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.


About Lane A. Haygood

Lane A. Haygood is a board-certified criminal appellate lawyer who practices throughout the State of Texas. Contact him at