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.

Defending Yourself

Face it, it’s going to happen to all of us.  An 11.07 writ alleging ineffective assistance of counsel (“IAC” for short).  Essentially, a client or former client is accusing the lawyer of representing them poorly or misleading them in some way, thereby causing their incarceration.  This happened to me this year.  I was initially pretty upset, but I was also prepared.

The details aren’t that important, but some basic facts are material.  My client, who we can call “Donnie” was accused of robbery.  He was on parole for murder and had been convicted of several prior felonies.  He has been incarcerated most of his adult life.  This offense was also committed in front of a surveillance video camera.  Making matters worse, and harder to defend, my former client Donnie confessed to every element of the offense on video after being Mirandized by a professional and thorough detective.  For some reason, the ADA on the case did not list the enhancements on the indictment but everyone was aware of their existence and the great leverage they provided.  Eventually, Donnie pled guilty and was sentenced to six years in prison.  I was very pleased with that result.  Donnie’s family was pleased with that result.  Donnie himself was ecstatic being sentenced to only six years with the indefensible facts and his numerous prior convictions and the possibility of facing a minimum of 25 years in TDCJ.

Flash forward to this year, I received a package from the clerk’s office containing the 11.07 Writ, the State’s Answer (basically punting) and an order for me (trial counsel) and an attorney from TDCJ to provide affidavits as to our memories of the case so that the trial court could make findings of fact and rule on the 11.07 writ.

While I was not anticipating such a matter in this case, I was aware it could happen.  And I was ready.  My client alleged I did not share the facts of the face with him, mislead him about the possibility of parole and was generally ineffective.

In this case, as well as all other cases, I followed the same practice.  I kept my physical file in storage (alphabetically for easy access but that may be some level of OCD) along with all discovery materials, my notes, work product and details of my meetings and correspondence with my client, the ADA, witnesses, and Donnie’s family.  I was able to detail my meetings with the client, the letters and correspondence I sent him and the ADA and the dates of the jail visits very easily.  I prepared an affidavit detailing what Donnie was told and when.

I certainly don’t relish the fact that Donnie will spend some more time in prison, but I sleep soundly at night that he knew exactly what was going to happen to him during our case and that his plea was done freely and voluntarily.  I also sleep soundly at night that I have detailed notes in his file as well as all my other cases so that I can defend myself if needed.


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.


Significant Decisions Report for April 14, 2017

***Editrix’s note: Constant Readers, please excuse the tardiness of this posting. Of course, your darling Lane submitted it on time, but your wretched Allison did not post it with her usual haste.**

When one thinks of the wildness and newness of spring, the very last place one would expect to find such qualities would be a pre-war opera house in Paris. And yet, in 1913, during the opening performance of Russian composer Igor Stravinsky’s Rite of Spring at the Théâtre des Champes-Élysées. Everyone who was anyone in European society or the European art scene was there, and the result was, in the words of one historian, a “ruckus.” So it is with this wilding spirit on our minds that we must put aside our thoughts of scholarly legal detachment, and consent ourselves to get as down as dirty as European aristocrats at a disappointing night at the ballet if we are to divine meaning and guidance from the courts of appeals this week.

Fifth Circuit

In USA v. Tracts 31A, Lots 31 and 32, the Fifth Circuit took up the matter of a civil forfeiture action and a purportedly-innocent spouse. A one Mr. Calvin Walker, pursuant to a plea bargain, agreed to forfeit two annuities held solely in his name. His (no doubt long-suffering) wife Stacy appealed, stating that the district court erred in forfeiting her one-half community interest in those annuities.

For those unfamiliar with Texas family law, almost any asset acquired after marriage in Texas is owned as “community property” between the husband and wife, no matter what the title documents to the asset state. That is, there are three strains of community property: joint community property (titled in both parties’ names) and community property subject to one party’s sole management, control and disposition (in this case, the annuities would be community property subject to the husband’s sole management, control and disposition). This gave Mr. Walker the right to dispose of the property, but also gave his wife a claim on 50% of any proceeds from the sale or disposition of such property.

The Walkers were represented by the same counsel (this was a bad idea, in retrospect). So while Calvin certainly had the authority to agree to forfeit his ½ share of the annuities, Stacy argued that she was not a party to the plea agreement and that Calvin could not agree to forfeit what was not his to forfeit.

Stacy obtained new counsel and objected to the Government’s motion to enter the forfeiture judgment. However, the Texas Family Code, in section 3.104, says that an innocent purchaser of community property that is subject to a spouse’s sole management, control, and disposition is entitled to rely upon the apparent authority of that spouse to convey the property so long as the third party “does not have actual of constructive notice of the spouse’s lack of authority” to deal with the property. Stacy attempted to show that the Government should have had constructive notice; this argument was not successful because “Stacy was represented in the present forfeiture proceeding by the same attorney who was negotiating the plea agreement in Calvin’s criminal proceeding; Stacy was present at Calvin’s plea hearing, at which Calvin confirmed his understanding of the plea agreement; and Stacy never brought the lack of Calvin’s authority to the attention of her attorney or the Government.”

The result? Stacy has no claim to prevent the Government entering judgment and forfeiting the annuities. The Court of Appeals expressed no opinion, but I do believe she may have a remedy against her husband for fraud and waste of community assets. Of course, he’s probably going to federal prison, so she may only end up with a worthless judgment against him, but the lesson here is assert your defenses early, often, and with the assistance of fully independent counsel. If you are representing a criminal defendant who is subject to asset forfeiture proceedings, it is probably best practices to suggest that an independent attorney be obtained not only for family members or spouses of your client, but for your client in those same proceedings.

Court of Criminal Appeals

Reed v. State

The trial court denied Reed’s motion for post-conviction DNA testing, and the Court of Criminal Appeals affirmed the denial. Reed, in his motion, suggested that “touch DNA” may be available that was not subject to prior testing (“touch DNA” refers to the fact that in touching something, a person may deposit skin cells, from which a DNA profile can be extracted). However, Chapter 64 requires that the evidence be subjected to a chain of custody sufficient to establish that the evidence to be tested has not been altered in any material respect, and in this case, evidence technicians for the State testified that because the exhibits were not individually packaged, they did not remain in an uncontaminated condition. However, and more pressingly, the overarching theme of Art. 64.03, Code of Criminal Procedure, is that the evidence to be tested must, if exculpatory results are received, show by a preponderance of the evidence that the defendant would not have been convicted. In other words, does the presence of a third party’s DNA, or the lack of presence of the defendant’s DNA, on a given piece of evidence tend to exculpate the defendant?

It is of paramount importance that an attorney handling a post-conviction DNA testing motion be able to show “why the presumed exculpatory results of the items [the defendant] wanted tested would result in the jury finding [the defendant] not guilty” (slip op. at page 26). Merely “muddying the waters” is not enough.

Hankston v. State

This is an important case. The State obtained, without a warrant, call logs and cell site location data regarding Mr. Hankston’s Sprint mobile phone. In Ford v. State, 477 S.W.3d 321 (Tex. Crim. App. 2015), the Court of Criminal Appeals held that a warrantless seizure of call logs and cell site location data from a third-party mobile service provider does not violate the Fourth Amendment rights of a defendant. In Hankston, the Court of Criminal Appeals held that Art. I, § 9 of the Texas Constitution does not provide greater protection than the federal constitution. The Court held that Hankston “voluntarily provided his call information and historical cell site location information to Sprint so that it could perform the service for which it had contracted” (slip op. at page 20). Oof.

An interesting question remains: what if Sprint had refused to just hand over the records to the police? Could they be compelled, via subpoena power, to do that? Or was this case decided as it was because Sprint was so obliging? I do not know the answer to that, but I do know that if I owned a Sprint phone and was concerned at all about my privacy, I might find a different carrier.

Allen v. State

The Court of Criminal Appeals initially granted review to determine whether the Fourteenth Court of Appeals erred in upholding a trial court’s refusal to permit certain evidence Allen believed relevant to his claim of self-defense. However, after reviewing the briefs, the Court thought, “nah,” and dismissed the PDR as improvidently granted. Oof again.

Ex parte Broussard

In a post-conviction writ proceeding, Broussard claimed his conviction should be thrown out because he pleaded guilty to delivery of cocaine when in reality lab tests showed he delivered methamphetamine. Judge Keasler, writing for a five-judge majority, rejected the claim. Judges Alcala and Newell dissented, with Judge Alcala filing a written dissent. Judge Walker concurred.

As we all know from countless plea colloquies, every plea must be knowing, intelligent, and voluntary. So the question is, what do our clients need to know, and when do they need to know it? The Court holds here that “complete knowledge” is not required, “sufficient awareness of the factual circumstances surrounding a plea” is all that is required.

The Court found that Broussard was merely mistaken about the facts sufficient to justify his plea – he now knows that the State could not have proved he possessed cocaine, but was presumably aware at the time of his plea that the State could prove he was in possession of and delivering something, if not cocaine, then another controlled substance.

Judge Alcala urged a more cautious approach in her dissent. Because the case “turns on whether the absence of cocaine as indicated in the laboratory report should be narrowly considered as impeachment evidence,” in which case the denial of habeas relief is proper, or “whether [the absence of cocaine] should be more broadly considered as evidence undermining the existence of the offense for which applicant was convicted,” Judge Alcala urged that the better course would be to grant relief to ensure that no due process violation occurred.

Ex parte Reece

In an appeal challenging the facial constitutionality of Sec. 42.07(a)(7) of the Texas Penal Code, the Court of Criminal Appeals denied discretionary review. Presiding Judge Keller, joined by Judge Alcala in dissent, would grant review. As this was a petition my co-counsel and I presented to the Court, I will endeavor no further discussion, but suggest to all and sundry to read Presiding Judge Keller’s published dissent. I encourage anyone to contact me with questions about this appeal and issues regarding this statute, if relevant to your cases.

First Court of Appeals

In Pate v. State, No. 01-16-00569-CR, Ms. Pate pleaded no contest to a DWI charge and received eighteen months’ worth of deferred adjudication community supervision. The trial court granted her leave to challenge the ruling on her pre-trial motion to suppress, which she did by claiming the arresting officer did not have reasonable suspicion to conduct a traffic stop as the officer’s stop was based solely on an anonymous tip.

The officer testified at the motion to suppress hearing that a caller reported a possible drunk driver at a Whataburger, which I get. When you crave a Whatameal, nothing else is going to suffice. But maybe call an Uber or get a sober friend to drive you. It’s hard to enjoy a hot, juicy Whataburger any way you want it when you’re in handcuffs.

The First Court of Appeals found that the officer was justified in conducting a traffic stop because the anonymous informant’s call was supported by sufficient indicia of reliability – namely, the caller made a “contemporaneous report that he was almost sideswiped by another vehicle” and that Pate apparently “admitted she was a little tipsy or intoxicated or something to that nature” when the caller approached Pate. Firsthand knowledge of dangerous driving is one indicator of reliability. The anonymous caller also provided more than a general description of Pate’s car, including a full license plate and location of the vehicle, which was still in the drive-thru lane at the restaurant. A bold effort on Ms. Pate’s part, but one that, much like her ill-advised drunk munchies trip, was doomed to failure from the outset.

Fourth Court of Appeals

In Rhomer v. State, No. 04-15-00817-CR, the Fourth Court of Appeals considered whether the trial court erred in admitting the testimony of police officers who testified about a fatal vehicular collision between Rhomer’s car and the victim’s motorcycle. Specifically, Detective Doyle testified that, in his opinion, Rhomer drove into the victim’s lane of traffic. And Officer Graham testified that he did not believe Rhomer’s contention that the victim drove into his lane of traffic.

But Detective Doyle testified as to his training and experience as a traffic investigator, which the trial court concluded was sufficient to establish him as an expert (and, in reading the Court of Appeals’ recitation of the record, he probably was). The question then became whether the trial court should have applied the “hard science” rule of Kelly or the “soft science” rule of Nenno to the reliability of Doyle’s testimony. The Fourth Court of Appeals ruled that Nenno was the correct precedent to apply, because Doyle’s reconstruction was “not dependent upon a scientific inquiry (such as the speed of a vehicle) and was based on his experience and training,” namely in describing debris patterns following a crash. Which sounds a little sketchy to this author, but them’s the rules, folks.

Officer Graham, on the other hand, admitted he was not qualified to conduct accident reconstructions, but did state that he had years of training on how to investigate and document a crime scene. The Court of Appeals concluded it was not an abuse of discretion to permit him to testify that he did not believe Rhomer’s statement that the victim crossed into Rhomer’s lane of traffic.

What I am wondering is why no one challenged Graham’s testimony on the grounds that he was commenting on the truthfulness or believability of another witness, particularly the defendant, when the Court of Criminal Appeals has been quite clear that direct opinion testimony about the truthfulness of another witness, without prior impeachment, is inadmissible. See Lopez v. State, 343 S.W.3d 137, 140-41 (Tex. Crim. App. 2011). Maybe the issue wasn’t preserved, in which case, consider this the most salient point from this opinion – any time the prosecutor asks a witness, even an expert, to opine as to whether they thought your client was telling the truth, or whether they believed a victim or an eyewitness, stand up and object that such testimony is improper and invades the province of the jury alone.

Of course, that rule goes right out the window if your client takes the stand, or you suggest the witness/victim may be lying, so be careful.

Sixth Court of Appeals

In Vanhalst v. State, No. 06-16-00080-CR, the Sixth Court of Appeals considered the effect of a trial court’s submission of an accomplice witness instruction under Art. 38.14 of the Code of Criminal Procedure. Briefly, that article says that the State cannot obtain a conviction on the testimony of an accomplice alone unless there is sufficient corroborating evidence. If the evidence of accomplice-status is contested, the instruction given under the Article first asks the jury to decide whether the witness is an accomplice, and if so, then to discount the testimony unless there is sufficient corroboration. Because this is not submitted as a special issue, however, the jury is never asked to inform the Court how they resolved the issue. In the event of a conviction, however, there are only two possibilities – one, that the jury found the witness to be an accomplice, but the evidence of corroboration was strong enough to convict anyway, or two, that the found that the witness was not an accomplice. On appellate review, the questions therefore are: (1) was the witness an accomplice as a matter of law, and if so (2) was the evidence sufficiently corroborated? Mr. Vanhalst lost at step 1 – the evidence showed that the witness merely helped dispose of the body, which would not subject the witness to a murder prosecution. It also appears that, when the witness’s case was presented to the grand jury, the grand jury returned no true bill on a charge of murder.

Eleventh Court of Appeals

In Castillo v. State, No. 11-14-000280-CR, the Eleventh Court of Appeals also considered an accomplice-witness rule issue. The Court distinguished between being an accomplice witness as a matter of law (those cases in which the jury is not called on to decide whether someone is an accomplice) and being an accomplice witness as a matter of fact. If there is a question, then the proper method is to submit the issue to the jury as in Vanhalst, above.

In this case, Carroll was the getaway driver and helped Castillo destroy evidence related to the murder of the mother of Castillo’s children. But Carroll testified that she did not know that Castillo intended murder when she drove him to the victim’s apartment. Thus, she was an accomplice only as a matter of fact, and the trial court’s instruction was proper, even though it did not have additional language about “directing” Castillo (because there was no evidence of it) or of Carroll being an accomplice only “after the fact,” because such distinctions no longer have any meaning in Texas’s accomplice witness jurisprudence.

Fourteenth Court of Appeals

In Williams v. State, No. 14-16-00292-CR, the defendant sought to suppress the results of his horizontal-gaze nystagmus (HGN) test on the basis that the investigating officer failed to ask “certain qualification questions” before administering the test, namely, whether Williams had any recent head injuries or needed to wear corrective eyeglasses. Williams testified he did have a 2003-2004 head injury, but did not provide evidence that the injury was of such a nature that it would invalidate the HGN testing. Little, on the other hand, testified that he checked Williams’s pupil size and tracking, and saw that Williams was a good candidate for the HGN test. In the battle of “some evidence by the State” and “virtually no evidence by the defendant,” the defendant lost in this one.

In Ex parte Jorge Perez, No. 14-16-00332-CR, the trial court denied a double jeopardy writ application. At Perez’s first trial, a jury was empaneled and sworn, and then recessed. Why? Because the court was going to hold a hearing on Perez’s motion to suppress. Which they did. At which point, Perez testified he was having flashbacks to his commitment in a mental institution. The trial court looked into Perez’s mental health history, and concluded there was a likely competency issue. So the court recessed the jury for four months, and sure enough, when it came time to recall them, only five jurors showed up because some of them had moved out of the county. A mistrial was granted. On habeas review, Perez contended there was no “manifest necessity” for granting the mistrial, meaning he could not be retried following a mistrial. And the Fourteenth Court of Appeals agreed! Tres bien!

There were potentially twelve jurors who could have proceeded. Although only five showed up for trial, the trial court had options for getting them for trial. There was a less-drastic alternative – the out-of-county juror could be compelled to attend, and if the parties agreed, even serve on the jury, because no one challenged this juror for cause. As such, there were “less drastic” alternatives than mistrial, such as granting a continuance to provide more notice to the jurors to attend. As such, the mistrial was not the proper move for the Court to make, and Perez is entitled to habeas corpus relief from twice being put in jeopardy.

Lessons for the State here? Always, always, always, have all matters that need to be heard pre-trial heard before you swear a jury. Lessons for the defense? If the State is going to just hand you a mistrial by empaneling a jury and then excusing them for a third of a year, let them. You don’t owe it to them to prevent their mistakes.

In Ex parte Gonzalez, No. 14-16-00486-CR, the defendant challenged, via pre-trial writ, a Harris County ordinance against operating a game room. But because some of the regulations she was challenged were not ones she was charged with violating, she cannot challenge the facial unconstitutionality of those claims. Likewise, she cannot complain about the severity of penalties which have not yet been applied to her, and may never apply, dependent upon the outcome of the case. Finally, her as-applied challenge was not yet ripe because some as-applied challenges cannot be determined pre-trial (at present, those which can seem to be largely limited to situations in which one is the former governor of Texas). So Gonzalez may have a good constitutionality claim, but she will have to wait until after her trial to see whether she does.


The Defense Bar Remembers Hon. R.H. “Sandy” Bielstein

“I am heartbroken for the loss of a great man and my great friend.  Sandy meant so much to so many of the lawyers and staffers in the Fort Bend Justice Center. He was a mentor to so many, and a friend to all. But he remained special, and occupied a unique spot in my heart.

On my first day as a licensed Texas attorney, a wrong turn brought me to Sandy.  The new judge took me under his wing when I showed up in this new place, with no friends, no guidance, or experience to do the job. He taught me to be a lawyer. He taught me that standing up for justice sometimes meant standing up to fight an unwinnable fight. As a Judge, in both words and actions, he taught me that respecting every person without regard to race, religion, status, or fortune, was the mark of a good attorney, a decent person, and the key to a fair justice system.

 Truly, Sandy was more than a friend. In my times of hardship and illness, he stepped up to help me. When I could barely walk, he stepped up to pull me along. When I was distressed, and thought I could go no further, he was my calming influence to get me through the pain.  He was my counselor, my guide, my leaning post, and the man who encouraged me to be better than I ever dreamed I could be.  I know I will miss his booming voice and smiling face, but I will keep a smile knowing he’s resting in a much better place.

In time, someone will come along and fill his seat, but no one will ever take his place. His words and deeds will be legend, and his professional legacy will live on through us, his mentored.  My family and I, along with the people of Fort Bend, owe a great debt to Sandy, and to his family, for allowing us to share him.

I will forever miss my accidental friend.” O’Neil Williams


“Of the things I loved about Sandy, perhaps what I enjoyed the most, was his wry sense of humor. He loved to tease people, giving many of us nick-names, and it was something of a badge of honor to receive one from him because it meant he really liked you. Years ago a mutual friend named Jim suffered the loss of 1/2 of a finger in a shooting accident. Whenever they met, Sandy would smile, hold his hand out flat and say ‘Hey Jim, give me 4 1/2!’   In chambers one day Sandy asked me, ‘Have you seen ‘ole 4 1/2’ lately?’ No name needed. I won’t tell you the nickname he gave to me because it would take too long to explain. But ‘Ole 4 1/2’ and I are going to miss our good friend, and his keen sense of humor.  You were our one of a kind friend, servant of this nation in the USMC, servant of the City of Houston with HPD, and servant of Fort Bend County as an outstanding judge. Rest in peace, amigo.” Timothy Quill


“I remember when they came for my stepdad. It was in the middle of the night when I ran downstairs and saw the police inside our home. I watched helplessly as he was handcuffed, shoved into a police car, and taken from me. Falsely accused by a corrupt family attorney and subsequently indicted of one of the most heinous crimes imaginable, my stepdad reached out to a fellow Vietnam veteran and former U.S. Marine, R. H. “Sandy” Bielstein. The only thing my stepdad did was save my mother from a hell another man created, raise her children as his own, and teach me that the greatest power known to man is that of unconditional love. Sandy defended his honor against this injustice and fought for him all the way to trial. It was years later, after I had enlisted in the Marine Corps, that the verdict came back. Not Guilty.

It has been over 20 years since that night and never would have thought I’d end up becoming a trial attorney, let alone have a criminal defense practice in his court. Judge R. H. “Sandy” Bielstein dedicated his life to defending this country, defending his community, and preserving the rights of those falsely accused both from his private practice and from the bench. His calling to live a life of service and to help make the world a better place is not only what made him my hero, but also my mentor and friend. I hope that everyone, when such people cross their paths, never take someone like Judge Bielstein for granted. I certainly never did, and never will. He was truly Liberty’s last champion. Rest in peace, Your Honor. Semper Fidelis.” Mark Metzger


“Judge Bielstein was one of the very few Judges who thanked me for helping bring a case to conclusion without costing the County/State a lot of money.  He said, as a Private Investigator, our jobs were equally as important in his court.  I found him to be a man of his word, a man of integrity and honesty.  I will miss seeing him on the bench.” –Anonymous Private Investigator


“When I started my own practice focusing on criminal defense around 2006, I had a serious problem: I had no experience. I had heard that a Judge down in Fort Bend, a man I would later know well as Judge R.H. “Sandy” Bielstein, would appoint rookie lawyers from the bench. So I went down there and met with him. I mentioned that my trial advocacy Professor at UHLC was David Cunningham and he told me that he would appoint me some cases and that I should continue my tutelage under David (and David still mentors me to this day). I got my first hung jury in front of Judge Bielstein, and I also got my first not guilty. He also gave me a recommendation to TCDLA’s Trial College.

Many years later another lawyer told me that Judge Bielstein had told him something along the lines of ‘I didn’t think Fox would make at as a lawyer, but I was wrong.’

I love that man. He gave me a career, even when he wasn’t sure that I would have it in me to make it as a lawyer.

Judge Bielstein gave me a shot. He gave a lot a lot of people a shot.

He was a good man and a fair man and it breaks my heart to know that he has passed. I wouldn’t have a career without him, and I know many other lawyers are in the same boat. We are all poorer with his passing.” Fox Curl


“When I was starting my life as a Defense Attorney, well…I  wasn’t. I wasn’t anything. Some people say during their whole careers they have been standing on the shoulders of giants. Little did I know I would meet three of them at once. I remember parking my car that August day in 2004 thinking to myself “Where am I?”  Little did I know, I was parked in front of the office of my future mentors and future adopted family. I nervously waited for my mentor while his secretary calmly told me he would be coming. Finally, in walked Ralph Gonzalez.  He and his office mate, Diana Adams, would mentor me and show me the ropes here in Fort Bend. I remember him hurriedly coming in, welcoming me to his office. He then whisked me away to “the courthouse.”

I literally didn’t know where the courthouse was. We went up the elevator of the Travis Building and went to the Court. Not only did we go to court, Ralph and I went back to the Judge’s chambers. By the time we got there, there were other attorneys sitting in chambers and behind the Judge’s desk was this large bearded man smoking a cigarette and speaking with this loud booming voice. That man was R.H. “Sandy” Bielstein. Ralph introduced me to him and he welcomed me to his court and Fort Bend.  After introductions I observed my first juvenile docket with Judge Bielstein on the bench. I remember thinking to myself…I would kill to have his voice!

Months and many questions later, I received the news that I passed the bar. People asked me if I was going to Austin to be sworn in, and I thought to myself that there’s only one person I would have swear me into becoming a bonafide attorney. That was Judge Bielstein. I still remember standing in front of that giant man trying to get the oath right. I was so nervous. He took his time with me and after that he took pictures my mother would keep asking for.

He would later be the Judge that gave me my first appointed case. I still remember it was an assault case. My first check.  From then on his chamber door was always open. He always had time for me, even when his chamber was full of other attorneys vying for some time with him. He would sit with me through good times such as those, and was there for the bad times. I still remember his voice of anguish when I talked to him about the bad turn of events that took the life of Diana Adams. Though he and Diana had been adversaries at one time, they became fast friends soon after. I could see it hurt him when I told him the terrible news.

I learned so much from him over the years. Like “it never hurts to ask” the Court anything. You’ll never know what may come of it. I also learned that regardless the individual, mercy is due. That is rare in these “tough on crime” days.

When I moved my dad in with me after my mother succumbed to pancreatic cancer, Judge Bielstein would take time to ask me how he was doing. How I was doing. And after my father passed recently the last conversation we had started with Judge Bielstein asking me how I was doing. Even though I know he wasn’t feeling well, he was still concerned about how I was.
Last Sunday I lost another giant. We all did in the legal community. Rest In Peace Judge Bielstein…you will not soon be forgotten.” Scott Martinez


“Although I don’t have a special Sandy story to tell, I’ve known him for nearly 30 years.  I first met Sandy when I was in law school and knew him when I was a prosecutor and he was in private practice.  I always had an enormous amount of respect for him, both as a lawyer and for his service to the city of Houston and our country.  When I first started going to Fort Bend County regularly, I stopped by his office.  He presented an earnest welcome and extended an invitation to visit any time.  I remember thinking walking away impressed with how nice and welcoming he was to me.  That seemed to be the way he always was.  He was warm-hearted and friendly and he seemed to be that way with everyone.  He was a great judge and will be missed by the citizens of Fort Bend County.” –David Kiatta


“Judge B was the most influential person in my legal career.  He was the presiding Judge at my first jury trial as 3L intern at the Fort Bend DA’s office, as ADA in Fort Bend,  and as a defense attorney.  He was a scholar and a gentleman.

As the presiding judge of very first trial as 3L intern, he was kind, patient, and reassuring.  After a 3 minute Not Guilty, he invited me back to his chamber for a cigarette and to help dissect my direct of the officer and closing statement.  He gave me great insight into my presentation and comfort of the courtroom.  As the presiding judge my first trial as ADA, he was fair, tough and always patient.  After a long deliberated Guilty, we once again sat in his office to discuss the case, but he had quit smoking by this time.  As a prosecutor in his court, he made me a better lawyer and legal analyst.  He demanded that I know the facts and the law, otherwise it was the demise of my case.  As a judge over my first trial as a defense attorney, he was jovial and once again patient.  After long day of deliberations, and a guilty and not guilty, we again sat in his office to discuss the case, my plans for the future and just how I was doing.  We laughed at how during my closing, I accidently asked the jury for a guilty verdict (old habit).

On so many different occasions through our 10+ years of friendship, I would lose my demeanor for what I thought was a just right or equitable.  He would kindly listen to me blow my smoke and make his ruling.  But what I loved most was how he would gently let me huff and puff  if I disagreed.  Always listening and but kindly say, “Mr. Tu…” if I got too far out of line.

There is a hole in my heart for the citizens of Ft Bend County, to the personnel at the courthouse and to me personally for such a great and unexpected loss.”  Paul Tu


“I received my first court appointment in Fort Bend from Judge Bielstein in the early 2000’s. He asked who I was, and when I told him, we went back into chambers and talked. I let him know that I was a vet and he told me that he was a Marine; once a Marine, ALWAYS a Marine.

He was a crass, chain-smokin’ cool dude. Told me about his time as a vice cop for HPD in the late 70’s in the Montrose area. We had a good laugh about some of the places he patrolled and some of the busts he made. The guy was the best and fairest judge that I have EVER been before. He treated the defendants and lawyers with the utmost respect. Judge Bielstein knew how to talk to and treat poor people, which sadly, alot of local judges in this area (Harris Co.) have no clue how to do. They have NEVER been around poor people but for a court setting and it shows. He was different. He had empathy AND integrity.

Rest in peace Judge. Semper Fi.” Kendric M. Ceaser
“I met Judge Bielstein approximately 2001 having been introduced by a mutual friend. He was very friendly.  He gave me my first appointment in Fort Bend and told me how to get on the misdemeanor and felony appointment lists.
He was an extremely fair Judge. He was very stern when he had to be, but went that extra mile to save a probationer.
He was always fair in his rulings, and pleasant to be before.
I will miss him.” – Lawrence T. Newman


“The news of Judge Bielstein’s passing was devastating for so many people, and it was a harsh and unwelcome blow to the legal community in general and to Justice in particular. I feel that kind words just seem so insufficient to honor the memory of such an exceptional man, but these are the words that come to my mind when I think of him:  He was a remarkable man who gave invaluable advice, possessed immeasurable grace and compassion, was always there for you when you needed  him, had a golden heart the size of Texas, was a staunch advocate for Lady Justice, and he could always, always make you laugh. And then laugh some more. I will miss him so very much. ” –Leigh Love


“I met Judge Bielstein several years ago in his judge’s chambers, introduced by another mentor of mine who urged me to come to Judge Bielstein’s court to get some appointed cases as I was starting my fledgling practice. Hardly a rare story, as it seemed Judge Bielstein had a soft spot for fresh, young attorneys looking to make their way. After that, hardly a week went by when I wasn’t in his court working cases that he had appointed to me. We talked in his chambers often, and he would always ask how I was doing and how my practice was going.

Judge Bielstein became a mentor to me, as he did with so many young lawyers, and his words of wisdom and advice constantly resonate in my mind, especially those that came in a conversation in his chambers after trying my very first trial as lead counsel. Every trial lawyer will always remember his first trial, and as luck would have it, Judge Bielstein would preside over mine, making it that much more memorable.

So much can and will be said about this great man. He possessed the qualities and character which make not only a great judge, but a wonderful human being, whom I am both grateful and proud to have known. I will always hold him in the highest of regards, and will be forever grateful for everything he did to help me as a young lawyer. He will be truly missed.” –Wade Smith


“There are always people in one’s life who have an impact that is often not fully appreciated until years later. They say and do things that one realizes only long afterwards mattered a great deal.  Some people set out a path that they point out for others to walk.  I have been very fortunate in my life to have had contact with such people, both men and women.  Some have stayed in my life to this day; others had a brief but powerful impact that even now I still find myself contemplating.   They have included many folks from all walks of my life – school, service, the legal profession, friends and loved ones.  One man in our local courts here also had that kind of impact on my life.  His name was R.H. [he never liked his first name much] “Sandy” Bielstein, judge in the County Court Number Four in Fort Bend County, Texas. I know many of my colleagues have older, funnier stories of him; I do not pretend I knew him as well as others did.  I only know what he meant to me.


I began practicing out here almost twenty years ago. I was young, green, and thought I knew something.  Sandy was the first one to remind me of the limits of my knowledge, yet he still kept encouraging me to work here, to take appointments in his court, to help juveniles, and to handle more difficult trial and capital work once he knew I was qualified to take those matters.  There are countless times when I would sit in his chambers, having a cup of hot coffee while talking with him and absorbing some sense of his views on life and the law. He had crammed a lot of living into his years; he had been a Marine, a cop, a defense lawyer, and a judge.  He had seen quite a bit of life and more of lawyering than I likely ever will.  I tried to glean what I could from those times in his office, but there were three times that stand out to me most.


The first was when I had come back from Bosnia, and a tour of duty that profoundly changed how I viewed the world and my place in it.  He, along with his friend Susan Lowery down the hall, were the very first judges to welcome me back and put me to work to rebuild the practice I had shut down when I left on recall.  His constant encouragement to handle more difficult and challenging work helped me move up to more serious trial cases out here, and he introduced me to the district court judges with approval, approval I have tried hard to keep earning.  The second was during one of the most challenging and difficult trials of my professional life, a capital murder case that seemed destined for a bad outcome from the start. His exact words to me as I sat slumped and exhausted in the chair in his office after a long day of grueling jury selection, were these “Son, there ain’t nothing that says you have to like this job, or the clients, or the outcome.  You just have to do your best, and never quit trying.”  It was spoken like a Marine, and it put some steel back into my spine so I could keep going the next day.  I have never forgotten that.


The last time was when, a little while back, I had foolishly volunteered to help on difficult juvenile cases that came into his court.  These included cases of the mentally ill, the violent, the sex offenders, and the indigent and abused who fell into his court.  I found the work humbling, because there were often no good choices for these kids, and he knew it as well.  I kept on doing the work after a particularly sad case of a mentally ill youngster whom it seemed had been cursed by a very uncaring universe.  I kept on doing it because he took me in back for our one thousandth cup of coffee, and said to me ‘If you were a medic, and you could not save some, would you stop trying to save the next one?’  I knew the answer, and so did he.  He just had to remind me.

I will miss his often bawdy and always irreverent humor.  I will miss his gruff kindness, and his antipathy for those who had no sympathy for the ones that God seemed to have left behind.  I will miss his spirt, and his desire to always find a way to get justice done.  We all will.

Most of all, I will miss hearing that voice saying, ‘Come on in, sit down, have a cup of coffee,’ to me and so many others.” –Pat McCann



“Just as countless others can say, Judge Bielstein appointed me to my first case. That is not all he did for me as a new attorney. Being in Judge Bielstein’s Court allowed me to constantly experience what I think is the greatest part of working in criminal law, being able to truly help people strive to live a better life. With each case that came before Judge Bielstein, as he talked to the defendant about their case, you could see and feel the genuine concern he had for them and the positive changes he hoped to impress upon them. Judge Bielstein showed me that no matter where you are or what you are doing, if you take every opportunity to help and show compassion, others will see and follow your lead. Judge Bielstein truly cared about all the people that came into his courtroom. He was a great person and Judge, I will miss him.” – Nina Marie Amadi


“Judge Bielstein will be missed, but never forgotten!  Many years ago Judge Bielstein had enough faith in me to offer court appointments. I was merely a rookie’s rookie. However, Judge Bielstein’s confidence in my ability to defend defendants instilled a desire which developed into a passion for criminal defense. To this day I am unable to think of any other jurist, in any jurisdiction that could compare to Judge Bielstein and his assurance that justice will prevail.  Rest in peace, your honor!” Louis Salmon


Significant Decisions Report- April 7, 2017


April is the cruelest month, breeding both lilacs out of the dead land, stirring dull roots with spring rain, and oral arguments before the Eleventh Court of Appeals for our hero. Thus, it is with a heavy heart and speeding pen that I must scribe this week’s Significant Decisions Report, as it shall be my lot to be a butterfly upon the Court’s wheel at the same time as this post goes live. Come then, and I will show you something different from either your shadow at morning striding before you or your shadow at evening rising to meet you.

Supreme Court of the United States

In Levon Dean Jr. v. the United States of America, the Fateful Eight considered the question of whether a judge conducting a federal sentencing hearing under 18 U.S.C. § 924(c) (the infamous “use of a firearm in the commission of a violent offense provision”) is prohibited from considering the mandatory minimum sentence enhancement from 924(c) at the time of sentencing.

For those of you blessedly unaware of how federal sentencing works, attend me. After a dramatic trial or plea, your client will be interviewed a well-meaning employee of the United States Probation Office, who will submit a report to the Court which will suggest, based on their reading of the Sentencing Guidelines, an appropriate sentence. Congress, in its infinite wisdom, has decided that it knows better than judges how to set sentences, and has set “mandatory minimum” sentences for certain offenses. One of these provisions, Sec. 924(c), says that where a defendant has been convicted of a drug trafficking or violent offense, and that same defendant uses or exhibits a firearm in the commission of the offense, then the defendant automagically gets an additional sentence of at least five years on top of whatever other sentence he’s getting. Yeah, that stings when it is applied to your client.

In this regard, 924(c) is not a true enhancement – it is an additional offense, with its own additional mandatory minimum punishment.

So let’s examine the case of Mr. Dean. Mr. Dean and his brother robbed some drug dealers, using a gun during the commission of the offense. At sentencing, absent the mandatory minimums, the Guidelines would have recommended only a sentence of 84-105 months (for those not versed in the federal system’s love of months instead of years, that’s 7 years to 8 years and 8 months.

But a sentence imposed under 924(c) must further be served consecutively to any other sentence imposed. And since Dean was facing multiple counts, he was facing a thirty-year mandatory minimum sentence in addition to whatever other sentences he would get. The trial court did state that it believed thirty years and one day would be more than a sufficient sentence, but read 924(c) to foreclose such a possibility. In the judge’s view, he was required to disregard the 30-yeay mandatory minimum sentence and sentence Dean accordingly for his other crimes, as if he were not going to be sentenced to thirty years, no matter what (let’s all also just pause and remember that there is no parole in federal court).

Chief Justice Roberts, writing for a unanimous court, held that the trial court was wrong. In fixing a sentence under the Guidelines, Sec. 3553 requires only that the sentence imposed by no longer than necessary to effect the purposes of sentencing. Thus, the Court can and probably should consider mandatory minimum sentences for separate offenses for which the defendant will be sentenced in affixing additional sentences. Reversed and remanded for a new punishment hearing.

So Mr. Dean will still have to serve his thirty years, but in fairness, thirty years and one day sounds like a great victory when the alternative was “400 months,” or in normal-person talk, thirty-three years.

Exegesis? The Supreme Court Justices are still judges, and judges don’t like it when legislators tell them how to decide their cases. And good for them, I say. Sentencing should be a case-by-base analysis. It is not something a bunch of Congress critters should have any input on.

Court of Criminal Appeals

Thomas v. State

Judge Alcala delivered a unanimous opinion in which the Court held that, if a defendant pleads guilty without an agreed recommendation, and the proceedings result in an illegal sentence, the end result is a remand to the stage of the proceedings before the entry of the open plea.

This was a strange procedural case, because it was the State who sought discretionary review, arguing that the defendant should be returned to his pre-plea status. But because “this was a negotiated plea-bargain agreement for an illegal range of punishment,” the defendant must be returned to his pre-plea status.

Mr. Thomas was indicated for engaging in organized criminal activity (EOCA), with an underlying offense of theft, in the state-jail felony range. Thomas had several priors, including a conviction for escape (third-degree felony) and burglary of a building (ordinarily a state-jail felony, but one that was punished as a third-degree felony on the basis of two other state-jail felonies).

Both Thomas (plus his attorney) and the prosecutor believed that the EOCA charge could be enhanced to twenty-five to life range under Penal Code 12.42(d) (spoiler alert: it could not!). So the State and Thomas negotiated a charge bargain – they would allow Thomas to plead guilty to the lesser-included offense of state-jail felony theft if Thomas pleaded guilty to the enhancement paragraphs, which would have the state-jail felony punished as a second-degree felony.

Ordinarily, you can enhance a state-jail felony to a second-degree punishment range IF you can prove the defendant has twice before been convicted of felonies in sequence, but not state-jail felonies. Remember that Thomas had only ever been convicted of one third-degree felony – escape – and all of his other sentences were for state-jail felonies.

When you enhance a state-jail felony, you do not enhance the offense itself, just the punishment range. That’s the difference between a statute which says “convicted of a … felony” and “punished as a … felony.”

The Sixth Court of Appeals held that Thomas should be sent back to the trial court for a new punishment hearing. But as the issue was defective going back to the State’s charge-bargain with Thomas, the proper remedy, according to the unanimous Court of Criminal Appeals, was reversing the entire conviction and sending Thomas back to the trial court to answer the State’s indictment as written, not the lesser-included offense as improperly bargained for.

In re Matthew Powell, Lubbock County District Attorney

The sandy dunes and cotton fields of West Texas yield up our next case. In this mandamus action, real party in interest Ellen Wilson sought copies of the information provided in discovery under Art. 39.14 of the Code of Criminal Procedure. Wilson’s attorney sought to have her released from the provision of Art. 39.14(f), which prohibits giving the defendant copies of the information. The trial court granted the motion, and the State sought immediate mandamus from the Court of Criminal Appeals on the ground that statutory county courts are not subject to the mandamus jurisdiction of the appellate courts. This is correct.

The Court of Criminal Appeals ultimately held that Art. 39.14(f) does not permit a represented defendant to obtain copies of the discovery materials. They may view them, but may not possess a copy.

Some question arose in discussion of this with other learned friends of the defense bar. In my hasty original reading, I surmised that a pro se defendant would necessarily be able to obtain copies, as she or he would be functioning as counsel in that regard. I took as my basis for this the line, on page 15 of the slip opinion, that “a pro se defendant might have been allowed to obtain an electronic duplication of discovery materials from the State (not, it should be noted, from his attorney), though the State is not, by virtue of Subsection (d) required to allow him an electronic duplication.” Nevertheless, subsection (e) of the Article does further prohibit the defendant from disclosing discovery materials to a third party without a court order. So the State would not be required to permit a pro se defendant to obtain electronic discovery, although they might, at the discretion of the State. My initial spitballing thought, and a cautionary tale against quick readings of opinions, was that a cunning defense attorney might withdraw from the case, have her pro se client obtain the necessary copies, and then re-enter the case. Naturally, such a ruse would function once, and only once, before courts caught on to our little scheme, but it would not work in any eventuality as the State could simply deny a copy under subsection (d). Hubris, it must be said, brings us all low.

First Court of Appeals

Hey gang, let’s revisit Mendez v. State, No. 01-15-00187-CR, from my February 24, 2017, column! Seems as though the Court withdrew its opinion, and now substitutes this new opinion in place.

For those viewers just tuning in, on original submission, the First Court of Appeals remanded Mendez’s case for a new trial after the State conceded error in the jury charge. The new opinion reaches the same result – because the jury charge did not apply self-defense to both the greater charge and the lesser-included offense, egregious harm was shown.

In Carreon v. State, No. 01-15-00559-CR, the First Court of Appeals considered a challenge to the constitutionality of Texas Penal Code § 21.12, improper relationship between educator and student.  Carreon admitted he did have an improper relationship with a student on his high school soccer team, but claimed that statute’s criminalization of consensual adult sexual activity violated the Constitution. Since Carreon’s student was 17 at the time, their illicit relationship would have been licit if only she was not his student at the time. The Court applied the “rational basis” level of review for this constitutional challenge, following the Supreme Court’s guidance in Lawrence v. Texas.

Rational basis review requires that the State have a legitimate interest, and that the statute at issue be rationally related to advancing that interest. The Court of Appeals held that the State has a legitimate interest in promoting a safe and appropriate educational environment, and the statute at issue is rationally related to that because students involved in sexual relationships with their teachers sometimes suffer social ridicule, mental issues, and other ill effects. Rational basis review is the easiest constitutional bar to surmount, and the State did so easily here.

Carreon also claimed an equal protection right to have sex with his students. However, when equal protection challenges do not implicate fundamental rights (an enumeration which does not include the right to have sex with consenting adults), then so long as the unequal treatment of persons is based upon a reasonable and substantial classification, it will be upheld. Since the Court of Appeals believed that there was no equal protection violation, this challenge fell flat again, and Carreon was given a 15-year red card.

In Ashton v. State, No. 01-16-00004-CR and No. 01-16-00005-CR, the Court of Appeals considered whether the trial court erred in failing to grant a mistrial after it became apparent that two jurors knew the detective in the case. Except that, during voir dire, Mr. Ashton’s trial counsel did not ask that question. And even if the attorney had, the jurors testified that their relationship would not have affected their deliberations. Still, I bet someone wished she or he had struck those jurors. That’s a good lesson to take from this – make sure you name yourself, the prosecutor, your client, the investigating officers, and any testifying witnesses in voir dire.

In Davis v. State, No. 01-16-00079-CR, the defendant pleaded guilty to aggravated assault and received a 17-year sentence. On appeal, he complained that the court lacked jurisdiction to sentence him, that his sentence was improperly enhanced by a juvenile conviction, and that the sentencing court improperly assessed a fee. All three arguments were rejected.

First, even though a complaint was filed against Davis in one district court, and his case was heard in another, district courts within the same county may exchange cases under the Government Code (seriously; one district court is basically the same as any other within a county). And Davis’s juvenile conviction was treated as a final felony conviction at the time his probation was revoked, so that line of argument met a similar and grisly end. Finally, the court has the ability to add a $40.00 “clerk’s fee” and such a fee was not a facially unconstitutional tax.

Thirteenth Court of Appeals

In Johnson Sr. v. State, No. 13-16-00023-CR, the defendant dealt with a case of a missing record. Because the missing record was essential to the disposition of the appeal, and it was not lost through any fault of the defendant’s, the defendant was entitled to a new trial. New trial ordered.

In State v. Maldonado, No. 13-16-00317-CR, the Thirteenth Court of Appeals considered a case where the trial court dismissed a subsequent prosecution on Maldonado’s double jeopardy habeas corpus petition. The State appealed, claiming the trial court was wrong to do so.

The facts are thus: the State indicted Maldonado for violating the conditions of his bond, but had a typo in the date in the indictment. So the prosecutor empanels a jury, reads the indictment, and says, “whoopsie.” He asks to amend the indictment, which of course the trial court denied. So then he dismissed the indictment and tried to refile.

Except you can’t dismiss and indictment after jeopardy attaches and refile it, because, you know, jeopardy attached and stuff. So when the second indictment came down, Maldonado raised double jeopardy as a bar to prosecution. On appeal, the State advanced the novel theory that Penal Code § 25.07 and § 25.072 each set forth discrete units of prosecution that do not make them susceptible to the double jeopardy analysis. The Court of Appeals disagreed; Sec. 25.07 makes it illegal to violate a condition of bond in a family violence case if certain factors are met. Sec. 25.072 makes it illegal to commit two or more violations of Sec. 25.07 in a 12-month period.” And since the State was relying on the same violations to prove each case, jeopardy barred the second prosecution.

Fourteenth Court of Appeals

In Kolb v. State, No. 14-15-00658-CR, the defendant was convicted of the lesser-included offense of reckless aggravated assault after she, while intoxicated, shoved her boyfriend’s toddler off a bed, injuring her spine, paralyzing her lungs, and leading to her death from asphyxiation. Ms. Kolb raised a number of issues, among them the reliability of the State’s expert and Brady issues.

The reliability issue was disposed of because the fact that the medical examiner did not conduct the most thorough examination in the world, because that is a matter better suited for cross-examination than a Daubert/Kelley challenge.

The issue regarding an alleged withholding of exculpatory evidence was more substantial. Ms. Kolb contended that the State did not disclose brain tissue and brain slides available to the defense in a timely manner. Ms. Kolb contended that the brain tissue samples would have demonstrated the existence of a brain illness that caused the child’s death. The brain tissue was disposed of before the defense expert had a chance to view it; however, the Court of Appeals found that the evidence actually was available to the defense’s expert, and even though the specific evidence was not brought to her attention before trial, she did not request a continuance.

In Ex parte Joel Navarro, No. 14-16-00606-CR, the Fourteenth Court of Appeals held that when an appellate court renders a judgment of acquittal on the basis of no evidence for an aggravating element. Navarro was charged with class A driving while intoxicated. During the trial, the charge contained the elements of a Class B misdemeanor DWI. So after the jury returned a Class B conviction, the trial judge conducted the sentencing hearing and treated the prior conviction as an enhancement allegation instead of an element, which we learned last week was not going to fly with this Court of Appeals. See? Callbacks. That’s how we learn.

On original submission, the Court of Appeals found that the Class A misdemeanor conviction was improper and rendered a judgment of acquittal. On retrial, the defendant sought to foreclose prosecution lesser-included offense on double jeopardy grounds, but the Court of Appeals, applying Ex parte Granger, 850 S.W.2d 513 (Tex. Crim. App. 1993), held that an appellate acquittal of a greater offense did not imply acquittal of the lesser-included, so Navarro could be retried on Class B DWI.


Significant Decisions Report for March 31, 2017

As March fades to April, bringing with it the promise of a scorching Texas summer to come, the courts of our fair land once again reconvened to throw our world into, well, if not chaos, at least a little general disarray. Nothing to be done for it but to put on our boots (because we’re Texans, natch) and find the figurative ass to kick.

Supreme Court of the United States

Oyez, oyez, oyez, the Supreme Court of the United States is in session and they are not playing around. The capital case of Bobby James Moore from our own fair state of Texas was decided by the Fateful Eight this week, and what resulted was a strong rebuke of the Court of Criminal Appeals by the United States Supreme Court. The Notorious RBG was in fine form, writing for the five-justice majority (joined by Justices Kennedy, Breyer, Sotomayor, and Kagan) in a very strongly-worded opinion that abolishes Texas’s reliance on the case of Ex parte Briseno, 135 S.W.3d 1 (2004), in determining competence to be executed in cases of mental disability. Chief Justice Roberts, joined by Justices Thomas and Alito, dissented.

At the crux of the decision were the United States Supreme Court decisions in Atkins v. Virginia, 536 U.S. 304 (2002) and Hall v. Florida, 572 U.S. ___ (2014). The trial court judge presiding over the initial habeas corpus writ proceedings utilized “the most current position . . . regarding the diagnosis of intellectual disability rather than the test . . . in Briseno,” following the Supreme Court’s decisions. The Court of Criminal Appeals put the kibosh on that, holding that Briseno was the law in Texas. Judge Alcala dissented, holding that Atkins and Hall required reviewing courts to consult the most recent scientific evidence and standards, and not the outdated standards that went into formulating the Briseno decision nearly 13 years ago. The Supreme Court granted certiorari to resolve the dispute between Judge Alcala and her fellow Court of Criminal Appeals judges, and I am sure Judge Alcala now feels vindicated in her dissent.

Principally at issue was Moore’s Intelligence Quotient (IQ) scores. An IQ score of 74, according to Briseno, is above the minimum cut-off of 70 for determining intellectual disability. Current psychological science, on the other hand, seems to indicate that a score of 74, if considered with other factors, could also lead to a finding of intellectual disability. In particular, Hall struck down a Florida decision that provided a bright-line cutoff regarding IQ score, which would seem to make the 70-cutoff for Texas similarly unconstitutional under the Eighth Amendment.

Justice Ginsburg also chided the Court of Criminal Appeals for focusing on Moore’s adaptive strengths instead of his adaptive deficits. Apparently, as per the Supreme Court, the presence of some intellectual strengths does not negate the deficits; that is, reviewing courts are not to attempt to balance between adaptive strengths and deficits, but merely to consider whether the deficits establish intellectual disability.

Ultimately finding that the Court of Criminal Appeals’s Briseno factors could not be squared with the Eighth Amendment, the Supreme Court struck Briseno down.

The Chief Justice, joined by Thomas and Alito, dissented in terms equally as strong as the majority. However, and I speak only for myself here, I find the Chief’s dissent to be extraordinarily unpersuasive.

If the debate in the Supreme Court was over whether Texas’s judge-crafted law (Briseno) gave adequate shrift to the current status of medical science in the area of intellectual disability, then Chief Justice Roberts should not criticize the majority for “craft[ing] a constitutional holding based solely on what [the majority] deems to be a medical consensus about intellectual disability” because “clinicians, not judges, should determine clinical standards; and judges, not clinicians, should determine the content of the Eighth Amendment” (slip op., dissent at page 2).

After all, if the argument is that the Eighth Amendment forbids capital punishment to the intellectually disabled (a provision so now ingrained into our capital jurisprudence that even Thomas and Alito could not disagree), then judges should base Eighth Amendment jurisprudence on sound medical science. That seems rather pointed and obvious. If Briseno was not based on objectively-valid medical science, then there was no violation of Robert’s Gouldian separate magisteria between judges and clinicians.

Science is a constantly-shifting field. To the extent that we permit science to inform criminal prosecutions, science must equal between both prosecutors and the defense. If newer science may be used to try, convict, and execute criminal defendants (as was the case with DNA evidence, ballistics evidence, fire science, etc.) then newer science must be used to try to exonerate, acquit, or otherwise free defendants as well. Texas even acknowledges this within Code of Criminal Procedure art. 11.073. That being the case, if Briseno was based on outdated science about intellectual disability, then the law must change with the times. Once again, the justices in dissent wring their hands about appropriate deference to be shown to State legislatures and State high courts in determining Eighth Amendment jurisprudence, forsaking or forgoing their own “subjective” opinions in favor of the “subjective” opinions of others (this author doubts whether an opinion could ever be anything other than subject, but then again, this author has read Immanuel Kant’s Critique of Pure Reason and sees no reason to fear the subjective like some common British empiricist miscreant).

I am struck, time and time again, by how often judges wash their hands of any responsibility out of some half-misguided notion of deference to others when the end result is a denial of a right or a denial of relief. Those sorts of arguments just seem to never fall in favor of the little guy, which leads this cynical author to believe that perhaps such arguments are little more than cover for doing something the dissenting justices know is intellectually and morally distasteful, but cannot summon the courage to come right out and say what they want.

Court of Criminal Appeals

No published decisions dropped from the Court of Criminal Appeals this week, but they did grant the State’s PDR in State v. Hernandez, No. PD-1380-16, on the issue of whether the “fog line” constitutes the “improved shoulder” such that driving on it constitutes reasonable suspicion of driving on the improved shoulder.

First Court of Appeals

In Garrett v. State, No. 01-16-00162-CR, the First Court of Appeals considered the now-fairly-common question of whether it is a confrontation clause violation to have a DNA analyst testify if that analyst did not perform the extraction and amplification of the sample. The State did manage to establish both ends of the chain of custody, which is sufficient, and, following the 2015 decision in Paredes v. State, 462 S.W.3d 510, an analyst who derives a conclusion from the report of other analysts may testify as to his or her independent conclusions, so long as the underlying reports aren’t admitted. Garrett’s attempts to distinguish his case from Paredes were unpersuasive, and so we have another entry into the canon of cases which say that an expert may testify to independent conclusions, even if those conclusions are based on the work of other experts who do not testify.

In Pegues v. State, No. 01-16-00317-CR, defendant Pegues sought post-conviction DNA testing under Chapter 64 of the Code of Criminal Procedure. The trial court denied review, but Pegues appealed, suggesting that the trial court misapplied the standard for testing. Applicants who want post-conviction DNA testing must show that (1) identity was at issue in the conviction and (2) further DNA testing with more modern methods might lead to an exculpatory result. The first criterion is either present or it wasn’t; that is, the defense at trial must have included some form of the “some other dude did it” defense. The second criterion is usually the sticky wicket, in that the absence or presence of DNA does not always include or exclude the defendant from commission of the crime. However, in cases of sexual assault, the presence of DNA contribution from another person does make it more likely that it was someone other than the defendant who, shall we say, “contributed” the sample.

Where most reviewing courts get this wrong is that they think other evidence of guilt can negate a true finding on the second factor, as the court below in this case did. However, the First Court of Appeals was quick to point out that the Court of Criminal Appeals has held other incriminating evidence “inconsequential” in making the determination of whether post-conviction DNA testing might lead to a potentially exculpatory result, because the presence of another contributor significantly bolsters the “some other dude did it” defense in sexual assault cases.

Now that we’ve all celebrated Mr. Pegues win in the First Court of Appeals, let’s all take ourselves down a peg with the case of Ex parte Mark Aubrey Rogers, Jr., No. 01-16-00583-CR, in which Mr. Rogers, Jr. (note to self: call PBS with new show pitch) was forced to defend himself at a second punishment hearing after the jury came back with a $0.00 fine and 0 days in jail sentence for misdemeanor pot possession.

Let us all raise a glass of a legally-sanctioned and socially-acceptable intoxicating substance to Mr. Rogers, Jr.’s attorney, who got a no-fine, no-jail sentence on a misdemeanor pot case. Hats off to you, sir or ma’am, I hope you read this and know that I am a big, big fan of this result.

So Mr. Rogers, Jr.’s attorney gets a hell of a sentence from a jury, and the State starts to whine that the sentence is illegal and void because the jury cannot give a no-fine, no-jail time sentence. Ugh. Fine, that’s technically correct, but the Penal Code is pretty damn ambiguous on this point, as it says “no more than $2,000.00 dollars” and “no more than 180 days in the county jail” for a sentence. Zero on both is “no more than” either. But the Court of Criminal Appeals decided way back in 2003 (in Mizzell v. State, 119 S.W.3d 804)  that the jury is not free to disregard the statutory punishment range, and that the proper remedy was a new punishment hearing.

So when Mr. Rogers, Jr. faced a second punishment hearing, he filed an application for a writ of habeas corpus alleging double jeopardy. He lost, and received two years’ probation, and the Court of Appeals, applying Mizzell, upheld the later sentence. Practice tip – tell the jury $1.00 and 1 night in jail is preferable to zero dollars and zero nights in jail.

Sixth Court of Appeals

In Paroline v. State, No. 06-16-00101-CR, the Sixth Court of Appeals was faced with the case of a woman who exploited a disabled man by misuse of his debit card. Ms. Paroline used Sherman Prewitt’s debit card to fill up her car, make purchases and cash withdrawals, and then dumped Prewitt at the Walmart in Texarkana. On appeal, she asserted that the trial court erred in finding that Prewitt was disabled, that her opening statement was improperly limited, that the court erred in admitting Prewitt’s medical records, and that the Court should not have permitted Prewitt’s mother and social worker to testify.

Paroline wanted to introduce, in her opening statement, the fact that she believed the evidence would show a prior sexual relationship between Paroline and Prewitt. However, Paroline’s attorney was permitted to state in the opening that the evidence would show a prior relationship between Paroline and Prewitt. Then the evidence did not show that. A word from the wise, if you make a promise about what the evidence will show in your opening, be prepared to back it up, or watch yourself get poured out of the court of appeals because it is NOT an abuse of discretion to limit the opening statement if your evidence does not show what you are complaining was unfairly limited out of the opening statement.

With regard to the medical records and the testimony of the mother and social worker, the Court of Appeals found that Paroline failed to preserve these issues, which is a shame – they were obviously the weightiest issues in an appeal such as this, and this case is a cautionary tale that vague objections might as well be no objections.

The remaining issue (whether there was sufficient evidence of Prewitt’s developmental disorder) bears little worth mentioning. Suffice it to say that evidence of even high-functioning autism in the State of Texas technically meets the requirements to be a “disabled person” for purposes of the Penal Code, and this is likely a correct assessment of both the legislative intent and statutory language.

Eighth Court of Appeals

In Reyes v. State, No. 08-15-00311-CR, the El Paso Court of Appeals affirmed the conviction and sentence of a man who pleaded guilty without a “plea bargain,” but with a recommend as to punishment from the State (you know with a fine distinction like that, this opinion is going to be great).

Reyes pleads guilty, the State does not agree on the punishment but recommends to the judge a punishment at the punishment hearing. The trial court sentences Reyes far in excess of the recommended sentence, and Reyes objects that the sentence was excessive and that his trial counsel dropped the ball.

The facts, this being a guilty plea, were not in dispute. Reyes got into a fight with a family member, and struck that family member with either: (1) a vase; (2) a tissue box; or (3) his hand, causing that family member to lose an eye (thus making this a case of serious bodily injury). The State initially sought a deadly weapon finding on any of these three objects (because of course it did), but later abandoned that because at least some prosecutors in this State still maintain a modicum of common sense when it comes to calling everything under the sun a deadly weapon.

As the case progressed, Reyes chose to plead guilty, but without securing an agreement from the State as to punishment. However, the State did agree to recommend imprisonment set at 14 years, which to me sounds an awful lot like a plea bargain, because in no case is the State’s recommendation for the plea bargain binding on anyone until the judge approves it. But the plea paperwork acknowledged that Reyes would have a punishment hearing, that the range of punishment was five years to ninety-nine years in prison, and that the trial court had that entire range in which to sentence Reyes (Reyes had a prior felony conviction which enhanced the punishment range). Nevertheless, Reyes persisted.

After the hearing, the trial court sentenced Reyes to imprisonment for forty, rather than fourteen, years. Reyes’s trial counsel, who had no experience in criminal appellate matters, filed a notice of appeal, but no motion for new trial. Trial counsel moved to withdraw on the last business day before a motion for new trial would be untimely. Appellate counsel was not appointed until one day after the period for filing a motion for new trial ran.

On appeal, Reyes claimed his trial counsel was ineffective for: (1) failing to ensure that the deadly weapon allegation had actually been dropped; (2) allowing hearsay statements about an affair to be introduced; (3) abandoning defensive issues in favor a plea; (4) failing to object to the sentence as grossly disproportionate; and (5) abandoning Reyes by waiting until the eleventh hour to withdraw from the case, preventing a motion for new trial from being filed.

With regard to the first issue, because the range of punishment was going to be that of a first-degree felony offense, regardless of whether the State included language permitting an affirmative finding on the use of a deadly weapon, Reyes was not entitled to relief. The Court of Appeals also includes a discussion of whether it is even possible to commit aggravated assault without an implied deadly weapon finding, citing to Blount v. State, 257 S.W.3d 712 (Tex. Crim. App. 2008). In Blount, the Court of Criminal Appeals held that an aggravated robbery indictment alleging death in the course of committing theft necessarily put a defendant on notice that the State would introduce evidence of a deadly weapon. It did not state that aggravated assault causing serious bodily injury is always equivalent to aggravated assault with a deadly weapon.

This does make a difference to our clients, because it affects parole eligibility. “Aggravated assault” is not a crime which triggers a lengthier sentence before parole eligibility is reached. Any crime that includes an affirmative (as in, explicit, not implied) finding of the use of a deadly weapon does trigger differing rules for parole eligibility. Reyes is correct that his attorney should have known that the judge could have made a deadly weapon finding even if the State abandoned the language in the indictment, but the Court of Appeals should also have been careful to distinguish between this case and a case where the bargained-for agreed recommendation on punishment specifically does not include a deadly weapon finding. As it stands, the State could take this case for the proposition that it is impossible for a person to be convicted of aggravated assault and not have a conviction that triggers heightened parole eligibility requirements.

The remaining points of ineffective assistance of counsel were disposed on the fact that an insufficient record exists to conclude that these were not parts of reasonable trial strategy, which is why every single one of these issues, including the complaint about the attorney waiting until day 29 post-conviction to seek to withdraw, should be raised in Art. 11.07 writ.

With regard to the issue on the disproportionality of the sentence, no luck for Mr. Reyes there. The sentence was within the legal range, and the facts of the case were not such that inspired sympathy for Mr. Reyes. The United States Supreme Court has endorsed the use of a three-prong test in Solem v. Helm, 463 U.S. 277 (1983), which asks to compare the gravity of the offense relative to the harshness of the sentence, the sentences imposed for other crimes in the relevant jurisdiction, and the sentences imposed for the same crime in other jurisdictions. Aggravated assault causing serious bodily injury is a grave offense, and forty years is not an unreasonable sentence, so, the first factor being decided against Reyes, the Court did not even need to reach the second and third factors.

It should be noted, as the Court of Appeals did, that “disproportionate sentences” are rarely found for non-capital offenses. In fact, the Court only identified two cases – Solem and Weems v. United States, 217 U.S. 349 (1910). In each of those cases, the offense were relatively minor (passing a false invoice in Weems and passing a counterfeit Benjamin in Solem).

Thirteenth Court of Appeals

In Hernandez v. State, No. 13-14-00245-CR, the Thirteenth Court of Appeals answered a question regarding suppression of a confession. Sadly, Hernandez presented more arguments for suppression on appeal than at the trial court, and so only those arguments presented to the trial court were adequately preserved. A sad lesson that preservation makes fools of us all from time to time.

Hernandez’s argument at trial was that the Art. 38.22 form advising him of his rights contained a bad Spanish-to-English translation, and so he did not intelligently and voluntarily waive his rights. Specifically, Hernandez’s counsel stated that the word “supracitada,” which is apparently not a Spanish word, appeared in the written admonishments, and thus the entire document must be defective. This was not persuasive, and the Court of Appeals held that the warnings received by Hernandez substantially complied with Art. 38.22, because “there is no evidence in the record that [Hernandez] did not understand the rights due to the use of term ‘supracitada’ in this context.”

Hernandez also complained that the trial court should have given an Art. 38.23 instruction on the suppression issue. But Art. 38.23 does NOT (I repeat, NOT) allow the Court to simply submit the application-of-law-to-facts suppression issue to the jury. That would be silly. Instead, the jury can be asked to find whether a contested historical fact of significance exists, and if it does, that should determine the judge’s ruling on the application of law to facts. For example, if the probable cause relied upon by an officer in making the stop is the defendant’s driving in an oncoming lane of traffic, and that fact is contested, an Art. 38.23 instruction may be submitted to the jury asking them to find whether the defendant drove into an oncoming lane of traffic. If the answer is yes, then the judge must find that probable cause existed. If the answer is no, then the opposite is true and probable cause did not exist, and the jury should be instructed to disregard evidence obtained as a result of the stop. Art. 38.23 instructions are true bugbears, both in drafting and litigating, and so it becomes difficult, as a practitioner, to know when to request such an instruction and when not to request one. Because Hernandez’s trial counsel did not request an instruction on a specific historical fact, and there was no contested fact issue concerning the confession, the judge was correct to deny the Art. 38.23 request.

Finally, and heartbreakingly, the jury foreperson signed the wrong verdict form. The judge initially read that Mr. Hernandez was “not guilty” of the offense in question, which prompted the jury foreperson to speak up and state that a mistake was made, and so the judge sent them in to deliberate again and fix the issue by signing the correct verdict form.

I get it. It is heartbreaking to hear the words “not guilty,” only to have a juror bolt up and state, “oh no, we made a mistake! We meant to find him guilty!” You go from elation and relief to depression and desire to drink yourself under the table in the span of a few fleeting heartbeats. But the law is the law, and the law says that the judge cannot act upon the jury verdict if a juror dissents from it, which is what happened here. The judge followed correct procedure, and as gut-wrenchingly frustrating as that day in court must have been (and, for the record, your author has personally practiced in that courtroom as a prosecutor, knows and respects the judge from personal experience, and knows exactly how the scene must have played out), the procedure followed in this case was absolutely the correct thing to do.

Fourteenth Court of Appeals

At last, but certainly not least, we turn to the case of Oliva v. State, No. 14-15-01078-CR, in which the Fourteenth Court of Appeals answered the question of whether the State needs to present evidence of a prior DWI conviction during the guilt/innocence stage of trial, or whether it is a more akin to an enhancement allegation which may be reserved for the punishment phase, if there is one.

The State simply failed to introduce evidence at the guilt/innocence phase of trial of any prior DWI conviction Oliva possessed. Therefore, his conviction for DWI 2nd was not proper, and he must be sentenced within the punishment range for DWI 1st.

But this now permits the State to offer evidence of prior DWI convictions in the guilt/innocence phase of trial, heightening the risk that the jury will convict on an improper basis of character conformity. It is a true conundrum, because I understand both the desire to vigorously defend your client on appeal from a conviction the State was not authorized to obtain, and sympathize with the difficulty encountered in the State taking advantage of this loophole in Rule 404(b) to suggest that our clients are guilty because of their criminal history. This author does not try DWI cases for personal reasons, but I can understand the rock and the hard place between which Texas defense attorneys now find themselves. I wish I had a good answer for my constant readers that might aid them going forward, but I have none, so let me just doff my cap in sympathy to the DWI defense bar and/or congratulations to Mr. Oliva’s appellate counsel. Perhaps our best remedy is a legislative one (stop laughing).