October 2016 SDR – Voice for the Defense Vol. 45, No. 8

Voice for the Defense Volume 45, No. 8 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

SORNA did not require D, a registered sex offender, to update his registration in Kansas once he left the state and moved to the Philippines. Nichols v. United States, 136 S. Ct. 1113 (2016).

        D moved from Kansas to the Philippines without updating his sex-offender registration, was arrested, escorted to the United States, and charged with violating the Sex Offender Registration and Notification Act, 42 U.S.C.S. § 16901 et seq., for failing to register under 18 U.S.C.S. § 2250(a). These statutes made it a federal crime for certain sex offenders to “knowingly fai[l] to register or update a registration” and required sex offenders who move to another state to, “no later than 3 business days after each change of name, residence, employment, or student status,” inform in person at least one jurisdiction “where the offender resides[.]” After conditionally pleading guilty, D argued on appeal that SORNA did not require him to update his registration in Kansas. The Tenth Circuit affirmed his conviction, holding that though D left Kansas, it remained a “jurisdiction involved” for SORNA purposes.

        The Supreme Court reversed: “Critical here is § 16913(a)’s use of the present tense. Nichols once resided in Kansas, but after moving, he ‘resides’ in the Philippines. It follows that once Nichols moved, he was no longer required to appear in Kansas because it was no longer a ‘jurisdiction involved.’ Nor was he required to appear in the Philippines, which is not a SORNA ‘jurisdiction.’ § 16911(10). Section 16913(c)’s requirements point to the same conclusion: Nichols could not have appeared in person in Kansas ‘after’ leaving the State. SORNA’s drafters could have required sex offenders to deregister in their departure jurisdiction before leaving the country had that been their intent. . . . The Government resists this straightforward reading. It argues that a jurisdiction where an offender registers remains ‘involved’ even after the offender leaves, but that would require adding the extra clause ‘where the offender appears on a registry’ to § 16913(a). Also unconvincing is the claim that § 16914(a)(3)’s requiring the offender to provide each address where he ‘will reside’ shows that SORNA contemplates the possibility of an offender’s updating his registration before he actually moves. That provision merely lists the pieces of information to be updated; it says nothing about an obligation to update in the first place. Finally, the Government’s argument that Nichols actually experienced two ‘changes’ of residence—first, when he turned in his apartment keys in Kansas, and second, when he checked into his Manila hotel—is inconsistent with ordinary English usage. . . . Recent legislation by Congress, as well as existing state-law registration requirements, offers reassurance that sex offenders will not be able to escape punishment for leaving the United States without notifying their departure jurisdictions.”

The Sixth Circuit improperly applied the AEDPA standard in finding D’s appellate counsel was constitutionally ineffective for excluding an ineffective-assistance claim; a fair-minded jurist could have concluded that repetition of an anonymous tip did not establish that the uncontested facts the tip conveyed were submitted for their truth, so appellate counsel was not incompetent in excluding an ineffective-trial-counsel claim. Woods v. Etherton, 136 S. Ct. 1149 (2016).

        Michigan law enforcement received an anonymous tip that two white males were traveling between Detroit and Grand Rapids on I-96 in an Audi and were possibly carrying cocaine. D matched that description and was pulled over. Both he and his passenger were arrested when the officers found 125.2 grams of cocaine in the car. During D’s state-court trial, several police officers testified and described the anonymous tip, which was “not evidence” but admitted “only to show why the police did what they did.” D was convicted of possession of cocaine with intent to deliver. The court of appeals affirmed, and the Michigan Supreme Court denied leave to appeal. D sought state post-conviction relief and argued that the admission of the anonymous tip violated the U.S. Const. amend. VI Confrontation Clause, his trial counsel was ineffective for failing to object to the tip on that ground, and his counsel on direct appeal was ineffective for failing to raise the previous two claims. The state court denied post-conviction relief because D failed to prove that his counsel acted unreasonably.

        D then sought federal habeas relief under the Antiterrorism and Effective Death Penalty Act, which specifies that federal habeas relief is only available after a state court’s denial if the state court’s decision involved an unreasonable application of clearly established federal law; federal habeas relief is unavailable if “fairminded jurists” could disagree as to the validity of the state court’s determination. The federal district court denied relief by finding the state court’s denial of relief was objectively reasonable because D’s counsel was adequately prepared for trial. The Sixth Circuit reversed and held that D’s right to confrontation had been violated because the anonymous tip was referenced four times during trial, which indicated that the tip was admitted for its truth. The Sixth Circuit concluded D’s counsel had been constitutionally ineffective and no fair-minded jurist could conclude otherwise.

        The U.S. Supreme Court reversed the Sixth Circuit. Under the AEDPA, a state court’s determination that a habeas claim lacks merit precludes federal habeas relief so long as “fair-minded jurists could disagree” on the state court’s decision. Additionally, when the claim at issue is for ineffective assistance of counsel, review must be “doubly deferential” to the state court. The Sixth Circuit incorrectly applied this standard; fair-minded jurists could disagree regarding D’s claim that his appellate counsel was constitutionally deficient for not challenging an anonymous tip on confrontation grounds.

Fifth Circuit

The federal stalking statute, 18 U.S.C. § 2261A, is not unconstitutionally vague simply for not defining “harass” and “intimidate.” United States v. Conlan, 786 F.3d 380 (5th Cir. 2015).

        On plain-error review, the Fifth Circuit held that these are not obscure words and readily understandable by most people. Any vagueness concerns are further alleviated by the list of easily understood terms surrounding “harass” and “intimidate” (“kill, injure . . . or cause substantial emotional distress”) and by the statute’s scienter requirement, which narrows its scope and mitigates arbitrary enforcement.

        (2) D’s two convictions under 18 U.S.C. § 2261A(2) were not multiplicitous and did not violate the U.S. Const. amend. V Double Jeopardy Clause, even though they arose out of the same conduct. The unit of prosecution for § 2261A(2) is the targeted individual; thus the Government needs to prove different intents to harm two victims to convict the defendant of two separate counts.

District court misapprehended its authority to vary down­ward from the Guideline range established by the “career offender” Guidelines; the district court failed to appreciate that 18 U.S.C. § 3553(a) provided it with discretion to vary from the advisory sentencing range. United States v. Clay, 787 F.3d 328 (5th Cir. 2015).

        A district court has discretion to vary from a Sentencing Guideline range irrespective of whether that particular sentencing recommendation arises under the “career offender” pro­vi­sion in USSG § 4B1.1; a district court’s sentencing discretion is no more burdened when a defendant is characterized as a “career offender” under § 4B1.1 than it would be in other sen­tenc­ing decisions. A district court’s failure to recognize its discretion to vary in this context constitutes procedural error. Because the Government did not establish that the error was harm­less, the Fifth Circuit remanded for resentencing. The Fifth Circuit noted that the district court had, apparently in­ad­vertently, failed to give D an opportunity to allocate at his first sentencing hearing, but the Fifth Circuit was “confident that the district court will allow [D] an opportunity to allocate prior to resentencing.”

D was not foreclosed from challenging his counsel’s failure to advise him of deportation consequences of his guilty plea solely because the district court notified him that deportation following the service of his sentence was “likely.” United States v. Batamula, 788 F.3d 166 (5th Cir. 2015).

        Where noncitizen D—convicted on his guilty plea of making a false statement to a federal agent (18 U.S.C. § 1001) and mak­ing a false statement in an application for a passport (18 U.S.C. § 1542)—raised, in a 28 U.S.C. § 2255 motion, a claim under Padilla v. Kentucky, 559 U.S. 356 (2010)(a claim that he received ineffective assistance because his counsel did not ad­vise him that the offenses to which he was pleading guilty would result in his deportation), the district court erred in grant­ing the Government’s motion for summary judgment and denying D’s motion. A judge’s statement at the guilty-plea proceeding that deportation is “likely” is not dispositive of whether a petitioner whose counsel failed to advise him re­garding the immigration consequences of his plea can demonstrate prejudice therefrom. Because the record was insufficiently developed to determine whether D was entitled to relief on his claim, the Fifth Circuit reversed and remanded.

In trial of drug offenses, district court did not abuse its discretion in denying D’s request for an instruction on sentencing entrapment (that the agents purposefully inflated the drug quantity). United States v. Macedo-Flores, 788 F.3d 181 (5th Cir. 2015).

        Although the Fifth Circuit has never recognized this de­fense, the Fifth Circuit has stated that if it did accept the de­fense, it would only be cognizable in cases involving “true entrapment” or where there is proof of overbearing and outrageous conduct on the Government’s part; D’s case did not meet this standard.

District court reversibly erred in applying a 16-level “crime of violence” enhancement under USSG § 2L1.2(b)(1)(A)(ii) based on D’s prior Louisiana conviction for aggravated battery. United States v. Hernandez-Rodriguez, 788 F.3d 193 (5th Cir. 2015).

        D’s prior offense of conviction (La. Rev. Stat. § 14:34) did not necessarily have as an element the use, attempted use, or threatened use of physical force because the conviction’s documents did not rule out a conviction under the administration-of-poison alternative of the statute. Furthermore, a conviction for the least culpable violation of the statute does not constitute generic “aggravated assault.” Because the Government did not carry its burden of proving this error harmless, the Fifth Circuit remanded for resentencing.

Use of a false immigration document is not a “continuing offense” for statute-of-limitations purposes; the in­dictment was filed outside the limitations period. United States v. Tavarez-Levario, 788 F.3d 433 (5th Cir. 2015).

        The offense of “use” of an immigration document, “knowing it to be forged, counterfeited, altered, or falsely made” or “procured by fraud or unlawfully obtained” (18 U.S.C. § 1546(a)), does not qualify within the “doctrine of continuing of­fenses” for statute-of-limitations purposes. Consequently, the indictment in this case was filed outside the applicable five-year limitations period. The Fifth Circuit reversed D’s con­vic­tion and remanded for dismissal of the indictment.

In sentencing D convicted of receipt of child pornography, district court abused its discretion by imposing a special condition of supervised release that prohibited D from accessing computers or the internet for the rest of his life. United States v. Duke, 788 F.3d 392 (5th Cir. 2015).

        Such a condition is not narrowly tailored and therefore imposes a greater deprivation than reasonably necessary to prevent recidivism and protect the public, especially in light of the ubiquity and importance of the internet. The district court also abused its discretion by imposing an absolute, lifetime special condition of supervised release prohibiting D from having any contact with minors for the rest of his life. The Fifth Circuit vacated those two special conditions of supervised release and remanded for resentencing.

Government did not plainly err in withholding a motion for a third-level reduction based on D’s refusal to waive appeal. United States v. Morales-Rodriguez, 788 F.3d 441 (5th Cir. 2015).

        Though it would have been error for the Government to withhold a motion for a third-level reduction under USSG § 3E1.1(b) simply because the defendant refused to waive ap­peal, it was not plain that the Government withheld the § 3E1.1(b) for this reason. D was not entitled to relief on plain-error review.

Where the district court issued an unconditional writ re­leasing D and prohibiting retrial, the Fifth Circuit granted the State of Louisiana’s motion for a stay of the district court’s order for the duration of the appeal on the merits. Woodfox v. Cain, 789 F.3d 565 (5th Cir. 2015).

        The district court issued an unconditional writ releasing D and prohibiting retrial after the Fifth Circuit affirmed the district court’s grant of federal habeas relief to Louisiana state defendant on the ground of racial discrimination in the selection of the grand jury foreperson. Woodfox v. Cain, 772 F.3d 358 (5th Cir. 2014). To succeed on the merits of the appeal, the State must show that the district court abused its discretion by ordering D’s unconditional release and prohibiting retrial. The State made a strong showing of likelihood of success on the merits. A federal court’s absolute bar on retrial by the state court is rarely warranted. Additionally, the remaining stay factors—the State’s irreparable injury and the public interest—also favored the State; indeed, the State maintained that D was still both dangerous and a flight risk. Although the Fifth Cir­cuit granted the motion for a stay pending appeal, it also sua sponte ordered the appeal on the merits expedited.

In alien-transporting trial, D waived her Confrontation Clause challenge to the out-of-court testimony of the alien; counsel may waive his client’s U.S. Const. amend. VI right of confrontation by stipulating to the admission of evidence so long as the defendant does not dissent from his attorney’s decision, and so long as the decision was a legitimate trial tactic or part of a prudent strategy. United States v. Ceballos, 789 F.3d 607 (5th Cir. 2015).

        A permissible waiver of the right of confrontation is not contingent on evidence that the defendant affirmatively and personally agreed to counsel’s stipulation; she just must not dissent from that decision.

Court of Criminal Appeals

Trial court erroneously included a provoking-the-difficulty jury instruction as there was insufficient evidence of provocation; D suffered harm from the instruction based on its wording and his theory of self defense. Eli­zondo v. State, 487 S.W.3d 185 (Tex.Crim.App. 2016).

        D, a U.S. Customs and Border Protection Agent, while off duty, shot and killed a man. D claimed self-defense, but the jury convicted him of murder. COA affirmed. D petitioned CCA to review COA’s analysis of the alleged jury-charge errors.

        CCA concluded that COA erred by upholding the inclusion of a provoking-the-difficulty instruction under Texas Penal Code § 9.31(b)(4) in the jury charge. There was no evidence that D orchestrated a set of events as a ploy to kill this man he did not know because there was no evidence that when D ran to his truck, he was goading the man into following him and attacking him. CCA additionally held that the erroneous inclusion of the provocation instruction caused D “some harm.” D suffered some error as a result of the instruction because the provocation charge that was given was incorrectly worded, mis­leading, and confusing, and D’s entire defense rested on a self-defense theory. CCA reversed COA and remanded for a new trial.

In D’s trial for evading arrest, he pleaded not guilty on the record, which was silent as to whether he pleaded to an enhancement for a prior conviction; CCA would not presume he pleaded “true” to the enhancement, but the evidence supported the finding that it was true. Wood v. State, 486 S.W.3d 583 (Tex.Crim.App. 2016).

        D was found guilty of evading arrest, and the trial court found that the enhancement alleged in the indictment was “true.” D was sentenced to four years’ imprisonment. He appealed, arguing there was no basis for the finding that the enhancement paragraph was true. COA held that the State failed to prove the conviction used for enhancement. COA reversed the punishment portion of the judgment and remanded for a new punishment hearing. CCA reversed COA.

        COA did not err by refusing to apply a presumption that D pleaded “true” to the enhancement; CCA rejected the State’s argument that a presumption should be applied if the trial court finds an enhancement “true” and the defendant does not object. Furthermore, although the judgment said that the plea to the enhancement paragraph was “true to repeater,” the rest of the record showed the contrary: D offered testimony and evidence at the bench trial in an attempt to refute the officer’s testimony, and requested probation, indicating that his guilt and punishment were disputed in the trial court. However, CCA concluded the evidence was sufficient to prove the en­hance­ment allegation; D admitted a conviction for drug possession and that he had received a six-year term and had served three years in prison and three on parole.

Trial court did not err to conclude officer was justified in stopping D’s vehicle; officer had reasonable suspicion to detain D to investigate both the offense of failing to maintain a single lane of traffic and the offense of DWI. Leming v. State, No. PD-0072-15 (Tex.Crim.App. Apr 13, 2016).

        D pleaded guilty to, and was convicted of, the offense of driving while intoxicated, a felony in this instance because he had two prior DWI convictions. Tex. Penal Code § 49.09(b)(2). Prior to his plea, D filed a motion to suppress the product of the traffic stop by which the offense was discovered. The trial court denied his motion, and D challenged that ruling on appeal. COA reversed the ruling. CCA reversed COA and re­instated the trial court’s judgment.

        An officer had reasonable suspicion to stop D’s vehicle to investigate the offense of failing to maintain a single lane of traf­fic, even if he could not quite tell whether D had actually en­tered the adjacent lane, because he observed that D drove on the divider stripes and several times came close to entering the adjacent lane. Under Tex. Transp. Code § 545.060, it is an independent offense to fail to remain entirely within a marked lane of traffic so long as it remains practical to do so, regardless of whether the deviation from the marked lane is, under the particular circumstances, unsafe. The officer also had an objectively reasonable basis under U.S. Const. amend. IV to suspect D was intoxicated because a partially identified informant saw the vehicle swerving from side to side and the officer corroborated this observation.

Tex. Code Crim. Proc. art. 38.23(a) did not mandate that medical records of D’s blood alcohol concentration be suppressed; the State obtained the records in the absence of any specific statutory violation and in the absence of any manifest abuse of the grand jury’s ordinary investigative function, when the grand jury subpoena duces tecum was proper and within Tex. Code Crim. Proc. arts. 20.10 & 20.11. State v. Huse, No. PD-0433-14 (Tex.Crim.App. Apr 13, 2016).

        In this prosecution for misdemeanor driving while intoxicated, the State obtained evidence of D’s blood-alcohol concentration by issuing a grand jury subpoena for his hospital medical records. The trial court granted D’s motion to suppress on two grounds relevant to D’s current petition for review: (1) obtaining D’s medical records without a warrant violated U.S. Const. amend. IV, necessitating suppression under both the federal exclusionary rule and Tex. Code Crim. Proc. art. 38.23; and (2) a misuse of the grand jury subpoena process caused the State’s acquisition of D’s medical records to violate both state and federal law, also requiring suppression under the Texas exclusionary rule, Article 38.23.

        COA reversed the order suppressing the evidence, holding that the trial court erred: (1) under State v. Hardy, 963 S.W.2d 516 (Tex.Crim.App. 1997), D lacked standing to raise a Fourth Amendment challenge to the State’s acquisition of his medical records; and (2) the State did not acquire D’s medical records through an unlawful grand jury subpoena, so it was unnecessary to suppress them under Article 38.23.

        CCA affirmed COA. The Health Insurance Portability and Accountability Act of 1996 did not materially impact the Hardy holding with respect to Fourth Amendment standing to complain of the State’s acquisition of specific medical records. Second, the State did not acquire D’s medical records by way of a grand jury subpoena process that violated either HIPAA or state law and thus did not necessitate that they be suppressed under Article 38.23.

D’s punishment was properly enhanced even though the State did not prove the sequentiality of his two prior felony convictions and omitted the year of the second conviction; D’s plea of true to the enhancement allegations relieved the State of its burden to prove the allegations, and the record did not affirmatively re­flect that the enhancements were improper. Hopkins v. State, 487 S.W.3d 583 (Tex.Crim.App. 2016).

        D was found guilty of aggravated robbery with a deadly weapon. The State sought to enhance D’s punishment under the habitual-offender statute with two prior aggravated assault con­victions. Tex. Penal Code § 12.42(d). D pled true to those two prior convictions. The trial court accepted D’s pleas and found the enhancements to be true, and sentenced D to life im­prisonment. He appealed, arguing in part that the evidence at trial was insufficient to prove the enhancement allegations be­cause the State failed to prove the sequentiality of the two prior convictions. COA affirmed D’s conviction, holding that his plea of true to both enhancements was sufficient evidence to support a finding on those allegations. CCA affirmed COA.

        “Appellant pled ‘true’ to the enhancement allegations, which relieved the State of its burden to prove those allegations. After relieving the State of its burden by pleading ‘true’ to the enhancements, to prevail Appellant had to show that the record affirmatively reflected that the enhancements were improper. However . . . not only does Appellant fail to direct us to any record evidence affirmatively showing that the enhancements were improper, the record actually supports the enhancement allegations. Thus, the Fifth Court of Appeals properly applied our caselaw[.]”

The offense of improper contact with a victim was not unconstitutional as applied to D contacting his biological son while D was imprisoned for the aggravated sexual assault of his former step-daughter; D failed to show that a protected liberty interest was infringed because his right to privately communicate with his son had already been permanently enjoined in a civil order. Schlittler v. State, 488 S.W.3d 306 (Tex.Crim.App. 2016).

        “Appellant challenges the statute defining the offense of Improper Contact with a Victim under Texas Penal Code Section 38.111, which prohibits a person confined in a correctional facility after being convicted of certain sex offenses from contacting the minor victim of the offense or a minor member of the victim’s family. He explains that he was convicted under that statute for contacting his biological son while imprisoned for the aggravated sexual assault of his former step-daughter, who is also his son’s half-sister. Appellant argues that, because it prohibits contact between him and his biological son, the statute, as applied, infringes upon his fundamental liberty in­terest in the care, custody, and management of his son, in vio­lation of his rights to due process and equal protection un­der the Fourteenth Amendment to the federal Constitution. . . . With respect to appellant’s due-process challenge, we conclude that, under the particular facts of this case that show that appellant’s right to privately communicate with his son had already been permanently enjoined as a result of a separate civil-court order, appellant has failed to show that he had a protected liberty interest that was infringed upon by the statute, and thus his constitutional rights were not violated on that basis. With respect to appellant’s equal-protection complaint, we further conclude that Section 38.111 is neither based on a suspect classification, nor does it unduly infringe upon a fundamental liberty interest under the facts of this case, and, therefore, its application to appellant’s circumstances does not result in a constitutional violation. We, therefore, affirm the court of appeals’ judgment upholding appellant’s conviction.”

During trial, defense counsel learned about a possible right-to-counsel violation that occurred before trial and presented evidence involving the alleged violation, but counsel did not complain until appeal; thus, D forfeited his complaints. Darcy v. State, 488 S.W.3d 325 (Tex.Crim.App. 2016).

        D was on trial for burglary of a habitation. In an unrelated investigation of security at the county jail, a State investigator suspected a smuggling network was transmitting unauthorized messages to and from the jail. The investigator asked a friend of D’s to write D a note and pass it to the jail cook, which she did. At D’s trial, the friend was testifying for the State. During cross-examination, defense counsel produced the note and asked her to read it: “Chris, I know you are going to court Monday and I have been asked to be a witness. I have talked to Pat and told him I have not given them a statement. Is there anything I can do to help? Please get a note back to me as soon as possible.”

        Defense counsel clarified that he was not offering the note into evidence. The prosecutor then said the State would offer the note into evidence. Asked by the court if he had any objection to the exhibit, defense counsel said “no.” The note was admitted into evidence. On redirect, the prosecutor questioned the friend about the note. The State then called the investigator, who corroborated what the friend had said. Defense counsel did not object to any of the testimony about the note.

        On appeal, D complained about the State causing the note to be written and sent to him. He argued that his “due process right to a fair trial was violated by the State creating ‘evidence’ intended to open the door to extraneous offenses,” and that his “Sixth Amendment right to counsel was violated by the District Attorney’s Office contacting him during adversarial pro­ceedings while represented by counsel.” COA sustained these complaints; in a harm analysis, COA observed that the State introduced the note into evidence, the jury heard the testimony concerning the origin of the note, the evidence of investigation into jail-smuggling operations made D look like a criminal, and the jury asked during deliberations about any response by D to the note. Concluding D suffered harm, COA reversed and remanded.

        CCA said COA erred in failing to address preservation of error; D forfeited his complaints when he did not raise them at trial. D failed to raise any complaint to the trial court with respect to the note and sought relief for the first time on appeal. Any violation of the right to counsel relating to the note would have been immaterial to D’s conviction if the note and testimony had not been admitted into evidence; if error occurred, it was upon the admission of the note and testimony about it. CCA affirmed the trial court.

COA properly applied the Almanza harm standard to a jury-charge error raised in a motion for new trial and concluded D did not suffer egregious harm; COA also properly declined to defer to the trial court’s fact findings because they were matters of law or mixed questions of law and fact that did not turn on the credibility of evidence or demeanor of witnesses. State v. Ambrose, 487 S.W.3d 587 (Tex.Crim.App. 2016).

        D was a former kindergarten teacher who was convicted of misdemeanor official oppression after a trial at which the testimony of a purported accomplice was presented. After the jury found her guilty, D filed a motion for new trial alleging that the jury instructions were erroneous in that they failed to instruct the jury that the accomplice-witness testimony had to be corroborated. D further asserted she was egregiously harmed by the error. The trial court agreed, and it made what it characterized as findings of fact and conclusions of law in support of its ruling. On appeal, COA assumed without deciding that the trial court properly determined the jury instructions were erroneous; but, as to the matter of harm, it disregarded the trial court’s findings and conclusions and instead determined that D was not egregiously harmed under the substantive application of Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1984)(op. on. reh’g).

        D’s first two grounds for review contended COA erred by applying the Almanza egregious-harm standard and by fail­ing to defer to the trial court’s findings of fact made after the motion-for-new-trial hearing. D’s third ground for review asserted COA erred in concluding that the error was not egregiously harmful to her. CCA overruled all three of D’s grounds for review. COA properly held that (1) the Almanza harm standard applies to jury-charge error reviewed on appeal, even when the error was addressed in a motion for new trial, (2) it was not required to defer to the trial court’s factual findings in this case, and (3) the record failed to show that D was egregiously harmed by the error in the charge. D did not suffer egregious harm from the omission of the accomplice-witness instruction because there was strong corroborative evi­dence under Tex. Code Crim. Proc. art. 38.14 to connect her to the offense of official oppression; in light of the testimony from the principal, the assistant principal, and D herself that she either instructed or asked the students to hit the child and that the child was hit one or more times after that, there was an adequate amount of non-accomplice testimony to connect her to the offense.

D articulated a valid legal claim in his motion for new trial but did not produce evidence or point to evidence in the record that substantiated his claim; D presented evidence that his sentence was too harsh, not that it was unconstitutional. State v. Simpson, 488 S.W.3d 318 (Tex.Crim.App. 2016).

        D entered an open plea of guilty to second-degree felony robbery and true to an enhancement provision alleging one prior conviction for aggravated robbery. The trial court sentenced him to 25 years’ confinement. D filed a motion for new trial, alleging his sentence constituted a grossly disproportionate punishment under U.S. Const. amend VIII. The trial court granted a new punishment trial. On the State’s appeal, COA held that the record evidence did not substantiate D’s claim and vacated the trial court’s order. CCA affirmed COA.

        D argued that COA did not adequately defer to the trial court on the question of whether he presented evidence to substantiate his legal claim that his sentence was grossly disproportionate to the crime he committed. However, even under an abuse-of-discretion standard, the trial court acted without reference to guiding rules and principles when it granted a new punishment trial on the basis that D’s sentence was grossly disproportionate: “in light of Simpson’s role in the robbery and his significant prior adjudicated and unadjudicated offenses, his 25-year sentence is not one of those ‘rare’ cases where gross dis­proportionality can be inferred even when viewing the evidence in the light most favorable to the trial court’s ruling. . . .  Simpson’s sentence fell well within the statutory range of 5 to 99 years or life. Accordingly, there is no reason to compare his sentence to sentences imposed on others. . . . The trial court’s decision—to the degree that it found the constitutional claim substantiated—lies outside that zone within which reasonable persons might disagree. . . . Simpson sought to use an Eighth Amendment claim to develop additional evidence. . . . The evidence adduced at the hearing on the motion for new trial—evidence about Simpson’s minimal role in the offense, the age and circumstances of the prior offenses, his need for drug treatment, his employment—was undoubtedly relevant to the trial court’s normative punishment decision. It did not, however, substantiate Appellee’s legal claim that his sentence was unconstitutional.”

Court of Appeals

COA lacked jurisdiction over D’s appeals because no rule or statute authorized a defendant to appeal from an order denying a motion requesting the entry of a judgment nunc pro tunc. Desilets v. State, Nos. 09-16-00104-CR, 09-16-00105-CR (Tex.App.—Beaumont May 25, 2016).

        “Desilets filed appeals from the trial court’s order denying his request for a judgment nunc pro tunc as related to his convictions on two counts of intoxication assault. . . . [H]is complaint concerns the trial court’s alleged failure to properly credit him with having served 61 days in county jail after being sentenced but before his transfer to a prison. . . .

        “While appeals courts have jurisdiction over appeals from a final judgment of conviction, they do not have jurisdiction over appeals from orders denying requests for the entry of judg­ments nunc pro tunc because no statute has been passed creating appellate jurisdiction over such appeals. . . . Accordingly, the appeals are dismissed for lack of jurisdiction. A judgment nunc pro tunc makes a clerical change to the original judgment. . . . The trial court’s order denying Desilets’ motion makes no change to the original judgments; therefore, it is not a judgment nunc pro tunc.”

Officer did not have authority to perform an inventory search and, therefore, did not have authority to continue detaining defendant passenger while preparing to perform that search; because D was unlawfully detained, the evidence was insufficient to prove him guilty of evading arrest or detention. Capell v. State, No. 06-15-00186-CR (Tex.App.—Texarkana Sept 1, 2016).

        D was the passenger in a car subject to a traffic stop. Shortly after the initial stop, the vehicle’s driver was arrested and put in the patrol car. D waited in the vehicle while the investigating officer prepared paperwork. Approximately 15 minutes later, D exited the vehicle and fled the scene. He was subsequently arrested and charged with evading arrest or detention. D was found guilty in a bench trial. D appealed that he could not be convicted of evading detention because his detention was unlawful. In July 2016, COA reversed: “We find that Capell’s detention was unlawful and therefore reverse the trial court’s judgment and render a judgment of acquittal.”

        Here, COA denied the State’s motion for rehearing: “[A]n inventory search may be performed before an impoundment. But, as the 14th Court of Appeals noted, ‘[b]efore an inventory search is lawful, there must be a lawful impoundment.’. . . As we explained in our opinion above, the [officer] had no au­thority to impound the vehicle because he had a reasonable al­ternative to impoundment, namely, to turn the vehicle over to Capell. Because [officer] did not have authority to impound the vehicle, he did not have authority to perform an inventory search. Because he did not have authority to perform an inventory search, he did not have authority to continue detaining Capell. . . . [T]he State had the burden to prove there were no valid alternatives to impoundment[.]”

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