Significant Decisions Report for April 21, 2017

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

Supreme Court of the United States

Manrique v. United States

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

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

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

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

Nelson v. Colorado

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

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

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

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

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

Court of Criminal Appeals

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

First Court of Appeals

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

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

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

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

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

Third Court of Appeals

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

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

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

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

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

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

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

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

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

Eleventh Court of Appeals

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

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

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

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

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

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

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

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

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

Fourteenth Court of Appeals

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

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

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

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

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

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

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

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

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

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

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

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


Significant Decisions Report for April 14, 2017

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

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

Fifth Circuit

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

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

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

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

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

Court of Criminal Appeals

Reed v. State

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

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

Hankston v. State

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

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

Allen v. State

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

Ex parte Broussard

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

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

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

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

Ex parte Reece

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

First Court of Appeals

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

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

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

Fourth Court of Appeals

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

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

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

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

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

Sixth Court of Appeals

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

Eleventh Court of Appeals

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

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

Fourteenth Court of Appeals

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

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

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

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

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


Significant Decisions Report- April 7, 2017


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

Supreme Court of the United States

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

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

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

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

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

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

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

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

Court of Criminal Appeals

Thomas v. State

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

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

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

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

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

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

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

In re Matthew Powell, Lubbock County District Attorney

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

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

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

First Court of Appeals

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

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

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

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

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

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

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

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

Thirteenth Court of Appeals

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

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

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

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

Fourteenth Court of Appeals

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

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

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

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

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


Significant Decisions Report for March 24, 2017


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

United States Supreme Court

Manuel v. Joliet

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

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

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

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

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

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

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

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


But it gets better.

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

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

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

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

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

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

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

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

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

Court of Criminal Appeals

Ex parte Owens III

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

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

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

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

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

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

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

Bell v. State

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

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

Ex parte Ulloa

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

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

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

And that is all I have to say about that.

Green v. State

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

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

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

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

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

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

Villa v. State

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

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

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

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

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

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

McClintock v. State

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

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

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

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

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

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

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

Third Court of Appeals

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

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

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

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

Tenth Court of Appeals

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

Fourteenth Court of Appeals

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

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

Death and Taxes at the Harris County Jail

Wealth rather than culpability often determines outcomes in the criminal incarceration industry (and if you don’t think it is an industry, you’re not paying attention- and I encourage you to read Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness).

Recently, an acquaintance of mine, the same age as me, was found dead in the Harris County Jail. Vincent Young died in February 2017, after allegedly hanging himself with a bedsheet. He was a father of nine, was no stranger to the criminal justice system in Harris County, and had bruises and a busted lip at the time of death. Vincent knew the system. He had a history of being represented by one of the best criminal defense attorneys in Harris County. He had more than one criminal case dismissed against him in the past, and knew that while you may not be able to beat the ride, you can beat the rap.

A 2015 article showed that over a ten year period, approximately 200 people have died in Harris County Jail. Vincent is now another human life lost to this taxpayer-funded institution: a man who was constitutionally presumed innocent, and who had previously shown his willingness to show up to court dates and did not constitute a flight risk.

Despite numbers like these and the knowledge of how sour and squalid the conditions are at the Harris County Jail, there are still people arguing with a straight face that the reason poor people stay in jail is because they want to be there. How any human, let alone a lawyer, could argue in a court of law that people want to be in jail is beyond comprehension and defies human decency.

Alec Karakatsanis and his legal team at Civil Rights Corps, along with other counsel, began a hearing yesterday afternoon in Federal Court in Houston on their bail challenge lawsuit against Harris County.

Mr. Karakatsanis, the award-winning director and founder of Civil Rights Corps, is an advocate dedicated to “ensuring that the legal system protects the important principles of human and civil rights, equality and fairness.” Civil Rights Corps, and people like Mr. Karakatsanis, are tirelessly fighting against human caging and the inhumane bail-bond system, which is the modern disguise for debtor’s prison.

This epidemic of mass incarceration of the poor is not unique to Harris County.

Kalief Browder was 16 years old when he was detained on suspicion of stealing a backpack. He spent three long years waiting in jail for trial because he couldn’t afford bond but didn’t want to plead guilty, he wanted to stand on his rights. He spent two years in solitary confinement, suffering various beatings by inmates and guards. His family reported that his mental health condition deteriorated as a result of his incarceration. Two days after being released from jail, a free and innocent man, he hung himself. He held out because he was innocent. He remained captive, beaten, and mentally deteriorating because he was poor. And in the end he paid the ultimate price for his poverty.

As a criminal defense attorney, I frequently have to file motions, writs, and request hearings to reduce or eliminate bond or onerous bond conditions (such as expensive ankle monitoring systems, no-contact with a client’s own children, or a client being unable to return to their own home while on bond). In counties contiguous to Harris County, I have been appointed to represent a client days after they have already been jailed, and a bond amount has somehow been determined without any kind of defense counsel present. No one was there to argue for her bond amount (or against it), no one was there to say she wasn’t a danger to the community, or that she wasn’t a flight risk. No one.  Just a prosecutor telling a judge what to do.

On a non-violent misdemeanor offense a client may have already served several days in jail by the time I get the case because they are too poor to post the arbitrary and often oppressive bond, so they end up serving more days in jail waiting for their court date than they would eventually be sentenced to if they were found guilty. It is no wonder there are so many guilty pleas. In a system which prides itself on justice, this is appalling.

The lawsuit against Harris County brought to light many frightening allegations that criminal defense attorneys (and criminal defendants) have known for a long time. The Plaintiffs in this lawsuit are fighting to end the arbitrary and indiscriminate detention of the poor, but also to end the ridiculous waste of taxpayer funds that the current bail bond system represents.  Jailing people who represent little to no public risk and will likely show up to their scheduled future court dates is a colossal waste of funds and effort.

Thousands of video recordings show that hearing officers don’t let arrestees even speak, and then often punish them by setting higher bonds if they do. Hearing Officers even argued that they don’t allow arrestees to speak because they don’t want them to incriminate themselves, since they have no legal representation present. Finally and recently, under intense pressure and scrutiny, Harris County voted to fund defense counsel at these hearings- but it took a lot of money and time to get anyone to pay attention.

It should not escape notice that Kim Ogg, Harris County’s new District Attorney, has spoken out in favor of bail reform, and has supported the efforts of this groundbreaking lawsuit.

As the hearing continues, all citizens should be concerned. With so many Harris County residents being arrested and unconstitutionally jailed, all of our communities suffer. We might not be able to immediately stop the deaths in our jail, but we can support the fight to end the oppression.

The Federal Courthouse is located at 515 Rusk Ave, Houston, TX 77002.