September 2015 SDR – Voice for the Defense Vol. 44, No. 7

Voice for the Defense Volume 44, No. 7 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

D’s Kansas conviction for concealing unnamed pills in his sock did not trigger removal under 8 U.S.C. § 1227(a)(2)(B)(i). Mellouli v. Lynch, 135 S. Ct. 1980 (2015), stay granted, No. 15A137 (U.S. Aug 21, 2015).

        Petitioner, a lawful permanent resident, pleaded guilty to misdemeanor possession of drug paraphernalia “to . . . store [or] conceal . . . a controlled substance.” Kan. Stat. § 21-5709(b)(2). The sole “paraphernalia” D was charged with possessing was a sock in which he had placed four unidentified orange tablets. Citing D’s misdemeanor conviction, an immigration judge ordered him deported under 8 U.S.C. § 1227(a)(2)(B)(i), which authorizes the deportation of an alien “convicted of a violation of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21).” Section 802 limits “controlled substance” to a “drug or other substance” included in one of five federal schedules. Kansas defines “controlled substance” as any drug included on its own schedules, without reference to § 802. Kan. Stat. § 21-5701(a). At the time of D’s conviction, Kansas’ schedules included at least nine substances not on the federal lists. The Board of Immigration Appeals affirmed D’s deportation order, and the Eighth Circuit denied review. The Supreme Court reversed the Eighth Circuit.

        An alien’s state conviction for possessing drug paraphernalia by concealing unidentified pills in a sock did not trigger removal of the alien under 8 U.S.C. § 1227(a)(2)(B)(i) as a conviction relating to a controlled substance listed on the federal schedules, since the state list of controlled substances contained substances not listed in the federal schedules and thus the substance concealed in the alien’s sock was not necessarily a controlled substance under federal law. In evaluating removal based on the conviction rather than the alien’s conduct, there was no basis for distinguishing drug possession and distribution offenses from drug paraphernalia offenses to eliminate the need for a direct link between the alien’s crime of conviction and a particular federally controlled drug.

A naturalized U.S. citizen had no protected liberty interest in her marriage that entitled her to seek judicial review of a consular officer’s decision denying her husband’s application for a visa. Kerry v. Din, 135 S. Ct. 2128 (2015).

        Fauzia Din petitioned to have her husband, Kanishka Berashk, a resident citizen of Afghanistan and former civil servant in the Taliban regime, classified as an “immediate relative” entitled to priority immigration status. Din’s petition was approved, but Berashk’s visa application was ultimately denied. A consular officer informed Berashk that he was inadmissible under 8 U.S.C. § 1182(a)(3)(B), which excludes aliens who have engaged in “[t]errorist activities,” but the officer provided no further information. Unable to obtain a more detailed explanation, Din filed suit in federal district court, which dismissed her complaint. The Ninth Circuit reversed, holding that Din had a protected liberty interest in her marriage that entitled her to review of the denial of Berashk’s visa. It further held that the Government deprived her of that liberty interest without due process when it denied Berashk’s visa application without providing a more detailed explanation. The Supreme Court vacated the Ninth Circuit and remanded.

        Under a historical understanding of the U.S. Const. amend. V Due Process Clause, the citizen could not claim that the denial of her husband’s application for a visa deprived her of life, liberty, or property (three Justices), or there was no need to decide whether the U.S. citizen had a protected liberty interest because the notice she received satisfied due process (two Justices).

Fifth Circuit

D’s sentence was proper; judicial fact-findings that increase the discretionary sentencing range need not be treated as elements (i.e., charged in an indictment and proved beyond a reasonable doubt). United States v. Hinojosa, 749 F.3d 407 (5th Cir. 2014).

        Where D pleaded guilty to possession of marijuana with intent to distribute, his sentence did not run afoul of Alleyne v. United States, 133 S. Ct. 2151 (2013). Alleyne held only that facts increasing a statutory minimum sentence must be treated as elements; Alleyne did not apply to judicial finding of facts that increase the discretionary sentencing range under the advisory U.S. Sentencing Guidelines. Here, there was no indication that D’s statutory minimum punishment was increased as the result of judicial fact-finding forbidden by Alleyne.

        (2) The Government did not breach its plea agreement with D by advocating for inclusion of drug quantities as “relevant conduct” under the Guidelines where the plea agreement contained neither a reference to drug quantity nor a promise not to advocate for the inclusion of relevant conduct. D’s plea to a count charging a specific amount of marijuana did not constitute an implicit promise by the Government not to advocate for a greater amount. Furthermore, even if the Government breached the plea agreement by arguing against a reduction for acceptance of responsibility under USSG § 3E1.1, D could not show an effect on his substantial rights, as required under plain-error review, because the record showed it was highly un­likely that the court would have granted D the two-level re­duc­tion even in the absence of a Government breach.

        (3) The district court did not err in assessing certain drug quantities as “relevant conduct” under the Guidelines; or, if there was error, it was harmless because the drug quantity in question did not change the Guideline range. Finally, the court did not err in applying a two-level enhancement for obstruction of justice under USSG § 3C1.1; an obstructive act need only materially affect an investigation when it is done con­temporaneously with the defendant’s arrest. Here, the allegedly obstructive act (a phone call to D’s sister telling her to remind a co-defendant about an agreed-upon story) did not occur contemporaneously with his arrest. The obstruction enhancement might also have been supported by D’s pre-plea letter to the district judge, in which D denied guilt (falsely, as he later admitted).

District court reversibly erred in denying D an additional one-level reduction for acceptance of responsibility under USSG § 3E1.1(b) where the Government’s refusal to move for the § 3E1.1(b) reduction was based on D’s refusal to waive his right to appeal. United States v. Villegas Palacios, 756 F.3d 325 (5th Cir. 2014).

        Under Amendment 775 to the Sentencing Guidelines, this was an improper basis to withhold the motion. Even though D was sentenced before Amendment 775 took effect (on November 1, 2013), D was entitled to the benefit of Amendment 775. To the extent United States v. Newson, 515 F.3d 374 (5th Cir. 2008), might counsel a different result, it was, with the assent of all the active judges of the Fifth Circuit, held to be abrogated by Amendment 775. Accordingly, the Fifth Circuit remanded for resentencing.

For purposes of USSG § 2L1.2, aggravated battery did not categorically have as an element the use, attempted use, or threatened use of physical force because the offense may be committed by administering poison, which did not necessarily entail the use of destructive or violent physical force; here, however, the modified categorical approach could properly exclude the possibility of a violation by administering poison. United States v. Herrera-Alvarez, 753 F.3d 132 (5th Cir. 2014).

        The Louisiana crime of aggravated battery under La. Rev. Stat. § 14:34, as narrowed by the modified categorical approach to exclude poisoning, was a “crime of violence” under USSG § 2L1.2 because it necessarily contained, as an element, the use, attempted use, or threatened use of physical force.

Where D was indicted in Texas state court for burglary of a habitation under both Tex. Penal Code § 30.02(a)(1) (which qualifies as a crime of violence under USSG § 2L1.2) and § 30.02(a)(3) (which does not), and where D in the judicial confession accompanying his plea ad­mitted that he had committed every act charged in the indictment, this was sufficient to show that D was convicted of violating both offenses. United States v. Conde-Castañeda, 753 F.3d 172 (5th Cir. 2014).

        The district court therefore did not err in applying the 16-level “crime of violence” enhancement. To the extent United States v. Espinoza, 733 F.3d 568 (5th Cir. 2013), might support a different result, Espinoza conflicted with the earlier decision in United States v. Garcia-Arellano, 522 F.3d 477 (5th Cir. 2008); thus Espinoza had to give way to Garcia-Arellano.

Officer lacked reasonable suspicion that D was engaged in criminal activity based on the facts that D and his girlfriend were sitting in a car in an apartment parking lot around 11 p.m. in a high-crime area and, upon seeing police, the girlfriend got out and walked briskly away. United States v. Hill, 752 F.3d 1029 (5th Cir. 2014).

        Police officer did not have reasonable suspicion, based on articulable facts, under the totality of relevant circumstances (D and his girlfriend sitting in a car in an apartment parking lot around 11 p.m. on a Saturday; upon seeing police, girlfriend got out of car and walked briskly away; alleged high-crime area). Therefore, the seizure and frisk of D, leading to the discovery of a gun (for which he was prosecuted for being a felon in possession), violated the Fourth Amendment. The Fifth Circuit reversed the district court’s denial of D’s motion to suppress, and vacated the conviction and sentence.

D’s appellate challenge to his restitution order was barred by the appeal-waiver provision of his plea agreement, which was knowing and voluntary. United States v. Keele, 755 F.3d 752 (5th Cir. 2014).

        The Fifth Circuit noted that an appeal waiver would not bar a properly raised argument that the restitution order exceeded the statutory maximum, but that D made no such argument. The appeal waiver also barred D’s appellate challenge that his restitution order violated the Eighth Amendment. Because the appeal waiver barred all D’s appellate challenges, the Fifth Circuit dismissed the appeal.

District court did not err in refusing to group, pursuant to USSG § 3D1.2, D’s convictions for being found unlawfully present in the United States after deportation (8 U.S.C. § 1326(a) and (b)(1)) and for possession of a firearm by an alien unlawfully present in the United States (18 U.S.C. §§ 922(g)(5) and 924(a)(2)). United States v. McLauling, 753 F.3d 557 (5th Cir. 2014).

        The two offenses did not “involve[e] substantially the same harm” because they harm different societal interests. Nor were the two offenses “groupable” under USSG § 3D1.2(a) because they did not involve the same victim as required by that Guideline. According to the Guideline commentary, for crimes with no identifiable victims where the victim is society at large, the victim is deemed to be the “societal interest that is harmed,” § 3D1.2, comment n.2.

D’s prior conviction under the first paragraph of Va. Code § 18.2-63 (for carnal knowledge of a 13- or 14-year-old without use of force) was the aggravated felony “sexual abuse of a minor.” Contreras v. Holder, 754 F.3d 286 (5th Cir. 2014).

        The Fifth Circuit pretermitted the question of whether Chevron USA, Inc. v. NRDC, 467 U.S. 837 (1984), deference was owed to the interpretation of the Board of Immigration Appeals’ definition of the term “sexual abuse of a minor” in 8 U.S.C. § 1101(a)(43)(A) and used its differing definition.

At D’s trial for possession of cocaine with intent to dis­tribute, district court did not err, much less plainly err, in admitting agent’s testimony; contrary to D’s argument, the testimony was not improper drug courier pro­file evidence. United States v. Medeles-Cab, 754 F.3d 316 (5th Cir. 2014).

        Inadmissible drug courier profile testimony involves an agent drawing a direct connection between a drug courier characteristic(s) and the defendant to establish the defendant’s guilt. If, however, the agent merely testifies to certain characteristics of drug trafficking, without drawing the connection, the testimony is generally admissible. Here, the agent’s testimony fit comfortably within that category of permissible testimony that includes explanations of conduct or methods of operation unique to the drug business.

District court did not err in applying a 12-level “crime of violence” enhancement to D under USSG § 2L1.2 based on his Florida conviction for attempted aggravated battery on a law enforcement officer with a law enforcement officer’s firearm. United States v. Garcia-Figueroa, 753 F.3d 179 (5th Cir. 2014).

        D’s 1991 Florida conviction, in violation of Fla. Stat. §§ 784.07, 777.04, and 775.0875, qualified as a crime of violence because the object offense of aggravated battery had as an element the use, attempted use, or threatened use of physical force against the person of another, and Florida attempt was within the generic meaning of “attempt[t]” under Application Note 5 to USSG § 2L1.2.

        (2) Where D was convicted of conspiracy to bring illegal aliens into the United States (Count 1), bringing illegal aliens into the United States (Count 2), and being unlawfully present in the United States following a prior deportation (Count 3), the district court reversibly erred in failing to group Count 3 with Counts 1 and 2 for purposes of calculating D’s Guideline range. All three counts had the same victim—namely, society in general—and thus should have been grouped under USSG § 3D1.2. The error was not harmless; the Fifth Circuit vacated D’s sentence and remanded.

Court of Criminal Appeals

For double-jeopardy purposes, Tex. Penal Code § 49.07 intoxication assault and Tex. Penal Code §§ 49.04 and 49.09 felony DWI were not the same when based on the same conduct. Ex parte Benson, 459 S.W.3d 67 (Tex.Crim.App. 2015).

        D was convicted of intoxication assault and felony driving while intoxicated. These convictions arose from the same incident, a traffic accident in which someone suffered serious bodily injury. The felony DWI count was based on the fact that D had two prior DWI convictions. D filed a habeas application alleging, among other things, that conviction for both intoxication assault and felony DWI violated his double-jeopardy right to be free from multiple punishments. CCA set the application on the double-jeopardy claim, ordered briefing, and denied habeas relief.

        “The offenses at issue are in the same chapter, are similarly named, and have the same punishment ranges. Those factors weigh in applicant’s favor, but none are particularly weighty. . . . The prior convictions are currently considered elements of the offense of felony DWI. The status of the prior convictions as ‘elements’ has significant procedural and substantive consequences. The legislature could easily have crafted ‘serious bodily injury’ and ‘prior convictions’ as statutory alternatives but did not. Felony DWI and intoxication assault do not have the same type of focus, much less the same actual focus or gravamen, and the offenses do not have the same unit of prosecution. . . . Even if an analysis of the Ervin [v. State, 991 S.W.2d 804 (Tex.Crim.App. 1999),] factors were inconclusive, applicant’s double-jeopardy claim would fail, because the presumption established by the offenses having different elements under the Blockburger [v. United States, 284 U.S. 299 (1932),] analysis would remain unrebutted. . . . [O]ne cannot say that the legislature clearly intended only one punishment for the offenses of felony DWI and intoxication assault.”

Third-degree felony family-violence assault under Tex. Penal Code § 22.01(b)(2)(B) was a result-of-conduct offense only; the gravamen of the offense was conduct that caused bodily injury, and the trial court did not err by limiting the definitions of applicable mental states in the jury charge. Price v. State, 457 S.W.3d 437 (Tex.Crim.App. 2015).

        A jury convicted D of third-degree-felony family-violence assault by strangulation. D pled true to the enhancement and habitual allegations, and the court sentenced him to 50 years’ imprisonment. D appealed, among other grounds, that third-degree-felony family-violence assault is both result-oriented and conduct-oriented, and that the court erred by failing to in­clude language tying the culpable mental state to the nature of the conduct. D asserted that the statute’s language, “by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth,” describes an element of the offense and that this element describes the nature of the conduct. COA affirmed the trial court.

        CCA affirmed COA, holding that domestic violence is a result-of-conduct offense only. “The instruction would have been erroneous only if the charged offense had multiple gravamina and the gravamina included both result of conduct and nature of conduct. But the gravamen of the charged offense, third-degree-felony family-violence assault, is conduct that ‘causes bodily injury.’”

COA erred in setting aside three of D’s convictions; Texas law recognized a closely-related-crimes exception to strict application of the corpus delicti rule when the temporal relationship between the offenses was sufficiently proximate that introduction of an extrajudicial confession did not violate the corpus delicti rule. Miller v. State, 457 S.W.3d 919 (Tex.Crim.App. 2015).

        A police detective was assigned to investigate a report from Child Protective Services that D had engaged in sexual conduct with his three-month-old daughter. The detective first asked D to voluntarily discuss the allegations. D agreed, met the detective, and gave two confessions (the first verbal and the second written): He admitted to molesting his daughter on at least three different occasions, including once in her nursery and twice in his bedroom. Days later, D called the detective and said he remembered a fourth incident; D returned to the police station and confessed verbally and in writing that he had also made contact between his sex organ and his daughter’s and took a picture with his mobile phone, but that he deleted the picture from his phone. D gave his computer to police and had his wife give them the memory card that was in his phone. She also gave consent to police to remove a section of carpet next to the baby’s changing table, which investigators believed contained semen. D was charged with four counts of aggravated sexual assault of a child under age six. At trial, the State was able to corroborate Count Three—the nursery in­ci­dent—by analyzing the fluid found next to the changing table, confirming it was seminal fluid, and comparing it with a DNA sample from D. However, the State’s computer-forensics expert was unable to recover any evidence from D’s computer or memory card. According to the expert, D used a computer program to irretrievably delete files on his computer and erase the contents of his memory card. The jury convicted D of all four counts and sentenced D to life confinement on each count.

        “We granted the State’s petition for review to decide whether the corpus delicti rule was satisfied in this case, and whether the rule continues to serve its intended purpose in this state’s jurisprudence. We decide that a strict application of the corpus delicti rule is unnecessary when a defendant confesses to multiple criminal offenses within a single criminal episode or course of conduct if the crimes confessed to are sufficiently proximate that the underlying policy reasons for the rule are not violated. As a result, we will reverse the judgment of the court of appeals and reinstate the judgment of the trial court.” Retroactive application of the decision recognizing a closely related crimes exception to the corpus delicti rule did not violate D’s due-process rights; the court’s decision was a routine exercise of common law decision-making in which it brought the law into conformity with reason and common sense.

Where D was convicted of DWI, the evidence was sufficient to find that he operated his vehicle because he was found asleep in the driver’s seat of a running truck parked off the roadway and was the only person in the area. Murray v. State, 457 S.W.3d 446 (Tex.Crim.App. 2015).

        A jury convicted D of misdemeanor driving while intoxicated. D appealed that there was legally insufficient evidence adduced at trial to prove beyond a reasonable doubt that, for purposes of the DWI statute, he was operating a vehicle. COA agreed and rendered an acquittal. CCA granted the State’s petition for review on the sole question of whether “a driver who is passed out behind the wheel of a running vehicle [is] ‘operating’ it for the purposes of DWI.” CCA reversed COA and remanded.

        “Based on Appellant’s admission that he had been drinking, [officer]’s observation that Appellant appeared ‘very intoxicated,’ and the fact that no alcoholic beverages were found in the vicinity, a fact-finder could have reasonably inferred that Appellant consumed alcoholic beverages to the point of in­toxication somewhere other than where he was found. Furthermore, because Appellant was the only person found in the area, a fact-finder could have also reasonably inferred that Appellant drove his vehicle to the location at which he was found after drinking to intoxication.”

Trial court properly refused to appoint an expert to examine the meth at issue but abused its discretion in denying both inspection and testing at D’s expense. Ehrke v. State, 459 S.W.3d 606 (Tex.Crim.App. 2015).

        A jury convicted D of possession of between one and four grams of methamphetamine in a drug-free zone and, because of two enhancement allegations and the drug-free-zone allegation, assessed a sentence of 75 years in prison. D appealed, contending that the trial court erred when it denied his motion to make an independent examination of the alleged methamphetamine. COA overruled this issue. CCA reversed and remanded.

        The trial court erred by refusing to allow D’s counsel to obtain an independent analysis of the methamphetamine, as permitted under Tex. Code Crim. Proc. art. 39.14, because D was not required to meet a minimum threshold showing in or­der to be permitted to have an independent expert analyze the methamphetamine. The trial court did not err by refusing to appoint an independent chemist to retest the weight and composition of the methamphetamine because D’s motion failed to make a preliminary showing of a significant issue of fact as it provided no concrete reasoning for why D needed an independent chemical analysis of the methamphetamine. He did not set forth any reason to doubt the analysis by the original chemist or that the substance was meth­amphetamine.

Text messages were properly admitted into evidence under Tex. R. Evid. 901 based on complainant’s testimony. Butler v. State, 459 S.W.3d 595 (Tex.Crim.App. 2015).

        D was convicted of the aggravated kidnapping of his girlfriend. D appealed that the trial court admitted certain text messages into evidence that were not properly authenticated. The State introduced the text messages through the girlfriend, who testified that D had called her from that number on past occasions, that the content and context of the text messages con­vinced her that the messages were from him, and that he called her from that same number during the text message ex­change. Relying on Tienda v. State, 358 S.W.3d 633 (Tex.Crim.App. 2012), COA held that the girlfriend’s testimony did not adequately authenticate the messages. Finding that the trial court erred by admitting the messages and that their admission into evidence was not harmless, COA reversed D’s conviction. CCA granted the State’s petition to examine COA’s application of Tienda. CCA reversed COA.

        CCA analyzed the testimonial authentication of the messages, including a Tienda analysis of how complainant could have known it was D sending the messages, and concluded that “[t]he State could have endeavored to make all of these circumstantial indicia of authenticity more explicit and less am­biguous than it did. However, under the circumstances presented in this case, we cannot agree with the court of appeals that the trial court abused its discretion to conclude that there was sufficient evidence to support a jury finding that the text messages were indeed what the State and [complainant] purported them to be—namely, a text-message exchange between [complainant] and Appellant.”

CCA denied D’s subsequent habeas application and motion to stay D’s execution. Ex parte Pruett, 458 S.W.3d 535 (Tex.Crim.App. 2015).

        In 2002, D was found guilty of capital murder and sentenced to death. CCA affirmed on direct appeal. D filed his ini­tial habeas application in the convicting court, and CCA subsequently denied relief. D filed a subsequent habeas application, and CCA said it failed to satisfy Tex. Code Crim. Proc. art. 11.071 § 5(a), and dismissed it. In April 2015, D filed in CCA a motion for leave to file a petition for a writ of prohibition and a petition for a writ of prohibition. CCA denied leave to file the writ on April 20, 2015.

        On April 17th, D filed in the trial court his second subsequent habeas application, in which he asserted he was entitled to relief under Article 11.073 because, had the results of DNA testing conducted pursuant to a Tex. Code Crim. Proc. ch. 64 motion been available at trial, it was likely the jury would not have convicted him. CCA denied the application:

        “In May 2013, applicant filed in the trial court a motion for post-conviction DNA and palm-print testing under Chapter 64 of the Texas Code of Criminal Procedure. The trial court granted that testing. However, the results of the testing were inconclusive, and the trial judge found that it was not reasonably probable that applicant would have been acquitted had the new results been available at trial. Applicant appealed that decision to this Court, and, after reviewing the issue de novo, we affirmed. . . . Article 11.073, by its language, applies to relevant scientific evidence that was not available to be offered by a convicted person at the convicted person’s trial. Article 11.073 provides that a court may grant relief on an application for a writ of habeas corpus if a person (1) files an application containing specific facts indicating that (A) relevant scientific evidence is currently available that was not available at the time of trial because it was not ascertainable, and (B) the scientific evidence would be admissible at trial, and (2) the court makes the above findings and also finds that, had the evidence been presented at trial, ‘on the preponderance of the evidence the person would not have been convicted.’ Because both the trial court and this Court during the 2013 Chapter 64 proceedings found that the inconclusive DNA evidence did not support a reasonable probability that applicant would have been acquitted had that evidence been available at his trial, applicant is foreclosed from obtaining relief under Article 11.073. Therefore, applicant is denied relief in this subsequent writ application, and his motion to stay his execution is denied. No motions for rehearing will be entertained[.]”

CCA denied D’s subsequent habeas application and motion to stay D’s execution. Ex parte Pruett, 458 S.W.3d 537 (Tex.Crim.App. 2015).

        In a separate opinion handed down this day, April 24th, CCA denied relief on D’s second subsequent habeas application, in which he asserted he was entitled to relief because, had the results of DNA testing been available at trial, it was likely that the jury would not have convicted him. (See previous case.)

        On April 20th, D filed in the trial court this third subsequent habeas application, in which he asserted he was entitled to relief under Article 11.073 because, had a 2009 National Academy of Sciences report been available, which, he asserted, could have discredited the testimony regarding tape comparisons, the jury would not have convicted him. CCA found that D failed to satisfy Article 11.071 § 5 and Article 11.073(c). Accordingly, CCA dismissed the application as an abuse of the writ without reviewing the merits of the claim, and denied his motion to stay the execution under Article 11.071 § 5(c).

In a murder trial, people who participated in substance-abuse treatment with D were properly permitted to testify that he confessed to them because D’s participation in the program, although bargained for as part of a plea agreement, was involuntary; D agreed to participate only to avoid a trial and incarceration. Absalon v. State, 460 S.W.3d 158 (Tex.Crim.App. 2015).

        In 2012, D was convicted of a 1984 murder. During D’s trial, several people who had participated in substance-abuse treatment with him were permitted to testify that he had confessed to them that he committed the murder. D filed a pretrial motion to suppress the testimony on the ground that because his statements were made during the course of voluntary substance abuse treatment, Tex. Code Crim. Proc. art. 38.101 and Tex. Evid. R. 509(b) made them inadmissible. The trial court, however, denied his motion because his participation was part of a court-ordered condition of probation and, therefore, not voluntary. COA affirmed, and CCA granted D’s petition to de­termine whether COA erred in concluding his participation in the substance-abuse program was involuntary. CCA affirmed COA.

        D’s participation in the Straight, Inc., substance-abuse program, although bargained for as part of a plea agreement, was not voluntary for the purposes of Rule 509(b) and Article 38.101. Therefore, it was not error for the trial court to admit the testimony of other participants in the program who heard D admit to the murder.

Court of Appeals

Trial court erred by cumulating D’s sentences and ordering he serve them consecutively because Tex. Penal Code § 3.03(b) unambiguously provided that a sentence for compelling prostitution could not be stacked with a sentence for sexual assault of a child when the offenses arose from the same criminal episode and were prosecuted in a single criminal action. Miles v. State, Nos. 14-14-00154-CR, 14-14-00155-CR (Tex.App.—Houston [14th Dist] June 16, 2015).

        The trial court did not abuse its discretion during the guilt phase by excluding evidence of complainant’s social media posts and related testimony where the trial court reasonably could have concluded that the evidence did not prove complainant’s “sexuality” or any type of propensity to engage in prostitution and would not have diminished her credibility with respect to the sexual assault. COA affirmed the judgment as modified.

The affidavits used to support the issuance of warrants that permitted search of D’s truck, trailer, and a rental car were insufficient; however, the erroneous admission of the evidence did not contribute to D’s conviction. Taunton v. State, No. 06-14-00159-CR (Tex.App.—Texarkana June 19, 2015), pet. refused.

        The affidavits stated that three people had been murdered and that D was charged with capital murder, therefore, the magistrate could have arguably concluded that a specific offense had been committed; however, one could not discern from the four corners of the affidavits how blood evidence, firearms, ammunition, carpet, the victims’ cell phones, or credit/debit cards would be evidence of the offenses to which reference was made in the affidavits. The evidence produced from the searches was peripheral and cumulative; the State’s case against D was very strong, even in its absence.

Trial court erred by refusing to include D’s requested instruction on unanimity in the charge where the State presented three scenarios that would have permitted the jury to convict defendant of assault. Ansari v. State, No. 04-14-00728-CR (Tex.App.—San Antonio Aug 5, 2015).

        The error was not harmless because the charge as a whole never mentioned incident-unanimity, the State referenced two of the alleged assaults in his closing argument, the evidence presented by the State concerned three separate instances of assault but D was charged with only one count of assault, the contradictions in the evidence between the two witnesses and law enforcement and photographs impeached the testimony of the eyewitnesses, and the State addressed all three assaults in its opening argument. COA reversed and remanded.

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