September 2014 SDR – Voice for the Defense Vol. 43, No. 7

Voice for the Defense Volume 43, No. 7 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

Instructions allowing the jury to convict under aiding and abetting as an alternate theory were erroneous because they failed to require that D knew in advance that one of his cohorts would be armed. Rosemond v. United States, 134 S. Ct. 1240 (2014).

        D was charged with using a gun in connection with a drug trafficking crime, in violation of 18 U.S.C.S. § 924(c), or, in the alternative, aiding and abetting that offense under 18 U.S.C.S. § 2, after he participated in an attempted marijuana sale and shots were fired at the buyers after the buyers took the marijuana and ran. The district court instructed the jury that they could find D guilty of violating § 924(c) as an aider and abettor if the evidence showed that he knowingly and actively participated in a drug trafficking crime and knew that an accomplice used a firearm in the commission of a drug trafficking crime; the jury found D guilty of violating § 924(c). The Tenth Circuit affirmed. The Supreme Court vacated the Tenth Circuit and remanded for the Tenth Circuit to address whether D’s objection was properly preserved and whether any error was harmless.

        The Government establishes that a defendant aided and abetted a § 924(c) violation by proving the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime. In telling the jury to consider merely whether D “knew his cohort used a firearm,” the court did not direct the jury to determine when D obtained the requisite knowledge—i.e., to decide whether D knew about the gun in sufficient time to withdraw from the crime.

D’s state conviction for misdemeanor domestic assault qualified as a misdemeanor crime of domestic violence for purposes of possessing a firearm under 18 U.S.C. § 922(g)(9). United States v. Castleman, 134 S. Ct. 1405 (2014).

        D moved to dismiss his indictment for 18 U. S. C. § 922(g)(9), which forbids the possession of firearms by anyone convicted of a “misdemeanor crime of domestic violence.” He argued that his previous conviction for “intentionally or knowingly caus[ing] bodily injury,” in violation of Tenn. Code § 39-13-111(b) misdemeanor domestic assault, did not qualify as a “misdemeanor crime of domestic violence” because it did not involve “the use or attempted use of physical force” of 18 U. S. C. § 921(a)(33)(A)(ii). The district court agreed, reasoning that “physical force” must entail violent contact and that one can cause bodily injury without violent contact, e.g., by poisoning. The Sixth Circuit affirmed. The Supreme Court granted certiorari to resolve a split among circuits. The Court unanimously reversed and remanded.

        Prior case law required that courts attribute the common-law meaning of “force” to § 921(a)(33)(A)’s definition of a misdemeanor crime of domestic violence as an offense that had, as an element, the use or attempted use of physical force. Thus, the requirement of physical force was satisfied, for purposes of § 922(g)(9), by the degree of force that supported a common-law battery conviction. Applying that definition of physical force, D’s conviction qualified as a misdemeanor crime of domestic violence where he had pled guilty to having intentionally or knowingly caused bodily injury to the mother of his child, and the knowing or intentional causation of bodily injury necessarily involved the use of physical force. Neither the legislative history nor the rule of lenity supported a different interpretation.

The traffic stop precipitated by an anonymous but reliable tip complied with the Fourth Amendment because the officer had reasonable suspicion that the driver was intoxicated. Navarette v. California, 134 S. Ct. 1683 (2014).

        A highway patrol officer stopped Ds shortly after a 911 caller reported she was run off the road by a pickup truck that fit the description of Ds’ truck. After he and another officer smelled marijuana, searched the truck, and found 30 pounds of marijuana in it, officer arrested both Ds. Ds filed a motion to suppress the marijuana, arguing that officer lacked reasonable suspicion to conduct the stop and, therefore, violated the Fourth Amendment. The trial court denied the motion, and the Court of Appeal of California affirmed. The California Supreme Court denied review. The U.S. Supreme Court affirmed: The traffic stop complied with the Fourth Amendment because, under the totality of the circumstances, officer had reasonable suspicion that the driver was intoxicated. The behavior described by the 911 caller, viewed from the standpoint of an objectively reasonable police officer, amounted to reasonable suspicion of drunk driving.

Fifth Circuit

District court did not err in convicting and sentencing D on the basis of 5.9 kilograms of cocaine, even though the cocaine had a purity of only 3.2%; because this mixture was usable in its diluted form, it was proper to use the entire 5.9 kilograms, as a mixture or substance containing a detectable amount of cocaine. United States v. Villarreal, 723 F.3d 609 (5th Cir. 2013).

D’s 24-month prison sentence upon revocation of su­per­vised release was neither procedurally nor substan­tively unreasonable, even though it exceeded the advisory Guideline range of 8 to 14 months; there is no constitutional or statutory basis for finding error when the district court relies without notice on a defendant’s behavior (here, invalid urinalysis results) while on supervised release. United States v. Warren, 720 F.3d 321 (5th Cir. 2013).

        Moreover, although due process forbids sentencing reliance upon erroneous and material information or assumptions, D failed to show that the information in question was either inaccurate or material to the sentence. Finally, D’s sen­tence was not substantively unreasonable, especially on plain-error review (applicable because D did not object to his sentence on the specific grounds he raised on appeal).

When reducing a defendant’s sentence pursuant to Fed. R. Crim. P. 35(b) (on a government motion to reduce the sentence based on substantial post-sentencing assistance by the defendant), the district court is not re­quired to consider the factors in 18 U.S.C. § 3553(a). United States v. Lightfoot, 724 F.3d 593 (5th Cir. 2013).

        Thus, if the district court thought it was not required to consider and apply those factors, it was correct and did not err. However, even if the district court thought it was prohibited from considering those factors, and even if the district court may consider those factors in its discretion (a question the Fifth Circuit did not decide), the error here was harmless because there was no indication that the § 3553(a) factors had any bearing on sentencing.

On plain-error review, Ds’ Confrontation Clause rights were not violated when the district court allowed two confidential informants to testify under pseudonyms at trial. United States v. Alaniz, 726 F.3d 586 (5th Cir. 2013).

        Defense counsel was provided with the informants’ true names and significant background information; the only restrictions were that defense counsel could not use the informants’ actual names in open court and did not have access to the informants’ dates of birth and Social Security numbers.

        However, where Ds were charged with a multiple-object money-laundering conspiracy—alleging conspiracy to violate 18 U.S.C. § 1957 (which has a 10-year maximum) and various provisions of § 1956(a) (with a 20-year maximum)—and the jury returned only a general verdict that did not specify the object offenses that the jury found Ds guilty of conspiring to commit, the jury verdict was ambiguous, and the sentence for the conspiracy count could not exceed the lowest of the po­ten­tially applicable maximums. The Fifth Circuit vacated Ds’ sentences on the money-laundering conspiracy count and remanded for resentencing on that count.

It was constitutional to order disclosure of historical cell site information merely upon the Stored Communications Act’s lower specific-and-articulable-facts standard, as opposed to a probable-cause standard. In re Application of the United States for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013).

        Where the district court denied as unconstitutional the government’s application to compel cell phone providers to produce the historical cell site information for their subscribers (application was made pursuant to 18 U.S.C. § 2703(d) of the Stored Communications Act (SCA)), the dispute was ripe for review, and the Fifth Circuit had appellate jurisdiction, under 28 U.S.C. § 1291, to review the district court’s order. On the merits, the Fifth Circuit held that contrary to the district court’s reasoning, it was not unconstitutional to issue orders for disclosure of historical cell site information merely upon the SCA’s lower “specific and articulable facts” standard, as opposed to a Fourth Amendment probable-cause standard. Because the court has no discretion to deny such an application once the government has met the statutory requirements, the Fifth Circuit vacated the district court’s order denying the application and remanded with instructions to grant the application.

        Judge Dennis dissented, noting that the majority’s decision conflicted with In re United States for an Order Directing Provider of Elec. Commun. Serv. to Disclose Records to the Gov’t, 620 F.3d 304 (3d Cir. 2010).

D was not entitled to reversal of her healthcare fraud convictions based on her right to be present at trial. United States v. Thomas, 724 F.3d 632 (5th Cir. 2013).

        D waived her right to be present at two chambers conferences by failing to assert her right to attend these conferences, which she knew about. D did not waive her right to be present at the exercise of peremptory challenges and at jury empanelment; however, although this was “error” that was “plain,” it did not affect D’s substantial rights, and hence did not require reversal on plain-error review.

Court of Criminal Appeals

Evidence insufficient to support D’s conviction for misapplication of fiduciary property because he was not acting in a fiduciary capacity when he took payments from customers for window treatments and then failed to deliver those goods as promised. Berry v. State, 424 S.W.3d 579 (Tex.Crim.App. 2014).

        One acts in a “fiduciary capacity” for Tex. Penal Code § 32.45(a)(1)(C), (b), if his relationship with another is based not only on trust, confidence, good faith, and utmost fair dealing, but also on a justifiable expectation that he will place the interests of the other party before his own. D had no special or confidential relationship with his customers beyond the usual contractual relationship that existed between any seller and a buyer of goods. However, D was not entitled to resentencing on the theft count. CCA affirmed the trial court in part and reversed in part.

D’s right to counsel was violated when his incriminating statements obtained from the complaining witness with regard to a subsequent case were used as primary evidence of guilt in the current case. Rubalcado v. State, 424 S.W.3d 560 (Tex.Crim.App. 2014).

        D, arrested pursuant to an Ector County complaint, made bail and was released from incarceration. Afterwards, at the behest of Midland County law enforcement, the complaining witness in the Ector County case contacted D and elicited incriminating statements from him. The question before CCA was whether appellant’s U.S. Const. amend. VI right to counsel was violated when these statements were later used as primary evidence of guilt in the Ector County case. CCA concluded that appellant’s right to counsel was violated with respect to the Ector County prosecution, and reversed COA’s judgment.

        D’s right to counsel with respect to the current charges had attached before the recorded conversations took place. D’s right to counsel had attached with respect to the recordings insofar as they were relevant to the current prosecutions. The complaining witness was a government agent; deliberate elicitation was shown. Police encouraged the complaining witness to contact D for the purpose of eliciting a confession, and they provided recording equipment to her to memorialize any incriminating statements. Furthermore, D had not waived his right to counsel.

Partial habeas relief granted because D was prejudiced by counsel’s deficient performance at the punishment phase of trial. Ex parte Howard, 425 S.W.3d 323 (Tex.Crim.App. 2014).

        The habeas judge originally recommended that CCA grant relief in the form of a new trial because of counsel’s deficient performance in failing to have mental-health experts appointed and in failing to properly investigate and present an insanity defense. CCA originally filed and set this application to determine whether applicant was prejudiced at the guilt phase of trial by counsel’s deficient performance. CCA concluded that applicant was not prejudiced at the guilt phase because Texas law prevents the consideration at guilt of evidence of insanity caused by voluntary intoxication. But because Texas law allows consideration of such evidence at punishment, and the habeas judge had recommended granting relief, CCA remanded to the habeas judge for findings of fact on whether applicant was prejudiced with respect to the issue of punishment. In his findings of fact and conclusions of law on remand, the habeas judge concludes that applicant was prejudiced with respect to the issue of punishment. The record supports this conclusion. Consequently, CCA granted relief in the form of a new punishment hearing.

The denial of D’s motion for post-conviction DNA testing was proper because she did not meet the Tex. Code Crim. Proc. art. 64.03 requirement to prove by a preponderance of the evidence that she would not have been convicted had exculpatory results been obtained from the item she sought to have tested. Holberg v. State, 425 S.W.3d 282 (Tex.Crim.App. 2014).

        CCA affirmed the convicting court because CCA was unable to say that it was more likely than not that the jury would not have convicted D of capital murder, even if it were convinced that she had never touched the wallet, in light of the credible alternative avenues to determine, beyond a reasonable doubt, that she committed a robbery against the victim that did not depend on D touching the wallet.

COA in the instant case did not have the benefit of Ex parte Lo, No. PD-1560-12 (Tex.Crim.App. Oct 30, 2013), which held that online solicitation of a minor, Tex. Penal Code § 33.021(b), is unconstitutional; CCA remanded to COA. Freeman v. State, 425 S.W.3d 289 (Tex.Crim.App. 2014).

The jury charge was not erroneous for failing to require the jury to render a unanimous verdict with respect to which theory of aggravated sexual assault D’s conduct satisfied. Jourdan v. State, 428 S.W.3d 86 (Tex.Crim.App. 2014).

        D was convicted of aggravated sexual assault, for which the jury assessed a sentence of 35 years in prison. COA reversed, holding that D was egregiously harmed by a jury charge at the guilt phase that failed to require the jury to render a unanimous verdict with respect to which of two theories of ag­gra­vated sexual assault D’s conduct satisfied. CCA reversed COA’s conclusions both that the jury charge was erroneous and that any such error was egregiously harmful.

        “We conclude that, in this case, the penetration of a single orifice (the sexual organ) of the one victim (Kemp) during the same transaction constituted but one offense under [Tex. Penal Code §] 22.021(a)(1)(A)(i), regardless of the various manner and means by which the evidence may show that the penetration occurred. The jury was not required to reach unanimity with respect to whether the appellant penetrated Kemp with his penis or his finger during that transaction.” CCA also found that, regardless, D did not suffer egregious harm: “the failure of the trial court to expressly require jury unanimity with respect to digital penetration versus penile contact, assuming it was error, neither affected the very basis of the case nor actually operated to deprive the appellant of his valuable right to a unanimous jury.”

The State did preserve the issue of reforming D’s conviction to attempted tampering with evidence; furthermore, the evidence was sufficient to support attempted tampering. Thornton v. State, 425 S.W.3d 289 (Tex.Crim.App. 2014).

        D was convicted of the third-degree felony of tampering with evidence, on a theory of concealment, for reaching in his pocket, pulling out a crack pipe, and dropping it to the ground in the presence of police. On appeal, COA deemed the evidence insufficient to support a conviction for tampering with evidence by concealment because, with respect to the element of concealment, the evidence showed that “at least one of the officers on the scene . . . was aware of the presence of the item alleged to have been concealed” at all times. Accordingly, COA reversed and ordered that D be acquitted.

        After CCA, on initial discretionary review, remanded for COA to consider reforming the judgment to reflect a conviction for attempted tampering with evidence, COA explicitly declined. CCA here granted the State’s petition, reversed COA, and remanded to the trial court.

        COA erred in holding the State failed to preserve the issue of reformation because, if reformation was an appropriate remedy, it had to be applied regardless of whether either party requested or contested—or whether the jury was actually given—an instruction on the lesser-included offense. COA also erred in ruling reformation could be used only to re­form the aggravating elements of an offense, and it should have focused on what the jury actually found in the course of convicting D of the greater offense. Lastly, there was sufficient evidence to support a conviction for attempted tampering because the evidence presented was sufficient to support a reasonable inference that concealment of the pipe was apparently possible to D and that he was acting with the intent to conceal the pipe when he dropped it.

D was ineligible for community supervision from a jury due to a prior felony conviction, even though the prior conviction had been set aside, because that conviction was resurrected for the limited purpose of probation ineligibility when he was convicted of the present offense. Yazdchi v. State, 428 S.W.3d 831 (Tex.Crim.App. 2014).

        CCA affirmed COA that (1) D was ineligible for community supervision from the jury because his conviction in this case revived his earlier conviction for the limited purpose of pro­bation ineligibility, under Tex. Code Crim. Proc. art. 42.12, § 20(a)(1), even though his earlier conviction had been terminated by a discharge order that permitted him to withdraw his guilty plea, dismissed the indictment, and set aside the verdict; and (2) D did not preserve his complaint that it is impermissible to impeach his testimony with a prior probation that was discharged through judicial clemency. The requirement under § 20(a)(1) that a prior conviction be made known to the judge means that a defendant being sentenced by a jury under § 4(e) must provide the information about the prior conviction in a written motion before trial begins.

A mistrial was proper after D asked the complaining witness on cross-examination whether the witness alleged that D did the same thing to his own daughter; D inadequately showed that the witness made such an al­le­gation and that it was false. Pierson v. State, 426 S.W.3d 763 (Tex.Crim.App. 2014, pet. filed).

        D was on trial for indecency with a child and aggravated sexual assault of a child. The defense’s first question on cross-examination of the complaining witness was, “Did you also make an allegation that [D] did these same things to his own daughter?” After a hearing, the court granted the State’s request for a mistrial. D then filed a pretrial habeas application on the basis of double jeopardy. The court denied the application because it found that the mistrial was D’s fault and that there was no other appropriate remedy; thus there was a manifest necessity to retry D, and his second trial was not precluded by double-jeopardy principles.

        D was convicted at his second trial of one count of indecency with a child and seven counts of aggravated sexual assault of a child. D appealed that his second trial violated double jeopardy, but COA disagreed. CCA granted D’s ground for re­view: “The single question posed by Petitioner’s trial counsel did not create the type of very extraordinary and striking circumstances necessary to sustain a finding of manifest necessity to declare a mistrial.” CCA affirmed COA.

        The judge’s decision to grant a mistrial based on the risk of juror bias was entitled to great deference. COA did not err in holding that the trial court acted with sound discretion when it determined that an instruction to disregard D’s improper question to the witness would be insufficient to cure the error, as the trial court considered less drastic alternatives than a mistrial but found a curative instruction would have been insufficient.

A trial record need not contain a colloquy between the judge and defendant for the conclusion that defendant waived his right to an interpreter; the record here sufficiently reflected that D knowingly, intelligently, and voluntarily waived this right. Garcia v. State, 429 S.W.3d 604 (Tex.Crim.App. 2014).

        “The question in this case is whether the record must contain a waiver colloquy between the trial judge and the defendant before an appellate court may conclude that a defendant has waived his right to an interpreter. We hold that the record does not have to contain such a colloquy, as long as the record otherwise affirmatively reflects that a waiver occurred. Concluding that the record affirmatively reflects a waiver in the present case, we affirm the judgment of the court of appeals.” The record contained evidence that trial counsel told D that he had a right to an interpreter, that D agreed with counsel not to request an interpreter, and that D and counsel communicated their desire not to have an interpreter to the trial judge, albeit in an off-the-record conference.

Court of Appeals

Although a caller in Harris County made the false report of child abuse to the CPS hotline in Travis County, venue was proper in Galveston County because Galveston County resources were spent on the unnecessary investigation. Riley v. State, No. 14-12-00729-CR (Tex.App.—Houston [14th Dist] Apr 15, 2014).

        “Galveston County jurors had a natural interest in the subject matter, and Galveston County has a substantial connection to the case since the report was made concerning a child residing in Galveston County and was investigated in Galveston County. Since venue is not an element of the offense, the error did not prejudice the jurors’ decision making process. An examination of the record as a whole gives us fair assurance that the error did not affect appellant’s substantial rights.”

Text messages and video calls between D and the complainant were telephone communications within the meaning of Tex. Penal Code § 42.07(a)(4), and the evidence was legally sufficient to support D’s conviction for harassment under this Penal provision. Perone v. State, No. 14-12-00969-CR (Tex.App.—Houston [14th Dist] Apr 15, 2014).

        “In analyzing the sufficiency of the evidence, we note that no Texas court yet has explicitly addressed in a published opinion whether a text message or video call constitutes a telephone communication under [Tex. Penal Code] section 42.07(4) or an electronic communication under section 42.07(7), or both. Text messages are a type of written communication that can be exchanged between various types of devices, for example, between two cell phones. . . . We conclude that, if text messages are exchanged between two telephones, they are communications between telephones, and thus are telephone communications under section 42.07(a)(4).”

Evidence seized pursuant to a search warrant need not be suppressed because the supporting affidavit was based solely on information gathered by a police officer conducting an undercover investigation outside his jurisdiction. Halili v. State, 430 S.W.3d 549 (Tex.App.—Houston [14th Dist] 2014).

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