequate on its face. Here, the Anders brief was adequate on its face; after review of the brief and the portions of the record referenced therein, the Fifth Circuit accepted counsel’s assessment that defendant had no non-frivolous issues to raise on appeal. The Fifth Circuit granted defendant’s motion to withdraw and dismissed the appeal as frivolous.

United States v. Garland, 632 F.3d 877 (5th Cir. 2011)

In a companion case to United States v. Flores, 632 F.3d 229 (5th Cir. 2011), the Fifth Circuit outlined what it required for an adequate Anders brief: “Anders requires counsel to isolate possibly important issues and to furnish the court with references to the record and legal authorities to aid it in its appellate function.” Although counsel has broad discretion in the preparation of his brief, and no particular form is required, the Fifth Circuit noted that a brief that covers the points raised in the guidelines and checklist for Anders briefs contained on the Fifth Circuit’s website will ordinarily be found to be adequate; if counsel submits such a brief, the Fifth Circuit, as it held in Flores, will no longer independently scour the record looking for appellate issues. Here, however, counsel’s Anders brief fell short of the guidelines and the checklist in several respects; hence, it was not adequate. Accordingly, the Fifth Circuit denied counsel’s motion to withdraw and instructed him to file either a compliant Anders brief or a brief on the merits of any nonfrivolous issue he deemed appropriate.

United States v. Johnson, 632 F.3d 912 (5th Cir. 2011)

Assuming without deciding that defendant had prudential standing to raise the issue, the Fifth Circuit held that the Sex Offenders Registration and Notification Act (SORNA) did not violate the Tenth Amendment. The Tenth Amendment does not forbid conditioning federal funding on a state’s implementation of a federal program, which is what SORNA does; the sex offender registry bargained for is a valid exercise of Congress’ spending power. Assuming without deciding that defendant had standing to challenge the Attorney General’s adoption of an Interim Rule implementing SORNA, the Fifth Circuit, disagreeing with the Second, Third, Eighth, and Tenth Circuits, held that Congress delegated to the Attorney General the decision whether to apply SORNA to pre-enactment offenders, and that SORNA did not apply to offenders with pre-enactment convictions until the Attorney General issued the Interim Rule. Moreover, in promulgating the Interim Rule, the Attorney General violated the notice and opportunity-to-comment requirements of the Administrative Procedures Act (APA). Disagreeing with the Fourth and Eleventh Circuits, the Fifth Circuit found the Attorney General’s reasons for bypassing those provisions unpersuasive and held that they did not constitute “good cause.” However, the Attorney General’s APA violations were harmless error.

United States v. Hampton, 633 F.3d 334 (5th Cir. 2011)

The introductory language in 18 U.S.C. §3583(e)(3) (allowing a court to “revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release”) does not limit the aggregate amount of revocation imprisonment to the length of the supervised release term authorized for the underlying offense. Accordingly, even though the maximum supervised release term for defendant’s underlying offense was three years, and even though she had previously received a 24-month revocation prison sentence, it did not violate the statute, on defendant’s second revocation of supervised release, to impose another 24-month prison sentence.

Court of Criminal Appeals

Direct Appeals

Lucio v. State, No. 76,020 (Tex.Crim.App. 9/14/11); Affirmed (9–0)

Appellant was convicted for the capital murder of her two-year-old daughter and was sentenced to death pursuant to the jury’s answers to the special issues.

HELD: CCA rejected Appellant’s 14 points of error, mostly because Appellant failed to preserve the claims or adequately brief them. CCA mainly addressed three points. In point one, Appellant claimed CCA should remand the case to the trial court to determine whether “the proof has failed on future dangerousness” since the trial court did not “think” it had “discretion to determine that the proof has failed on future dangerousness.” Appellant asked the trial court to enter a judgment notwithstanding the verdict. A trial court has no such authority in a criminal case. In addition, having decided in point of error four that the evidence is legally sufficient to support the affirmative answer to the future-dangerousness issue, CCA did not find it necessary to remand the case to determine whether the proof failed on future dangerousness.

In point two, Appellant claimed she is entitled to a new trial under Tex. R. App. P. 34.6(f)(4) because the “audio of the defendant’s statement to the police is inaudible.” This does not mean these portions of the court reporter’s record are “lost or destroyed” for purposes of Rule 34.6(f). There is nothing missing from the reporter’s record.

In point three, Appellant claimed the trial court erred to admit her recorded statement into evidence. However, the State introduced Appellant’s recorded statement through Detective Cruz and Appellant’s only non-general, specific objection was that “all voices on the recording” were not identified.

Gonzales v. State, No. 76,176 (Tex.Crim.App. 9/28/11); Affirmed (7–2)

In 1995, Appellant was convicted of capital murder and, based on the jury’s answers to the special issues, was sentenced to death. His conviction and sentence were affirmed on direct appeal. Appellant’s state application for habeas corpus relief was denied. Appellant’s federal petition for habeas corpus relief 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 2009, and based on the jury’s answers to the special issues, the judge sentenced Appellant to death.

HELD: CCA rejected Appellant’s five points of error. Most notably, in points two and three, Appellant claimed the trial court erred when it denied his challenges for cause to venire persons Sarah Murdock and Randall Phillips. The issue is whether the trial court’s rulings on Appellant’s challenges for cause harmed Appellant by depriving him of one of his statutorily allotted peremptory challenges. Appellant argues that Murdock, based on her answers, could not afford Appellant the right to remain silent and would shift the burden of proof to Appellant on the issue of future dangerousness. The record supports that Murdock was not challengeable on these bases, and point of error two is overruled. Because Appellant has not shown that the trial court improperly denied his challenges to at least two venire persons, he cannot show reversible error. Therefore, CCA need not address Appellant’s third point of error regarding Phillips.

Writs of Prohibition and Mandamus

State v. Creuzot, Nos. 76,594-95 (Tex.Crim.App. 7/27/11); Conditionally granted (8–1)

Defendant in a pending capital-murder retrial is seeking a declaratory judgment that if he goes to trial and is found guilty, then it would violate his constitutional rights for the State to seek the death penalty. His claim is based solely on unique facts: He did not obtain relief in the appellate courts for 30 years, and, because of this lengthy delay, he has lost access to witnesses and documents that may have assisted him in a punishment mitigation case regarding race-based peremptory challenges. After several evidentiary hearings, trial judge Creuzot granted defendant’s motion. The State filed writs of mandamus and prohibition to require Creuzot to vacate his order.

HELD: Defendant has failed to offer legal authority supporting a pretrial declaratory judgment that the State should be forbidden from seeking the death penalty when some potentially useful evidence is no longer available. The U.S. Supreme Court held that to succeed on a similar pretrial challenge, the defense must show at trial that the delay did, in fact, cause substantial prejudice to his right to a fair trial; and second, the defense must show that the government intentionally delayed its indictment for the purpose of gaining a tactical advantage. Here, defendant failed to show any actual and substantive prejudice to his mitigation case because he has not yet presented that case. Additionally, as a matter of law, defendant cannot demonstrate that the State intentionally or purposely delayed the appellate process to gain a tactical advantage in a retrial. It was defendant who invoked those appellate procedures, and there has been no showing that the State acted in bad faith in its appellate duties. Finally, it cannot be persuasively argued that the State could have, or should have, predicted the dramatic changes in the law concerning peremptory challenges between 1983 and 2005.

Writ of Habeas Corpus

Ex parte Warren, No. 76,435 (Tex.Crim.App. 9/28/11); Denied (9–0)

Applicant alleges that because he has never been convicted of a sex offense, he was entitled to the requisite due process procedures when the Texas Department of Criminal Justice-Parole Division placed sex-offender conditions on his parole.

HELD: No process was due to applicant because his computerized criminal history file, maintained by the Texas Department of Public Safety, which was corroborated by police agency records, establishes that applicant had prior sex-offense convictions from Illinois. The elements of the Illinois offense are sufficiently similar to the elements of the Texas offense of In­decency with a Child, which is a qualifying offense for the imposition of sex offender conditions.

State’s PDRs

Cosio v. State, No. 1435-10 (Tex.Crim.App. 9/14/11); Reversed, remanded (9–0)

Appellant was indicted for four counts of sexual assault of a child. During trial, Appellant requested the State elect as to the counts that it would proceed under. The jury charges coincided with the State’s election and generally instructed the jury, at the end of each charge, that its verdicts must be unanimous. Appellant did not object to the charges on the basis that they allowed for non-unanimous verdicts. The jury found Appellant guilty on all counts.

On appeal, Appellant challenged the sufficiency of the evidence and alleged that the jury charges contained egregious error because they permitted non-unanimous verdicts. COA held that the evidence was insufficient for one of the convictions and that the jury charges were erroneous.

HELD: The jury instructions were erroneous because there were several instances of sexual criminal conduct that could have satisfied the charged offenses, and the judge failed to instruct the jury that it must be unanimous about which instance satisfied each charge. Appellant requested elections; therefore, the State was forced to prove, beyond a reasonable doubt, the incidents of criminal conduct that it elected to rely upon. A jury charge error is not forfeitable by a defendant’s failure to object at trial; this failure only controls the applicable harm analysis. CCA disagreed with COA and held that Appellant was not egregiously harmed because it is logical to suppose that the jury unanimously agreed that Cosio committed all of the separate instances of criminal conduct during each of the four incidents. CCA reversed and remanded to COA to address Appellant’s remaining points of error as they relate to the three convictions not overturned by COA.

Snowden v. State, No. 1524-10 (Tex.Crim.App. 9/28/11); Reversed, remanded (8–1)

At the end of the prosecutor’s summation at the guilt phase of trial, the prosecutor said, “[Appellant] doesn’t give two hoots about the mother of his baby or his baby because he looks her in the eye and punches her in her 38-week-old stomach without remorse, just like he is today.” Appellant immediately objected that this argument constituted a comment on his failure to testify, but the trial court overruled the objection.

Appellant was subsequently convicted by a jury of family-violence assault of a woman who was pregnant with his child. The jury assessed punishment at two years’ imprisonment. COA reversed Appellant’s conviction and remanded the cause to the trial court for a new trial, holding that the trial court erred in overruling Appellant’s objection to the State’s improper jury argument commenting on his failure to testify. COA was unable to conclude beyond a reasonable doubt that the trial court’s error did not contribute to Appellant’s conviction or punishment.

HELD: Beyond a reasonable doubt that the error in allowing the prosecutor to comment on Appellant’s lack of in-court remorse was simply unimportant in relation to everything else the jury considered on the issue of whether Appellant was previously convicted of family-violence assault. Furthermore, Appellant received a two-year sentence and no fine—the minimum punishment he could have received for this third-degree conviction.

State v. Weaver, No. 1635-10 (Tex.Crim.App. 9/28/11); Affirmed (6–3)

Four police officers came to Weaver’s welding shop looking for someone wanted in another county. Weaver gave the officers consent to search for that person. The officers, over Weaver’s objection, ended up searching a van on his property and finding drugs in it. The trial judge granted Weaver’s motion to suppress because he found that the search of the van exceeded the scope of Weaver’s consent. COA, over a dissent, affirmed. The State’s PDR asked: “May police conduct a dog sniff of the exterior of an unoccupied vehicle in the parking lot of a business without the permission of the owner of the business?”

HELD: The trial court did not abuse its discretion in granting Weaver’s motion to suppress. The evidence shows that when the officers’ search for “Bear” ended, they had not observed anything suspicious. Because the trial judge could have determined that Weaver’s consent to search for Bear had ended, the trial court could reasonably find that the officers, without establishing probable cause, were not entitled to search for other purposes unrelated to that of their initial search. The record supports an implicit fact finding that the van was parked in a protected, non-public area of the business premises. The record also supports the trial judge’s legal conclusion that the officers had worn out their welcome and lingered beyond the scope of Weaver’s consent before the initiation of the dog sniff. CCA recognizes that this case is a close call, but it is in the “close call” cases that the need for giving discretion to the trial judge and deferring to his factual findings is greatest, especially when the State must prove positive consent by clear and convincing evidence.

Appellants’ PDRs

Coronado v. State, No. 0644-10 (Tex.Crim.App. 9/14/11); Reversed, remanded (7–2)

CCA granted review to determine whether the videotape procedures in Tex. Code Crim. Proc. art. 38.071 §2, including the use of written interrogatories in lieu of live testimony and cross-examination, satisfy the Sixth Amendment rights of confrontation and cross-examination under the Crawford v. Washington, 541 U.S. 36 (2004), line of cases. In this aggravated-sexual-assault-of-a-child prosecution, COA found no error in the trial court’s decisions to allow cross-examination through written questions only, and to admit the child’s videotaped interviews with a child-abuse forensic examiner instead of requiring live testimony.

HELD: Although CCA agreed that there must be balance between a defendant’s right to confrontation and a societal need to protect fragile and traumatized child victims, that balance cannot constitutionally be struck by the method set out in Article 38.071 § 2. On federal constitutional matters, CCA is obliged to follow the dictates of the U.S. Supreme Court regardless of its own notions. Therefore, COA erroneously held that constitutionally adequate cross-examination could be done using written interrogatories posed by a “neutral” forensic interviewer more than a year after the initial interview.

Alonzo v. State, No. 1494-10 (Tex.Crim.App. 9/14/11); Reversed, remanded (9–0)

Appellant was convicted of manslaughter for the death of a fellow inmate in a prison fight. On appeal, Appellant argued that the trial court erred by instructing the jury that the justification of self-defense does not apply to the lesser-included offense of manslaughter. COA held that the trial court’s instructions were correct and overruled this point of error. COA arrived at its conclusion by first observing, “Texas courts have routinely noted that an individual cannot recklessly act in self-defense.” A person commits murder if he “intentionally or knowingly causes the death of an individual.” Because self-defense is a justification to murder, an acquittal of murder based on self-defense necessarily implies that the jury believed that the defendant intentionally or knowingly caused the death of an individual. Tex. Penal Code §19.04 provides that a person commits manslaughter “if he recklessly causes the death of an individual.” Intentional or knowing conduct is distinct from reckless conduct, and an individual cannot simultaneously act intentionally and recklessly.

HELD: COA erred by holding that a defendant can be convicted for a lesser-included offense when a fact-finder has acquitted the defendant for the greater offense based on a justification defense, and by holding that a defendant cannot raise the justification of self-defense when charged with manslaughter.

Mayes v. State, No. 1633-10 (Tex.Crim.App. 9/14/11); Reversed, remanded (8–0)

A jury found Appellant guilty of the second-degree felony of sexual assault. At the punishment phase, the trial judge properly instructed the jury concerning the punishment range (two to twenty years in prison) and the possibility of community supervision. The jury returned a verdict sentencing Appellant to two years in prison and recommending community supervision. The judge told the jury that its verdict was illegal because the minimum period of community supervision for sexual assault is five years. She told them to deliberate again, and the jury then assessed a sentence of five years and once more recommended community supervision. The issue in this case is whether the initial verdict was in fact illegal. COA held that it was.

HELD: A jury sentence of two years confinement with a recommendation of community supervision is not an illegal or improper verdict.

Pena v. State, No. 0852-10 (Tex.Crim.App. 9/28/11); Reversed, remanded (9–0)

Appellant was indicted for felony possession of marijuana. A jury found him guilty and sentenced him to life imprisonment as a habitual offender. COA affirmed, and rejected Appellant’s argument that Brady v. Maryland, 373 U.S. 83 (1963), applied when the State failed to disclose to Appellant the audio portion of a videotape containing exculpatory statements that he made to police. CCA granted Appellant’s PDR to determine if Brady is applicable.

HELD: Because the audio portion of the videotape is favorable evidence that would be material to Appellant’s case and the State failed to disclose such evidence to Appellant, the State violated Appellant’s constitutional right as expressed in Brady. The State failed to disclose the audio portion when the videotape evidence was initially requested by defense counsel and again failed to disclose it after a second inquiry by the defense that addressed the lack of sound on the copy previously provided. Both prosecutor and defense counsel confirmed that no copy with audio was tendered. Additionally, the audio evidence was unknown to Appellant since the State consistently represented that the videotape contained no audio.

Ex parte Garcia, No. 1658-10 (Tex.Crim.App. 9/14/11); Reversed, remanded (9–0)

Appellee claims her guilty plea to felony theft 23 years ago was involuntary. After a hearing at which Appellee testified, the trial court granted relief. COA disagreed: “the only ‘evidence’ in the record regarding appellee’s claim is her own sworn testimony, which is insufficient by itself.”

HELD: An applicant’s live, sworn testimony can be a basis for upholding a trial court’s decision to grant relief in a Tex. Code Crim. Proc. art. 11.072 habeas proceeding. While sworn pleadings provide an inadequate basis upon which to grant relief in habeas actions, it is beyond dispute that relief may be granted on the basis of testimony that supports the pleadings if that testimony is believed by the habeas court. There is no sound reason to hold this rule inapplicable in the present case where the witness is herself the habeas applicant. CCA need not decide whether Appellee’s testimony was in fact a sufficient basis for upholding the trial court’s decision; nor did CCA decide the State’s laches issue.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Wilson v. State, No. 14-09-01040-CR (Tex.App.—Hous­ton [14th Dist] 4/12/11)

Police officer’s statements during interrogation did not render confession involuntary; officer “never promised any deal for the defendant.” Officer told D: “You got to explain something. . . . It’s the right . . . thing to do . . . then I can call the district attorney and say hey this is what really happened this guy didn’t mean for this stuff to go on. Do you understand, there’s consequences regardless for your actions . . . but it’s either you’re gonna be looked at with the eyes of justice, this guy deserves the worst . . . or the eyes of mercy[.]” Such statements would be unlikely to induce an innocent person to confess to murder.

Additionally, officer’s statements that D’s mother would “lose everything” to assist D’s defense did not render confession involuntary. “Police officers are permitted to suggest that suspects decline legal counsel to ‘save himself or his family the expense’ despite the constitutional requirement that suspects be informed that they have a right to appointed counsel. [T]he inquiry into whether such statements by the police overcame the will of the defendant requires a factual determination.”

St. Clair v. State, 338 S.W.3d 722 (Tex.App.—Amarillo 2011)

Inventory search of vehicle was conducted properly, such that dope found inside purse was admissible, even though officer did not itemize contents of vehicle. “[Officer] testified to searching the vehicle in accordance with departmental policy, that the only items of value found were the purse and the [money] contained in it, and that those items were included in his report. He also described the reasons for conducting the search (i.e., to protect the possessions of the person that owns or controls the vehicle and to avoid liability issues). Furthermore, the policy in question was admitted into evidence. And, [D] did not attack the legitimacy of that particular policy at trial.”

Also, no reasonable alternative to impoundment was shown, even though D told officer that her boyfriend could retrieve the vehicle. “[N]othing within the record illustrates that [her boyfriend] was available at the time, that he would agree to retrieve the vehicle, or that he had a driver’s license. Also missing was evidence that she owned the vehicle[.]”

In re M.A.C., 339 S.W.3d 781 (Tex.App. Eastland 2011)

In juvenile delinquency proceeding, the presence of armed police detective during judge’s entire warning and interview process did not violate procedural requirements governing the admissibility of a child’s statement. M.A.C. contends that the provisions of Tex. Fam. Code §51.095(a)(1)(B)(i) were violated because “[detective] was present during the entire warning and interview process and was armed during this process with his firearm visible at all times. Given [judge’s] testimony that he requested the presence of [detective], we focus our attention to the presence of [detective’s] weapon during the interview process. The critical inquiry is whether or not the weapon prohibition applied to the taking of [D’s] recorded statement. . . . [B]y its express terms, the weapon prohibition applies when the juvenile executes a written statement in the presence of a magistrate.”

Hodson v. State, No. 04-10-00060-CR (Tex.App.—San Antonio 5/11/11)

D was not in custody for Miranda purposes during police interview, when he climbed out of a police station window, because (1) no guard was stationed outside the interview room, (2) D had voluntarily gone to police station, (3) interview began promptly and lasted about an hour, and (4) D waited 26 minutes before he fled.

D’s admission, during police interview, to being present during a robbery and murder did not, by itself, render interview custodial. “Even though a suspect may implicate himself in an offense, unless the circumstances are unique . . . ‘this alone does not trigger custody.’ . . . Here, [officer] testified [that D] admitted to being present during the robbery and murder. Other than this admission, there were no other circumstances present to lead a reasonable person to believe he was under arrest. . . . We hold the trial court correctly concluded [D] was not in custody when he made the statements in question.”

Cooksey v. State, No. 04-10-00424-CR (Tex.App.—San Antonio 5/11/11)

Unfenced backyard deemed “curtilage” because D’s home was in a wooded area and there were no neighbors within several hundred yards. Also, there was an absence of “no trespassing” signs posted on property, the home was not visible from the main road, and D’s backyard and back steps were not visible from the driveway or neighboring properties. Lastly, the back steps on which officer observed potted marijuana plants were physically attached to the home.

D’s written consent to search his property, which was given after officers made an illegal entry into his backyard and observed the marijuana plants, was not voluntary, even though there was no flagrant police misconduct. D did not volunteer his consent but was asked for it, D was not told he could decline consent, and officer testified that D was not free to leave. In addition, the officers failed to reveal to D that they were not legally authorized to be in the backyard.

Crawford v. State, No. 01-10-00559-CR (Tex.App.—Hous­ton [1st Dist] 5/12/11)

RS shown where officer’s in-car computer indicated that the insurance policy covering D’s vehicle had lapsed, despite the undisputed fact that Texas law allows methods other than insurance to satisfy the financial responsibility requirement. “[T]he mere fact that alternate methods exist to satisfy the Transportation Code’s financial responsibility requirement does not render the stop unreasonable. . . . [Officer] could reasonably sus­pect from the fact that the vehicle previously had liability insurance coverage—by far the most common means of satisfying the financial responsibility requirement—that the policy’s lapse meant that it no longer complied with the law. . . . [D] relies on [Gonzalez-Gilando v. State, 306 S.W.3d 893 (Tex.App.—Amarillo 2010, pet. ref’d),] for the proposition that the MDT insurance database cannot support a finding of reasonable suspicion. [However, Gonzalez-Gilando] hinged on the fact that the computer database search result stated that the insurance information was ‘not available’ or the status was ‘undocumented.’”

Kirvin v. State, No. 05-09-00734-CR (Tex.App.—Dallas 5/13/11)

Prosecutor’s comment that D “has never taken responsibility for any of his actions” during punishment stage was not impermissible comment on D’s failure to testify. “[W]e conclude the State’s argument was invited by, and made in response to, [D’s] argument.” D had argued essentially that he sympathized with both victims.

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