Significant Decisions Report for April 28, 2017

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

Fifth Circuit Court of Appeals

Alexander v. City of Round Rock et al.

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

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

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

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

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

Lincoln v. Barnes

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

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

Court of Criminal Appeals

Ex Parte Pete

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

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

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

Miller Jr. v. State

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

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

First Court of Appeals

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

Sixth Court of Appeals

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

Tenth Court of Appeals

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

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

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

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



Significant Decisions Report for April 21, 2017

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

Supreme Court of the United States

Manrique v. United States

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

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

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

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

Nelson v. Colorado

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

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

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

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

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

Court of Criminal Appeals

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

First Court of Appeals

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

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

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

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

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

Third Court of Appeals

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

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

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

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

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

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

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

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

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

Eleventh Court of Appeals

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

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

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

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

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

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

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

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

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

Fourteenth Court of Appeals

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

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

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

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

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

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

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

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

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

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

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

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


Significant Decisions Report for April 14, 2017

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

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

Fifth Circuit

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

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

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

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

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

Court of Criminal Appeals

Reed v. State

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

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

Hankston v. State

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

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

Allen v. State

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

Ex parte Broussard

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

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

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

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

Ex parte Reece

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

First Court of Appeals

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

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

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

Fourth Court of Appeals

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

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

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

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

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

Sixth Court of Appeals

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

Eleventh Court of Appeals

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

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

Fourteenth Court of Appeals

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

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

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

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

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


Significant Decisions Report- April 7, 2017


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

Supreme Court of the United States

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

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

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

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

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

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

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

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

Court of Criminal Appeals

Thomas v. State

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

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

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

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

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

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

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

In re Matthew Powell, Lubbock County District Attorney

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

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

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

First Court of Appeals

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

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

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

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

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

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

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

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

Thirteenth Court of Appeals

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

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

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

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

Fourteenth Court of Appeals

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

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

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

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

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


Significant Decisions Report for March 31, 2017

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

Supreme Court of the United States

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

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

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

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

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

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

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

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

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

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

Court of Criminal Appeals

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

First Court of Appeals

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

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

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

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

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

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

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

Sixth Court of Appeals

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

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

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

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

Eighth Court of Appeals

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

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

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

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

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

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

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

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

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

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

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

Thirteenth Court of Appeals

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

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

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

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

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

Fourteenth Court of Appeals

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

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

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