April 2017 SDR - Voice for the Defense Vol. 46, No. 3

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Thursday, March 30th, 2017

Voice for the Defense Volume 46, No. 3 Edition

Editor: Michael Mowla

From author Michael Mowla:

1. I summarize each opinion in a manner that allows readers to generally use this SDR instead of reading every opinion.

2. The case-opinions range from 5 to over 100 pages, so I focus on the most relevant parts to write summaries of one to four pages.

3. If you determine that a summarized opinion is relevant to one of your cases, I urge you to read the opinion and not rely solely upon these summaries.

4. The summaries reflect only the facts and relevant holdings of the cases and do not reflect my opinion of whether the cases correctly: (1) recite the facts presented at trial; or (2) apply the law. My opinions (if any) are preceded by “Editor’s Note.”

5. I use the following abbreviations: Supreme Court of the United States (“SCOTUS”); Fifth Circuit (“USCA5”); other federal appellate courts (“USCA[court number]”); Texas Court of Criminal Appeals (“TCCA”); Texas Courts of Appeals (“TCA[court number], i.e., the Texas Fifth Court of Appeals is “TCA5”); Certificate of Appealability (“COA”); IATC (“IATC”); findings of fact and conclusions of law (“FFCL”); motion to suppress (“MTS”); motion for continuance (“MFC”); grand jury (“GJ”); Drug-Free Zone (“DFZ”); and United States Sentencing Guidelines (“U.S.S.G.”)

6. A more complete and in depth recitation of the facts and analysis is provided in the online SDR which is published electronically.

Supreme Court of the United States

Buck v. Davis, ___ U.S. ___, No. 15-8049, 2017 U.S. LEXIS 1429 (U.S. Feb. 22, 2017):

        (1) In a case where a black defendant’s trial counsel (and not the State) introduced evidence that there was an “increased probability” that the defendant would commit future acts of violence, the defendant received ineffective assistance of trial counsel because: (1) trial counsel’s performance fell outside the bounds of competent representation, since it would be patently unconstitutional for the state to argue that a defendant is liable to be a future danger because of his race, and no competent defense attorney would introduce such evidence about his own client; and (2) the defendant was prejudiced because during trial, the focus was on future-dangerousness, and the fact that defendant is black (and more prone to violence per the evidence erroneously presented by trial counsel) “would never change,” so defendant could never prove lack of future-dangerousness.

        (2) Before proceeding on appeal, a state prisoner whose federal petition for a writ of habeas corpus under 28 U.S.C. § 2254 is denied must first obtain a COA from a circuit justice or judge, and it may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). At the COA stage, the only question is whether the applicant has shown that “jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” This requires the court to limit its examination [at the COA stage] to a threshold inquiry into the underlying merit of the claims and ask only “if the District Court’s decision was debatable.” Miller-El v. Cockrell, 537 U.S. 322, 327, 348 (2003). This threshold question should be decided without “full consideration of the factual or legal bases adduced in support of the claims.”

        (3) Under Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 133 S.Ct. 1911 (2013), a petitioner filing a federal writ under 28 U.S.C. 2254 may establish cause for procedural default if: (1) the state courts did not appoint counsel in the initial-review collateral proceeding or appointed counsel was ineffective under Strickland; and (2) the underlying claim is a substantial one (has some merit).

Beckles v. United States, 580 U.S. ___, No. 15-8544, 2017 U.S. LEXIS 1572 (U.S. March 6, 2017).

        (1) Unlike the ACCA, the U.S.S.G. do not fix the permissible range of sentences, but merely guide the exercise of a court’s discretion in choosing an appropriate sentence within the statutory range.

        (2) Although the U.S.S.G. were initially binding, in Booker, they were rendered advisory. The U.S.S.G. are “the starting point and the initial benchmark” for sentencing, but a court cannot rely exclusively on the U.S.S.G. range and must “make an individualized assessment based on the facts presented” and the other statutory factors.

        (3) Because the U.S.S.G. only guide sentencing discretion, the U.S.S.G. are not subject to a vagueness challenge under the Due Process Clause, and the residual clause in U.S.S.G. § 4B1.2(a)(2) is not void for vagueness.

Pena-Rodriguez v. Colorado, 580 U.S. ___, No. 15-606, 2017 U.S. LEXIS 1574 (U.S. March 6, 2017).

        (1) The SCOTUS held that where a juror makes a clear statement that indicates he relied on racial stereotypes or animus to convict a defendant, the Sixth Amendment requires that the no-impeachment rule under Rule 606(b) give way to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.

        (2) “[N]ot every offhand comment indicating racial bias or hostility will justify setting aside the no-impeachment bar [of Rule 606(b)] to allow further judicial inquiry . . . [F]or the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict. And to qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror’s vote to convict. Whether this threshold showing is satisfied is at the substantial discretion of the trial court under the circumstances, including the content and timing of the alleged statements, and the reliability of the proffered evidence.

Rippo v. Baker, 580 U.S. ___, No. 16-6316, 2017 U.S. LEXIS 1571 (U.S. March 6, 2017) (per curiam).

        (1) The Due Process Clause may demand recusal even when a judge has no actual bias, so petitioner is entitled to discovery on the issue.

        (2) Recusal is required when objectively speaking, “the probability of actual bias on the part of the judge . . . is too high to be constitutionally tolerable.”

United States Court of Appeals for the Fifth Circuit

United States v. Buck, ___ F.3d ___, No. 15-20697, 2017 U.S. App. LEXIS 1814 (5th Cir. Feb. 1, 2017):

        (1) When a trial is terminated over defense objection, retrial is prohibited absent “manifest necessity.” Retrial of a case following a mistrial on defense-motion by the defense is allowed unless the defense motion was prompted by government-conduct that was “intended to goad.” Goading is narrowly defined as “intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause,” so “gross negligence by the prosecutor, or even intentional conduct that seriously prejudices the defense, is insufficient”;

        (2) A Brady violation requires: (1) evidence withheld by the government be either exculpatory or impeaching, and (2) prejudice;

        (3) When imposing sanctions for discovery violations, courts must consider: (1) the reasons why disclosure was not made; (2) prejudice to the opposing party; (3) feasibility of curing the prejudice with a continuance; and (4) any other relevant circumstances;

        (4) The Hobbs Act’s reference to actual or threatened force or violence satisfies the standard needed for a crime of vio­lence under § 924(c)(3)(A);

        (5) The Hobbs Act does not require specific intent or knowledge to affect interstate commerce;

        (6) U.S.S.G. § 2B3.1(b)(4)(A) allows enhancement “if any person was abducted to facilitate commission of the offense or to facilitate escape.” “Abducted” means “a victim was forced to accompany an offender to a different location,” which includes being forced from one part of a building to another. “Different location” is interpreted with flexibility;

        (7) Restitution may be ordered only against those convicted of crimes that gave rise to the restitution;

        (8) A sentence imposed within statutory limits may violate the Eighth Amendment if it “is so disproportionate to the crime committed that it shocks human sensibilities,” but even a very long sentence does not shock human sensibilities if it is consistent with other decisions of the USCA5; and

        (9) Introduction of a statement to a jailhouse snitch does not violate the Sixth Amendment right to counsel and their testimony is not inherently unreliable.

United States v. Cruz-Romero, ___ F.3d ___, No. 15-51181, 2017 U.S. App. LEXIS 2272 (5th Cir. Feb. 8, 2017):

        (1) When considering de novo review of whether the government breached a plea agreement, the court asks “whether the government’s conduct was consistent with the parties’ reasonable understanding of the agreement.”

        (2) The defendant has the burden of proving the facts constituting a breach of the agreement by a preponderance of the evidence;

        (3) Merely stipulating to some basic facts in the plea agreement obtained from another source or providing information to someone other than the government does not satisfy the safety-valve provision of 18 U.S.C. § 3553(f)(5); and

        (4) Where a defendant waives his right to appeal his conviction or sentence on any ground other than ineffective assistance of counsel or prosecutorial misconduct and one of these grounds does not exist, the appeal must be dismissed.

United States v. Monsivais, ___ F.3d ___, No. 15-10357, 2017 U.S. App. LEXIS 1910 (5th Cir. Feb. 2, 2017).

        (1) Under Terry v. Ohio, 392 U.S. 1 (1968), officers may briefly detain a person for investigative purposes if they can point to “specific and articulable facts” that give rise to reasonable suspicion that the person has committed, is committing, or is about to commit a crime.

        (2) “Reasonable suspicion” is more than a “mere hunch,” and it need not rise to the level of probable cause. The officer must be able to point to specific and articulable facts that, taken together with rational inferences from those facts, reasonably warrant an intrusion into the privacy of the detained individual.

        (3) A court must examine the “totality of the circumstances” considering the officer’s training and experience, and should uphold the stop only if it finds that the officer had a “particularized and objective basis” for suspecting legal wrong­doing.

        (4) Nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. However, nervousness alone is not sufficient to create reasonable suspicion of criminal activity.

        (5) The fact that a person places his hands in his pockets alone is not reasonable suspicion.

        (6) The Constitution does not command individuals to enthusiastically greet law enforcement when they make a “welfare-check.” Unless a police officer has reasonable suspicion to conduct an investigatory stop, an individual has a right to ignore the police and go about his business.

United States v. Huor, ___ F.3d ___, No. 15-50174, 2017 U.S. App. LEXIS 4287 (5th Cir. March 10, 2017).

        (1) Under 18 U.S.C. § 3553(a)(1)–(2), conditions of supervised release must be reasonably related to: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need to afford adequate deterrence to criminal conduct; (3) the need to protect the public from further crimes of the defendant; or (4) the need to provide the defendant with needed training, medical care, or other correctional treatment in the most effective manner. Supervised-release conditions “cannot involve a ‘greater deprivation of liberty than is reasonably necessary’ to achieve the statutory goals.”

        (2) A district court cannot delegate the duty of determining whether a condition of supervised release will be imposed at all, but must “retain and exercise ultimate responsibility” for that sentencing decision. This prohibits a special condition that requires a defendant to “follow all lifestyle restrictions or treatment requirements” imposed by the therapist, with the court not maintaining supervisory power. A district court also may not act as an “automaton” upon receiving findings of a professional, and must instead retain supervisory power over a probationer in a meaningful way. A district court’s role must not be reduced to the clerical, and a professional’s role must not be elevated to the judicial.

        (3) Special conditions of supervised release must be tailored to the individual defendant and may not be based on boilerplate conditions imposed as a matter of course in a particular district.

        (4) Defendants have a constitutional right to be present at their sentencing. When there is a conflict between a written sentence and an oral pronouncement, the oral pronouncement controls.

        (5) Standard conditions of supervised release need not be orally pronounced, but special conditions must be so that a defendant has an opportunity to object.

Texas Court of Criminal Appeals

Lake v. State, ___ S.W.3d ___, No. PD-0196-16, 2017 Tex. Crim. App. LEXIS 164 (Tex. Crim. App. Feb. 8, 2017) (plurality opinion), Yeary, J. concurring, Alcala, J. dissenting).

        (1) In Arizona v. Fulminante, 499 U.S. 279, 309–310 (1991), the SCOTUS listed the following error as structural and not subject to harm analysis: total deprivation of the right to counsel at trial, impartial judge, unlawful exclusion of members of the defendant’s race from a grand jury, the right to self-representation at trial, and the right to public trial.

        (2) For federal constitutional error that is not structural, the applicable harm analysis requires the appellate court to reverse unless it determines beyond a reasonable doubt that the error did not contribute to the defendant’s conviction or punishment.

        (3) In Herring v. New York, 422 U.S. 853 (1975), the SCOTUS held that the right to the assistance of counsel guaranteed by the Sixth Amendment was violated when a trial court re­fused to allow counsel to make a closing argument at the guilt phase of trial.

        (4) The refusal to allow defense counsel to make a closing argument at a community-supervision revocation proceeding is Herring error, which is not structural.

Editor’s Note:

        (1) When confronted with a plurality opinion in federal court, under Marks v. United States, 430 U.S. 188, 193 (1977), “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Jus­tices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . .’” So, in Pennsylvania v. Muniz, 496 U.S. 582 (1990) (Miranda issue), four justices agreed on the “majority” opinion, but five justices agreed on a single rationale explaining the result, so that single rational is precedent.

        (2) However, plurality opinions are not binding in Texas. See Cooper v. State, 67 S.W.3d 221, 224 (Tex. Crim. App. 2002) (a plurality opinion has limited or no precedential value); Vernon v. State, 841 S.W.2d 407, 410 (Tex. Crim. App. 1992) (a plurality opinion does not have “significant precedential value”); State v. Hardy, 963 S.W.2d 516, 519 (Tex. Crim. App. 1997) (“we may look to ‘plurality’ opinions for their persuasive value”); and Pearson v. State, 994 S.W.2d 176, 177 n.3 (Tex. Crim. App. 1999) (plurality opinions are not binding precedent)

Moore v. State, ___ S.W.3d ___, No. PD-1634-14, 2017 Tex. Crim. App. LEXIS 167 (Tex. Crim. App. Feb. 8, 2017, op. on reh.):

        Tex. Family Code § 54.02(j)(4)(A) requires the State to show “that for a reason beyond the control of the state it was not practicable to proceed in juvenile court before the 18th birthday . . .” Here, “the state” means law enforcement and the prosecution. Further, the court of appeals did not err by failing to consider the factors for oppressive delay because the state failed to show by a preponderance of the evidence that for a reason beyond the control of the State, it was not practicable to proceed in juvenile court before Appellant’s 18th birthday. Thus, 54.02(j)(4)(A)’s failure to require consideration of the factors for oppressive delay does not violate the Separation of Powers Clause.

Ex parte Medrano, ___ S.W.3d ___, No. WR-78,123-01, 2017 Tex. Crim. App. LEXIS 184 (Tex. Crim. App. Feb. 8, 2017) (Alcala dissenting) (Richardson dissenting)

        Editor’s note: the dissenting opinions in this case are noteworthy (and correct) because in a death-penalty case, if there is a material conflict between a trial court’s findings of fact and conclusions of law and the record, the case should be remanded to the trial court for resolution of those conflicts and possibly a live evidentiary hearing.

Obella v. State, ___ S.W.3d ___, No. PD-1032-16, 2017 Tex. Crim. App. LEXIS 170 (Tex. Crim. App. Feb. 8, 2017).

        (1) Under Tex. Rule App. Proc. 21.6, a motion for new trial must be “presented” to the trial court within 10 days of its filing. “Presentment” requires the defendant to give the trial court actual notice that he timely filed a motion for new trial and requested a hearing.

        (2) It is the duty of the appellate courts to ensure that a claim is preserved in the trial court before addressing its merits.

        (3) Under Tex. Rule App. Proc. 47.1, a court of appeals must issue a written opinion “that addresses every issue raised and necessary to final disposition of the appeal.”

Ex parte Thuesen, ___ S.W.3d ___, No. WR-81,584-01, 2017 Tex. Crim. App. LEXIS 185 (Tex. Crim. App. Feb. 8, 2017) (per curiam):

        (1) Under Tex. Gov. Code § 24.002, if a district judge determines on the judge’s own motion that he should not sit in a case because he is disqualified or otherwise should recuse himself, the judge shall enter a recusal order, request that the presiding judge assign another judge to sit, and take no further action in the case except for good cause stated in the order in which the action is taken.

        (2) Interim or ancillary orders made by a regional presiding judge regarding the recusal of a trial judge or the reinstatement or modification of judicial authority following a recusal must be made in writing, signed by the presiding judge, and entered of record in the case. Oral “directives” communicated off the record to another judge will not suffice to establish judicial authority to preside over a case.

        (3) Although it is common that communications from a court such as notice of setting, pretrial motions, and trial are communicated orally or by letter, decisions affecting a judge’s authority to preside over a case are fundamentally different than communications concerning pretrial settings and other routine matters, and must be in writing in the form of orders.

White v. State, ___ S.W.3d ___, No. PD-1596-15, 2017 Tex. Crim. App. LEXIS 211 (Tex. Crim. App. Feb. 15, 2017):

        (1) The DFZ provisions under Tex. Health & Safety Code § 481.134(d) do not contain any culpable mental state requiring that a defendant know he is within a DFZ.

        (2) If a person is already engaged in the unlawful sale of con­tra­band, he should have to bear the risk that if he does so within a DFZ, the gravity of his offense will be elevated regardless of whether he was aware he was in a DFZ.

Wolfe v. State, ___ S.W.3d ___, No. PD-0292-15, 2017 Tex. Crim. App. LEXIS 215, (Tex. Crim. App. Feb. 15, 2017).

        (1) Under Tex. Rule Evid. 702, “a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.”

        (2) The focus “is to determine whether the evidence has its basis in sound scientific methodology such that testimony about ‘junk science’ is weeded out.” Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011).

        (3) If the Kelly factors weigh in favor of the admission of expert testimony, a lack of universal agreement does not render the testimony “junk science.”

Roy v. State, ___ S.W.3d ___, No. PD-1455-15, 2017 Tex. Crim. App. LEXIS 212 (Tex. Crim. App. Feb. 15, 2017).

        (1) To determine whether a defendant is entitled to an instruction on a lesser-included offense, the two-part analysis is: (1) is the requested instruction a lesser-included offense of the charged offense; and (2) if it is, based on the admitted evidence, could a jury rationally find that if the defendant is guilty, he is guilty of only the lesser-included offense?

        (2) An instruction on a lesser-included offense is required if more than a scintilla of evidence establishes “that the lesser-included offense is a valid, rational alternative to the charged offense.”

        (3) The reviewing court considers all admitted evidence without regard to the evidence’s credibility or potential contradictions or conflicts.

Crawford v. State, ___ S.W.3d ___, No. PD-1283-15, 2017 Tex. Crim. App. LEXIS 210 (Tex. Crim. App. Feb. 15, 2017) (Richardson concurring) (Walker dissenting)

        (1) Defendant was convicted of failure-to-register as a sex offender, and had two prior felony convictions for the same. Article 62.102(c) (specific provision) addresses only how to enhance a subsequent sex-offender-registration offense with a single prior sex-offender-registration felony offense, while Tex. Penal Code § 12.42(d) (general provision) allows a sentence of 25–99 years or life.

        (2) The TCCA has never held that the existence of Article 62.102(c) means that punishment for a sex-offender-registration offense can never be enhanced under any other provision.

Deen v. State, ___ S.W.3d ___, No. PD-1484-15, 2017 Tex. Crim. App. LEXIS 214 (Tex. Crim. App. Feb. 15, 2017):

        If a defendant is “illegally” sentenced to a term that is less than the statutory minimum for the offense, estoppel by judgment prevents the defendant who voluntarily accepts the benefits of the judgment from denying the validity or propriety of any part of the judgment.

Johnson aka Kimp v. State, ___ S.W.3d ___, No. PD-0699-16, 2017 Tex. Crim. App. LEXIS 213 (Tex. Crim. App. Feb. 15, 2017):

        (1) Because not all knives are manifestly designed, made, or adapted for inflicting serious bodily injury or death, the evidence is sufficient to support a deadly-weapon finding only if the jury could have rationally found that the defendant used the knife in such a way, or intended to use the knife in such a way, that it can cause serious bodily injury or death.

        (2) For a deadly-weapon finding, a defendant need not have inflicted harm. Words and other threatening actions, including proximity to the victim; the weapon’s ability to inflict serious bodily injury or death, including the size, shape, and sharpness of the weapon; and the way the defendant used the weapon are factors.

        (3) A butter knife could be a deadly weapon because the blade is at least a couple of inches long, so it can cause serious bodily injury or death.

State v. Jarreau, ___ S.W.3d ___, No. PD-0840-16, 2017 Tex. Crim. App. LEXIS 219 (Tex. Crim. App. March 1, 2017)

        (1) Under Tex. Code Crim. Proc. Art. 21.11, an indictment is sufficient if it charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment.

        (2) An indictment is sufficient if it tracks the statute.

        (3) To determine the adequacy of an indictment’s allegations, (1) a court must identify the elements of an offense; and (2) if an element of the offense describing an act or omission by the defendant has been defined by the Legislature, a court must ask whether the statute provides “alternative manners or means in which the act or omission can be committed.” If so, the pleading “will supply adequate notice only if, in addition to setting out the elements of an offense, it also alleges the specific manner and means of commission that the State intends to rely on at trial.”

Petetan v. State, ___ S.W.3d ___, No. AP-77,038, 2017 Tex. Crim. App. LEXIS 286 (Tex. Crim. App. March 8, 2017) (Alcala, J. dissenting)

        (1) Under Briseno, a demonstration of mental retardation that would exempt an offender from execution requires showing the following by a preponderance of the evidence: (1) significantly subaverage general intellectual functioning, generally shown by an IQ of 70 or less; (2) accompanied by related and significant limitations in adaptive functioning; and (3) the onset of the above two characteristics having occurred before the age of 18. In evaluating the first prong, the TCCA takes into consideration the standard margin of error for IQ tests, which is generally five points.

        (2) In determining whether related and significant limitations in adaptive functioning exist, courts look to standardized test scores but should also look to the following (seven Briseno) factors:

           i.  Did those who knew the person best during the developmental stage—his family, friends, teachers, employers, authorities—think he was mentally retarded at that time, and, if so, act in accordance with that determination?

          ii.  Has the person formulated plans and carried them through or is his conduct impulsive?

         iii.  Does his conduct show leadership or does it show that he is led around by others?

         iv.  Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable?

          v.  Does he respond coherently, rationally, and on point to oral or written questions or do his responses wander from subject to subject?

         vi.  Can the person hide facts or lie effectively in his own or others’ interests?

        vii.  Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?

        Editor’s Note: this is a 100-page opinion of an appeal of a death-penalty case with many issues that are commonly raised in such appeals. I focus on the facts and the intellectual-disability issue under Briseno and Judge Alcala’s dissent, which I believe is correct. On June 6, 2016, the SCOTUS granted the certiorari petition of Texas death row inmate Bobby Moore regarding this question: “Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida, 134 S.Ct. 1986 (2014), and Atkins, 536 U.S. 304 (2002), to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.” See Ex parte Moore, 470 S.W.3d 481 (Tex. Crim. App. 2015), cert. granted, Moore v. Texas, No. 15-797, 2016 U.S. LEXIS 3754 (June 6, 2016). More was argued on November 29, 2016, and an opinion is forthcoming.

Salinas v. State, ___ S.W.3d ___, No. PD-0170-16, 2017 Tex. Crim. App. LEXIS 284 (Tex. Crim. App. March 8, 2017)

        (1) Texas Local Gov. Code § 133.102 is unconstitutional on its face as to the collection of fees into accounts that have no relation to legitimate criminal justice purposes.

State v. Zuniga, ___ S.W.3d ___, No. PD-1317-15, 2017 Tex. Crim. App. LEXIS 285 (Tex. Crim. App. March 8, 2017).

        (1) The specific identity of the tampered-with evidence is not an element of Tex. Penal Code § 37.09, the elements of which are: (1) a person alters, destroys, or conceals; (2) any record, document, or thing; (3) with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding; (4) knowing that an investigation or official proceeding is pending or in progress.

        (2) Tex. Penal Code § 37.09 contains two culpable mental states: An actor must know his action would impair the item as evidence, and he must act with the intent to impair its availability as evidence. The “evidence” must be a record, document, or thing, though it does not require that “thing” be, in and of itself, of a criminal nature.

Texas Courts of Appeals

State v. Cortez, ___ S.W.3d ___, No. 07-15-00196-CR, 2017 Tex. App. LEXIS 999 (Tex. App. Amarillo, Feb. 3, 2017).

        (1) Under Tex. Transp. Code § 545.058(a), person may drive on an improved (paved) shoulder if necessary and may be done safely, but only under seven circumstances: (1) to stop, stand, or park, (2) to accelerate before entering the main traveled lane of traffic, (3) to decelerate before making a right turn, (4) to pass another vehicle that is slowing or stopped on the main traveled portion of the highway, disabled, or preparing to make a left turn, (5) to allow another vehicle traveling faster to pass, (6) as per­mitted or required by an official traffic-control device, or (7) to avoid a collision.

        (2) Under Tex. Transp. Code § 541.302(15), “shoulder” means the portion of a highway: (1) adjacent to the roadway, (2) de­signed or ordinarily used for parking, (3) distinguished from the roadway by different design, construction, or marking, and (4) not intended for normal vehicular travel.

        (3) A person drives on an improved shoulder by crossing the “fog line” separating the road and shoulder and not merely touching it.

        (4) Heien v. North Carolina, 135 S.Ct. 530, 534–536 (2014), held that: (1) searches and seizures based on mistakes of fact can be reasonable; and (2) an objectively reasonable mistake of law can give rise to the reasonable suspicion necessary to uphold the seizure.

        (5) Heien does not apply where an officer engages in “a sloppy study of the laws he is duty-bound to enforce.”

Deleon v. State, ___ S.W.3d ___, No. 11-15-00143-CR, 2017 Tex. App. LEXIS 1176 (Tex. App. Eastland, Feb. 10, 2017).

        (1) An exception to the warrant-requirement is exigent circumstances, under which a warrantless search of a person is rea­son­able when: (1) an officer has probable cause and (2) an ex­i­gency exists that requires an immediate search.

        (2) Three types of exigent circumstances justify a warrantless search: (1) providing aid or assistance to persons whom the officer reasonably believes needs assistance; (2) protecting officers from persons whom they reasonably believe to be present, armed, and dangerous; and (3) preventing the destruction of evidence or contraband. A warrantless search is justified under the exigent circumstances exception only when the officer reasonably believed that removal or destruction of evidence was im­minent.

        (3) Marihuana odor alone can provide sufficient probable cause for a warrantless search of one’s person or vehicle.

Knott v. State, ___ S.W.3d ____, No. 08-14-00235-CR, 2017 Tex. App. LEXIS 1193 (Tex. App. El Paso Feb. 10, 2017).

        (1) To determine whether a defendant’s due process rights were violated by the admission of a witness’ identification testimony that was allegedly tainted by a suggestive pretrial identification procedure, a court: (1) examines whether the identification procedure itself was impermissibly suggestive; and (2) if it was, whether the suggestive nature of the procedure gave rise to the substantial likelihood of irreparable misidentification.

        (2) When considering whether the suggestive nature of the procedure gave rise to the substantial likelihood of irreparable misidentification, even if an unnecessarily suggestive identification procedure was used, the witness’ identification testimony may be admissible if there is evidence that the identification was the product of an independent source (observations made at the time of the offense).

        (3) To determine whether an independent source exists, a court considers the totality of the circumstances, relying on: (1) the witness’ opportunity to view the suspect at the time of the offense; (2) the degree of attention the witness focused on the suspect at the time of the offense; (3) the accuracy of any descriptions provide by the witness prior to the allegedly suggestive identification procedure; (4) the witness’ level of certainty of his identification; and (5) the time between the crime and the identification procedure. The defendant bears the burden to show by clear and convincing evidence that the in-court identification was unreliable.

Mayfield v. State, ___ S.W.3d ___, No. 07-14-00055-CR, 2016 Tex. App. LEXIS 13912 (Tex. App. Amarillo, Feb. 9, 2017).

        (1) Under Tex. Crim. Proc. Code Art. 33.03, when a defendant voluntarily absents himself after pleading to the indictment, or after the jury has been selected, the trial may proceed to its conclusion.

        (2) Under Tex. Crim. Proc. Code Arts. 46B.003 & 46B.024, a pretrial competency exam requires a determination of whether a defendant lacks capacity to understand the proceedings, charges, and potential consequences can disclose pertinent facts to his attorney, engage in reasoned choices, exhibit appropriate courtroom behavior, or testify.

Ex parte Rodriguez, ___ S.W.3d ___, No. 04-16-00337-CR, 2017 Tex. App. LEXIS 1251 (Tex. App. San Antonio Feb. 15, 2017)

        (1) Under Waller v. Florida, 397 U.S. 387, 393–395 (1970), the Double Jeopardy Clause does not bar successive prosecutions brought by different sovereigns (i.e., one brought by the state and another brought by the federal government). A municipality, however, is not a separate “sovereign” from the state for purposes of double jeopardy, so a defendant cannot be criminally prosecuted twice “for the same alleged crime” in a municipal court and then in a state court.

Ex Parte S.E.W., ___ S.W.3d ___, No. 04-16-00255-CV, 2017 Tex. App. LEXIS 1248 (Tex. App. San Antonio Feb. 15, 2017).

        (1) When DPS appeals the granting of a petition for expunction, it is considered a restricted appeal. To prevail on a re­stricted appeal, the appellant must prove: (1) the notice of the restricted appeal was filed within six months after the judgment was signed; (2) the appellant was a party to the underlying lawsuit; (3) the appellant did not participate in the hearing that resulted in the judgment complained of, and did not timely file any postjudgment motions or requests for FFCL; and (4) error is apparent on the face of the record. Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014).

        (2) Under Tex. Code Crim. Proc. Art. 55.01(a)(2), a person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court-ordered community supervision under Article 42.12 for the offense, unless the offense is a Class C misdemeanor (expunction statute is arrest-based).

Straight v. State, ___ S.W.3d ___, No. 14-15-00801-CR, 2017 Tex. App. LEXIS 1341 (Tex. App. Houston [14th Dist.] Feb. 16, 2017)

        (1) Under Sullivan v. Louisiana, 508 U.S. 275 (1993), an unconstitutional “reasonable doubt” instruction is a “structural defect” that does not require harm analysis.

        (2) Even if the trial court paraphrases while reading parts of the charge, if the trial court thoroughly discusses the State’s burden of proof, emphasized that appellant did not have to prove anything, and highlighted the fact that the jury could not consider appellant’s decision not to testify for any reason, there is not an unconstitutional “reasonable doubt” instruction.

Willis v. State, ___ S.W.3d ___ No. 06-16-00040-CR, 2017 Tex. App. LEXIS 1110 (Tex. App. Texarkana, Feb. 9, 2017):

        Although Tex. Code Crim. Proc. Art. 27.13 provides “A plea of guilty or nolo contendere in a felony case must be made in open court by the defendant in person,” substantial compliance with Article 27.13 occurs when a defendant in open court acknowledges the plea as his, regardless of whether an oral plea is entered. Even if the trial court does not secure the defendant’s spoken plea of guilty and does not interact with the defendant at the time of the plea, if the facts point to defendant’s voluntary desire to plead guilty to the charges, the trial court has complied with the statute.

Hayes v. State, ___ S.W.3d ___, No. 01-15-00982-CR, 2017 Tex. App. LEXIS 1889 (Tex. App. Houston [1st Dist.] March 7, 2017)

        (1) Under Tex. Code Crim. Proc. Art 36.09, a trial court may jointly try defendants for the same offense, and it may order a severance if a joint trial would cause prejudice to a defendant. A trial court cannot provide for a hybrid trial where parts of the trial are joint and parts of the trial are severed.

        (2) Where a trial commences as a joint trial and concludes as a joint trial, if all interim dates are portions of the joint trial, and all defendants have the right to be present during the interim dates.

Martinez v. State, ___ S.W.3d ___, No. 13-15-00295-CR, 2017 Tex. App. LEXIS 1946 (Tex. App. Corpus Christi March 9, 2017)

        (1) A claim of theft made under a contract requires proof of more than an intent to deprive the owner of property and subsequent appropriation of the property. The State must prove that the appropriation was a result of a false pretext, or fraud, and the evidence must show that the defendant intended to deprive the owner of the property at the time the property was taken. In reviewing the sufficiency of the evidence, a court must look at events occurring before, during, and after the commission of the offense and may rely on actions of the defendant that show an understanding and common design to do the prohibited act.

        (2) A contractor may be found guilty of theft if, at some point after the formation of the contract, he formulates the req­ui­site intent to deprive and appropriates additional property by deception—that is, he induces his customer to make further payment on the contract while no longer intending to perform, or at least knowing that he will not. The fact that partial or even substantial work has been done on a contract will not invariably negate either the intent to deprive or the deception necessary to establish the unlawfulness of the initial appropriation.

        (3) Under Tex. Code Crim. Proc. Art. 12.01(4)(A), the statute of limitations for felony theft is five years from the date of the commission of the offense.

        (4) Aggregate theft is an offense involving continuing conduct that ends with the last theft.

        Editor’s Note: The defendant was an attorney who admitted during trial that he deposited everything into his IOLTA account: loan proceeds, settlements, client payments, and his personal monies, then paid for everything out of the same IOLTA account. The ethical, accounting, and tax problems presented by an attorney in private practice using only one account for all monetary transactions are pronounced. Attorneys are required to keep client funds (including unearned fees) in an IOLTA account separate from all other funds. And, it is critical that you also keep your law-firm funds (i.e., earned fees transferred from IOLTA to be used to pay law-firm expenses) in a business checking account separate from your private funds (i.e., earned fees and non-law-firm-related monies for personal expenses), and pay law-firm expenses using a business checking account and personal expenses using a private checking account. Comingling these funds in a single account is an invitation to tax and accounting headaches.

Mendez v. State, ___ S.W.3d ___, No. 01-15-00187-CR (Tex. App. Houston [1st Dist.] Feb. 23, 2017).

        (1) A knife is not a deadly weapon per se, so the state must prove that a knife was used in a manner that can cause death or serious bodily injury.

        (2) When asserting a self-defense claim, the defendant has the initial burden to produce some evidence to support a claim of self-defense. Once the defendant produces some evidence, the burden shifts to the State, which bears the ultimate burden of persuasion to disprove the raised defense. To convict a defendant of murder after he raised self-defense, the State must prove the elements of the offense beyond a reasonable doubt and persuade the jury beyond a reasonable doubt that the defendant did not kill in self-defense.

State v. T.S.N., ___ S.W.3d ___, No. 05-15-01488-CV, 2017 Tex. App. LEXIS 1464 (Tex. App. Dallas Feb. 22, 2017).

        (1) Tex. Code Crim. Proc. Art. 55.01 is not merely “arrest-based” but is based on arrests made during single criminal episodes. Article 55.01(a)(1)(A) provides that a person who is tried and acquitted of the offense for which he was arrested is entitled to have all records and files relating to the “arrest” expunged. Thus, the right to expunction is linked to the “offense” in question. While a person may be “arrested” for multiple “offenses,” and may be “charged” and tried for multiple “offenses” in a single trial, where the arrest includes offenses for which the defendant could not be charged and tried in the aggregate, the arrest—and any subsequent expunction—stands or falls on each unrelated charge.

Ex parte Uribe, ___ S.W.3d ___, No. 02-16-00372-CR, 2017 Tex. App. LEXIS 2040 (Tex. App. Fort Worth March 9, 2017).

        (1) To determine the voluntariness of a guilty plea when there are immigration consequences, a court must consider: (1) evidence of the applicant’s guilt; (2) whether the applicant presented evidence of any factual or legal defenses to the charge; (3) whether the applicant presented evidence indicating that the immigration consequences of her plea had been her “paramount concern”; and (4) the circumstances of the plea deal compared to the penalties the applicant risked by going to trial.

Whitfield v. State, ___ S.W.3d ___, No. 14-15-00820-CR, 2017 Tex. App. LEXIS 2013 (Tex. App. Houston [14th Dist.] March 9, 2017)

        (1) Under Paredes v. State, 462 S.W.3d 510 (Tex. Crim. App. 2015), where an expert testifies in court to conclusions that are her own (testimonial evidence) based on raw data produced by others that by itself means nothing (nontestimonial evidence), the Confrontation Clause is not violated because the raw data merely provides the basis for the opinion the expert developed. The expert’s testimony is not used as a substitute for out-of-court testimony, and the expert is more than a surrogate for a non-testifying analyst’s report because without the testifying expert’s independent analysis, the data stands for nothing.

Viscaino v. State, ___ S.W.3d ___, No. 08-14-00239-CR, 2017 Tex. App. LEXIS 1636 (Tex. App. El Paso Feb. 24, 2017)

        (1) Prosecutorial misconduct must be serious and continuing such that it undermines the reliability of the fact-finding process and results in a deprivation of fundamental fairness and due process of law.

        (2) Under Tex. Rule Evid. 701, a lay witness may offer opinion testimony if the opinion is: (1) rationally based on the perception of the witness, and (2) helpful to a clear understanding of the witness’s testimony or the determination of a fact issue in the case.

        (3) The proponent of lay-opinion testimony is required to establish that the witness has personal knowledge of the events upon which his opinion is based.