October 2021 SDR – Voice for the Defense Vol. 50, No. 8

Voice for the Defense Volume 50, No. 8 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

Pop quiz Sig Heads: can two flashlights strapped to the hood of a car serve as headlights? Follow up question: if you are committing a crime and you drive a flashlight-for-headlights car, should you either: (a) think twice about committing a crime, or (b) think twice about committing a crime at night. Extra points: does this fact pattern get better by adding a drug dog named Harley Quinn whose “I found drugs” signal is to wag her tail? This month isn’t just fun fact patterns. I celebrated my first case summary from a case found in the Federal Reporter Fourth Series (F.4th). I celebrated alone of course because who celebrates stuff like that? Me, I do. I also found a really good unpublished opinion, and in a way, I like to think it’s now kind of published—thanks Voice for the Defense! Compare Tex. R. App. Proc. 47.7.

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

Please do not rely solely on the summaries set forth below. The reader is advised to read the full text of each opinion in addition to the brief synopses provided. Cases are hyperlinked and can be accessed by clicking on the case name.

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

Kyle Therrian

United States Supreme Court

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

Fifth Circuit

U.S. v. Flowers, 6 F.4th 651 (5th Cir. 2021)

Issue. When you park your car at a convenience store in a bad part of town and don’t get out of your vehicle for 10-15 seconds have you given police sufficient reason to seize you?

Facts. An officer with Jackson P.D.’s Direct Action Response Team (DART), a proactive unit tasked to “look for suspicious behavior, suspicious activities, traffic stops, and things of that nature” was observing activity in an area of the city where “recent violent crime and burglaries” had occurred. This officer observed defendant inside his vehicle with a passenger for 10 to 15 seconds. The occupants did not exit the vehicle and did not appear to be patronizing the establishment. Due to defendant’s behavior, six patrol cars converged upon the defendant’s vehicle with their emergency lights activated. They positioned themselves in a manner so that the defendant could not leave. While interrogating the occupants of the vehicle, officers discovered a firearm in the defendant’s possession. Because he was a felon, the government charged and convicted him with the instant Felon in Possession of a Firearm case. At trial, defendant moved to suppress evidence obtained as a result of an unlawful seizure. The trial court denied defendant’s motion.

Holding. Yes. “The parties debate the existence of a ‘seizure’ under the circumstances here, and there appears to be no Fifth Circuit case where a law enforcement seizure occurred by the mere surrounding presence of police cars and Officer Stanton’s non-threatening approach to May’s auto. We need not resolve that debate and will assume arguendo [that there was a seizure]. . . . The following facts are determinative. [In addition to the area being known for crime], Officer Stanton was no novice. He possessed an undergraduate degree in justice administration and a masters degree in criminology and had ten years of law enforcement experience. . . . Two males were in the car, and Officer Stanton observed that neither of them stepped out of the Cadillac heading toward the store for 10-15 seconds.” This is reasonable suspicion. The court distinguished cases suggesting otherwise by pointing to the geographic specificity of high crime in the instant case, the very “unsavory” nature of the neighborhood, the suspicious place where the vehicle was parked—to the side of the business. Though the court assumes arguendo that there was a detention, the court also has much to say about how six police cars swooping in on the defendant with flashing lights was a simple and uncoercive “field interview.”

Concurrence / Dissent (Elrod, J.). The defendant was not parked suspiciously – he was parked in one of five or six available spots in the lot. Nor had officers received a report of suspicious activity. Based on their “dawdling” for 10-15 seconds, officers surrounded and “trapped” them with squad cars with emergency flashing lights. The majority is wrong to conclude that this Circuit has not held such police conduct a seizure – it has. See United States v. Beck, 602 F.2d 726 (5th Cir. 1979). The majority points to nothing particular about the circumstances present in this case that would lead one to conclude the defendant was exhibiting suspicious behavior. On numerous occasions this Court and the Supreme has found presence in a high crime area insufficient to justify reasonable suspicion—even in cases where an officer can imaginatively spin innocent conduct into seemingly suspicious conduct. “For citizens to become suspects, they must do more than merely exist in an ‘unsavory’ neighborhood. As my able colleague once put it, ‘it defies reason to base a justification for a search upon actions that any similarly-situated person would have taken.’ Rideau, 969 F.2d 1572, 1581 (Smith, J. dissenting). Otherwise, our law ‘comes dangerously close to declaring that persons in ‘bad parts of town’ enjoy second-class status in regard to the Fourth Amendment.” Id.

Comment. Forgive me for abundance of direct quotes, I felt the founding fathers judging me when I attempted to put this opinion in my own words. Also, I couldn’t stop picturing Sylvester Stallone driving around on his hover bike boasting his “undergraduate degree in justice administration.” The good news here is that this is my first F.4th opinion—a fact that excites me the same as it would potentially two other people I can think of on this planet.

U.S. v. Aguirre-Rivera, 8 F.4th 405 (5th Cir. 2021)

Issue. (1) In a drug conspiracy prosecution, is a defendant entitled to a judgment of acquittal when a jury returns a general jury verdict of guilty, but returns a special interrogatory finding the defendant was unaware that the conspiracy involved the requisite quantity of drugs constituting an element of the offense? (2) Under the same circumstances, may the trial court continue to subject a defendant to a drug-quantity-based enhanced minimum sentence in light of the jury’s inconsistent verdict?

Facts. A jury found the defendant guilty of conspiracy to possess with intent to distribute one kilogram or more of heroin. However, in a special interrogatory, that same jury could not find beyond a reasonable doubt “that the defendant knew or reasonably should have known that the scope of the conspiracy involved at least one kilogram or more of a mixture or substance containing a detectable amount of heroin.” The defendant moved for a judgment of acquittal and argued the jury’s answer to the special interrogatory undermined an element of the offense. In sentencing the trial court relied on an erroneous presentence investigation report (PSR) which stated that the defendant’s offense was “Conspiracy to Possess with Intent to Distribute 100 Grams or More of Heroin”—an offense carrying a mandatory minimum of 5 years. Defendant maintained that he had been acquitted by the jury’s inconsistent verdict but also objected to the PSR on the basis that the jury had made no finding with regard to a drug quantity.

Holding. No. “We have explained that the essential elements of a drug conspiracy are (1) an agreement by two or more persons to violate the narcotics laws; (2) a defendant’s knowledge of the agreement; and (3) his voluntary participation in the agreement.” In Apprendi v. New Jersey, 530 U.S. 466 (2000) and in Alleyne v. United States, 570 U.S. 99 (2013) the Supreme Court required that any factual matter which increased a defendant’s maximum or minimum sentence be treated as an element of the offense. Notwithstanding the explicit language Apprendi and Alleyne, the Fifth Circuit chooses to treat such matters as mere sentencing enhancements—not “formal elements of a conspiracy or possession offense.” (2) No. The trial court cannot sentence a defendant by relying on facts not found by the jury. “This was constitutional error.”

Comment. It baffles me how most Courts look to the holdings of Apprendi and Alleyne and persist in making distinctions between elements of an offense and sentencing enhancements. “The law threatens certain pains if you do certain things, intending thereby to give you a new motive for not doing them. If you persist in doing them, it has to inflict the pains in order that its threats may continue to be believed. New Jersey threatened Apprendi with certain pains if he unlawfully possessed a weapon and with additional pains if he selected his victims with a purpose to intimidate them because of their race. As a matter of simple justice, it seems obvious that the procedural safeguards designed to protect Apprendi from unwarranted pains should apply equally to the two acts that New Jersey has singled out for punishment. Merely using the label “sentence enhancement” to describe the latter surely does not provide a principled basis for treating them differently.Apprendi, 530 U.S. at 476 (citing Oliver Wendell Holmes).

Texas Court of Criminal Appeals

The Court of Criminal Appeals Court did not hand down any published opinions since the last Significant Decisions Report.

1st District Houston

State v. Gallien, No. 01-19-00882-CR (Tex. App.—Houston [1st Dist.] Aug. 12, 2021)

Issue. Does Rule 606(b)(1) prohibit juror testimony pertaining to statements or incidents occurring during jury deliberation to impeach the jury’s verdict?

Facts. A jury convicted the defendant of aggravated robbery with a deadly weapon. During the punishment phase, the jury considered whether the defendant had two prior felony offenses for punishment enhancement purposes. The trial court received two notes. The first note, written by the foreman, indicated the jury was split 11-1 regarding whether the enhancement allegations were true. The second note, written by Juror No. 32, stated:

What if a juror feels that they were pressured by their peers into a guilty verdict?

I expressed to all of my fellow jurors that I was not comfortable with a guilty verdict due to the fact that the detective did not both confirm that the defendant understood and waived his rights. I feel that his Miranda rights were violated.

That violation coupled with the witness testimony gave me cause for reasonable doubt and I believe the defendant to be innocent. Fearing that I would be bullied, I changed my verdict to guilty.

Now that we are in the punishment phase, the exact thing that I feared has come to pass as I have been belittled, berated, and threatened with perjury of court due to my beliefs regarding the additional charges being considered in sentencing.

Honestly, I am not comfortable with this entire process and am not sure how to proceed.

Defendant immediately moved for a mistrial on punishment and the trial court granted. Later defendant filed a motion for mistrial and motion for new trial on guilt-innocence. Defendant argued the verdict did not represent an expression of opinion but was rather the product of bullying, harassment, and the threat of criminal prosecution. Before the hearing on the motion for a new guilt-innocence trial, counsel obtained an affidavit from Juror No. 32. The trial court vaguely admonished counsel on the inappropriateness of contacting a juror and informed the parties she would not consider the contents of the affidavit. The court instead focused on the mid-deliberation note over the State’s objection under Texas Rule of Evidence 606(b). This rule makes inadmissible any “statement made or incident that occurred during the jury’s deliberations” influencing the juror’s vote. The trial court overruled the State’s objection and explained her view of 606(b) as a rule prohibiting post-trial harassment of jurors. Instead of granting a new trial on juror misconduct, the trial court granted a mistrial “in the interest of justice.” The State appealed the granting of a mistrial.

Holding. Rule 606(b)(1) prohibits juror testimony pertaining to statements or incidents occurring during jury deliberation to impeach the jury’s verdict. There are only two exceptions to this rule, both found under 606(b)(2): testimony about an outside influence, and testimony to rebut a juror’s qualifications to serve. Pressure placed upon one juror by others does not fit within either exception. Defendant’s argument, and the trial court’s position, that Rule 606 was designed to prevent post-trial harassment and not post-verdict-pre-jury-discharge inquiries is unpersuasive. Texas courts have consistently referred to the rule as one pertaining to post-verdict inquiry and at least one federal circuit court has found the identical federal counterpart to Rule 606 to prohibit mid-trial post-verdict inquiry. Even if were proper for the trial court to consider the juror’s mid-trial note, being bullied, harassed, belittled, berated, and threatened with criminal prosecution is just a normal part of jury deliberation.

Comment. How about this. Rule 606 is stupid. Make a new one. “In sum, Rule 606(b) protects a good system that cannot be made perfect.” So, this defendant be damned and have fun in prison. And here is something else. Texas Rules of Appellate Procedure require a new trial granted when the verdict is not a fair expression of the juror’s opinion, or when the jury engages in misconduct. If someone can explain to me how these things are shown without violating Rule 606, I’d listen patiently until you were done being wrong under the current status of the law.  

2nd District Fort Worth

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

3rd District Austin

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

4th District San Antonio

State v. Robles, No. 04-20-00244-CR (Tex. App.—San Antonio, Aug. 4, 2021)

Issue. Can a judge dismiss a prosecution sua sponte without notice and a hearing because the prosecutor failed to timely prosecute the matter?

Facts. The County Attorney of Kinney County and the judge of the Kinney County Court are not seeing eye-to-eye. This is one of fourteen variations of a similar spat currently pending before this Court. This one vaguely references the County Attorney’s disagreement that the “trial judge’s pay to plea practice was not authorized by law.” It appears the County Attorney would not submit plea papers in several cases and allegedly “engaged in protracted efforts to frustrate the proper functioning of the County Court of Kinney County, Texas.”  The trial judge sua sponte, without notice, and without hearing, dismissed some prosecutions with an “Order dismissing for Want of Prosecution.”

Holding. No. “Without the denial or violation of a defendant’s constitutional right permitting a dismissal of a misdemeanor complaint a court does not have the authority to dismiss a case unless the prosecutor requests a dismissal.” “The State’s right to maintain a criminal prosecution enjoys special protection because it is fundamental to the proper functioning of the adjudicatory process.”

Olalde v. State, No. 04-20-00197-CR (Tex. App.—San Antonio, Aug. 18, 2021)

Issue. In an intoxication manslaughter case where a defendant presents rebuttal evidence showing, among other things, she was first struck by another vehicle before colliding with the decedent’s vehicle, is evidence sufficient to show the defendant’s intoxication was the cause of the accident and death?

Facts. Defendant was driving a Ford Expedition and collided with a Chevy Malibu. The driver of the Chevy Malibu died. The State presented evidence showing the defendant veered from the left lane into the right lane, then veered onto the sidewalk before ultimately returning her vehicle to the roadway. The driver of the Chevy Malibu entered the highway from a private drive. Defendant struck the Chevy Malibu at the moment she returned her vehicle to the highway from the sidewalk. The State’s accident reconstructionist estimated defendant’s speed at 74-75 miles per hour. Defendant presented evidence that she was struck by a silver Dodge Charger before the collision. She told officers this during their crash investigation. A witness at the scene took a video showing a silver vehicle at the crash site. A 911 caller mentioned a silver Charger at the scene. The State rebutted this defensive theory with a nearby store surveillance video showing no other vehicles on the access road at the relevant time and with police officer testimony regarding the lack of paint transfer on the Expedition.

Holding. Yes. There were two theories presented regarding the collision. A person is absolved of criminal responsibility only when a concurrent cause is clearly sufficient to produce the result and the conduct of the defendant was clearly insufficient. Tex. Penal Code § 6.04. When defendant’s conduct is sufficient by itself to cause the result, or when the defendant’s conduct combines with a concurrent cause to cause the result, a defendant remains criminally liable. Here the jury was not unreasonable to reject the defendant’s evidence, or to accept the defendant’s evidence but find that the defendant’s intoxication combined with the concurrent accident caused the death of the Chevy Malibu driver.

5th District Dallas

Guyger v. State, No. 05-19-01236-CR (Tex. App.—Dallas, Aug. 5, 2021)

Issue. (1) Is a defendant entitled to a mistake of fact acquittal when she intentionally killed an individual after entering his apartment, but when the record reveals dozens of circumstances showing the defendant believed she had entered her own apartment and the victim was an intruder? (2) Is a defendant entitled to a self-defense acquittal under the same circumstances? (3) Is criminal culpability capped at criminally negligent homicide under the same circumstances?

Facts. Defendant was a Dallas police officer. She was convicted of murder after she entered a neighbor’s apartment at the end of her shift and shot him. Both the defendant and the victim lived in the Southside Flats Apartments. Defendant was a resident of 1378 on the third floor; victim was a resident of 1478 on the fourth floor. Evidence showed the layout of the building was confusing; one could easily mistake what floor they were on when entering from apartment hallways from the parking garage. When defendant approached 1478 she believed she was at her apartment. The door was ajar, and defendant testified that she heard someone shuffling around inside. She perceived a threat but did not call for backup or take cover. Instead, she entered and encountered the resident of 1478—Botham Jean. Defendant testified that she ordered Botham Jean to put his hands up and then she shot him in the chest intending to kill him. Defendant attempted to resuscitate Jean while calling 911. During that time, Defendant told the dispatcher 20 times that she thought she was in her own apartment, that she “fucked up” and panicked about losing her job. The investigating Texas Ranger testified that 23% of residents living on the third floor had accidentally tried to enter the wrong apartment at some point. Bullet trajectory testimony showed a fatal shot inconsistent with the defendant’s story of Jean standing up and moving toward her. Other residents testified to hearing the gunshot but without any warnings or commands from the defendant.

Holding. (1) No. A mistake of fact defense may only negate an element of an offense which requires a culpable mental state. “It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.” Tex. Penal Code § 8.02(a). Here a “mistake of fact would apply if Guyger mistakenly formed a reasonable belief that negated her intent to kill Jean.” Defendant did not mistakenly shoot Jean, she testified that she intended to kill him. “[T]he mistaken facts upon which Guyger relies are relevant only to whether Guyger was justified in shooting Jean.” (2) No. An individual may defend him or herself with deadly force when the individual reasonably believes such force is necessary to protect oneself from another’s use or attempted use of unlawful deadly force. Tex. Penal Code § 9.32(a) A defendant’s reasonableness is presumed when she knew or had reason to believe the victim entered the defendant’s habitation with force. Tex. Penal Code § 9.32(b). The defendant points to “her mistaken belief that she was in her own apartment to support the reasonableness of her belief that Jean posed an imminent threat. Mistake of fact, however, plays no role in self-defense—the former addresses Guyger’s culpable mental state; the latter addresses the circumstances of Guyger’s conduct. Guyger’s argument thus [improperly] bootstraps mistake of fact to reach the section 9.32(b) presumption of reasonableness.” Sufficient evidence supports the jury’s rejection of self-defense. A trained police officer testified that, in the defendant’s scenario, it is preferrable to take cover, call for backup, and offer the perceived intruder an opportunity to surrender. There was also some conflicting evidence regarding the moments before the shooting: whether Jean was seated or standing up and advancing, and whether the defendant demanded Jean show his hands prior to shooting him. Self-defense was not irrefutably shown. (3) No. Murder is a “result of conduct” offense. “Guyger’s mental state with respect to the result of her conduct—Jean’s death—determines the applicable offense. . . . The conscious objective or desire to cause death, or awareness that certain conduct is reasonably certain to cause death, gives rise to murder.” Defendant points to dozens of circumstances which led her to believe she was entering her own apartment, but the circumstances surrounding her conduct are irrelevant to this analysis. Defendant intended to cause the result of death according to her own confession.

Comment. The one thing I latched onto in this opinion was the following quote: “[w]e differentiate mistake of fact—a defense—from justification. Justification depends on the circumstances giving rise to the challenged conduct, and the reasonableness of the defendant’s belief that the conduct is immediately necessary to avoid imminent harm. [block quote of Tex. Penal Code § 9.22 “Necessity”].” The court then parlays this into a discussion about deadly self-defense in which it rejects the notion that a defendant can avail herself to the in-her-own-home presumptions with an erroneous but potentially reasonable perception she was in her own home. I’m not sure if the court means to imply that the defendant might have prevailed had she only raised a Section 9.22 necessity defense. Looking through the briefing in this case to see whether the parties addressed Section 9.22, it appears the State has latched onto the same quote. Unsatisfied with 100% victory, they have filed a motion for rehearing insisting the court shouldn’t have said that.

Sledge v. State, No. 05-19-01398-CR (Tex. App.—Dallas, Aug. 26, 2021)

Issue. A jury convicted a defendant of an offense but found the State’s enhancement allegations not true. Defendant moved for and the trial court granted a new trial, and the new jury found defendant guilty and found the State’s enhancement allegations true. Under these circumstances is counsel ineffective for failing to argue collateral estoppel or issue preclusion as a bar to the enhancements in the second trial?

Facts. Defendant was involved in an altercation where he ended up shooting a gun down the hallway of an apartment complex and then held a gun to someone’s head. Defendant fled the apartment in a vehicle driven by another person. When police stopped the vehicle at a convenience store, defendant exited and attempted to walk into the store while the driver remained. Police detained defendant and conducted a protective sweep of the vehicle. They discovered “a pistol on the driver’ side floorboard, and a bag containing several smaller bags of what appeared to be illicit drugs on the passenger’s side.” Upon arresting defendant, they found $3,000 in cash on his person. Defendant was charged with possession with intent to deliver: (1) heroin, and (2) cocaine, as well as felon in possession of a firearm. The State attempted to enhance defendant’s sentences in the drug cases with: (1) a prior felony conviction, and (2) the use of a firearm. The State attempted to enhance defendant’s sentence in the firearm possession case with only the prior felony conviction. The jury convicted the defendant of the offenses but found all enhancements not true. Defendant then requested a new trial “which was granted without any specific grounds identified.” Defendant’s second jury found him guilty and found the enhancements true.

Holding. Yes. “In Ashe v. Swenson, the Supreme Court recognized that the Fifth Amendment guarantee against double jeopardy embodies the principle of collateral estoppel.” Collateral-estoppel in the context of double jeopardy means that “the government may not litigate a specific elemental fact to a competent factfinder (judge or jury), receive an adverse finding, learn from its mistakes, hone its prosecutorial performance, and relitigate the same question of fact.” There is no provision in the law requiring a defendant to “forgo favorable portions of a verdict as a condition of challenging the balance of the verdict that was answered against him . . .” Like elemental facts, findings regarding enhancement elements are entitled to the preclusive effect of collateral estoppel under double jeopardy principles. Because the court can imagine no reasonable strategy for counsel’s failure to object to the State’s deadly weapon and habitual offender allegations, counsel’s performance was harmfully deficient. 

Dissent (from denial of en banc consideration) (Burns, C.J.) Double jeopardy applies if there has been one of three possible jeopardy terminating events: (1) an acquittal, (2) a trial court determination of insufficiency of the evidence leading to directed verdict of acquittal, and (3) an unreversed determination on direct appeal that there was insufficient evidence to support the conviction. The original jeopardy was never terminated because the trial court granted a motion for new trial. “There could be a number of reasons why defense counsel did not raise the issue of collateral estoppel in retrial. For one, she would have had no way to peer into the future and know or guess that a panel of our Court was willing to expand the law surrounding motions for new trial.”

Comment. Snatching victory from the jaws of defeat from the jaws of victory? There’s a lot of jaws here is what I’m saying, I guess. I’m trying to wrap my brain around (without Westlawing) why the argument had to be ineffective assistance rather than a simple due process argument that the conviction cannot be enhanced without regard to the effectiveness of counsel.

6th District Texarkana

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

7th District Amarillo

In re City of Lubbock, No. 07-21-00070-CV (Tex. App.—Amarillo, Sep. 2, 2021)(not designated for publication)

Issue. (1) When a defendant seeks an ex parte discovery order pursuant to his due process rights and without utilizing the Code of Criminal Procedure’s mechanisms for discovery, must he first mount a challenge to the constitutionality of the Code of Criminal Procedure? (2) Is a defendant limited to the mechanisms provided for in the Code of Criminal Procedure when seeking discovery from a third-party witness?

Facts. The defendant in a pending child sexual assault case had a theory that another witness in the case had influenced complainant to make false allegations. The defendant sought records of the third-party witness’s own false allegations. Instead of making a discovery request or seeking a subpoena, defendant sought an ex parte order from the trial court to command the City of Lubbock / Lubbock Police Department to produce records regarding the witness “including but not limited to: records where she was reported to be a child victim of sexual abuse.” The trial court issued the requested order with instructions prohibiting the city from disclosing the existence or contents of the order to the State or any other person. The city objected to the ex parte nature of the order and the trial court held a hearing to consider their arguments against production. At that hearing, the trial court conducted an in-camera inspection of records at the request of the defendant. After inspection, the trial court persisted in its order. The instant proceeding is the city’s petition for writ of mandamus seeking protection from the trial court’s order. 

Holding. (1) No. The defendant asserted a due process right to investigate and obtain discovery in a manner consistent with his right to not disclose defensive theories. He sought an ex parte court order to obtain the documents in the possession of a government entity because other mechanisms provided for under the Code of Criminal Procedure would not allow him to conduct such an investigation. “Despite these assertions, [the defendant] steadfastly maintains that his ex parte motion is not a constitutional challenge to any statute . . . . Rather, it is the City that argues [the defendant] must contend that the provisions of the Texas Code of Criminal Procedure are unconstitutional and that the trial court erred by implicitly finding that the discovery provisions of the Code violate his state and federal constitutional rights. The City is simply wrong in this contention for the reason that articles 24.02 and 39.14 of the Texas Code of Criminal Procedure are not the exclusive means by which a party may seek the discovery of relevant information under the control of a third party.” (2) No. A defendant has a constitutional right to investigate without exposing his defensive theories or the nature of his investigation to the State. The tools for discovery under the Code of Criminal Procedure do not always permit for such an investigation. In Ake v. Oklahoma, 470 U.S. 68 (1985) (and in its progeny) the Supreme Court held that criminal defendants have the right to the basic tools essential to their defense and may request assistance from the court ex parte to maintain the confidential nature of representation and to avoid disclosing defensive theories. For the same reasons articulated in Ake, the law permits the trial court to issue an ex parte order compelling a third-party to produce discovery.

Comment. We should all strive to have a court quote our briefs as much as the majority opinion quoted defense counsel’s in this case. This is an important opinion—one the court should publish.

8th District El Paso

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

9th District Beaumont

Edwards v. State, No. 09-19-00180-CR (Tex. App.—Beaumont, Aug. 25, 2021)

Issue. Officers posed as a fictitious 14-year-old girl on the internet. Defendant asked for a picture of her masturbating, and she declined. The fictitious child asked for sex, and the defendant declined. Under these circumstances, does a prosecution for attempted sexual performance by a child violate the First Amendment?

Facts. The State charged defendant with attempted sexual performance by a child. Detectives posing as children posted on social media that they were bored and looking to hookup with adults. Defendant chatted with the fictitious child and, when asked, detectives sent defendant pictures of a fifteen-year-old girl. Eventually, defendant sent pictures of his penis and asked the fictitious child to send pictures masturbating. The fictitious child declined to send pictures of herself naked but invited defendant to come over and hang out. Defendant accepted the invitation but declined the fictitious child’s invitation to have sex. Detectives arrested the defendant on arrival and interrogated him. Defendant stated he believed the person he was meeting was 18 despite the explicit representation that she was 14. Defendant argued that the picture she sent led him to believe she was 18. Defendant denied he was there to do anything other than hang out or go to lunch. Detectives did not find condoms, lube, or things customarily found when intercepting defendants in other solicitation of minor stings.

Holding. No. An as applied First Amendment challenge requires the court to look at the specific conduct of the defendant and determine whether the statutes at issue as applied to him were unconstitutional under the circumstances. Sexual performance by a child includes the inducement of a minor to take a photograph masturbating. Defendant attempted to commit this offense by doing more than a mere act amounting to preparation in this regard. “Words that are specifically designed to prompt an associate to action are not simply speech [in the context of the First Amendment], but are conduct that may be treated accordingly.” Barnes v. State, 206 S.W.3d 601, 606 (Tex. Crim. App. 2006). Defendant’s suggestion that the combination of the criminal attempt statute and the sexual performance by a child statute could criminalize “non-obscene communications between two consenting adults when one of the participants claims to be under seventeen” is a facial challenge to the constitutionality of the statute which was not raised in the trial court. Nor is this argument particularly persuasive—the statute proscribes certain conduct directed at a minor who the defendant believes is a minor. It does not sweep too broadly.

Comment. I’m not sure Attempted Sexual Performance by a Child can be a crime. It’s like saying attempted attempt to do something. The actus reus of the underlying offense includes “promotes a performance” without regard to whether that promotion was successful.

White v. State, No. 09-19-00328-CR (Tex. App.—Beaumont, Aug. 25, 2021)

Issue. Does the trial court have a sua sponte duty to provide the jury with an Article 38.23 instruction permitting it to disregard evidence it believes was illegally obtained?

Facts. A K-9 deputy with the Montgomery County Constable’s Office saw a vehicle using two flashlights strapped to the hood of the vehicle as headlights. He stopped the vehicle and after he was denied consent to search, he deployed his narcotics dog. The dog’s name was Harley Quinn, and Harley Quinn was a dog whose narcotics alert involved either wagging her tail or sometimes not wagging her tail. She also might alert on drugs by putting her ears back. Ultimately Harley Quinn sits down when she decides to give a final alert. The K-9 deputy testified Harley Quinn alerted on defendant’s vehicle by doing a “passive sit” on the driver’s side door. The deputy then searched the defendant’s vehicle on the basis of probable cause. Defendant moved to suppress the search of the vehicle based on video evidence not depicting Harley Quinn sitting at the driver door. The K-9 officer testified that Harley Quinn’s “passive sit” must have occurred when she was at the front of the vehicle and off-camera and just before she jumped in front of the driver’s door to get a tennis ball. The trial court went along with this and denied the motion to suppress. Defense did not request an Article 38.23 instruction and expressed satisfaction with the jury charge as written. When defendant’s counsel twice attempted to argue in closing the legality of the search, the trial court sustained the State’s objection. Then, having excluded from consideration the legality of the search, the prosecutor argued the legality of the search. During deliberations the jury sent the trial court a note asking whether it should consider that there was probable cause to search the vehicle.

Holding. No. Because the defendant did not object to the trial court’s jury charge, the appellate court will only review for egregious error—error that denies a defendant a fair and impartial trial when looking at the charge as a whole, conduct of counsel, and the entirety of the case and evidence. Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984). Because the rest of the jury charge [the part explaining how to find the defendant guilty] was correct, the omission of the statutory right of the jury to disregard evidence of guilt was not harmful when weighed against the rest of the jury charge. The weight of evidence showing the dog alerted on the driver-side door was considerable and weighs against egregious harm. The fact that both sides focused arguments on the legality of the search was inconsequential.

Comment. I mean this whole thing is wheels off. A dog named Harley Quinn that alerts by doing normal dog stuff. Then the “final alert” was on the driver-side door, but you can’t see it because the dog is not at the driver-side door when it does a “passive sit” on the driver-side door. Also, you can’t prolong a detention to make someone wait on a dog sniff. And, I’m pretty sure flashlights strapped to the hood might be good enough to pass Transportation Code muster. To top this all off the Court strains the Almanza test to uphold a conviction with a most superficial analysis. Why publish this?

10th District Waco

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

11th District Eastland

Monroy v. State, 11-19-00257-CR (Tex. App.—Eastland, Aug. 5, 2021)

Issue. (1) Texas code of Criminal Procedure Article 38.072 permits the first witness to a child’s outcry of sexual abuse to testify notwithstanding the rule against hearsay; under this rule, can multiple witnesses qualify as outcry witnesses in a continuous sexual abuse trial? (2) Can a prosecutor argue inferences from the defendant’s failure to call a witness?

Facts. A child sexual assault victim outcried to her mother and the defendant’s sister simultaneously. On a separate occasion, the child outcried to her stepmother. This occurred after the child’s mother dropped her off with maxi pads and explained that the eight-year-old child had started her menstrual cycle. Stepmother questioned the child until the child admitted that defendant was sexually abusing her.  The trial court allowed both the mother and the stepmother to testify as outcry witnesses. The testimony of each witness describing what the child had told them was nearly identical. However, the stepmother concluded that digital penetration had occurred, and the child’s mother had concluded that the child made it all up. Defense counsel argued in closing that the child’s timeline rendered her accusations impossible. On the dates and times of the alleged assault the child would have either been with her mother, grandmother (defendant’s mother), or in school. The State suggested the defendant had something to hide by not calling his mother.

Holding. (1) Yes. Texas Code of Criminal Procedure Article 38.072 “provides that outcry testimony from the first person, eighteen years of age or older, other than the defendant, to whom the child makes a statement describing the alleged offense will not be inadmissible because of hearsay, subject to certain procedural requirements.” The statement must describe the offense and be more than a general allusion. Hearsay from more than one outcry witness is admissible if the witnesses testify about different events—“designation of the proper outcry witness is event-specific.” Here one witness described an outcry involving touching and the other witness described an outcry involving penetration. The evidence sufficiently established that the child outcried about different events. (2) Yes. a prosecutor may comment on the defendant’s failure to call a witness if it does not fault the defendant for his failure to testify. And the failure to produce an available witness justifies an inference that the witness would testify unfavorably. Moreover, in the context of this case, the State’s argument was invited by the defendant. The defendant argued that the victim’s story was impossible because the events occurred during a time when his mother (child’s grandmother) would have been home and had not opportunity to be home alone with the victim as depicted in her stories.

12th District Tyler

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

13th District Corpus Christi/Edinburg

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

14th District Houston

Garcia v. State, No. 14-190-00086-CR (Tex. App.—Houston [14th Dist.], Aug. 10, 2021)

Issue. Do two bullet wounds which missed vital organs but required three hours of medical treatment where a doctor had to check to make sure everything was okay and staple the wound shut constitute serious bodily injury?

Facts. Defendant shot at complainant twice. One bullet went through her thigh without striking any organs. Another bullet went through her breast without striking any organs. Complainant went to the hospital and received minor medical attention. The treating physician testified that he used staples to close the wounds, that staples cause scars, and that “a gunshot wound can cause serious bodily injury and even death, and based on the location of complainant’s wounds, he believes she sustained serious bodily injury.” However, the physician “did not discuss whether complainant’s injuries, if left untreated, could have created a substantial risk of death or caused death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

Holding. No. First degree aggravated assault on a family member requires the defendant to use a deadly weapon and cause serious bodily injury. Serious bodily injury is defined as “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Tex. Penal Code § 1.07(a)(46). The injury inflicted is assessed “as inflicted, not after the effects have been ameliorated or exacerbated by medical treatment.” “A gunshot wound is not per se serious bodily injury.” Here there was no evidence that bullets hit any vital organs or caused lasting impairment or disfigurement. Complainant remained standing after being shot, gathered her things, and drove away. Complainant did not receive any serious medical treatment at the hospital. Complainant testified she felt she was going to die and that she now has scars, but she did not explain why she felt that way or describe her scars. “The simple fact that some scarring occurred is not sufficient to support a finding of serious bodily injury.” Complainant’s treating physician testified that he believed complainant suffered serious bodily injury, but that opinion was not shown to be linked to the statutory definition. The physician testified no vital organs were struck and did not testify what would have happened if the complainant went untreated.

Dissent (Poissant, J.) “Complainant suffered two gunshot wounds near vital organs, bled profusely, lost consciousness, required emergency room treatment, has bullet fragments in her right thigh, has scars from the bullet wounds. The testimony of the emergency room physician who treated Complainant established both that the Complainant suffered serious bodily injury and that her injuries could have caused Complainant’s death.”

Comment. My initial instinct here was to focus on “creates substantial risk of death.” I would think any gunshot wound creates a substantial risk of death, especially when you have a doctor give the ole “little to the left or little to the right” testimony. Near the end of the opinion, however, the court does a good job string citing scary-conduct-not-so-scary-injury cases supporting this outcome.

Ex parte Estrada, No. 14-20-00758-CR (Tex. App.—Houston [14th Dist.], Aug. 19, 2021)

Issue. Does the Confrontation Clause of the Sixth Amendment prevent the State from introducing hearsay testimony adverse to the defendant at a pretrial writ of habeas corpus requesting bail reduction?

Facts. Defendant, a previous felon, was arrested when he entered a Houston P.D. “bait house” (fake drug home to lure drug burglars) with body armor and guns. His bond was initially set at $1.25 million. This is the appeal from the writ of habeas corpus whereby the trial court reduced his bail to $900,000. At the hearing on defendant’s writ, defendant presented testimony that family could post a bond amount of $25,000, that defendant maintained steady employment with ties to the community, and that he has “co-morbid conditions” increasing his risks to serious health problems should he contract COVID-19 in the jail. The State presented no testimony. The State offered and the trial court admitted a copy of the indictments and a written summary from the investigating detective over defendant’s hearsay and Sixth Amendment objections.

Holding. “The closest the Texas Court of Criminal Appeals has come to ruling on this issue was in a 1971 case, Ex parte Miles, in which the Court held a defendant possessed rights under a differently formulated provision of the Texas Constitution ‘to be confronted with the witnesses against him at [a pretrial bail hearing] before bail can be denied,’ as statements by out-of-court witnesses were not evidence substantially showing the guilt of the accused.” 474 S.W.2d 225 (Tex. Crim. App. 1971).” But this case centers on different constitutional rights and on the probative value of non-testifying witnesses, not a defendant’s confrontation rights. The Supreme Court has limited confrontation rights to instances of trial testimony and in parole hearings. Lower federal courts have denied the right to confrontation in bail proceedings. Here, the defendant erroneously relies on “his own characterization of the Texas Court of Criminal Appeals’s Miles decision,” that “an accused is entitled to be confronted with the witnesses against him at [his bail] hearing.” The Court of Criminal Appeals in Miles interpreted the Texas Constitution as it pertains to outright denial of bail, not the federal constitution’s right to confrontation.

Comment. The court distinguishes the right to confrontation in the context of parole by arguing [t]hose hearings implicate a set of rights and interests entirely distinguishable from those in play during pretrial detention hearings.” I don’t quite agree.

Thomas v. State, No. 14-19-00685 (Tex. App.—Houston [14th Dist.], Aug. 26, 2021)

Issue. Does Texas Code of Criminal Procedure Article 38.371, which permits the introduction of evidence in a domestic violence case which helps explain the “nature of the relationship between the actor and the alleged victim,” facially violate a defendant’s right to due process? 

Facts. Defendant was smoking crack with his wife (complainant). After believing she was hiding some of the crack he began to assault and choke her. The child in the room started screaming and hollering, and the neighbor called 911. Complainant testified at trial accordingly, even though she had previously given numerous sworn and unsworn statements exonerating the defendant. Defendant’s trial strategy was to challenge the complainant’s credibility. To rebut this defense, the State introduced evidence of a prior assault from 2017 involving the same couple and the defendant’s use of crack prior to commit assault. The trial court admitted this evidence pursuant to Texas Code of Criminal Procedure Article 38.371 which permits the introduction of all evidence which would permit the jury to understand the “nature of the relationship between the actor and the alleged victim” but maintains the normal rules against character conformity evidence contained in the Texas Rules of Evidence. The trial court gave a jury limiting instruction that required the jury to first determine whether the prior bad act was shown true beyond a reasonable doubt and prohibited its use as character-conformity evidence. In the punishment phase of trial, the trial court permitted the State to admit over the defendant’s objection disciplinary records from his previous period of incarceration for aggravated robbery.

Holding. No. “Generally, an accused must be tried only for the offense with which he is charged and may not be tried for a collateral crime or being a criminal generally.” Texas Code of Criminal Procedure Article 38.371 permits the introduction of all evidence which would permit the jury to understand the “nature of the relationship between the actor and the alleged victim” but maintains the normal rules which apply to character conformity evidence contained in the Texas Rules of Evidence. There is no fundamental right to a trial free from the introduction of extraneous offense evidence. Accordingly, Article 38.371 must only pass a rational basis test—it must be reasonable, not arbitrary, and rationally related to a legitimate state interest. Due to the nature of family violence cases and victims who frequently recant or don’t testify, the “nature of the relationship between the actor and the alleged victim” help “confirm the complainant’s initial—and later recanted—statements to the police, or to explain the complainant’s unwillingness to cooperate with law enforcement or prosecution.” Appellant’s contention that Article 38.371 violates due process by dispensing with any balancing consideration by the judge is without merit. Article 38.371 expressly provides that the Rules of Evidence pertaining to character conformity evidence shall not be violated – this includes a 403 balancing test.

Comment. I don’t get the use of “generally” before the sentence “an accused must be tried only for the offense with which he is charged and may not be tried for a collateral crime or being a criminal generally.”

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

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

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