Significant Decisions Report for March 31, 2017

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

Supreme Court of the United States

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

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Atkins and Hall required reviewing courts to consult the most recent scientific evidence and standards, and not the outdated standards that went into formulating the Briseno decision nearly 13 years ago.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

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

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

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

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

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

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

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

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

Court of Criminal Appeals

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

First Court of Appeals

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

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

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

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

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

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

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

Sixth Court of Appeals

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

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

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

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

Eighth Court of Appeals

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

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

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

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

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

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

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

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

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

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

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

Thirteenth Court of Appeals

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

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

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

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

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

Fourteenth Court of Appeals

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

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

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

Significant Decisions Report for March 17, 2017


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

Sixth Court of Appeals

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

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

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

Fourteenth Court of Appeals

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

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

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

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

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

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

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

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

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

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

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


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.