SIGNIFICANT DECISIONS REPORT FOR JUNE 19, 2017

Good day, readers. I have returned from long sojourns and difficult cases, once again ready to bring to you the finest in recent decisions. Given that there has been a significant gap in coverage, I am going to be rather abbreviated and hit the highlights to get everything in within a reasonable amount of blog space.

United States Supreme Court

Honeycutt v. U.S.

Terry Honeycutt and his brother, Tony, owned and operated a hardware store. Terry observed several ne’er-do-wells purchasing “Polar Pure” iodine products for purifying water. Suspicious, Terry phoned the constabulary, who confirmed that indeed enterprising Walter Whites could use Polar Pure to make methamphetamine. The same officer told Terry to stop selling it if the sales made Terry “uncomfortable.” Far from stopping, however, the Brothers Honeycutt continued to sell Polar Pure like gangbusters, grossing over $400,000.00 in three years.

Justice Sotomayor, writing for a unanimous Court (missing only Rookie Justice Gorsuch, who took no part in the decision), wrote that no one could have a use for so much water purification product (counterpoint: Flint, MI), and thus the police became suspicious. A federal grand jury charged the brothers with various federal offenses, and Tony chose to plead guilty and forfeit $200,000.00 of the supposedly ill-gotten gains. Terry went to trial and was acquitted on several charges, but found guilty of conspiring to and knowingly distributing iodine (yes, that’s a thing).

Despite the fact that Terry had no controlling interest in the store and did not stand to make any pecuniary gain from the sale, the Sixth Circuit held that both brothers were jointly and severally liable for the forfeiture judgments. The Supreme Court reversed, in a big win for our clients, and held that joint and several liabilities as a concept does not apply to forfeiture judgments.

Court of Criminal Appeals

Hopper v. State

In this case, Hopper committed a Texas crime in 1993, but spent the years between 1993 and his trial in 2015 in Nebraska prisons. Although advised of his right under the Interstate Agreement on Detainers, Hopper never sought speedy trial relief. But you can’t get speedy trial relief (usually) if you don’t ask for it, so Hopper’s speedy trial claim was rejected.

Moore v. State

Hey kids, do you like weapons? Of course you do, you’re in Texas. I hate Texas’s deadly weapon jurisprudence. It is a classic example of casuistry. Everything under the sun is a deadly weapon when the need to make a deadly weapon finding arises. Observe the case of Mr. Moore, who, while drunker than a skunk, rear-ended another vehicle, causing bodily injury. The trial court found Moore’s vehicle to be a deadly weapon. The Second Court of Appeals reversed, deleting the deadly weapon finding, and the Court of Criminal Appeals (wait for it) reversed again, re-instating the finding. Judge Yeary delivered an opinion, joined by Presiding Judge Keller, and Judges Hervey, Richardson, and Keel. Judge Newell concurred in the result only, while Judges Walker and Alcala dissented, with Walker writing a written opinion. Judge Keasler did not participate.

Rodriguez v. State

Now let’s have a fun case. Judge Newell delivers us an opinion joined by most of his fellow judges. Only Presiding Judge Keller dissented. Judge Keasler did not participate. In a matter of first impression, the Court of Criminal Appeals decided that a search of a college dorm room by RAs, which resulted in a later search by law enforcement officers, violated Ms. Rodriguez’s rights. RAs, as per school policy, conducted a search while Rodriguez and her roommate were out. The initial search uncovered marijuana, that most dangerous of gateway drugs, which led to a call to the resident director, who informed the RAs to conduct a more thorough search. This more thorough search uncovered not only a pipe, but also a box which contained pills believed to be “Ecstasy.” The resident director then contacted campus police, who entered the room and found the contraband, conveniently laid out on the floor by RA staff.

The campus officer snapped some photos and called the local constabulary. The campus officer admitted that he could have gotten a warrant, but chose not to get a warrant. The roommate returned to the room, was permitted to change clothes, go eat, and return to the room with her coach. After that, Ms. Rodriguez returned to the room, was arrested, read her rights, and confessed to the possession of the contraband.

The defense argued that the entry of the police (not the RA staff) into the room was a search. The defense admitted that the RA staff were not State actors. The Court reasoned, however, that the entry of police officers was a search within the meaning of the Fourth Amendment, and, as no exception to the warrant requirement applied, the fruits of the search must be suppressed.

If there is anything I must take Judge Newell to task for, it is only for the regrettable omission of an Animal House reference from the opinion. Golden opportunities like this do not come along every day, Judge, and I think we are all the poorer for missing out on your encyclopedic knowledge of classic cinema.

Presiding Judge Keller disagrees with the majority’s reasoning, finding that the university, a private university, should not be subject to the same restrictions as a state university, and pointed to the university’s policies, which forbade drug use and gave the school strong rights to invade students’ privacy. However, I wonder if such an analysis would survive the “intelligent, knowing” test regarding student consent, primarily because many students, upon applying for and receiving admission, were likely under the age of majority and so could not have formed a contract with the school to voluntarily waive their Fourth Amendment rights. An interesting question for a later date.

Arteaga v. State

In this case, it was harmful error for the trial court to have submitted a jury charge which included a Texas Family Code definition of those person whom the defendant was not legally permitted to marry, a special issue which increased the level of offense from second-degree aggravated sexual assault to first-degree aggravated sexual assault. The Court of Criminal Appeals reformed the conviction to the lesser-included offense because the State must necessarily have met its burden, in effect deleting only the special issue.

Ex parte Carter

In this case, Carter collaterally attacked an allegedly-improper cumulation order for the offenses of burglary and credit-card abuse. However, Carter did not raise this claim in his 2009 direct appeal, and as a result, he was procedurally barred from raising it in his application for a writ of habeas corpus. It is important to note that a claim of improper cumulation can be raised even if not objected to at the trial court level, as this was important for the Court of Criminal Appeals in deciding that the procedural default rule should apply. The opinion was delivered by Judge Keasler and joined by Presiding Judge Keller and Judges Hervey and Yeary. Judge Newell joined in part, making part of the opinion a plurality. Judge Newell agrees that the Court should have denied habeas corpus relief, but would have granted relief had Carter raised the issue of improper cumulation as a sub-part of an ineffective assistance claim.

Judges Alcalca, Richardson, and Walker dissented. Judge Alcala, in her written dissent, would hold instead that one cannot procedurally default an improper cumulation claim, and that has a kind of intuitive logic to it. Judge Alcala is absolutely correct that Carter must spend five additional years in prison due to an improper cumulation claim. However, the case of Ex parte Townsend stands in opposition, and so without overruling that opinion, the majority was following precedent.

Queeman v. State

The Court of Criminal Appeals conducted an exhaustive and thorough examination of the record and found that Queeman’s bad driving did not rise to the level of criminal negligence. This case is hugely fact-specific and nothing will substitute for just diving into the opinion, so if you have a criminally negligent homicide case, read this opinion.

Eighth Court of Appeals

In Lewis v. State, No. 08-15-00015-CR, a trial attorney screwed up on behalf of his client. The attorney in this case… sadly, was me.

Since I routinely write about things people do wrong at trial, it would be manifestly unfair if I didn’t chastise myself when I (apparently) got it wrong, too. In this case, at issue was whether the trial court should have granted a lesser-included instruction on criminal trespass during a burglary of a building trial. But because yours truly did not move to quash the indictment and have the state replead with greater specificity whether the defendant allegedly made an intrusion of the entire body into the building, or allegedly intruded only a body part, it was impossible to say whether the same but lesser evidence would have led to a conviction only of the lesser-included offense, and thus what I thought was a great issue for appeal (I was not the attorney on the appeal) was resolved not in my client’s favor. I do take some solace in the fact, however, that this opinion was handed down long after my client completed his two years of community supervision, so at least the point was, at this point, merely somewhat academic, and a retrial might have subjected him to a worse punishment were the jury to actually find him guilty of the lesser-included offense.

Still, let this be a lesson to everyone, as it was to me – in a burglary trial where the State has not alleged a full or partial entry, file those motions to quash. Anyone who wants to talk more about this trial, what I learned from it, what I think I did right, and where I thought I had room to improve, is welcome to drop me an e-mail or a phone call.

Thirteenth Court of Appeals

In Traylor v. State, No. 13-13-00371-CR, the defendant’s first trial ended in a mistrial when the jury was hung on an issue of a lesser-included offense. On his re-trial, he was convicted of the greater offense. He appealed, claiming that the greater offense should be jeopardy barred. The Thirteenth Court of Appeals agreed that it was jeopardy-barred, but remanded for a new trial on the second-degree offense only.

In Davis v. State, No. 13-15-00355-CR and -00356-CR, the Thirteenth Court of Appeals added another chapter into Our Dumb Deadly Weapon Jurisprudence, by taking under consideration whether Davis’s hands were deadly weapons (the court also decided that cellmates are not members of the same household, so that’s nice). Punching with your fists, no matter how many black belts you ordered from the back pages of an old comic book, apparently does not turn your fists into deadly weapons. However, as I’m sure some enterprising young prosecutor is out there ready to point out that the “manner of intended use” of punching people can and sometimes does lead to death, the “capable of causing serious bodily injury” prong can be met. But it failed to convince the Thirteenth Court of Appeals here, and we have another entry into the canon of cases that hopelessly confuse this issue.

Fourteenth Court of Appeals

In Kulow v. State, No. 14-15-00858-CR, the Fourteenth Court of Appeals affirmed the conviction of a jailer convicted of punching a restrained, in-solitary inmate who was being a mite disruptive. Specifically, Kulow complained on appeal about a late disclosure of said inmate’s felony arrest (though no prosecution resulted) and the lack of ability to cross-examine the witness regarding his felony arrest. I tend to agree with the Court that the evidence probably was irrelevant, because regardless of what the inmate was arrested for, Johnny Jailer doesn’t get to knock him upside the head just for being an asshole. This isn’t ‘Nam, there are rules. On the other hand, the morning-of-trial disclosure of a felony arrest galls me. All I can say is that in this case, there were no winners. Ever.

There. We’ve reached the end. I promise never to leave you guys hanging like this again, and I thank you for your forbearance and patience.

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