Significant Decisions Report May 19, 2017

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

Fifth Circuit Court of Appeals

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

Court of Criminal Appeals

State v. Arizmendi

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

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

Let’s dive in.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Larue v. State

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

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

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

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

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

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

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

Cahill v. State

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

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

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

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

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

First Court of Appeals

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

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

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

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

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

Second Court of Appeals

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

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

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

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

Fourth Court of Appeals

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

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

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

Eighth Court of Appeals

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

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

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

Significant Decisions Report for May 12, 201

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

Fifth Court of Appeals

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

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

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

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

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

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

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

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

Eighth Court of Appeals

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

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

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

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

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

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

Ninth Court of Appeals

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

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

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

Fourteenth Court of Appeals

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

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

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

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

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

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

Significant Decisions Report for May 5, 2017

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

First Court of Appeals

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

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

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

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

Thirteenth Court of Appeals

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

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

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

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

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

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

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

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

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

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

Fourteenth Court of Appeals

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

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

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

Significant Decisions Report for 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).

Significant Decisions Report for March 17, 2017


What ho, readers of the Significant Decisions Report! As with many verdant eruptions, spring now grips Texas in its pollen-coated claws, and this resurgent seasonal malady often calls away our professionals for the ritual known as “Spring Break.” Judges, being human (yes, it’s true, they are!) are often taken with the idea of not being here, not rendering a bunch of opinions to be discussed, and generally being on vacation with their friends and family. It is thus with a heavy heart that your author (who was not on a vacation and was in fact trying a bench trial) must inform you that there is a paucity of published opinions this week. Nevertheless, let us give thanks to the Sixth and Fourteenth Courts of Appeal for the meager puls with which we shall sustain ourselves until next week, when hopefully more hearty fare can be served.

Sixth Court of Appeals

Our Texarkanian brethren decided State v. Fowler, No. 06-16-00032-CR this week. The State charged Fowler with three separate offenses: (1) burglary of a building owned by Mr. Martin; (2) theft of an ATV; and (3) theft of a trailer in a burglary. The State dismissed the third case, and the jury convicted Fowler of the ATV theft. The ATV theft case remains pending with the Sixth Court of Appeals.

A jury also convicted Fowler of the Martin burglary, but the trial court granted Fowler’s motion for new trial and entered a judgment of acquittal. The motion for new trial was granted on the basis of insufficient evidence, and, after a review of that evidence, the Court of Appeals concluded that the evidence the State argued “tended to connect” Fowler to the burglary of Martin’s outbuildings was nothing more than innuendo. The Court stated: “In actuality, the only way the State’s evidence could establish that Fowler was guilty in this case is if one started with the assumption that Fowler was guilty as charged and worked backwards from there.” As a result, the trial court did not abuse its discretion in granting the new trial, and Fowler’s acquittal is affirmed.

As a practice tip, motions for new trial based are cheap, easy to draft (as you typically do not need to include more than an assertion that the verdict is contrary to the law and the facts), and, when properly supported by affidavits and testimony, a good way to preserve additional error for an appeal. I would commend the defense bar to the practice of learning to draft, file, and argue motions for new trial, particularly if your client desires to appeal his or her conviction. And who knows? Maybe you will convince the judge that your motion for directed verdict (which you did remember to make at the close of the evidence, right?) was improperly denied.

Fourteenth Court of Appeals

In Lombardo v. State, No. 14-15-00406-CR, the Fourteenth Court of Appeals considered an allegedly improper sentence following revocation of community supervision.

Lombardo pleaded guilty to first-degree felony theft in 2004. She was sentenced to imprisonment for ten years, but the sentence was suspended for a like period of time. Restitution in the amount of $237,235.34 was also assessed.

Lombardo was initially ordered to pay $2,050.00 per month in restitution, but in 2008, the court reduced her payments to $300.00 per month. Lombardo paid as ordered until 2010, when she either failed to pay or underpaid her restitution.

In 2014, mere months before her supervision was set to expire, the State moved to revoke that probation for failure to pay restitution. The trial court, after hearing evidence, found that Lombardo’s failure to pay restitution was intentional and willful, and revoked her supervision. But rather than sentence Lombardo to the ten years’ confinement originally assessed, the trial court reduced the term of confinement to four years.

Lombardo appealed, challenging the basis for her revocation. The Fourteenth Court of Appeals was less than sympathetic, however, as Lombardo and her husband jointly earned over a quarter-million a year between the years of 2010 and 2014, when she would not make her $300.00 per month restitution payments. While Lombardo and her husband were heavily in debt, evidence also showed that, for the same period as she should have been paying reduced restitution, Lombardo also paid over double that amount per month for mobile phone and cable TV service, which doubtless did not stir the merciful feelings of the trial court or the court of appeals. As such, her first issue, regarding the sufficiency of the evidence to revoke her probation, was denied.

Which leads to her second issue. And here, I must issue an audible sigh, shake my head, and pour a dram of whiskey.

When non-deferred-adjudication community supervision is revoked, the trial court has two options – sentence the defendant to the original term of confinement, or, if the interests of justice require, sentence the defendant within a lesser term still within the applicable sentencing range for that offense.

In other words, if Lombardo pleaded guilty to first-degree felony theft, her applicable sentencing range was always five to ninety-nine years. A four-year sentence was too lenient.

When your client receives a sentence that is too lenient, nothing, and I mean freakin’ absolutely nothing, good can come from an appeal. The State can appeal an illegally lenient sentence, but if they do not (and in truth, State’s appeals are appropriately rare because of the rigmarole required to file one), then the illegally lenient sentence stands.

But Lombardo, not content to take her illegally-lenient lumps and thank her lucky stars the State did not appeal the illegally lenient sentence, appealed, claiming the sentence was illegal. And she was right. It was illegal. Illegal sentences of this sort are also void, meaning the court of appeals cannot reform it. She must submit herself to the un-tender mercies of the court that initially revoked her probation and be resentenced. Meaning the trial court can now decide to impose a sentence of five, six, seven, eight, nine, or even ten years on Ms. Lombardo.

When one finds oneself in a hole, no better advice can be given than to drop the shovel and quit digging. Appealing an illegally lenient sentence is akin to hiring an earth mover to continue digging.