September 2012 SDR – Voice for the Defense Vol. 41, No. 7

Voice for the Defense Volume 41, No. 7 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

Though the jury foreperson reported “not guilty” votes on the capital and first-degree murder charges, D could be retried on all charges. Blueford v. Arkansas, 132 S. Ct. 2044 (2012).

        In D’s capital murder trial, the foreperson reported that the jury was unanimous against guilt as to capital murder and first-degree murder, but deadlocked on manslaughter and had not voted on negligent homicide. The jury had been instructed it could either find guilt on one offense or acquit on all, unanimously. When a verdict still could not be reached, a mistrial was granted. On retrial, D’s motion to dismiss the capital and first-degree murder charges due to Double Jeopardy was denied. The Supreme Court affirmed that D could be retried on all charges.

        When the foreperson told the court how the jury had voted on each offense, the jury’s deliberations had not concluded; the jurors went back to the jury room. When they later emerged, the foreperson stated only that they were unable to reach a verdict, with no indication whether all jurors still believed petitioner was not guilty of capital or first-degree murder, or what any vote on the other charges had been. Thus, the report before the end of deliberations lacked the finality necessary to amount to an acquittal on those offenses, quite apart from any requirement that a formal verdict be returned or judgment entered. Furthermore, the court did not abuse its discretion to refuse to add another option of acquitting on some offenses but not others.

At the time of respondent’s 2006 arrest, it was not clearly established that an arrest supported by probable cause could violate the First Amendment. Reichle v. Howards, 132 S. Ct. 2088 (2012).

        Respondent arrestee sued petitioner Secret Service agents, alleging that he was arrested in retaliation for criticizing the Vice President in violation of the First Amendment. The district court and Tenth Circuit denied the agents’ summary judgment on qualified immunity. Certiorari was granted on whether clearly established law held such a claim could lie despite probable cause for the arrest. The Supreme Court reversed the judgments denying qualified immunity and remanded.

        At the time of the arrest, the Supreme Court had never held that there was a specific right to be free from a retaliatory arrest that was otherwise supported by probable cause. In Hartman v. Moore, 547 U. S. 250 (2006), the Court held that a plaintiff could not state a First Amendment retaliatory prosecution claim if probable cause supported the charges. For qualified immunity purposes, it is at least arguable that the Hartman rule extends to retaliatory arrests. Hartman injected uncertainty into the law governing retaliatory arrests; that uncertainty was confirmed by subsequent appellate decisions that disagreed over whether that reasoning applied similarly to retaliatory arrests. Accordingly, at the time, it was not clearly established that an arrest supported by probable cause could give rise to a First Amendment violation. Petitioners were entitled to qualified immunity.

Out-of-court statements related by an expert to explain the assumptions on which her opinion rests fall outside the scope of the Confrontation Clause. Williams v. Illinois, 132 S. Ct. 2221 (2012).

        In a bench trial, petitioner was convicted of rape after a forensic specialist for the Illinois State Police lab testified that a DNA profile produced by an outside lab matched a profile produced by the police lab. The Supreme Court affirmed that there was no Confrontation Clause violation.

        The out-of-court statements related by the expert solely for the purpose of explaining her opinion were not offered for their truth and thus fell outside the scope of the Confrontation Clause. The expert did not vouch for the quality of the lab work. She was asked if there was a computer match generated of the male DNA profile found in semen from the swabs of the victim to a male DNA profile that had been identified as having originated from D; she answered yes. That the matching profile was found in semen from the victim’s swabs was a mere premise of the question, and the expert simply assumed that premise to be true. The fact that the lab’s profile matched D (identified by the victim as her attacker) was itself confirmation that the sample tested was the victim’s sample. The important issue was the conclusion that the expert reached, and that the expert was available to D for cross-examination. Additionally, such a test does not fall within the bounds of the Confrontation Clause because the results were not directed to prove the guilt of the defendant; Williams was not even a suspect when the test was conducted.

A fact that increases the penalty for a crime, beyond the prescribed statutory maximum, must be tried by a jury if the penalty is criminal fines. S. Union Co. v. United States, 132 S. Ct. 2344 (2012).

        A jury convicted Southern Union of storing mercury without a permit, but the jury did not determine how many days Southern Union stored the mercury in voilation of 42 U.S.C. § 6928(d), which provided a maximum fine of $50,000 per day of violation. Multiplying $50,000 times 762, the full number of days in the indictment, the court set a maximum fine of $38.1 million, from which it imposed a fine of $6 million and a “community service obligation” of $12 million. Southern Union objected and argued that the number of days should have been determined by a jury, because it increased the maximum criminal penalty. Southern Union believed the imposition of the $38.1 million fine violated the Fifth and Sixth Amendments. The First Circuit rejected Southern Union’s arguments and affirmed. The Supreme Court reversed and remanded.

        In light of the rights to criminal due process under the Fifth Amendment and a trial by jury under the Sixth Amendment, a fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt if the penalty is the im­position of criminal fines. The Court previously held that under the Sixth Amendment, the determination of any fact that increases a maximum potential sentence should be left to the jury. The government argued that fines are not serious criminal sentences, and therefore do not require a jury determination. The Court disagreed, reasoning that the right to a jury trial would not even be triggered if a fine were so insubstantial.

Fifth Circuit

D did not waive his right to appeal; accordingly, the AEDPA one-year period did not begin until the appeal period expired. Rodriguez v. Thaler, 664 F.3d 952 (5th Cir. 2011).

        District court reversibly erred in dismissing D’s 28 U.S.C. § 2254 habeas petition as untimely under AEDPA’s one-year statute of limitations. The Texas state court began counting the year from the date of D’s sentencing, rather than upon the elapsing of the 30-day appeal period, because it found D waived his right to appeal as part of his guilty plea. The Fifth Circuit, however, found that the record did not establish that D actually waived his right to appeal; accordingly, his state judgment did not become “final,” and the AEDPA one-year period did not begin until the appeal period expired. Taking this into account, D’s § 2254 petition was timely under the AEDPA. The Fifth Cir­cuit reversed the judgment that dismissed the petition and remanded for the district court to consider the petition on the merits.

The evidence was insufficient to sustain D’s conviction for possession of child pornography, 18 U.S.C. § 2252A(a)(5)(B), where others besides D had access to the computer on which the pornography was found. United States v. Moreland, 665 F.3d 137 (5th Cir. 2011).

The district court reversibly erred in concluding that D’s conviction under Cal. Health & Safety Code § 11379.6 was a drug-trafficking offense warranting a 16-level enhancement under USSG § 2L1.2(b)(1)(A)(i); in the absence of information to narrow the statute of conviction, the court must determine whether the statute could be violated in a way that does not meet the definition of the predicate offense. United States v. Reyes-Mendoza, 665 F.3d 165 (5th Cir. 2011).

District court did not err in granting the government’s motion to dismiss the first indictment to re-indict in another district; Ds did not overcome the presumption that the government acted in good faith. United States v. Jones, 664 F.3d 966 (5th Cir. 2011).

        (1) The government gave a rationale for dismissing and re-indicting elsewhere that was more than a mere conclusory interest. Nor did the court violate Ds’ procedural due process rights by granting the motion without notice to Ds or a hearing. No liberty interest was implicated by the dismissal, standing alone. It was not until the re-indictment that a liberty interest was implicated; but at that time, the court held a hearing on whether the dismissal and re-indictment were in bad faith.

        (2) Even if the submission of a “deliberate ignorance” instruction was erroneous, any error was harmless in light of the substantial evidence of actual knowledge. This conclusion was not altered by the lack of a balancing instruction. District court properly refused an instruction on entrapment by estoppel; Ds did not establish an evidentiary predicate of reliance on a government agent’s assurances. Ds’ proposed ambiguity and good-faith instructions were not correct statements of law. Finally, the court did not err in refusing Ds’ limiting instruction; the general instructions to the jury specifically said to consider only the federal crimes charged, and not state regulations.

        (3) The verdict form misstated the mens rea necessary to convict for health care false statements, 18 U.S.C. § 1035; the mens rea is “knowingly and willfully,” but the verdict form told the jury they could find D guilty if he “knew, or should have known.” This error was not harmless because the case centered on D’s knowledge; the Fifth Circuit reversed D’s health care false statement convictions. However, because the verdict form did not change the requisite proof to convict Ds of money laundering, although the court added detail, there is no reversible error for the laundering convictions.

        (4) A judge’s ex parte communications with the jury are reviewed for abuse of discretion and may constitute harmless error. Here, the judge’s four relatively innocuous communications with the jury were harmless error.

Court of Criminal Appeals

The record contains sufficient evidence that EMIT, with or without a confirmation test, is reliable scientific evi­dence under Tex. R. Evid. 702. Somers v. State, 368 S.W.3d 528 (Tex.Crim.App. 2012).

        D was convicted of intoxication manslaughter. COA affirmed, holding that the trial court did not abuse its discretion by excluding enzyme-multiplied immunoassay technique (EMIT) drug test results of the victim’s blood. CCA reversed and remanded.

        COA erred by holding that EMIT tests were unreliable without a confirmation test. CCA concluded that the reliability of even a single, unconfirmed EMIT test had been sufficiently established to meet the first two prongs of Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App. 1992), which are the validity of the underlying scientific theory and the validity of the technique applying that theory. The record showed that: (1) the expert witnesses testified that the underlying scientific theory and technique of the EMIT test were accepted as valid by the accredited Department of Public Safety laboratory and the greater forensic toxicology community in Texas; (2) an expert testified that there was literature supporting EMIT as a reliable screening test; (3) from the experts’ testimony, the trial court understood that EMIT was a screening test based on enzyme reactions; (4) the expert testimony suggested that the potential error rate in EMIT was very low; and (5) the experts testified as to the validity and reliability of the EMIT test and were subject to cross-examination by the State.

D was entitled to the mistake-of-fact instruction because he was subjected to a transferred-intent instruction. Louis v. State, No. PD-0323-11 (Tex.Crim.App. June 6, 2012).

        COA reversed D’s capital murder conviction on sufficiency of evidence grounds, acquitting him of that charge, and determined there was jury-charge error. COA remanded to the trial court for a new trial on the lesser-included offenses in the jury charge. CCA affirmed COA.

        COA properly determined that the jury could not have inferred from the totality of the circumstantial evidence viewed in a light most favorable to its verdict that D intended to cause the death of the child. The injuries caused by D became fatal in combination with the later injuries separately caused by the child’s mother, who independently struck the child’s head repeatedly and hung him from his arms. D was entitled to the mistake-of-fact instruction, which he requested but was denied, because he was subjected to a transferred-intent instruction. Because the transferred-intent instruction was applied to all of the offenses in the jury charge and authorized conviction of each specific offense, if causation were transferred pursuant to Tex. Penal Code § 6.04, the mistake-of-fact instruction was needed to permit the jury to negate the transferred intent if the jury believed that D had a reasonable mistaken belief about the type of injury he was inflicting. The lack of D’s requested mistake-of-fact instruction effectively prevented him from presenting his defense and was not harmless.

D’s complaint that the trial court commented on him testifying was not preserved for review because D did not state grounds for his objection and the trial court did not rule on it. Brewer v. State, 367 S.W.3d 251 (Tex. Crim. App. 2012).

        D was convicted of DWI. COA reversed and remanded. The State petitioned for review. CCA reversed COA and remanded to COA to consider D’s other claims.

        At D’s trial, the State implied he left his car running because he intended to flee the scene. Defense counsel attempted to elicit testimony from a witness suggesting D kept the engine running to keep the car’s heater functioning. When the State objected, the trial judge said D could testify to that. COA erred in holding D’s complaint that the trial court commented on him testifying was preserved for review under Tex. R. App. P. 33.1(a), because D did not state grounds for his objection and the trial court did not rule on it. D’s failure to request a curative instruction before moving for a mistrial forfeited appellate relief for an error that could have been cured by an instruction. D’s handwritten motion for a mistrial or an instruction to the jury to disregard the court’s comments was made after the State’s final witness testified. This untimely request was insufficient to preserve error.

The evidence was insufficient to find D guilty for endangering her child; no evidence showed that the child was experiencing physical pain or impaired organ function or that D placed the child in imminent danger of bodily injury or physical impairment. Garcia v. State, 367 S.W.3d 683 (Tex. Crim. App. 2012).

        COA acquitted D of her conviction for endangering a child under Tex. Penal Code § 22.041(c) on the basis of insufficient evidence. CCA affirmed; the evidence was insufficient to prove that D’s child sustained bodily injury from being too cold because, although there was evidence that the child was shivering, had blue lips, and wore only a wet diaper, no evidence showed that she was experiencing physical pain or impaired organ function from being exposed to the 58-degree weather while wearing only a wet diaper. CCA also held that the evidence was insufficient to prove that D placed her child in imminent danger of bodily injury or physical impairment by failing to properly clothe the child for the cold weather because it showed only that: (1) the child was outside in almost 60-degree weather for a short amount of time; (2) the child was sheltered in a car by D who sometimes held her close to her body; and (3) the child, though obviously cold, did not cry until she was taken from D’s arms.

The clerk of the Dallas County district courts is ordered to forward all remaining materials which are or should be contained in these habeas corpus records. Ex parte Williams, 366 S.W.3d 714 (Tex.Crim.App. 2012). Ex parte Jackson, 366 S.W.3d 201 (Tex.Crim.App. 2012).

        Co-defendants claim wrongful conviction of aggravated sexual assault. They rely on recent DNA testing that excludes them as contributors of the sperm obtained from the victim. The State filed an amended answer that agreed Ds’ claim was meritorious. According to the State, not only did the DNA testing exonerate Ds; it also identified the true perpetrators. In May 2012, the judge of the convicting court signed Agreed Findings of Fact and Conclusions of Law recommending CCA grant relief on Ds’ habeas corpus writs.

        CCA has not been able to resolve Ds’ writ applications in an expeditious manner because the Dallas County District Clerk failed to forward all the records and materials contemporaneously with the applications. Some supplemental materials, including a sealed exhibit (which should have remained sealed when sent), were forwarded to CCA after CCA received the applications. However, the clerk has still not forwarded all the records and materials that are or should be part of the habeas record, including a transcript of the writ hearing. Although a deputy clerk certified that the May 23, 2012, transmittal included “a true and correct transcript of all the matters and proceedings had and done in said cause,” that was inaccurate. Tex. Code Crim. Proc. art.11.07, § 3(d) requires the clerk of the convicting court to “transmit to the Court of Criminal Appeals, under one cover, the application, any answers filed, any motions filed, transcripts of all depositions and hearings, any affidavits, and any other matters such as official records used by the court in resolving issues of fact.” Especially when the judge of the convicting court has recommended granting relief—and most especially when he recommends relief on the basis of actual innocence—the clerk must expeditiously forward all pertinent materials.

CCA has the exclusive authority to rule on a motion to withdraw in cases docketed under Tex. Code Crim. Proc. art. 11.07, § 5, and counsel must file the motion with CCA. Ex parte De Leon, 366 S.W.3d 203 (Tex.Crim.App. 2012).

        Applicant seeks relief, contending that his guilty pleas were involuntary. In March 2012, CCA filed and set the writ applications for submission and ordered briefing from the parties. In its briefing order, CCA also directed the trial court to determine if D was indigent and wanted counsel. The trial court held a hearing, determined D was indigent, and appointed counsel. After learning that D wished to proceed pro se, counsel filed a motion in the trial court to withdraw. The trial court held a second hearing, heard from D, and orally granted counsel’s motion to withdraw. In May, counsel filed a motion to withdraw in CCA.

        In cases that have been filed and set for submission and docketed pursuant to Tex. Code Crim. Proc. art. 11.07, § 5, CCA had not clearly stated whether it has the exclusive authority to rule on a motion to withdraw. CCA held here that it does have the exclusive authority in cases docketed under § 5, and that counsel must file his motion to withdraw in CCA. Therefore, in these cases, the trial court’s decision to grant counsel’s motion to withdraw had no legal effect. CCA nonetheless takes judicial notice of the proceedings before the trial court and grant counsel’s motion to withdraw filed in CCA.

COA erred by upholding the trial court’s implicit finding that D’s consent to search was voluntary without evaluating all the evidence that was admitted in the record, including a video. Tucker v. State, 369 S.W.3d 179 (Tex.Crim.App. 2012).

        D pleaded nolo contendere to possession of marijuana near a drug-free zone after the trial court denied his motions to suppress evidence. COA affirmed. CCA reversed and remanded. On remand, the appellate court should view the video in the light most favorable to the trial court’s ruling and assume the trial court made implicit findings that support the denial of D’s motion to suppress. If the video evidence did not support the trial court’s conclusion, the appellate court should reverse.

COA erred in holding that two prosecuting authorities could not be the same party for res judicata purposes. Ex parte Doan, 369 S.W.3d 205 (Tex.Crim.App. 2012).

        COA affirmed the trial court’s ruling that res judicata did not bar prosecution for a criminal offense in one county after a prosecutor in another county unsuccessfully tried to revoke D’s community supervision on the ground that he committed the same offense. CCA reversed and remanded for COA to consider the claims briefed by the parties.

        CCA looked at the issues and procedures in the Brazos County revocation hearing and the Travis County criminal pros­ecution and asked whether the government prosecutors had the same interests and authority to litigate a final adjudication. CCA found that the issues and procedures were nearly identical. In both proceedings, prosecutors plead and sought to prove that D committed the same act. Both were criminal, judicial proceedings with nearly identical procedural rules, in which the State was represented by sworn prosecutors. The only difference between the interests of the Brazos County Attorney and the Travis County Attorney was that one sought to prove theft in order to criminally punish D for theft, while the other sought to prove theft in order have D’s criminal punishment from a prior case altered to his detriment. This difference allows the case to escape the narrow grasp of the Double Jeopardy Clause.

D had no Fifth Amendment right to refuse to answer questions that were a condition of his community super­vision related to counts in his indictment for which no plea was entered because double jeopardy precludes use of those facts in future criminal proceedings. Ex parte Dangelo, Nos. PD-0769-11 & PD-0770-11 (Tex.Crim.App. June 20, 2012).

By virtue of Tex. Code Crim. Proc. art. 42.12, §§ 5(a) and 22(c), a trial court has authority to extend the orig­i­nal term of community supervision of an accused who was placed on deferred adjudication for a state-jail felony. Garrett v. State, Nos. PD-0934-11 & PD-1117-11 (Tex.Crim.App. June 20, 2012).

Court of Appeals

Summaries by Chris Cheatham of the Cheatham Law Firm, Dallas

Trial court abused its discretion in allowing officer to testify that D’s prescription medications could not have caused the signs of intoxication exhibited by D, where officer conceded that he was not certified as a drug-recognition expert. Delane v. State, 369 S.W.3d 412 (Tex.App.—Houston [1st Dist] 2012).

        “[Officer] agreed that he did not conduct the standard twelve-step examination that would have been conducted by a drug-recognition expert, and he explained that he did not con­tact such an expert in accord with HPD policy after [D] re­fused a breath test.”

It was not error for the court to deny mistrial during voir dire despite prospective juror’s statement (in presence of the panel) that he read about the case in the newspaper; when asked if he had an opinion of guilt, he answered, “Yes, he was caught red-handed.” Davila v. State, No. 06-11-00091-CR (Tex.App.—Texarkana Feb 7, 2012).

        “The panelist was questioned further at the bench and was excused for cause… The challenged statement, although blunt and unfortunate in this setting, is also a statement of a belief existing as a result of reading the newspaper, rather than a statement of personal knowledge of unlawful activities. As such, it falls squarely within the range of matters that are typically curable[.]”

“We reject [D’s] argument that [officer] needed a reasonable suspicion of criminal activity before he used his spotlight to illuminate [D’s vehicle].” King v. State, No. 14-11-00153-CR (Tex.App.—Houston [14 Dist] Feb 7, 2012).

        “To adopt such a position would be to severely handicap law enforcement during nighttime hours—the time when crime is especially likely to occur.”

Officer ordering D to lie in a prone position while being handcuffed did not transform D’s detention into an arrest. Jensen v. State, No. 02-10-00449-CR (Tex.App.—Fort Worth Feb 16, 2012).

Juvenile deemed not in custody even though officer told juvenile he could not leave because there was no other indicia of arrest. In re C.M., No. 10—10-00421-CV (Tex.App.—Waco Feb 22, 2012).

Search warrant affidavit that failed to characterize confidential informant as reliable deemed defective, despite State’s argument that it is a statement against penal in­terest because the affidavit indicates that informant gave police the statement following Miranda warnings. Davidson v. State, No. 05-10-01264-CR (Tex.App.—Dallas Feb 23, 2012).

            “The affidavit does not include any additional information regarding the reason the confidential informant had been given the Miranda warnings. Instead, the information that the confidential informant was under arrest for suspected drug trafficking was provided by statements made during the hearing on [D’s] motion to suppress. Statements made during a suppression hearing do not factor into the probable cause determination.”

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