About Lane A. Haygood

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


Summertime, when the bloggin’ on court decisions is easy, because most sensible folks are taking vacations and enjoying the weather. Some of us, less sensible, altogether devoted to the grind of court blogging, and feeling the recent depredations of week-long hailstorms, must content ourselves with adventures of the mind, jaunting down avenues of legal logic and frolicking in the fields of certiorari.

United States Supreme Court

Luckily for us, June marks the end of the Supreme Court’s term, and so some of our juiciest opinions get released about now. This is a good turn, because the Court of Criminal Appeals did not release any published opinions this week, and even our courts of appeals were a little thin on the ground. No matter; the Supremes are here to rescue us. Let’s kick things off with a Texas case.

Davila v. Davis

Davila was convicted in Tarrant County of capital murder and sentenced to death. During the trial, Davila’s counsel objected to a transferred intent instruction, but the trial court overruled the objection and submitted the instruction. On direct appeal, the issue of the jury instruction was not raised by appellate counsel. Davila sought habeas corpus relief, and, as this was a death penalty case, was represented by an attorney on post-conviction review. His writ counsel did not raise the issue of transferred intent either. Next step in the process was federal habeas review under 28 U.S.C. § 2254, and during this proceeding, his writ counsel argued that appellate counsel provided ineffective assistance of counsel by failing to raise the jury instruction issue.

Ordinarily, under the old law, this type of error would not be cognizable in federal court because it was not presented to the state court of last resort. But in a pair of opinions over the last decade (Martinez and Trevino), we’ve changed federal writ procedure a bit to permit some ways of overcoming this type of procedural default.

The district court denied Davila’s § 2254 petition, holding that neither Martinez or Trevino provided a basis for excusing state habeas counsel’s failure to present the transferred intent claim. Davila sought certiorari, asking the United States Supreme Court to extend Martinez and Trevino to claims of ineffective assistance of appellate counsel.

Justice Thomas delivered the opinion of the Court, joined by Chief Justice Roberts, and associate Justices Kennedy, Alito, and Gorsuch. Justice Breyer filed a dissent, joined by Justices Ginsburg, Sotomayor, and Kagan. No real surprises in the breakdown of the opinion, a contentious 5-4 that would not have been any different with the addition of Gorsuch, because a 4-4 would’ve left the lower court’s decision alone.

Thomas wrote that the Court’s opinion was guided by two principles: first, the requirement of exhaustion of state remedies before seeking federal relief is a well-settled one, and second, a federal court may not review procedurally defaulted claims from state court. Thomas readily admits that a state prisoner may show “cause” to overcome these bars, but “cause” in this case means more than prejudice – there must be “some reason external to the defense” that “impeded counsel’s efforts to comply with the State’s procedural rule.”

For whatever reason, two capital-qualified state post-conviction attorneys did not raise the issue of the transferred intent instruction. Lacking as I do a crystal ball, but being a board-certified criminal appellate attorney, my guess is that even preserved charge error under Almanza is still a difficult row to hoe, because while only the “some harm” standard applies (rather than the harmless error standard), charge error isn’t often your winningest argument on appeal. Still, in the context of a fourteen-point-of-error brief and the associated habeas proceeding, there’s not much to gain from leaving it out.

Martinez and Trevino both dealt with the concept that I have frequently pushed in these posts, which is that ineffective assistance claims should typically not be raised on direct appeal. Because of that, there is a reason for procedural default of certain ineffective assistance claims – Texas law makes it rather difficult to raise them on direct appeal, and thus there’s not much opportunity to raise Martinez or Trevino claims, or so the theory goes.

Thomas claims that “ineffective assistance of appellate counsel, however, do not pose the same risk that a trial error—of any kind—will escape review altogether” (Slip op. at page 10). This I’m not sure I buy, if only because I generally object to the idea that appellate attorneys are not equally capable as trial attorneys of dropping the ball for a client. However, Thomas is correct in one respect – post-conviction habeas is the only venue to complain of ineffective assistance of appellate counsel. Thomas’s prediction of dire gloom, that Davila’s proposed rule “could flood the federal courts with defaulted claims of appellate ineffectiveness” rings true. There has not been a single criminal appeal I’ve worked, on either side of the bar, that featured every possible argument that could be raised. Appellate counsel, by our very nature, pick and choose which arguments we think will present the best. Adding in too many issues of marginal utility dilutes the better issues that you are raising.

So the question becomes – if state habeas counsel fails to raise a point of ineffective assistance of appellate counsel, should we continue to apply Coleman’s procedural bar? This question is much more fraught than I think the dissent gives it credit for being. First, only one class of cases receives mandatory habeas proceedings – death penalty cases. If the Court were to adopt Davila’s proposed rule, an entire class of prisoners—those who were convicted, had a direct appeal, but did not choose to pursue post-conviction relief—would have a claim they could bring in federal court, which is an imposition on state sovereignty. Second, while in this case it does seem somewhat inexcusable that Davila’s appellate counsel and habeas counsel did not raise the issue of transferred intent, I am not sure we want to open the can of worms that is “ineffective assistance of habeas counsel,” because there is no Sixth Amendment right to habeas counsel.

Weaver v. Massachusetts

In another watershed criminal case, the High Court distinguished between two types of structural error. Waitaminute, I hear you saying. You’ve already told us that there are two broad categories of error – normal error subject to harmfulness review, and structural error that is not. That’s true. And now we subdivide structural error into two classes.

Kennedy delivered the opinion, joined by the Chief, Thomas, Ginsburg, Sotomayor, and Gorsuch. Alito concurred in the judgment, and Gorsuch joined his concurrence. Breyer and Kagan dissented.

At issue in the trial was the right to a public trial, which, we must remark, is a structural error. Voir dire proceedings summoned more people than the courtroom could fit, and the defendant’s mother and her minister were excluded from the voir dire phase of trial. But this was not objected to, and thus not preserved for later review. And, as Justice Kennedy noted, not every violation of the right to a public trial “results in fundamental unfairness.”

The question, as Kennedy frames it, is what type of showing must a defendant make when he failed to preserve a structural error on direct review but raises it later in the context of an ineffective assistance of counsel claim. Kennedy answers that, in the context of ineffective-assistance-by-failure-to-complain-about-structural-error, a petitioner must show more than the brute existence of structural error – they must show prejudice, where prejudice means that defendant must show “a reasonable probability of a different outcome but for counsel’s failure to object.” So that makes a third category of structural error – structural error + ineffective assistance of counsel = reviewed for “prejudice.” Have fun, kids.

Lee v. United States

Lee, a childhood immigrant to the United States and lawful permanent resident, got narced out by an undercover for selling ecstasy and weed (nota bene: according to the opinion, it was 200 pills of ecstasy and two ounces of marijuana over eight freakin’ years, which, by my bad lawyer’s math, is about 2 pills a month and a quarter ounce a year – hardly Tony Montana territory). Lee retained counsel and entered into a plea bargain. Central to Lee’s concerns were whether he would be deported to a country he had not been to since he was a preteen. Lee’s counsel foolishly told him that he would not face deportation, and under Padilla v. Kentucky, that’s a big no-no. The answer to the question asked by your client of “will I be deported?” is almost invariably “yes, you will.”

The State sought to argue against the Padilla rule by pointing out that Lee didn’t have much a defense anyway, and would’ve been convicted regardless. But Chief Justice Roberts, joined by Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, disagreed. Thomas and Alito dissented, and Gorsuch sat this one out.

The Chief held that in cases of ineffective assistance of counsel leading to a plea, the correct standard is not “would the client have won at trial” but “would the client have chosen to have a trial instead of pleading guilty?” And since it’s inarguable that Lee’s counsel was ineffective under Padilla, that means relief granted to Lee.

Thomas calls this a “novel standard for prejudice at the plea stage,” but he’s not actually correct. Chief Justice Roberts is correct that ineffective assistance of counsel leading to a plea is judged by the standard of whether, but for the erroneous advice, the defendant would have pleaded guilty. Even a fool’s errand of a trial is still a right a defendant has, and should exercise, when nothing is to be gained by a plea.

Turner et al. v. United States

In a split opinion, Breyer delivered the opinion, joined by the Chief, Kennedy, Thomas, Alito, and Sotomayor. Kagan dissented, joined by Ginsburg, and Gorsuch took no part in the case. The award for this week’s strangest majority coalition goes to this case.

This is a Brady case, so pay attention. The seven petitioners were indicted for the kidnapping and murder of a woman. At issue were undisclosed notes written by a police officer and the prosecutor which referred to an interview with a witness, Davis, who identified an alternative perpetrator. The prosecutor later said he didn’t disclose Davis’s statement because he felt like she was lying and not serious. The government admitted this (and other) evidence was favorable, but contested its materiality. This brings us back to a familiar standard – if the evidence had been disclosed, would the result have been different? The majority answers no, and therefore,  even though the government withheld material, favorable, evidence, there is no relief for the seven defendants.

Alvarez v. Brownsville

This is a case only tangentially related to criminal law, but it’s personal to me, so we are gonna talk about it. George Alvarez pleaded guilty to assault on a public servant. After conviction, he filed a post-conviction writ (this is where I come in) and produced a video that cast doubt on the facts. The video was not disclosed. I told the habeas court that the State would not oppose a new trial with the new evidence, but would not agree to an actual innocence finding. The trial court overruled me, and he was found “actually innocent,” which the Court of Criminal Appeals agreed with. After that, Alvarez filed a lawsuit against the city, claiming a violation of his civil rights under 42 U.S.C. § 1983. The federal district court granted Alvarez summary judgment, and after a damages-only trial, he won a substantial award.

The Fifth Circuit reversed and rendered a judgment of dismissal. Pleading guilty “precludes [a defendant] from asserting a Brady claim under § 1983” (slip op. at page 8).

So for those of us who are dealing with Brady claims, if your client pleads guilty, they cannot assert a claim under § 1983. Your client’s constitutional right to exculpatory evidence is a trial right.

Fourth Court of Appeals

Our only other case of note comes to us from sunny San Antonio, in Murray v. State, No. 04-16-00227-CR, in which Murray was convicted of compelling prostitution. Normally, this type of case is cause for an allusion about how hard life is for a pimp, but in this case, Murray compelled the prostitution of a minor, and so he does not deserve our humor. To support his conviction, the State sought a search warrant for Murray’s Facebook, the service he used to solicit Johns for his victim.

The affidavit for the search warrant was based largely off the child victim’s statement, and as a named person, her word alone would be sufficient to establish probable cause.

The second issue on appeal was whether the Facebook evidence was properly authenticated. The State provided a self-proving affidavit with the records, which satisfies Rule of Evidence 902(10)(B). However, because of Murray’s conduct on the Facebook account, he provided details which corroborated its authenticity, and an appellate court will not disturb a trial court’s admission of evidence absent an abuse of discretion.

That, ladies and gents, is it for this week’s go-round. Tune back in next week!


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

United States Supreme Court

Honeycutt v. U.S.

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

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

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

Court of Criminal Appeals

Hopper v. State

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

Moore v. State

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

Rodriguez v. State

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

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

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

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

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

Arteaga v. State

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

Ex parte Carter

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

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

Queeman v. State

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

Eighth Court of Appeals

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

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

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

Thirteenth Court of Appeals

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

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

Fourteenth Court of Appeals

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

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

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.