October 2013 SDR – Voice for the Defense Vol. 42, No. 8

Voice for the Defense Volume 42, No. 8 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

The Fourth Amendment allows states to collect and analyze DNA from people arrested and charged with serious crimes. Maryland v. King, 133 S. Ct. 1958 (2013).

        D was arrested and charged with first-degree assault for menacing a group of people with a gun. As part of a routine booking procedure for serious offenses, pursuant to the Maryland DNA Collection Act, D’s DNA sample was taken from inside his cheeks. His DNA was found to match the DNA taken from a rape victim. D’s motion to suppress the DNA evidence was denied, and he was convicted of rape. The COA of Maryland struck down portions of the Maryland DNA Collection Act as unconstitutional and set aside D’s conviction. The U.S. Supreme Court reversed COA.

        Taking and analyzing a cheek swab of D’s DNA was, like fingerprinting and photographing, a legitimate police booking procedure that was reasonable under the Fourth Amendment because (1) the legitimate government interest served by the Act was the need for officers to process and identify the persons and possessions they must take into custody, (2) DNA identification of arrestees, of the type approved by the Act, was no more than an extension of methods of identification long used with arrestees, and (3) regarding D’s legitimate expectations of privacy, the intrusion of a cheek swab to obtain a DNA sample was minimal.

A federal habeas court, faced with an actual-innocence claim, should count unjustifiable delay on a petitioner’s part, not as an absolute barrier to relief but as a factor in whether actual innocence has been reliably shown. McQuiggin v. Perkins, 133 S. Ct. 1924 (2013).

        Respondent inmate filed a habeas writ eleven years after his murder conviction became final, claiming he was innocent and received ineffective assistance of trial counsel; he submitted three supporting affidavits signed by witnesses. The district court found that even if the affidavits could be characterized as newly discovered evidence, D was not entitled to relief because he obtained the last affidavit in 2002 but did not file his petition until 2008. Although the Sixth Circuit found that D’s petition was untimely under 28 U.S.C.S. § 2244(d)(1), it held that his claim of actual innocence allowed him to pursue his habeas petition as if it had been filed on time. The U.S. Supreme Court granted certiorari to resolve a conflict among the circuits on whether § 2244(d)(1) could be overcome by a showing of actual innocence. The Supreme Court vacated the Sixth Circuit’s decision and remanded.

        Actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment to consideration of the merits of a constitutional claim is a procedural bar or expiration of the Antiterrorism and Effective Death Penalty Act statute of limitations, as in this case. While the Supreme Court rejected the State’s argument that habeas petitioners who asserted convincing actual-innocence claims had to prove diligence to cross a federal court’s threshold, it found that the Sixth Circuit erred to the extent that it eliminated timing as a factor relevant in evaluating the reliability of the affidavits.

No prior Supreme Court decision clearly established that the Confrontation Clause entitles a criminal defendant to introduce extrinsic evidence for impeachment. Nevada v. Jackson, 133 S. Ct. 1990 (2013).

        In his rape trial, D sought to present evidence that the victim previously reported that he assaulted her. The Nevada Supreme Court held that the evidence was properly excluded. But in D’s federal habeas proceedings, the Ninth Circuit ordered the State to retry or release D on the ground that the ex­clusion of the evidence violated D’s constitutional right to present a defense, and that the state supreme court’s contrary decision was an unreasonable application of U.S. Supreme Court precedent. The U.S. Supreme Court reversed, holding that the state supreme court’s application of Supreme Court precedents was in fact reasonable when no prior decision by the Supreme Court clearly established that the exclusion of the evidence violated D’s constitutional right.

        Nev. Rev. Stat. § 50.085(3) generally precluded admitting extrinsic evidence of specific instances of a witness’ conduct to attack or support the witness’ credibility, other than conviction of crime. There was an exception in sexual assault cases for previous fabricated sexual assault allegations where such allegations were denied and a defendant filed written notice, which required a hearing. But D filed no such notice. No Supreme Court decision clearly established the notice requirement was unconstitutional, nor was it clearly established that the U.S. Constitution required a case-by-case interests balancing before enforcing such a rule. The Ninth Circuit collapsed the distinction between an unreasonable application of federal law into what it believed was an incorrect or erroneous application of federal law.

A sentencing court violates the Ex Post Facto Clause by using the U.S. Sentencing Guidelines in effect at the time of sentencing, rather than the Guidelines in effect at the time of the offense, if the newer Guidelines create a significant risk that the defendant will receive a longer sentence. Peugh v. United States, 133 S. Ct. 2072 (2013).

        D found guilty of bank fraud argued on appeal that the Ex Post Facto Clause required that he be sentenced under the 1998 version of the U.S. Sentencing Guidelines in effect at the time of his offenses, rather than the 2009 version. The Seventh Circuit rejected that claim and affirmed his sentence. The Supreme Court reversed the judgment affirming the sentence, and remanded.

        The Ex Post Facto Clause was violated because the 2009 Guidelines called for a greater punishment than the 2000 Guidelines in effect when D completed his crimes. Sentencing Commission data indicated that when a Guidelines range moved up or down, sentences moved with it. A retrospective increase created a sufficient risk of a higher sentence to constitute an ex post facto violation. When D committed his crime, the recommended sentence was 30 to 37 months. When he was sentenced, it was 70 to 87 months. The presence of discretion did not displace the Ex Post Facto Clause’s protections.

Because mandatory minimum sentences increase the penalty for a crime, any fact that increases the mandatory minimum is an element of the crime that must be submitted to the jury. Alleyne v. United States, 133 S. Ct. 2151 (2013).

        D was convicted of using or carrying a firearm in relation to a crime of violence under 18 U.S.C.S. § 924(c)(1)(A). The sentence was based on a finding that he brandished the firearm even though the jury did not find brandishing beyond a reasonable doubt. The § 924(c)(1)(A) conviction carried a mandatory minimum five-year sentence, which increased to seven years if the firearm was brandished. The jury form indicated that D used a firearm, but not that the firearm was brandished. The district court overruled D’s sentencing objection; the Fourth Circuit affirmed. The U.S. Supreme Court vacated the Fourth Circuit’s judgment with respect to D’s sentence and remanded for resentencing consistent with the jury verdict.

        The lower courts relied on Harris v. United States, 536 U.S. 545 (2002), which held that judicial factfinding that increased the mandatory minimum sentence for a crime was permissible under the Sixth Amendment. The Supreme Court held that because the brandishing finding increased the penalty to which D was subjected, it was an element of the offense that had to be found by the jury beyond a reasonable doubt. And because the judge rather than the jury found brandishing, the sentence violated the Sixth Amendment. There was no logical basis to distinguish facts that raised the maximum sentence from those that increased the minimum sentence, and so Harris was inconsistent with Apprendi v. New Jersey, 530 U. S. 466 (2000). Apprendi held that any fact that increases the penalty beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Accordingly, the Supreme Court overruled Harris.

Prosecution’s use of D’s silence, when D had not been placed in custody or received Miranda warnings and responded to officer’s other questions about a murder, did not violate the Fifth Amendment because D failed to expressly invoke his privilege not to incriminate himself. Salinas v. Texas, 133 S. Ct. 2174 (2013).

        D, without being placed in custody or receiving Miranda warnings, voluntarily answered some of police officer’s questions about a murder, but fell silent when asked whether ballistics testing would have matched his shotgun to shell casings found at the scene. A jury found D guilty of murder. D claimed that the prosecution’s use of his silence at trial, over his objection, violated the Fifth Amendment. The Texas COA and CCA affirmed his conviction. The U.S. Supreme Court affirmed.

        The Supreme Court found D’s situation was outside the scope of Miranda because he agreed to accompany the officers to the station and was free to leave at any time during the in­ter­view. The privilege against self-incrimination generally was not self-executing, and a witness who desired its protection had to claim it. A witness did not invoke the privilege by simply standing mute. D was required to expressly invoke the privilege against self-incrimination in response to officer’s question. D’s argument that the invocation requirement did not apply where a witness was silent in the face of official suspicions failed.

Fifth Circuit

In forfeiture proceeding, district court did not err in dis­missing as untimely the claim of legal interest in the property filed by a third-party minor, D’s daughter. United States v. Alvarez, 710 F.3d 565 (5th Cir. 2013).

        The government provided sufficient notice of the pending forfeiture to the minor by advertising the forfeiture and providing personal service on the minor in care of her mother; at that point, the minor had 30 days to file her claim, but no claim was filed for 74 days. The Fifth Circuit declined to create an exception to the statutory timeline for minors. The Fifth Circuit affirmed the district court’s dismissal of the minor’s claim on the ground that it was untimely under 21 U.S.C. § 853(n)(2).

D’s instant offense of threatening a witness, in violation of 18 U.S.C. § 876(c), was a crime of violence under USSG § 4B1.2, supporting enhancement as a career of­fender; however, D’s instant offense of retaliating against a witness in violation of 18 U.S.C. § 1513(e) was not, under the categorical/modified categorical approach. United States v. Stoker, 706 F.3d 643 (5th Cir. 2013).

        With only the § 876(c) conviction as a “crime of violence” predicate for the USSG § 4B1.1 “career offender” enhancement, D’s Guideline imprisonment range dropped to 51 to 63 months, which was significantly lower than his 108-month sen­tence. The Fifth Circuit vacated D’s sentence and remanded for resentencing. (Jones filed a specially concurring opinion. She agreed that United States v. Lipscomb, 619 F.3d 474 (5th Cir. 2010), required application of the categorical/modified categorical approach in determining whether the instant offenses were “crimes of violence” but advocated a different, broader approach for making that determination.)

There was Tapia error because the record made clear that, in selecting sentence length, D’s rehabilitative needs were the dominant factor in the court’s mind. United States v. Garza, 706 F.3d 655 (5th Cir. 2013).

        The rule of Tapia v. United States, 131 S. Ct. 2382 (2011)—namely, that a court may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or to otherwise promote rehabilitation—applies with equal force to sentences imposed upon revocation of supervised release. More­over, the error affected D’s substantial rights because of the great differential between the advisory Guideline range (3 to 9 months) and the 24-month sentence imposed, coupled with the fact that promoting rehabilitation appeared to be the district court’s primary focus in selecting sentencing length. Finally, finding the fourth prong of plain-error review satisfied, the Fifth Circuit exercised its discretion to correct this error. The Fifth Circuit vacated D’s sentence and remanded. Haynes dissented: She agreed that Tapia applied to supervised-release-revocation sentences, but she disagreed that a Tapia error occurred in this case.

The district court harmlessly erred in allowing the government to admit, while co-defendant was testifying for the government, the written factual basis for co-defendant’s plea, which implicated himself and D. United States v. Demmitt, 706 F.3d 665 (5th Cir. 2013).

        In fraud and money-laundering prosecution, the district court erred in allowing the government to admit, during the testimony of a co-defendant cooperating with the government, the factual resume of that co-defendant (i.e., the written factual basis for his plea), which implicated not just himself, but also D. Because co-defendant did not adopt the factual resume on the stand, it was hearsay and should not have been admitted. The error was harmless. However, the evidence was insufficient to support D’s conviction for money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i).

Court of Criminal Appeals

The waiver of appeal was not a binding element of D’s plea agreements; D’s guilty pleas were rendered in­vol­un­tary because the State breached the plea agreements by reindicting D’s brother. Ex parte De Leon, 400 S.W.3d 83 (Tex.Crim.App. 2013).

        D, who pled guilty to aggravated sexual assault of a child, sexual performance by a child, and possession of child pornography, sought habeas relief, contending that the State breached the plea agreements by reindicting his brother. The district court recommended denying relief. CCA set aside the judgments against D, and remanded D to custody to answer the charges in the indictments.

        Because the plea agreements were ambiguous, CCA considered the plea terms in light of the entire record, particularly the discussions at the plea hearing. CCA found it clear that the waiver of appeal was not intended to override the trial court’s permission to appeal. The agreements did expressly provide that the State would dismiss all charges against D’s brother; however, after D appealed, the State took the position that D had breached the agreements and reindicted the brother.

        “[W]hen a defendant, who has entered a negotiated plea of guilty, challenges the conviction and is successful, the appropriate remedy is specific performance of the plea, if possible, or if not, withdrawal of the plea, with both parties, including the State, returned to their original positions.” Specific performance of the plea agreements was not possible; the State could not withdraw the charges against the brother because he had already been convicted. The proper remedy was to return both parties to their original pre-plea positions.

Time credit should run from the date a parole-revocation warrant is executed or from the date a releasee is confined as a result of a pending but unexecuted parole-revocation warrant. Ex parte White, 400 S.W.3d 92 (Tex.Crim.App. 2013).

        In the case at bar, D was convicted of burglary. He was released to parole in May 2005. In July 2006, the Parole Board issued a parole-revocation warrant (blue warrant) for his arrest, but the warrant was not executed. Within a few weeks, D was arrested and transferred to the county jail for a new offense unrelated to the blue warrant. The unexecuted blue warrant was lodged against D as a “hold without bond” detainer. This hold prevented him from being released to bail on the new charge. The blue warrant was formally executed in December 2006, and the Texas Department of Criminal Justice applied credit to D’s revocation sentence from that date. D filed a habeas application alleging that he was entitled to sentencing credit from the date he was transferred to jail to the date the parole-revocation warrant was executed. The district court recommended relief be granted. CCA granted relief.

        CCA reviewed the question of what counted as an “arrest” to determine when time credit began to run under Tex. Gov’t Code § 508.253. When the pre-revocation warrant was executed, the parolee’s status was altered—he was again in the State’s custody. Accordingly, for purposes of § 508.253, D’s arrest occurred when the warrant made him ineligible for bail on the new offense.

Trial judge’s comments generally about defendants’ failure to testify did not constitute fundamental error; furthermore, any harm flowing from error could have been cured by an instruction. Unkart v. State, 400 S.W.3d 94 (Tex.Crim.App. 2013).

        During voir dire, the trial judge said that he personally would want to testify if accused of a crime but admonished the prospective jurors that others might have a different perspective, that a defendant could have good reasons not to testify that were unrelated to guilt, and that the law prohibited the jurors from holding a defendant’s failure to testify against him. Defense counsel belatedly requested a mistral but did not ask for an instruction to disregard the trial judge’s comments. Holding that the comments constituted fundamental error, COA reversed D’s controlled-substances convictions. CCA reversed COA and remanded to resolve D’s remaining issue.

        CCA disagreed that the judge’s comments constituted fundamental error. CCA further concluded that D’s request for a mistrial did not preserve error because any harm flowing from error in this case could have been cured by an instruction to disregard and in fact was cured by the totality of the trial judge’s instructions. Analyzing the trial judge’s instructions as a whole made it clear that he was engaged in a well-intentioned effort to protect D’s rights. Most of the trial judge’s instructions were, functionally, an instruction to disregard the comment about which D complained. And if there was any residual harm, it would have been cured by a timely instruction to disregard the specific comments that D found objectionable.

D’s evidence was inadequate to defeat the presumption of regularity as to the recitals in the deferred-adjudication judgment that he knowingly waived counsel. State v. Guerrero, 400 S.W.3d 576 (Tex.Crim.App. 2013).

        COA affirmed the trial order granting D’s motion to vacate a deferred-adjudication misdemeanor judgment for possession of marijuana. The motion alleged that the guilty plea had been involuntary, under U.S. Const. amend. VI, for lack of an attorney’s advice on deportation consequences. CCA reversed COA and reinstated the deferred-adjudication judgment.

        Noting that the motion was not a proper habeas application because it was unsworn, CCA found D’s evidence inadequate under Tex. Code Crim. Proc. art. 11.072, §§ 5(b)-(d), 6(a), to defeat the presumption of regularity as to the recitals in the deferred-adjudication judgment that he had knowingly, intelligently, and voluntarily waived counsel. The trial court declined to hear D’s testimony and accepted habeas counsel’s statements instead. Habeas counsel’s statements were not com­petent evidence absent personal knowledge of the events surrounding the plea. Neither ignorance of possible deportation consequences nor an alleged plea bargain conditioned on waiver of counsel rendered the plea involuntary. The deferred-adjudication judgment, although not a conviction under Tex. Code Crim. Proc. art. 42.12, § 5(c), was a final conviction for purposes of 8 U.S.C.S. § 1101(a)(48)(A), to which a new rule of law requiring an attorney’s advice on deportation consequences did not apply retroactively.

The trial court erred by granting D’s new trial motion on evidentiary issues when the only ground pled within the 30-day limit was that the verdict was against the law and evidence. State v. Zalman, 400 S.W.3d 590 (Tex.Crim.App. 2013).

        D was convicted of DWI. The trial court granted his new trial motion. CCA reversed, finding it was error for the trial court to rule on D’s new trial motion over the State’s objection.

        This case involves the State v. Herndon, 215 S.W.3d 901 (Tex.Cr.App. 2007), test for reviewing granted new trial motions. A trial court generally does not abuse its discretion if the defendant (1) sets forth a specific and valid legal ground for relief in their motion, (2) points to evidence in the record (or sets forth evidence) that substantiates the same legal claim, and (3) shows prejudice under the harmless-error standards of the Rules of Appellate Procedure. During the hearing, D pointed to portions of the record to show that evidence was improperly admitted. He did not, at any point, advance a claim that the evidence admitted was insufficient to sustain a guilty verdict. D only raised the supported claims in a “memorandum” well outside the 30-day requirement of the motion. Although Herndon does not explicitly say that the evidence presented at the trial must support the same claim that was pled, to hold otherwise would defeat the motion’s notice requirements.

CCA’s order for a new trial left D as if he had never had a trial; the governor’s precipitate order commuting D’s sentence was futile because there was no longer a sentence to commute. Hartfield v. Thaler, 403 S.W.3d 234 (Tex.Crim.App. 2013).

        A jury convicted D of capital murder and sentenced him to death. On appeal, he complained that a venire member was improperly excluded. CCA agreed, reversed the conviction and death sentence, and remanded for a new trial. The State filed a motion for rehearing that CCA denied on January 26, 1983, “reluctantly” denying the State’s request to vacate the death sentence and reform the sentence to life imprisonment. CCA held that “the 15 day period between the rendition of our decision and the date that the mandate issues is a ‘reasonable time to seek commutation of “sentence” from the Governor.’” On March 4, 1983, CCA issued their mandate reversing and remanding.

        On March 15, 1983, the governor commuted D’s sentence from death to life imprisonment. There was no further action by the trial court or CCA. In accordance with the governor’s commutation, the Department of Criminal Justice maintained custody of D. In 2006 and 2007, D filed habeas corpus applications. The Fifth Circuit certified a question to CCA: What was the status of the judgment of conviction after these events occurred?

        CCA found that D was under no conviction or sentence. As soon as CCA issued their mandate, D’s conviction and sentence were vacated, and CCA’s new trial order became final. Because some penalty must be assessed for the authority of commutation to be exercised, the governor’s proclamation was a nullity.

        D has not exhausted state remedies. When D filed a state habeas corpus application, he filed it under Tex. Code Crim. Proc. art. 11.07. Because Article 11.07 relates to post-conviction habeas applications and there was no conviction against D, this was not the proper procedure. D also filed for a mandamus petition to compel a new trial. This was improper because CCA’s reversal left D as if he had never had a trial. Alternatively, D could have filed under Articles 28.061 or 11.08.

D was ineligible for release on mandatory supervision for his burglary conviction because his prior juvenile con­viction for first-degree murder was a disqualifying first-degree felony. Ex parte Valdez, 401 S.W.3d 651 (Tex.Crim.App. 2013).

        D sought a habeas writ, contending that the Texas Department of Criminal Justice was improperly denying him review for mandatory-supervision release because of his prior juvenile adjudication of first-degree murder. CCA denied relief.

        Upon the adjudication for first-degree murder, D was committed to the Texas Youth Commission until his eighteenth birthday and was then transferred by the juvenile court to TDCJ to complete his sentence. He was released from TDCJ on parole. D was ineligible for release on mandatory supervision for his subsequent burglary conviction; his juvenile adjudication for first-degree murder was a disqualifying first-degree felony conviction because, under Tex. Gov’t Code § 508.156(f), his transfer from TYC to TDCJ did not alter the fact that, upon his release on parole, he was considered to have been convicted of the offense for which he had been adjudicated.

It is an affirmative defense to prosecution for solicitation of a minor that the actor was not more than three years older than the victim or that the actor believed such was the circumstance. Sanchez v. State, 400 S.W.3d 595 (Tex.Crim.App. 2013).

        D sought review of COA’s decision, which affirmed his conviction for solicitation of a minor in violation of Tex. Penal Code § 15.031(b). CCA reversed COA and remanded for COA to consider whether D was harmed by the omission of an instruction.

        The affirmative defense in Tex. Penal Code § 22.011(e) applies to the criminal-solicitation-of-a-minor statute, and the jury should have been so instructed. If the circumstances were such that D believed the minor’s age to be within three years of his own, then he would not have committed an offense, provided he raised and proved the within-three-years affirmative defense. The holding that the affirmative defense in § 22.011(e) was inapplicable in a prosecution under § 15.031(b) was contrary to the statutes’ plain language and legislative intent.

COA erred by finding that D was harmed by the trial court’s failure to give a jury instruction on sudden pas­sion during punishment simply because D was sub­jected to a greater range of punishment. Wooten v. State, 400 S.W.3d 601 (Tex.Crim.App. 2013).

        D was convicted of murder and sentenced to 60 years in prison. COA affirmed D’s conviction but reversed his sentence on the ground that the trial court erred by not giving a sudden passion instruction. CCA reversed COA. Even if the trial court erred by failing to give the instruction, under Tex. Penal Code § 19.02(a), the error was harmless because the jury’s rejection of D’s self-defense claim showed that the jury did not believe D’s claim that he reasonably believed deadly force was immediately necessary. The jury must have rejected the inference that the victim and not D fired first and would be unlikely to believe that at the time he fired he was actually experiencing a level of fear that caused him to lose control.

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