About Lane A. Haygood

Lane A. Haygood is a board-certified criminal appellate lawyer who practices throughout the State of Texas. Contact him at http://www.haygoodlawfirm.com

Significant Decisions Report May 19, 2017

Our high appellate courts are back, with opinions for us to read, digest, and integrate into our practices. Strap in, buckaroos, it is this week’s Significant Decisions Report!

Fifth Circuit Court of Appeals

In USA v. Martinez-Rodriguez, the Fifth Circuit decided that a violation of injury to a child (Texas Penal Code § 22.04(a)(3)) was not an “aggravated felony” for sentencing enhancements under the Guidelines applicable to illegal reentry. No big discussion, no surprising new law, just a thing to remember the next time the USPO decides to add the 2L1.2(b)(1)(C) enhancement for deportation following an aggravated felony if the felony conviction was for injury to a child (even if the act relied upon was deliberate).

Court of Criminal Appeals

State v. Arizmendi

After a well-deserved hiatus in which I hope all our Court of Criminal Appeals judges went on awesome vacations with their families, we are back with a published case with multiple concurrences and dissents, or as I like to call them, “manna from Heaven for appellate lawyers.”

First up is State v. Arizmendi. Presiding Judge Keller delivered the opinion of the Court, joined by Judges Keasler, Hervey, Yeary, Newell, and Keel (by my count, that’s six judges joining the opinion). However, Judge Hervey concurred (which was joined by Judges Keasler and Newell). Judge Newell also wrote a separate concurrence, in which Judges Keasler, Hervey, and Yeary joined (a four-judge concurrence, meaning the only points of departure from the majority were Presiding Judge Keller and Judge Keel). Judge Alcala filed a dissent, joined by no judges, and Judge Walker dissented without separate opinion. Judge Richardson did not participate. So that is a 6-2 breakdown for the result, but really a 6(ish) to 2 to 4 to 2 breakdown. Which is wild, since judges were joining concurrences and majorities like the last days of Caligula.

Let’s dive in.

Arizmendi pleaded guilty with a plea agreement, but moved for a new trial when her co-defendant prevailed on a motion to suppress. The facts are thus: Arizmendi and Cortez, her co-defendant, were traveling in a van that was stopped for driving illegally on the improved shoulder. During the stop, officers discovered methamphetamine in an amount greater than 400 grams. Arizmendi’s counsel negotiated and plead her to confinement for 25 years and a $5,000.00 fine. As a normal part of the plea agreement, Arizmendi agreed to waive her rights to an appeal or other post-judgment motions, including a motion for new trial.

Cortez did not plead, however. He filed a motion to suppress, which was granted (read all about it in State v. Cortez, 501 S.W.3d 606 (Tex. Crim. App. 2016)). The trial court found that the video showed the van’s right rear tire or its shadow appear to touch the white fog line but did not cross it, which is not a violation of the “driving on the improved shoulder” statute.

Arizmendi, feeling her goose had been prematurely cooked, filed a motion for new trial, asking for a new trial in the interest of justice (the catch-all provision). The motion alleged that the arresting officer’s testimony at Cortez’s motion hearing was “new evidence that was not available for known” at the time of Arizmendi’s guilty plea.

Arizmendi’s trial counsel, to her enormous credit, testified at the motion for new trial hearing that her representation of Arizmendi was likely ineffective because they did not discuss the possibility of a motion to suppress. The State objected, claiming that Arizmendi had waived her right to file for a new trial in the plea paperwork. The trial court granted the motion on the catch-all grounds, and the State appealed.

As the basis for the new trial was alleged “newly-discovered” evidence, the Court of Criminal Appeals’ analysis focuses heavily on that. In particular, and on this I agree with the majority, the so-called “newly-discovered evidence” was neither new or unable to be discovered. First, Arizmendi’s counsel stated that she did watch the video and did not think a motion to suppress would be successful. Wrong call, possibly, but reasonable minds are allowed to differ on that. Likewise, the trial court’s ruling on Cortez’s motion is not “evidence” within the meaning of newly-discovered evidence.

Which leaves the officer’s testimony at the motion to suppress hearing as the only thing that, conceptually, could be newly-discovered evidence. But in this case, there is a video. And videos are weird. Appellate courts are usually bound by the record below and the credibility determinations made therein. But not with videos. Videos speak for themselves, and reviewing courts are allowed to review de novo “indisputable visual evidence contained in a video recording.” State v. Duran, 396 S.W.3d 563, 570-71 (Tex. Crim. App. 2013). So, the Court of Criminal Appeals viewed the video, read the Cortez transcript, and concluded that the video and the officer’s testimony were very similar, to the point where nothing about the officer’s testimony was “newly-discovered.”

Which makes sense; the ruling in the motion to suppress was based on whether the tire has to merely contact the fog line or wholly cross it, which does not rely on determinations of officer credibility but rather statutory construction. The majority denies relief on these grounds, finding that Arizmendi was not entitled to prevail on the motion for new trial on the ground of so-called “newly-discovered evidence.”

Judge Hervey, in her concurrence (joined by two other judges), raises two interesting points. First, she would say that Arizmendi’s waiver of her right to file a motion for new trial was not knowing and voluntary because she did not know, at the time of the motion for new trial hearing, that she had an ineffective assistance of counsel claim. Judge Hervey would apply the same rule that applies to post-conviction writ waivers – they are enforceable except where the defendant learns at some point after the waiver has been signed of a claim of ineffective assistance of counsel.

Second, Judge Hervey points out that the trial court could and did grant Arizmendi the right to file a motion for new trial even barring the waiver when it set the motion for new trial for a hearing.

Judge Hervey concurs in the result reached by the majority – Arizmendi’s counsel did not properly raise ineffective assistance in a motion for new trial (which, again, is weird if you’re the attorney bringing the motion for new trial), so Arizmendi cannot recover on the ground… yet. Judge Hervey seems to leave open the very real possibility that she would move to grant post-conviction relief to Arizmendi on ineffective assistance grounds.

Judge Newell also filed a concurrence. In a very long and scholarly opinion, he describes the genesis and history of the catch-all provision, correctly (to my mind) noting that it is not an independent basis for relief (as in, reviewing courts cannot simply grant a new trial because they feel the jury reached an incorrect result) but rather an attempt to ameliorate the difficulty imposed by specifically enumerating grounds for a motion for new trial. As such, Arizmendi’s motion for new trial alleged only a single ground for granting the new trial (a verdict contrary to law and evidence), but the problem there is that pleading that ground raises only a sufficiency issue, and I hope if there is one thing you have taken away from these little chats, dear reader, is that sufficiency is usually the weakest issue an appellate advocate can raise.

Judge Alcala’s dissent presents the opposite view to Judge Newell’s concurrence (though, I would state that Judge Newell has at least three other judges backing him up, whereas Judge Alcala stands alone here). Judge Alcala would grant trial courts the ability to grant a free-standing “in the interest of justice” new trial (something along the lines of a JNOV in civil cases) subject to review for abuse-of-discretion.

I think both Judges Newell and Alcala may be dancing around the same thing. To grant a free-standing new trial in the interest of justice, without more, would almost certainly be an abuse of discretion. Trial courts do not have the power of the pardon. On the other hand, it does seem to insist on hypertechnical pleading to require a motion for new trial to state specific grounds in magic words to enable relief. I think the disagreement here mainly comes from the fact that Arizmendi’s motion for new trial did not comport with the arguments she actually made at the hearing, which should impress upon us all the need for careful and conscientious drafting.

These are all four very well-written and well-researched opinions. I am inordinately happy to have such thoughtful people on the Court of Criminal Appeals, because, even where we disagree, I respect deeply the jurists who write these opinions. I commend majority, concurrences, and the dissent to my readers for a prime example of excellent legal scholarship.

Larue v. State

In our second case, the Court of Criminal Appeals considered whether it was error to deny a post-conviction DNA testing motion.

As I have stated before regarding these motions, they have a deceptively high burden. After making a showing that the evidence still exists in testable form, the applicant must then show that the result would matter. DNA testing is not some magic philter which, when applied to the facts of a case, presents a glow of guilt or innocence. DNA testing is like a really high-tech fingerprint. The presence of DNA at a crime scene or on a piece of evidence is indisputable proof that someone was present. The presence of a third party’s DNA, on the other hand, is proof that someone else was there. The presence of a third-party DNA with no evidence that the defendant was at the scene could be an exculpatory result, however.

But Code of Criminal Procedure Ch. 64 requires that post-conviction DNA testing establish that no rational jury would have convicted if they had had the new DNA evidence. Merely “muddying the waters” is never going to be enough. I know, I know… every one of us on the defense bar believes that if she or he could muddy the waters, the jury would return to us and say, “Mr. Haygood, the State did not prove guilt beyond a reasonable doubt!” But let us be honest with ourselves here, and honest about our juries: we can’t know that. So maybe muddying the water is not enough to satisfy the burden for post-conviction DNA testing. I do know this – if we want that changed, our recourse is with the drafting of Chapter 64.

Here are the facts: a woman named Pentecost was murdered in 1989, and our fledgling DNA testing at the time was unable to determine the murderer. Larue was one of six suspects from whom the police obtained blood samples (one other person, Augustine, was, for a time, a suspect, but no blood sample was obtained). In 1991, DNA typing of the blood eliminated every suspect but Larue. The police did not focus on Augustine for a “number of small things,” in the words of the investigator.

In 2001, DNA testing occurred that confirmed Larue’s presence at the scene – semen from an oral swab and fingernail samples. The testing did not implicate any third parties.

At trial, Larue implicated Augustine in Pentecost’s murder, but was impeached with numerous prior statements in which he had blamed people other than Augustine, and in fact never mentioned Augustine’s name.

Judge Newell, writing for the Court, reiterates the Court’s position that evidence of another person at the scene is simply that: we know that Larue was either at the scene of the crime or with the victim shortly before her death. While a finding that Augustine’s DNA was also at the scene might implicate Augustine, it does not exonerate Larue. In other words, because credible DNA evidence connected Larue to the murder, it would be very difficult to show that the presence of a third party’s DNA would exonerate him, especially given other evidence that indicated that there might have been two assailants of Pentecost.

Cahill v. State

In this case, the State Prosecuting Attorney sought discretionary review of a matter involving the Interstate Agreement on Detainers. In brief, as this opinion is unpublished (for reasons I will explain shortly), the IADA requires that a defendant who requests final disposition under the IADA to be brought to trial within 180 days.

The IADA is the mechanism by which an out-of-state defendant can be brought to Texas for trial. In this case, Cahill was an overnight guest of an Oklahoma jail when he received the detainer from the Collin County District Attorney’s Office. Cahill agreed to waive extradition proceedings if Collin County would bring this matter to trial within 180 days. The IADA provides a form for requesting this type of speedy trial. Cahill sent in the form as required. Cahill was not brought to trial within 180 days. Cahill subsequently filed a motion to dismiss, claiming that the IADA provision requiring dismissal was now in force.

The trial court denied the motion to dismiss because Cahill’s trial counsel did not offer any evidence showing that the District Attorney’s Office had received the IADA forms. After trial, in the motion for new trial, Cahill presented the certified mail return receipt (“green card”), showing that one “B. Sommers” had signed for the IADA paperwork at the District Attorney’s Office. Sommers was apparently a mail room employee tasked with collecting and distributing mail to the District Attorney’s Office. The trial court denied the motion for new trial.

The Fifth Court of Appeals, in an unpublished memorandum opinion, granted relief, as the evidence was that Cahill complied with the IADA, and it was Sommers, an agent of the Collin County District Attorney’s Office, who failed to deliver the IADA paperwork to the prosecutor. The State Prosecuting Attorney sought discretionary review.

After briefing and oral argument, the Court of Criminal Appeals dismissed the proceeding as improvidently granted. That is why the opinion is unpublished, as the Court of Criminal Appeals did not weigh in on this issue. Instead, the unpublished opinion of the Fifth Court of Appeals stands as written.

First Court of Appeals

In Gonzalez v. State, No. 01-15-00902-00903-CR, the First Court of Appeals considered yet another case relating to the constitutionality of Texas Code of Criminal Procedure art. 39.15, the statute which limits access to forensic interviews of children in abuse cases. As with other cases, the First Court here holds that the procedures in Art. 39.15 do provide “reasonable” access for defense counsel and defense experts. A novel argument that was raised, however, was whether Art. 39.15 is square with the Sixth Amendment right to confrontation. However, because Gonzalez was able to use the forensic interviews to impeach the credibility of his accusers, the Court of Appeals found that he was given his confrontation rights.

In Rodriguez v. State, No. 01-16-00401-CR, the First Court of Appeals considered an evidence sufficiency challenge to an armed robbery conviction. Rodriguez, along with two cohorts, attempted a series of robberies in the Houston, Texas, area, and by triangulating their position based on very nearly simultaneous 911 calls regarding robberies, the police were able to track the dastardly trio to a Whataburger, whereupon the bandits gave chase, and were ultimately apprehended. However, none could say whether Rodriguez was a gunman, a bagman, or a wheelman, and so the charge set forth robbery both as a principal and under the law of parties.

The Court found no dispute that Rodriguez was not one of the two men who robbed a woman at gunpoint. However, when that woman ran back to her house to call 911, she was able to overhear another call come in about an attempted robbery at a Shipley’s Donuts nearby, this time with three men in a white Chevy Impala. The officers dispatched to help the purse-snatched woman responded to Shipley’s, which led them to put a BOLO for the white Impala, which was located at the Whataburger. Inside the Impala was our first victim’s purse, indicating that at least two of the three men in the Impala were the assailants of the woman.

So there was some evidence, albeit circumstantial, that Rodriguez was the third man in the car, had taken part in the attempted donut caper, and then fled from the police when spotted at the Whataburger. Only in movies and TV shows is circumstantial evidence somehow less probative than direct evidence, so the evidence, viewed in the light most favorable to the verdict, was legally sufficient to convict Rodriguez under the law of parties.

In Rawlins v. State, No. 01-16-00435-CR, the Court of Appeals considered whether the trial court properly admitted evidence that Rawlins was a gang member. But because Rawlins did not object to the evidence of gang affiliations, he did not preserve the complaint for appeal. Even a pretrial motion in limine will not preserve an issue for appeal without a contemporaneous objection to the same evidence when it is offered at trial.

Second Court of Appeals

In Ette v. State, No. 02-16-00173-CR, the Fort Worth Court of Appeals considered a case in which the defendant was found guilty of misapplication of fiduciary property and assessed probation and a fine. Ette raised two issues on appeal: confrontation and a variance between the written judgment and oral pronouncement. The confrontation issue was easily disposed, as the alleged impeachment Ette sought was on a piece of property completely separate from the fiduciary property for which he was on trial. The fine issue was meatier; the trial court did not orally pronounce a $10,000.00 fine during sentencing, but included it in the judgment. Open and shut case, right? Oral pronouncement controls in criminal cases, right? Wrong.

When a judge’s oral pronouncement of punishment inadvertently omits the fine, Texas law permits a reviewing court to “harmonize” the record before it – considering the jury verdict (which included the fine), the oral pronouncement (which did not), and the written judgment (which did). Plus, Ette signed conditions of community supervision which specifically mentioned the fine, so he could not be heard to complain about the fine’s imposition on appeal.

Justice Kerr dissented, arguing that the harmonization rule should only apply in cases where the sentencing is ambiguous. She would apply the general rule about the superiority of the oral pronouncement, because there was no indication in the record that the trial court forgot or was confused. It simply did not mention the fine.

Who’s right? I don’t know. Maybe this one will get PDR’d and we will get an answer.

Fourth Court of Appeals

In Warden v. State, No. 04-16-00099-CR, the defendant was found guilty of tampering with physical evidence. On appeal, Warden claimed that the trial court erred in failing to suppress evidence seized from a pat-down search. Guadalupe County deputies, responding to a disturbance call at the home of a known drug user very recently released from the pen, saw a red passenger car and a black SUV pulling a trailer tear-assing through a field. Finding this more than moderately suspicious, one deputy pulled in behind the vehicles. The red car stopped before a gate, and Warden jumped out, hopped the fence, and continued up to the residence. Warden, the homeowner, and officers had a chat from opposite sides of the fence. Officers asked if anyone had dumped burgled items on the property; the homeowner said he had given permission for people to dump “whatever” on his property. Warden offered to show the officers to the dump site. Warden got inside a deputy’s vehicle. Department policy requires a pat-down before that can happen, and the deputy testified he felt something in the front pocket of Warden’s jacket. The officer asked Warden what it was, and Warden withdraw a syringe and shot the contents onto the ground.

Now upset that someone had just withdrawn a sharp instrument from his jacket and was holding it, the deputy drew his weapon and trained it on Warden. Warden was restrained and arrested for tampering with evidence.

On appeal, Warden claimed that this was somehow not a consensual police/citizen encounter and that the pat-down was a search under the Fourth Amendment. But recall – until Warden voluntarily moved outside the fence to get into the patrol car of the deputy, he was well within his rights to turn around and march back into the house. No lights were flashing. No sirens blaring. Just officers chatting with two guys over a fence. A fence that the officers did not attempt to enter. So despite the fact that Warden was patted down, he was only patted down because he willingly submitted himself to the ministrations of the Guadalupe County deputies. Motion to suppress denied, conviction affirmed.

Eighth Court of Appeals

In Flores v. State, No. 08-16-00025-CR, a pro se appellant appealed his conviction for burglary of a building. Flores raised several issues on appeal, none of them meritorious. First, he argued that the trial court abused its discretion by failing to excluded jurors who had a bias against people with tattoos. But the court did exclude four jurors who stated they had such a bias, and Flores did not challenge any additional jurors on this basis. Flores also alleged that Jurors 4 and 8 spoke to him outside of the courtroom and told him they were going to find him guilty because of his tattoos. During trial, Flores made a similar objection, but identified Jurors 3 and 8 as the ones he had spoken to (he was silent as to the tattoo matter). The trial court, in interviewing the jurors, found that each juror denied speaking to Flores. Flores sought to offer his ex-wife to shore up his testimony, but admitted she would not testify truthfully.

Flores also claimed the trial court prevented him from putting on a defense that the charges were laid against him in retaliation for his grievances with the El Paso Police Department. In particular, the trial court permitted Flores to call an officer unrelated to the case and ask whether that officer had shot and killed Flores’s brother. The officer testified that he had shot Flores’s brother, but that the shooting was unrelated to the present case. Flores was not permitted to ask other questions regarding the nature of the shooting or whether the officer had planted a knife on Flores’s brother, because such was not relevant. Thus, Flores did get to present evidence of retaliation; he is merely upset that the jury chose to reject it.

Finally, in a quite ballsy move, Flores objected to the surveillance video which showed him entering the room where the stolen money was kept on the basis that it was irrelevant. The Court of Appeals very succinctly pointed out that, yes, Virginia, surveillance videos are almost always going to be relevant, and overruled this point of error.

Significant Decisions Report for May 12, 201

Pithy introduction related to current events of the time of year, followed by pseudointellectual literary reference that three people will get. Flat excuse for there being so few cases this week; deflection of blame to courts of appeals for not issuing more opinions. Generic exhortation to dig into this week’s cases. It’s time for the Significant Decisions Report!

Fifth Court of Appeals

In Garner v. State, No. 05-16-00707-CR, the Fifth Court of Appeals was faced with a really heartbreaking case. Our defendant has been in and out of the prison system since 1980 on a variety of child-sex charges. The defendant’s daughter A., was removed from the household when she was approximately 4 years of age, but reconnected with her father as an adult with two children of her own. In December of 2014, faced with financial issues, A. moved back in with her father and his new wife, Pam.

Sadly, the pattern of abuse continued, with the defendant abusing his granddaughter, and he was convicted of continuous sexual abuse of a child under the age of 14.

On appeal, the defendant challenged the sufficiency of the evidence, but as with most such challenges, since there was some evidence of every element, he was not successful. He also argued that the trial court erred in permitting a criminal district court magistrate to preside over jury selection. Texas Government Code § 54.306 permits a district court judge to “refer to a magistrate any matter arising out of a criminal case” for various reasons, including “any other matter the judge considers necessary and proper,” but not to preside over a trial on the merits. Texas Government Code § 54.308 then lists the powers of a magistrate to act under Sec. 54.306, which is very broad and permits the magistrate to do many things, including “do any act and take any measure necessary and proper for the efficient performance of the duties required by the order of referral.”

However, “trial on the merits” designates the state of trial where the substantive facts of the case are presented to the factfinder. See Sanchez v. State, 138 S.W.3d 324, 325 (Tex. Crim. App. 2004). The Fifth Court has construed this, in prior, unpublished opinions, to mean “when the jury is impaneled and sworn.” The Court of Appeals concludes that “trial on the merits” is a legal term of art with a specific meaning, and voir dire proceedings just ain’t part of the trial on the merits.

The Fifth Court of Appeals notes that this conclusion apparently contradicts rulings from the Second Court of Appeals, leading to a circuit split and a high probability that the Court of Criminal Appeals will want to review this issue to decide between them, though for my money, it does seem like Sanchez compels the conclusion of the Fifth Court of Appeals.

In his third issue, the defendant contended that the magistrate who presided over voir dire erred by limiting defense counsel’s ability to question the panel during voir dire with one of our dreaded “commitment” questions. If, at this point in your practice, you have not read Standefer, you have to do so right now. The Significant Decisions Report will wait for you; it is eternal.

The question at issue was phrased: “Will you make the State prove their case, this indictment, beyond a reasonable doubt, even if you might hear about some prior felony conviction?” As an aside, this is a terrible voir dire question. The better way to ask this, and the way that probably is not going to get an objection, is to say, “Many people out there would have a really hard time setting aside the fact of a prior conviction if they heard the defendant had one. Ms. So-and-So, there in the front row, what do you think about that?” And once you get Ms. So-and-So talking about what she thinks about prior convictions, if she says, “I could not set that aside,” that is when you pin her down for a challenge for cause – has that always been your opinion? Even if the judge said to you, “ma’am, you are telling me that even if the judge instructed you not to consider the fact of a prior conviction for any improper purpose,” you could not do so? You do not, I repeat, not, ask it the way it was asked here.

Why? Standefer. The question posed was an improper commitment question “because it asked prospective jurors to refrain from deciding the issue of guilt based on the fact of a prior felony conviction” (slip op. at page 17). The question, as worded “added more facts than were necessary to test whether a prospective juror was challengeable for cause” (id.). Standefer says that is a big no-no. Seriously. Go read Standefer.

Eighth Court of Appeals

Let’s leave aside cases with tough facts and go to ones with tough law. This week, the Eighth Court of Appeals decided a very cool writ of mandamus case in In re Martin Borunda, Relator, No. 08-17-00296-CR. Yes, Virginia, there is such a thing as a cool mandamus case.

In this case, Mr. Borunda got himself a speeding ticket. Like a true hero, he pleaded no contest before the justice court and filed an appeal to the county court. While the case was kicking around the county court, the DA filed an “application for a writ of procedendo” (that’s a real thing) arguing that because Borunda did not timely perfect his appeal bond, the case should be dismissed from the district court back to the justice court for summary disposition. Yowza.

The county court agreed with the State and dismissed the appeal. Borunda waited a year, then filed an application for a writ of mandamus in the district court, alleging that the district court should direct the county court to correct its mistaken ruling, and arguing that Texas law did not provide him any other avenue to challenge the county court’s ruling (nota bene: this is not true; he could sought mandamus directly from the Eighth Court of Appeals at that time). The district court dismissed the petition, and Borunda appealed to the Court of Appeals, who also dismissed for want of jurisdiction because appellate review of mandamus actions is limited to civil cases.

So Borunda went back and filed yet another mandamus, this time in the Eighth Court of Appeals, challenging the district court’s refusal to address the merits of the mandamus petition.

The Eighth Court of Appeals conducted a survey of the law, and found that the District Court did have jurisdiction to consider a writ of mandamus filed against the county court, and the case is sent back to the district court for consideration.

I find this issue interesting because I do not think the State was correct to file an application for writ of procedendo (what, you didn’t think I was going to Chekov that gun and not explain it, did you? Fie and shame, readers! Fie and shame.). A writ of procedendo is an extraordinary writ which returns a case from an appellate court to the trial court. Texas Government Code § 26.051, which describes the writ powers of a constitutional county court (like the one who issued the writ of procedendo in this case) does not grant the power to issue procedendo writs to constitutional county courts. The Court of Criminal Appeals has the power to issue them, but not, apparently, constitutional county courts. So let us stay tuned to see how the next chapter in the Borunda saga.

Ninth Court of Appeals

In a cautionary tale from an unpublished memorandum opinion, we learn that it is always important to object to a mistrial when the Court grants one sua sponte. In Garrels v. State, No. 09-17-00038-CR, the defendant objected, after the jury was sworn, to the State’s proffer of expert testimony as untimely. The State admitted it had not disclosed the expert in a timely fashion, but argued that there was no surprise to defense counsel, and in the alternative that the appropriate remedy would be a continuance. Defense counsel objected to the continuance, but did not request a mistrial. The Court granted the mistrial, stating “I’m just going to grant a mistrial on my own. Y’all can deal with it and decide what to do going forward.” The prosecutor asked the judge to make findings “related to manifest necessity” to prevent a double jeopardy challenge. Good job, prosecutor! But the judge did not state he was granting the mistrial for manifest necessity, so the prosecutors exhortation fell short of its intended goal. Ms. Garrels’ defense counsel stayed silent at this stage.

Garrels then filed an application for a pre-trial application for a writ of habeas corpus alleging double jeopardy. Also a good move, but Garrels forgot one very important thing – one can consent to a mistrial by staying silent. And because her attorney did not object to the grant of the mistrial, Garrels was deemed to have consented to it, and she cannot raise double jeopardy as a bar to prosecution.

What should defense counsel have done here? Objected to the mistrial – “Judge, I hear what you are saying, but we don’t think a continuance is appropriate in this situation because it was the State’s fault it did not disclose this information to us in a timely fashion. We do not believe there is a manifest necessity for a mistrial, and we object to it and a continuance.” If the judge grants the continuance, then so be it – good luck to the State seating a jury panel when they are brought back in over a month later. If the judge overrules your objection and grants the mistrial anyway, hey, well, now you probably win your appeal on the double jeopardy writ.

Fourteenth Court of Appeals

In Fisher v. State, No. 14-16-00108-CR, the Fourteenth Court of Appeals considered an issue regarding a pre-trial photographic lineup. One of the key factors the victim’s memory of the robbery was that the assailant wore a red hooded sweatshirt. In the photographic array, the defendant was the only one wearing a red-hooded sweatshirt. However, Texas case law is against the defendant here – similar clothing being worn by a person in the lineup is not impermissibly suggestive. Therefore, the defendant’s challenge failed at the first step of the analysis, and his conviction was affirmed.

Next, and more interestingly, we have a free speech case! In Ex parte Dillon Travis Moy, No. 14-16-00420-CR, the appellant challenged the constitutionality of Texas Penal Code § 33.021(c), the “online solicitation of a minor” statute. This particular statute has a long history of being challenged on constitutional grounds, and since it is near and dear to my heart, we are going to discuss it a bit (full disclosure: the attorney for the appellant in this case, a colleague of mine, and I have actually sparred on this very issue in the courts of appeals, so I am keen to see the Court of Criminal Appeals take it up and put the issue to rest).

The primary issue in these types of cases is whether the statute is a “content-based” restriction; if so, then the burden is on the State to prove its constitutionality, as content-based restrictions on speech are presumed invalid. The State typically responds (as I did, when I was a prosecutor) that dicta from the Court of Criminal Appeals’ opinion in Ex parte Lo, 424 S.W.3d 10, 17 (Tex. Crim. App. 2013) that Sec. 33.021(c) affects only the “conduct” of seeking to engage in sexual intercourse with a minor. The frequent rejoinder to this argument is that conduct is still speech if it is expressive; the Fourteenth Court of Appeals acknowledges this, and acknowledges the dictum from Lo, but finds that “judicial dicta from the Court of Criminal Appeals, as a deliberate and unequivocal declaration of criminal law, is binding” on an intermediate court of appeals. Murray v. State, 261 S.W.3d 255, 257 (Tex. App.—Houston [14th Dist.] 2008). The Fourteenth Court of Appeals also cites to a recent decision from the First Court of Appeals, Wheeler v. State, 478 S.W.3d 89, 94 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d), where the First Court of Appeals held that Sec. 33.021(c) regulates “only conduct and speech that is not protected under the First Amendment.” Notice the vacillation there between “conduct” and “speech.” Is the activity at issue in Sec. 33.021(c) conduct or speech, courts of appeals? We are dying to know.

This is the issue that the Court of Criminal Appeals must address, and one that implicates a number of free-speech cases (including some that your author is in in the middle of arguing before the Courts of Appeals). On the one hand, courts are bound and determined to make sure that people cannot have sexually explicit chats with minors (or those they think are minors) online with the intent of causing those minors to engage in impermissible sex acts. And while it is certainly not protected speech to engage in a sexual act with a minor, it does sort of beggar belief that courts keep buying the argument that Sec. 33.021(c) is “content-neutral.” After all, we must look to the content of the expressive act to determine whether it is illegal. It would, for example, be illegal to provide factual information about sex to a minor; if that were the case, every sex education class in Texas high schools would be a ripe ground for felony prosecutions. So, to distinguish between permissible educational sex-talk with minors, and sex-talk aimed at enticing the minor to commit a crime, we must necessarily look at the content of the communication, meaning the courts of appeals should stop punting on the issue of whether Sec. 33.021(c) is a content-based restriction, or certify that question to the Court of Criminal Appeals, because by my count, we now have at least three cases where this issue has arisen, and the most recent one features the Fourteenth Court of Appeals dodging the question by saying they are bound by dicta.

I don’t know if changing the classification of Sec. 33.021(c) from content-neutral to content-based would compel different results regarding overbreadth and vagueness challenges. Certainly, I am not fan of the drafting of the Texas Legislature on any number of issues, but I see what offenses the Legislature is trying to address, and continually worry about government overreach, especially in the area of free speech.

It is important to note that the issue of the constitutionality of Sec. 33.021(c) is actually on appeal with the Court of Criminal Appeals right now in Leax v. State, on appeal from the Ninth Court of Appeals. Oral arguments have been presented in that case, and we now eagerly await the opinion, hoping that it will answer these questions for us (and perhaps provide further guidance on related issues).

Significant Decisions Report for May 5, 2017

This week, we lost a legend, Richard “Racehorse” Haynes. One of the first criminal trials I watched as a law student was Mr. Haynes trying a sexual assault of a minor case in Williamson County. It was a major decision in my own choice to pursue criminal law in education and vocation. We are all the poorer for no longer having him among us.

First Court of Appeals

We are also the poorer for instruction this week, as none of our higher courts have issued published criminal opinions (there is an interesting civil opinion from the Supreme Court on the Fair Housing Act and standing, if you’re into that sort of thing).

But on the criminal tip, we first consider Baldit v. State, No. 01-16-00119-CR, in which the First Court of Appeals considered two issues: a boring legal sufficiency issue (surprise! The evidence was sufficient!) and a more interesting one of the competency of a child to testify.

Baldit was convicted of misdemeanor domestic assault for getting into a fight with his girlfriend and dragging her around the living room, causing her to suffer a broken toenail, carpet burns, and bruising (I told you the sufficiency issue was boring). The victim’s six-year-old child testified at the hearing that she watched the assault. On appeal, Baldit argued that the trial court erred by not inquiring as to the child’s competency to testify. Despite a rather strange procedural argument about whether the trial court conducted such a hearing (if it did, and it was recorded, the record was not presented to the Court of Appeals), the Court went on to conclude that a competency hearing for a child witness is not required unless incompetence is raised by the opposing party, and even if the court had been presented with a competency challenge, this six-year-old child appeared to be confident.

Which just goes to show: if you want something from the court, ask for it. If you think the child witness is incompetent, ask the trial court for a determination. Failing to ask will usually get you poured out, and in this case, the only reason that did not happen is the trial prosecutor (!) informed the appellate prosecutor (!!) who correctly sent a letter to the court of appeals informing the court that there might actually be a competency hearing in the record, but not in the portions of the record presented to the court. While I heartily commend these two prosecutors for honesty and forthrightness to demonstrate that the claimed-of error was preserved, we should not count on the magnanimity of others.

Thirteenth Court of Appeals

In State v. Haworth, No. 13-15-00519-CR, the Thirteenth Court of appeals was faced with a State’s appeal over a strange issue. I doubt this is going to come up very often, but let us discuss it anyway so that the next time this happens to you, you can think back to the time when Lane told you this was never going to happen to you and curse his name.

The facts are thus:  an officer sees a man violate a traffic law and pulls him over. The driver is suspected of boozed operation of his motor vehicle, and is arrested. The driver files a motion to suppress, arguing that the officer could not have seen him bust an illegal U-turn from the officer’s vantage point. At the hearing, the officer admits the dash-cam video.

Then this is where things get weird. At the hearing, the judge admits that s/he “had a chance to go out there and inspect the location myself,” and came to the conclusion that the driver was right!

I say this situation is low-probability because how many times are judges going to take it upon themselves to conduct a scene visit? Rarely, one presumes.

But this kind of issue has arisen before, particularly in an unpublished case from Texarkana known as Gentry, No., 06-05-00237-CR. In Gentry, the judge recalled, from personal experience, the incident which led to the criminal charges being filed. In fact, the judge mused, I may have been the one to call the cops! Obviously the Texarkana Court of Appeals found that the judge was disqualified by being a witness to the facts and remanded the case.

Which is exactly what happened here. If there are any judges reading this, we appreciate your dedication and hard work, but y’all can just stay on the bench and rule. No need for scene visits. If defense counsel or the State is so careless as to omit testimony you would dearly like to have to rule in their favor, the correct answer is to rule against them. Any lawyer bears the risk of failing to provide sufficient evidence to convince the court of something. Because if you do leave the bench to gain personal knowledge of the case, you are now a witness, and can no longer be a judge. And we like you. We want you to be our judge. So leave the investigating to us.

And if you are an attorney who finds him or herself suddenly in the position where the judge is interjecting personal knowledge of the facts of the case into their decision, file your immediate motion to recuse.

Then, in Chambers v. State, No. 13-16-00079-CR, the defendant, a police chief in a small municipality, found himself on the wrong side of the law after ordering his deputy to fill out some forms that were found to be missing during an audit. The forms were certifications that his reserve officers had passed their mandated firearms qualification. Whoops.

On appeal, the defendant tried to argue that the forms were not governmental records. In short, any document “belonging to, received by, or kept by government for information” (the statutory definition) is going to be a governmental record. So the legal sufficiency argument falls flat, as the small municipal PD is obviously a governmental body and these forms were required by the audit.

In another issue, the defendant also raised the idea of whether he had the intent to harm or defraud by submitting falsified firearms records. But “intent to harm or defraud” as used in this section does not require proof of an intent to cause pecuniary or property loss to the government; rather, the intent to harm arises from causing someone to “rely upon the falsity of a representation, such that the other person is induced to act or refrain from acting.”

Fourteenth Court of Appeals

And so, we turn at last to the Fourteenth Court of Appeals, who issued but a single published opinion this week. In Cain v. State, Nos. 14-16-00141-00143-CR, the Court of Appeals considered a case in which Mr. Cain pleaded guilty to three counts of aggravated robbery. The trial court required a PSI report, which included a letter from Cain’s mother suggesting he had mental health issues. Cain’s attorney did not require a mental health study as a part of the PSI.

While this may have been beneficial, the Fourteenth Court (correctly) held that the presence of such a report in the PSI was waivable, and that by failing to object and request such a report, Cain’s counsel waived any argument about it. When Cain attempted to raise the issue of ineffective assistance of counsel, the Court of Appeals rejected his claim on the basis that the record is under-developed on direct appeal. This is almost always the case! Never, ever, ever raise ineffective assistance of counsel as a point on direct appeal unless (1) the error is so plain and obvious that no reasonable trial strategy could have excused it (super rare, by the way) or (2) a motion for new trial was filed that permits trial counsel to put the reasons for their strategy into the record.

I routinely run across the issue of people wanting to raise ineffective assistance of counsel on direct appeal. This is bad. Do not do it unless you are sure the record is appropriately developed. You can prejudice your client against being able to raise it again.

Significant Decisions Report for April 28, 2017

This week saw the High Court issue an opinion in the case of Lewis v. Clarke, which is (sadly) not about America’s two greatest explorers suing each other for whose name should get precedence in the history books. But William, when you think about it, the Clark and Lewis Expedition sounds like a late-70s progressive rock band, not a merry jaunt across the American West, so Lewis and Clark it shall remain. Sadly for us, however, the case is not one of criminal significance, so we are bereft of guidance from on high. However, the Fifth Circuit, Court of Criminal Appeals, and Texas courts of appeals will ride to our rescue.

Fifth Circuit Court of Appeals

Alexander v. City of Round Rock et al.

Officers with Round Rock PD pulled over Mr. Alexander after they witnessed what they considered “suspicious activity.” Naturally, Mr. Alexander did not want to answer questions, and, finding their authority so challenged, the officers “forcibly removed Alexander from his car, handcuffed him, and ultimately arrested him for resisting a search.” Ah, the jackboots of authority are already stamping on the human face, forever.

Alexander sued the officers under 42 U.S.C. § 1983, alleging violations of numerous constitutional rights. The District Court granted the officers’ motion to dismiss on grounds of immunity. The Fifth Circuit affirmed in part, and reversed and remanded in part.

The facts are thus: Alexander was a patron of a hotel in Round Rock, Texas. Just after 9:00 p.m., he returned to the hotel from a grocery trip, when he spied a stray cat in the parking lot. He stopped his car and attempted to induce the kitty into coming out of hiding so that Alexander could feed him (I promise there won’t be too many animal cases this week, but, like the good dogs in last weeks, feeding stray kitties is something I heartily endorse, because animals are awesome and people sometimes suck). Anyway, his animal welfare deed done, Alexander returned to his car, at which point he was pulled over by Officer Garza. Alexander identified himself but told Garza that he would not answer any of Garza’s questions, which prompted Garza to call for backup for “noncompliance” (there’s your dystopian tip-off of the day).

On appeal, Alexander argued that the officers violated his constitutional rights by: (1) unlawfully detaining him; (2) arresting him without probable cause; (3) retaliating against him for exercising his constitutional rights to remain silent; and (4) using excessive force. In order to overcome the nefarious defense of qualified immunity, Alexander had to show that the official seeking immunity has violated a statutory or constitutional right. If that showing is made, the reviewing court must then determine whether the official’s actions were objectively unreasonable in light of the clearly-established law for the time.

So while Alexander may not ultimately prevail on these, the Court of Appeals, taking his well-pleaded allegations as true, found that he was at least entitled to survive the motion to dismiss stage. Which makes this a case to watch for those of us interested in vindicating the civil rights of those who find themselves inappropriately on the wrong side of the law.

Lincoln v. Barnes

In another qualified immunity case, the Fifth Circuit discussed whether a Texas Ranger violated the Fourth Amendment right of a citizen to be free from unlawful seizure when he arrested Erin Lincoln without a warrant, probable cause, or justifiable reason. The rationale for her detention was that she was a witness to her father’s shooting. The Fifth Circuit did find that this was a Fourth Amendment violation, and then considered whether the right violated was clearly established at the time of the violation. The Court of Appeals found that the arrest and custodial detention of a “witness” violated the Fourth Amendment, and thus Erin could maintain her suit against the Texas Ranger for violating her civil rights.

I included both of these cases in this week’s Significant Decisions Report to highlight the difficulty, and potential reward, in bringing civil rights cases against police officers. Qualified immunity is a hell of a hurdle to overcome, but it can be overcome. The secret is in a well-pleaded complaint and good lawyering to carry one through the motion to dismiss and summary judgment stages. If you have one of these cases in your office, it would behoove you to get the petitions from these cases and/or talk with the attorneys representing these citizens.

Court of Criminal Appeals

Ex Parte Pete

Following conviction, Mr. Pete decided he would testify at punishment. But when he approached the stand, he was still shackled, and who should espy such a circumstance but the jury. It should be noted at this juncture that the jury should never see the defendant shackled. Pete asked for a mistrial, but the Court took it under advisement and allowed the punishment trial to continue. The trial court interrupted the proceedings and granted the mistrial. Following the grant of mistrial, Pete filed an application for habeas corpus and tried to reinstate his trial bond.

The issue on appeal is whether a mistrial granted at the punishment stage resets the entire trial or merely the punishment stage. The Court of Criminal Appeals discussed the fact that a defendant ordinarily has the right to have the same jury assess both guilt innocence and punishment. But because Pete’s motion for mistrial was only as to the punishment stage, and thus his motion for mistrial necessarily indicated that there would be another jury to hear his punishment case, he would have “invited” the error of which he might complain. So regardless of what the real answer is to the question, in this case, invited error means the defendant loses.

Judge Walker dissented without written opinion, which is a shame. I’d have like to read it.

Miller Jr. v. State

Miller Jr. was charged with aggravated sexual assault of a child and indecency by contact. He waived his right to a jury trial and sought a bench trial. After his conviction, he received a prison sentence. Miller Jr. filed a motion for new trial alleging ineffective assistance in that his counsel allegedly promised him that he would receive probation if found guilty at a bench trial. This advice was wrong because under the former Art. 42.12 that applied at the time of the commission of the offenses, only the jury could recommend a probated sentence. The court of appeals affirmed the trial court’s denial of the motion for new trial, applying a deferential standard of review. On discretionary review, the Court of Criminal Appeals addressed the proper standard of prejudice to be shown in cases of erroneous advice about probation eligibility. So for Texas law, the standard of prejudice to be shown regarding ineffective assistance of counsel is NOT (I repeat, NOT) whether the defendant’s decision to waive a jury would be different. It is whether a jury would have decided differently than the judge. And since that is the appropriate ineffective assistance prejudice standard, the Fifth Court of Appeals was correct to deny Miller Jr.’s motion for new trial.

Judge Yeary dissented without a written opinion, which, again, I would dearly have loved to read. Come on, dissenters. We, your loyal fan(s), want to hear from you!

First Court of Appeals

In Sanchez v. State, No. 01-16-00862-CR, the First Court of Appeals considered the legal sufficiency of the proof of value in a theft case. Our intrepid thief stole his neighbor’s VW Bug, whose value was sought to be established at trial by the testimony of the owner and the investigating officer. The owner’s testimony was insufficient, because she did not describe the timeframe in which she purchased the vehicle nor the length of her ownership. However, the investigating officer’s testimony, though rather on the anemic side, was nevertheless sufficient because he referenced the Kelley Blue Book (no, hashtag appellatetwitter, not that Blue Book, nerds). So even though the officer had never seen the car in question, he could nevertheless bring in a hearsay valuation from a book that is hardly regarded as entirely authoritative within the car sales context. Don’t believe me? Try getting your Kelley Blue Book value on a trade-in.

Sixth Court of Appeals

In Oringderff v. State, No. 06-16-00085-CR, the Texarkana Court of Appeals, the defendant challenged his conviction for felony DWI on the ground that the trial court erred in overruling his motion to suppress and that the evidence was insufficient. However, the Court of Appeals found that, under the totality of the circumstances, the arresting officer had probable cause to pull Oringderff over due to a combination of Oringderff’s bad driving (going over the fog line) and information from a 911 caller. Not that even had Oringderff prevailed on this point would it have changed the legal sufficiency calculus, because in a legal sufficiency review, the court considers all evidence, whether rightfully or wrongfully admitted. So there’s a good lesson – raising legal sufficiency on the grounds that the evidence was insufficient because the trial court stubbornly refused to grant your brilliant motion to suppress is going to get you nowhere.

Tenth Court of Appeals

In Ex parte Billy Mack Maddison, No. 10-16-00081-CR, the defendant filed an application for a pretrial writ of habeas corpus challenging the constitutionality of Texas Penal Code § 33.07, online harassment. The trial court granted the writ, declaring subsection (a)(1) unconstitutional. A majority of the Tenth Court of Appeals, however, disagreed.

At issue is whether Texas Penal Code § 33.07 is a content-based regulation. Once again, the dreaded demon of Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010) rears its bestial head, with the pernicious (and incorrect!) line that there is no First Amendment protection for speech which invades “privacy interests” (seriously, someone find me that exception in the First Amendment), and the Tenth Court of Appeals merrily traipses down wrong path from the outset. The Court of Appeals concludes that Sec. 33.07 is content-neutral because it is viewpoint-neutral, which confuses the two analyses.

Chief Justice Gray, writing in dissent, gets the issue absolutely correct. I’ll leave it in Chief Justice Gray’s words: “Because you must look to the content of the speech, or into the mind of the speaker (intent), to determine if the statute is violated, the prohibited speech is properly characterized as content based. As just one simple example, support in favor of a political candidate would not be prohibited under the statute although it showed a photo of the candidate and was made to appear to be posted by the candidate, even though it was not. On the other hand, a negative political ad posted on a web site or sent over the internet without the candidate’s approval would fall within the prohibition of the statute. The statute sweeps clearly protected political and expressive speech within its prohibition. But you have to look at what is said and how it is said to determine if it is prohibited the statute. That makes it a content based impairment of speech.”

Could not have said it better myself, Mr. Chief Justice.

 

 

Significant Decisions Report for April 21, 2017

In recent hot appellate news (you know that’s a thing, right?), we have a new Supreme Court Associate Justice! The Eventful Eight have returned to being the Divine Nine, with the addition of Neil Gorsuch, formerly of the Tenth Circuit Court of Appeals. Personally, your author believes Gorsuch has a good tradition of ruling in sensible ways on criminal justice issues, and looks forward to a strong tenure from our newest Associate Justice. With that in mind, what else has the High Court been up to this week?

Supreme Court of the United States

Manrique v. United States

Mr. Manrique got caught with child porn on his computer, never a good circumstance. Following his plea of guilty, the district court deferred ruling on the amount of restitution, which is mandatory for certain child pornography-related offenses. Manrique filed a notice of appeal from his conviction, and the district court came in later and ruled on the amount of restitution. Manrique did not file a second notice of appeal from the reformed judgment, however, and so the Eleventh Circuit did not permit him to raise issues relating to restitution on direct appeal.

Justice Thomas, writing for a six-justice majority, held that in a deferred restitution case, the appellant must appeal both the judgment and the deferred restitution order to complain about both. Justice Ginsburg authored a dissent, joined by Justice Sotomayor, and Rookie Justice Gorsuch was not permitted to have a say in the case.

Justice Ginsburg had a slightly different reading of the rule, and would have held that the clerk’s transmission of the amended judgment to the Court of Appeals put the Eleventh Circuit and the government on notice that Manrique would challenge the amended judgment as well.

It is important to note that even if Rookie Justice Gorsuch had taken part in this decision, and even if he had sided with the dissenters, it would not have materially affected the outcome of the case.

Nelson v. Colorado

This case is a huge, huge development in post-conviction law and one of those opinions we will see cited very often in the coming years. Justice Ginsburg delivered the opinion of the six-justice majority, joined by Chief Justice Roberts, and Justices Kennedy, Sotomayor, Kagan, and Breyer. Justice Alito concurred in the judgment, if not necessarily the reasoning, and Justice Thomas dissented. Justice Gorsuch likewise played no part in the decision of this case either, but once again, his vote could not have changed the outcome since a six-justice majority, with a justice concurring in the judgment, is not a close case.

This case consolidated the cases of petitioners Nelson and Madden, both convicted in Colorado state courts of various offenses. Both petitioners were later acquitted on post-conviction review.  Both Nelson and Madden paid certain court-mandated fines and fees as a part of their convictions. Both of them had such funds retained even following their exonerations. Both petitioners moved for the return of these funds post-exoneration. The trial court in Nelson’s case outright denied the return of her funds. The trial court in Madden’s case permitted the recovery of fines and fees, but not restitution. The intermediate court of appeals agreed with the petitioners, but the Colorado Supreme Court reversed, holding that Colorado Exoneration Act did not provide for the recovery of such funds.

Justice Ginsburg held that the Exoneration Act scheme “fails due process measurement because [Nelson and Madden’s] interest in regaining their funds is high, the risk of erroneous deprivation of those funds under the Exoneration Act is unacceptable, and the State has shown no countervailing interests in retaining the amounts in question.” Since the Exoneration Act imposed “more than minimal procedures” on the refund of “exactions dependent upon a conviction,” the act violated Fourteenth Amendment due process guarantees, and had to be struck down.

As guidance for states drafting post-conviction exoneration remuneration legislation, this is a flat pronouncement that any fines or fees extracted from the wrongfully-convicted will be returned simply for the asking, which is a great benefit not only to those who suffered unjust incarceration for years, but even for our more minor clients who may be punished by a fine only. With the trend lately for courts to tack on all sorts of strange fees as a “condition” of our client’s community supervision, this opinion provides the practitioner with a good bargaining chip in the event of an appeal – if we win, the State is going to have to cough up a refund to our client, so perhaps in close cases it is not appropriate for the State to load up our clients.

In his concurrence, Justice Alito would also find a due process violation, but chastises the majority for not paying sufficient heed to historical practices. In particular, Alito finds the majority’s reasoning too broad on the issue of restitution. Justice Thomas, on the other hand, is skeptical that the petitioners had a “substantive right” to the monies extracted from them, which is a troubling line of thought. The Fifth Amendment states that I cannot be deprived of “life, liberty, or property without due process of law,” implying that I have a substantive, due-process right to my property that would be seized by the Government. Thomas cites his own concurrence for the proposition that the Due Process Clause “confers no substantive rights,” but this is hardly binding precedent. Further, the Fourth Amendment is rather clear that the Government may not make any unreasonable seizure of my property, after all, and certainly I have a property interest and right to my own money. The seizure of my property in the form of a government-mandated fine following criminal conviction is a reasonable seizure of my property, but if that conviction is later invalidated, then the seizure was not reasonable and the Government must return it to me. I think a Fourth Amendment right is a substantive right, but what do I know? I am certainly not Justice Thomas, who, conveniently, does not discuss a potential Fourth Amendment substantive right in his dissent.

Court of Criminal Appeals

The Court of Criminal Appeals handed down no orders, opinions, or statements this week.

First Court of Appeals

In Ex parte Miguel Arango, No. 01-16-00607-CR, and State v. Arango, No. 01-16-00630-CR, the First Court of Appeals took up the case of a 16-year-old defendant whose case was certified for adult prosecution. The case languished on the docket for nine years without being tried, until Arango filed a pretrial habeas corpus application challenging the certification and transfer under Moon v. State, 451 S.W.3d 28 (Tex. Crim. App. 2014). Specifically, Moon requires the transferring court to make specific findings about the offense to support the certification for the juvenile to be tried as an adult, not merely make a conclusory statement about the seriousness of the offense. The Court of Appeals held that Arango could raise this issue by pretrial habeas corpus application, because a juvenile court’s transfer order is a jurisdictional prerequisite for the district court. If the transfer order is invalid, the district court cannot acquire jurisdiction over the case and would have to return it to the juvenile court anyway. Unhappily for Mr. Arango, however, upon remand the juvenile court can simply correct its mistake and transfer his nine-year-old juvenile case to the district court for further proceedings, though one would hope, perhaps, that a more amicable resolution could be reached since this case is verging on being a decade old.

In Braughton v. State, No. 01-15-00393-CR, the First Court of Appeals issued an order on rehearing. The disposition of the case remains the same. Braughton was convicted for the shooting death of Emmanuel Dominguez, who, at the time of the shooting, was engaged in a road-rage fight with Braughton’s father. On appeal, Braughton challenged the legal sufficiency of the evidence for murder, the legal sufficiency of the rejection of his defense-of-others claim, and error in denying a lesser-included instruction.

This case upsets me, folks. The facts are only in dispute as to one particular stretch of events. No one disputes that Braughton’s father, mother, and little brother were aggressively tailgated and followed home by Dominguez. No one disputes that Dominguez left his motorcycle and began physically attacking Braughton’s father. No one disputes that Braughton brandished a gun at Dominguez and warned him to stop. No one disputes that Dominguez said something provocative in return to Braughton, and reached toward the saddlebags on his motorcycle. But one high-school junior who watched the events unfold from her screened window from across the street said she saw Dominguez stop and put his hands up, and back away from Braughton. No one disputes what happened after – Braughton fired one shot that just so happened to travel at precisely right angle to do damage to Dominguez’s heart and lungs and kill him virtually instantly.

The reason this upsets me is that this scenario, or one very much like it, has played out in dozens of police/citizen encounters over the past few years, and invariably the police officer is found to have acted reasonably in apprehension of fear for his own life. But when it is a private citizen acting in apprehension of fear of his father’s life, he is convicted of murder and given twenty years’ worth of hard time to do? No. That is not just. I understand the Court of Appeals’ position, in that legal sufficiency is hardly ever an argument that goes the way of the defendant, and there was at least some evidence (bad evidence, mind you, but legal sufficiency does not give us cause to evaluate the relative strength of the evidence, only its existence) that would have led a rational jury to reject Braughton’s argument. So the Court of Appeals correctly decided the case based on the principles of law to which we all adhere, but the end result is still an unjust result, because a just process is no guarantee of a just result. Likewise, even if Braughton were entitled to a jury instruction on the lesser-included offense of deadly conduct, the jury did reject a lesser-included offense of manslaughter, so there is little reason to think that the jury would have accepted an even lesser-included offense of deadly conduct. Any such error would be harmless.

No, Braughton was duly convicted under the laws of the State of Texas, and there simply is not much an appellate court reviewing this record could do. In the original opinion, Justice Keyes dissented, and she would have found that it was irrational for the jury to have rejected Braughton’s self-defense claim. However, in reaching this conclusion, it does require a re-weighing of the evidence, which is against the rules on legal sufficiency review. The evidence tending to negate self-defense in this case is extraordinarily weak, but even weak evidence can be legally sufficient evidence. A high-school child viewing the scene from far away, at night, through a screened-in window that would block 90% of the light coming through, who admitted her own view of the situation was “blurry” was the only evidence tending to negate self-defense as a defensive theory. That is really, really weak evidence. But it is evidence, and sadly, the appellate lawyer in me says that the First Court of Appeals, based on principles of stare decises, correctly decided this opinion. It leaves a vile taste in my mouth to utter those words, because I do think the result in this case is unjust, and I hope that Governor Abbott can be persuaded to issue a pardon.

Third Court of Appeals

In State v. Donaldson, No. 03-16-00085-CR, the defendant claimed double jeopardy barred his prosecution on five counts of theft of property and one count of fraudulent use or possession of identifying information. The trial court agreed and granted Donaldson’s motion to quash in part, leading to a State’s appeal.

Donaldson was indicted in Hays County, Texas, for two offenses – (1) credit card abuse of an elderly individual and (2) fraudulent use or possession of identifying information committed against an elderly individual.

Donaldson was also indicted in Comal County, Texas, for six offenses – one count of theft of property, $1,500 to $20,000; four counts of theft of property less than $1,500 with two prior theft convictions; and one count of fraudulent use or possession of identifying information.

Both offenses arouse out of an incident in Comal County where Donaldson stole the purse of a lady from her shopping cart. He was arrested in Hays County and found with the lady’s identifying information on his person.

Donaldson pleaded guilty to both of the Hays County charges and sentenced to a total of seven years’ incarceration for his crimes.

Subsequent to his plea of guilty in Hays County, Donaldson filed a motion to quash the Comal County indictments under a theory of double jeopardy. The trial court agreed and quashed the sixth count in Comal County, that being the fraudulent use (the common crime between the two indictments). The trial court agreed the two offenses were the same, and that jeopardy barred a second prosecution.

The State appealed, claiming that the “allowable unit of prosecution” in Comal County was the entire transaction (id est, “theft of a person’s identity”) and that therefore the Comal County and Hays County prosecutions were legally and factually distinct. The Court of Appeals, in analyzing Texas Penal Code § 35.21(b)(1), found that the “allowable unit of prosecution” for fraudulent possession or use of identifying information was “each item of identifying information obtained, possessed, transferred, or used.”

And therefore, because the Hays County indictment charged Donaldson with fraudulently obtaining, possessing, transferring, or using “date of birth or other government issued identification or telecommunications access device of another person…” and the Comal County indictment charged Donaldson with using either the lady’s driver’s license or one of eight credit cards, the “allowable units of prosecution” were distinct and Donaldson could be charged with, tried, and yes, convicted of each of the separate offenses.

By way of editorial comment, I think this case is correctly decided, though I think the Court of Appeals labors unnecessarily to reach the conclusion. The “grammatical analysis” undertaken sure sounds official and scholarly, but it amounts to nothing more than a simple plain reading of the statute. If the Legislature permits each piece of identifying information to form the basis of a single charge, then the Legislature intended for the “unit of prosecution” to be the individual pieces of identifying information. Don’t make life unnecessarily hard on your clerks, Third Court of Appeals.

Eleventh Court of Appeals

In Atnipp v. State, No. 11-14-00287-CR, the Eleventh Court of Appeals considered an issue of whether the trial court should have submitted a “depredation” instruction. What, pray tell, is a “depredation” instruction, you ask, constant readers? Allow me to explain.

Defendant Atnipp endeavored one day to walk his pet chihuahua. Upon doing so, he encountered three larger dogs (though, to be fair, everything’s bigger than a chihuahua) – a boxer, a German Shepherd, and a Labrador retriever mix. Fearing that these were not good dogs, Bront, a neighbor, Lori, attempted to round up the rascally escapees and return them to their owner’s yard. When the three on-the-loose doggos got near Atnipp’s home, they saw Atnipp and his chihuahua and went to investigate. Atnipp, fearing for his dog’s safety, took his chihuahua inside and armed himself. Atnipp approached Lori and told her “I will shoot you and the dogs.” Lori told Atnipp they were not her dogs, she was just trying to help her neighbor get them home, but upon seeing the gun, took cover behind some foliage. Lori then heard gunshots, and saw the boxer stumble into the street and die.

At trial for animal cruelty, Atnipp claimed the boxer was being aggressive and threatening his chihuahua. He claimed he should be allowed to avail himself of a “depredation” exception, and that the trial court erred in not submitting that instruction to the jury (truth be told, he actually submitted sixteen issues to the jury, but there is a high degree of overlap).

Texas Penal Code § 42.092(f)(1)(B) contains an exception to animal cruelty which states that a person is not guilty of cruelty to non-livestock animals if that person is engaged in wildlife or depredation control (nota bene: depredation in this context means that wildlife is causing damage to your crops, livestock, or property, such as foxes in the henhouse or rats in the grain silo).

You may wonder whether Texas has ever applied the term “depredation” to the actions of neighborhood dogs. The answer is no, but the Eleventh Court of Appeals stated that even if it were the case that domesticated dogs could engage in depredation (which, again, no, they can’t) there was no evidence of depredation in this case because Atnipp’s chihuahua was safely locked in the house at the time he decided to straight-up murder the boxer (I like dogs; it’s murder). The jury rejected Atnipp’s defense that he was protecting his own dog because that dog was not in any danger from the dog that was shot, and the evidence of the rejection was legally sufficient.

Likewise, there was not need to grant Atnipp an instruction on “depredation” or “property” because, shocker, there was no evidence for his “depredation” defense. The jury does not need to be instructed on defensive theories for which no evidence was produced.

Interestingly, the trial court did include an instruction that no laws regarding state or federal wildlife management applied to this case. The Court of Appeals rejected it on the same grounds, but I think this one is subtly different and perhaps badly-argued by Atnipp. I would call this a “comment on the weight of the evidence,” but apparently Atnipp did not choose to do so (at the time of this writing, the Texas Courts website was down and I could not retrieve the brief to see).

The remainder of Atnipp’s issues all relate to witness testimony inclusion and exclusion, and are very nearly summarily disposed of. The interesting issue was the depredation exception and whether that could apply to domestic animals and not wildlife. I happen to think the rule extended by the Court of Appeals here is correct; even vicious domestic dogs do not engage in “depredation” as defined by the Texas Parks & Wildlife Code. The defense of necessity may be available when someone has to use force against a dog, but not the same defense one would use against a wolf or coyote.

Finally, if you or the life of a loved one (including your pets, I’ll grant) is not in immediate danger from a dog or other animal, come up with a better way of solving your problem than killing an animal.

Fourteenth Court of Appeals

In Kuether v. State, No. 14-15-00357-CR, the defendant raised two issues: (1) mid-trial disclosure of exculpatory evidence and (2) failure of the trial court to suppress pre-Miranda statements.

Mr. Kuether’s vehicle collided with that of a woman doing her Christmas shopping in Houston, Texas. Officers located Kuether’s truck some distance away, with damage consistent with the accident, and Kuether’s identification inside, but not Kuether himself. Officers called for a canine assist (they are all good dogs, Brant), and the dog led the officers to a nearby wooded area. Still unable to find anyone, police summoned a helicopter with thermal imaging, which led officers to Kuether, was stuck “in a bush loaded with stickers.” Sounds uncomfortable.

After removing Kuether from the briar patch, officers cuffed him, put him in the back of the patrol car, and examined him. Kuether appeared intoxicated, and in response to an officer’s questions, stated that he had been drinking and driving. Officers took Kuether to the HPD intoxication processing station for sobriety testing, where he was read his Miranda rights.

The State failed to disclose to Kuether and his counsel that a witness had changed a statement before trial. A witness, Mr. Nguyen, saw the crash, but changed his story between giving a statement to the officers on scene and during the “RIP” call from an intern with the Harris County DA’s office, and January of 2015 when Nguyen told the trial prosecutor “I don’t remember the incident.” But “I don’t remember the incident” is very different than, “I lied before,” so Kuether was unable to show how he was prejudiced by this late disclosure, because Nguyen did not testify at trial.

In the second issue, the Court of Appeals found that Kuether was not “in custody” for Miranda purposes when he was pulled out of the briar patch, handcuffed, and put in the back of the squad car. Kuether was obviously detained, but not to the degree of “station-house questioning” that Miranda requires.

In Long v. State, No. 14-16-00149-CR, the Fourteenth Court of Appeals considered a life sentence handed down for a first-degree felony theft (yikes). The common scheme used in these thefts seemed to be that Long would call up an industrial company, ask for work to be done (usually in the name of ExxonMobil Canada), and then refer the companies to B&L Materials in Tomball, Texas for purchase of a specific material that only B&L sold. The companies would rush a check or money order over to B&L, who would give the company ordinary, cheap materials, and B&L would pocket the difference. When officers eventually traced the web of aliases, burner phones, and identity-hiding subterfuge back to Long, they found fake IDs, corporate information for B&L, electronics, and approximately $765,720.00 in cold, hard cash, along with eight dogs (who, while their owner may be a bad guy, it must be remarked, are still good dogs).

Long challenged the legal sufficiency of the evidence to support aggregate theft, but that got him nowhere. Next, he challenged the trial court’s submission of a “circumstantial evidence” charge to the jury, but the Court of Appeals found it to be a correct statement of the law and therefore not error.

Long also challenged the trial court’s denial of his motion to suppress. But because this was a search pursuant to a warrant, the warrant was found to contain sufficient probable cause.

Long also claimed that the trial court abused its discretion in refusing to allow him to represent himself, after an appropriate Faretta hearing. As mental health’s intersection with criminal law is one of my areas of specialty, allow me to state flat-out that mental illness is never a sufficient reason, standing alone, for refusing a defendant’s right to self-represent. Self-representation is a foolish, foolish gambit, but it is the criminal defendant’s right to be a fool. However, evidence of mental illness, coupled with other factors, may be sufficient under Faretta to deny the right of self-representation. Because Long himself admitted he was not at full mental capacity (having, at various times, only 90% or so of his memory recall intact), there were very good reasons for why the trial court should have denied Long the right to self-represent.

The long and short of a case like this is: criminals are almost never as smart as they believe themselves to be, and even somewhat careless criminals can bilk even savvy businesspeople out of nearly a million dollars with a good story and a few charming words. So bear that in mind the next time someone calls your office promising the world’s best lawyer website and plenty of referrals if only you will pay them a small consideration.

Thelonious Paul Henry (new favorite name) filed a petition for a writ of mandamus seeking to compel the judge of the 263rd District Court to rule on his motion to reduce sentence in In re Henry, No. 14-17-00250-CR. However, the documents attached to the petition for a writ of mandamus did not have a file stamp, nor was there any indication that they had been presented to the trial court. As it is a truism that one cannot obtain what one has not requested, the Court of Appeals denied the application for a writ of mandamus, and told Mr. Henry to please let the trial court know what he wants before trying to force the trial court to rule on the motion.

As a general practice note, I will say that when one is appealing to the more merciful senses of the judiciary, it is best to attempt to stay on their good side, and seeking to mandamus them is almost never the way to stay in the good graces of the judge on whose mercy you may find yourself thrown.