September 2018 SDR – Voice for the Defense Vol. 47, No. 7

Voice for the Defense Volume 47, No. 7 Edition

Editor: Michael Mowla

From Editor Michael Mowla:

        1. I summarize each opinion in a manner that allows readers to generally use this SDR instead of reading every opinion.

        2. If you determine that a summarized opinion is relevant to one of your cases, I urge you to read the opinion and not rely solely upon these summaries.

        3. The summaries reflect the facts and relevant holdings and do not reflect my opinion of whether the cases correctly: (1) recite the facts presented at trial; or (2) apply the law. My opinions (if any) are preceded by “Editor’s Note.”

        4. This SDR is for you. Send me suggestions on how I may improve it.

Supreme Court of the United States

Editor’s note: The SCOTUS is on summer break until the end of September.

United States Court of Appeals for the Fifth Circuit

United States v. Anchundia-Espinoza, No. 17-40584, 2018 U.S. App. LEXIS 20921 (5th Cir. July 27, 2018) (designated for publication) [§ 3553(f) safety valve and minor-participant adjustment]

        A district court’s legal interpretation of a statutory provision is reviewed de novo, and factual findings are reviewed for clear error, and if the district court’s account of the evidence is plausible considering the entire record, the court may not reverse even if had it been sitting as trier of fact, it might have weighed the evidence differently

        Per the safety valve provision of U.S.S.G. § 5C1.2, a court may sentence a defendant below the statutory minimum sentence if he meets the criteria under 18 U.S.C. § 3553(f): (1) the defendant does not have more than 1 criminal history point; (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) concerning the offense; (3) the offense did not result in any death or serious bodily injury; (4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense and was not engaged in a continuing criminal enterprise; and (5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information does not preclude a determination by the court that the defendant has complied with this requirement.

        Under U.S.S.G. § 5C1.2(a), the § 3553(f) safety valve applies only to offenses under 21 U.S.C. § 841, § 844, § 846, § 960, or § 963, and the court will not deviate from this list.

        The defendant bears the burden of proving by a preponderance of the evidence that a requested adjustment to the total offense level is warranted.

        Whether a defendant was a minor or minimal participant is a factual determination that is reviewed for clear error.

        A minor-participant adjustment is not appropriate simply because a defendant does less than other participants. To qualify as a minor-participant, a defendant must have been peripheral to the advancement of the illicit activity. Determining minor-participation is a sophisticated factual determination made by the sentencing judge.

        Under U.S.S.G. §5C1.2(a), the §3553(f) safety valve applies only to offenses

Editor’s Note: U.S.S.G. § 5C1.2 is sometimes not much of a safety valve.

United States v. Brown, No. 17-40740, 2018 U.S. App. LEXIS 21713 (5th Cir. Aug. 6, 2018) (designated for publication) [Venue for a false-statement crime under 18 U.S.C. § 1001]

        Under 18 U.S.C. § 1001, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the U.S. government knowingly and willfully: (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry, commits a crime punishable by up to 5 years in prison. Making a false statement to a federal credit institution can be tried under § 1001.

        Under 18 U.S.C. § 3237, any offense begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed. Any offense involving the use of the mails, transportation in interstate or foreign commerce, or the importation of an object or person into the United States is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be prosecuted in any district from, through, or into which such commerce, mail, or imported object or person moves.

        Venue for a crime committed under 18 U.S.C. § 1001 can be the district where the false statement was made or originated or where the false statement was received by the U.S. government.

Erickson v. Davis, No. 16-20651, 2018 U.S. App. LEXIS 18840 (5th Cir. July 11, 2018) (designated for publication) [SOL and tolling under 28 U.S.C. § 2244 for petitions filed under 28 U.S.C. § 2254]

        Under 28 U.S.C. § 2244(d)(1)(A), a prisoner in state custody must file a federal petition under 28 U.S.C. § 2254 within one year from the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. Under 28 U.S.C. § 2244(d)(2), this SOL is tolled during the pendency of a properly filed application for State postconviction or other collateral review.

        A conviction becomes “final” 30 days after the final ruling of a Texas court of appeals when a petitioner does not file a PDR or 90 days after the final ruling of the TCCA when a petitioner does not file a petition for writ of certiorari.

        A decision becomes “final” by the conclusion of direct review or the expiration of the time for seeking such review. Because “direct review” includes a petition for certiorari to the SCOTUS, the conclusion of “direct review” is when the SCOTUS either rejects the petition for certiorari or rules on its merits. Under Jimenez v. Quarterman, 555 U.S. 113 (2009), a conviction is not “final” if it is still capable of modification through direct appeal to the SCOTUS on certiorari review. If the conviction does not become final by the conclusion of direct review, it becomes final by the expiration of the time for seeking such review.

United States v. Halverson, No. 17-40661, 2018 U.S. App. LEXIS 21065 (5th Cir. July 30, 2018) (designated for publication) [5-level enhancement under U.S.S.G. § 2G2.2(b)(3)(B) for distributing child porn and restitution]

        Sentencing decisions are reviewed by: (1) determining whether the district court committed a significant procedural error by reviewing the district court’s application of the sentencing guidelines de novo and factual findings for clear error; if there was a procedural error, remand is required unless the government can establish that the error was harmless (the harmless-error doctrine applies only if the proponent of the sentence convincingly demonstrates that the district court would have imposed the same sentence: (i) had it not made the error, and (ii) for the same reasons it gave at sentencing. The government must point to evidence showing that the district court had a certain sentence in mind and would have imposed it notwithstanding the error); and (2) if there is no procedural error or the error was harmless, the Court reviews the substantive reasonableness of the sentence under an abuse-of-discretion standard.

        Defendants who knowingly use peer-to-peer file sharing software engage in the kind of distribution contemplated by U.S.S.G. § 2G2.2(b)(3)(B): “distributed in exchange for any valuable consideration” means the defendant agreed to an exchange with another person under which the defendant knowingly distributed for the specific purpose of obtaining something of valuable consideration from that other person such as child pornographic material, preferential access to child pornographic material, or access to a child.

        The test for applying the 5-level enhancement under U.S.S.G. § 2G2.2(b)(3)(B) for distributing child porn to others requires a court to find by a preponderance of the evidence: (1) the defendant agreed to an exchange with another person, (2) the defendant knowingly distributed child pornography to that person (3) for obtaining something of valuable consideration, and (4) the valuable consideration came from that person.

        Under 18 U.S.C. § 2259, restitution is mandatory and a defendant must pay the victim “the full amount of the victim’s losses” that includes: (A) medical services for physical, psychiatric, or psychological care; (B) physical and occupational therapy or rehabilitation; (C) necessary transportation, temporary housing, and child care expenses; (D) lost income; (E) attorneys’ fees and other costs incurred; and (F) other losses suffered by the victim as a proximate result of the offense.

        Under Paroline v. United States, 134 S.Ct. 1710 (2014), restitution payments are limited to the extent the offense proximately caused losses. A district court must assess from available evidence the significance of the defendant’s conduct considering the broader causal process that produced the victim’s losses. This determination cannot be a precise mathematical inquiry but instead involves the use of discretion and sound judgment.

United States v. Ponce, No. 17-20329, 2018 U.S. App. LEXIS 20409 (5th Cir. July 23, 2018) (designated for publication) [Illegal reentry under 8 U.S.C. § 1326]

        Arguments raised for the first time in a reply brief are forfeited.

        An offense under 8 U.S.C. § 1326 (illegal reentry after deportation) begins at the time the defendant illegally reenters the country and does not become complete unless or until the defendant is found by [immigration authorities] in the United States.

United States v. Robles-Avalos & Guevara-Lopez, Nos. 17-50633 & 17-51037 (5th Cir. July 12, 2018) (designated for publication) [Roving patrols at the border and Fourth Amendment]

        For reasonable suspicion to stop a vehicle while on roving patrol, an agent must be aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicle’s occupant is engaged in criminal activity

        Under United States v. Olivares-Pacheco, 633 F.3d 399, 402 (5th Cir. 2011), and United States v. Brignoni-Ponce, 422 U.S. 873, 884–885 (1975), to determine whether reasonable suspicion existed for a stop near the border by a roving patrol, a court must consider: (1) the area’s proximity to the border; (2) the characteristics of the area; (3) usual traffic patterns; (4) the experience of the agents in detecting illegal activity; (5) the driver’s behavior; (6) the aspects or characteristics of the vehicle; (7) information about recent illegal trafficking of aliens or narcotics in the area; and (8) the number of passengers and their appearance and behavior. Based on these factors, a court considers the totality of the circumstances to see whether the agent had a particularized and objective basis for his suspicion. The agent may draw on his experience and specialized training to make inferences from and deductions about the cumulative information available to him that might elude an untrained person.

United States v. Smith, No. 17-30065, 2018 U.S. App. LEXIS 19283 (5th Cir. July 13, 2018) (designated for publication) [Faretta and post-waiver right to counsel]

        Under the Sixth Amendment, in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel. A defendant may waive this right and proceed pro se. Once he does so, ordinarily the waiver can be withdrawn and the right to counsel can be reasserted.

        The postwaiver right to counsel is not unqualified. A defendant is not entitled to choreograph special appearances by counsel, repeatedly alternate his position on counsel to delay his trial, or otherwise obstruct the orderly administration of justice. However, a trial court must have some basis for concluding that a defendant is attempting to delay or obstruct the proceedings and determine whether appointing counsel will require delay. Even where a defendant is vigorously attempting to delay the start of trial, a district court cannot deny his motion to be represented by counsel without reason to think that the representation would impede the orderly administration of justice. If no delay is required for a defendant to exercise his right to counsel, the defendant shall have the option to be represented by counsel to the extent that he can do so without interrupting the orderly processes of the court.

Editor’s note: Under Faretta v. California, 422 U.S. 806 (1975), if: (1) a defendant clearly and unequivocally declares to a trial judge that he wants to represent himself and does not want counsel, (2) the record affirmatively shows that a defendant is literate, competent, and understanding and that he is voluntarily exercising his informed free will, and (3) the trial judge warns the defendant that he thinks it is “a mistake not to accept the assistance of counsel” and that the defendant will “be required to follow all the ‘ground rules’ of trial procedure,” the right of self-representation cannot be denied.

United States v. Spalding, No. 16-10289, 2018 U.S. App. LEXIS 17422 (5th Cir. June 26, 2018) (designated for publication) [Wire & mail fraud, false statement during bankruptcy proceeding, sufficiency of the evidence, no Fifth Amendment right against uncompelled testimony, and summary charts]

        Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), when reviewing the sufficiency of the evidence, a court view all evidence, whether circumstantial or direct, in the light most favorable to the government, with all reasonable inferences and credibility choices to be made in support of the jury’s verdict. The jury retains the sole authority to weigh any conflicting evidence and to evaluate the credibility of witnesses. Evidence is sufficient to support a conviction if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The inquiry is limited to whether the jury’s verdict was reasonable, not whether the reviewing court believes it to be correct.

        Under 18 U.S.C. § 1343, wire fraud requires: (1) a scheme to defraud; (2) the use of, or causing the use of, wire communications to execute the scheme; and (3) a specific intent to defraud. Under 18 U.S.C. § 1341, mail fraud is the same as wire fraud ex­cept the second element involves “use of the mails” (not wires) to execute the scheme. Showing a “scheme to defraud” requires proof that a defendant made a false or fraudulent material misrepresentation.

        Under 18 U.S.C. § 152(2), a person gives false testimony during a bankruptcy proceeding if: (1) there is a bankruptcy proceeding; (2) a statement was made under penalty of perjury in a bankruptcy proceeding; (3) the statement concerned a material fact; (4) the statement was false; and (5) the defendant made it knowingly and fraudulently.

        Review of suppression motions on appeal requires: (1) the merits (factual findings get clear-error deference and legal conclusions de novo), and (2) injury (whether the violation was harmless beyond a reasonable doubt).

        Under Roberts v. United States, 445 U.S. 552, 559 (1980), the Fifth-Amendment privilege is not “self-executing.” If a defendant desires the protection of the privilege, he must claim it, or his statements will not be considered “compelled” under the Fifth Amendment.

        Admission of evidence is reviewed for abuse of discretion. If there is error, it is excused unless it had a substantial and injurious effect or influence in determining the jury’s verdict.

        Under Fed. Rule Evid. 1006, a party may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. Rule 1006 applies to summary charts based on evidence previously admitted but which is so voluminous that in-court review by the jury would be inconvenient. Such charts are admissible when: (1) they are based on competent evidence already before the jury, (2) the primary evidence used to construct the charts is available to the other side for comparison so that the correctness of the summary may be tested, (3) the chart preparer is available for cross-examination, and (4) the jury is properly instructed concerning use of the charts. Because a chart admitted under Rule 1006 is substantive evidence, jurors may bring it to the deliberation room. Because summaries are elevated under Rule 1006 to the position of evidence, care must be taken to omit argumentative matter in their preparation unless the jury believes that such matter is itself evidence of the assertion it makes. Courts must be scrupulous in assuring that the summary accurately portrays the contents of the underlying material and guard against summaries that contain argument.

        The presence of an inference in a summary chart is not per se prejudicial. There is no harm if the exhibit does not suggest any conclusions unsupported by the evidence, the district court properly instructs the jury, and the defendant conducts a “full cross-examination” of the chart’s author

United States v. Swenson, No. 17-20131, 2018 U.S. App. LEXIS 18184 (5th Cir. July 3, 2018) (designated for publication) [Discovery sanctions and dismissal with prejudice]

        Under Brady v. Maryland, 373 U.S. 83 (1963), and Youngblood v. West Virginia, 547 U.S. 867, 869 (2006), the government violates a defendant’s due process rights if it withholds evidence that is favorable and material irrespective of the good faith or bad faith of the prosecution. To prevail on a Brady claim, a defendant must show: (1) the evidence at issue was fa­vor­able to the accused, either because it was exculpatory or impeaching; (2) the evidence was suppressed by the prosecution; and (3) the evidence was material. Brady extends to impeachment evidence as well as exculpatory evidence.

        Evidence that is turned over to the defense before or dur­ing trial is not considered suppressed. When a defendant challenges the late production of impeachment evidence, the analysis turns on whether the defendant was prejudiced by the tardy disclosure. If the defendant received the material in time to put it to effective use at trial, his conviction should not be reversed because it was not disclosed as early as it might have and, indeed, should have been. Mere speculation that a trial might have gone differently is insufficient to show the requisite prejudice from a tardy disclosure.

        A district court has broad discretion when deciding whether to impose sanctions for discovery violations. Before em­ploying sanctions, it must consider: (1) the reasons why disclosure was not made; (2) the amount of prejudice to the opposing party; (3) the feasibility of curing such prejudice with a continuance of the trial; and (4) any other relevant circumstances. If the district court decides to sanction a party, it should impose the least severe sanction that will accomplish the desired result, which is prompt and full compliance with the court’s discovery orders.

        Even in the case of the most egregious prosecutorial misconduct, an indictment may be dismissed only upon a showing of actual prejudice to the accused. Mere error or oversight is neither gross negligence nor intentional misconduct. Whether the court is acting under its supervisory authority or its duty to protect the constitutional rights of defendants, an indictment may be dismissed only where the case has been unfairly prejudiced.

United States v. Villafranco-Elizondo, No. 17-30530, 2018 U.S. App. LEXIS 20938 (5th Cir. July 27, 2018) (designated for publication) [Reasonable suspicion to prolong a traffic stop and drug-dog’s failure to alert]

        Under Terry v. Ohio, 392 U.S. 1 (1968), the legality of a traffic stop is considered by asking whether the: (1) initial stop was valid; and (2) officer’s subsequent actions were reasonably related to the circumstances that justified the stop, or to dispelling his reasonable suspicion developed during the stop.

        A lawful traffic stop must be based on an objectively reasonable suspicion that some sort of illegal activity, such as a traffic violation, occurred or is about to occur. District courts must consider the facts and circumstances of each case, giving due regard to the experience and training of the law enforcement officers, to determine whether the actions taken by the officers, including the length of the detention, were reasonable under the circumstances. Subjective motivations of police are irrelevant so long as their conduct does not exceed what they are objectively authorized to do.

        A traffic stop may only last so long as is reasonably necessary to effectuate the purpose of the stop. Once the purpose justifying the stop has been served, the detained person must be free to leave. But, officers have some latitude when speaking to a suspect during a routine traffic stop. A police officer may examine the driver’s license and registration and run a computer check to investigate whether the driver has outstanding warrants and if the vehicle is stolen. An officer may also ask about the purpose and itinerary of his trip. However, the permissible duration of the stop is limited to the time reasonably necessary to complete a brief investigation within the scope of the stop. An officer may ask questions outside the scope but only so long as such questions do not extend the duration of the stop. It is the length of the detention, not the questions asked, that makes a stop unreasonable.

        In a traffic stop, once all relevant computer checks have come back clean, there is no more reasonable suspicion and continued questioning unconstitutionally prolongs the detention. Where the officer develops reasonable suspicion of another crime during the traffic stop, he may prolong the detention until he has dispelled that newly-formed suspicion

        Failure of a drug dog to alert does not deprive officers of existing probable cause.

United States v. Winchel, No. 16-11208, 2018 U.S. App. LEXIS 19511 (5th Cir. July 17, 2018) (designated for publication) [Restitution under Paroline and 18 U.S.C. § 2259]

        Under Paroline v. United States, 134 S.Ct. 1710 (2014), though it need not be exact, a district court’s restitution order should represent an application of law, “not a decisionmaker’s caprice.”

        Under 18 U.S.C. § 2259, a district court “shall order restitution” for certain offenses, including those listed in § 2251. The order of restitution must cover “the full amount of the victim’s losses as determined by the court,” and “victim” includes a minor’s guardians. Losses include costs incurred for psychiatric and psychological care, rehabilitation, necessary transportation, lost income, attorneys’ fees, and any other losses suffered by the victim as a proximate result of the offense. The government bears the burden of proving the amount of the loss sustained by the victim.

        An order of restitution that exceeds the victim’s actual losses or damages is an illegal sentence.

Texas Court of Criminal Appeals

Editor’s note: The TCCA is on summer break.

Texas Courts of Appeals

DPS v. L.V., No. 03-17-00809-CV, 2018 Tex. App. LEXIS 6152 (Tex. App. Austin August 7, 2018) (designated for publication) [Restricted appeals; record required during expunction hearing]

        Under Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014), to prevail on a restricted appeal, DPS must establish that: (1) it filed notice of the restricted appeal within six months after judgment was signed; (2) it was a party to the un­derlying lawsuit; (3) it did not participate in the hearing that resulted in the complained-of judgment and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. The “face of the record” is all papers on file in the appeal that were before the trial court including the reporter’s record.

        Under Tex. Code Crim. Proc. Art. 55.01(a)(2), a petitioner seeking expunction must prove: (1) he has been released; (2) the charge, if any, has not resulted in final conviction; (3) the charge, if any, is no longer pending; and (4) there was no court-ordered community supervision under Chapter 42A.

        An evidentiary hearing on a petition for expunction is required unless the trial court has at its disposal all the information it needs to resolve the issues in the petition for expunction; for example, through pleadings, summary judgment proof, or by judicially noticed court records. Without a reporter’s record from the hearing, however, an appellate court cannot know what evidence, if any, was introduced. The appellate court cannot determine whether the evidence was sufficient to support the order of expunction. Nor can it evaluate whether the expunction decision was based on a misinterpretation of the expunction statute or on the evidence before it.

Dunham v. State, No. 14-17-00098-CR, 2018 Tex. App. LEXIS 5149 (Tex. App. Houston [14th Dist.] July 10, 2018) (designated for publication) [Tex. Penal Code § 32.42 is a circumstances-of-conduct offense that does not require unanimity on the criminal act committed and focuses on what the defendant did “during the course of business.”]

        Under Tex. Penal Code § 32.42(b)(7) & (9) & (12), a person commits an offense if during the course of business he intentionally, knowingly, recklessly, or with criminal negligence commits one or more of the following deceptive business practices: (7) representing that a commodity or service is of a certain style, grade, or model if it is of another; (9) representing the price of property or service falsely or in a way tending to mislead; or (12) making a materially false or misleading statement: (A) in an advertisement for the purchase or sale of property or service; or (B) otherwise in connection with the purchase or sale of property or service. “Business” includes trade and commerce and advertising, selling, and buying service or property.

        Tex. Penal Code § 32.42 criminalizes conduct both leading up to and during the completion of a business transaction. It can be committed in all aspects of the transaction and is not excused merely by a signature on a contract stating appropriate terms. The relevant inquiry is not what the complainant knew at the time she signed the contract but focuses on what the defendant did (what he represented) “during the course of business.”

        Under Young v. State, 341 S.W.3d 417, 423 (Tex. Crim. App. 2011), there are three categories of criminal offenses: result of conduct, nature of conduct, and circumstances of conduct.

        Under O’Brien v. State, 544 S.W.3d 376, 382 (Tex. Crim. App. 2018), a jury must reach a unanimous verdict. Jurors must agree that the defendant committed one specific crime, but not that the defendant committed the crime in one specific way or even with one specific act. Jurors must agree on each essential element of the crime. Unanimity is not violated when the jury charge presents the jury with the option of choosing among various alternative manner and means of committing the same statutorily defined offense. A court determines what the jury must be unanimous about by conducting a statutory analysis that ascertains the focus or gravamen of the offense. If the gravamen of the crime is the nature of the conduct, the jury must be unanimous about the specific criminal act committed. If the gravamen of the crime is a circumstance surrounding the conduct, unanimity is required about the existence of the circumstance of the offense.

        Under O’Brien, 544 S.W.3d at 384, determining the gravamen of an offense is a question of the Legislature’s intent. To determine the intent, a court looks to the text: If the plain language is clear and unambiguous, the analysis ends because the Legislature must be understood to mean what it expressed. Every word, phrase, and clause should be given effect if reasonably possible.

        Under Pizzo v. State, 235 S.W.3d 711, 714 (Tex. Crim. App. 2007), a court examines a statute to determine whether the Legislature created (1) multiple, separate offenses, or (2) a single offense with different methods or means of commission.

        Under O’Brien, 544 S.W.3d at 386, the eighth-grade-grammar test focuses on the statutory verb and its direct object. The elements include the subject (defendant); the main verb; the direct object if the main verb requires a direct object (the offense is a result-oriented crime); and the specific occasion (the date phrase within the indictment narrowed to one specific incident regardless of the date alleged). Adverbial phrases introduced by the preposition “by” describe the manner and means of committing the offense and are not the gravamen nor elements on which the jury must be unanimous. Nature-of-conduct offenses use different verbs in different subsections to indicate that the Legislature intended to punish distinct types of conduct.

        Tex. Penal Code § 32.42 is a circumstances-of-conduct offense that does not require unanimity on the criminal act committed.

Green v. State, No. 14-17-00112-CR, 2018 Tex. App. LEXIS 5221 (Tex. App. Houston [14th Dist.] July 12, 2018) (designated for publication) [No prejudice under Strickland if a defendant instructs trial counsel not to offer mitigating evidence]

        A trial court’s ruling on an MNT is reviewed for an abuse of discretion. A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner or without reference to any guiding rules or principles. When deciding whether the trial court abused its discretion, the reviewing court considers the evidence in the light most favorable to the trial court’s ruling and defers to its credibility determinations. The reviewing court presumes that the trial court implicitly made all reasonable factual findings that could have been made in support of its ruling and will conclude that the trial court abused its discretion only if no reasonable view of the record could support its ruling.

        Under Strickland v. Washington, 466 U.S. 668, 687 (1984), and Harrington v. Richter, 562 U.S. 86, 112 (2011), to show ineffective counsel, a defendant must prove by a preponderance of the evidence that trial counsel’s performance was deficient and so prejudicial that it deprived him of a fair trial. To establish prejudice, the defendant must show a reasonable probability that, but for trial counsel’s deficient performance, the result of the proceeding would have been different. The likelihood of a different result must be substantial, not just conceivable.

        Under Schriro v. Landrigan, 550 U.S. 465, 475 (2007), as a matter of law, a defendant cannot show that he was prejudiced when he instructs trial counsel not to offer mitigating evidence.

Hinojosa v. State, No. 01-16-00516-CR, 2018 Tex. App. LEXIS 4822 (Tex. App. Houston [1st Dist.] June 28, 2018) (designated for publication) [Waiver of jury trial, venue and location of underlying acts for Continuous Sexual Abuse under Tex. Penal Code § 21.02(b)]

        Under Hobbs v. State, 298 S.W.3d 193, 197 (Tex. Crim. App. 2009), and Tex. Code Crim. Proc. Art. 1.13(a), a defendant facing felony charges may waive his right to a jury trial. The record must reflect that he made an express, knowing, and in­telligent waiver in person, in writing, and in open court. Because neither the Texas nor federal constitution require that this waiver be written, a violation of this aspect of Art. 1.13(a) constitutes a statutory rather than a constitutional error. When there is no written jury waiver, a defendant is not harmed by the violation if the record otherwise reflects that he knew about his right to a jury trial and he waived this right.

        Under Tex. Rule App. Proc. 44.2(b), the standard of review for nonconstitutional errors requires a reviewing court to disregard the error unless it affected the appellant’s substantial rights.

        Where a judgment states that the defendant waived his right to a jury trial, and the defendant does not present evidence to the contrary, a court presumes that the defendant knew of his right to a jury trial and waived it.

        Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), and Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010), to determine whether evidence is legally sufficient, a reviewing court determines whether, after viewing the evidence in the light most favorable to the verdict, the trier of fact was rationally justified in finding the essential elements of the crime beyond a reasonable doubt. The reviewing court considers events occurring before, during, and after the commission of the offense and may rely on actions of the defendant that show an understanding and common design to do the prohibited act. It is not required that each fact “point directly and independently to the guilt of the appellant” if the cumulative force of all the incriminating circumstances is sufficient to support the conviction.

        Under Schmutz v. State, 440 S.W.3d 29, 34 (Tex. Crim. App. 2014), venue is not a “criminative fact” and therefore is not an element of an offense for purposes of evaluating legal sufficiency.

        Under Tex. Penal Code § 21.02(b), a person is guilty of continuous sexual abuse of a child if: (1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; and (2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age, regardless of whether the actor knows the age of the victim at the time of the offense. An “act of sexual abuse” includes aggravated kidnapping, indecency with a child, sexual assault, aggravated sexual assault, burglary (if the actor intended to commit one of the four previously listed offenses), sexual performance of a child, trafficking for sexual purposes, and compelling prostitution. Tex. Penal Code § 21.02(c).

        Under Price v. State, 434 S.W.3d 601, 605–606 (Tex. Crim. App. 2014), the State may seek one conviction under Tex. Penal Code § 21.02 for multiple acts of sexual abuse over an extended time. The location of the sexual acts is not an element of the offense, so the statute does not require all elements of the offense to be committed in one county.

In re The State of Texas, No. 08-18-00070-CR, 2018 Tex. App. LEXIS 5444 (Tex. App. El Paso July 18, 2018) (designated for publication) [Mandamus, defense right to evidence under Tex. Code Crim. Proc. Arts. 39.15 & 38.45]

        Under In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex.Crim.App. 2013), to be entitled to mandamus relief, the relator must show that: (1) he has no adequate remedy at law; and (2) what he seeks to compel is a ministerial act. The ministerial act requirement is satisfied if the relator can show a clear right to the relief sought. A clear right to relief is shown when the facts and circumstances dictate but one rational decision under unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources), and clearly controlling legal principles.

        The State has no remedy by appeal because under Tex. Code Crim. Proc. Art. 44.01, the State’s right to appeal does not include the type of order entered by the court during the trial of this case. Mandamus relief is appropriate if the State establishes it has a clear right to the relief sought.

        Under Tex. Code Crim. Proc. Art. 39.15, a court shall deny any request by a defendant to copy, photograph, duplicate, or otherwise reproduce material (depicting child pornography or a CAC interview) provided that the state makes the property or material reasonably available to the defendant. Such material is “reasonably available” if at a facility under the control of the state the state provides ample opportunity for the inspection, viewing, and examination of the property or material by the defendant, defendant’s attorney, and an expert.

        Under Tex. Code Crim. Proc. Art. 38.45, during a criminal proceeding, the court may not make available or allow to be made available for copying or dissemination to the public material (depicting child pornography or a CAC interview) The court shall place such material under seal on conclusion of the proceeding. The State, the defendant, or expert shall be provided access to this material. The court may issue an order lifting the seal if it finds that doing so is in the best interest of the public.

        By its plain language, Art. 38.45 prohibits a trial court from allowing property or materials that constitute child pornography to be copied during a criminal proceeding.

        Under Tex. Rule Evid. 611 and Dang v. State, 154 S.W.3d 616, 619 (Tex. Crim. App. 2005), trial courts have broad discretion in managing the course of a trial generally by exercising reasonable control over the mode and order of examining witnesses and presenting evidence to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment. The trial court has the power and obligation to control the courtroom for ascertaining the truth, promoting judicial economy, and protecting witnesses. Rule 611 does not authorize a court to dictate the form a party’s evidence must take unless the order accomplishes one of the goals described in Rule 611.

West v. State, No. 14-17-00094-CR & 14-17-00095-CR, 2018 Tex. App. LEXIS 5215 (Tex. App. Houston [14th Dist.] July 12, 2018) (designated for publication) [Admission of prior convictions under Tex. Code Crim. Proc. Art. 38.37 § 2(b)]

        Under Tex. Code Crim. Proc. Art. 38.37 § 2(b), notwithstanding Tex. Rule Evid. 404 and 405, and subject to Tex. Code Crim. Proc. Art. 38.37 § 2-a, evidence that a defendant has com­mitted certain offenses against a child may be admitted in the trial of a defendant for indecency with a child for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.

        Under Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007), review of a trial court’s decision to admit evidence is for abuse of discretion.

        When evidence is admitted under Tex. Code Crim. Proc. Art. 38.37 § 2(b), the trial court still must conduct a Rule 403 balancing test upon proper objection or request, which au­tho­rizes a court to exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence. In overruling a Rule 403 objection, a trial court is presumed to have performed the balancing test and determined that the evidence was admissible. It is the defendant’s burden to demonstrate that the danger of unfair prejudice substantially outweighs the probative value.

        In reviewing the trial court’s balancing determination under Rule 403, a court reverses rarely and only after a clear abuse of discretion.

        Under Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006), in determining whether the trial court abused its discretion in admitting the evidence over a 403 objection, the court balances the inherent probative force of the proffered item of evidence along with the proponent’s need for that evidence against (1) any tendency of the evidence to suggest decision on an improper basis; (2) any tendency of the evidence to confuse or distract the jury from the main issues; (3) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence; and (4) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.

        Remoteness can lessen significantly the probative value of extraneous-offense evidence. Remoteness alone does not require the trial court to exclude evidence of an extraneous offense under Rule 403 but is one aspect of an offense’s probativeness the trial court is to consider along with the other factors.

Michael Mowla
Michael Mowla
Michael Mowla’s office is in Dallas. He is Board Certified in Criminal Appellate Law by the Texas Board of Legal Specialization. He represents clients at trial, on appeal, and on postconviction habeas corpus. He also handles complex state and federal civil litigation and appeals of civil cases. He may be contacted at 972-795-2401, , and

Michael Mowla’s office is in Dallas. He is Board Certified in Criminal Appellate Law by the Texas Board of Legal Specialization. He represents clients at trial, on appeal, and on postconviction habeas corpus. He also handles complex state and federal civil litigation and appeals of civil cases. He may be contacted at 972-795-2401, , and

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