Significant Decisions Report for March 24, 2017


Spring is in the air, and courts all over the nation are issuing opinions of importance and moment. Let us take some time to consider these decisions, and how it might impact our various practices.

United States Supreme Court

Manuel v. Joliet

Friends, I am going to do something I once promised never to do. As a writer, I am enamored of William Shakespeare, as he is doubtless among the finest writers who will ever set quill to paper. That being said, Romeo and Juliet, despite being one of his most famous works, is sort of awful. So I am going to squander an opportunity to inject Shakespearean allusion into my column, because the obvious parallel between Juliet and Joliet is puerile, and you deserve better.

As does Mr. Manuel, because this is an important and seminal case in our evolving civil rights jurisprudence, and a little bit of decorum is called for.

During a traffic stop in Joliet, Illinois, police officers searched Mr. Manuel and found a vitamin bottle containing “pills.” Unable to believe their own field test that the pills were nothing illegal, they arrested Manuel, dragged him to the station, and had their evidence tech test the pills, which once again came back as “nothing illegal.” Except that the evidence technician lied through his or her lying teeth, claimed one of the pills tested positive for the presence of “ecstasy” (nota bene: ecstasy is nothing more than a street name for any number of specific chemicals, so that’s like saying the pill tested positive for the presence of “illegal drugs”). The police officer said that based on his (wait for it) “training and experience” he knew this vitamin pill was really ecstasy. On the basis of these statements, a third officer swore out a complaint charging Manuel with possession of “ecstasy” (again, not a real name for a controlled substance), and relying on this sworn statement, a county court judge found probable cause to detain Manuel pending trial.

Manuel spend 48 days in the county slammer until a real lab tested the pills, only to determine that they contained (wait for it) nothing illegal at all. More than two years after the arrest, but less than two years after dismissal, Manuel filed a Section 1983 lawsuit against Joliet and several police officers, alleging that his arrest and detention violated the Fourth Amendment. In keeping with Fourth Amendment jurisprudence, the District Court dismissed the suit, holding that it was time-barred by the applicable statute of limitations, and also holding that under the Seventh Circuit’s precedent, pretrial detention (the county court judge’s determination of probable cause) could not give rise to a Fourth Amendment claim.

Justice Kagan, joined by Chief Justice Roberts, and Justices Kennedy, Ginsburg, Breyer, and Sotomayor, disagree with the Seventh Circuit’s precedent on Fourth Amendment matters and Sec. 1983 claims. In dissent were (of course) Thomas and Alito. More on them later.

Kagan wrote that the Fourth Amendment’s “constitutional protections apply even after the start of ‘legal process’ in a criminal case” meaning “after the judge’s determination of probable cause.” (Slip. op. at page 1).

So why did the Supreme Court break with Seventh Circuit precedent here? Let’s look at how Justice Kagan describes the “traffic stop:”

“Shortly after midnight on March 18, 2011, Manuel was riding through Joliet, Illinois, in the passenger seat of a Dodge Charger, with his brother at the wheel. A pair of Joliet police officers pulled the car over when the driver failed to signal a turn. According to the complaint in the case, one of the officers dragged Manuel from the car, called him a racial slur, and kicked and punched him as he lay on the ground.”


But it gets better.

The technician who said he found the presence of “ecstasy” in the pills lied in his report about the ecstasy (duh). The officer who filed the complaint? Lied about how his “training and experience” allowed him to detect the presence of “ecstasy” in the pills they had earlier illegally seized from the man his cronies had dragged out of a car and beaten while subjecting him to racial abuse.

The laboratory that tested the pills and determined they were not a controlled substance? That happened on April 1, 2011, 13 days after the arrest. But Manuel still say in jail for another month and change, because that’s when the assistant State’s attorney filed the motion to dismiss.

Manuel’s case was originally dismissed in the District Court for the limitations claim (a rather boring argument about when the cause of action accrued, on March 18, 2011, or on May 4, 2011) and because the Seventh Circuit precedent cut off Fourth Amendment claims after the rubber-stamp probable cause determination by the magistrate. But the Seventh Circuit was an outlier in this, as ten other courts of appeals took the opposite view.

Justice Kagan wrote that Manuel should be able to make a Sec. 1983 claim based on the Fourth Amendment for both the violations of his rights pre-legal-process and post-legal-process (in this case, what happened before he saw the magistrate, and how he was detained even after it was known to the government that they had arrested and imprisoned an innocent man).

Justice Kagan wrote: “The judge’s order holding Manuel for trial therefore lacked any proper basis. And that means Manuel’s ensuing pretrial detention, no less than his original arrest, violated his Fourth Amendment rights. Or put just a bit differently: Legal process did not expunge Manuel’s Fourth Amendment claim because the process he received failed to establish what the Amendment makes essential for pretrial detention—probable cause to believe he committed a crime.” In a footnote, Justice Kagan makes sure to respond to the dissenter’s objection that perhaps some other form of pretrial due process (a grand jury or examining trial) should cut off Manuel’s right to sue. Kagan picks this argument apart by saying that no principled line can be drawn between the magistrate’s probable cause determination and the determination of the grand jury or examining magistrate. There could be no probable cause to detain Manuel – the cops lied, Manuel sat in jail illegally, end of story. Only the jury trial itself changes the algebra – once the jury trial has concluded, only the Due Process Clause of the Fourteenth Amendment provides a basis for attacking the sufficiency of the evidence.

The Supreme Court remanded to the Seventh Circuit to discuss the propriety of the date of accrual of the claim, so there is still a chance poor Mr. Manuel will get poured out of court, but at the very least, we now know that a Fourth Amendment violation can be raised as the basis for a civil rights claim at any time before criminal trial has begun.

Both Thomas and Alito wrote separate dissents, though Thomas joined with Alito. Justice Thomas would hold that an “initial appearance” before a magistrate effectively cuts off any Fourth Amendment claims if the prosecution is later dismissed. In his view, once the magistrate decides probable cause, there is no right to review of that determination short of a jury trial.

Justice Alito’s dissent, on the other hand, would not necessarily cut off post-legal-process Fourth Amendment claims, but states rather that Justice Alito would not extend Fourth Amendment civil rights claims to the entire period that a person is detained pending trial because it “stretches the concept of seizure.” Cold comfort to someone so “seized” by the criminal justice system that they remain in a county jail, but beyond that, it does not jive with existing case law. A person remains “seized” for their Fifth Amendment rights as long as they are within state custody; we would not expect that police officers may go up to a person on day 1 of their pretrial incarceration and interrogate them without reading their Miranda rights. Nor would we expect that police officers may do so on day 100 of their pretrial incarceration. The person remains “seized” by the government. So at least this author does not buy Alito’s reasoning in the dissent, part II A, where he says the “ordinary meaning” of the term seizure implies a distinct event in time. I see, and I believe the majority does as well, that a “seizure” is an ongoing action.

What’s the really sad part of all of this? Manuel would not have had much of a claim if he had been given a reasonable bond and not detained for 48 days. Law enforcement and prosecutors’ dogged insistence that even those charged with minor drug crimes sit in county jail awaiting trial came back to bite them here, as it should. Pretrial detention is not to be used as an “alternative” form of punishment.

Court of Criminal Appeals

Ex parte Owens III

Sometime in 2012, a DPS analyst in the Houston Crime Lab Division got himself in a mess of trouble by dry-labbing two tests (for those not familiar with the lingo, dry-labbing is where an analyst uses test results from one case to justify the results in another, i.e., lying about what you did at your job.

As a result, quite a few drug cases throughout the Houston area were suddenly tainted by bad lab reports, and the Court of Criminal Appeals has been struggling with the ever since. One single lab flunky, two inappropriate tests, and a slew of cases that will forevermore shape the post-conviction jurisprudence of this state and immortalize that lab technician in the legal records of Texas. Damn.

Mr. Owens the Third’s case was, on its face, very much like the cases in which the Court of Criminal Appeals has said, “yeah, this lab tech bungled his job, so your plea was involuntary, new trial.” See Ex parte Coty, 418 S.W.3d 597 (Tex. Crim. App. 2014) for the style case on the matter. (Full disclosure: back when I was a young buck prosecutor, I worked on some of these cases, though not the one at issue.). In Mr. Owens’s case, he was pulled over for a traffic violation, the officers smelled burnt marijuana, and conducted a search of the vehicle, which led to the discovery of pot and a pistol. Mr. Owens admitted to officers that the pot was his.

Mr. Owens pleaded guilty to possession, a state jail felony, and received probation. Two months after his sentencing, Mr. Owens was arrested in North Carolina for peddlin’ pot, and Harris County moved to revoke his sentence. Mr. Owens pleaded true to the revocation allegations, and received a sentence of 180 days in jail. The lab technician did actually test the pot in his case.

Coty established five factors that a habeas application must demonstrate to be entitled to relief under the theory that a lab technician bungled the handling and testing of evidence – (1) the lab technician must be a state actor; (2) the tech must have committed multiple instances of misconduct in other cases; (3) the technician must be the same technician that worked on the present case; (4) the misconduct must have been of a type that would have affected the evidence in the present case; and (5) the tech must have handled and processed the evidence in the current case in roughly the same time frame as the other, proven cases of misconduct.

It is unarguable that Mr. Owens’s case met the first three factors. The only questions were whether factors 4 and 5 were met, and according to Judge Newell, writing for the majority, they were not. First, marijuana is tested differently than cocaine or pills (the two instances of proven dry-labbing by this technician). With the fourth factor not being met, the inference from Coty does not apply, and the trial court was correct to recommend that habeas corpus relief be denied. Beyond that, however, Mr. Owens’s claim would have failed for the reason that he could not show the “materiality” of the bad lab testing to his case. In other words, the lab test was not necessary to have convicted him or revoked his probation, since he admitted that the pot found in the traffic stop was his, and officers were more than capable, under Texas law, of testifying that weed is weed without a lab test. Without being able to show falsity under Coty or materiality generally, Mr. Owens’s claim for relief is denied.

This strikes me as an altogether consistent ruling with the Court’s jurisprudence, and a realization of the fact that thousands of cases were affected by this one lab technician’s misconduct. Granting blanket habeas relief in all cases would be as wrong as denying habeas corpus relief in all cases. Some cases will meet the appropriate standard for determining whether Mr. Salvador’s misconduct rose to the level of a due process violation; others will not.

Bell v. State

Bell committed an aggravated robbery when he was 16. The juvenile court waived jurisdiction and transferred the case to district court, but apparently did not make the requisite findings and set them forth with sufficient specificity in the transfer order. Bell pleaded guilty and was placed on deferred adjudication in the district court, which of course was later adjudicated against him.

The First Court of Appeals agreed with Bell that the juvenile court had failed in its duty, and remanded the case for a new transfer hearing. The State sought discretionary review on the ground of whether a defendant could attack the transfer proceedings post-adjudication-of-guilt and revocation of community supervision. Because the court of appeals did not consider jurisdictional questions in its opinion, it must do so, because jurisdiction is fundamental. The case is remanded to the First Court of Appeals to consider whether it has jurisdiction to consider Bell’s claim.

Ex parte Ulloa

FULL DISCLOSURE: I also worked on this case as a prosecutor.

The question for the Court – does an information toll the running of limitations in a felony case where the defendant did not waive his right to an indictment? Answer – yes. The alleged date of the offenses (tampering with evidence) occurred on December 21, 2009. An information was filed on February 2, 2011, with a grand jury indictment on May 3, 2011. The indictment was dismissed on April 17, 2012, but a new complaint and information were filed on February 26, 2014, and indicted again by the grand jury on August 20, 2015. Ulloa filed a pre-trial writ of habeas corpus alleging limitations as a bar to prosecution. The question for the trial court was whether the running of limitations was tolled during the periods in which an information, but not an indictment, was filed.

The Court of Criminal Appeals, led by Presiding Judge Keller, discussed the application of Texas Penal Code § 12.05 and the relevant caselaw, and concluded that the filing of a complaint and information tolls the appropriate limitations period equally as does an indictment. However, the Court leaves open the question of whether a complaint would be sufficient to toll the limitations period.

And that is all I have to say about that.

Green v. State

In this case (which is unpublished), the Court of Criminal Appeals considered whether Mr. Green’s trial counsel was ineffective for a late objection to the State’s expert. But it gets weirder.

The defense hired Dr. Carter as a consulting expert, unbeknownst to the State (because they do not get to discover consulting experts). The State independently chose to call Dr. Carter to the stand, and Dr. Carter testified he had not examined Green. At the point where the State moved from generalized, abstract questions to ones specifically relevant to the case, about 30 minutes into Carter’s testimony, Green’s trial counsel approached the bench and dropped the bombshell that he had hired Carter as a consulting expert.

At a hearing outside the presence of the jury, Carter testified that he misspoke when asked if he had evaluated Green, and in fact did not remember consulting with Green’s attorney.

The Tenth Court of Appeals held that Green was entitled to relief on his ineffective assistance of counsel claim, and the State sought discretionary review. The Court of Criminal Appeals agreed with the State, because it is really, really, really, really hard to prove ineffective assistance of counsel on direct appeal, because there is a presumption that every screw-up defense counsel makes is done for strategic reasons, absent an opportunity to inquire into the mindset of defense counsel (which was not done in this case).

Because the Court of Appeals never reached Green’s second issue, regarding conflict-free representation, the case is remanded to the Court of Appeals for consideration of that ground.

This case is unpublished, but I wanted to discuss it for a simple reason – if you hire a consulting expert, and the State designates him as an expert (because you did request that the State inform you of the designation of any experts, right?), you should probably file a pre-trial motion to exclude that expert on the grounds that there’s a conflict of interest since you paid the expert for his opinion, and since you did not designate him as a testifying expert, you did not really like the opinion you received. Waiting 30 minutes into his direct examination to object is almost prima facie inexcusable, and it is likely that another, less kind court would have decided that there was not reasonable trial strategy for doing so.

Villa v. State

The Eighth Court of Appeals found evidence that Villa was a gang member to be insufficient. Upon the State’s request for discretionary review, the Court of Criminal Appeals reversed on the ground that the court of appeals did not apply the correct, deferential standard to sufficiency review.

One Ruben Bejaran, a member of the Barrio Azteca gang, gave an interview to National Geographic. This did not sit well with senior management at Barrio Azteca, who took punitive action against Bejaran, putting a “green light” on him, which is gang code for “beat kill upon sight.”

So when a group of people assaulted Bejaran at a party, Villa joined in.

Bejaran did not die. He chose to testify at trial, stating that when he arrived at this party, he recognized a fellow B.A. member “2Short.” Bejaran wisely chose to leave the party, but unwisely chose to return. The hostess, showing better sense, told Bejaran to leave. As Bejaran beat a path to the exit, he crossed paths with another gang member known as “Giant.” A fight began. The fight progressed outside toward the middle of the street, when other gang members joined in. Bejaran testified that his assailants were: Hawaiiano, Felix, Tiny, Sleepy, 2Short, and Giant. Bejaran testified that Villa’s nickname was “Sleepy.” A gang unit detective testified that “Sleepy” associated with known gang members and had been arrested with known gang members for a crime consistent with gang activity.

There are generally three criteria for gang membership. Self-admission that one is a gang member is ALWAYS a sufficient criterion, even in the absence of the other criteria. The last two – association with known gang members and arrest consistent with gang activity – may or may not be present. If they are present, a court may make a finding of gang activity even absent self-admission. The same detective testified that once gang management gives a “green light,” all gang members who witness a fight are required to join in under penalty of expulsion from the gang.

The court of appeals, in reaching its conclusion, found it significant that Bejaran never specifically identified Sleepy as a gang member in response to direct questioning. But in doing so, the court of appeals disregarded Bejaran’s earlier testimony that Sleepy associated with known B.A. members and was participating in a gang fight based on B.A. gang rules that said he would be expelled if he did not join in. In other words, Bejaran’s testimony alone established the second and third criteria. Meaning the jury was free to believe or not believe Bejaran’s testimony, and they obviously did believe it. Legal sufficiency is a difficult row to hoe, and this establishes why. Bejaran’s testimony was not the strongest, but it is enough to get over that low bar.

McClintock v. State

Who likes a good, complicated factual situation and procedural history? I do! You likely do not, but you are going to suffer this anyway, because it is important.

McClintock lived above a business. The police brought a drug dog to that business, and let it walk up the stairs to McClintock’s apartment and sniff the door. The dog alerted, a search warrant was obtained, and marijuana was found inside McClintock’s apartment. McClintock appealed, arguing that the search warrant was based on illegally-obtained information.

In 2013, the Supreme Court decided Florida v. Jardines, which held that police may not simply walk a drug dog up to your door. On the strength of that case, the court of appeals reversed McClintock’s conviction. The State sought discretionary review, arguing for the first time that the officers’ misconduct should be excused because, at the time the drug dog sniff was conducted, that was considered to be acceptable by relevant caselaw (which is true; Jardines was a bit of a shocking decision, particularly in Texas). The Court of Criminal Appeals remanded the case in 2014 to permit the First Court of Appeals to consider whether the “good-faith” reliance on existing law from Davis v. U.S., 564 U.S. 229 (2011) should apply to a Jardines sniff.

The majority of the First Court of Appeals, on remand, held that Art. 38.23(b) of the Code of Criminal Procedure, “good-faith reliance on a warrant,” did not apply in this case because the underlying illegality of the probable cause to issue the warrant tainted any “good-faith” reliance on that warrant. Justice Keyes dissented, arguing that if the underlying illegality (the Jardines sniff) was itself justified by “good-faith” reliance, then 38.23(b)’s good-faith reliance provision should be implicated. In essence, Justice Keyes believed the State could daisy-chain good-faith reliance through both Supreme Court caselaw and Texas statutory law to save this Jardines sniff. Boiled down, the Court of Criminal Appeals phrases the issue as: how should Article 38.23(b) apply, if at all, when the warrant affidavit supplies probable cause, but that probable cause appears to be tainted by a prior illegality?

The answer, at least in this case, was that although it is now obvious that Jardines forbids the kind of curtilage-trespassing sniff at issue in this case, at the time the officers were assembling the warrant, the question itself was “close enough” that they could reasonably rely on it. That is, because Jardines came out of the blue, and remains a very limited decision to this date, we should not impose on officers to burden of prognosticating what new rules the Supreme Court might announce, and their reliance on the law as it existed at the time of the search is enough to trigger 38.23(b)’s good-faith reliance provision.

Judge Alcala, writing in dissent, took the majority to task for not giving effect to the “plain language” of Art. 38.23(b), which says that if there is no probable cause for the warrant, then there is no good-faith reliance. Judge Alcala pointed out that the Court itself had previously decided that there was no probable cause for the issuance of the warrant (dissent at page 2).

So the question is answered, but I do not think it resolved, about daisy-chaining good-faith reliance. This is always a tricky area, as we must employ the legal fiction that new rules of constitutional criminal procedure are “apparent” from the law, but not so apparent that we retroactively invalidate decades or even centuries of criminal jurisprudence by doing so. However, if the question is whether a pre-Jardines drug dog sniff will be enough to allow us to attack a case on 38.23 grounds, the answer seems to be, “probably not.”

Third Court of Appeals

In Freeman v. State, No. 03-16-00130-CR, the Third Court of Appeals considered whether, following a bench trial and a plea of guilty to a lesser-included offense, the trial court violates a defendant’s constitutional rights without making a finding of guilt beyond a reasonable doubt.

At the conclusion of the guilt-innocence stage, the trial court stated, on the record, “The Court finds by the clearer greater weight and degree of credible testimony that Defendant is guilty of the offense of assault by impeding the breath or circulation, as alleged in Paragraph 1 of the indictment.” One may note that “beyond a reasonable doubt” is not equivalent to “the clearer greater weight and degree of credible testimony.”

Thankfully for Mr. Freeman, this error is considered “structural” rather than merely constitutional, and so it is not subjected to a harm analysis. The case is remanded to the trial court for further proceedings.

Recall that it is the oral pronouncement of judgment that controls in criminal cases. The written judgment is merely a memorialization of the judge’s words.

Tenth Court of Appeals

In an unpublished opinion in Ukwuachu v. State, No. 10-15-00376-CR, the Tenth Court of Appeals wrestled with the question of whether the trial court properly excluded evidence under Rule 412(b) as improper evidence of past sexual conduct. At issue were a series of text messages between the complaining witness and her friend detailing her past sexual history with the defendant. The State admitted a portion of the text messages after the alleged incident occurred, but not the text messages from before. The Court of Appeals held that the text messages were part of a single, ongoing conversation, and that they were not graphic, inflammatory, or prejudicial, but were probative of the issue of consent, and so remanded the case for a new trial.

Fourteenth Court of Appeals

In Kelley v. State, No. 14-15-00979-CR, the Fourteenth Court of Appeals considered whether it was error to admit a pre-trial identification of the defendant. Because of a lack of evidence of suggestiveness and imprecision in the complaint both at trial and appeal, the admission was upheld.

Pretrial photographic lineups are routinely fraught with violations of department procedure. If you have a pretrial identification in your cause, you ought to be requesting a copy of each police department’s photographic lineup policy and comparing it with best practices as described by the courts. Consult an expert (if your client is appointed, you are entitled to an expert on this basis). Hold a Daubert/Kelley hearing. Object and file a pre-trial motion to suppress. Make and jealously guard your record, because without it, you might end up like Mr. Kelley.

Significant Decisions Report for March 17, 2017


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

Sixth Court of Appeals

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

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

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

Fourteenth Court of Appeals

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

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

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

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

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

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

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

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

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

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

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


Significant Decisions Report for March 10, 2017


Supreme Court of the United States

No time for fancy Homeric literary references this week, dear readers. These trenches will not get down in themselves, so rub some dirt on your face and get in here.

                Rippo v. Baker

Rippo was convicted of capital murder by a Nevada state court and sentenced to death. During the trial, Rippo learned that the judge in his case was the target of a federal bribery investigation, and the Clark County DA’s Office—who was prosecuting Rippo—was assisting the g-men in their investigation of the judge (Vegas, baby!). Rippo moved to recuse this judge under the theory that the judge would not be impartial (perhaps hoping to curry favor with the people investigating him?). The trial judge declined to recuse himself, but found himself in a hot mess a little later when a federal grand jury did indict him. Whoopsie.

Still, Rippo’s motion for new trial was denied, and the Nevada Supreme Court denied relief on the grounds that Rippo never could prove the Clark County DA was involved in the federal investigation.

On his state writ, Rippo advanced the claim a third time, this time with evidence. The post-conviction court denied relief, and the Nevada Supreme Court agreed. The Nevada Supreme Court said that Rippo’s claim was a “camouflaging bias” claim. You see, camouflaging bias is what happens when a dirty judge is extra harsh on some defendants to distract from cases where he is bribed into being lenient.

On certiorari, the Supreme Court ruled per curiam that the Nevada Supreme Court had applied the incorrect standard to the camouflaging bias claim. Recusal is not required where the judge has an actual bias; rather, recusal is required in cases where “the probability of actual bias on the part of the judge or the decision-maker is too high to be constitutionally tolerable.” In other words, Rippo was not required to show bias to be entitled to an evidentiary hearing, but rather that the potential for bias was so great that the Constitution requires an inquiry.

The case is remanded to the Nevada Supreme Court to consider “whether, considering all the circumstances alleged, the risk of bias was too high to be constitutionally tolerable.” Keep your eyes on this case, folks.

Beckles v. United States

Not all of my readers practice in federal courts, but you really should. The federal court system is a fun and unique animal, and sometimes, when you’re having too good of a day or think that due process is simply afforded to just too many people, you can walk into a federal criminal court and be reminded that it’s a cruel, cruel, cruel, cruel world out there. That kind of grounding is hard to get.

Witness the case of Beckles. Beckles was convicted of being a felon in possession of a firearm, and was eligible for that fun, fun “enhancement” provision from the Federal Sentencing Guidelines known as a “career offender enhancement.” U.S. Sentencing Guidelines § 4B1.1 says that if your defendant is at least 18, has at least two prior felony convictions for crimes of violence and/or controlled substance offenses, and the current offense is for a crime of violence, the base offense level gets jacked up depending on the statutory maximum sentence for the offense. For those unfamiliar with the baroque torture device known as the Federal Sentencing Guidelines, what this means is that if your guy is indicted for an offense with a high maximum punishment range, no matter how piddling his “base offense level” might otherwise be under the Guidelines, the new level is going to be drastically higher. Not because of the new offense. But because of the statutory maximum punishment for that offense otherwise. It’s the weirdest enhancement provision ever.

Anyway, USSG § 4B1.2 provides the definition of “crime of violence,” which turns out to mean any state or federal felony that has an element the use, attempted use, or threatened use of physical force, or is burglary of a habitation, arson, extortion, or involves the use of explosives and/or violence. Clear as mud, right? So Beckles gets popped for a “crime of violence” (that involves no violence), and because of his criminal history, gets this jacked-up base sentencing range.

Beckles sought habeas relief, and it was denied. Beckles sought certiorari, and while his certiorari petition was pending, the Supreme Court decided Johnson v. United States, which struck down a similar “residual” clause provision in the Armed Career Criminal Act for vagueness. The Supreme Court granted cert, and sent the case back down to the Eleventh Circuit for a review of the case post-Johnson. The Eleventh Circuit again affirmed Beckles’s conviction, and here we are today.

Justice Thomas delivered the opinion of the Court and held (drumroll please) that the case was distinguishable from Johnson because the Sentencing Guidelines may not be challenged for vagueness under the Due Process Clause. Relief denied.

The ACCA’s residual clause required courts to increase a defendant’s prison term from a maximum of ten years to a minimum of fifteen years. The USSG, on the other hand, are merely “advisory” (even if district courts still slavishly follow them, because hey, de facto due process violations don’t bug us quite as much as de jure due process violations). In doing so, the Court limited the “void-for-vagueness” doctrine to mandatory sentencing schemes, and not permissive or discretionary ones. Justice Thomas writes: “If a system of unfettered discretion [e.g., what we had before the Guidelines in 1984] is not unconstitutionally vague, then it is difficult to see how the present system of guided discretion could be.”

“Guided discretion” is an oxymoron, and it confuses two things. The “unfettered discretion” (id est, letting judges craft appropriate sentences based on the individual case) is not subject to a vagueness challenge because it permits the defendant to advocate, within the boundaries of the law, for a lesser sentence if the facts of his case so dictate. Guidelines, like USSG § 4B1.1, “anchor” the trial court’s sentencing decision by providing a presumptively-reasonable starting point decided by abstract rule, not fact-specific inquiry. They limit judges’ authority and discretion to “do right” in cases in the hopes of imposing a false uniformity of decisions.

I see the intuitive appeal in such Guidelines; a portion of our liberal democracy feels keenly that some judges were being “too harsh” in sentencing, and this was an attempt to quell that harshness. Unintended consequences being what they are, the forced uniformity also prevents judges from being merciful in appropriate cases by pre-emptively signaling what a “reasonable and just” sentence for the offense is. As with many things, giving people greater freedom and discretion was likely the proper course, and institutional-level meddling was counter-productive.

Which matters not at all now, because the great opinion of Johnson appears to be limited to very narrow cases. Drat.

Pena-Rodriguez v. Colorado

OK, now that my soapbox is very thoroughly worn out, let us get to the best case from the Supremes this week, a great case overall, and a WONDERFUL win for the defense bar. Everyone put on little party hats and get out your finest noisemakers, we are going to celebrate this case.

As with almost every totally, 100% awesome opinion of the Roberts Court, this one was authored by Justice Kennedy. A-Ken dusts off his writing chops to tell us that the jury, being the “central foundation” of our system of justice, acts as a check on governmental power. Music to the defense bar’s ears. Kennedy acknowledges that the system is not perfect, as no system can be, but that “deliberations that are honest, candid, robust, and based on common sense” can result in “fair and impartial verdicts.” Yes, yes, yes, testify, Justice Kennedy!

So let’s examine the case of Mr. Pena-Rodriguez. In 2007, someone sexually assaulted two teenage sisters in the bathroom of a horse-racing facility. The girls identified the pervy perp as a racetrack worker, and police arrested Pena-Rodriguez. Pena-Rodriguez was tried and convicted. As we often do, Pena-Rodriguez’s defense counsel stayed behind to chat with the jury to find out what went wrong with the defense. Two jurors remained after the others had left and spoke with defense counsel in private. They stated that, during deliberations, another juror had expressed anti-Latino sentiments toward Pena-Rodriguez and his alibi witness. Defense counsel reported this to the Court, and with the Court’s blessing and supervision, obtained affidavits from these jurors.

The allegedly-offending juror is identified as H.C. According to the affidavits, H.C. told the other jurors that he “believed the defendant was guilty” based on his experiences as an ex-law enforcement officer, and because that same experience led him to believe that Mexican men believed they could take indecent liberties with women. He stated, “I think he did it because he’s Mexican and Mexican men take whatever they want.” Not content with the 19th Century’s Racist Hits, H.C. continued, stating that “nine times out of ten Mexican men were guilty of being aggressive toward women and young girls,” and that he did not find the alibi witness credible because he was an “illegal” (nota bene: the alibi witness was a legal permanent resident of the United States).

However, Pena-Rodriguez’s motion for new trial was denied, because, like most jurisdictions and the federal system, Colorado forbade the acceptance into evidence of statements made during deliberations. Pena-Rodriguez received two years’ probation, but had to register as a sex offender for the rest of his life. A divided Colorado Supreme Court affirmed the conviction.

Kennedy sees the Court’s duty as to decide whether “the Constitution requires an exception to the no-impeachment [of the jury verdict by extraneous evidence] rule when a juror’s statements indicate that racial animus was a significant motivating factor in his or her finding of guilt.”

The United States Supreme Court answered that question with a resounding yes. Kennedy holds that “where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.” This, ladies and gents, is where we throw the confetti and blow the noisemakers.

I commend to everyone to read this opinion, as it is one that will grace our law school textbooks for years to come. It is masterfully written, well-reasoned, historical, and ultimately, a triumph of justice over petty procedure.

Court of Criminal Appeals

Petetan, Jr. v. State

This is a 100-page majority opinion with a 28-page dissent filed by Judge Alcala, most if it revolving around competency issues in capital murder cases. There is NO way to summarize it in any sort of usable fashion. Just know that this will be among the best cases to consider and cite when arguing issues of competency.

In re State of Texas ex real. Healey

In 2011, Turner was convicted of capital murder. In 2013, the Court of Criminal Appeals considered, among other issues on appeal, Turner’s competency to stand trial, specifically, Turner’s trial counsel requested a competency hearing and one was never held. The high Court remanded the case to the trial court with instructions to first determine whether it could conduct a “retroactive” competency trial, and if it could, to conduct such a trial in accordance with Chapter 46B.

That proceeding has not made its way back to the Court of Criminal Appeals.

Instead, when the case was remanded, the State attempted to prevent the trial court from inquiring as to Turner’s “present” competency, that is, his competency to stand a competency trial (yeah). The trial court said that it was going to make such a determination, and in 2015, the State filed a motion for leave to file a petition for a writ of mandamus. That was granted, and apparently the mandamus sat pending for three years and nothing ever happened. When the Court of Criminal Appeals asked what was up, the trial court said “we’re waiting on y’all,” so the Court of Criminal Appeals said, “OK, mandamus denied.”

Presiding Judge Keller and Judge Yeary dissented, finding that “competent to stand competency trial” was kind of a weird thing to think about, and aren’t they correct? At what point does this infinite regress stop?  Can you be incompetent to have your competency to stand competency trial determined?

Salinas v. State

Salinas challenged the imposition of fees post-conviction. Harris County required Salinas to pay a single “consolidated fee” after conviction, which included an account of “abuse children’s counseling” and an account for “comprehensive rehabilitation.” Presiding Judge Keller, writing for the majority (she is joined by Judges Keasler, Hervey, Alcala, and Walker), found that the statute at issue was unconstitutional as it violated the separation of powers doctrine regarding certain fees, but constitutional regarding others. The majority held that “any fee assessed pursuant to the consolidated fee statute must be reduced pro rata to eliminate the percentage of the fee” associated with the counseling and “comprehensive rehabilitation” accounts. Thus, sections (e)(1) and (e)(6) of Texas Penal Code § 22.04 are struck as unconstitutional.

Zuniga v. State

Zuniga found herself being pulled over after running a stop sign, which is a thing that will happen. During the stop, the officer noticed a “bottle of medicine” in Zuniga’s vehicle. When Zuniga could not produce a valid prescription for the bottle of syrup, the officer arrested her. I quote the next sentences from Judge Newell’s majority opinion verbatim and express no opinion and offer no commentary on it: “Soon after, the officer observed Zuniga reach into her groin area and pull something out with her hands cupped. The officer then observed Zuniga move her hands toward her mouth and lean her head down as if to swallow ‘something.’” Allegedly, this something was either a white powdery substance in a baggy or a pill. You know, either/or. Those things get confused all the time.

Zuniga found herself charged with tampering with physical evidence. The indictment neglected to mention what she was attempting to conceal, so Zuniga sought to quash it. During the motion to quash, the State hand-wrote on the document “an unknown substance,” and Zuniga subsequently argued that the indictment failed as a matter of form and substance. The trial court agreed with Zuniga, said the State needed to be more specific, and dismissed the indictment.

The State appealed, arguing that it was not required to allege the identity of the thing tampered-with. The Court of Criminal Appeals held that the State was not required to do any such thing, merely to state that the defendant acted in some way to attempt to conceal or otherwise impair the availability of “something.”

Zuniga also argued, however, that the pleadings did not provide her sufficient notice. This issue was remanded to the court of appeals to consider the challenge.

Fourth Court of Appeals

In Beltran v. State, No. 04-115-000410-CR, the Fourth Court of Appeals considered whether evidence that Beltran dealt drugs was “same transaction contextual evidence” that explained why he sexually assaulted a child, S.O. The reason why this evidence was “same transaction contextual evidence” was that S.O.’s mother permitted Beltran to molest S.O. in lieu of paying for drugs. In other words, it explained why Beltran had access to S.O. at all. This is a pretty clear application of when something actually is same transaction contextual evidence.

Thirteenth Court of Appeals

In Briggs v. State, No. 13-15-00147-CR, the Thirteenth Court of Appeals held that Missouri v. McNeely did not announce a new rule, and so applied retroactively, and that Briggs was entitled to the grant of a motion for new trial on McNeely grounds.

In Rogers v. State, Nos. 13-15-000600-CR and 13-15-00601-CR, Rogers challenged his convictions for burglary of a habitation and aggravated assault. Rogers drove to the home of his mistress, Sandra, for a little afternoon delight. David, Sandra’s husband, returned home early and objected. As the song says, Rogers jumped up, fired off his pistols, and shot David in the genitals. Well, those aren’t exactly the lyrics to the traditional Irish tune “Whiskey in the Jar,” but it is close enough for our purposes. The State charged Rogers with burglary (for assaulting David in his own home, with David’s own pistol) and aggravated assault (for shooting a dude in the dick).

At trial, Rogers and David gave vastly different accounts of the cruel twists of fate that lead one man to plonk another dude’s junk with a gun. Rogers said that Sandra asked him to come by to feed the cats, and that David returned, only to find Rogers trapped in the closet. Rogers claimed David menaced him with a knife, until Rogers, his back against David’s gun safe, grabbed a gun from the top of the safe and pointed it at David (it is instructive to note that Rogers had his own gun, but chose to shoot David with David’s own gun, because, you know, he hadn’t emasculated the guy enough already). Rogers claimed he and David both reached for the gun, which “went off” in the struggle.

David, on the other hand, testified that he returned home from work and went into his closet to change clothes, without knowing that Rogers crouched in the shadows with wangshooting on the brain. Rogers stood, much to David’s surprise, called him a “MF” (David’s words, not mine) and shot him.

Both men’s story becomes more confusing. At some point, both men found themselves outside the home, at which point either David’s gun jammed and he fled to a neighbor’s house, or David “hid behind some trees” and took potshots at Rogers as Rogers fled to his truck.

Obviously, burg hab and aggravated assault as a predicate to burg hab are double-jeopardy barred. However, the appropriate remedy is to merely vacate the less-serious offense, so Rogers ends up convicted of burglary of a habitation and has to serve his forty-year sentence. The moral of the story? Don’t shoot people in the genitalia. Especially not in their own home. And when you’re sleeping with their spouse. There are some lines we just do not cross.

Fourteenth Court of Appeals

In Smith v. State, No. 14-15-00502-CR, a divided panel of the Fourteenth Court of Appeals rendered a plurality opinion, with two justices concurring in the result. Smith was convicted for aggravated robbery with a deadly weapon, and complained that the jury charge did not include a lesser-included offense instruction and that the trial court overruled an objection to an improper closing argument.

Smith tried to rob the complainant at 5:00 a.m. in the morning by approaching the complainant as he left for work. Finding Smith’s gun pointed unkindly at the complainant’s face, the complainant turned over his keys and wallet to Smith, but lied to Smith and said no one else was in the home. Smith became distracted when another car came down the street, which led the complainant to move Smith’s gun out of the way of his face and begin screaming. The driver of the other car did not stop to help the complainant, but a neighbor did come out of his house and point a gun at Smith. Smith dropped his own weapon and fled, the neighbor in chase. A second neighbor emerged and, together, they held Smith until police could arrive.

At trial, the State admitted jailhouse phone call recordings where Smith discussed the incident, called it a robbery, and said the reason he did it was that he did not have any money. Smith asked the trial court for a lesser-included instruction on aggravated assault. The trial court, once it presumably stopped laughing, said no.

At the punishment phase, the State introduced evidence that Smith had committed various other crimes, like assault and capital murder (!). Smith himself testified that he was a habitual user of Xanax from his youth until his incarceration (presumably for that capital murder). The prosecutor, in closing, referred to Smith’s reaction to the testimony from the sister of the man he killed in the capital murder. Smith objected, but the trial court overruled it. The trial court also included an instruction that voluntary intoxication was not a defense to the crime. Smith objected, but the trial court overruled the objection. Smith got life (as happens in these situations).

A portion of the opinion is a majority opinion. The denial of the lesser-included offense was held to be proper because Smith, the big dummy, discussed robbing the complainant on a recorded phone call. No rational jury could believe Smith guilty only of the assault, so robbery it is. The punishment-phase closing was likewise disposed of on grounds of harmless error, without deciding whether the argument was erroneous

The plurality portion of the opinion deals solely with the issue of the voluntary-intoxication instruction. Chief Justice Frost believes it to be not error. Justice Jewell believes it is error, but harmless. Justice Christopher believes it to be harmful error. But because the Chief Justice and Justice Jewell concur in the result, relief is denied.

So Justice Jewell and Justice Christopher are correct in the sense that a voluntary-intoxication charge has no place in a punishment jury charge. After all, punishment does not require the jury to determine whether a crime occurred, merely what punishment to affix. And the jury should consider all evidence, including evidence of intoxication, in making that determination. But Chief Justice Frost is also correct that the mere inclusion of an out-of-place instruction is not necessarily erroneous. Smith argues that the misplaced instruction prevented the jury from considering mitigation evidence. But Chief Justice Frost thinks there is no evidence jurors were actually misled by it.

Justice Jewell argues, pace Taylor v. State, 885 S.W.2d 154 (Tex. Crim. App. 1994), that a voluntary-intoxication instruction is a guilt-innocence issue. But he points out that while Taylor does say that an instruction on voluntary intoxication may be proper during the guilt-innocence phase, it is not necessarily improper to include it in a punishment jury charge. So he would punt on the question of error and simply dispose of the matter by saying the error, if any, was harmless, applying the Almanza factors.

Justice Christopher, on the third hand, would apply a bright-line rule that a guilt-innocence instruction in the punishment phase is always error, and in this case, would have been harmful.

I sympathize with Judge Christopher, and feel keenly for Smith’s trial counsel. I too would’ve hollered my throat raw upon the inclusion of that instruction. That being said, intellectually, I agree with Chief Justice Frost that the instruction was not incorrect and did not tell the jurors they could not consider evidence of Xanax abuse in mitigation. It’s a tough nut to crack, which is why three reasonable jurists came to three different conclusions.

In Whitfield v. State, No. 14-15-00820-CR, the Court of Appeals considered whether the State could present a DNA analyst to testify regarding comparison results only, instead of presenting “all the technicians involved in the DNA testing process,” and whether the State should be posting on social media about the trial.

The Court of Appeals correctly noted that no precedent requires that every step in the chain of custody of an expert analysis be proven, and that Whitfield’s rights to confrontation were adequately satisfied by being able to confront the testifying expert about the results of the comparison.

In the more interesting issue, Whitfield complained that the State’s use of social media in his case amounted to a denial of due process. Specifically, he complained that the State’s tweeting during his trial was improper. Whitfield argued that the State was trying, unsuccessfully, to communicate with the jury. At the motion for new trial hearing, the jurors testified that none of them saw the State’s social media postings.

Still, the Fourteenth Court of Appeals did caution the State that social media posts during trial might present, in the appropriate cases, some ethical considerations, and the better part of sense would be not to post on social media until the after trial, which this author believes to be the wisest course.


Significant Decisions Report for March 3, 2017

Court of Criminal Appeals

Sing, o muse, for the Court of Criminal Appeals hath once again bestirred itself to issue proclamations from on high.

Curry v. State

The majority opinion in Curry v. State is unpublished, as many death penalty appeals are. Judge Alcala’s dissent, however, is published, though as a dissent, it has no precedential value.

Death penalty appeals are automatic to the Court of Criminal Appeals, and invariably raise a host of issues that would shame the Achaeans seeking to reclaim Helen. Among the issues in this case worth a read are things like eyewitness identification and palm print evidence. But these are well-settled points of law that Judge Newell, writing for the majority, ably discussed and disposed. The real crux of the judicial disagreement in this case focuses on a single issue – charge error in definitions given.

Texas criminal law highly disfavors defining any term in the jury charge that is not statutorily defined. Curry complained that the trial court should have given a definition of the word “society” in regard to the future dangerousness special issue (slip op. at page 39). Curry’s argument is novel and not without merit – he claimed that because the Legislature amended the Code of Criminal Procedure in 2005 to provide that life in prison without parole was the only alternative if the special issue on future dangerousness was answered in the negative, “society” in this case must mean “prison.” Therefore, to be a “future danger,” Curry would have had to be dangerous to his future fellow prisoners, and not to society at large.

But, as with so many of these issues, Curry’s trial counsel neither objected to the definition’s absence nor requested an instruction, meaning Curry would have had to show error to the “egregious harm” standard rather than the “some harm” standard. Judge Newell pointed out that the Court had previously rejected this argument in Coble v. State, 330 S.W.3d 253 (Tex. Crim. App. 2010).

Our tale need not end here, however. In his next points of error, Curry argued that the trial court’s response to a jury question about the definition of “society” violated his Constitutional rights. This is a meatier issue. The court’s response was short, to-the-point, and appropriate: “There is no special definition in the law regarding the term ‘society.’ With that understanding, the jury cannot put a legal limitation on the term.” Defense counsel objected and asked instead that the note merely read “refer to the Court’s charge.” The trial court overruled the objection, and here we are today. Judge Newell wrote that the because there was no statutory definition, the Court was not required to give any further definition, and that the trial court’s response “correctly stated the law.”

Judge Alcala disagreed; she believed that the trial court’s instruction permitted the jury to consider whether Curry would be a danger to society at large (dissent at page 2). She argued that Curry had a due process right to have the jury informed that “society” for him would only ever mean prison society, and that the trial court’s definition of “society” as being without legal limits was harmful.

Baumgart v. State

Mr. Baumgart was a security guard, but not a licensed security guard. The State did not take kindly to unlicensed security guarding, and charged him with committing violations of the Private Security Act. Baumgart sought to quash his indictments on the ground that the indictments failed to contain language that negates statutory exceptions to the indictments, in particular, that Baumgart was a law enforcement officer. The Fourteenth Court of Appeals held that statutory exceptions need not be plead in an indictment if the exception was contained in a separate section than the offense language and a prima facie case could be made without proof negating the exception.

Because “being a law enforcement officer” was contained in a separate section of the Act (entitled “Exceptions,” curiously enough), the Court of Appeals affirmed Baumgart’s convictions.

The case turns on a distinction between a defense to prosecution (“I did it, but here’s why that’s OK”) and an exception to criminal liability (“You don’t even get to charge me.” Sec. 2.02 of the Penal Code does provide that if something is an exception to the offense, the prosecution must “negate the existence of an exception in the accusation charging commission of the offense and prove beyond a reasonable doubt that the defendant or defendant’s conduct does not fall within the exception.”

But Sec. 2.02 itself does not apply to offenses enacted prior to Sec. 2.02. Fun stuff, huh? And that’s exactly what the State argued on appeal – that Sec. 2.02 merely codified common law.

The Court of Criminal Appeals discusses, at great length, the statutes at issue and applies its usual battery of statutory construction rules to arrive at the conclusion that the “non-applicability provisions” (some might call them “exceptions”) of the Private Security Act were defenses, and not exceptions to criminal liability. Thus, the State was not required to negate them in the indictment.

Presiding Judge Keller delivered the opinion of the near-unanimous court. Judge Keasler concurred, and Judge Newell dissented without writing a separate opinion, which is too bad. I would have liked to read Judge Newell’s dissent, as, after a review of the relevant statutes, I think that if being a licensed peace officer is an exception to the Private Security Act’s penal laws for the unlicensed practice of being a security guard, that certainly seems like something that would need to be negated in the charging instrument.

State v. Jarreau

Because Texas penal laws make so much sense, the definition of “dangerous drug” in Texas includes the language “a device or a drug that is unsafe for self-medication.” OK. Devices are drugs. Cool.

Jarreau filed a motion to quash the indictment because it did not specify whether the 25B-NBOMe he allegedly delivered was a “device” or a “drug” (Nota bene: I had no idea what a 25B-NBOMe was, but Google tells me it is a research chemical discovered in 2004 that goes by the street name of “N-bomb.” It is referred to as a synthetic substitute for LSD and is sold on blotter paper like LSD, which may be where the confusion between device and drug stems from).

The Fourth Court of Appeals obviously found Jarreau’s arguments persuasive, as it held that the State was required to plea which “theory” of the charged delivered item being a dangerous drug it would rely upon at trial.

The Court of Criminal Appeals, recognizing that there could be some confusion over what exactly 25B-NBOMe’s character is, and that merely naming the chemical name of the substance in the indictment would be insufficient in this case because there is no Texas Health & Safety Code definition of 25B-NBOMe. However, the Court of Criminal Appeals also realized that the “manner and means” of delivery of anything isn’t whether it is a device or a drug but how you turn over whatever the delivered item is. In other words, there might be a proof problem for how the State could prove that Jarreau knew the little slips of blotter paper he was turning over were a “device” or contained the drug “25B-NBOMe,” but the State is not required to elect between device or drug in the indictment.

Fourth Court of Appeals

I love this state. I really do. Stuff happens here that just is not going to happen in Connecticut or Nebraska.

Witness Cosby v. State, No. 04-15-00796-CR, unpublished from the Fourth Court of Appeals. Mr. Cosby was convicted of murder and appealed on a single issue – whether the trial court should have admitted evidence of a specific prior violent act committed by the putative victim against a third party. In this case, Cosby and the putative victim, Quiroga, were roommates but not mates. In fact, they kind of hated each other. One night, after returning from the tavern, Cosby and Quiroga got into an altercation over the placement of Cosby’s bike. Cosby very much wanted it to stay in their yard; Quiroga thought perhaps it looked better in the neighbors. A scuffle began, and Cosby was pushed to the ground. Cosby went inside to nurse his wounds, and upon returning outside where Quiroga was drinking, found the bike had been returned. Cosby said, and I quote, “Thanks for bringing the bicycle back, asshole,” to which Quiroga took exception, and another scuffle began with Cosby again receiving the worse side of the exchange.

This prompted Cosby to go inside and retrieve his piece. Quiroga, feeling outmatched, armed himself with a traffic cone. I do not know what possesses men to keep traffic cones handy in their back yard, or to avail oneself of the dubious martial utility of a traffic cone in a gun fight, but I do know that it’s pure Texas, y’all. When Quiroga swung at Cosby with the cone, Cosby shot Quiroga. Quiroga continued to advance. Cosby shot him again. Cosby shot Quiroga a third time when Quiroga fell on Cosby.

During his interview with detectives (which was, it must be remarked, a bad idea), Cosby stated Quiroga had previously beaten a former roommate, and Cosby was afraid that the same might happen to him (not, without, it must be said, some justification, as Cosby had twice earlier that evening been bested by Quiroga).

A third roommate, Gausline, confirmed Cosby’s story, stating that Quiroga did indeed beat up the former roommate with a baseball bat.

At trial, Cosby attempted to offer the testimony of a bar owner that Quiroga had threatened to knock him down and burn down the bar after the bar owner objected to Quiroga’s graffitiing of the bathroom (I promise I am not making this up; it’s right there in the opinion). However, to admit evidence of a prior violent act, a condition precedent is that the allegedly-violent acts of the “first aggressor” must be ambiguous or uncertain in some way that requires the prior bad acts to explain. For example, if Quiroga were known as the Traffic Cone Killer on the streets and famous for killing people with traffic cones, and Cosby merely shot Quiroga after seeing Quiroga reach for his trusty traffic cone, then the “prior bad acts” evidence of Quiroga’s traffic-cone-based violence would be admissible, since it would certainly be ambiguous and uncertain whether someone reaching for a traffic cone was an act of first aggression. In this case, however, no reasonable person could dispute that Quiroga acted aggressively toward Cosby. But the jury still rejected Cosby’s self-defense theory, so there is no relief for Mr. Cosby.

Thirteenth Court of Appeals

In Rivas v. State, No. 13-16-00414-CR, unpublished, the Thirteenth Court of Appeals considered whether Rivas was entitled to the appointment of counsel to represent him on a post-conviction DNA testing motion. The trial court concluded he was not, on the basis that DNA testing, even if it showed a contributor other than Rivas, would not exclude him from criminal liability. To be entitled to such testing (and the appointment of counsel), a defendant needs to show that, by a preponderance of the evidence, the discovery of third-party DNA would tend to establish that the defendant was not the perpetrator or a party. Rivas’s assertions on this point were entirely conclusory, which is never sufficient. For example, if there were simply no DNA evidence of the defendant found, that does not establish that the defendant did not commit the crime, merely that he left no recoverable DNA evidence. And if the DNA evidence did indicate the presence of a third party, that does not exclude the defendant as potentially being a perpetrator if the defendant’s DNA is also present.

As a practice tip, when filing a Chapter 64 motion for post-conviction DNA testing, it helps to be very, very specific about what the newly-discovered DNA evidence would prove. For example, if your client has always maintained a defense of a third party’s commission of the offense, and that evidence was excluded from the trial, then the presence of third-party DNA which confirms the defense would be rather useful and could lead to an exculpatory habeas petition. But it will never be sufficient to say, “well, maybe the jury would have felt differently if the defense had a DNA expert testify!” That’s not the purpose of Chapter 64, and you will not find much purchase in the courts of appeals without some specific, articulable reason why further DNA testing would probably have led to a different result.

Fourteenth Court of Appeals

We close this week with a pair of published cases from the Fightin’ Fourteenth Court of Appeals.

In Pena v. State, No. 14-14-00599-CR, the Court considered issues of legal sufficiency (boring!) and double jeopardy based on a prior State’s appeal (exciting!). The facts are thus: Pena, a truck driver, ran over and killed a little girl. He was indicted for manslaughter, but the charge also contained the lesser-included offense of criminally negligent homicide. The jury found Pena guilty only on the lesser-included, but answered a special issue regarding whether Pena used a deadly weapon, in the affirmative. Pena filed a motion for new trial, alleging that the trial court failed to quash the indictment despite there being an inadequate allegation of the facts upon which “recklessness” depended. The trial court granted the motion for new trial, but the State appealed it. The Court of Appeals reversed the grant of the new trial, and remanded to the trial court with instructions to reinstate the conviction. Now we are at the stage of direct appellate review of the conviction.

Pena now argues that the State’s appeal is “jeopardy barred.” This is a repeat issue from his earlier appeal (No. 14-14-00746-CR), where he argued that the State had no right to cross-appeal the grant of the motion for new trial while Pena was also appealing his conviction. The Fourteenth Court of Appeals overruled the same issue in 2015, and Pena found no more relief in 2017.

The State does have the right, by statute, to appeal the grant of a new trial. But Pena did file his original direct appeal at the same time. Ordinarily, the notice of appeal is moot until the trial court sends the record to the appellate court, at which point the trial court loses jurisdiction. So if the trial court had jurisdiction to grant the new trial, then the State had the right to appeal, and the Court of Appeals was correct in finding that Pena was not subject to an impermissible risk of a successive trial. If the trial court had no jurisdiction to grant the new trial based on the notice of appeal being filed, then the new trial could not have been granted and any order granting it was void.

As an aside, there is yet another discussion of when an ordinary object constitutes a deadly weapon. In this case, the Court of Appeals has decided that a merely negligent-yet-dangerous wide right turn is a sufficient “use or intended use” to find that a vehicle is a deadly weapon. At that point, it would seem, any operation of a motor vehicle is so potentially dangerous that a vehicle ought to be a deadly weapon per se, but that is not the law and never has been. I do not think anyone rationally capable of denying that motor vehicles are “capable” of causing death or serious bodily injury. I just happen to think that motor vehicles are capable of causing death or serious bodily injury even when operated appropriately, and so some further clarification might be needed to differentiate between the accidental bad driver and the person who uses a car as a deadly weapon. I understand, as the Court points out, that there is no requirement for the State to prove a specific intent on the part of the defendant to use the object as a deadly weapon, but maybe there ought to be. Otherwise, at what point do we water down our “deadly weapon” jurisprudence to the point where virtually any object that causes death is a deadly weapon?

In Mixon v. State, No. 14-16-00086-CR, the Court of Appeals considered whether the trial court properly denied a motion to suppress. In this case, an officer found Mixon “lying on the side of the road.” The officer believed Mixon might have been intoxicated because he was not responsive and not responding intelligently, as Mixon was “lethargic and incoherent.”

The officer asked for ID, and when Mixon said, “it’s in my wallet,” the officer asked for permission to retrieve it. Mixon said yes. The officer reached in the pocket, and pulled out a travel-size bottle of mouthwash that contained PCP.

At the hearing, the State and Mixon argued about two issues: (1) was this a search incident to arrest and (2) was the officer justified in searching Mixon’s pockets on consent? On appeal Mixon only argued the consent issue, and not the search incident to arrest. The Court of Appeals found that the search incident to arrest, as it was a stated basis for the trial court’s decision, was part of the law of the case, and that Mixon could default on that issue if not raised on appeal. Conviction affirmed, because Mixon did not respond to an open and obvious theory raised by the trial court and argued by Mixon’s trial counsel at the motion to suppress.

Briefing requirements, including the requirement to include all legal theories relevant to the lower court’s decision, are strict. Follow them.

Significant Decisions Report for February 24, 2017


United States Supreme Court

Buck v. Davis (Death Penalty, Texas)

Duane Buck was convicted of capital murder in Texas. During the punishment phase, Buck’s attorney presented the testimony of one Dr. Walter Quijano, who submitted an expert report that indicated Buck was of “increased probability” of reoffense due to his race. The prosecution picked up on this, used it, and argued the point in final arguments.

This case mirrors Saldano v. Texas, 530 U.S. 1212 (1999), where the Supreme Court vacated a conviction in which Dr. Quijano testified that due to Saldano’s Latin American ethnicity he was at a higher risk of reoffense. The Texas Attorney General’s Office identified six (6) in which Quijano testified similarly, and in every case but Buck’s, the AG confessed error and agreed to resentence those individuals.

Chief Justice Roberts delivered the opinion of the Court, in which he was joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. Justice Thomas filed a dissenting opinion in which Justice Alito joined.

Interestingly, Buck’s ineffective assistance of counsel claim has never been decided on its merits before this week, because of arcane procedural default rules. However, two important decisions (Martinez v. Ryan, 566 U.S. 1 (2012) and Trevino v. Thaler, 569 U.S. ___ (2013)) have changed significantly the procedural default landscape. The District Court denied the motion to reopen the case, the Fifth Circuit declined to grant a certificate of appealability (COA), and the case has thus reached the United States Supreme Court.

Cutting through a lot of the legal analysis reserved for procedural default, the question for the reviewing court in whether to grant a COA is not whether the petitioner would have prevailed on the merits in the district court, but rather whether the district court’s decision was “debatable.” The dissenters argue that a “non-debatable” decision is, a fortiori, meritless. The majority takes a different view: a prisoner who fails to make an ultimate showing that his claim meritorious does not thereby show that his claim was non-debatable. The Fifth Circuit, in Buck’s case, decided first whether the claim was meritorious. Chief Justice Roberts wrote that this “placed too have a burden on the prisoner at the COA stage.” (Slip op. at 14, emphasis in original).

Ineffective assistance of counsel claims are always judged by the Strickland v. Washington two-prong standard: (1) did the attorney’s representation fall so far short of the minimum standard of professional competence that no reasonably competent defense attorney would have engaged in such actions; and (2) did the attorney’s deficient representation cause actual prejudice to the defendant? In a single paragraph, Chief Justice Roberts lays out that “[n]o competent defense attorney would introduce [evidence that black people have an increased probability of future dangerousness] about his own client.” I have to agree with the Chief Justice.

The second prong can be rebutted in death penalty cases in only one way – absent the deficient representation, would the defendant still have been sentenced to die? Chief Justice Roberts says:

Dr. Quijano’s opinion coincided precisely with a particularly noxious strain of racial prejudice, which itself coincided precisely with the central question at sentencing. The effect of this unusual confluence of factors was to provide support for making a decision on life or death on the basis of race. This effect was heightened due to the source of the testimony. Dr. Quijano took the stand as a medical expert bearing the court’s imprimatur. The jury learned at the outside of his testimony that he held a doctorate in clinical psychology, had conducted evaluations in some 70 capital murder cases, and had been appointed by the trial judge (at public expense) to evaluate Buck.

(Slip op. at page 19). Powerful phraseology by the Chief Justice, but it strikes at the very heart of what is essentially a subjective, fact-based inquiry. Too often courts are willing to excuse the inexcusable under standards like “harmless error” or “lack of prejudice” by pointing to the fact that there was other, probative evidence of Buck’s future dangerousness that the jury could have utilized to decide the case. When conducting a review such as this, the reviewing court is given no special insight as to what did, or did not, influence the jury. We may never know if Mr. Buck’s jury did or did not find Dr. Quijano’s testimony significant. But the nature of the evidence itself was such that a majority of the highest court in the nation found that it must be deemed unfairly prejudicial. Where the Fifth Circuit called Quijano’s blatantly racist statements “de minimis,” Chief Justice Roberts appropriately noted that “[s]ome toxins can be deadly in small doses” (slip op. at pages 19-20).

To reopen his case, Buck had to file a motion under Federal Rule of Civil Procedure 60(b), seeking to collaterally attack his conviction. He filed it under Rule 60(b)(6), the “catch-all” provision. Relief under this provision requires a demonstration of “extraordinary circumstances.” The district court denied relief under the theory that Quijano’s damaging testimony was de minimis. The Fifth Circuit remarked that Buck’s claim was “unremarkable as far as [ineffective assistance] claims go.”

Chief Justice Roberts spared little care for the feelings of the drafters of these rulings. He writes: “But our holding on prejudice makes clear that Buck may have been sentenced to death in part because of his race. As an initial matter, this is a disturbing departure from a basic premise of our criminal justice system:

Our law punishes people for what they do, not who they are. Dispensing punishment on the basis of an immutable characteristic flatly contravenes this guiding principle. As petitioner correctly puts it, “[i]t stretches credulity to characterize Mr. Buck’s [ineffective assistance of counsel] claim as run-of-the-mill.”

(Slip op. at pages 21-22). As a practice note for my appellate-minded brothers and sisters, saying that a lower court’s decision “stretches credulity” is often a good way to find yourself on the outs with reviewing court judges, who, it must be remarked, are still judges, and rarely wish to be maligned in your next brief as similarly stretching credulity. On the other hand, in the appropriate context, it gets you quoted in the majority opinion by the Chief Justice, so as with all rules, follow it until it is time to break it.

Chief Justice Roberts noted that, in the other five “Quijano cases” (my term, not the Court’s), the State confessed error, and sought to distinguish Buck’s case because Quijano was sponsored by defense counsel. The Supreme Court disagreed, holding that it did not rightly care how race came to be a factor in sentencing, it was flatly prohibiting the use of race as a factor in the criminal justice system, something the State paid lip service to in its rationale for confessing error in Saldano.

Under the application of the new standard from Martinez and Trevino, then, ineffective assistance of habeas counsel provides a basis for relief if Buck’s case were to be reopened under Rule 60(b). The case is therefore remanded to the District Court to consider whether Buck received ineffective assistance of counsel (although, given that the Supreme Court has decided that he did, it seems a foregone conclusion that Mr. Buck will receive, at long last, an appropriate sentencing hearing). The State of Texas could do itself a lot of PR favors by simply agreeing to a resentencing hearing. If they have the true weight of the evidence, as they seem to think they do, then Buck will be resentenced to death and the State can sleep easier knowing due process was afforded to him. If Buck is not sentenced to die, but must remain in prison for the rest of his natural life, then we can all breathe easier that Texas is not going to kill a man because of his race.

Whatever one’s thoughts on the propriety of capital punishment (and it is a varied and nuanced issue, with compelling arguments from all sides), I think we can all agree that an additional sentencing hearing is a small price to pay to preserve due process.

Unless, that is, you are Justices Thomas and Alito, who argued that the majority “bulldozes procedural obstacles and misapplies settled law” to justify its “desired outcome.” The cynic in me wishes to remind Justices Thomas and Alito that this is very nearly what happens in every case, that our vaunted principles of reliance on stare decises are but a thin gloss over the reality that outcome-based reasoning drives most human decision-making, let alone legal decision-making, but such questions of philosophy aside, let us investigate the reasoning of Justices Thomas and Alito to see if perhaps the majority has misjudged the dissenters.

I confess that I am unpersuaded by Justice Thomas’s dissent, particularly Part A. Much hay is being made about the proper procedural steps to follow in determining whether the claims is (1) debatable and (2) meritorious. The certificate of appealability should be granted if the claim is debatable; that is, if reasonable jurists may find it worthy of argument. The ultimate disposition should come down to the merits.

The majority is correct in that a merits determination to decide whether something is debatable puts the cart before the horse. There are claims which are debatable that, in the ultimate analysis, are found wanting for merit. Justice Thomas plays a bit loose with “not meritorious” and “meritless” in his analysis. The Fifth Circuit should not, as a matter of procedure, determine that something is meritless to see if it is debatable. Per force, a meritless claim is not debatable, but there may be other reasons why something is not “debatable” that do not rely on a merits decision.

The inverse is not true, however. A debatable claim may be meritorious, not meritorious, or meritless. The majority first decides that the claim is debatable, and then proceeds to discuss the merits. That the Court found it meritorious does not change their earlier decision that the claim was debatable.

Justices Thomas and Alito would similarly decide the case against Buck – they found the State’s argument about Buck’s future dangerousness, irrespective of the admittedly-inappropriate testimony about race to be sufficient.

Which is why everyone’s carping about procedure seems to me to be much ado about nothing. Ultimately, both sides of the issue really want to address the merits. Six justices of the United States Supreme Court, including the Chief, find Buck’s claims meritorious, for the reasons stated above. Two justices do not. At issue is nothing more or less than Buck’s life. Even if the State does not persuade the jury on resentencing, Buck can do no better than life in prison. Society is not in any more danger from Buck. Buck’s future dangerousness has ceased to be the most important issue in this case. The only issue left is whether Quijano’s testimony (and, I might add, the State’s reliance upon it) was de minimis. Justices Thomas and Alito obviously believe it is. The justices in the majority think otherwise. End of story. To attempt to hide that fundamental disagreement behind baroque rules of procedure and deference to lower courts is what often confuses laypeople as they view cases like Buck’s case.

It is remarkable, however, how many times procedural default is used to wash judicial hands of the injustice of a wrongful conviction in the sense of preserving the abstract notion of the inviolability of law, when those same judicial hands often find loopholes and bends in the law to which their own pet causes can slip through. What I am suggesting is that, as law is a human activity, conducted by human judges, human frailties of reason (such as bias, prejudice, intellectual blindness, and so forth) will continue to mar our jurisprudence. This is an unavoidable condition of being human; we are not perfect, and thus nor may our systems be perfect. The existence of rules such as Rule 60(b)(6) are an attempt to acknowledge that no rule-based system can ever be complete (that is, able to decide all problems that arise under the rules) and consistent (that is, without contradiction). The mathematician Kurt Gödel described this with regard to mathematical systems, and I have seen little reason it cannot apply to any axiomatic system, including jurisprudence. Sometimes, when procedure is a barrier to justice, a little bulldozing is necessary. We ought not discount our sense of the moral, of what is right, to preserve an abstract system that we tolerate only insofar as it is a useful heuristic in resolving difficult disputes. Justice Thomas’s indignation that the process, and the actors in that process, are not being respected strikes me as an abdication of a Supreme Court Justice’s inherent authority as the last repose of American jurisprudence to sometimes do what is right, even if it does some violence to that jurisprudence. After all, a case that is limited to its facts may cause some consternation to appellate practitioners trying to come up with creative new arguments. A sentence of death carried out for pernicious reasoning ends a life that ought not have been ended. Balanced on the greater scale, I would rather spend two pages explaining a case limited to its facts than wonder if my state executed a man because of the color of his skin.

Court of Criminal Appeals

Alas, constant readers, we are bereft of instruction and guidance from our high criminal court this week. We at the Significant Decisions Report hope that the judges had a lovely President’s Day weekend, and that they return with more opinions next week.

First Court of Appeals

In Mendez v. State, No. 01-15-00187-CR, the First Court of Appeals considered charge error that failed to instruct the jury that affirmative defenses apply equally to the charged offense and any lesser-included offenses. The State conceded error in that the application paragraph applied self-defense only to murder, and not involuntary manslaughter. However, because Mendez’s trial counsel did not object to this error, it has to be reviewed for “egregious” rather than some harm.

This is a dangerous position to be in, especially considering that the defendant was convicted only of the lesser-included offense. Earlier in the opinion, the Court disposed of a legal sufficiency challenge regarding self-defense. In most cases, one would expect that, if there was legally sufficient evidence to permit the jury to reject self-defense, that a defendant could not show egregious harm in a charge that failed to properly instruct on the application of self-defense. The Court of Appeals, however, did find that the error vitally affected Mendez’s defensive theory, and remanded the case for a new trial.

Fourth Court of Appeals

In Gabriel v. State, No. 04-15-00759-CR, an unpublished opinion, the San Antonio Court of Appeals clarified rulings on probable cause and the fruit of the poisonous tree.

In that case, a young woman was the victim of a sexual assault and robbery as she waited for her gym to open. She was able to describe her assailant to the police and provide details about the robbery, and DNA samples were collected. The police searched in the direction the assailant ran, but were unable to locate him.

Months later, San Antonio PD officers were responding to an unrelated burglary call at an apartment complex. As Officer Torres patrolled the parking lot, he noticed the door of an SUV ajar, which he found odd. When he turned around, the door was closed and he saw feet sticking out from under the vehicle next to the SUV. Finding this even odder, he got out to investigate, whereupon he chanced to smell the odor of the burnin’ diggity dank, that old fiend marijuana. Gabriel admitted to smoking pot in his car. Officer Ruiz arrived to assist in the investigation, and found a backpack in the bed of the truck. Gabriel, who was sans shirt, asked for a shirt from the backpack, which Ruiz provided. Ruiz also searched the backpack, and found two black ski masks, clothing, and a loaded gun. Realizing that Gabriel matched the description of the gym rapist, lived near the gym where the rape happened, and had paraphernalia consistent with what the victim described, Gabriel was arrested and transported to the hospital for DNA collection. He was “not excluded” from being a contributor to the DNA found on the victim.

On appeal, Gabriel challenged both his arrest for lack of probable cause and the search of the backpack. The probable cause challenge turned on whether the odor of burning marijuana was enough to arrest (NB: it is almost always enough to detain, but not to arrest without more). However, the fact that Gabriel chose to dive under a nearby truck in an attempt to hide from officers failed to persuade the Court of Appeals that Torres lacked “other evidence” that would justify the arrest of Gabriel, not the least of which Gabriel’s explanation for his behavior was that he was smoking marijuana.

The more interesting issue is the search and seizure of the backpack. To refresh our memory, Torres is patrolling the parking lot in the early morning hours, sees a door of a vehicle open, turns around to investigate more, and sees the door closed. Feet are sticking out from under a nearby car. Torres gets out, orders Gabriel to stand up, and Gabriel tells Torres, “hey man, I was just out here to check on my car and blaze it.” Torres approached the Gabriel’s SUV, opened the door, and smoke came out. Gabriel is arrested and handcuffed, and the officers then began to search the area for narcotics. In the bed of the truck under which Gabriel had been hiding, officers found a backpack, which was searched, revealing: a .40 caliber handgun, clothing, ski masks, and gloves. Also in the backpack were a time card belonging to Gabriel, marijuana, and paraphernalia.

The trial court considered this a valid search incident to arrest. Relying on Arizona v. Gant, Gabriel suggested that because he was arrested, the backpack was no longer within arms’ reach. However, and this is crucial, Gant is restricted to the search of the passenger compartment of a vehicle. The fact is, when Gabriel was first “seized” by Torres, the backpack was inside the bed of the truck under which Gabriel was hiding, meaning it was within arm’s reach (see State v. Stander, 264 S.W.3d 360, 364 (Tex. App.—Eastland 2008, pet. ref’d)).

I would have liked to see discussion of whether there were any other legitimate bases for the search. The State suggested that Gabriel might have lacked standing to contest a search of the backpack because he abandoned it during his flight under the truck. I think this is a weak rationale, but were I the State in this action, I would have suggested that Gabriel forfeited a claim to contest the search of the backpack when he permitted Officer Ruiz to retrieve a shirt from inside the backpack and provide it to Gabriel.

Eighth Court of Appeals

In Leon v. State, No. 08-15-00365-CR, the Eighth Court of Appeals considered a State’s appeal of an order suppressing statements made by the defendant. Police stopped the vehicle in which Leon was traveling for a traffic violation, found everyone in the car to be nervous, and detained Leon. They placed him, without handcuffs, in the back of the police car, and set the driver and the other passenger down on the curb. A search of the car found cocaine, and when the officers asked Leon whose coke it was, Leon, admitted that it was his. After this conversation, officers read Leon his Miranda rights and placed him under formal arrest.

Leon filed a motion to suppress. The visiting judge initially denied it, but upon reconsideration, the district court judge granted it in part, suppressing the statements but not the brick of cocaine.

The Court of Appeals agreed with Leon that he was in custody when he was placed in the back of the car (without any ability to open the doors) for a lengthy period of time. The restriction in his movement, which was apparently for no purpose at all (at least not one testified to by the officer), caused his investigatory detention to become “custody” for purposes of interrogation, meaning Leon needed to be read his rights prior to any questioning. Order granting the motion to suppress affirmed.

Ninth Court of Appeals

In State v. Kolander, Nos. 09-16-00294-Cr and 09-16-00295-CR, and State v. Smith, Nos. 09-16-00296-CR and 09-16-00297-CR (companion cases) the Ninth Court of Appeals considered a rare State’s appeal of the grant of a motion to quash the indictments. Kolander and Smith, peace officers, were each indicted for tampering with physical evidence and tampering with a governmental record by including false statements in the PC affidavit.

The complained-of defect was that the indictments did not specify what false statement was used. The special prosecutor responded that this was not a necessary part of the indictments. The Court of Appeals disagreed, holding that the failure to include the allegedly false statements was a defect as to form and that the State must replead its case.

I have tried to peer into the entrails of these cases and augur some sense of what value they may have for motion practice for defense attorneys. But because they are unpublished memorandum opinions, they are of little precedential value. I happen to agree with the special prosecutor that “tracking the language” of Texas Penal Code § 37.09 and § 37.10 does not seem to require the State to plead the alleged basis for the falsity of the document in question. The statutes simply require that the defendant have “knowledge of its falsity” at the time that it is presented. Not that the Texas jurisprudence on charging instruments is “clear” by any stretch of the imagination, but it is a settled principle that the State need not plead “evidentiary” facts within its indictment. See Daniels v. State, 754 S.W.2d 214, 218 (Tex. Crim. App. 1988).

Similar indictments were upheld by the Court of Criminal Appeals (albeit not regarding the same type of challenge) in Kirkpatrick v. State, 279 S.W.3d 324 (Tex. Crim. App. 2009). The elements of tampering with a governmental record as set forth in Fox v. State, 418 S.W.3d 365 (Tex. App.—Texarkana 2013, no pet.) do not include the alleged false statement made.

Which leads us to a discussion of Cook v. State, 824 S.W.2d 334 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d) and Shaw v. State, No. 01-96-00015-CR, 1997 WL 269567 (Tex. App.—Houston [1st Dist.] May 22, 1997, no pet.) (not designated for publication). The Ninth Court of Appeals relied on Cook for the proposition that an indictment which fails to include the particular false statement at issue is defective. However, as discussed by Shaw, the charges in Cook were somewhat unique – 17 indictments, all identical in form, that contained 33 counts of tampering with governmental records. In that case, the First Court of Appeals said, “yeah, sure, you need something to distinguish 33 counts of tampering.”

But in Shaw, it was apparent from the date of the included document and the date alleged in the indictment what the “false statement” was. Shaw, 1997 WL 269567 at *2. The State did make this argument in its appellate brief, along with the statement that it was falsity by omission that it intended to prove at trial (see Appellant’s Brief, page 19). However, it appears that the Ninth Court of Appeals was not persuaded by this, which leads me to my current quandary.

As a criminal defense attorney, I do not object, philosophically, to greater specificity in charging instruments. As a legal scholar, however, I understand (and agree with) the rationale that evidentiary facts do not need to be included in an affidavit. The State bears the burden of proof; they must find and prove something about the PC affidavit was false. Requiring them to specify at the outset what that is makes that particular false statement an essential element, which would then NOT prevent a second prosecution of my client if I got him acquitted on the first charge. By keeping the pleading requirements more general, if the State cannot prove in a single trial that anything about the document was false, then I have secured an acquittal and jeopardy bars a retrial. If my client assures me that everything in the document is correct to the best of his knowledge and recollection, then I need no specific proof that everything in there is true. The burden rests upon the State to prove something is false, and in this case, the State has a tall order of proving that Kolander or Smith knowingly omitted pertinent information. By forcing the State to include what pertinent information it believes omitted, Kolander and Smith may be able to better prepare their defense, but only to the indictments as given. Because there could be LOTS of information that the State might say was relevant and omitted, there are potentially other charges the State can bring that were not plead within this indictment and would not be jeopardy-barred.

This is a tough nut to crack, particularly because we have a colleague of the defense bar acting as prosecutor and agents of the State acting as defendants. It is a total role reversal from the usual order of things, with a similarly defense-friendly opinion where I would have thought the tenor of the law was against the defendants and in favor of the State.