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

Voice for the Defense Volume 51, No. 7 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

“We aren’t going to reverse this case, but we do want to send a message to the State . . . don’t do this anymore.” If you read enough cases, you’ll see dicta to this effect. I can guarantee the relevant prosecutor’s office is not holding a meeting to discuss how to avoid strong admonishments in future successful appeals. We have a justice system predicated on an assumption that changed behavior can’t be achieved without the infliction of consequences, yet too often we hope to change the State’s behavior without any.

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.

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.

This publication is intended as a resource for the membership, and I welcome feedback, comments, or suggestions: (972) 369-0577.

Sincerely,
Kyle Therrian

United States Supreme Court

The United States Supreme Court did not hand down any significant or published opinions since the last Significant Decisions Report. See my comment above.

Fifth Circuit

United States. v. Valas, 40 F.4th 253 (5th Cir. 2022)

Issue & Answer. The government failed to produce an FBI report generated after an interview of the Government’s key witness (“302” report). When the 302 report revealed details of the sexual encounter with the defendant (the basis of the prosecution) which varied from the testimony, was the 302 report sufficiently material to warrant habeas relief under Brady? No.

Facts. The Government accused the defendant of engaging in a commercial sex act with a minor. During its investigation of the offense, an FBI agent conducted an interview with the fifteen-year-old runaway turned prostitute. As agents do in most cases, this agent prepared an FD-302 (“302”) memorializing his conversation with the interviewee. The defendant, in a post-conviction habeas claim, was able to correctly hypothesize that this report existed and that the Government did not turn it over. The Government confirmed the defendant’s hypothesis and claimed that it inadvertently failed to produce the document before the defendant’s trial.

Analysis. “To prove a claim under Brady, a petitioner 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.” Evidence is material when there exists a reasonable probability that the outcome would have been different had the evidence been disclosed. The 302 provided details of the sexual encounter that were different than the testimony at trial “but the differences are in magnitude of detail rather than substance.” The variances between the report and the testimony were hardly “gotchas.”

Comment. The court notes that the Government’s claim of inadvertence is “troubling.” “It is difficult to grasp how a document as routine as a 302 would be overlooked, particularly in this instance.” I’ve seen State prosecutor offices with problematic entitled-to-win cultures. I can only imagine how a federal system of justice calibrated to produce a 99% conviction rate exacerbates this. The court ends with the following: “We note that, unfortunately, this is not the first time something like this has happened, e.g., United States v. Perea, 625 F. Supp. 2d 327 (W.D. Tex. 2009). We admonish the Government to endeavor to make it the last.” I guess we’ll see if this tongue-lashing works. I won’t hold my breath.

United States v. Alvarez, 40 F.4th 339 (5th Cir. 2022).

Issue & Answer. “Hispanic male who had run from officers on a bicycle with large handlebars in the area of Leopard and Up River at some unspecified time in the past.” Are these descriptors sufficient to detain any Hispanic man riding a bicycle with large handlebars in the relevant area? No.

Facts. The officers were conducting a warrant roundup. They had no other physical description of the bicycle or the suspect. Apparently, the guy they were looking for was Jose Morales—very much not the same person as Andres Alvarez.

Analysis. “Reasonable suspicion to stop someone suspected of criminal activity is a low threshold, but not this low.” A report made in close proximity to police detention can bolster otherwise generalized descriptions, but here there is no indication of when the report was made. Here the description consisted of “a Hispanic male who had once ridden a bicycle with large handlebars in a general area at some unknown time in the past.”

Dissenting (Jones, J.). The dissent gives insufficient weight to the fact that the officers were in the correct location, that the defendant was evasive when officers attempted contact, and that this was a gang warrant round-up which makes the Fourth Amendment analysis more pro-Government.

Comment. I really do hate being a killjoy, but there is a case that says that a court can ignore the unlawful detention if the officer gets lucky and discovers a warrant he did not know existed before conducting the stop. See Utah v. Strieff, 579 U.S. 232 (2016). Why do prosecutors never cite this case? Maybe because they aren’t Sig Heads (t-shirts coming).

Texas Court of Criminal Appeals

Parker v. State, No. PD-0388-21 (Tex. Crim. App. 2022)

Issue & Answer. An anticipatory search warrant is a warrant based on an affidavit showing probable cause that at some future time (but not presently) certain evidence of a crime will be located at a specified place. Are anticipatory search warrants for fruits, instrumentalities, or contraband prohibited under Article 18 of the Code of Criminal Procedure? No.

Facts. The UPS store in Oregon intercepted a package with psilocybin (mushrooms). They alerted Oregon law enforcement. Oregon law enforcement corresponded with Texas law enforcement to have the package shipped to the recipient. Texas law enforcement prepared a search warrant affidavit stating that evidence of a crime would be discovered at the shipping destination on a future date—the expected delivery date. A magistrate issued a warrant for that future delivery date. Texas officers discovered incriminating evidence as a result of the anticipatory search warrant. The defendant filed a motion to suppress, the trial court denied the defendant’s motion, and the court of appeals affirmed.

Analysis. The defendant concedes that anticipatory search warrants are valid under the Fourth Amendment but contends that Article 18 of the Code of Criminal Procedure requires that evidence sought be present at the designated location at the time the search warrant is issued. Specifically, Article 18.01(b) provides that a magistrate must confirm before issuing a warrant that “probable cause does in fact exist for its issuance.” The defendant incorrectly interprets this to mean that the probable cause must exist at the designated place to be searched at the time the warrant is issued. Probable cause deals with probabilities. The standard requires a probability that evidence will be present at a particular location. All search warrants are technically anticipatory—they anticipate that the evidence will not be removed from the identified location in the time it takes to seize it. Article 18.01(b) does not have any “present possession” requirement (a requirement that the evidence is presently at the identified location). An Article 18.01(c)(3) warrant does (a warrant for “mere evidence” as opposed to fruits, instrumentalities, or contraband). Article 18.01(c)(3) imposes the requirement that “property or items constituting evidence to be searched or seized are located at or on the particular person, place, or thing to be searched.” This case does not involve an Article 18.01(c)(3) warrant. The warrant was specifically issued for the seizure of narcotics. It thereby invoked Article 18.02(a)(7) (not mere evidence).

Concurring (Yeary, J.). The court’s analysis of mere evidence search warrants is questionable and unnecessary.

Comment. The year is 2054. The government plans to implement a prototype “Precrime” program consisting of three clairvoyant humans known as precogs who visualize impending crime permitting officers to arrest offenders before the commission of their heinous offenses.

Jefferson v. State, No. PD-0677-21 (Tex. Crim. App. 2022)

Issue & Answer. When the State amends an indictment to add new counts, is the grand jury procedure triggered because the State has added new criminal offenses to the indictment (thus rendering counsel ineffective for failing to object)? Yes.

Facts. The State originally charged the defendant in a two-count indictment. The State amended the indictment and added two more counts. The State obtained four convictions at trial. At a hearing on the defendant’s motion for new trial, trial counsel testified that he objected to the State’s addition of new counts to the indictment. The reporter’s record did not reflect any such objection.

Analysis. Adding new counts to an indictment constitutes the addition of new crimes to the indictment. A felony criminal offense must be charged by a grand jury indictment. However, the grand jury process may be waived by inaction (failure to object). Here counsel failed to object and thus waived the grand jury process as it relates to the two new counts (new crimes). The court of appeals incorrectly assumes the possibility trial counsel waived the defendant’s objection strategically. Trial counsel testified that he did object, despite the record’s failure to reflect it. A non-objection trial strategy could not have existed here where counsel took the position that he believed he did object. If counsel did object, he failed to memorialize his objection. The failure to memorialize an objection is not a sound trial strategy.

Concurring (Yeary, J.). It is unfortunate that the defendant did not raise his void indictment/void conviction argument before this Court. It would have been a better way to dispose of this case, potentially.

Comment. There was an unpublished opinion in another jurisdiction holding that the State can add counts to the indictment without a grand jury sanctioning it. The Court of Criminal Appeals explained that it is ineffective for an attorney to rely on an unpublished opinion where the law is otherwise settled. I don’t love this because many of our courts of appeal give us nothing but unpublished opinions in criminal cases. Judges and practitioners routinely rely on unpublished opinions in such jurisdictions because they are indicative of what their relevant court of appeals will do. “A lawyer ought to be able to tell a court what it has done.” Tony Mauru, Judicial Conference Supports Citing Unpublished Opinions (Legal Times Sep. 21, 2005).

1st District Houston

The First District Court of Appeals in Houston did not hand down any significant or published opinions since the last Significant Decisions Report.

2nd District Fort Worth

Blankenship v. State, No. 02-20-00157-CR (Tex. App.—Ft. Worth, Jul. 14, 2022)

Issue & Answer. You get in zero trouble for burning plain wood. You get in a little trouble if you burn treated lumber, and you get in a lot of trouble if you burn chemical waste. Plywood has glue. Does this make it both treated lumber and chemical waste? No, just treated lumber.

Facts. The defendant burned plywood. Officers arrested him for illegal burning. The State enhanced the offense to a Class A misdemeanor due to their belief the plywood constituted “chemical waste.” As they understood the concept, chemical waste was “anything not natural to the earth.” Prosecutors advanced the argument that the glue binding to the plywood together constituted a chemical waste and that if the plywood were “treated” it would necessarily contain even more substances constituting chemical waste. Notwithstanding their arguments, the State did not offer any evidence that the plywood had been treated.

Analysis. It would be hard to summarize the “not-straightforward” statutes regulating burning better than the Second Court:

The legislature grouped prohibited items into three punishment tiers: (1) “heavy oils, asphaltic materials, potentially explosive materials, [and] chemical wastes,” the burning of which is punished with the most severity; (2) “insulation on electrical wire or cable, treated lumber, plastics, non-wood construction [and] demolition materials, furniture, carpet, [and] items containing natural or synthetic rubber,” the burning of which is punished with moderate severity; and (3) all other items, the burning of which is punished with the lowest degree of severity. Unlawful burning is

(1) a Class C misdemeanor if the violation is a first violation and does not involve the burning of [high-severity items];

(2) a Class B misdemeanor if the violation is a second or subsequent violation and:

(A) the violation does not involve the burning of: (i) [high-severity items]; or (ii) [moderate-severity items]; or

(B) the violation involves the burning of [moderate severity items] and none of the prior violations involved the burning of [high-severity items] or [moderate-severity items]; or

(3) a Class A misdemeanor if the violation:

(A) involves the burning of [high-severity items]; or

(B) is a second or subsequent violation and involves the burning of [moderate-severity items] and one or more of the prior violations involved the burning of [high-severity items] or [moderate-severity items].

The basic dispute between the parties here is “whether the adhesives used to manufacture the plywood qualify as ‘treatments’ and whether such alleged ‘treatments convert the plywood into not only ‘treated lumber’ but also ‘chemical waste.” The plain meaning of “treated” is to enhance or improve the condition of [wood]. Thus, the glue binding the plywood together rendered it “treated.” However, the same quality that makes plywood “treated” cannot also render it a “chemical waste.” The legislature meant to distinguish between treated lumber and chemical waste. If the State were correct and the very treatment that rendered the wood “treated lumber” also rendered it a “chemical waste” then no distinction would exist. Defendant’s conviction must be reformed to a Class C violation reflecting that he only burned treated lumber and not chemical waste.

Concurring and Dissenting (Walker, J.). Treated lumber has a technical meaning, not a dictionary one. It does not mean all plywood because all plywood is glued.

Comment. I agree with the court’s legislature-made-a-distinction analysis. But I can’t say I agree with its plain meaning interpretation of “treated lumber.” I think the best way to determine the plain meaning of “treated plywood” is by walking into Lowes and asking where the “treated plywood” is. If the associate opens a dictionary, you’re in trouble.

McCreary v. State, No. 02-21-00114-CR (Tex. App.—Ft. Worth, Jul. 21, 2022)

Issue & Answer. An officer obtained statements from a complainant that he knew were plainly false. Before this interview the officer had reviewed a video and knew exactly what happened. In this scenario, are the false statements sufficiently “material” to an investigation to sustain a conviction for false report to an officer? Yes.

Facts. The defendant falsely accused her ex-husband of domestic violence. The defendant’s ex-husband recorded the events giving rise to the purported domestic violence on a GoPro. The complainant’s report and subsequent statements were contradicted by the video evidence.

Analysis. To convict a person for false report to an officer, the State must show the person’s statements were material to a criminal investigation. The defendant contends that her statements concocting a fake family violence offense were not “material” to an investigation because they did not result in a “reasonable probability that the outcome of the family-violence-assault investigation would have been different had the statements not been made.” This is the Brady standard for materiality. In assessing sufficiency of the evidence, the reviewing court does not apply technical or specialized definitions to words unless statutorily required. Instead, the court considers the plain meaning. The plain meaning of “material” is “important” or “of consequence.” In some contexts, it also means “relevant.” Though the defendant’s statements did not affect the ultimate outcome of the investigation, they were an essential component of the investigation and the officers’ pursuit of obtaining the “full story of what happened.”

3rd District Austin

Ex parte Reyes-Martinez, No. 03-21-00268-CR (Tex. App.—Austin, Jul. 15, 2022)

Issue & Answer 1. A couple guys selling drugs were shot when they tried to rob or assault their buyer. The buyer shot and wounded the defendant and shot and killed the defendant’s partner. In this scenario is it excessive to set the wounded drug dealer’s bond at $300,000? No.

Issue & Answer 2. Is the felony murder statute unconstitutional because it can be applied to punish a person without a culpable mental state and for acts committed by a third person who is not a co-conspirator? No.  

Facts. Defendant and his partner were selling drugs from the defendant’s vehicle. A potential buyer got into the back seat of the vehicle to conduct a transaction, and something went awry. A fight ensued. The defendant and his partner pistol whipped the buyer. The buyer shot at defendant and his partner as they drove away. The buyer wounded the defendant and killed his partner. The State charged the defendant with aggravated assault with deadly weapon and felony murder. The court set his bonds at $30,000 and $300,000 respectively. The defendant filed the instant pretrial writ of habeas corpus challenging the constitutionality of the felony murder statute and seeking a reduced bond amount.

Analysis 1. The most significant factors in determining bond are the severity of the offense and the potential punishment. The defendant is charged with serious offenses. Although he maintains that he is a victim, the evidence in favor of the trial court’s ruling shows he is a pistol-whipping drug dealer. The ability to make bail is less important and it is a consideration which requires a fully developed record of a defendant’s financial resources. The record was not sufficiently developed in this regard.

Analysis 2. Pretrial habeas is generally unavailable for an as-applied constitutional challenge. The novel arguments the defendant raises here are not persuasive, nor can an intermediate court of appeals take an approach inconsistent with precedent from the Court of Criminal Appeals. In defendant’s facial challenge to the validity of the felony murder statute he claims the statute’s strict liability scheme violates due process. The defendant is correct to note that strict liability offenses are generally disfavored. However, the United States Supreme Court has never held that a legislature cannot impose strict liability in crafting a criminal offense. Courts may uphold a strict liability statute if it is the clear intent of the legislature to impose strict liability. Here, strict liability was the clear intent of the legislature when it crafted the felony murder statute. Instead of requiring proof that the defendant intended the death, the legislature sought to punish the result of a death occurring in the course of a person’s other voluntary criminal acts.

Comment. Can’t blame him for trying. It does seem kind of disproportionate to prosecute the defendant for the felony murder of a person he was selling drugs with who was shot by a third party because that drug deal went awry.

4th District San Antonio

The Fourth District Court of Appeals in San Antonio did not hand down any significant or published opinions since the last Significant Decisions Report.

5th District Dallas

Taherzadeh v. State, No. 05-20-00587 (Tex. App.—Dallas, Jul. 18, 2022)

Issue & Answer. A recused judge signed an order of deferred adjudication she probably shouldn’t have. The order reflected the oral pronouncement of an assigned judge who granted deferred adjudication. The assigned judge later signed and adopted a substantially similar deferred adjudication order. Can the assigned judge fix the potential signature error in this manner—by replacing the potentially defective orders with new orders but without conducting a new hearing? Yes.

Facts. The defendant stalked a criminal district judge in Dallas. After the defendant pled guilty, the assigned judge ordered the defendant placed on deferred adjudication probation. The assigned judge issued probation orders and made a docket entry reflecting the same. Shortly afterward, the regular presiding judge signed a written order of deferred adjudication. Months later, the assigned judge returned to fix the order erroneously signed by the regular presiding judge. The assigned judge signed a second order of deferred adjudication with the same conditions plus an additional requirement that the defendant participate in a psychological/psychiatric evaluation.

Analysis. The defendant’s basic contention is that, until the court held a new sentencing hearing, he was never sentenced. However, numerous documents reflect that the assigned judge placed the defendant on deferred adjudication probation. The defendant mistakenly treats deferred adjudication as a sentence. Deferred adjudication is neither a judgment of guilt nor a sentence. The judge “pauses the proceedings and takes the case under a sort of advisement, with the defendant having the opportunity to complete a probationary period and have the case dismissed.” There was nothing defective for the assigned judge to cure, but if there were, there was nothing defective about the way he attempted to cure it.

6th District Texarkana

Auld v. State, No. 06-21-00079-CR (Tex. App.—Texarkana, Jul. 21, 2022)

Issue & Answer. The State charged the defendant with eight instances of sexual assault occurring on specific dates, but the victim could not identify instances of sexual abuse occurring on specific dates. She couldn’t even identify a specific number of instances. Can a verdict on multiple counts of sexual assault rest upon the question-and-answer phrasing as “times” (plural—at least two) it occurred and multiplied by a sufficient number of distinctly identified periods of time? Yes.

Facts. The state accused the defendant of sexually assaulting a child on eight occasions. Save for one incident, the child testified that the instances of abuse occurred when the defendant drove her home from where he lived to the home where she lived, when it was dark, and when they were alone in the car. Though the victim could not identify how many times he drove her home she was able to testify that the defendant abused her on about half of the occasions he drove her home.

Analysis. The State alleged eight instances of sexual abuse occurring on specific dates. Because the State is not bound by the dates alleged in the indictment, for purposes of reviewing sufficiency of the evidence, the court simply looks to whether the State established at least eight instances of sexual abuse (here: six instances where the defendant touched the victim and two instances where the defendant caused the victim to touch him). “One difficulty the State has on this record is that, though it asked Kate frequently how many times Auld drove her home in the dark, alone with her, Kate invariably answered that she did not remember.” The State asked the victim about instances of sexual abuse and framed the question as “times” it occurred while the defendant “lived at” specific locations. The victim confirmed that there were “times” (plural) the defendant touched her and “times” (plural) the defendant caused her to touch him during each period he lived at each of three different locations. This evidence supports at least 6 instances of the defendant touching the victim and at least 2 instances of the defendant causing the victim to touch him. The victim also confirmed instances of the defendant touching her “at times” (plural) when he babysat her.

Comment. In a footnote the court references a previous reversal by the Court of Criminal Appeals in the Witcher 5-4 opinion. In that case, the Court of Criminal Appeals found imprecise language such as “give or take” and “around that time” as legally sufficient to establish two or more acts of sexual abuse occurring over a period of 30 days or more.

7th District Amarillo

The Seventh District Court of Appeals in Amarillo did not hand down any significant or published opinions since the last Significant Decisions Report.

8th District El Paso

State v. Villaloboz, No. 08-21-00037-CR (Tex. App.—El Paso, Jul. 22, 2022)

Issue & Answer. Article 32.01 of the Code of Criminal Procedure requires the State to formally file a criminal charge within a specified time period or face the penalty of a dismissal without prejudice. Can the State file a criminal information as a placeholder in a felony case to avoid this penalty? No.

Facts. After 17 months without indictment, the defendant filed a motion to dismiss invoking his speedy indictment right under Texas Code of Criminal Procedure Article 32.01. At the beginning of this period the state filed an information charging the defendant with felony offenses. In response to the defendant’s arguments, the State cited the ongoing pandemic as justification for not returning an indictment. The trial court dismissed without prejudice. The timeline is set out below.

    • August 8, 2019: the State charged the defendant by information with felony criminal mischief and felony repeated violations of protective order. The defendant secured release on bond initially.
    • December 10, 2019: the trial court revoked the defendant’s bond after he failed to submit to court-ordered competency evaluations. Counsel for the defendant requested a competency trial.
    • January 11, 2021: the trial court scheduled the defendant’s competency trial to begin after numerous resets.
    • January 21, 2021: the defendant filed a motion to dismiss for denial of speedy indictment.
    • February 2, 2021: the trial court held a hearing on the defendant’s motion to dismiss for denial of speedy indictment.

Analysis. Article 32.01 of the Code of Criminal Procedure “prevents citizens from being left in jail or on bail for periods of time without being indicted.” It provides that, absent good cause, the case shall be dismissed if indictment or information is not presented on or before the last day of the next term of the court held after the defendant’s commitment or admission to bail or the 180th day, whichever is later. The Texas Constitution requires the State to charge a felony by grand jury indictment unless waived by the defendant. The waiver procedure is specific—it requires a written and filed waiver, or an explicit statement in open court. Without a waiver, a district court cannot obtain jurisdiction by the filing of an information. The waiver-less information is void. Whether the State showed sufficient “good cause” to avoid dismissal is an issue analyzed under the Barker v. Wingo factors. The length of delay was substantial and the State’s articulated reason—that the pandemic complicated the grand jury process—was not supported by evidence. The grand jury met at least eight times during this period and the State did not articulate why this was an insufficient number of meetings to indict the defendant. Finally, the defendant’s detention during this period established prima facie showing of harm unrebutted by the State. It was appropriate for the trial court to dismiss the indictment.

Comment. According to the briefing in the case, the offense date was June 24, 2019. The statute of limitations during which the State was required to bring an indictment expired on June 23, 2022. The case was dismissed without prejudice. Rather than simply filing the darn thing with a grand jury indictment, the State appears to have blown its limitations period just to argue about why the trial court was wrong.

Hernandez v. State, No. 08-19-00152-CR (Tex. App.—El Paso, May 31, 2022)(not designated for publication)

Issue & Answer. Can the State impeach an expert witness about a judicial finding in a previous case in which a court found the expert witness committed perjury if the State’s purpose for the impeachment is only to show that the witness is a liar? No.

Facts. A man was shot and killed in his apartment. The defendant and his girlfriend were the only other people in the home. The girlfriend implicated the defendant. The defendant contested her allegation and presented substantial physical evidence showing it was impossible for him to have fired the gun. Defendant presented a blood spatter expert to match spattering of blood in the apartment to the blood on the defendant’s pants. The blood patterns proved that the defendant was standing behind the victim when the victim was shot in the front of his head. Substantial evidence also showed the defendant’s girlfriend making odd statements and having conversations with other people that showed a potentially guilty conscience. The State impeached the defendant’s expert using a judicial opinion from Mississippi containing a finding that the defendant’s expert committed perjury. The defendant objected to the State’s use of a specific instance of conduct to impeach the expert.

Analysis. Under Rule 608 a witness’s credibility can be challenged through testimony about the witness’s reputation for truthfulness or truthfulness. However, Rule 609 prohibits the use of extrinsic non-criminal-conviction evidence to attack or support truthfulness. In simple terms, “the Rule rejects the notion that ‘once a liar, always a liar.” The trial court analogizing this impeachment to impeachment by prior conviction is unpersuasive. The rule permitting such impeachment assumes the witness had their day in court and was adjudicated using criminal standards and burdens. This is not the case in a judicial finding that a witness perjured himself. Equally unpersuasive is the State’s theory that the Missouri court opinion was admissible to show bias. The purpose of the State’s questioning was to show that the expert was a liar. Given how close the evidence was in this case, the trial court’s error in admitting evidence of the Missouri court opinion was harmful.

Comment. Excellent lawyering by a good buddy! It’s an unpublished case, but I get to decide what goes into the S.D.R. Atta boy, Jeep!

9th District Beaumont

Ex parte Lott, No. 09-21-00256-CR (Tex. App.—Beaumont, Jul. 13, 2022)

Issue & Answer. Article 17.151 of the Code of Criminal Procedure requires a trial court to release an arrested person on personal bond or a reduced bond that person can afford when the State is not ready for trial and a statutorily specified number of days have expired (90 in a felony). Should the clock begin running only after the arrestee files a motion (or writ) invoking the arrestee’s Article 17.151 rights? No. The clock begins running from the moment of arrest.

Facts. The State arrested the defendant for murder. After 100 days of incarceration the State was not ready for trial. The defendant demanded release pursuant to Article 17.151 and the trial court denied her request on the State’s contention that the 90-day period did not begin to run until after the defendant invoked her Article 17.151 rights.

Analysis. The Statute simply does not comport with the “State’s unique interpretation of the language the Legislature used in Article 17.151.” “While the State lobbies the Court for an uncodified exception to article 17.151, we decline its invitation . . .”

Comment. The Ninth Court portrays the State’s argument as so frivolous that it made me read their briefing. Having now done so, I think the Court misinterpreted the State’s argument. The defendant did not file her Article 17.151 writ until after the State filed an indictment and announced ready. The State did not argue as the court suggested. The State argued that the State may announce ready and prevent automatic release under 17.151 until the later of: (1) 90 days, or (2) the defendant demanding release. This is an interesting issue not addressed by the court. The language of Article 17.151 does appear to impose an obligation on the trial court to release at the 90-day mark, regardless of whether the defendant makes a request. Admittedly, I’ve always understood the statute to operate the way the State suggests in its briefing.

Latimer v. State, No. 09-21-00275-CR (Tex. App.—Beaumont, Jul. 13, 2022)

Issue & Answer. Texas statute prohibits possession or use of substances or devices that are designed to falsify a drug test while simultaneously intending to use such the substance or device for falsification. Is the statute unconstitutional because it criminalizes thoughts and thus unduly burdens free speech? No. Is the statute unconstitutionally overbroad or vague? No.

Facts. The defendant was on probation. The State filed a motion to revoke that probation raising 17 allegations. One of them was that he possessed or used a substance to falsify a drug test. Defendant pled true to 16 of the State’s allegations and contested the State’s drug-test-falsification allegation.

Analysis. Certain types of conduct can implicate free speech when the conduct is sufficiently expressive in nature. “Appellant’s attempt to categorize the statute as a content-based regulation by characterizing it as ‘thought-policing’ and characterizing his conduct as ‘speech’ is unpersuasive. The statute focuses on conduct that is not inherently expressive or designed to convey a particular message. The defendant’s vagueness and overbreadth arguments are similarly unpersuasive. The defendant contends that nearly any possession of urine could be criminalized by this statute and that the prohibition is not limited to probation-based drug tests. Rather the statute targets all drug tests conducted for any reason. Contrary to the defendant’s argument, the possession of the prohibited device or substance must coincide with intent—specifically an intent to falsify. Moreover, the relevant type of drug test which the defendant must intend to circumvent are “lawfully administered test[s] designed to detect the presence of a controlled substance or marijuana.” Thus, the statute is not as open-ended as the defendant suggests and his hypotheticals do not present a realistic danger of unconstitutional application.

10th District Waco

The Tenth District Court of Appeals in Waco did not hand down any significant or published opinions since the last Significant Decisions Report.

11th District Eastland

Alaniz v. State, No. 11-19-00399-CR (Tex. App.—Eastland, Jul. 14, 2022)

Issue & Answer. Article 37.07 of the Code of Criminal Procedure provides the mandatory language regarding parole and good time credits. Applicable to a first-degree murder offense, the legislature has repealed the language permitting the trial court to instruct the jury regarding eligibility for good time credit. When the trial court nonetheless informs the jury that a person convicted of first-degree murder is eligible for good time credit, has the trial court committed an error rising to the level of egregious harm (standard for unobjected-to jury charge error)? No.

Facts. The defendant killed her mother who had Alzheimer’s disease. She suffocated her with a pillow after inflicting several bruises and lacerations. The defendant was supposed to be her mother’s caretaker but instead she used her for social security benefits. When family members suggested an assisted care facility, the defendant resisted and isolated her mother from family members. The trial court instructed the jury that the defendant “may earn time off the period of incarceration imposed through the award of good conduct time” but also instructed the jury that it may not take into account the potential award of good conduct time.

Analysis. It is an error to include instructions on the operation of good-time credit if not specifically provided for under Article 37.07. Here, the applicable provision of Article 37.07 (pertaining to first degree murder) does not permit the trial court to instruct the jury on good-time credit. Because the defendant did not object to the erroneous charge, a reviewing court can only reverse when the record reveals egregious harm. Egregious harm was not established because the charge, as a whole, instructed the jury not to consider good-time credit in determining its sentence and the parties did not focus on the erroneous instruction in argument. Moreover, the facts of the case were sufficiently egregious to have justified the punishment notwithstanding the erroneous instruction.

Comment. Why do we tell juries anything about parole?

12th District Tyler

The Twelfth District Court of Appeals in Tyler did not hand down any significant or published opinions since the last Significant Decisions Report.

13th District Corpus Christi/Edinburg

The Thirteenth District Court of Appeals in Corpus Christi / Edinburg did not hand down any significant or published opinions since the last Significant Decisions Report.

14th District Houston

Dewitt v. State, No. 14-21-00440-CR (Tex. App.—Houston [14th Dist.] Jul. 21, 2022)

Issue & Answer. When a trial attorney attempts to exclude evidence by hearsay objection but fails to raise a potentially meritorious confrontation objection, has he performed deficiently under the two-prong Strickland test for ineffective assistance of counsel (deficient performance + harm)? No, not here.

Issue & Answer 2. When a trial attorney says, “objection relevance” and “objection improper predicate,” has he sufficiently preserved a trial court’s erroneous rulings on relevance and predicate? No, not here.

Facts. The State charged the defendant with aggravated robbery by threat with a deadly weapon. The indictment contained one punishment-enhancement allegation. After the jury found the defendant guilty of robbing a person at gunpoint, the trial court conducted a punishment hearing. The trial court admitted the defendant’s jail disciplinary records and the defendant’s parole records. In articulating reasons for the court to deliver a harsh punishment the State referenced the defendant’s jail disciplinary records and parole records. The State specifically argued that these records showed that the defendant had no interest in taking advantage of yet another chance at leniency: he violated the law on bail, he violated the law on parole, and he misbehaved while in custody. Defendant’s attorney objected to the admission of jail disciplinary records based on relevance and improper predicate. The defendant’s attorney raised the same objections to the defendant’s parole records but added a hearsay objection, as well. The trial court overruled the defendant’s objections and admitted the State’s exhibits. The defendant’s attorney did not explain his objections, nor did he raise the defendant’s confrontation rights under the Sixth Amendment.

Analysis 1. Ineffective assistance of counsel is established by a two-prong showing: (1) deficient performance—performance falling below the standard of prevailing professional norms, and (2) harm—a reasonable probability that, but for counsel’s deficiency, the result would have been different. The analysis begins with a “strong presumption” that counsel’s conduct was reasonably professional and pursuant to sound strategy. Ordinarily, ineffective claims should not be raised on direct appeal because counsel should be afforded an opportunity to give explanations for his or her decisions. Absent such an explanation, the record must reveal that no reasonable strategy could justify counsel’s conduct. As it pertains the defendant’s complaints about counsel’s failure to raise a confrontation objection, ample case law supports the proposition that jail disciplinary records may have mixed confrontation evidence (testimonial in nature) and non-confrontation evidence (non-testimonial in nature). Counsel may have been satisfied that all of the evidence in the disciplinary records was non-testimonial, therefore rendering any confrontation objection under the Sixth Amendment meritless.

Analysis 2. Trial counsel said “objection . . . improper lack of predicate, to hearsay, and to relevance.” But he didn’t say what he meant by that. “A general or imprecise objection will not preserve error for appeal unless it is clear from the record that the legal basis for the objection was obvious to the trial court and opposing counsel.”

Comment. I’m sorry, counsel made a relevance objection to punishment evidence showing his client misbehaved during the pendency of his case. I don’t think potential frivolity was a guiding post in raising or not raising trial objections. Whether the disciplinary records were or were not testimonial in nature could be resolved in this appeal (after all, they are exhibits and there is law on the issue). Before the court brushes this appeal aside by relying on what trial counsel maybe thought about the Confrontation Clause, they should tell us what they think about the Confrontation Clause as arbiters of the law. If it is clear that a Confrontation Clause objection was needed, then speculation about what counsel might have thought about the Confrontation Clause is irrelevant. I know I’m droning on, but I’m also not a big fan of “you got to say more than objection-plus-the-grounds” to preserve error. I mean hell, if the trial judge doesn’t understand an  objection, why is it incumbent on counsel to explain it without at least some indication from the trial judge that he or she didn’t understand it. When a witness says “I heard him say . . .” and I shout “objection hearsay” do I really have to say “and your honor, of course, you know hearsay is an out-of-court statement offered to prove the truth of the matter asserted, and I believe what the witness is about to utter is that of an out-of-court-statement and the State intends to use it to prove the truth of what the declarant said. That is what I meant by “objection hearsay.”

TCDLA
TCDLA
Kyle Therrian
Kyle Therrian
Kyle’s practice has always been criminal defense. In McKinney, where he has practiced for the past 10 years, he represents individuals in all aspects of criminal accusations, including dozens of appeals before the various Courts of Appeal and Court of Criminal Appeals. He enjoys being a resource to his colleagues and, as he describes it, “nerding out on the law.” He is an active member and leader in TCDLA. In addition to his new role as Significant Decisions Report Editor, Kyle serves as Vice Chair to Texas Criminal Defense Lawyers Education Institute, Vice Chair on the COVID-19 Taskforce, is a long-time member of the Amicus committee, and a regular lecturer as part of the Criminal Defense Lawyers Project.

Kyle’s practice has always been criminal defense. In McKinney, where he has practiced for the past 10 years, he represents individuals in all aspects of criminal accusations, including dozens of appeals before the various Courts of Appeal and Court of Criminal Appeals. He enjoys being a resource to his colleagues and, as he describes it, “nerding out on the law.” He is an active member and leader in TCDLA. In addition to his new role as Significant Decisions Report Editor, Kyle serves as Vice Chair to Texas Criminal Defense Lawyers Education Institute, Vice Chair on the COVID-19 Taskforce, is a long-time member of the Amicus committee, and a regular lecturer as part of the Criminal Defense Lawyers Project.

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