September 2020 SDR – Voice for the Defense Vol. 49, No. 7

August 27, 2020

Voice for the Defense Volume 49, No. 7 Edition

Editor: Michael Mowla

From Editor Michael Mowla:

Please do not rely solely on the summaries set forth below. The reader is advised to read the full text of each opinion in addition to the brief synopses provided.

TCDLA thanks the Court of Criminal Appeals for graciously administering a grant which underwrites the majority of the costs of our Significant Decisions Report. We appreciate the Court’s continued support of our efforts to keep lawyers informed of significant appellate court decisions from Texas, the United States Court of Appeals for the Fifth Circuit, and the Supreme Court of the United States. However, the decision as to which cases are reported lies exclusively with our Significant Decisions editor. Likewise, any and all editorial comments are a reflection of the editor’s view of the case, and his alone.

Supreme Court of the United States

Editor’s note: the SCOTUS did not hand down any published criminal cases since the last SDR.

United States Court of Appeals for the Fifth Circuit

United States v. Alvear, 959 F.3d 185 (5th Cir. May 13, 2020) [Good cause to not allow confrontation during a revocation hearing; sufficient indicium of reliability of a declarant’s out-of-court statements]

Under Morrissey v. Brewer, 408 U.S. 471, 488-489 (1972), minimum requirements of due process in parole revocation hearings include the right to confront adverse witnesses unless the judge finds good cause for not allowing confrontation. To determine whether error occurred, the factors are: (1) was the defendant’s right to confront witnesses implicated-was hearsay admitted; and (2) did the government show good cause to overcome the right to confront the hearsay declarant-the court must weigh the defendant’s interest in confrontation against the government’s reasons for pretermitting the confrontation. The Government may prevail when the hearsay testimony has strong indicia of reliability. A defendant’s interest in cross-examination during a supervised release revocation hearing is lessened when he had ample opportunity to refute the Government’s evidence via methods other than cross-examination or if he does not propose an alternative theory of events.
Fear is a valid reason for an alleged domestic violence victim not to testify at a revocation hearing.
A declarant’s out-of-court statements have a sufficient indicium of reliability if corroborated by physical evidence, when made under oath and penalty of perjury such as through a police report, and with no evidence of an ulterior motives.

Facts:

Alvear was convicted of drug crimes and was on supervised release.
Per the probation officer, Alvear violated the terms by: (1) choking his wife Alvarez, (2) failing to file a truthful and complete written report with his officer by falsely claiming he lived with his mom, and (3) failing to inform his officer that he moved in with Alvarez.
The probation officer alleged that Dallas officers responded to a call from Alvarez, who told them that Alvear had choked her the night before. An arrest warrant issued for Alvear for Assault of a family/household member by impeding breath/circulation, an F-3. Alvarez obtained a temporary protective order against Alvear, yet Alvear followed her home from her job for a few weeks, and repeatedly called and texted her.
At the revocation hearing, the court heard testimony from the probation officer and a police officer, which included out-of-court statements by Alvarez. Alvear objected, arguing that he had a right to cross-examine Alvarez. The government presented evidence that Alvarez had reached out to the probation officer multiple times with fears for her safety. The court overruled Alvear’s objection, finding good cause to not allow the cross-examination.
The court found that Alvear committed the supervised release violations by a preponderance of the evidence and sentenced him to 27 additional months in BOP.

The Government showed good cause to not allow the cross-examination

Because Alvear timely objected, review of the district court’s finding of good cause is de novo.
Under Morrissey v. Brewer, 408 U.S. 471, 488-489 (1972), minimum requirements of due process in parole revocation hearings include the right to confront adverse witnesses unless the judge finds good cause for not allowing confrontation. To determine whether error occurred, the factors are: (1) was the defendant’s right to confront witnesses implicated – was hearsay admitted; and (2) did the government show good cause to overcome the right to confront the hearsay declarant – the court must weigh the defendant’s interest in confrontation against the government’s reasons for pretermitting the confrontation. The Government may prevail when the hearsay testimony has strong indicia of reliability. A defendant’s interest in cross-examination during a supervised release revocation haring is lessened when he had ample opportunity to refute the Government’s evidence via methods other than cross-examination or if he does not propose an alternative theory of events.
Still, the government concedes that Alvear’s right to cross-examine was implicated.
Fear is a valid reason for an alleged domestic violence victim not to testify at a revocation hearing.
A declarant’s out-of-court statements have a sufficient indicium of reliability if corroborated by physical evidence, when made under oath and penalty of perjury such as through a police report, and with no evidence of an ulterior motives.
No one testified that they saw Alvarez’s injuries, but her statements were corroborated by physical manifestations of trauma because the police officer saw her the day after the alleged altercation and testified to Alvarez’s mannerisms , nervousness, and crying. Alvear told the probation officer that he physically injured Alvarez-from “passionate touching” rather than alleged choking. Alvear points to no evidence suggesting that Alvarez was motivated to lie. Alvarez’s statements had sufficient indicia of reliability.
There was good cause to forgo cross-examination of Alvarez, and the judgment is affirmed.

Editor’s note: no cross-examination of the complaining witness allowed. How innovative.

United States v. Aparicio-Leon, No. 19-50813, 2020 U.S.App.LEXIS 20413 (5th Cir. June 29, 2020) (designated for publication) [Calculation of base offense level per U.S.S.G. § 2D1.1(a)(5) & (c); meth versus ice; computation of a sentence per 18 U.S.C. § 3585 is BOP’s responsibility]

Under U.S.S.G. § 2D1.1(a)(5) & (c), a defendant convicted under 21 U.S.C. § 841(a) is sentenced based on the Drug Quantity Table in U.S.S.G. § 2D1.1(c). For meth, the base offense level is determined by weight and purity. “Ice” is a mixture or substance containing d-meth hydrochloride of at least 80% purity and is a purer, more potent form of meth. The choice of which multiplier to use is not determined by the indictment. With a mixture or substance containing meth, the offense level used is determined by the weight of the mixture or substance or by the weight of the meth (actual), whichever is greater.
Under United States v. Wilson, 503 U.S. 329, 335 (1992), After a district court sentences an offender, the AG-through BOP-must administer the sentence. Under 18 U.S.C. § 3585, The computation of a sentence requires the BOP to determine its commencement date and the extent to which the defendant receives credit for time spent in custody prior to commencement. A federal sentence commences when the defendant is received in custody awaiting transportation to-or arrives voluntarily to commence service of sentence at-the official detention facility at which the sentence is to be served. In calculating a term of imprisonment, a defendant must be given credit for time he spent in official detention prior to commencement. Because the district court cannot determine the credit at sentencing, the AG must make the determination as an administrative matter. The BOP-not a court-is empowered to calculate 18 U.S.C. § 3585(b) credits after commencement.

Facts:

Aparicio was arrested on December 13, 2018 and indicted in McLennan Co. for Possession of a Controlled Substance (meth) and Evading Arrest. Out of the same incident, he was indicted in federal court under 21 U.S.C. § 841(a) for Possession of a Controlled Substance with intent to distribute at least 500 grams of a mixture or substance containing a detectable amount of meth.
A writ of habeas corpus ad prosequendum issued, ordering the McLennan Co. Sheriff to transfer Aparicio to the U.S. Marshal.
On August 28, 2019, Aparicio was sentenced to 165 months in federal court. Defense counsel requested that the federal sentence run concurrent with any state sentence to be imposed, which was granted per U.S.S.G. § 5G1.3(c). No other objections were made.
Aparicio was returned to Texas custody but has not been sentenced on those charges.

The district court did not error in the calculation of the base offense level

Because Aparicio did not raise these issues in the district court, review is for plain error.

Editor’s note: This is the full relevant law on plain error:

To preserve error, a party must raise an objection that is sufficiently specific to: (1) alert the court to the nature of the error and; (2) provide an opportunity for correction. A party is not required to object in ultra-precise terms but must provide the court an opportunity to adjudicate the issue and cure any alleged breach.
When the defendant does not object to error, plain error review applies. Under Fed. Rule Crim. Proc. 52(b),Molina-Martinez v. United States, 136 S.Ct. 1338 (2016) and United States v. Olano, 507 U.S. 725 (1993), a reviewing court may consider errors that are plain and affect substantial rights even though they are raised for the first time on appeal. The defendant must show that the error: (1) was not intentionally relinquished or abandoned; (2) is plain (clear or obvious); (3) affected substantial rights (must show a reasonable probability that but-for the error, the outcome of the proceeding would have been different); and (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.
Under Rosales-Mireles v. United States, 138 S.Ct. 1897, 1907 (2018), a U.S.S.G.-error that satisfies the first three Olanofactors satisfies the fourth and warrants relief because the plain error establishes a reasonable probability that a defendant will serve a sentence that is more than necessary to fulfill the purposes of incarceration. Additional factors favoring correction are: (1) resentencing is easy; and (2) U.S.S.G.-miscalculations result from judicial error rather than a defendant’s strategy. Where the record is silent as to what the district court might have done had it considered the correct U.S.S.G.-range, the district court’s reliance on an incorrect range in most instances will suffice to show an effect on the defendant’s substantial rights.
Aparicio argues that the district court erred by relying on U.S.S.G. § 2D1.1-characterizing the meth as ice-to calculate the base offense level of 34, and if the calculation were based on the meth mixture, his offense level would have been 30.
Under U.S.S.G. § 2D1.1(a)(5) & (c), a defendant convicted under 21 U.S.C. § 841(a) is sentenced based on the Drug Quantity Table in U.S.S.G. § 2D1.1(c). For meth, the base offense level is determined by weight and purity. “Ice” is a mixture or substance containing d-meth hydrochloride of at least 80% purity and is a purer, more potent form of meth. The choice of which multiplier to use is not determined by the indictment. With a mixture or substance containing meth, the offense level used is determined by the weight of the mixture or substance or by the weight of the meth (actual), whichever is greater.
The Table lists meth, meth (actual), and ice. At least 500 grams but less than 1.5 kg of ice equals a base offense level of 34. The meth seized was d-meth hydrochloride with a net weight of 989 grams and a purity of 97%, so it was appropriately classified as ice. The district court did not err-plainly or otherwise-in applying the undisputed pure meth weight to the Drug Quantity Table to determine Aparicio’s base offense level.
The district court did not err by failing to adjust his sentence to account for time he spent in custody prior to sentencing that he claims will not be credited to his federal sentence by BOP
Under United States v. Wilson, 503 U.S. 329, 335 (1992), After a district court sentences an offender, the AG-through BOP-must administer the sentence. Under 18 U.S.C. § 3585, The computation of a sentence requires the BOP to determine its commencement date and the extent to which the defendant receives credit for time spent in custody prior to commencement. A federal sentence commences when the defendant is received in custody awaiting transportation to-or arrives voluntarily to commence service of sentence at-the official detention facility at which the sentence is to be served. In calculating a term of imprisonment, a defendant must be given credit for time he spent in official detention prior to commencement. Because the district court cannot determine the credit at sentencing, the AG must make the determination as an administrative matter. The BOP-not a court-is empowered to calculate 18 U.S.C. § 3585(b) credits after commencement.
Aparicio has not shown a clear or obvious error. Despite the colloquy about potential credit for time served, neither the oral pronouncement nor written judgment impermissibly attempted to award Aparicio credit for time served or to determine the commencement date. At most, the record suggests that the court imposed a nonbinding recommendation to BOP to account for time.
Aparicio’s sentence is AFFIRMED.

United States v. Burden, No. 19-30394, 2020 U.S.App.LEXIS 20802 (5th Cir. July 2, 2020) (designated for publication) [Severance under Fed. Rule Crim. Proc. 14; “knowingly” mens rea in 18 U.S.C. § 924(a)(2)]

The denial of severance under Fed. Rule Crim. Proc. 14 is reviewed for an abuse of discretion. The appellant must show that the: (1) joint trial prejudiced him to such an extent that the district court could not provide adequate protection; and (2) prejudice outweighed the government’s interest in economy of judicial administration.
Under Richardson v. Marsh, 481 U.S. 200, 206 (1987) and Bruton v. United States, 391 U.S. 123, 135-136 (1968), the Sixth Amendment’s Confrontation Clause requires that a witness whose testimony is introduced at a joint trial is not considered a “witness” against the defendant if the jury is instructed to consider that testimony only against a codefendant. An exception is that when the facially incriminating confession of a nontestifying codefendant is introduced, it is not enough for the jury to be instructed to consider the confession only against the codefendant. Otherwise, even if prejudice is shown, Fed. Rule Crim. Proc. 14 leaves the tailoring of the relief to be granted to the district court’s discretion. Per Zafiro v. United States, 506 U.S. 534, 538-539 (1993), a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial will compromise a specific trial right of a defendant or prevent the jury from making a reliable judgment about guilt or innocence. When the risk of prejudice is high, a district court may determine that separate trials are necessary, but less drastic measures like limiting instructions often suffice to cure risk of prejudice. Juries are presumed to follow instructions.
Under Rehaif v. United States, 139 S.Ct. 2191 (2019), the “knowingly” mens rea in 18 U.S.C. § 924(a)(2) applies to the conduct and status elements in § 922(g). The Government must show that the defendant knew he possessed a firearm and knew he had the status of felon when he possessed it.

Facts:

Officer Barcelona was approaching an intersection when he saw two black males in white t-shirts and blue jean shorts exit an SUV and begin shooting into a Mercedes. When the driver of the SUV saw Barcelona, he fled, leaving the shooters running after it. The occupants of the Mercedes were uninjured.
Barcelona saw that one of the shooters was armed with an AK-47 rifle and all had masks covering their faces. They then ran into a residential block, around which Barcelona and other officers secured a perimeter while awaiting a canine unit.
An officer at the perimeter spotted two black males, fully clothed, come out from behind a residence and run back in. Less than a minute later, two black men came back out naked and were sweating profusely. With hands raised, the men shouted, “we just got robbed.” The officers took them into custody and placed them in the back of a police car.
Inside the perimeter and assisted by a dog tracker, officers recovered plastic masks, a Smith & Wesson 9mm pistol, a Century Arms 7.62x39mm rifle (“AK-47”), two cellphones, a pair of blue jean shorts, a pair of white Nike shoes.
Upon returning to the perimeter, Barcelona went to the police car where he saw Burden wearing only black or dark-colored underwear and socks, and Scott was wearing only blue jean-style shorts. Based on their physical appearance, Barcelona believed they were the ones shooting, though he had not seen their faces uncovered.
DNA and forensic examination linked Burden to one of the weapons and Scott to both phones and a mask. The 19 rounds discharged came from the firearms.
Burden and Scott were charged in an indictment alleging that under 18 U.S.C. § 922(g)(1), they were felons in possession of firearms. The indictment did not allege that they knew of their felon status at the time of possession though both stipulated at trial that they were felons when arrested.
Days after arrest, Burden admitted to the Louisiana Parole Board that he violated conditions parole by possessing a firearm. Scott filed a severance motion, which was denied. The court instructed the jury that it was not to consider Burden’s admission as evidence against Scott. Burden’s statement did not mention Scott.
At trial, evidence was presented establishing that the defendants had claimed that they had been robbed of their clothing. The jury failed to reach a verdict.
Before the second trial, the district court ordered that the parties obtain approval before mentioning or eliciting testimony regarding the supposed robbery. No party objected or sought such approval. The second jury heard nothing about it.
The jury instructions provided that the government must prove that the defendant knew that he possessed a firearm, but not that he knew that he was a qualifying felon.
The second jury found both guilty.
The PSRs recommended finding that the defendants used and possessed the firearms in an attempted first-degree murder.
Neither defendant objected to the PSRs, whose findings the district court adopted.

The district court did not abuse its discretion by denying the motion to sever

The denial of severance is reviewed for an abuse of discretion. The appellant must show that the: (1) joint trial prejudiced him to such an extent that the district court could not provide adequate protection; and (2) prejudice outweighed the government’s interest in economy of judicial administration.
Under Richardson v. Marsh, 481 U.S. 200, 206 (1987) and Bruton v. United States, 391 U.S. 123, 135-136 (1968), the Sixth Amendment’s Confrontation Clause requires that a witness whose testimony is introduced at a joint trial is not considered a “witness” against the defendant if the jury is instructed to consider that testimony only against a codefendant. An exception is that when the facially incriminating confession of a nontestifying codefendant is introduced, it is not enough for the jury to be instructed to consider the confession only against the codefendant. Otherwise, even if prejudice is shown, Fed. Rule Crim. Proc. 14 leaves the tailoring of the relief to be granted to the district court’s discretion. Per Zafiro v. United States, 506 U.S. 534, 538-539 (1993), a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial will compromise a specific trial right of a defendant or prevent the jury from making a reliable judgment about guilt or innocence. When the risk of prejudice is high, a district court may determine that separate trials are necessary, but less drastic measures like limiting instructions often suffice to cure risk of prejudice. Juries are presumed to follow instructions.
The Confrontation Clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction when the confession is redacted to eliminate the defendant’s name and reference to his existence. Burden’s statement did not mention Scott, and other evidence was indeed needed to show the linkage to Scott.

There was no error relating to the defendants’ knowledge that they were felons at the time of the incident

Under Rehaif v. United States, 139 S.Ct. 2191 (2019), the “knowingly” mens rea in 18 U.S.C. § 924(a)(2) applies to the conduct and status elements in § 922(g). The Government must show that the defendant knew he possessed a firearm and knew he had the status of felon when he possessed it.
Burden’s arrest occurred days after he was released on parole for robbery. Scott had been paroled from a suspended prison sentence for burglary months earlier. Both stipulated at trial that they were felons. The notion that either was unaware that he had been convicted of a felony or that the government would have been unable to prove it, is unrealistic.
The judgments and sentences are AFFIRMED.

United States v. Gratkowski, No. 19-50492, 2020 U.S.App.LEXIS 20501 (5th Cir. June 30, 2020) (designated for publication) [no expectation of privacy in Bitcoin blockchain records]

There is no expectation of privacy in Bitcoin blockchain records.
Under Smith v. Maryland, 442 U.S. 735, 743-744 (1979), for the Government to violate the Fourth Amendment, a person must have had a reasonable expectation of privacy in the items at issue. But per the third-party doctrine, a person generally has no legitimate expectation of privacy in information he voluntarily turns over to third parties. Thus, the third-party doctrine applies to call logs because individuals have no expectation of privacy and voluntarily convey numbers to the phone company by placing a call.

Facts:

The FBI began investigating Gratkowski because of a child-porn website (“Website”). To download material, some like Gratkowski paid in Bitcoin, a virtual currency in which each user has at least one “address”-sort of like a bank account number-that is a string of letters and numbers. Users send Bitcoin to other users through addresses using a private key function that authorizes payments. Users download Bitcoin’s software or use a virtual currency exchange like Coinbase. When a user transfers Bitcoin to another address, he transmits a transaction announcement on Bitcoin’s public network-a blockchain. The blockchain contains only the addresses and amount of Bitcoin transferred. The owners of the addresses are anonymous on the blockchain, they can be uncovered by analyzing the blockchain. When an organization creates multiple Bitcoin addresses, it often combines them into a central address-a “cluster.” It is possible to identify a cluster of addresses held by one organization by analyzing the blockchain’s transaction history using open source tools and private software products.
Agents used an outside service to analyze the publicly viewable blockchain and identify a cluster of addresses controlled by the Website. Agents served a grand jury subpoena on Coinbase for information on the Coinbase customers whose accounts had sent Bitcoin to addresses in the Website’s cluster. Coinbase identified Gratkowski as a customer. Agents obtained a search warrant for Gratkowski’s house and found a hard drive containing child porn, and Gratkowski admitted to being a Website customer.
The Government charged Gratkowski with one count of receiving child porn and one count of accessing websites with intent to view child porn.
Gratkowski filed a MTS the warrant, arguing that the subpoena to Coinbase violated the Fourth Amendment. The district court denied the motion. Gratkowski entered a conditional guilty plea to both counts, reserving the right to appeal the denial of the MTS.

There is no expectation of privacy in Bitcoin blockchain records

A district court’s ruling on a MTS is reviewed de novo for questions of law and clear error for factual findings. A denial of a MTS is upheld if there is any reasonable view of the evidence to support it. The evidence is reviewed in the light most favorable to the prevailing party.
Under Smith v. Maryland, 442 U.S. 735, 743-744 (1979), for the Government to violate the Fourth Amendment, a person must have had a reasonable expectation of privacy in the items at issue. But per the third-party doctrine, a person generally has no legitimate expectation of privacy in information he voluntarily turns over to third parties. Thus, the third-party doctrine applies to call logs because individuals have no expectation of privacy and voluntarily convey dialed numbers to the phone company by placing a call.
Under United States v. Miller, 425 U.S. 435, 439-440 (1976), bank records are not subject to Fourth Amendment protections because they are not confidential communications but negotiable instruments with information voluntarily conveyed to the banks.
An exception to the third-party doctrine exists with cellphones per Carpenter v. United States, 138 S.Ct. 2206, 2217 (2018) because unlike call logs, which reveal little identifying information, and checks, which are not confidential communications but negotiable instruments used in commercial transactions, CSLI provides officers with an all-encompassing record of the holder’s whereabouts and provides an intimate window into a person’s life, revealing movements and through them their familial, political, professional, religious, and sexual associations. Cellphones have become almost a feature of human anatomy because they are carried all the time.
There is no expectation of privacy in Bitcoin blockchain records because they reveal only: (1) the amount of Bitcoin transferred, (2) the Bitcoin address of the sending party, and (3) the Bitcoin address of the receiving party. The information is limited. Transacting through Bitcoin is not a pervasive or insistent part of daily life and requires an affirmative act by the Bitcoin address holder. Bitcoin users are unlikely to expect that information published on the Bitcoin blockchain will be kept private. It is well known that Bitcoin transactions are recorded in a publicly available blockchain that is accessible to every Bitcoin user.
The district court’s denial of the MTS is affirmed.

United States v. Reyes, 960 F.3d 697 (5th Cir. June 5, 2020) [Reasonable suspicion to prolong a traffic stop to call a K9 unit; Miranda applies only to a formal arrest]

Under Rodriguez v. United States, 575 U.S. 348, 354 (2015), after lawfully stopping a driver for a traffic violation, an officer’s actions must be reasonably related in scope to the circumstances that justified the stop of the vehicle. The stop may last no longer than necessary to address the violation. Constitutional authority for the seizure ends when tasks tied to the traffic infraction are-or reasonably should have been-completed. Tasks include checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting registration and proof of insurance. Officers may ask questions unrelated to the stop while waiting for computer checks to process but must diligently pursue the investigation of the traffic violation. Investigation unrelated to the safe operation of the vehicle is allowed only if it does not lengthen the detention or is supported by reasonable suspicion of additional criminal activity. If the officer develops reasonable suspicion of such activity before the initial purpose of the stop is fulfilled, the detention may continue until the new reasonable suspicion has been dispelled or confirmed.
Under Kansas v. Glover, 140 S.Ct. 1183, 1187 (2020) and Terry v. Ohio, 392 U.S. 1, 21 (1968), a mere hunch doesnot create reasonable suspicion. The officer must point to specific and articulable facts which-taken together with rational inferences from those facts-reasonably warrant the intrusion. Courts look at the totality of the circumstances to determine whether an officer had a particularized and objective basis for suspecting criminal activity. Factors that by themselves appear innocent may in the aggregate rise to reasonable suspicion. Relevant are events leading up to the search and the decision of whether these events-viewed from the standpoint of an objectively reasonable police officer-amount to reasonable suspicion.
Under Berkemer v. McCarty, 468 U.S. 420, 440 (1984), a person detained in a routine traffic stop is not “in custody” for Miranda, which applies only once a suspect’s freedom of action is curtailed to a degree associated with formal arrest.

Facts:

Officer Windham stopped Reyes, informed her she was speeding, and requested her driver’s license and registration. Reyes said that she was trying to get her kids to school. There were no passengers in her truck, which had a temporary Oklahoma tag. Reyes said the kids were in Abilene, 15 miles ahead.
Windham asked Reyes to accompany him to his patrol car while he looked her up. Reyes refused. Windham explained that he completes traffic stops in his patrol car for safety-to avoid being hit by vehicles and because he doesn’t know what may be inside the driver’s vehicle. And, it was very cold.
Reyes asked, “What about the truck”? Windham answered that it could stay parked where it was. As Reyes sat down in the passenger seat of the patrol car, she locked her truck. Windham-who had never seen anyone lock her vehicle during a traffic stop-suspected that Reyes was trying to hide something illegal.
Windham asked Reyes where she was heading, and she said “this address” as she scrolled through her phone to find it. Windham asked, “I thought you said you were taking the kids to school.” Reyes responded, “ Not my kids. My kids are in Grand Prairie. I’m helping a friend take her kids to school. She doesn’t have a car.” Reyes said that she started her trip in Grand Prairie, and Windham asked, “What time did you leave?” Reyes replied, “About three hours ago or so.” Because Reyes purported to travel three hours to take kids to school, Windham could tell something was “not right.”
Windham asked who owned the truck, and Reyes replied that it was her ex-husband’s. Based on his training, education, and experience, Windham knew that narcotics couriers often use vehicles registered to others to avoid forfeiture.
Windham asked Reyes if she had ever been arrested. She stated for DWI. Windham asked whether there was anything illegal in the truck. Reyes’s facial expressions changed dramatically, and her eyes shifted from Windham to the front windshield as she shook her head and said, “No. There shouldn’t be. It’s brand new.”
Windham asked, “you drove all the way from Prairie to take these kids to school for this lady?” Reyes replied that she previously had a relationship with the woman in prison and the woman’s husband was going to be at work. Windham told Reyes that she wasn’t going to make it in time to take the kids to school. Reyes changed her story again, claiming that she was going to Abilene just to see her.
Reyes refused to give consent to search the truck because it was not hers. Windham explained that she could grant consent because she had control of it. Reyes refused.
At that point-8:30 into the stop-Windham informed Reyes that he was going to call a K9 unit to perform a free-air sniff. If the dog detected, he would have probable cause to search inside. Windham asked Reyes whether she had weapons. She had only a wallet and pack of cigarettes in her pockets. She asked if she could smoke, and Windham agreed. Reyes said she didn’t have a lighter on her. He asked if she had one in the truck, and Reyes said she did not know. Windham found it odd that Reyes declined to retrieve her lighter because a smoker never turn down his offer to smoke.
Reyes admitted that in addition to the DWI, she had been arrested for warrants related to tickets, and for a pill found in her ex-girlfriend’s vehicle, a story that evolved into an arrest for meth.
Within minutes, a canine unit arrived and conducted the sniff. The dog alerted to a controlled substance. Windham searched and found 127.5 grams of meth and a loaded handgun.
A grand jury indicted Reyes. She filed a MTS, arguing that Windham did not have reasonable suspicion to extend the stop for the canine sniff, and that she was entitled to Miranda warnings when Windham directed her into his patrol car. The district court denied the MTS, finding that Windham had a reasonable suspicion to extend the traffic stop until a K-9 unit arrived, and that Reyes was not in custody for Miranda purposes.
Reyes pleaded guilty to Conspiracy to Distribute and Possess with Intent to Distribute 50 grams or more of meth in per 21 U.S.C. § 846 but reserved her right to appeal the denial of the MTS.

The officer had reasonable suspicion to extend the stop

A district court’s ruling on a MTS is reviewed de novo for questions of law and clear error for factual findings. A denial of a MTS is upheld if there is any reasonable view of the evidence to support it. The evidence is reviewed in the light most favorable to the prevailing party.
Under Rodriguez v. United States, 575 U.S. 348, 354 (2015), after lawfully stopping a driver for a traffic violation, an officer’s actions must be reasonably related in scope to the circumstances that justified the stop of the vehicle. The stop may last no longer than necessary to address the violation. Constitutional authority for the seizure ends when tasks tied to the traffic infraction are-or reasonably should have been-completed. Tasks include checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting registration and proof of insurance. Officers may ask questions unrelated to the stop while waiting for computer checks to process but must diligently pursue the investigation of the traffic violation. Investigation unrelated to the safe operation of the vehicle is allowed only if it does not lengthen the detention or is supported by reasonable suspicion of additional criminal activity. If the officer develops reasonable suspicion of such activity before the initial purpose of the stop is fulfilled, the detention may continue until the new reasonable suspicion has been dispelled or confirmed.
Under Kansas v. Glover, 140 S.Ct. 1183, 1187 (2020) and Terry v. Ohio, 392 U.S. 1, 21 (1968), a mere hunch does notcreate reasonable suspicion. The officer must point to specific and articulable facts which-taken together with rational inferences from those facts-reasonably warrant the intrusion. Courts look at the totality of the circumstances to determine whether an officer had a particularized and objective basis for suspecting criminal activity. Factors that by themselves appear innocent may in the aggregate rise to reasonable suspicion. Relevant are events leading up to the search and the decision of whether these events-viewed from the standpoint of an objectively reasonable police officer-amount to reasonable suspicion.
These specific and articulable facts support Windham’s suspicion: Reyes drove a truck registered in someone else’s name, with a temporary plate for a different state, and in Windham’s experience, couriers often drive vehicles registered to other people to avoid forfeiture; Reyes took unusual measures to protect the truck by first refusing to exit it and locking it even though an officer was immediately behind it; Reyes offered inconsistent and implausible stories about her travel; Reyes had a conviction for possession of meth; when Windham asked Reyes whether there was anything illegal in the truck-a “yes or no” question-her facial expressions changed dramatically and she said, “There shouldn’t be. It’s brand new.”; Windham drew on his training, education, and experience in narcotics interdiction to surmise his suspicion that Reyes was participating in a crime. These articulable facts combine to establish reasonable suspicion.

Reyes was not entitled to Miranda warnings

Under Berkemer v. McCarty, 468 U.S. 420, 440 (1984), a person detained in a routine traffic stop is not “in custody” for Miranda, which applies only once a suspect’s freedom of action is curtailed to a degree associated with formal arrest.
Because the traffic stop did not have the quality of a formal arrest, Miranda does not apply.
The conviction and sentence are affirmed.

Texas Court of Criminal Appeals

Editor’s note: the TCCA did not hand down any published opinions since the last SDR.

Texas Courts of Appeals

State v. Colby, No. 03-19-00710-CR, 2020 Tex.App.-LEXIS 4890 (Tex.App.-Austin June 25, 2020) (DWI) [Warrantless traffic stops; stopping in an intersection under Tex. Transp. Code § 545.302]

Under State v. Cortez, 543 S.W.3d 198, 204 (Tex.Crim.App. 2018) and Abney v. State, 394 S.W.3d 542, 548 (Tex.Crim.App. 2013), when an officer stops a defendant without a warrant, the State has the burden of proving the reasonableness of the stop at a suppression hearing. An officer may make a warrantless traffic stop if the reasonable suspicion standard is satisfied. Reasonable suspicion exists if the officer has specific articulable facts that-when combined with rational inferences from those facts-would lead him to reasonably suspect that a person has engaged, is engaged, or soon will be engaging in criminal activity.
Under Tex. Transp. Code § 545.302(a)(3), an operator of a motor vehicle commits an offense if he stops in an intersection. But under Tex. Transp. Code § 545.302(f), drivers may stop in an intersection under certain circumstances, including when necessary to avoid conflict with other traffic.

Facts:

The evidence at the MTS hearing showed that Officer Garza was on night patrol driving east on Blue Clearing Way towards the intersection with Highlands Boulevard, which had a stop sign. Highlands Boulevard is a four-lane road, with two northbound and two southbound lanes. Blue Clearing Way is a two-lane road, one eastbound and one westbound.
Garza did not come to a complete stop untilhe was beyond the stop sign and in the intersection because he claimed he wanted to get a better view of cross-traffic, which was obscured by foliage.
Garza observed a vehicle approaching the intersection from Highlands Boulevard, which did not have a stop sign. The vehicle came to a complete stop in the intersection and flashed his brights to signal to Garza that he can go ahead. When Garza did not, the driver proceeded through the intersection north on Highlands.
Garza turned onto Highlands Boulevard and initiated a traffic-stop. The basis was Tex. Transp. Code § 545.302(a)(3), which prohibits a driver from stopping in an intersection.
The trial court granted the MTS, concluding that Colby’s actions were reasonable under the circumstances since Colby attempted to yield to a marked police vehicle.

The trial court did not abuse its discretion in granting the MTS

Editor’s note: this is the relevant law on the standard of review for a MTS:

Under State v. Cortez, 543 S.W.3d 198, 203 (Tex.Crim.App. 2018), review of a trial court’s ruling on a MTS is for an abuse of discretion. The record is viewed in the light most favorable to the trial court’s ruling and the judgment is reversed only if it is outside the zone of reasonable disagreement.
Under Crain v. State, 315 S.W.3d 43, 48 (Tex.Crim.App. 2010), Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000) and Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997), a ruling on a MTS is reviewed under a bifurcated standard of review: almost total deference to the trial court’s determination of historical facts that turn on credibility and demeanor, de novo on other application-of-law-to-fact issues, nearly total deference to application-of-law-to-fact questions (mixed questions of law and fact) if their resolution turns on an evaluation of credibility and demeanor, and de novo on mixed questions of law and fact if their resolution does not turn on an evaluation of credibility and demeanor. Under Osbourn v. State, 92 S.W.3d 531, 538 (Tex.Crim.App. 2002) and State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App. 2008), the trial court’s decision must be affirmed if it is correct on any theory of law that finds support in the record.
Under State v. Cortez, 543 S.W.3d 198, 204 (Tex.Crim.App. 2018) and Abney v. State, 394 S.W.3d 542, 548 (Tex.Crim.App. 2013), when an officer stops a defendant without a warrant, the State has the burden of proving the reasonableness of the stop at a suppression hearing. An officer may make a warrantless traffic stop if the reasonable suspicion standard is satisfied. Reasonable suspicion exists if the officer has specific articulable facts that-when combined with rational inferences from those facts-would lead him to reasonably suspect that a person has engaged, is engaged, or soon will be engaging in criminal activity.
Under Tex. Transp. Code § 545.302(a)(3), an operator of a motor vehicle commits an offense if he stops in an intersection. But under Tex. Transp. Code § 545.302(f), drivers may stop in an intersection under certain circumstances, including when necessary to avoid conflict with other traffic.
Colby’s action was reasonable under the circumstances because Garza’s patrol car was stopped in the intersection and Colby was attempting to yield to Garza’s marked police vehicle. The totality of the circumstances and the record supports the trial court’s finding that Colby’s stopping inside the intersection was an attempt to yield to Garza’s patrol vehicle, which Garza should have realized was permitted under the Transportation Code to avoid “conflict with other traffic.”
The trial court did not abuse its discretion in granting the MTS, and the State’s sole issue is overruled.

State v. Dean, No. 14-19-00306-CR to 14-19-00313-CR, 2020 Tex.App.-LEXIS 4195 (Tex.App.-Houston [14th Dist.] May 28, 2020) (designated for publication) [State’s right to appeal under Tex. Code Crim. Proc. Art. 44.01(a)(1)]

Under Tex. Code Crim. Proc. Art. 44.01(a)(1) and State v. Rosseau, 396 S.W.3d 550, 555 (Tex.Crim.App. 2013), the State may appeal an order of a court if it dismisses an indictment, information, or complaint or any portion of an indictment, information, or complaint.
A trial court does not dismiss an indictment, information, or complaint or any portion of an indictment, information, or complaint if it grants a motion concluding that juvenile court abused its discretion by transferring the case to the district court.

Facts:

Dean was charged in juvenile court with Aggravated Robbery and Assault of a Public Servant. The State filed a petition for discretionary transfer to a district court per Tex. Fam. Code § 54.02, alleging probable cause that Dean committed the offenses and asked the juvenile court to waive its jurisdiction.
After a hearing, the juvenile court waived its exclusive jurisdiction and transferred Dean to the district court. Dean waived his right to immediately appeal the waiver of jurisdiction and discretionary transfer. Dean was indicted in district court for Aggravated Robbery and Assault of a Public Servant.
On March 11, 2019, Dean filed a Motion in Bar of Prosecution for Lack of Jurisdiction, arguing: the juvenile court’s stated reasons for waiver were supported by insufficient evidence so it abused its discretion by waiving jurisdiction; the State failed to prove that it was not practicable to prosecute Dean as a juvenile; the juvenile court abused its discretion by certifying Dean as an adult because of the lack of evidence underlying the decision, including the State’s failure to provide the juvenile court with all of Dean’s school records; the expert’s conclusions did not support the decision with respect to Dean’s lack of maturity given the failure to consider all education records; and Dean’s right to trial by jury was violated by the transfer contrary to Apprendi v. New Jersey, 530 U.S. 466 (2000) since the exposure to adult punishment greatly exceeds the maximum punishment as a juvenile.
The district court granted the motion in its entirety.
The State filed notices of appeal.

The court of appeals lacks jurisdiction over the appeal

Under Tex. Code Crim. Proc. Art. 44.01(a)(1) and State v. Rosseau, 396 S.W.3d 550, 555 (Tex.Crim.App. 2013), the State may appeal an order of a court if it dismisses an indictment, information, or complaint or any portion of an indictment, information, or complaint.
A trial court does not dismiss an indictment, information, or complaint or any portion of an indictment, information, or complaint if it grants a motion concluding that juvenile court abused its discretion by transferring the case to the district court.
The district court did not dismiss the indictments against Dean when it granted the Motion in Bar of Prosecution. It merely decided that the juvenile court abused its discretion by transferring the case to the district court. The State’s appeal is not permitted under Art. 44.01(a)(1). The appeal is dismissed for lack of jurisdiction.

Harvey v. State, No. 01-19-00032-CR, 2020 Tex.App.-LEXIS 4565 (Tex.App.-Houston [1st Dist.] June 18, 2020) (designated for publication) (Assault and Aggravated Sexual Assault) [Requirement of plea of “not guilty” or “guilty”; plea of guilty in open court per Tex. Code Crim. Proc. Arts. 27.13 & 27.17; presumption of regularity and truthfulness of final judgments per Tex. Rule App. Proc. 44.2(c)]

Under Lumsden v. State, 384 S.W.2d 143, 144 (Tex.Crim.App. 1964), a plea must be entered in every criminal case. If no plea is entered, the trial is a nullity because there is no issue for the jury or court. Under Tex. Code Crim. Proc. Arts. 27.13 & 27.17, a plea of guilty or nolo contendere in a felony case must be made in open court by the defendant in person. If the defendant refuses to plead, the plea of not guilty shall be entered for him by the court. A plea of not guilty is construed to be a denial of every material allegation in the indictment or information.
Under Breazeale v. State, 683 S.W.2d 446, 450-451 (Tex.Crim.App. 1984), recitals in a judgment create a presumption of regularity and truthfulness that are binding unless there is direct proof of falsity. The accused bears the burden of proving that the recital is false.
Under Tex. Rule App. Proc. 44.2(c), unless a matter was disputed in the trial court or the record affirmatively shows the contrary, the court of appeals presumes that the defendant pleaded to the charging instrument.

Facts:

Harvey was indicted for 3 counts of felony Assault by strangulation and 1 count of Aggravated Sexual Assault against C.D. (ex-girlfriend). Harvey sent letters to the trial court indicating that he was willing to admit he assaulted C.D. but denied committing Aggravated Sexual Assault.
Harvey signed a waiver of arraignment. Harvey sent two mor letters to the trial court stating that he admitted to assaulting C.D. but denied sexually assaulting her.
At the plea hearing, Harvey pleaded guilty to the Assault in exchange for 8 years in TDCJ and not guilty to the Aggravated Sexual Assault. Harvey signed a waiver of jury trial for the Aggravated Sexual Assault and was admonished by the trial court. The record is silent as to whether Harvey entered a plea to the Aggravated Sexual Assault.
After the TBC on the Aggravated Sexual Assault, the trial court found Harvey guilty and sentenced him to 15 years in TDCJ to run concurrent with the sentence for the Assault. The judgment of conviction shows that Harvey pleaded “not guilty.”

Harvey failed to overcome the presumption of regularity and truthfulness in the judgment

Under Lumsden v. State, 384 S.W.2d 143, 144 (Tex.Crim.App. 1964), a plea must be entered in every criminal case. Ifno plea is entered, the trial is a nullity because there is no issue for the jury or court. Under Tex. Code Crim. Proc. Arts. 27.13 & 27.17, a plea of guilty or nolo contendere in a felony case must be made in open court by the defendant in person. If the defendant refuses to plead, the plea of not guilty shall be entered for him by the court. A plea of not guilty is construed to be a denial of every material allegation in the indictment or information.
Under Breazeale v. State, 683 S.W.2d 446, 450-451 (Tex.Crim.App. 1984), recitals in a judgment create a presumption of regularity and truthfulness that are binding unless there is direct proof of falsity. The accused bears the burden of proving that the recital is false.
Under Tex. Rule App. Proc. 44.2(c), unless a matter was disputed in the trial court or the record affirmatively shows the contrary, the court of appeals presumes that the defendant pleaded to the charging instrument.
The record shows that Harvey did not intend to plead guilty to Aggravated Sexual Assault and wished to have a TBC. The court must presume that the trial court’s written recital in the judgment that Harvey pleaded “not guilty” to aggravated sexual assault is truthful. The record supports the presumption of regularity and truthfulness, and Harvey failed to carry his burden of proving that the trial court’s recital in the judgment was false.
The judgment of conviction is affirmed.

State v. Heredia, No. 03-19-00633-CR, 2020 Tex.App.-LEXIS 4177 (Tex.App.-Austin May 28, 2020) (designated for publication) (Pretrial Habeas Corpus, State’s appeal) [State’s preservation of a portion of a charging instrument; when jeopardy attaches; judicial estoppel]

Under Ex parte Preston, 833 S.W.2d 515, 518 (Tex.Crim.App. 1992), to preserve a portion of a charging instrument for a later trial, before jeopardy attaches the State must: (1) take affirmative action, (2) on the record, (3) to dismiss, waive or abandon that portion of the instrument, and (4) obtain permission from the trial court.
Under Crist v. Bretz, 437 U.S. 28, 38 (1978) and Hill v. State, 90 S.W.3d 308, 313 (Tex.Crim.App. 2002), in a jury trial, jeopardy attaches when the jury is impaneled. After jeopardy attaches, any charge that is dismissed, waived, abandoned-or which the jury returns an acquittal-may not be retried.
Under Johnson v. State, 436 S.W.2d 906, 908 (Tex.Crim.App. 1968), the State may-with the court’s consent-dismiss, waive, or abandon a portion of the indictment. If the dismissal, waiver, or abandonment occurs after jeopardy attaches, the State is barred from later litigating the allegations.
Under New Hampshire v. Maine, 532 U.S. 742, 749-750 (2001) and Schmidt v. State, 278 S.W.3d 353, 358 & n.9 (Tex.Crim.App. 2009), judicial estoppel is an equitable doctrine invoked by a court at its discretion to prevent a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase. Courts consider three factors when deciding whether to invoke judicial estoppel: (1) a party’s later position is clearly inconsistent with its earlier position; (2) whether the party succeeded in persuading a court to accept the earlier position, so judicial acceptance of an inconsistent position in a later proceeding creates the perception that either the first or the second court was misled. Absent success in a prior proceeding, a party’s later inconsistent position introduces no risk of inconsistent court determinations and poses little threat to judicial integrity; and (3) whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not Judicial estoppel is not intended to punish inadvertent omissions or inconsistencies but to prevent parties from playing fast and loose with the system for their benefit.

Facts:

Heredia was indicated for Murder (Count I), Tampering with a Corpse (Count II), and Tampering with Physical Evidence (Counts III- VIII). The State proceeded to trial only on the Murder. The jury acquitted Heredia and convicted him of the lesser-included offense of Manslaughter and assessed punishment at 20 years in TDCJ.
The State then sought to try Heredia for the Tampering. Heredia filed an application for writ of habeas corpus, asserting that the prosecution is barred by Double Jeopardy because to prosecute the Tampering charges, the State had to have abandoned or dismissed them prior to jeopardy attaching in the Murder trial.
At the hearing, the ADA admitted that it “held” the other cases for a later trial and defense counsel had not agreed to the severance but argued that all counts be tried together. The district court granted the application.

The district court did not err in granting Heredia’s application for writ of habeas corpus

Under Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex.Crim.App. 2006), a ruling on a habeas-corpus application is reviewed for an abuse of discretion. The evidence is considered in the light most favorable to the ruling with deference to the trial court’s resolution of factual disputes. When the facts are undisputed and the resolution of the ultimate question turns on an application of legal standards, review is de novo.
Under Ex parte Preston, 833 S.W.2d 515, 518 (Tex.Crim.App. 1992), to preserve a portion of a charging instrument for a later trial, before jeopardy attaches the State must: (1) take affirmative action, (2) on the record, (3) to dismiss, waive or abandon that portion of the instrument, and (4) obtain permission from the trial court.
Under Crist v. Bretz, 437 U.S. 28, 38 (1978) and Hill v. State, 90 S.W.3d 308, 313 (Tex.Crim.App. 2002), in a jury trial, jeopardy attaches when the jury is impaneled. After jeopardy attaches, any charge that is dismissed, waived, abandoned-or which the jury returns an acquittal-may not be retried.
Under Johnson v. State, 436 S.W.2d 906, 908 (Tex.Crim.App. 1968), the State may-with the court’s consent-dismiss, waive, or abandon a portion of the indictment. If the dismissal, waiver, or abandonment occurs after jeopardy attaches, the State is barred from later litigating the allegations.
Here, nothing in the trial or habeas records show that the State took any affirmative action “on the record” to preserve the Tampering charges for a later prosecution. The discussion of the charges and the trial court’s informal grant of permission for the State to proceed only on the Murder charge took place off the record, in chambers, without the defendant present.
The district court did not err in granting Heredia’s application for writ of habeas corpus.

Judicial estoppel does not apply

Under New Hampshire v. Maine, 532 U.S. 742, 749-750 (2001) and Schmidt v. State, 278 S.W.3d 353, 358 & n.9 (Tex.Crim.App. 2009), judicial estoppel is an equitable doctrine invoked by a court at its discretion to prevent a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase. Courts consider three factors when deciding whether to invoke judicial estoppel: (1) a party’s later position is clearly inconsistent with its earlier position; (2) whether the party succeeded in persuading a court to accept the earlier position, so judicial acceptance of an inconsistent position in a later proceeding creates the perception that either the first or the second court was misled. Absent success in a prior proceeding, a party’s later inconsistent position introduces no risk of inconsistent court determinations and poses little threat to judicial integrity; and (3) whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not Judicial estoppel is not intended to punish inadvertent omissions or inconsistencies but to prevent parties from playing fast and loose with the system for their benefit.
During the Murder trial, the State presented extraneous-offense evidence related to the Tampering charges to prove Heredia’s state of mind during the alleged murder. Defense counsel responded by eliciting testimony and arguing that Heredia could be prosecuted for Tampering at a later trial, telling the jury that Tampering is not the case before it.
Defense counsel’s jury arguments cannot be said to have been successful or gave him an “unfair advantage” over the State. Nothing in the record suggests that the jury’s decision was influenced by arguments regarding the Tampering charges.

State v. Hunter, No. 03-18-00424-CR, 2020 Tex.App.-LEXIS 4420 (Tex.App.-Austin May 29, 2020) (designated for publication) (Solicitation to Commit Capital Murder) [Death of an unborn child under Tex. Penal Code § 19.06 is not an offense; motion to quash indictment, statutory construction]

Under Tex. Penal Code § 19.06, and Lawrence v. State, 240 S.W.3d 912, 915 (Tex.Crim.App. 2007), Chapter 19 (homicide offenses) does not apply to the death of an unborn child if the conduct charged is: (1) conduct committed by the mother of the unborn child; (2) a lawful medical procedure performed by a licensed health care provider with consent, if the death was the intended result (abortion); (3) a lawful medical procedure performed by a licensed health care provider with consent as part of an assisted reproduction per Tex. Fam. Code § 160.102; or (4) the legal dispensation or administration of a drug.
The mother of an unborn child cannot commit homicide by ending the child’s life based on acts described in Tex. Penal Code § 19.06. Because such conduct is not a crime, another person cannot solicit the mother to commit conduct toward the unborn child that is capital murder.
Under State v. Ross, 573 S.W.3d 817, 820 (Tex.Crim.App. 2019), the sufficiency of a charging instrument is a question of law that is reviewed de novo. The trial court’s ruling is upheld if correct under any theory of law applicable to the case.
Under Lang v. State, 561 S.W.3d 174, 179-180 (Tex.Crim.App. 2018) and Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991), statutes are construed by looking to their literal text and attempting to discern its fair, objective meaning when enacted because this is the only definitive evidence of what the legislators intended. If the meaning of the statutory text-when read using established canons of construction-should have been plain to the legislators, a court gives effect to the plain meaning. A court presumes that every word is used for a purpose and that each word, phrase, clause, and sentence is given effect if reasonably possible. Words and phrases are read in context and construed using rules of grammar and common usage. If a statute’s language is ambiguous or application of the plain meaning would lead to an absurd result that the Legislature could not possibly have intended, only then may a court consider extratextual factors like executive or administrative interpretations or legislative history. Statutory construction is a question of law reviewed de novo.
Under Bien v. State, 550 S.W.3d 180, 186 (Tex.Crim.App. 2018), Criminal Solicitation of Capital Murder requires proof that-under the circumstances as the defendant believed them to be-the conduct solicited is Capital Murder.

Facts:

Hunter was indicted for Criminal Solicitation to commit Capital Murder per Tex. Penal Code § 15.03(a): with intent that a capital felony be committed (murder of the unborn child of [E.E.]), (Hunter) did request, command or attempt to induce [E.E.] to engage in conduct to cause the death by sending these texts to E.E.:
“I don’t have a kid motherfucker you have a kid try and give birth to it see what happens, so I will see you soon motherfucker…when you turn around one night when its really dark I’m going to be right there…Well [E.E.] like I said to you on the phone I’m going to enjoy doing it to you and you have no idea what I am. Anyway I sent your mother news of you and your text talking about the baby so she knows you’re pregnant have a nice evening bitch. And you and your family are not raising this kid guaranteed…if you had any clue does monsters under your fucking bed would look like fucking daisies if you knew what I’m capable of. [E.E.] you and never give birth I promise you”;
“I’ll cut that fucking baby i love you I’ll put in a fucking blender important your fucking throat if you fucking lied to me again you fucking piece of shit; Hey I told you not having that kid and I meant it bitch. You are not allowed to have my child it’s not going to happen get used to that fact now. I will go to the ends of this fucking earth to make sure you don’t”;
“I want to make this loud and clear your life is going to be miserable I do not want you raising that kid with his fucking nose turned up the way yours is it’s not going to happen in the only way that would be assure if you didn’t have that kid…Its my baby as well and yes you are going to kill it I promise you you won’t make it through a full term”;
“quit trying to buy time [E.E.]…And time is running out a lot quicker than you think it is…come one [E.E.] it’s just a little maggot inside of you. I know you are a sloth also but get up. While you’re sleeping I’ll be busy…You can go get it done or I will have you do it yourself you pick…Since you have chosen not to take me seriously the price for that will be paid shortly and this will be just a taste of what is to come”;
“It’s just a matter of a little pill right now not too much longer it’s a matter of putting a shop vac up your cunt and sucking the body parts out…Time is of the essence love; I assure you your family will not be raising our child…your own hand [E.E.] your own hand think about it…There’s not going to be a child [E.E.]…Cuz I’m going to spend a lot of time in jail for what I’m going to do; Oh you motherfuckers think you going to play me I will put every one of your fucking throats. You’re going to get it now bitch you’re dead…affecting what I’m not going to let you have the kid…It takes one half second to slash a throat didn’t f-k with me.”
Hunter filed a motion to quash, arguing that it does not appear from the indictment that an offense was committed, and no legislative intent or legal precedent exists for the State to interpret his words as criminal solicitation of capital murder.
The district court granted the motion to quash, finding that the indictment does not allege an offense.

The district court did not err by granting the motion to quash

Under State v. Ross, 573 S.W.3d 817, 820 (Tex.Crim.App. 2019), the sufficiency of a charging instrument is a question of law that is reviewed de novo. The trial court’s ruling is upheld if correct under any theory of law applicable to the case.
Under Lang v. State, 561 S.W.3d 174, 179-180 (Tex.Crim.App. 2018) and Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991), statutes are construed by looking to their literal text and attempting to discern its fair, objective meaning when enacted because this is the only definitive evidence of what the legislators intended. If the meaning of the statutory text-when read using established canons of construction-should have been plain to the legislators, a court gives effect to the plain meaning. A court presumes that every word is used for a purpose and that each word, phrase, clause, and sentence is given effect if reasonably possible. Words and phrases are read in context and construed using rules of grammar and common usage. If a statute’s language is ambiguous or application of the plain meaning would lead to an absurd result that the Legislature could not possibly have intended, only then may a court consider extratextual factors like executive or administrative interpretations or legislative history. Statutory construction is a question of law reviewed de novo.
Under Diruzzo v. State, 581 S.W.3d 788, 798 (Tex.Crim.App. 2019), a motion to quash tests the facial validity of the indictment as a matter of law.
Under Tex. Code Crim. Proc. Art. 1.14(b), an exception to an indictment that fails to charge an offense must be raised pretrial. Under Tex. Code Crim. Proc. Art. 27.08(1), a court may quash an indictment if it does not appear that it charges an offense. A defendant may seek construction of the statute under which the prosecution is brought.
Under Penal Code § § 19.02(b)(1), Capital Murder is committed if a person intentionally or knowingly causes the death of an individual under 10 years of age. Under Tex. Penal Code § 15.03, Criminal Solicitation is committed if, with intent that a capital felony or felony of the first degree be committed, a person requests, commands, or attempts to induce another to engage in specific conduct that, under the circumstances surrounding his conduct as the actor believes them to be, constitutes the felony or make the other a party to its commission.
Under Bien v. State, 550 S.W.3d 180, 186 (Tex.Crim.App. 2018), Criminal Solicitation of Capital Murder requires proof that-under the circumstances as the defendant believed them to be-the conduct solicited is Capital Murder.
Under Tex. Penal Code § 19.06, and Lawrence v. State, 240 S.W.3d 912, 915 (Tex.Crim.App. 2007), Chapter 19 (homicide offenses) does not apply to the death of an unborn child if the conduct charged is: (1) conduct committed by the mother of the unborn child; (2) a lawful medical procedure performed by a licensed health care provider with consent, if the death was the intended result (abortion); (3) a lawful medical procedure performed by a licensed health care provider with consent as part of an assisted reproduction per Tex. Fam. Code § 160.102; or (4) the legal dispensation or administration of a drug.
The mother of an unborn child cannot commit homicide by ending the child’s life based on acts described in Tex. Penal Code § 19.06. Because such conduct is not a crime, another person cannot solicit the mother to commit conduct toward the unborn child that is capital murder.
Under the plain language of § 19.06(1), if an unborn child’s death is charged to conduct committed by the unborn child’s mother, the mother’s conduct does is not a criminal offense under Chapter 19. And one cannot criminally solicit an act that is not an offense.
The district court’s order quashing the indictment is affirmed.

Johnson v. State, No. 14-18-00361-CR, 2020 Tex.App.-LEXIS 4189 (Tex.App.-Houston [14th Dist.] May 28, 2020) (designated for publication) (Possession of Marijuana) [Police/citizen interactions]

Under Wade v. State, 422 S.W.3d 661, 667 (Tex.Crim.App. 2013), there are three types of police/citizen interactions: (1) consensual encounters that do not implicate the Fourth Amendment; (2) investigative detentions that are Fourth Amendment seizures of limited scope and duration that must be supported by a reasonable suspicion of criminal activity; and (3) arrests, which are reasonable only if supported by probable cause. Police officers are as free as any other citizen to approach citizens to ask for information or cooperation. No bright-line rule governs when a consensual encounter becomes a detention. Courts must consider the totality of the circumstances to decide whether a reasonable person would have felt free to ignore the officer’s request or terminate the consensual encounter. Courts presume that a reasonable person has considerable fortitude. If ignoring the request or terminating the encounter is an option, no Fourth Amendment seizure has occurred. But if an officer-through force or a show of authority-sufficiently conveys the message that the citizen is not free to leave or to ignore the officer’s request, the encounter is not consensual.
Under State v. Garcia-Cantu, 253 S.W.3d 236, 243 (Tex.Crim.App. 2008), the mere approach and questioning of citizens seated in parked cars is not a seizure. Nor is it a seizure when the officer utilizes some generally accepted means of gaining the attention of the occupant or encouraging him to eliminate barriers to conversation. The officer may tap on the window or open the door if the occupant is asleep. A request that the suspect open the door or roll down the window is permissible, but not an order. The encounter becomes a seizure if the officer orders the suspect to “freeze” or exit the vehicle. Boxing the vehicle in, approaching it on all sides by many officers, pointing a gun at the suspect and giving orders, or using flashing lights as a show of authority are likely Fourth Amendment seizures. A restraint on liberty prompting a reasonable person to conclude that he is not free to leave or to ignore the officer’s request will vary with the police conduct at issue but the setting in which the conduct occurs. The officer’s conduct is the primary focus, but time, place, and attendant circumstances matter. A court must step into the shoes of the defendant and determine from a common, objective perspective whether he would have felt free to leave or to ignore the officer’s request.
Under McKenna v. State, 780 S.W.2d 797, 799-800 (Tex.Crim.App. 1989), appellate courts are not to speculate as to an appellant’s reasons for entering a guilty plea or as to whether the appellant would have done so if the MTS had been granted. As long as the evidence that should have been suppressed would in any measure inculpate the defendant, appellate courts must presume that the trial court’s denial of a MTS influenced the decision to plead guilty and is reversible error.

Facts:

Johnson was charged with Possession of Marijuana 2 ounces or less, a Class B misdemeanor.
At the MTS hearing, Officer Cox testified he was on patrol around midnight when he noticed a “suspicious vehicle” in a parking lot. Cox shined his spotlight twice across the vehicle, saw movement inside, and could tell two people occupied it. The vehicle had no lights on. Cox stopped his patrol car about 10-15 feet of the vehicle and activated his overhead lights. He approached the driver’s side. When the window came down, Cox detected the odor of marijuana and noticed that Johnson’s shorts were unbuttoned and unzipped.
The State offered the video from Cox’s patrol car, but Johnson objected to relevance, which was sustained. No other exhibit was admitted into evidence, so Cox’s testimony was the only evidence before the trial court for the MTS.
The trial court denied Johnson’s MTS with these FFCL: Cox was on routine patrol around midnight. As part of his routine patrol, he regularly checks the parking lot and spotlights vehicles parked overnight to deter drug activity and burglaries. That lot is a high crime area for burglaries of motor vehicles, drug crimes, and public lewdness. Cox had made several arrests in the months prior to this offense for such offenses in that lot. Cox spotted Johnson’s vehicle parked and observed movement inside. Cox did not block the vehicle from leaving. Cox observed the defendant’s pants were undone and detected the smell of marijuana. Officers do not need reasonable suspicion to initiate a consensual encounter. Cox’s initial encounter with Johnson was a proper consensual encounter that later evolved into an investigative detention. The fact that Cox activated his overhead lights alone did not elevate the consensual encounter into an investigative detention. If the initial encounter was a detention, it was supported by reasonable suspicion of criminal activity to detain Johnson based on specific, articulable facts of presence in the lot and a high crime area.
Johnson pleaded guilty and was sentenced to three days in jail.

A Fourth Amendment seizure had occurred before the car window was lowered, so the denial of the MTS was error

Under Wade v. State, 422 S.W.3d 661, 667 (Tex.Crim.App. 2013), there are three types of police/citizen interactions: (1) consensual encounters that do not implicate the Fourth Amendment; (2) investigative detentions that are Fourth Amendment seizures of limited scope and duration that must be supported by a reasonable suspicion of criminal activity; and (3) arrests, which are reasonable only if supported by probable cause. Police officers are as free as any other citizen to approach citizens to ask for information or cooperation. No bright-line rule governs when a consensual encounter becomes a detention. Courts must consider the totality of the circumstances to decide whether a reasonable person would have felt free to ignore the officer’s request or terminate the consensual encounter. Courts presume that a reasonable person has considerable fortitude. If ignoring the request or terminating the encounter is an option, noFourth Amendment seizure has occurred. But if an officer-through force or a show of authority-sufficiently conveys the message that the citizen is not free to leave or to ignore the officer’s request, the encounter is not consensual.
The question of whether the facts show that a consensual encounter evolved into a detention is a legal issue reviewed de novo.
Under State v. Garcia-Cantu, 253 S.W.3d 236, 243 (Tex.Crim.App. 2008), the mere approach and questioning of citizens seated in parked cars is not a seizure. Nor is it a seizure when the officer utilizes some generally accepted means of gaining the attention of the occupant or encouraging him to eliminate barriers to conversation. The officer may tap on the window or open the door if the occupant is asleep. A request that the suspect open the door or roll down the window is permissible, but not an order. The encounter becomes a seizure if the officer orders the suspect to “freeze” or exit the vehicle. Boxing the vehicle in, approaching it on all sides by many officers, pointing a gun at the suspect and giving orders, or using flashing lights as a show of authority are likely Fourth Amendment seizures. A restraint on liberty prompting a reasonable person to conclude that he is not free to leave or to ignore the officer’s request will vary with the police conduct at issue but the setting in which the conduct occurs. The officer’s conduct is the primary focus, but time, place, and attendant circumstances matter. A court must step into the shoes of the defendant and determine from a common, objective perspective whether he would have felt free to leave or to ignore the officer’s request.
Officer Cox-through a show of authority-sufficiently conveyed the message that Johnson was not free to leave or to ignore a request to lower the car window.
The error violated Johnson’s federal constitutional rights.
Under McKenna v. State, 780 S.W.2d 797, 799-800 (Tex.Crim.App. 1989), appellate courts are not to speculate as to an appellant’s reasons for entering a guilty plea or as to whether the appellant would have done so if the MTS had been granted. As long as the evidence that should have been suppressed would in any measure inculpate the defendant, appellate courts must presume that the trial court’s denial of a MTS influenced the decision to plead guilty and is reversible error.
Because the evidence seized-marijuana-was inculpatory, the court presumes the trial court’s erroneous denial of the MTS influenced Johnson’s decision to plead guilty.
The error is reversible. The trial court’s judgment is reversed, and the case is remanded for further proceedings.

Johnson v. State, No. 01-18-00897-CR, 2020 Tex.App.-LEXIS 4102 (Tex.App.-Houston [1st Dist.] May 28, 2020) (designated for publication) (Theft $2,500-$30,000) [IAC; admission of business records under Tex. Rule Evid. 803(6)]

Under Strickland v. Washington, 466 U.S. 668, 694 (1984) and Rylander v. State, 101 S.W.3d 107, 110-111 (Tex.Crim.App. 2003), to establish ineffective assistance of counsel under the Sixth Amendment, a defendant must show that: (1) counsel’s performance was deficient (errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment); and (2) the deficient performance prejudiced his defense (a reasonable probability that but-for counsel’s unprofessional errors, the result of the proceeding would have been different). Deficient performance requires a showing that counsel’s performance fell below an objective standard of reasonableness. A reviewing court must presume that trial counsel acted within the proper range of reasonable and professional assistance and that his decisions at trial were based on sound trial strategy. Allegations of ineffectiveness must be firmly founded in the record. A court will not speculate as to the basis for counsel’s actions, so a record that is silent on the reasoning behind those actions is sufficient to deny relief. Absent evidence in the record, a reviewing court will not conclude that the challenged conduct is deficient unless it was so outrageous that no competent attorney would have engaged in it. The defendant must establish ineffective assistance by a preponderance of the evidence. Almost total deference is given to factual findings supported by record especially if based upon credibility and demeanor. A verdict or conclusion weakly supported by the record is more likely to have been affected by errors than one with overwhelming record-support.
Under Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex.Crim.App. 1982) and Ex parte Welch, 981 S.W.2d 183, 185 (Tex.Crim.App. 1998), defense counsel must have a firm command of facts and law before he can render reasonably effective counsel. A misunderstanding of the applicable law or facts is never a legitimate trial strategy.
Under Tex. Rule Evid. 803(6), records kept in the course of regularly conducted activities are admissible. The proponent must prove that the records were made at or near the time of the events from information transmitted by a person with knowledge of the events and kept during a regularly conducted business activity. The predicate for admission may be established through testimony of the custodian of records, another qualified witness, or by an affidavit that complies with Tex. Rule Evid. 902(10), which provides a cost-effective method of authenticating business records by an affidavit that substantially conforms to the model in Rule 902(10) rather than by live testimony. The predicate witness does not have to be the record’s creator or have personal knowledge of the contents. The witness must only have personal knowledge of how the records were prepared.

Facts:

Veronica and her husband Jorge Gonzalez arrived at a tire store in Gonzalez’s brown Chevrolet truck, which had tinted windows.
Upon arrival, Gonzalez parked in the back of the store’s lot and exited. Veronica remained inside the truck in the front passenger seat with the engine running. Veronica saw Johnson riding toward the truck on a bike. Johnson opened the unlocked door and entered. He had a screwdriver in his hand. Johnson did not hit or stab Veronica with the screwdriver or point it at her. Veronica first saw the screwdriver in his hand when his hand was on the gearshift.
Johnson put the truck into gear. Veronica felt scared and feared for her life. She opened her door and hung onto it while Johnson accelerated the truck backward and forward. Veronica landed on her feet and was not in the truck when Gonzalez appeared and threw a wrench at the truck, which broke its windshield. Gonzalez called 9-1-1. Johnson drove away. The truck was returned later that day.
Johnson was homeless. While driving his 1997 Dodge, he ran out of gas on a bridge late. Johnson locked his truck with his keys in the ignition. Officers arrived and a tow truck towed it. The officers took Johnson to a hospital for a psychological evaluation. He was discharged hours later. He remained on the property and was arrested for trespassing. Following release from jail, Johnson began hitchhiking to look for his truck. Johnson saw Gonzalez’s truck. Although it was not the same color and had tinted windows, because it was similar in brand and body style, Johnson’s “mind told [him]” that it was his. Johnson believed it had been stolen and someone altered its appearance. Johnson did not see anyone inside the truck because of the tinted windows. Johnson was going to open the truck using a multipurpose tool but entered without using the tool since it was unlocked. Upon entering, he saw a woman inside, which surprised him. The keys were in the ignition and the engine was running. Johnson held the tool in his hand while shifting gears, but he did not point it at the woman or threaten her. When the woman opened her door, Johnson hit the brake so that she could get out because he did not want her hurt. Johnson saw three men approaching the truck quickly, so he put it in drive. Someone threw something long and solid at the windshield.
Throughout trial, defense counsel argued that Johnson lacked the intent to commit theft because he believed that the truck was his.
Johnson’s stepfather testified that shortly before the incident, Johnson was outside his home pulling grass and rubbing it on himself. When Johnson was called out, he “looked like he was not there” and did not answer; he just stared. Later, Johnson walked across a ditch in mud and water, went on railroad tracks, laid down on the tracks, and started throwing rocks. Other testimony about bizarre behavior by Johnson was presented.
During trial, trial counsel sought to have Johnson’s medical records admitted into evidence, which provided evidence of his schizophrenia, but did not have either the custodian of records or another qualified witness to testify that the records were made at or near the time of the events.

Johnson received ineffective assistance of counsel

Under Strickland v. Washington, 466 U.S. 668, 694 (1984) and Rylander v. State, 101 S.W.3d 107, 110-111 (Tex.Crim.App. 2003), to establish ineffective assistance of counsel under the Sixth Amendment, a defendant must show that: (1) counsel’s performance was deficient (errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment); and (2) the deficient performance prejudiced his defense (a reasonable probability that but-for counsel’s unprofessional errors, the result of the proceeding would have been different). Deficient performance requires a showing that counsel’s performance fell below an objective standard of reasonableness. A reviewing court must presume that trial counsel acted within the proper range of reasonable and professional assistance and that his decisions at trial were based on sound trial strategy. Allegations of ineffectiveness must be firmly founded in the record. A court will not speculate as to the basis for counsel’s actions, so a record that is silent on the reasoning behind those actions is sufficient to deny relief. Absent evidence in the record, a reviewing court will not conclude that the challenged conduct is deficient unless it was so outrageous that no competent attorney would have engaged in it. The defendant must establish ineffective assistance by a preponderance of the evidence. Almost total deference is given to factual findings supported by record especially if based upon credibility and demeanor. A verdict or conclusion weakly supported by the record is more likely to have been affected by errors than one with overwhelming record-support.
Under Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex.Crim.App. 1982) and Ex parte Welch, 981 S.W.2d 183, 185 (Tex.Crim.App. 1998), defense counsel must have a firm command of facts and law before he can render reasonably effective counsel. A misunderstanding of the applicable law or facts is never a legitimate trial strategy.
Under Tex. Rule Evid. 803(6), records kept in the course of regularly conducted activities are admissible. The proponent must prove that the records were made at or near the time of the events from information transmitted by a person with knowledge of the events and kept during a regularly conducted business activity. The predicate for admission may be established through testimony of the custodian of records, another qualified witness, or by an affidavit that complies with Tex. Rule Evid. 902(10), which provides a cost-effective method of authenticating business records by an affidavit that substantially conforms to the model in Rule 902(10) rather than by live testimony. The predicate witness does nothave to be the record’s creator or have personal knowledge of the contents. The witness must only have personal knowledge of how the records were prepared.
Trial counsel’s misunderstanding of the predicate for the introduction of medical records was not legitimate trial strategy, particularly where the records directly related to whether Johnson formed the requisite intent to commit theft. There wasno plausible, professional reason for the failure of trial counsel to properly prepare and offer the medical records into evidence in admissible form. There is sufficient evidence in the record establishing that trial counsel’s performance fell below an objective standard of reasonableness.
The medical records reveal that Johnson was diagnosed with mental health disorders, including psychotic disorder with delusions, antisocial personality disorder, schizophrenia, paranoid schizophrenia, depression, and bipolar disorder, and has been prescribed many antipsychotic and antidepressant medications over the years. He has been committed numerous times. He suffered a head injury and low range of intellectual functioning. His issues are significant, severe, and chronic. The issues cause him to be unable to stay focused or recall why he is present at certain places, and to engage in inappropriate and bizarre behavior.
The medical records provide context for why Johnson-as trial counsel argued-would have believed that the truck was his. Because of trial counsel’s misunderstanding of the predicate for the introduction of the records, the jury did not get a full opportunity to consider the defensive argument at trial-that appellant did not form the requisite intent to commit theft.
Johnson has shown a reasonable probability-sufficient to undermine confidence in the outcome-that but-for trial counsel’s deficiency, the result of the proceeding would have been different.
The judgment is reversed, and the case is remanded for a new trial.

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 https://www.mowlalaw.com.

TCDLA
Latest posts

View all

Michael Mowla
Latest posts

View all

September 2020 SDR – Voice for the Defense Vol. 49, No. 7

Supreme Court of the United States

United States Court of Appeals for the Fifth Circuit

Texas Court of Criminal Appeals

Texas Courts of Appeals

Latest from SDR

October 2022 SDR – Voice for the Defense Vol. 51, No. 8

September 2022 SDR – Voice for the Defense Vol. 51, No. 7

July/August 2022 SDR – Voice for the Defense Vol. 51, No. 6

June 2022 SDR – Voice for the Defense Vol. 51, No. 5

May 2022 SDR – Voice for the Defense Vol. 51, No. 4

Supreme Court of the United States

United States Court of Appeals for the Fifth Circuit

Texas Court of Criminal Appeals

Texas Courts of Appeals

July/August 2020 SDR – Voice for the Defense Vol. 49, No. 6

October 2020 SDR – Voice for the Defense Vol. 49, No. 8

Latest from SDR

October 2022 SDR – Voice for the Defense Vol. 51, No. 8

September 2022 SDR – Voice for the Defense Vol. 51, No. 7

July/August 2022 SDR – Voice for the Defense Vol. 51, No. 6

June 2022 SDR – Voice for the Defense Vol. 51, No. 5

May 2022 SDR – Voice for the Defense Vol. 51, No. 4