October 2022 SDR – Voice for the Defense Vol. 51, No. 8

Voice for the Defense Volume 51, No. 8 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

I’ve begun giving a significant decisions CLE presented in interactive trivia fashion using a program called Slido. It’s about as much fun you can have with case law (outside of reading the SDR, of course). It’s been an eye-opening exercise of how unpredictable our case law outcomes can be, even to well-trained lawyers. Answers often evenly split among multiple choice options on how courts ruled on a particular issue. I think it is an indictment of the common law aspects of our criminal justice system. Perhaps it’s not living up to lofty ideals. Let’s try one here: how many days in a year? I highly doubt you will get this one right. Keep reading to get mad. 

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

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

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

Kyle Therrian

United States Supreme Court

The United States Supreme Court did not hand down any significant or published opinions since the last Significant Decisions Report. See my comment above.

Fifth Circuit

U.S. v. Harbarger, 46 F.4th — (5th Cir. 2022)

Issue & Answer. Is a 7.5-inch piece of bamboo with a fuse that is designed to blow up beaver dams an illegal explosive device? No.

Facts. Defendant possessed a 7.5-inch piece of bamboo with a short fuse that apparently explodes when lit. It is used to help him remove beaver dams. The U.S. Attorney for the Eastern District of Texas indicted him for having an explosive device. After the Government proved these facts together with conclusory statements that the device has no commercial application, the defendant moved for a judgment of acquittal. The trial court denied the defendant’s motion.

Analysis. The National Firearms Act prohibits the possession of an unregistered firearm. This includes a destructive device, defined as “any explosive, incendiary, or poison gas . . . bomb.” However, excluded from this definition is “any device which is neither designed nor redesigned for use as a weapon.” When there is doubt whether the device has some social value and legal use, there must be proof of scienter (defendant’s intent or knowledge) or proof the device can only be used for illegal purposes in order to sustain a conviction.

Comment. I mean why are we going after the beaver dam guy? I have clients in EDTX being shipped to northern Oklahoma for jailing. If holding beaver dam guy locally is the reason . . .

Texas Court of Criminal Appeals

Haskell v. State, No. AP-77,091 (Tex. Crim. App. 2022)

Issue & Answer. A party who loses a motion to suppress is entitled to findings of fact upon request.  When a party makes a request but fails to inform the trial judge his findings were overdue, has the party forfeited this right? Sort of. It’s a failure to preserve error rather than forfeiture.

Facts. The State secured a sentence to kill the defendant. The defendant lost his suppression hearing and requested findings of fact. Two months after his request the trial court sentenced the defendant without making the requested findings. Five months later the trial judge lost his primary election. Ten months later the trial judge left the bench. Appellate counsel (presumably appointed after sentencing) took no steps to secure findings until after the trial judge left the bench.

Analysis. The case providing for remand upon a trial judge’s failure to issue requested findings of fact and conclusions of law is State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006). Cullen turns on a civil rule. The civil rule requires a party requesting findings to notify a trial judge that the findings were past due within ten days after they were due. “But we need not adopt and apply the balance of that civil rule today and hold that the Cullen request here has been forfeited. More basic principles of error preservation come into play.” When a judge makes a favorable ruling, a party must object when that ruling is not enforced. Here the trial judge’s agreement to issue findings was a favorable ruling and the defendant needed to object when the trial judge did not issue them.

Comment. More judge protection rules in a system supposedly designed to strike a balance between the interests of society and the interests of individuals. Someone tell Thomas Hobbes and Jean-Jacques Rousseau they had the social contract all wrong; they forgot about the judges.

Ex parte Richardson, No. PD-0284-21 (Tex. Crim. App. 2022)

Issue & Answer. A jury could have convicted a defendant of murder under a theory of party liability but didn’t. The facts established that the defendant’s associate opened fire on Victim 1 and Victim 2 at two different locations. Victim 1 died but the evidence did not show which shooting caused the result. After a jury acquitted the defendant of all offenses relating to Victim 1, was the State collaterally estopped (under double jeopardy) from prosecuting the defendant for aggravated assault upon Victim 2? No.  

Facts. Defendant and a guy named Polk met with two guys at a gas station to sell them a gun (Victim 1 and Victim 2). Unbeknownst to Victim 1 and Victim 2, Defendant and Polk had sold the gun to another buyer before arriving at the gas station. Polk converted the meeting into an armed robbery. It was unclear whether the defendant knew Polk planned to rob the victims, but the defendant did hand Polk a gun before the two got into the backseat of the victims’ car. After successfully taking the victims’ money, Polk shot Victim 1 through the back. The defendant freaked out and ultimately offered to have the victims follow him to the nearest hospital. Trial testimony provided some indication that Victim 1 had died before the group departed for the hospital. All the same, they never made it. The defendant slowed his vehicle down somewhere in a residential area and Polk opened fire on the victims’ vehicle. Victim 1 received another bullet wound through the head and thigh. First responders found Victim 1 deceased upon arrival and took Victim 2 to the hospital where he eventually recovered from Polk’s gunfire. The State charged the defendant and Polk with capital murder (of Victim 1), murder (of Victim 1), and aggravated robbery (of Victim 1). A jury convicted Polk of capital murder but acquitted the defendant on all three charges (as a principal and as a party). After trial the State charged the defendant with aggravated robbery and aggravated assault of Victim 2. The defendant filed a pretrial writ of habeas corpus challenging the later prosecution on collateral estoppel double jeopardy grounds. The court of appeals reversed and held that “because [Victim 1] received fatal gunshot wounds during both shootings, to acquit, the jury must have found that Appellant was neither the shooter nor a party to either of the shootings.” In other words, the defendant argues that the jury necessarily found that he was merely present for all shootings.

Analysis. Protection against double jeopardy includes collateral estoppel. “[W]hen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” The court “must first determine whether the jury determined a specific fact, and if so, how broad—in terms of time, space and content—was the scope of its finding.” Because jury verdicts are general, the court must examine the pleadings, evidence, charge and other relevant matter.” If the record reveals a possibility that the jury based its verdict on an issue other than what the defendant seeks to foreclose from consideration, there is no collateral estoppel problem.  The touchstone case is Ashe v. Swenson, 397 U.S. 436 (1970). In Ashe, the State accused the defendant of robbing a poker game. When a jury acquitted Ashe of robbing one of the poker players the state brought charges against Ashe for robbing one of the other poker players. The logical issue before the jury in Ashe was whether the defendant was the person who committed the robberies, and so the State was collaterally estopped from trying to prove identity in a subsequent trial after a jury previously acquitted him. This case is slightly different than Ashe. Here, the State would be collaterally estopped if the jury found that Victim 1 was still alive when Polk opened fire in the residential neighborhood (the second shooting). Under this theory the jury would have acquitted the defendant as a principal or party to all the assaultive conduct resulting in the death of Victim 1. But the jury could have potentially found that Victim 1 had died before Polk opened fire in the residential area and treated the second shooting as superfluous information. In this scenario the jury’s acquittal would have been a finding absolving the defendant only of assaultive conduct occurring at the first location.

Comment. Did the State have an epiphany after trial that shooting someone with a gun is aggravated assault with a deadly weapon? Doubtful. I think this kind of strategic crap should be poured out on speedy trial grounds. Try the case and let justice prevail. It seems the State chose to delay the new prosecution for no other reason than to have a second bite at the apple if they lost the first case.

Lynch v. State, No. PD-1089-20 (Tex. Crim. App. 2022)(not designated for publication)

Issue & Answer. When a co-conspirator testifies and attempts to take full credit for drug possession, does a defendant open the door to the State’s use of the defendant’s prior convictions for drug possession under Rule 404(b)(limiting use of prior bad acts)? Yes. Is such evidence excludable under Rule 403 (unfair prejudice substantially outweighing probative value)? Not here.

Facts. When officers raided the defendant’s house and discovered a large quantity of cocaine, his girlfriend (“Girlfriend”) attempted to take responsibility. However, Girlfriend was unfamiliar with certain drug terms and ultimately implicated the defendant when she learned the potential penalty for the ownership she was attempting to claim. Girlfriend signed multiple post-arrest statements and ultimately testified at trial attempting again to take ownership of the cocaine. The trial court ruled that Girlfriend’s testimony opened the door to the State’s use of two of the defendants four prior drug convictions. The trial court agreed with the State that Girlfriend’s testimony advanced a defensive theory that the defendant did not have the intent to possess, nor did he know about the possession taking place in his own home. The court of appeals reversed the defendant’s conviction after finding the prior convictions substantially more prejudicial than probative. The court of appeals found it significant that the State waited to admit the prior convictions as standalone exhibits after Girlfriend testified rather than questioning girlfriend about the exhibits on cross-examination. Moreover, the court of appeals found that, without context, the convictions did little more than show that the defendant was a drug dealer, generally.

Analysis. Under Texas Rule of Evidence 404(b), evidence of prior bad acts is inadmissible to prove character conformity. But prior bad acts are admissible to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. When a defendant opens the door, he does so by placing one of these issues into question. If evidence of a prior bad acts contributes even incrementally to proving an issue other than character conformity, the prior bad act is admissible. Relevant prior bad acts admissible under 404(b) may still be inadmissible under Texas Rule of Evidence 403 if probative value is substantially outweighed by unfair prejudice. Trial judges are afforded broad discretion in making Rule 403 determinations. Contrary to the opinion of the court of appeals, the absence of context surrounding the prior bad acts worked to minimize the prejudicial impact of the evidence. The trial court also gave two limiting instructions to the jury prohibiting character conformity use of the evidence. This minimal prejudice existed against the backdrop of the State’s need after Girlfriend essentially took the wind out of prosecution’s sails. The trial court’s admission of prior bad acts did not violate Rule 404(b) or Rule 403.

Concurring (Yeary, J.). The limited issue on appeal is whether the evidence was substantially more prejudicial than probative under Rule 403.

Comment. I mean at this point the only surefire way to not open the door is to abscond.

Lang v. State, No. PD-1124-19 (Tex. Crim. App. 2022)

Issue & Answer. Organized Retail Theft (ORT) does not require the State to identify an owner in the charging instrument—a conviction may rest on the mere possession of stolen property. With this being true, can ordinary theft (requiring proof of owner identity) serve as a lesser included offense of ORT? Yes.

Facts. The defendant stole items from HEB. The State charged her with organized retail theft (ORT). The indictment alleged that the defendant “conducted, promoted, or facilitated an activity in which she received, possessed, concealed, or stored stolen retail merchandise . . .” Evidence showed the owner of the merchandise was HEB, but the indictment did not allege an owner. Defendant acted alone and did nothing distinctive from committing typical shoplifting. Defendant previously appealed her conviction challenging the ORT statute as impermissibly allowing a conviction for “ordinary shoplifting of retail items by a single actor.” The Court of Criminal Appeals previously reversed her conviction upon a finding that the ORT statute must require some proof of activity distinct from an ordinary theft. Upon reversal the Court of Criminal Appeals instructed the court of appeals to consider whether her conviction could be reformed from ORT to ordinary theft. The court of appeals held that Theft is not a lesser included offense of ORT and this appeal ensued.

Analysis. The distinct question here is whether the appellate court, after finding an ORT conviction is inappropriate, can reform the judgment and convict the defendant of theft instead. The court sets out a four-step process for making this determination:

    1. The reviewing court finds the evidence insufficient to support the appellant’s conviction.
    2. The reviewing court determines that there is a lesser-included offense of the greater offense the defendant was convicted of.
    3. The reviewing court determines that the trial court, in convicting the appellant of the greater offense, necessarily found every element required to convict the appellant of the lesser-included offense.
    4. The reviewing court conducts a sufficiency analysis as though the appellant was convicted of the lesser-included offense at trial and finds the evidence sufficient to support the hypothetical conviction.

Whether an offense is a lesser-included of another requires a “cognate-pleadings approach.” This approach requires a comparison of the elements of the greater charged offense as stated in the indictment to the purported lesser-included offense. If the greater charged offense (1) alleges all the elements of the lesser-included offense, or (2) alleges elements plus facts from which all the elements of the lesser-included offense may be deduced, the purported lesser-included offense is appropriate. The elements of the lesser included offense need only be functionally the same as the allegations in the indictment. Appellant contends that because the name of the owner is an essential element of theft, the State having proven all elements of ORT does not necessarily mean they proved all elements of theft. But Appellant is using this court’s standard for determining elements of an offense which applies to sufficiency of evidence challenges (the hypothetically correct jury charge). When conducting the cognate pleadings approach to determining a lesser-included offense, the elements of the lesser-offense are only those defined by the statute. Here, theft requires proof of appropriation and appropriation can be deduced from the ORT allegation of exercising control over stolen property. Here, theft requires proof of intentional deprivation and intentional deprivation can be deduced from the ORT allegation of exercising control over stolen property. Contrary to the reasoning of the court of appeals, to satisfy the statutory elements of theft the State must only prove an owner existed and not the identity of the owner. And here the existence of an owner can be deduced from the ORT allegation of exercising control over stolen property that came from a retail establishment.

Dissenting (Yeary, J.)

Comment. What a journey. When it takes 2-3 pages to explain what a lesser-included offense is and 29 pages to apply the facts to the law, I don’t see how we can expect trial attorneys to adequately prepare for the eventualities of trial. Imagine yourself sitting down with a client who says, “what are the risks of trial?” and the first thing out of your mouth is “well, under the cognate pleadings approach . . .”

1st District Houston

Fields v. State, No. 01-20-00280 (Tex. App.—Houston [1st Dist.], Aug. 11, 2022)

Issue & Answer. This is a capital murder for committing multiple murders in a single transaction. The defendant was a driver, and his accomplices were the triggermen. The State’s theory of the defendant’s guilt is his party liability for the murder occurring within the scope of the robbery he agreed to participate in. The indictment did not mention robbery. Was it proper for the trial court to instruct the jury on party liability to an unindicted robbery without giving the jury a definition or the elements of robbery? No, but the error was harmless.

Facts. A jury convicted the defendant of capital murder (for the death of more than one person in the same transaction). The State’s theory and the jury’s conviction rest on the defendant’s party liability to a robbery turned murder. The defendant was not the shooter, but he was the driver and was involved. The State did not indict the defendant for robbery nor did their indictment for capital murder reference robbery. The trial court instructed the jury it could find the defendant guilty on a theory of party liability to a robbery. The trial court denied the defendant’s request to include the elements of robbery and denied the defendant’s request to include a lesser-included offense instruction on robbery.

Analysis. Generally, when the State intends to rely on party liability to a robbery as the basis for capital murder, they either indict the person as having committed murder in the course of a robbery or they indict the person for capital murder and a separate count of robbery. What the state did here is weird. They indicted the defendant for murdering more than one person (a distinct ground of capital murder), did not refer to robbery, then relied on defendant’s party liability to a robbery to convict. Only two cases appear to exist where a trial court instructed the jury that it could convict on a primary offense based on party liability to an unindicted offense. In both cases, the trial court defined the elements of the unindicted offense. Given that it is the trial court’s obligation to “deliver to the jury . . . a written charge distinctly setting forth the law applicable to the case,” the omission of a definition for robbery “derail[s]” the process. The court’s omission was charge error, but it did not cause harm. The defendant was clearly a party to robbery. Witnesses saw the three men at the scene of the murder, the defendant admitted to planning a robbery, and counsel basically conceded the point in closing argument.

Comment. This case exposes how the rules of appellate review violate the Sixth Amendment (in my opinion). This was a trial before the appellate court. No juror determined whether the defendant committed robbery or was a party to a robbery—not even close. An appellate court just decided that he did in the name of an efficient judicial system.

Ex parte Vieira, No. 01-21-00464 (Tex. App.—Houston [1st Dist.], Aug. 16, 2022)

Issue & Answer. How many years is July 7, 2019 to July 9, 2021? Exactly two. 

Facts. The State charged the defendant with aggravated assault by a public servant. Because the underlying offense is an assault, the statute of limitations is 2 years. The State alleged the offense occurred on July 7, 2019 and filed their indictment on July 9, 2021. Defendant filed a pretrial writ of habeas corpus asking that the case be dismissed and alleging that the prosecution was time barred. The trial court denied relief.

Analysis. Article 12 of the Code of Criminal Procedure governs limitations. The computation of time does not include the date of the offense or the date of the indictment or information. The limitations period here is 2 years. The alleged offense day is July 7, 2019, therefore the first day of the limitations period counted is July 8, 2019. So, the two-year date was July 8, 2021. The State was required to file their indictment by the end of the day on the next calendar day: July 9, 2021. They did this, the trial court properly denied relief.

Comment. A year is:

    1. Twelve calendar months beginning January 1 and ending December 31. — Also termed calendar year.
    2. A consecutive 365-day period beginning at any point; a span of twelve months.

YEAR, Black’s Law Dictionary (11th ed. 2019). 2 years is 730 days (365 x 2). July 8, 2019 to July 8, 2021 is 732 days. The State filed an indictment for an assault offense occurring on July 7, 2019 on July 9, 2021. That’s 734 days. Subtract 2 (first day and last day don’t count statutorily). That’s 732 days (or 2 years and 2 days). What am I doing wrong? Is there some exception written in the Mayan codices? Was the crime committed on a leap year?

Thomson v. State, No. 01-20-00434-CR (Tex. App.—Houston [1st Dist.] Aug. 18, 2022)

Issue & Answer 1. A defendant gave consent to an officer to access his phone and verify it cannot make a phone calls. Did the defendant’s scope of consent include the assumption of risk that the officer might misnavigate to the images on the phone and discovery illegal activity? Yes.

Issue & Answer 2. When a jury suppression issue is raised at trial focusing on whether an officer intentionally accessed the photo gallery or misnavigated to the photo gallery, does the post-trial disclosure of the officer’s prior termination from the district attorney’s office for using a government database for unauthorized investigations of a personal nature require the granting of a new trial? Yes.

Facts. An officer stopped the defendant who was out after midnight. The defendant appeared to be over 40 years old, and he had a passenger in his vehicle that appeared to be a minor (actually 18). The officer quizzed the defendant and the passenger until their stories did not match. He removed the defendant from the vehicle, conducted a Terry frisk, and discovered a marijuana pipe and a cell phone. The officer searched the defendant’s vehicle and discovered knives, duct tape, bungie cords, screwdrivers, binoculars, powdered Benadryl, bar soap, and another cell phone. The defendant told the officer he used these items working as a chicken farmer. The defendant told the officer that the second cell phone stored pictures only and that it did not have cellular service. The officer was suspicious of this claim because the home screen had a 3G icon as though it was connected to cellular service. The defendant unlocked his phone so the officer could confirm the phone was not working by attempting to make a phone call. The officer’s body camera went silent for 15 seconds and then the officer confronted the defendant with the following statement: “Dude, I’m trying to shut your phone, and there’s pictures of naked little girls and little girls in sexually explicit positions. What’s up with that? The officer testified in a suppression hearing that his personal phone was an iPhone with a center button that you press to go back to the home screen. Defendant’s phone was an Android and didn’t function the same way. The officer attempted to return the phone back to the home screen to store it and because it was an android it just pulled up all of the defendant’s child pornography. Experts testified at trial regarding the operation of the defendant’s phone. The experts explained how the stored images are accessed by hitting the gallery button located one row above where the officer may have been legitimately clicking to lock out the phone. The State’s expert showed how the crack in the defendant’s screen could permit access to the photo gallery by only clicking near the icon. The defendant’s expert testified that the officer should have never been on the icon screen if all he was doing was making a phone call and then trying to lock the phone as the officer described. After trial, the district attorney discovered Brady material pertaining to the officer. The officer had resigned from the Grimes County District Attorney’s Office after being confronted about his unauthorized use of a government database to spy on his wife and his new girlfriend’s lover during their divorce proceedings. The defendant moved for new trial and after a hearing the trial court denied relief.

Analysis 1. The trial court’s ruling is best upheld by characterizing the defendant’s consent as broad enough to include inadvertent misnavigation. An officer may inadvertently cause things to fall into plain view. Consent to use a certain function on the phone is consent to inadvertently misnavigate to other areas of the phone. Thus, the officer discovered images of child pornography within his legitimate plain view of the phone.

Analysis 2. Texas Code of Criminal Procedure Article 40.001 requires a trial court to grant a new trial “where material evidence favorable to the accused has been discovered since trial.” Here, because the defendant requested and received a jury evidentiary suppression instruction under Texas Code of Criminal Procedure Article 38.23, the question of whether the officer truly stumbled upon the defendant’s child pornography by accident was important. Evidence that he once perused a government database without authorization in the past was therefore material. Article 40.001 has additional requirements, though. The newly discovered evidence must be admissible. Here the parties focused their arguments on the permissible use of prior bad acts. Rule of Evidence 404(a) prohibits the use of character evidence to prove conduct conformity. The State argued in the trial court that the use of prior bad acts is limited by the Rule itself to proving bias, self-interest, or a motive to lie. The State further argued that the defendant may not rely on Rule 404(b) “for a pathway to admissibility independent of admissibility through Rules 607 through 609.” The trial court erred to rely on this articulation of the rule. The State’s analysis of the interplay between Rules 404, 607, 608, and 609 is unsupported in the law. It is true that Rule 404(a) provides a limited mechanism for the use of character evidence to prove certain things. That said, Rule 404(b) is a thing unto itself—it provides a mechanism for using prior bad acts to prove something other than character conformity. Here the evidence had probative value on a point in controversy: whether the officer’s access of the defendant’s pictures was truly inadvertent.

Comment. What kind of weapon feels like a marijuana pipe or a cell phone? I mean that’s what a Terry frisk is, right? To find weapons?

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

Ex parte Bornhop, No. 03-22-00033 (Tex. App.—Austin, Aug 11, 2022)

Issue & Answer. Extradition rules require the production of certain documents supported by affidavit. Must the supporting affidavit comply with technical requirements of the Rules of Civil Procedure? No.

Facts. The defendant had warrants in Missouri for burglary and theft. When he was arrested in Austin, he demanded the State produce a governor’s warrant for his extradition. The Texas Governor issued a governor’s warrant upon the documentation provided by the State of Missouri. The defendant filed a writ of habeas corpus challenging the sufficiency of the documentation provided by Missouri. The defendant argued that the request by Missouri did not coincide with an affidavit sworn before a magistrate as required by Texas Code of Criminal Procedure Article 51.13 § 3.

Analysis. Article 51.13 § 3 describes the documents that the requesting state must send to the Texas Governor. The list includes things like an affidavit sworn before a magistrate and a copy of the indictment. The list is disjunctive, meaning the requesting state need not provide every item on the list. Here the State of Missouri provided certified copies of the felony complaints. The State of Missouri also included a statement of probable cause signed by an officer before a magistrate who notated his finding of probable cause. An affidavit is merely a sworn statement before a person authorized to administer oaths. The strict civil rule of affixing a seal of office by the oath administrator is not required here.

Borders v. State, No. 03-21-00545-CR (Tex. App.—Austin, Aug. 18, 2022)

Issue & Answer. When a defendant is engaged in both legitimate and illegitimate financial transactions over a long period of time, does an indictment which fails to identify the illegitimate transactions on which the State intends to rely provide sufficient notice? No. Does the State cure the lack of notice by appending a response to a motion to quash with specific transactions? Yes.

Facts. The defendant worked for the volunteer fire department. He had a fire department credit card. He used that credit card to purchase personal items and to withdraw cash. The defendant admitted to using the credit card for cash withdrawals but explained to detectives that he used the cash for fire department purchases. Investigators discovered $30,000 in cash deposits at the defendant’s bank but estimated combined withdrawals and purchases for approximately $45,000. The State alleged an aggregated theft amount of $30,000 to $150,000 and only generically explained the basis of its accusation (appropriated currency belonging to the fire department). The defendant filed a motion to quash. In his motion he conceded that the State need not allege every fact upon which it intends to rely. But the defendant argued that the discovery was voluminous, unorganized, and provided an insufficient basis for preparing his defense. The State took exception to this characterization. The State explained that it intended to focus on the debit card withdrawals during the relevant time period and attached to its response evidence contained within the discovery purporting to prove the allegation. The State also pointed to the bank records provided to the defendant in discovery with relevant transactions highlighted.

Analysis. Sufficient notice may be provided by means other than the indictment. Here the State responded in writing to the defendant’s motion to quash and attached supporting documentation. The defendant contends that he should not have to “ferret out the illegitimate from the legitimate transactions” combined in the State’s supporting documents. The State should be compelled to specifically list the illegitimate transactions on which they intend to rely. The defendant was correct to file a motion to quash. Case law supports the contention that a defendant accused of mixing legitimate financial transactions with illegitimate ones should not be forced to prepare a defense for every single transaction. But when the defendant filed his motion to quash the State pointed to the discovery it had provided the defendant and pinpointed the transactions it planned to prove were illegitimate.

Comment. Here’s my beef with the rule that the State can provide notice through documents other than the indictment. The indictment serves many purposes, notice being one of them. But the indictment can serve (should serve) to limit the issues at trial and hone what the defendant must prepare for. If a defendant accused under a generic or broadly worded indictment cannot raise an objection to testimony adding incriminating conduct outside the scope of the discovery, then courts should not be able to point to the discovery and say “there’s your notice.”

Melton v. State, No. 03-21-00416-CR (Tex. App.—Austin, Aug 31, 2022)

Issue & Answer 1. In a murder prosecution, when a defendant testifies that he did not mean to shoot the victim, did not know the gun was loaded, and did not put his finger on the trigger, is he entitled to a lesser-included instruction on criminally negligent homicide? Yes. Was the error harmless because the jury received and rejected an instruction on the lesser-included offense of manslaughter? Yes.

Issue & Answer 2. Self-defense is a confession and avoidance defense where the defendant must essentially admit to the conduct of the offense (though not necessarily every element). Is a defendant entitled to a self-defense instruction where he admits to retrieving and wielding a gun, but denies putting his finger on the trigger and maintains that the shooting was an accident? No.

Facts. The state charged the defendant with murder. The defendant and three other individuals were talking on his front porch. A fight broke out and, according to the defendant, the victim held a knife to him. The defendant explained that he went inside, retrieved a shotgun, pointed it at the victim, and told him to never pull a knife on him again. According to the defendant the shotgun went off and struck the victim in a “freak accident.” The defendant indicated that he did not intend to shoot, did not put his finger on the trigger, and did not personally load the gun. Witnesses at trial refuted the defendant’s story and law enforcement explained how they were unable to make the gun misfire in their investigation. The defendant and another member of the altercation testified that the shooting was accidental. The defendant requested but the trial court denied jury instructions on criminally negligent homicide and self-defense.

Analysis 1. “The key to criminal negligence is the failure of the actor to perceive the risk created by his conduct.” Here the defendant testified that the gun discharged accidentally, he never touched the trigger, that he did not check to see if the gun was loaded, that he did not think it was loaded, and that he did not intend to shoot the victim. “Evidence suggesting accidental discharge of a firearm does not necessarily raise the issue of criminally negligent homicide.” But there are several cases where a charge on criminal negligence was required. Here it was an error to deny the requested instruction. Typically, a denied lesser-included offense instruction will result in sufficient harm to warrant a reversal because it forces the jury to convict or acquit on the greater charge without the lesser third option. But here the jury was provided a third option, a lesser included offense with a culpable mental state between the one requested and the offense of conviction. Because the jury rejected the lesser offense it was provided, there is no logical reason to conclude they would have accepted an even-lesser offense. 

Analysis 2. Though the defendant testified that he felt he was endangered, he repeatedly and consistently denied shooting the victim. He also denied pointing the gun at the victim. He did not sufficiently admit to the alleged conduct.

Comment. I think the courts of appeal are lagging significantly behind the Court of Criminal Appeals’ trends in the area of confession and avoidance. Some on the high court have indicated in the past several years that they don’t hold the doctrine in the highest regard. Recently in Rodriguez v. State, No. PD-1130-19 (Tex. Crim. App. 2021) the court reversed the denial of a self-defense instruction where the a defendant claimed nearly the same thing as the defendant in this case – that he pulled a gun in the middle of a fight, he only meant to scare everyone away, but the gun went off by accident. I’m not sure this case holds up if PDR is sought.

4th District San Antonio

Martinez v. State, No. 04-19-00745-CR (Tex. App.—San Antonio, Aug. 31, 2022)

Issue & Answer 1. Investigators could not locate a murder weapon but two days before trial a witness disclosed information suggesting that it could have belonged to the father of the State’s key witness. Under these circumstances, was the trial court required to grant a continuance for purposes of defense investigation? No.

Issue & Answer 2. Is there probable cause for murder if you make a cell phone call to the murder victim moments before the murder? Yes. Is there probable cause to obtain 74 days’ worth of GPS location data? No. Is it harmless? Yes.

Facts. A jury convicted the defendant of murder. The State showed the defendant to be a heroin dealer who had conscripted the victim, a college student and heroin user, to help him finance his heroin business. The defendant’s friend Dalton testified that he picked the defendant up from the location of the murder shortly after it occurred. Investigators used cell phone location and call logs to link the defendant to the location of the murder and the victim herself. The defendant also met the vague description of an eyewitness who had seen a Hispanic male at the location of the murder moments before the murder occurred. During an interview with investigators, the defendant confirmed that he was a heroin dealer, that he sold the victim heroin, that he was friends with Dalton, and that the cell phone police were investigating belonged to him. Days before trial the prosecutor learned and disclosed to defense counsel that the yet-to-be-recovered murder weapon may have belonged Dalton’s father. The defendant requested and the trial court denied a continuance to investigate. The trial court asked counsel what he intended to investigate, and counsel requested to provide that information ex parte so as to not disclose his strategy. The trial court declined to conduct an ex parte proceeding. In a motion for new trial counsel revealed his intended strategy. He explained that “investigation of the information in the Brady notice was critical because it could either place a weapon of the same type used in the murder in Dalton’s hands or, if the statement were proven untrue, impeach Dalton’s credibility.” Dalton’s father testified at the motion for new trial hearing that Dalton is a liar and the bulk of what Dalton had told the prosecutor shortly before trial was untrue.

Analysis 1. The defendant raised the specter of the murder weapon potentially belonging to Dalton’s father. The defendant contends that the trial court’s denial of continuance denied him the ability to investigate. His argument follows “the inability to investigate could have had a significant impact on the trial because it could have shown that Dalton had physical possession of the type of weapon used in the murder.” However, investigators determined that the murder weapon was a revolver and Dalton’s father testified he had never owned a revolver. The defendant’s denied investigation would not have been fruitful. Nor was he entitled more time to develop impeachment evidence of Dalton or Dalton’s father. “[A] trial court does not abuse its discretion by denying a continuance to allow a party to discover impeachment evidence.”

Analysis 2. There is no reasonable expectation of privacy in the numbers a person texts or calls as such information is disclosed to that person’s cell phone provider. This disclosure belies a claim of privacy under the third-party doctrine. However, cell phone location data is not subject to such a waiver of privacy. Cell phone location data must be acquired pursuant to a warrant supported by probable cause. Here the investigating officer articulated phone calls between the victim and the defendant just before the murder occurred and nobody in the victim’s family was familiar with the defendant’s phone number. Defendant contends this is not probable cause, however “[t]he magistrate could have reasonably concluded there was a fair probability that the location of the device involved in those communications would provide evidence of the crime in the investigation of the murder described in the affidavit.” Probable cause notwithstanding, the 74-day period of cell phone data was too broad and not supported by sufficient evidence. But still the warrant was too broad. This error was inconsequential, however. The investigator relied in good faith on his warrant. At the time he applied, neither Texas nor the Fifth Circuit recognized a reasonable expectation of privacy in cell phone location data. Thus, the investigator was fine to obtain permission to seize evidence outside the scope of the probable cause he articulated. Moreover, the information obtained which exceeded probable cause was minimal. The investigator rightfully obtained information which put the defendant’s cell phone at the scene of the murder. Any error in the court’s denial of suppression was harmless.

Comment. This is a weak case for probable cause. And I can usually chalk opinions like this up to any number of agree-to-disagree reasons. But I become suspicious of potentially result-oriented judicial analysis when the judge describes the exclusionary rule (which has existed since 1789) as “the so-called exclusionary rule,” or the “judicially created federal exclusionary rule” as Justice Chapa does in her opinion. None of the rules of error preservation or harmlessness used to reject the defendant’s appeal were described in the opinion as “judicially created.” Either tell us why the exclusionary rule shouldn’t be a rule or just call it the “exclusionary rule.” Otherwise, it just looks like you hate it and wrote an opinion to get around it.

Traylor v. State, No. 04-21-00258-CR (Tex. App.—San Antonio, Aug 31, 2022)

Issue & Answer. When the state impeaches a defendant’s testimony using a prior conviction identical to the offense of prosecution and already has strong evidence supporting their allegation, does the trial court err when overruling the defendant’s Rule 403 undue prejudice objection? Yes, but harmless.

Facts. A jury convicted the defendant of aggravated robbery. The defendant and his daughter testified that at the time of the robbery he was dropping his daughter off at school. The trial court permitted the State to impeach the defendant with a prior conviction for aggravated robbery over the defendant’s Rule 403 undue prejudice objection. The State did nothing more with the defendant’s prior aggravated robbery conviction than represent that it existed.

Analysis. Under Rule 609 a party can impeach a witness using a prior conviction to the extent the prior conviction is probative of truthfulness. The offense must be a felony or crime of moral turpitude. Rule 609 has an inverse Rule 403 balancing test where exclusion is favored over admissibility—probative value must outweigh prejudicial effect. Here the defendant only objected under Rule 403, but the trial court’s ruling was error under either balancing test. Violent offenses are less probative of untruthfulness than those involving deception. The impeachment offense being identical to the offense of prosecution raises some concern about the jury’s improper use. But ultimately, the fact that the State had ample other evidence establishing guilt militated most strongly against admission. The State had the defendant’s palm print at the scene of the offense, law enforcement discovered clothing matching the perpetrator’s disguise at the defendant’s home, the defendant gave a faulty alibi, and an eyewitness identified him. The fact that the State’s case was so strong also made the trial court’s Rule 403 error harmless.

Concurrence (Rios, J.). Wouldn’t even entertain whether the trial court erred if it were harmless.

Comment. The opinion writes the final prong of a 403 balancing analysis out of existence: “the force of the proponent’s need for the evidence.” If the existence of already strong evidence cuts against admissibility but also renders erroneous admission harmless, then is it really even a factor for consideration anymore?

5th District Dallas

Dies v. State, No. 05-20-00951-CR (Tex. App.—Dallas, Aug 4. 2022)

Issue & Answer. When a State’s witness had COVID-19 and both the State and the defendant moved for continuance before trial in response, does the trial court violate the defendant’s confrontation rights by forcing him to confront his accuser by Zoom? No. Not in this case.

Facts. On October 15, 2020, the State announced at a pretrial conference that two of its witnesses could not testify in-person. The State’s forensic interviewer had been exposed to and would later contract COVID-19. The State’s extraneous abuse witness was 38 weeks pregnant and the State articulated concern for her health and safety. The court suggested Zoom testimony and the defendant objected. The State moved for continuance and the trial court denied the request. The trial court cited the need to “get the cases moving” and the defendant’s right to a speedy trial which he did not appear to have even invoked. The defendant then moved for a continuance and expressly cited his need to preserve his right to conduct in-person confrontation. The trial court called its own technology witness who put on the record how amazing the technology in the courtroom was. Both witnesses ultimately testified via Zoom. The extraneous abuse witness covered the defendant up on her screen, so she did not have to see him completely. The forensic interviewer could not see the defendant at all.

Analysis. “[T]he right to a physical face-to-face [confrontation] is not absolute and must occasionally give way to considerations of public policy and the necessities of the case.” The Court of Criminal Appeals recently described face-to-face confrontation as not easily disregarded and a right which exists “at the core of the Confrontation Clause.” But, applying the touchstone case of Maryland v. Craig, 497 U.S. 836 (1990), Texas Courts have permitted virtual testimony in the following scenarios: child witnesses, a witness on active military duty, a seriously ill witness, and a witness with high-risk pregnancy. Whether virtual testimony is “necessary” is a case-by-case determination. It must satisfy an important public policy interest and the “reliability of the testimony [must] otherwise assured.” Here the public policy interest was sufficient. The pandemic was ongoing and a vaccine had not yet become available. Reliability was assured because the procedure for remote testimony met the “salutary effects” requirements of confrontation, namely: there was an oath, there was an opportunity for cross-examination, the factfinder could observe the witness’s demeanor, and there was no increased risk of false accusation or identification.  The defendant contends that there could be no necessity when a continuance could have cured the problem, but at the time there was no way to stay safe from the virus except by wearing masks, social distancing, and good hygiene. A vaccine would not be available to the public until two months later and the trial court had no way of knowing about the rollout of the vaccine.

Comment. In my opinion, the Fifth Court of Appeals just gets this wrong, as does probably several cases it cited in support. There can’t be a necessity if there was another solution such as a continuance. That the witnesses partially or completely could not see the defendant was significant as well. The court relies on very thin logic to dismiss the defendant’s contention that a continuance would have cured the necessity. The contention that trial courts in October of 2020 could not have known the vaccine would soon be available is just a legal fiction.

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

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

8th District El Paso

Carbajal v. State, No. 08-20-00069-CR (Tex. App.—El Paso, Aug. 5, 2022)

Issue & Answer. If the State alleges two counts of sexual assault, committed in the same statutory manner, committed on the same on-or-about date, without distinguishing either count, does it violate double jeopardy for the State to convict on both counts? Yes.

Facts. The State prosecuted the defendant under a 13-count indictment. The jury convicted on all 13 counts. There appeared to be 4 offenses underlying the various counts: (1) continuous sexual abuse of a child under 14, (2) sexual assault of a child, (3) indecency with a child by sexual contact, and (4) sexual assault. As it related to two of these offenses, the State alleged the exact same offense on the exact same on-or-about date. Prior to trial the defendant filed a motion to quash the multi-count indictment and insisted the State be compelled to elect the which of the seemingly overlapping offenses it intended to rely upon for conviction. The trial court denied the defendant’s motion.

Analysis. All but two of the State’s 13 counts can be logically separated based on the age of the victim or the on-or-about date. However, the State alleged the same on-or-about date for two counts that allege the same offense. Because the State did nothing to distinguish these two offenses, both convictions cannot stand under double jeopardy.

9th District Beaumont

Rafiq v. State, No. 09-20-00094-CR (Tex. App.—Beaumont, Aug 31, 2022)

Issue & Answer. When officers seize a phone without a warrant and hold it pending acquisition of a search warrant, is the seizure analyzed as one requiring probable cause and exigent circumstances or as reasonable suspicion? In the Ninth Court of Appeals, reasonable suspicion.

Facts. A jury convicted the defendant of murder. Before trial the defendant filed a motion to suppress the seizure of his cell phone. Officers suspected the defendant and set up a missing person interview with him. During the interview the defendant gave a detective consent to look through his phone, requested it back, then gave it to the detective again at which point the detective declared he was seizing the phone. The detective testified he was not prepared to arrest the defendant during the interview and was concerned [based on the context of the interview] the defendant would erase the contents of the phone. After seizing the phone, the detective obtained a search warrant to search the phone.

Analysis. The parties argued exigent circumstances at trial, but the seizure is not properly analyzed under the exigent circumstances exception. This was a brief seizure lasting only long enough to obtain a search warrant. The United States Supreme Court has “frequently approved warrantless seizures of property . . . for the time necessary to secure a warrant, where a warrantless search was either held to be likely or likely would have been held impermissible.” The detective only needed reasonable suspicion to seize the phone. Here they had an accusation against the defendant, the defendant confirmed some details of the accusation, the defendant nervously scrolled his phone when asked about his phone, and the defendant admitted he used his phone to communicate with a person the police believed to be a co-conspirator at or around the time of the offense.

Comment. The court acknowledges that not all courts of appeal follow this rationale. I don’t think if the court analyzed the issue of exigent circumstances the seizure would stand. Police can’t create their own exigency. Police had a witness who had accused the defendant of killing the victim. They ultimately found that witness credible and they corroborated details of that witness’s accusation. They had probable cause to arrest the defendant at the same time they seized the phone. Also, by virtue of the State’s exigent circumstances argument, the police had to have probable cause—probable cause is a necessary element of the exigent circumstances exception. The police created their own exigency by alerting the defendant they believed he was a suspect and then by not arresting him at the end of the interview.

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

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

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

State v. Garcia, No. 14-20-00801-CR (Tex. App.—Houston [14 the Dist], Aug. 23, 2022)

Issue & Answer. Does a court of appeals have jurisdiction over a State appeal raising erroneous award of jail-time credit? No.

Facts. The defendant punched the head coach of the Houston Rockets [I think they mean New Orleans Pelicans] in the face during a game. The defendant entered a guilty plea and received a 365-day sentence with jail time credit for 365 days. According to the State, the State did not indicate in the plea paperwork that the defendant had 365 days credit, nobody represented to the trial court that the defendant had 365 days credit, and the defendant did not in fact have 365 days credit. The State filed a motion for judgment nun pro tunc but the trial court declined to rule. This appeal followed.

Analysis. Appellate court jurisdiction in State appeals is defined by statute. The State can appeal an illegal sentence, but this is not an illegal sentence. “A sentence is that part of the judgment, or order revoking a suspension of the imposition of a sentence, that orders that the punishment be carried into execution in the manner prescribed by law.” This includes the facts of the punishment itself, the commencement date, the duration, the concurrent or consecutive nature, and the fine if any. If the State is correct, what the trial court did was unlawful. But here the appellate court has no jurisdiction. Credit for time served is a factor that affects the sentence, not the sentence itself.

Concurrence (Spain, J.) The State should have the ability to review a judgment and object.

Comment. Houdini!

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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September 2022 SDR – Voice for the Defense Vol. 51, No. 7

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