September 2011 SDR – Voice for the Defense Vol. 40, No. 7

Voice for the Defense Volume 40, No. 7 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

Chamber of Commerce of the United States v. Whiting, 131 S. Ct. 1968 (U.S. 2011); Affirmed (5-3)

Business and civil-rights organizations challenged the enforceability of the Legal Arizona Worker’s Act (LAWA) in an Arizona federal district court. They argued that federal law preempted LAWA, which requires Arizona employers to use the federal E-Verify employment verification system and revokes business licenses of those who hire unauthorized workers. The district court upheld the statute. The Ninth Circuit affirmed, holding that LAWA was not preempted explicitly or impliedly by the federal Immigration Reform and Control Act (IRCA). The court reasoned that although IRCA expressly preempts all state and local laws imposing sanctions for hiring or recruiting unauthorized aliens, it excepts licensing laws—like LAWA—from preemptive reach. The court also reasoned that mandating the use of E-Verify is not impliedly preempted by IRCA because Congress did not expressly forbid states from requiring E-Verify participation.

HELD: A law that requires state employers to check the immigration status of job applicants through a federal computer database, although the federal law creating the database makes its use voluntary, and revokes the business license of state companies that hire undocumented workers is not preempted by federal immigration laws.

Fowler v. United States, 131 S. Ct. 2045 (U.S. 2011); Vacated & remanded (7–2)

Fowler shot and killed Horner for trying to interfere with his plan to rob a bank. Horner had approached Fowler’s accomplices as they sat in a stolen car, wearing black clothes and gloves. Fowler, who had stepped out of the car to use cocaine, snuck up behind Horner, grabbed his gun, forced him to get on his knees, and shot him in the back of the head. One of Fowler’s accomplices later implicated him in the murder, and a jury convicted Fowler of killing Horner with the intent to prevent him from communicating information about a federal offense. He was sentenced to life in prison, plus 10 years. Fowler claimed the government failed to prove that a federal investigation would have been likely, and that Horner would have transferred the information to a federal officer or judge. But the Eleventh Circuit affirmed the ruling.

HELD: To prove a criminal violation of the federal witness tampering statute when a defendant allegedly kills a witness, the government must prove that the victim would have provided information regarding a crime to a court or law enforcement officer. “The Government must show that there was a reasonable likelihood that a relevant communication would have been made to a federal officer.”

Camreta v. Greene, 131 S. Ct. 2020 (U.S. 2011); Vacated in part & remanded (7–2)

Sarah Greene filed a lawsuit against Camreta, a caseworker with the Oregon Department of Human Services, and Deputy Sheriff Alford, contending they interviewed her daughter without a warrant, probable cause, or parental consent. The girl’s father, Nimrod Greene, was arrested for allegedly molesting a 7-year-old boy. The boy’s mother told police that Sarah had complained that she “doesn’t like the way Nimrod makes (his daughters) sleep in his bed when he is intoxicated, and she doesn’t like the way he acts when they are sitting in his lap.” After interviewing one of the girls, Camreta concluded that she had been sexually abused and had the girls removed from the home. Nimrod was charged with sexually assaulting the boy and one of his daughters. After a mistrial, he accepted a plea bargain in which he maintained his innocence but admitted there was enough evidence to convict him. The daughter later recanted her statements. A district court judge dismissed the lawsuit. The Ninth Circuit partially reversed, allowing Sarah to pursue her Fourth Amendment claims against both defendants.

HELD: The Court declined to address the Fourth Amendment question. “We conclude that this Court generally may re­view a lower court’s constitutional ruling at the behest of a gov­ernment official granted immunity. But we may not do so in this case for reasons peculiar to it. The case has become moot be­cause the child has grown up and moved across the country, and so will never again be subject to the Oregon in-school interviewing practices whose constitutionality is at issue.”

United States v. Tinklenberg, 131 S. Ct. 2007 (U.S. 2011); Affirmed (8–0)

Tinklenberg’s trial on federal drug and gun charges began 287 days after his arraignment. The district court denied his motion to dismiss the indictment on the ground that the trial violated the 70-day requirement of the Speedy Trial Act (STA), finding that 218 of the days fell within various STA exclusions, leaving 69 nonexcludable days. On Tinklenberg’s appeal from his conviction, the Sixth Circuit agreed that many of the 287 days were excludable, but concluded that 9 days during which three pretrial motions were pending were not, because the motions did not actually cause a delay, or the expectation of delay, of trial. Since these 9 days were sufficient to bring the number of nonexcludable days above 70, the court found a violation of the STA. And given that Tinklenberg had served his prison sentence, it dismissed the indictment with prejudice.

HELD: The time between the filing of a pretrial motion and its disposition is automatically excluded from the deadline for commencing trial under the Speedy Trial Act. The STA “contains no requirement that the filing of a pretrial motion actually caused, or was expected to cause, delay of a trial.”

McNeill v. United States, 131 S. Ct. 2218 (U.S. 2011); Affirmed (9–0)

McNeill was sentenced to 300 months imprisonment after he was convicted of unlawful possession of a firearm and 240 months imprisonment for unlawful possession with intent to distribute 3.1 grams of crack cocaine. A U.S. district court determined McNeill to be an armed career criminal and then departed upward from the U.S. Sentencing Guidelines to sentence McNeill to the maximum sentence applicable. McNeill contends that he is not eligible for sentencing under the Armed Career Criminal Act (ACCA) because the drug-related convictions upon which the district court relied do not qualify as serious drug offenses under the ACCA. The Fourth Circuit COA affirmed the district court.

HELD: A conviction under state law can be treated as a serious drug offense for purposes of a longer sentence under the federal ACCA if the state law violated did not at the time of federal sentencing set a maximum prison term of at least 10 years, but had done so at the time the crime was committed. “A federal sentencing court must determine whether ‘an offense under State law’ is a ‘serious drug offense’ by consulting the ‘maximum term of imprisonment’ applicable to a defendant’s prior state drug offense at the time of the defendant’s conviction for that offense.”

Fifth Circuit

United States v. Garza-Robles, 627 F.3d 161 (5th Cir. 2010)

In prosecution for kidnapping/conspiracy to kidnap in foreign commerce, in violation of 18 U.S.C. §1201, evidence was insufficient to sustain the kidnapping convictions on an “inveigling” theory. Inveigling requires that the victim was lured or enticed by false representations or promises or other deceitful means. Here, the victim well knew that by going to Mexico with one of the defendants, he faced reprisals from the Gulf Cartel for a load of marijuana that his work partner had absconded with. However, the evidence was sufficient to sustain the kidnapping conviction on a theory of non-physical restraint—i.e., the victim’s fear that if he did not go to Mexico with the defendants, his family would be killed. With respect to the conspiracy conviction, there was sufficient evidence that the defendants knew of the conspiracy and were acting in furtherance of that conspiracy both when one defendant transported the victim in foreign commerce to Mexico and when both defendants guarded the victim while he was in captivity in Mexico. It did not matter that the second defendant did not join the conspiracy until after the victim had been transported; joining the conspiracy even after the transportation creates criminal responsibility for the prior acts.

United States v. Morin, 627 F.3d 985 (5th Cir. 2010)

(1) In drug prosecution, although district court committed no error in admitting some background-type testimony from Border Patrol and DEA agents, it plainly erred in admitting other testimony that crossed over the line into impermissible drug-courier-profile evidence or impermissible evidence on the ultimate issue of knowledge. However, these errors did not require reversal on plain-error review because the defendant failed to show a reasonable probability of a different outcome at trial but for the erroneously admitted evidence. The Fifth Circuit “again ‘pause[d] to caution that it is time for our able trial judges to rein in this practice’ of permitting prosecutors to rely on opinion testimony that is unacceptable profile evidence.”

(2) It was improper for prosecutor to ask defendant, on cross-examination at trial, “Do you know or do you call other drug dealers?” because there was no factual predicate laid that defendant had made calls to drug dealers. However, when viewed in the context of the proceedings as a whole and the totality of the evidence against defendant, this isolated question did not affect the jury’s verdict and hence did not require reversal on plain-error review.

United States v. Ibarra-Luna, 628 F.3d 712 (5th Cir. 2010)

In sentencing defendant, the district court erred in applying an 8-level “aggravated felony” enhancement under USSG §2L1.2(b)(1)(C), rather than a 4-level “felony” enhancement under USSG §2L1.2(b)(1)(D), because defendant’s conviction for delivery could have been based on an offer to sell. Therefore, the correct Guideline range was 6 to 12 months, not 12 to 18 months. Moreover, this error was not harmless, even though the district court ultimately imposed a 36-month sentence based on defendant’s prior murder conviction, which the district court believed had been sentenced too leniently. A preserved error in the calculation of the Guidelines is harmless only if the government shows that the court (1) would have imposed the same sentence had it not made the error and (2) would have done so for the same reasons it gave at the prior sentencing. The government did not clear this high hurdle; the Fifth Circuit vacated defendant’s sentence and remanded for resentencing.

Tharpe v. Thaler, 628 F.3d 719 (5th Cir. 2010)

With respect to Texas state defendant’s challenges to his deferred adjudication order, the AEDPA 1-year statute of limitations began to run upon that order’s becoming final, not upon the date that the subsequent adjudication of guilt and imposition of sentence became final. The Fifth Circuit’s prior decision so holding, Caldwell v. Dretke, 429 F.3d 521 (5th Cir. 2005), was still good law as applied to this case and was not overruled by Burton v. Stewart, 549 U.S. 147 (2007).

United States v. Bishop, 629 F.3d 462 (5th Cir. 2010)

(1) Post-indictment delay in trying defendant on charges of making false statements in tax returns did not violate defendant’s constitutional right to a speedy trial. Because the delay was less than 5 years, it was not presumptively prejudicial in and of itself. Nor could the 6-year pre-indictment delay be factored into the analysis; pre-indictment delay is analyzable under the Due Process Clause, not the Speedy Trial Clause, and defendant waived her claim of pre-indictment delay by failing to move for dismissal on that basis. Examining all the factors mandated under Barker v. Wingo, 407 U.S. 514 (1972), the Fifth Circuit found that these did not, even in combination, create a presumption of prejudice. Because defendant did not demonstrate any actual prejudice, her speedy trial claim failed.

(2) District court did not err in denying defendant’s motion for a new trial without holding a hearing to examine her ineffective assistance of counsel (IAC) claims on the merits; although a defendant may raise IAC claims in a motion for a new trial, a post-conviction motion under 28 U.S.C. §2255 is the preferred vehicle for raising IAC claims. Here, in light of the significant factual issues necessary to the IAC claim, it was not an abuse of the court’s discretion to deny the motion for new trial in favor of allowing defendant to raise those issues in §2255 proceedings. It was within the court’s discretion to decline to prolong its original proceedings to consider matters that would be better raised collaterally.

United States v. Rubio, 629 F.3d 490 (5th Cir. 2010)

District court did not err in assigning criminal history points to defendant’s prior uncounseled misdemeanor convictions, notwithstanding defendant’s claim that he was improperly denied his Sixth Amendment right to counsel on those convictions. The allocation of the burden of proof on such a claim is dictated by the law of the state where the conviction was sustained, and Texas law placed the burden on defendant to prove that he did not validly waive his right to counsel during plea negotiations. Defendant did not carry that burden; there was an indication in the record that a waiver of counsel occurred, although the record did not indicate exactly when the waiver occurred. Moreover, although defendant testified that he was not offered counsel, a defendant must do more than this when the right to counsel was firmly established in the state.

Charles v. Thaler, 629 F.3d 494 (5th Cir. 2011)

Defendant, sentenced to an aggregate term of 40 years’ imprisonment for offenses committed when he was 14 years old, was not entitled to federal habeas relief on his claims that he received IAC in his punishment trial. The state court did not unreasonably apply federal law in concluding that defendant did not receive remediable IAC by counsel’s failure to object to two portions of the prosecutor’s closing argument, by counsel’s failure to object to two portions of a prosecution witness’ testimony, by counsel’s failure to object to a question by the prosecutor, or by counsel’s elicitation of prejudicial information from defendant and failure to object to the prosecutor’s cross-examination of defendant on the same subject.

Arnold v. Thaler, 630 F.3d 367 (5th Cir. 2011)

Where Texas state defendant alleged ineffective assistance in his trial counsel’s failure to inform him about favorable plea offers, the federal district court clearly erred in finding that defendant had never alleged that he would have accepted the plea offers had they been communicated to him. To the contrary, in his habeas petition and in a supporting affidavit, defendant alleged that he would have accepted those offers. Along the way, the Fifth Circuit rejected a requirement that in order to show prejudice, the defendant must show not only a reasonable probability that he would have accepted the plea offer, but also a reasonable probability that the trial court would have approved and accepted the plea offer. Because the district court’s ruling rested on its clearly erroneous fact-finding, and because the state court made no findings on whether defendant would have accepted the plea offer, the Fifth Circuit reversed and remanded the judgment.

McAfee v. Thaler, 630 F.3d 383 (5th Cir. 2011)

Texas state defendant, convicted of aggravated robbery, was not entitled to federal habeas relief on his allegations (1) that he received IAC with respect to his motion for new trial, and (2) that he did not receive a fair hearing on his motion for new trial. The Fifth Circuit, agreeing with other circuits and CCA, held that there is a Sixth Amendment right to assistance of counsel on a motion for new trial during the post-trial, pre-appeal period in Texas because it is a critical stage of the proceedings. Disagreeing with the state court, the Fifth Circuit found that trial counsel’s performance with respect to the motion for a new trial was deficient; however, although the Fifth Circuit also found that “this [was] arguably a close case on prejudice,” it ultimately could not find unreasonable the state court’s finding that defendant was not prejudiced by any deficiency. Finally, the failure to appoint different counsel for the hearing on the new-trial motion did not warrant federal habeas relief because the prejudice inquiry was the same as for the IAC question.

United States v. Shabazz, 633 F.3d 342 (5th Cir. 2011)

Pursuant to the April 2003 amendment made by the PROTECT Act, 18 U.S.C. §3583(e)(3) no longer requires aggregation of the terms of imprisonment imposed upon multiple revocations of the same term of supervised release; rather, the revocation maximum set out in §3583(e)(3) is a per-revocation maximum. Therefore, it did not violate § 3583(e)(3) for defendant to be sentenced to a 12-month revocation sentence, even though he had been sentenced to 24 months on an earlier revocation of the same supervised release term, because defendant faced up to 2 years’ imprisonment on each revocation.

Court of Criminal Appeals

Writ of Mandamus

Bowen v. Carnes, __S.W.3d__ (Tex.Crim.App. Nos. 76,519-20, 6/15/11); Granted (8-0)

Relators Kevin and Jennifer Bowen were charged by separate indictments with the capital murder of Jennifer’s ex-husband. Both relators retained Phillips to represent them. Before trial, Ballenger, a jailhouse informant, gave a statement to police in which he detailed what he asserts Kevin told him with respect to this offense. Ballenger had also retained Phillips to defend him against unrelated charges of capital murder, murder, and aggravated assault. As of February 2010, when the State first revealed Ballenger’s statement to Phillips, Ballenger had already entered a negotiated guilty plea to murder, but his sentencing had not taken place. In April 2010, the State filed its motion to disqualify Phillips from representing relators. The State claimed, inter alia, that in the very likely event that the State should call Ballenger to testify against relators, Phillips would be put in the compromising position of either having to vigorously attack Ballenger’s credibility on cross-examination, in relators’ interest, or to refrain from doing so, which would be in Ballenger’s best interest but detrimental to relators’ interest.

HELD: CCA found no actual or serious potential for conflict of interest; this overrides the concern about the public perception of fairness that can defeat the Sixth Amendment presumption in favor of retained counsel. CCA had questioned whether, under the circumstances, respondent abused his discretion to deprive relators of their Sixth Amendment right to counsel of choice on the sole basis of his concern with the public’s perception of fairness.

Writ of Habeas Corpus

Ex parte Robbins, __S.W.3d__ (Tex.Crim.App. No. AP-76,464, 6/29/11); Denied (5–4)

Applicant was convicted and sentenced to imprisonment for life for the capital murder of his girlfriend’s child, Tristen. The State’s case largely depended on the expert opinion of Dr. Moore, the medical examiner who performed the autopsy and testified that Tristen died from asphyxia due to compression of the chest and abdomen. His conviction was affirmed by COA and CCA. Since that time, Moore has re-evaluated her opinion and has stated that she can no longer stand by her trial testimony. Applicant filed this writ, alleging actual innocence and false testimony (due process) claims. On the actual innocence claim, the convicting court concluded that applicant failed to meet the burden of showing his actual innocence and recommended that CCA deny relief on this basis.

HELD: CCA agreed with the convicting court and found support in the record. Likewise, the record does not support that Moore’s trial testimony has been proven false. Although Moore played an important role in the State’s case as the only trial witness to point to a specific cause of death, Moore’s trial testimony is not false just because her re-evaluation of the evidence has resulted in a different, “undetermined” opinion, especially when neither she nor any other medical expert can exclude her original opinion as the possible cause and manner of death.

State’s PDRs

Lopez v. State, 343 S.W.3d 137 (Tex.Crim.App. 2011); Reversed & remanded (7–0)

Appellant was convicted of aggravated sexual assault of a child and sentenced to 50 years in prison. On direct appeal, COA reversed appellant’s conviction based on a finding of ineffective assistance of counsel, and remanded the case to the trial court.

HELD: Because the record is silent as to why counsel failed to object to the outcry-witness testimony, CCA could not fairly evaluate the merits of such a serious allegation. The record could have been supplemented through a hearing on a motion for new trial, but appellant did not produce additional information about trial counsel’s reasons for allowing all three outcry witnesses to give similar testimony about the same events or for allowing opinion testimony about the credibility of the complainant, both without objection. Appellant failed to meet his burden under the first prong of Strickland.

State v. Chupik, 343 S.W.3d 144 (Tex.Crim.App. 2011); Reversed & remanded (7–2)

Officer stopped appellee’s vehicle one night after seeing it weave. Officer asked appellee some questions, then gave him three field-sobriety tests, the first of which was an HGN test. After the tests, appellee was arrested and subsequently charged with DWI. At a hearing on appellee’s pretrial motion to suppress evidence, he argued that the stop and the initial questions violated his federal constitutional rights. The trial court ruled that the stop and the initial questions were permissible, but made writ­ten findings of fact and conclusions of law that appellee was “under arrest at the conclusion of the administration of the HGN test,” and was thereafter “subjected to custodial interrogation without having had his Miranda warnings recited to him.” The trial court therefore suppressed “the answers to all questions asked of [appellee] after the administration of the [HGN test] . . . exclusive of his response to the question as to whether he would give a breath or blood sample.” The trial court also concluded that the evidence suppressed “is not of substantial importance relative to the quantity and quality of other evidence the State has available[.]” The State appealed under Code Crim. Proc. art. 44.01(a)(5), and COA affirmed. CCA granted review to determine whether, in a State’s appeal of a pretrial order to suppress evidence, the record must reflect the evidence that was suppressed.

HELD: The record need not reflect the suppressed evidence for an appellate court to consider a State’s interlocutory appeal under Article 44.01(a)(5). It is sufficient that the prosecutor certifies the suppressed evidence is of substantial importance in the case.

Gear v. State, 340 S.W.3d 743 (Tex.Crim.App. 2011); Reversed COA, affirmed trial court (5–4)

Appellant was convicted in a bench trial of attempted burglary of a habitation. COA decided the evidence is legally insufficient to support his conviction because it would have been unreasonable for a fact finder to infer that he “intended to commit a felony, theft, or an assault inside the house.”

HELD: A fact finder could reasonably find beyond a reasonable doubt that recently unemployed appellant, with about one dollar in his pocket, intended to commit theft inside complainant’s home when appellant attempted to enter the home through the window he had just broken and ran when interrupted by complainant, and that appellant gave conflicting and implausible explanations. Jackson v. Virginia, 443 U.S. 307 (1979). The cumulative force of all the incriminating circumstances is sufficient to support his conviction.

Limon v. State, 340 S.W.3d 753 (Tex.Crim.App. 2011); Reversed & remanded (8–1)

Appellant was convicted of deadly conduct and sentenced to three years’ imprisonment. On appeal, he challenged the trial court’s denial of his motion to suppress evidence, and COA reversed. CCA granted the State’s PDR to decide the following: (1) Is it reasonable for police to believe that a person who answers the door of a residence in the middle of the night has authority to invite police to enter, or must police inquire as to that person’s authority? (2) Does a teenager lack authority to invite officers inside a residence simply because he is a minor? (3) Does Illinois v. Rodriguez, 497 U.S. 177 (1990), require officers to make further inquiry when faced with ambiguity regarding the authority of a third party to consent to an entry or search?

HELD: The Fourth Amendment does not prohibit a minor from consenting to entry when the record shows the officer’s belief in the child’s authority to consent is reasonable under the facts known to the officer. Georgia v. Randolph, 547 U.S. 103 (2006). The following factors support the reasonableness of officer’s belief. First, the teenager opened the door by himself in response to officer’s knock. Second, viewing the evidence in the light most favorable to its ruling, the trial court reasonably could have inferred from officer’s testimony that the teenager appeared to be of significant maturity, if not a young adult. Third, the teenager consented to mere entry through the front door, as opposed to entry or search of less public areas of the house. Fourth, officer’s announced purpose was to conduct an emergency public-safety function. It is an even more widely shared social expectation that a teenager would have authority to permit entry for an emergency public-safety function than, for example, entry for a salesperson. Finally, CCA considered the time of entry: 2:00 a.m. Accordingly, CCA did not address COA’s formulation of the rule under Rodriguez because there is no ambiguity with respect to the teenager’s apparent authority.

Sorrells v. State, 343 S.W.3d 152 (Tex.Crim.App. 2011); Reversed & remanded (9–0)

A jury convicted appellant of aggravated robbery pursuant to the following: One night in 2005, Reynolds waited outside a nightclub for her boyfriend, Rice. Reynolds testified that she leaned against a car parked on the street. Appellant emerged from the club wearing a black and gray sweater and a black jacket. He told Reynolds to “get the f— off the car” because she was damaging it. With gun in hand, appellant struck Reynolds in the head, and the two began scuffling. Shortly thereafter, Rice arrived. As Rice approached, appellant turned, pulled back the slide of the gun, and said, “[D]o you have a problem with me, too?” Rice punched appellant, and the two started fighting. A man wearing a blue jacket then ran up to Rice and punched him. Rice fell to the ground and Reynolds went for help. When she returned, the altercation had ended. Rice told her that his jewelry had been stolen.

COA found that the evidence was insufficient to support a conviction of aggravated robbery and reformed the judgment to reflect conviction of the lesser-included offense of assault by threat. COA’s opinion was based on the fact that appellant’s motive in the fight did not seem to be premised on theft. CCA granted the State’s PDR on three grounds: (1) whether COA properly reviewed the sufficiency of the evidence; (2) whether COA properly applied the law of parties; and (3) in the alternative, whether COA properly reformed the judgment.

HELD: COA erred in its review of the sufficiency of the evidence; two witnesses testified that the assault and theft occurred simultaneously. CCA did not address the State’s second and third grounds.

Barshaw v. State, 342 S.W.3d 91 (Tex.Crim.App. 2011); Reversed & remanded (9–0)

A jury found appellant guilty of sexual assault, and the court sentenced him to 12 years’ imprisonment. COA reversed and remanded for a new trial because the trial court permitted an expert witness to testify that the class of persons to which complainant belongs tends to be truthful. During trial, the State called Barthlow, a mental-retardation psychologist who had worked with complainant. When asked by the prosecution about the ability of people with mental retardation to fabricate or make up stories, Barthlow said, “It’s been my experience that folks with mental retardation can be painfully honest, really.” Defense counsel objected that this testimony was inadmissible. The court overruled the objection, and Barthlow continued: “I’m not going to say that it would never happen. I mean, anybody is capable of making up something, but it’s very simplistic in nature . . . it would be like a lie a child would tell.” CCA granted the State’s PDR to determine whether COA erroneously reviewed only a portion of the record and substituted its judgment as to the credibility of the witnesses for that of the fact finder and thus tainted the harm analysis.

HELD: Expert testimony that a particular class of persons to which the victim belongs is truthful is not expert testimony of the kind that will assist the jury, as is required by Tex. R. Evid. 702, and is inadmissible. COA properly found the trial court abused its discretion by overruling appellant’s objection and admitting the testimony. However, COA also held that the error was harmful. CCA remanded to COA for a full harm analysis.

State & Court’s PDR

State v. Jordan, 342 S.W.3d 565 (Tex.Crim.App. 2011); Reversed & remanded (9–0)

Appellee was charged by information with misdemeanor DWI upon the following events: A municipal court magistrate was presented with an Affidavit for Search Warrant in the early morning of June 6, 2008. In the affidavit, Police Sergeant Suitt deposed that he had “good reason to believe that heretofore, on or about the 6th day of June, 2008 . . . Jordan . . . did then and there commit [the offense of DWI].” Suitt then deposed that he had probable cause for this belief by reason of certain facts. The facts listed by Suitt comprised observations by fellow police officers that the appellee drove the wrong way on a one-way street and exhibited various symptoms of intoxication, but the affidavit did not state specifically that the observations were made on June 6th. The affidavit was subscribed and sworn to before the magistrate on June 6th, and the magistrate issued a Search Warrant for Blood at 3:54 a.m. on that date. Prior to trial, appellee moved to suppress evidence obtained upon execution of the warrant for seizure of his blood. The trial court granted his motion and, upon the State’s interlocutory appeal, COA affirmed.

HELD: COA’s analysis of the warrant affidavit failed to consider reasonable inferences that provided a substantial basis for the magistrate’s determination of probable cause. COA separately analyzed the affiant’s introductory statement and the subsequent description of facts, instead of considering the totality of the circumstances contained within the four corners of the affidavit. It is true, as the court stated, that “a police officer’s conclusion that a crime has been committed does not give a substantial basis for determining that probable cause exists.” For that proposition, COA relied on caselaw in which the problem was “bare bones” affidavits providing only conclusory statements that an offense had been committed and evidence would be found at a particular location.

Appellants’ PDRs

Phillips v. State, __S.W.3d__ (Tex.Crim.App. No. 1402-09, 6/15/11); Reversed & remanded (5–3)

Appellant was convicted of 12 counts of sexual offenses that occurred in 1982 and 1983. However, prosecution under the 2007 indictment charging appellant was absolutely barred by the statute of limitations in 1993. These charges could not be resurrected by a 1997 statute extending the statute of limitations for sexual offenses. The trial judge, prosecution, defense, and COA failed to recognize this constitutional ex post facto violation. CCA granted appellant’s PDR because this is an important constitutional issue that will undoubtedly recur given the even more recent statutory elimination of the statute of limitations for some sexual offenses. Although the State Prosecuting Attorney agrees that the statute of limitations had run before appellant’s indictment, she argues that appellant failed to preserve this issue for appeal because he did not object in trial court.

HELD: An absolute statute-of-limitations bar is not forfeited by the failure to raise it in trial court.

Young v. State, 341 S.W.3d 417 (Tex.Crim.App. 2011); Affirmed (7–1)

Appellant, a registered sex offender, moved to a new residence but failed to notify authorities as required by statute. The two-paragraph indictment alleged that appellant (1) failed to notify the county sheriff’s office seven days prior to changing his address; or (2) failed to provide the sheriff’s office with proof of identity and residence within seven days after the move. At trial, the jury charge tracked the disjunctive wording of the indictment and permitted a conviction if the jury unanimously found that appellant failed to report his change of address. The jury charge did not require the jury to be unanimous on whether appellant failed to report before or after moving. COA affirmed appellant’s conviction, holding that the trial judge did not err in his jury charge.

HELD: COA correctly decided that unanimity was required as to the failure to report a change of appellant’s address, but not required as to whether appellant committed the offense by failing to report before the move, after it, or both. Appellant was indicted for a single offense of failing to report a change of address, and the State alleged he committed it in one of two alternative ways. The jury was charged by the trial judge in the disjunctive regarding these alternative manners and means.

Fleming v. State, 341 S.W.3d 415 (Tex.Crim.App. 2011); Vacated & remanded (8–0)

Appellant was convicted of aggravated sexual assault under Tex. Penal Code §22.021(a)(1)(B)(iii), (2)(B), Texas’s strict-liability child-sexual-assault statute. Before trial, appellant filed a motion to quash the indictment, challenging the constitutionality of the statute under the Due Process Clause to the U.S. Constitution and the Texas Constitution’s due course of law provision. Appellant claimed that the statute is unconstitutional because it does not have a mens rea requirement and does not permit the affirmative defense of mistake of fact. The trial judge denied the motion. Following his no contest plea and sentencing, appellant appealed the trial judge’s ruling. COA held that under the Due Process Clause, the statute is constitutional. COA declined to address appellant’s due course of law claim, holding that appellant failed to preserve the issue for appeal because he failed to assert or brief “an argument that the due course of law analysis under the Texas constitution is different or provides greater protections” than the Due Process Clause.

HELD: CCA’s review of appellant’s motion revealed that this conclusion was improvident. With respect to the constitutionality of Texas’s strict-liability child-sexual-assault statute, an issue never decided by the U.S. Supreme Court, appellant briefed the issue under both constitutional provisions, describing the pertinent history of each constitutional provision in support of his specific argument. CCA remanded COA’s judgment so COA can reconsider appellant’s contention that the statute violates Texas’ due course of law provision. In doing so, COA will be required to decide the scope of the protections afforded by Texas’ due course of law provision as it applies in this case. Thus, COA must discern whether the provision, based on appellant’s argument and supporting authority, provides greater, lesser, or the same protections as its federal analog.

State v. Blackshere, __S.W.3d__ (Tex.Crim.App. No. 0039-09, 6/22/11); Reversed & remanded (9–0)

This case involves a State’s appeal from a trial court’s orders suppressing evidence and terminating a prosecution. Appellee was indicted for possession of meth. More than two years passed. Four days before trial, a police detective discovered that the meth was missing from the police department’s evidence vault. Appellee filed a motion to suppress, arguing that evidence related to the meth should be suppressed because the State violated certain constitutional and statutory provisions by misplacing the meth. The trial court decided to “carry” the motion to suppress, so that it could rule after hearing the evidence presented at trial. The trial began, and after the testimony of the first six witnesses, the State said it had presented all its evidence relevant to appellee’s motion to suppress. The court made an oral ruling that it was suppressing the evidence and dismissing the jury, but that it was not dismissing the case or directing a verdict of acquittal. The discussion after the ruling shows that there was confusion about the ruling and the State’s ability to appeal. There is little doubt that the trial court did not intend to acquit appellee, in such terms. The parties and the trial court explicitly discussed avoiding the term “directed verdict of acquittal” to preserve the State’s ability to appeal.

HELD: The intent and form of the trial court’s actions cannot trump the substance of the protections afforded by the Double Jeopardy Clause. The trial court ultimately terminated the prosecution based on its finding that the State’s remaining evidence was legally insufficient to convict appellee. Not only did the trial court’s oral ruling imply that it had made such a finding, but its written order and conclusions of law were explicit. The trial court’s actions were functionally an acquittal for purposes of double jeopardy. Whether there was an underlying error in suppressing evidence is irrelevant; such an underlying error cannot be reviewed after an acquittal for insufficient evidence.

Armstrong v. State, 340 S.W.3d 759 (Tex.Crim.App. 2011); Reversed & remanded (9–0)

Appellant was charged with aggravated assault. The judgment adjudicating appellant guilty left blank the spaces for court costs and restitution but stated that appellant should pay any court costs “as ordered by the Court above.” Subsequently, the clerk’s office issued a bill of costs, which stated that appellant owed $1,900 in attorney fees and $358 in miscellaneous court costs. On appeal, appellant contended that there is insufficient evidence to support the attorney fees as set forth in this bill. COA affirmed the trial court, declining to address appellant’s insufficient evidence argument because it involved a civil law matter.

HELD: Because appellant’s claim arises over the enforcement of statutes governed by the Texas Code of Criminal Procedure, the pertinent litigation is a criminal law matter. Appellant challenged the assessment of costs mandated by the clerk’s bill of costs, which is issued pursuant to Tex. Code Crim. Proc. art. 103.001. And in arguing insufficient evidence, appellant relied on the critical requirements of Tex. Code Crim. Proc. art. 26.05(g) (i.e., that he does not have the financial resources to offset the costs of the legal services provided).

York v. State, 342 S.W.3d 528 (Tex.Crim.App. 2011); Affirmed (9–0)

Appellant was prosecuted for failure to identify and possession of meth. He has two grounds for review: First, did the arresting officer have reasonable suspicion to detain appellant, who was asleep in a car, with the lights on and engine running, parked on a sidewalk in front of a robbery-prone gas station in the early morning? Second, does the doctrine of collateral estoppel require suppression of evidence in a subsequent prosecution when that evidence was suppressed in an earlier prosecution arising from the same facts?

HELD: The circumstances were sufficient to give rise to a reasonable suspicion that would permit an investigative detention. Second, the State is not barred by the Double Jeopardy Clause from relitigating a suppression issue that was not an ultimate fact in the first prosecution and was not an ultimate fact in the second prosecution. In the first prosecution, the legality of the detention was an ultimate issue. That status as an ultimate issue does not help appellant because of the lesser burden of proof with respect to suppression hearings. If, on the other hand, he relies on the county court at law’s resolution of the detention issue solely as a suppression issue—so that the burden of proof in the two prosecutions is the same—then CCA would be confronted with an issue that was not an ultimate issue in either prosecution. To accord collateral-estoppel protection to such an issue, under the rubric of double jeopardy, would stray far from the theoretical groundings of the Double Jeopardy Clause and Supreme Court precedence.

Garza v. State, __S.W.3d__ (Tex.Crim.App. No. PD-0480-10, 6/29/11); Affirmed (8–0)

Appellant was a computer technician at a private school. Through a school program, students purchased laptops from Hewlett Packard, which provided a four-year warranty for each computer. The school arranged for repairs of the laptops at the on-campus C.A.V.E. (Computer Audio Visual Equipment), where appellant worked. After several years, school officials discovered that replacement parts for the laptops were being stockpiled at the C.A.V.E. The officials contacted Hewlett Packard, which sent Leahy, an investigator who worked for Hewlett Packard Global Security Group, to investigate allegations of warranty fraud. After investigation, appellant and a co-actor, whose company had been hired as the school’s Hewlett Packard warranty-repair provider, were arrested and indicted for theft.

This appeal involved appellant’s conviction for theft from alleged owner, Leahy. Appellant challenged COA’s holding that in an aggregated-theft case under Tex. Penal Code §31.09, the State is not required to prove that the special owner was an employee of the corporation at the time of each theft. Appellant argues that the State “is obliged to provide full proof of ownership for at least enough of the thefts to meet the alleged value,” and that it is the State’s burden “to provide full proof beyond a reasonable doubt of enough acts of theft to meet the value alleged in the indictment.”

HELD: Each individual theft is an element of the aggregated theft described by § 31.09; while the name of the owner is not a substantive element of theft, the State is required to prove, beyond a reasonable doubt, that the person alleged in the indictment as the owner is the same person shown by the evi­dence presented at trial to be the owner. Hewlett Packard was the owner of the stolen property at the time of each theft, and, although alleged to be a special owner, Leahy functioned as Hewlett Packard’s agent when he testified about the total loss.

Martinez v. State, __S.W.3d__ (Tex.Crim.App. No. PD-1238/9-10, 6/29/11); Reversed & remanded (8–1)

In two cases stemming from the same incident, the State charged appellant with DWI and possession of marijuana. Appellant filed a motion to suppress based on claims that the initial investigatory detention was without probable cause or reasonable suspicion, and that the subsequent arrest and search of appellant’s person and vehicle was without probable cause.

The facts are undisputed. One night an anonymous caller reported that a male driving a blue Ford pickup truck put two bicycles in the back of the truck and drove westbound. Police Officer Hurley was on patrol in the area and spotted a green Ford F-250 truck that “looked like it was blue” approximately three quarters of a mile from the reported incident. He began following the truck and called dispatch to confirm the vehicle description. He trailed the truck for four blocks without observing any traffic violations, then stopped the vehicle. As he walked to driver’s side of the truck, Officer Hurley noticed, in the truck bed, two bicycles that were not visible to him until he approached the truck. While speaking with appellant, who was the truck’s driver, Hurley detected a strong odor of alcohol and noticed that appellant had bloodshot, glassy eyes.

HELD: Based on a review of the totality of the circumstances, including the unknown reliability of the anonymous caller and the lack of specific, articulable facts suggesting that criminal activity was afoot, Officer Hurley’s investigatory detention of appellant was not supported by reasonable suspicion.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Kuykendall v. State, 335 S.W.3d 429 (Tex. App.—Beau­mont 2011)

That D was observed to be the only occupant in a stationary vehicle justified (in part) officer’s approach of D pursuant to officer’s “community caretaking function,” apparently under the assumption that when one is alone in their vehicle they’re more likely to need community caretaking.

Dixon v. State, No. 01-09-00340-CR, 2011 WL 839689 (Tex. App.—Houston [1st Dist] 3/10/11)

Complainant’s statement, made one hour after D chased her in his vehicle, deemed an excited utterance. “[D] suggests that the passage of one hour between the event and the statement is too long for an excited utterance in light of evidence that in that time [complainant] left the scene of the offense, walked home, and made two 911 calls to the police. . . . Based on [officer’s] description of [complainant’s] emotional state, the one hour time lapse does not make the statement inadmissible[.]”

Kennedy v. State, 338 S.W.3d 84 (Tex. App.—Austin 2011)

Officer’s affidavit for search warrant deemed insufficient; although affidavit described weapons that were recovered from D’s car on the night of the shooting, and that another witness had observed weapons in a “bunker” structure located on D’s property, nothing in the affidavit indicated that any of the weapons were illegal. Moreover, statements in affidavit by law-enforcement personnel that they believed D was likely in possession of statutorily prohibited weapons were too conclusory to establish a basis for PC.

Salinas v. State, No. 14-09-00395-CR, 2011 WL 903984 (Tex. App.—Houston [14th Dist] 3/17/11)

In an issue of virtual first impression in Texas, court definitively held that the Fifth Amendment has no applicability to pre-arrest, pre-Miranda silence used as substantive evidence in cases in which D does not testify. “The federal courts of appeals are split on the issue. The First, Sixth, Seventh, and Tenth Circuits have held that pre-arrest, pre-Miranda silence is not admissible as substantive evidence of guilt. . . . We agree with the Fifth, Ninth, and Eleventh Circuits. . . . A plain reading of the [Fifth] amendment reveals that only government compulsion triggers its protections against self-incrimination.”

Branch v. State, 335 S.W.3d 893 (Tex. App.—Austin 2011)

The eight minutes it took for a narcotics-detection dog to arrive at the scene did not prolong initial traffic stop beyond the time reasonably required to complete the mission of the stop. Importantly, the dog arrived before officer finished normal procedures for a traffic stop.

Deemed improper were prosecutor’s comments during closing argument of drug trial that D would “be done on life” in seven or eight years if he exhibited good conduct, that D would “never” serve as many as 15 or 20 years if given a life sentence, and that D “would be out even quicker” if the jury gave him a 30- or 40-year sentence. “The gravamen of the uncorrected statements was that the effective maximum period of imprisonment that the jury could impose was only seven or eight years and that the only way the jury could guarantee that [D] served that long was to impose a life sentence. . . . [A] prosecutor acts under the authority of the State and brings a great deal of expertise to a criminal trial. The prosecutor here, speaking from such a place of authority, purported to explain the sentencing provisions in the jury charge when he made the inaccurate statements. . . . It is also significant that the jury heard the inaccurate statements immediately before retiring to deliberate.” Thus, defense attorneys’ deficient performance in failing to object to prosecutor’s statements prejudiced D for purposes of an IAC claim; if D’s attorneys had objected to prosecutor’s improper statements, the trial court could have corrected the misstatements and instructed the jury to disregard them.

Burton v. State, 339 S.W.3d 349 (Tex. App.—Texarkana 2011)

Strong order of ammonia did not give rise to exigent circumstances to justify warrantless entry into residence, even though ammonia is used to produce meth, and despite the propensity for explosion associated therewith.

Ramirez v. State, No. 04-10-00679-CR, 2011 WL 1304895 (Tex. App.—San Antonio 4/6/11)

“Texas law does not require that the affidavit be attached to the warrant at the time of the search.”

Gonzales v. State, 342 S.W.3d 151 (Tex. App.—Eastland 2011)

Officer who arrested D for DWI was motivated primarily by his community caretaking duties, even though officer was assigned to DWI task force and activated his emergency lights, because officer became concerned when he observed a vehicle pulled over on a lightly traveled highway around 1:00 a.m. “[Officer] stated that he activated his lights to alert other drivers on the road and to let the driver of the vehicle know that he was not ‘some bad guy.’ . . . The location where [D] was stopped was inside the city limits, but traffic was minimal in that area at that time of night. There were no houses nearby and only a few businesses in the area. If [D] had needed assistance, he would have had difficulty finding anyone other than [officer] to help him at that time in that location.”

Elizondo v. State, 338 S.W.3d 206 (Tex. App.—Amarillo 2011)

Written confession signed by D at store was not obtained as a result of “custodial interrogation,” despite D’s argument that it has become common practice for retailers to obtain written confession from shoplifters without providing Miranda warnings, and also common practice for prosecutors to use those statements as evidence in theft prosecutions. “We cannot agree [that] the general awareness of police or prosecutors that retailers take non-Mirandized statements from shoplifters, even if accompanied by a common practice to obtain and introduce the statements at trial, renders the store employees the agents of law enforcement when they take the statements.”

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