April 2018 SDR - Voice for the Defense Vol. 47, No. 3

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Saturday, March 31st, 2018

Voice for the Defense Volume 47, No. 3 Edition

Editor: Michael Mowla

From Editor Michael Mowla:

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

        2. 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.

        3. The summaries reflect the facts and relevant holdings 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.”

        4. This SDR is for you. Send me suggestions on how I may improve it.

Supreme Court of the United States

Class v. United States, No. 16-424, 2018 U.S. LEXIS 1378 (U.S. Feb. 21, 2008)

        * A guilty plea by itself does not bar a federal criminal defendant from challenging the constitutionality of the statute of conviction on direct appeal.

United States Court of Appeals for the Fifth Circuit

United States v. Brown, No. 16-11340, 2018 U.S. App. LEXIS 5225 (5th Cir. March 1, 2018) (designated for publication)

        Under U.S.S.G. § 2B.1.1(b)(18)(A)(iii), a 6-level increase applies if a defendant is convicted under 18 U.S.C. § 1030 and the offense caused a substantial disruption of a critical infrastructure. Under U.S.S.G. § 2B.1.1(b)(18)(B), if (A)(iii) applies, and the offense level is less than 24, a court must increase the level to 24.

        Under U.S.S.G. § 2B1.1(b)(18) cmt. n.14, “critical infrastructure” as means “systems and assets vital to national defense, national security, economic security, public health or safety, or any combination of these matters.”

        “Substantial disruption” means disruption to the critical infrastructures so substantial that is has a debilitating impact on national security, national economic security, or national public health or safety.

United States v. Carbins, No. 16-30998, 2018 U.S. App. LEXIS 3585 (5th Cir. Feb. 15, 2018) (designated for publication)

        Review of the sufficiency of evidence is de novo when a defendant moves for acquittal in the district court.

        Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), the evidence is sufficient if after viewing it and all reasonable inferences in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. A verdict may not rest on mere suspicion, speculation, or conjecture, or on an overly attenuated piling of inference on inference. Although the jury may make factually based inferences, a conviction cannot rest on an unwarranted inference, the determination of which is a matter of law.

        Under 18 U.S.C. § 1028A (aggravated identity theft), during and in relation to a felony enumerated in subsection (c), if a person knowingly transfers, possesses, or uses without lawful authority a means of identification of another person, the person will be punished for two years consecutive to the punishment provided for the felony. Subsection (c) includes theft of Government money under 18 U.S.C. § 641. “Means of identification” is any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including social security number or date of birth.

        Knowledge includes where a defendant exhibits deliberate ignorance.

Editor’s Note: Deliberate ignorance occurs where evidence is presented that the defendant “deliberately closed [his] eyes to what would otherwise have been obvious to [him].” The instruction may be given in conspiracy cases. To the extent that the instruction is merely a way of allowing the jury to arrive at the conclusion that the defendant knew the unlawful purpose of the conspiracy, it is consistent with a finding that the defendant intended to further the unlawful purpose.

  • The proper factual basis for the deliberate ignorance instruction exists if the record supports inferences that: (1) the defendant was subjectively aware of a high probability of the existence of illegal conduct; and (2) the defendant pur­posely contrived to avoid learning of the illegal conduct. In deciding whether the evidence reasonably supports the jury charge, the court reviews the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the government.
  • Under United States v. Kuhrt, 788 F.3d 403, 417 (5th Cir. 2015), the deliberate ignorance instruction should be given only in “rare instances” because once a jury learns that it can convict a defendant despite evidence of a lack of knowledge, it will be misled into thinking that it can convict based on negligent or reckless ignorance rather than intentional ignorance. In other words, the jury may erroneously apply a lesser mens rea requirement, or a “should have known” stan­dard of knowledge. The instruction is appropriate only in the circumstances where a defendant claims a lack of guilty know­ledge and the proof at trial supports an inference of de­lib­erate indifference.
  • Under United States v. St. Junius, 739 F.3d 193, 204–205 (5th Cir. 2013), when the government’s theory is that the defendant knew of the criminality, giving the instruction is harmless where there is substantial evidence of actual knowledge.
  • The Fifth Circuit Pattern Jury Instruction 1.37A for Deliberate Ignorance: “You may find that a defendant had knowledge of a fact if you find that the defendant deliberately closed his eyes to what would otherwise have been obvious to him. While knowledge on the part of the defendant cannot be established merely by demonstrating that the defendant was negligent, careless, or foolish, knowledge can be inferred if the defendant deliberately blinded himself to the existence of a fact.”
April 2018 SDR-1

United States v. Garcia, No. 17-40175, 2018 U.S. App. LEXIS 4235 (5th Cir. Feb. 22, 2018) (designated for publication)

        Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), the evidence is sufficient if after viewing it and all reasonable inferences in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. A verdict may not rest on mere suspicion, speculation, or conjecture, or on an overly attenuated piling of inference on inference. Although the jury may make factually based inferences, a conviction cannot rest on an unwarranted inference, the determination of which is a matter of law.

        Under 8 U.S.C. § 1324(a)(2)(B)(ii) (bringing unlawful aliens into the United States for commercial advantage or private financial gain), “commercial advantage or private financial gain” means that the defendant must seek to profit or otherwise secure some economic benefit from the smuggling endeavor. A smuggler who seeks only her incurred smuggling costs seeks no economic gain but aims to maintain her financial status quo. However, the jury may consider circumstantial indicators of pecuniary motive.

United States v. Huerra, No. 16-11783, 2018 U.S. App. LEXIS 4858 (5th Cir. Feb. 27, 2018) (designated for publication)

        Under the good-faith exception, when officers seize evidence through objectively reasonable reliance on a search war­rant, courts need not suppress the evidence. The fact that a magistrate has issued the warrant can establish that officers executed the warrant in good faith, but officers may not rely on a warrant that was supported only by a bare-bones affidavit. An affidavit is bare-bones only if it is so deficient in demonstrating probable cause that it renders an officer’s belief in its existence completely unreasonable. Affidavits that merely state that the affiant has “cause to suspect and does believe” or “has received reliable information from a credible person and does believe that contraband is located on the premises” are bare bones. This determination is made by evaluating the totality of the circumstances.

        Older tips from a CI are not stale if the affidavit clearly shows a long-standing, ongoing pattern of criminal activity.

        Probable cause exists if there is a fair probability that contraband or evidence of a crime will be found in a place considering all the circumstances set forth in the affidavit. A warrant’s supporting affidavit must be tested and interpreted by magistrates and courts in a common-sense and realistic fashion. Technical requirements of elaborate specificity do not apply. Great deference must be given to the state court’s determination that probable cause existed.

        The Sixth Amendment guarantees a fair and impartial jury. A jury is unfair and partial if the jurors had such fixed opinions that they could not judge impartially the guilt of the defendant. Jurors need not be totally ignorant of the facts and issues involved. Jurors are considered fair and impartial so long as they can lay aside an impression or opinion and render a verdict based on the evidence presented in court.

        When a defendant objects to the career-offender finding, the defendant must identify which felony convictions the district court should ignore or explain why it should ignore them.

        Error raised for the first time on direct appeal that could have been (but was not) raised in the district court is reviewed for plain error, which requires showing: (1) an error (2) that is clear or obvious, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings.

        Convictions under Tex. Health & Safety Code § 481.112 are not predicate offenses for the career-offender enhancement.

United States v. Herrold, No. 14-11317, 2018 U.S. App. LEXIS 4068 (5th Cir. Feb. 21, 2018) (en banc) (designated for publication)

        Under the Armed Career Criminal Act (ACCA), the sentences of defendants with at least three previous convictions for a “violent felony” or “serious drug offense” may be enhanced.

        When a statute is alternatively phrased (like burglary), com­prised of disjunctive subsections, a court must determine whether the statute sets forth alternative means of committing a single substantive crime (statute is indivisible) or separate elements (defining distinct offenses) (statute is divisible). If a statute is indivisible, a court must compare the statute to its federal generic counterpart and determine whether any part falls outside the federal template (categorical approach). If a statute is divisible, a court must isolate the alternative under which the defendant was convicted and apply the federal template to only that alternative (modified categorical approach).

        Under the categorical approach, the court lines up the elements of the prior offense with the elements of the generic [enumerated] offense to see if they match. If the elements of the prior offense cover conduct beyond what the generic offense covers, then it is not a qualifying offense. The categorical approach does not consider the conduct of the defendant in committing the offense but is limited to the conviction and the statutory definition of the offense.

        Under Mathis v. United States, 136 S.Ct. 2243, 2251–2254 (2016), a statute is divisible (and subject to the modified categorical approach) only if it creates multiple offenses by listing one or more alternative elements (as opposed to merely listing alternative means of satisfying an element). The difference is that a trier of fact must agree on one of multiple elements that a statute lists versus not agreeing on the same alternative means so long as the trier of fact concludes that the defendant engaged in one of the possible means of committing a crime.

        If a statute is “divisible,” meaning it sets out one or more ele­ments of the offense in the alternative, the court applies the mod­ified categorical approach to narrow an offense that otherwise would not be a categorical match with an enumerated offense. Descamps, 133 S.Ct. 2276, 2281 (2013).

        Under the modified categorical approach, a court looks at “Shepard documents”: indictment or information, terms of a plea agreement, or transcript of the plea hearing in which the factual basis for the plea was confirmed by the defendant. This occurs if state law fails to provide a clear answer to the means or elements question, and the “Shepard documents” are reviewed only to determine whether the listed items are elements of the offense. If the Shepard documents reiterate all the terms of the law, then each alternative is only a possible means of commission, not an element that must be proved.

        Under Tex. Penal Code § 30.02(a), person commits an offense if, without the effective consent of the owner, the person: (1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or (2) remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or (3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault. Tex. Penal Code §§ 30.02(a)(1) and (a)(3) are indivisible. Texas courts have held that a jury need not unanimously agree on whether Tex. Penal Code § 30.02(a)(1) or (a)(3) applies to sustain a conviction, and (a)(1) or (a)(3) are not distinct offenses but separate means of committing one burglary offense.

        The ACCA definition of “generic burglary” requires un­law­ful or unprivileged entry into, or remaining in, a building or structure with intent to commit a crime, but Tex. Penal Code § 30.02(a)(3) criminalizes entry and subsequent intent formation rather than entry with intent to commit a crime. Thus, the categorical approach is used.

        Tex. Penal Code § 30.02(a)(3) is nongeneric because it criminalizes entry and subsequent intent formation rather than entry with intent to commit a crime.

Editor’s Note: I have summarized Mathis issues numerous times in prior SDRs. This is a 55-page opinion that goes deep into the history of the ACCA, Mathis, and its progeny. Refer to the online version for the relevant facts and law.

King v. Davis, No. 16-70018, 2018 U.S. App. LEXIS 4259 (5th Cir. Feb. 22, 2018) (designated for publication)

        Under Berghuis v. Thompkins, 560 U.S. 370, 390 (2010), federal courts can deny writs of habeas corpus under § 2254 by en­gag­ing in de novo review when it is unclear whether AEDPA deference applies.

        Under Strickland v. Washington, 466 U.S. 668, 687 (1984), to prove IATC, an applicant must show by a preponderance of the evidence that: (1) trial counsel’s performance was deficient by showing he failed to satisfy an objective standard of reasonableness under prevailing professional norms, with reasonableness assessed under the circumstances of the case viewed as of the time of counsel’s conduct and under the totality of the representation; and (2) he was prejudiced by the deficient performance.

        An IATC claim must identify with particularity the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.

        Trial counsel’s strategic decisions must be informed by a reasonable preliminary investigation. A decision not to investigate an issue must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments. Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.

        A defendant’s desire to have a specific defense theory presented does not amount to IATC.

        To prevail on an IATC claim based upon uncalled witnesses, an applicant must name the witness, demonstrate that the witness would have testified, set out the content of the witness’ proposed testimony, and show that the testimony would have been favorable.

Editor’s Note: AEDPA deference refers to 28 U.S.C. § 2254(d). Under 28 U.S.C. § 2254(d), a state prisoner may not obtain relief with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established Federal law as determined by the SCOTUS; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of (i.e., considering) the evidence presented in the state court proceeding. See Salazar v. Dretke, 419 F.3d 384, 395 (5th Cir. 2005) (describing standards under 2254(d)); see also Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000) (same), and Moore v. Johnson, 225 F.3d 495, 501 (5th Cir. 2000) (same).

        Determination of 28 U.S.C. § 2254(d)(1): To determine whether the decision of the state habeas court resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the SCOTUS, a federal court must consider whether the “state-court decision . . . correctly identified the governing legal rule . . . and applied it reasonably to the facts of a particular prisoner’s case.” See Williams v. Taylor, 529 U.S. 362, 405–408 (2000), and Harrington v. Richter, 131 S.Ct. 770, 784–786 (2011). A legal principle is “‘clearly established’ within the meaning of this provision only when it is embodied in a holding of this Court,” which means the holdings, as opposed to the dicta, of this Court’s decisions as of the time of the relevant state-court decision. Carey v. Musladin, 549 U.S. 70, 74, 77 (2006); see also Pippin v. Dretke, 434 F.3d 782, 792 (5th Cir. 2005) (“A trial court’s credibility determinations made on the basis of conflicting evidence are entitled to a strong presumption of correctness and are ‘virtually unreviewable’ by the federal courts.”).

        In the federal court’s assessment of whether the decision was “contrary to, or involved an unreasonable application of, clearly established federal law” under § 2254(d)(1), “the record under review” is “limited to the record that was before the state court that adjudicated the claim on the merits”; “[i]f a claim has been adjudicated on the merits by a state court,” “evidence introduced in federal court has no bearing on § 2254(d)(1) review.” See Cullen v. Pinholster, 131 S.Ct. 1388, 1398, 1401 (2011); cf. Martinez v. Ryan, 132 S.Ct. 1309, 1318 (2012) (a federal habeas petitioner may establish cause to excuse a procedural default as to an IAC claim by showing: (1) state habeas counsel was constitutionally deficient in failing to include the claim in his first state habeas application, and (2) the underlying IAC claim is “substantial,” meaning that it has “some merit.”) and Trevino v. Thaler, 133 S.Ct. 1911, 1921 (2013) (applying Martinez to Trevino, a Texas death-penalty case).

        Determination of 28 U.S.C. § 2254(d)(2): A federal court may also grant relief if the state court’s decision resulted in a de­cision that was based on an unreasonable determination of the facts considering the evidence presented in the state court pro­ceed­ing. A determination of a factual issue made by the state habeas court shall be presumed to be correct, and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (In explaining § 2254(e)(1), the SCOTUS held that “the standard is demanding but not insatiable,” and “. . . deference does not by definition preclude relief.”); Bell v. Cone, 535 U.S. 685, 693 (2002) (explaining that the provisions of the AEDPA “modified a federal habeas court’s role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given effect to the extent possible under law.”).

Editor’s Note: The Fifth Circuit in King v. Davis observed, “It strains credulity to think that the jury could be convinced that King’s tattoo collection, which includes numerous symbols associated with white supremacy and an image of a black man hanging from a tree, were not racist.” The counterargument was that King’s tattoos and racial attitudes were not “racist,” but instead part of a self-preservation strategy developed in prison. Which is correct?

Texas Court of Criminal Appeals

Febus v. State, No. PD-1369-15, 2018 Tex. Crim. App. LEXIS 60 (Tex. Crim. App. Feb. 14, 2018) (designated for publication)

        Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), and Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007), in evaluating legal sufficiency, an appellate court reviews all the evidence in the light most favorable to the judgment to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. It is up to the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Circumstantial evidence is as probative as direct evidence, and it can be sufficient alone in establishing guilt.

        Under Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997), legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. The hypothetically correct jury charge “sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.”

        Failure to comply with the requirements of registering as a sex offender under Tex. Code Crim. Proc. Ch. 62 is a “circumstances of the conduct” type of offense, and the “circumstance” at issue is the duty to register. The culpable mental state of “knowledge and recklessness” applies only to the duty-to-register element, rather than the failure-to-comply element. When authorities rebuff attempts to register, the sex-offender may not be criminally liable on the basis that his failure to register was involuntary.

Ex parte Pue, No. WR-85,447-01, 2018 Tex. Crim. App. LEXIS 63 (Tex. Crim. App. Feb. 28, 2018) (designated for publication)

        Under Tex. Penal Code § 12.42(d), except as provided by (c)(2) or (c)(4), if it is shown on the trial of a felony offense other than a state jail felony punishable under 12.35(a) that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished by imprisonment for 25–99 years or life. A previous conviction for a SJF punishable under 12.35(a) may not be used for enhancement purposes under this section. 12.42(c)(2) and 12.42(c)(4) address enhancement when the charged offense and previous felony offenses were sexual assault or human trafficking offenses.

        In Texas, only convictions that are “final” can be used for enhancement, and a conviction is not final for enhancement purposes where the imposition of sentence has been suspended and probation granted. A successfully served probation is not avail­able for enhancement purposes. A probated sentence can turn into a final conviction if probation is revoked. It is the State’s burden to prove finality for purposes of enhancement under Tex. Penal Code § 12.42(d).

        Under the Full Faith and Credit Clause, states must recognize “public acts, records, and judicial proceedings of every other State.” Thus, an out-of-state prior final felony conviction can be used to enhance a sentence imposed in Texas. However, the out-of-state conviction must be a “final” conviction.

        Whether a prior conviction (in or out-of-state) is “final” under Tex. Penal Code § 12.42 is to be determined under Texas law.

Shortt v. State, No. PD-0597-15, 2018 Tex. Crim. App. LEXIS 57 (Tex. Crim. App. Feb. 14, 2018) (designated for publication)

        Courts of appeals have the authority to entertain a defendant’s appeal from an order granting shock probation because Tex. Code Crim. Proc. Art. 42.12 § 23(b) [now Art. 42A.755(e)] authorizes a defendant to appeal from an order granting shock-probation

Editor’s Note: The shock-probation statute is now Tex. Code Crim. Proc. Art. 42A.202, and Art. 42.12 § 23(b) is now Art. 42A.755(e), and reads in relevant part, “[T]he right of the defendant to appeal for a review of the conviction and punishment, as provided by law, shall be accorded the defendant at the time the defendant is placed on community supervision.”

Wagner v. State, No. PD-0659-15, 2018 Tex. Crim. App. LEXIS 59 (Tex. Crim. App. Feb. 14, 2018) (designated for publication)

        Under Tex. Penal Code § 25.07(a)(2)(A), a person commits an offense if, in violation of a condition of bond set in a family violence, sexual assault ,or abuse, stalking, or trafficking case (or an order of protection) communicates directly with a protected individual or a member of the family or household in a threatening or harassing manner.

        Under United States v. Williams, 553 U.S. 285, 293 (2008), to determine whether a statute is vague or overbroad, a court must: (1) construe the challenged statute to determine what the statute covers by applying rules of statutory construction to the statutory text (statutory construction requires the court to interpret a statute by the plain meaning of its language by reading words and phrases in context and construed according to the rules of grammar and usage unless the language is ambiguous or the plain meaning leads to absurd results that the Legislature could not possibly have intended); and (2) determine if its prohibitions are clearly defined and provide a person of ordinary intelligence fair notice of what is prohibited or is so standardless that it authorizes seriously discriminatory enforcement.

        Tex. Penal Code § 25.07(a)(2)(A) narrowly applies to a limited group of people under a specified set of circumstances and requires evidence that a defendant acted with a culpable mental state in communicating in a harassing manner, such that the com­munications would persistently disturb, bother continually, or pester another person.

        Under Tex. Gov. Code § 311.011(a) and Arteaga v. State, 521 S.W.3d 329, 334 (Tex. Crim. App. 2017), in determining plain meaning, words and phrases must be read in context and construed according to the rules of grammar and usage. The courts pre­sume that every word has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible. If the language of the statute is plain, the courts effectuate that plain language without resort to extratextual sources. If an interpretation of the plain language would lead to absurd results or the language is ambiguous, then the courts may review extratextual resources to discern the legis­lative intent underlying the statutory language. A statute is am­big­uous when it is reasonably susceptible to more than one in­ter­pretation.

        A person communicates in a “harassing manner” if the mode or method by which he communicates is such that it would persistently disturb, bother continually, or pester another person. “Persistently disturb” and “bother continually” require mul­tiple events of harassing communication. “Pesters” means troubling or annoying someone with frequent or persistent requests or interruptions.

        A person of ordinary intelligence would understand that if he has been enjoined from communicating in a harassing manner towards a particular person through one of the specified types of protective orders or bond conditions, then Tex. Penal Code § 25.07(a)(2)(A) prohibits him from intentionally or knowingly sending information or messages to, or speaking to, the protected person in a manner that would persistently disturb, bother continually, or pester another person. This conduct may include persistent, frequent, or continual requests or interruptions that the actor engages in with the knowledge or intent that such conduct would disturb, bother, or pester a person whom a court has already determined needs greater protection than other people based on a risk that the defendant may harm the protected person in the future.

        Generally, a facial challenge to the constitutionality of a statute can succeed only when it is shown that the statute is unconstitutional in all its applications. Under New York v. Ferber, 458 U.S. 747, 770 (1982), and Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 (2002), the overbreadth doctrine allows a challenge to a law that regulates speech if “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” The doctrine prohibits the government from “banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.”

        Tex. Penal Code § 25.07(a)(2)(A) is not overly broad.

        Under United States v. Williams, 553 U.S. 285, 293 (2008), a statute is void for vagueness if its prohibitions are not clearly defined and fails to provide a person of ordinary intelligence fair notice of what is prohibited or is so standardless that it authorizes seriously discriminatory enforcement.

        A statute is not unconstitutionally vague merely because the words or terms used are not specifically defined, but instead the words or phrase must be read in the context in which they are used, and ordinarily the statute must be construed according to the rules of grammar and common usage. A statute satisfies vagueness requirements if the statutory language “conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.”

        Tex. Penal Code § 25.07(a)(2)(A) is sufficiently clear to provide a person of ordinary intelligence a reasonable opportunity to know that appellant’s course of conduct would be prohibited because it places a person of ordinary intelligence on notice that under circumstances in which a judge’s bond condition or protective order has already restricted his communication with a protected individual, he must not knowingly or intentionally communicate in a harassing manner with the protected individual.

Editor’s Note: A communication that is made in a “harassing manner” or described as “persistently disturb, bother continually, or pester” takes many forms. With the assistance of an unstable person with whom you communicate, it may be as simple as the difference between the contraction “you’re” and the determiner “your”:

April 2018 SDR-2

Texas Courts of Appeals

Hughitt v. State, No. 11-15-00277-CR & 11-15-00278-CR, 2018 Tex. App. LEXIS 1082 (Tex. App. Eastland Feb. 8, 2018) (designated for publication) (op. on reh.)

        Under Tex. Penal Code. Tex. Penal Code § 71.02, a person engages in organized criminal activity if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination, he commits or conspires to commit one or more [enumerated offenses]. A conviction requires an offense enumerated in the statute.

        Under Tex. Health & Safety Code § 481.112(a), a person need not have exclusive possession of a controlled substance to be guilty of possession—joint possession will suffice. A person commits possession with intent to deliver a controlled substance if she knowingly possesses a drug with the intent to deliver it. Possession is actual care, custody, control, or management. The State must show: (1) that the accused exercised control, management, or care over the substance and (2) that the accused knew the matter possessed was contraband. The evidence must establish that the accused’s connection with the drugs is more than just her fortuitous proximity to someone else’s drugs.

        Under the affirmative-links rule of Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981), if the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband. The rule restates the common-sense notion that a father, son, spouse, roommate, or friend may jointly possess property like a house but not jointly possess the contraband found in that house.

McFadden v. State, No. 06-17-00040-CR, 2018 Tex. App. LEXIS 920 (Tex. App. Texarkana Feb. 1, 2018) (designated for publication)

        Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), and Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007), in evaluating legal sufficiency, an appellate court reviews all the evidence in the light most favorable to the judgment to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. It is up to the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Circumstantial evidence is as probative as direct evidence, and it can be sufficient alone in establishing guilt.

        Under Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997), legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. The hypothetically correct jury charge “sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.”

        Under Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991), when a jury has rejected the claim of self-defense, an appellate court must determine whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of murder beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt.

        Under Tex. Penal Code § 9.31(a), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force. And under Tex. Penal Code § 9.32(a), a person is justified in using deadly force against another when and to the degree the actor reasonably believes the deadly force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful deadly force.

        Under Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003), in a self-defense claim, a defendant bears the burden of production, which requires the production of some evidence that supports the justification. Once a defendant produces such evidence, the State bears the burden of persuasion to disprove the raised defense beyond a reasonable doubt. The burden of per­suasion does not require the production of evidence, but rather only requires that the State persuade the jury beyond a reasonable doubt that the defendant did not act in self-defense. A jury verdict of guilt results in an implicit finding against the defensive theory.

        Under Brown v. State, 955 S.W.2d 276, 279 (Tex. Crim. App. 1997), and Woodfox v. State, 742 S.W.2d 408, 410 (Tex. Crim. App. 1987), a trial court is required to charge the jury on any defensive issue raised by the evidence regardless of whether it is strong, weak, unimpeached, or contradicted, and even when the trial court is of the opinion that the testimony in not credible. It is up to the jury whether to accept a defensive theory.

        Under Tex. Penal Code § 9.42, a person is justified in using deadly force against another to protect land or tangible, movable property: (1) if he would be justified in using force against the other under Section 9.41; and (2) when and to the degree he reasonably believes the deadly force is immediately necessary: (A) to prevent the other’s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or (B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and (3) he reasonably believes that: (A) the land or property cannot be protected or recovered by any other means; or (B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

        A person does not have to wait for the actor to complete the of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime before using deadly force since if deadly force could be used only after the actor committed the offense, the defense would never apply.

        Under Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh.), and Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005), if the defendant preserved jury-charge error, the appellate court will reverse if the defendant suffered “some harm.” Neither the State nor the defendant bears the burden of proving harm; the court of appeals must review the entire record to determine if the defendant suffered harm. To determine whether a defendant suffered “some harm,” a reviewing court considers: (1) the entire jury charge; (2) the arguments of counsel; (3) the entirety of the evidence; and (4) other relevant factors present in the record, including voir dire and opening statements. “Some harm” requires a finding that the defendant “suffered some actual, rather than merely theoretical, harm from the error.”

        Under Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh.), if the defendant did not preserve jury-charge error, review is for egregious harm, which requires the appellate court to consider: (1) the entire jury charge, (2) the state of the evidence, (3) closing arguments of the parties, and (4) any other relevant information in the record. Jury charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.

Editor’s Note: The first two prongs of Tex. Penal Code § 9.42 allow a property owner to use deadly force to defend his person, property, or a family member against arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime, or to stop someone who is fleeing af­ter committing one or more of these crimes. Thus, if a person enters your home to commit arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime, or is fleeing after committing one of these crimes, you may use deadly force to stop him. This is easy for the average citizen to understand.

        The second part of the third prong (“the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury”) is also easy for the average citizen to understand. Obviously, we don’t want homeowners tossing gre­nades or firing hundreds of rounds in every direction using AK-47 or AR-15-knockoffs while trying to protect life or property. This could cause injury or death to the homeowner, a member of his family, or even a passerby.

        However, the first part of the third prong of Tex. Penal Code § 9.42 is confusing, appears to conflict with the first two prongs, and may be difficult for the average citizen to understand. This prong requires the property owner to “reasonably believe that his land or property cannot be protected or recovered by any other means.” If a person enters your house, unless it’s clear that the intruder seeks assistance in an emergency, what legitimate reason would the person have to enter your home? What questions should the homeowner ask the intruder to determine whether he should shoot the intruder? Unless the Legislature meant for us to “hold the suspect at bay if possible for the police to arrive,” what “other means” of protecting one’s person or property did the Legislature have in mind?

April 2018 SDR-3

Morris v. State, No. 08-16-00153-CR, 2018 Tex. App. LEXIS 1568 (Tex. App. El Paso Feb. 28, 2018) (designated for publication)

        The trial court abused its discretion by using a stunbelt to maintain courtroom decorum rather than for legitimate security purposes.

Editor’s Note: The court of appeals referenced Deck v. Missouri, 544 U.S. 622 (2005), as a basis of the prohibition against using restraints for any reason other than legitimate security concerns.

  • Deck involved the use of shackles before a jury during the guilt and penalty phases of a trial: “[T]he appearance of a defendant in shackles before a jury during the guilt and penalty phases of a trial can violate the defendant’s Fifth and Fourteenth Amendment rights to due process. Absent a special need, “[t]he law has long forbidden use of routine shackles during the guilt phase” because “[v]isible shackling undermines the presumption of in­no­cence and the related fairness of the factfinding process.” Id. at 625, 630.
  • In Deck, during a death-penalty trial, state authorities required the defendant to wear leg braces that apparently were not visible to the jury. Id. at 624–625.
  • The Missouri Supreme Court upheld the conviction but set aside the sentence. Id. at 625. During the new punishment hear­ing, the defendant was shackled with leg irons, handcuffs, and a belly chain, and trial counsel objected, but was overruled. Id.
  • The defendant was again sentenced to death. Id.
  • On appeal, the Missouri Supreme Court rejected the constitutional claims relating to the shackling, holding that there was no record of the extent of the jury’s awareness of the restraints, no claim that the restraints impeded the defendant from participating in the proceedings, and there was “evidence” of a risk that the defendant “might flee in that he was a repeat offender” who may have “killed his two victims to avoid being returned to custody.” Id.
  • The Missouri Supreme Court concluded there was “sufficient evi­dence in the record to support the trial court’s exercise of its discretion to require shackles,” and the defendant “has not demonstrated that the outcome of his trial was prejudiced.” Id.
  • The SCOTUS rejected the holding of the Missouri Supreme Court.
  • First, the SCOTUS observed that “[T]he law has long forbidden routine use of visible shackles during the guilt phase; it permits a State to shackle a criminal defendant only in the presence of a special need,” and the needless shackling of a defendant violates the defendant’s Fifth and Fourteenth Amendment rights. Id. at 626–627.
  • Second, the Court observed that during the punishment phase, “[A]lthough the jury is no longer deciding between guilt and innocence, it is deciding between life and death,” . . . and “[g]iven the ‘severity’ and ‘finality’ of the sanction, (it) is no less important than the decision about guilt.” Id. at 632.
  • Third, the Court held that “courts cannot routinely place defendants in shackles or other physical restraints visible to the jury during the penalty phase of a capital proceeding,” . . . but “a judge, in the exercise of his or her discretion, (may) take account of special circumstances, including security concerns, that may call for shackling . . . [B]ut any such determination must be case specific; that is to say, it should reflect particular concerns, say, special security needs or escape risks, related to the defendant on trial.” Id. at 633.
  • Thus, the SCOTUS held “the Constitution forbids the use of vis­ible shackles during the penalty phase, as it forbids their use during the guilt phase, unless that use is ‘justified by an es­sential state interest’—such as the interest in courtroom security—specific to the defendant on trial.” Id. at 624.
  • The SCOTUS also held “where a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation. The State must prove ‘beyond a reasonable doubt that the [shackling] error complained of did not contribute to the verdict obtained.’” Id. at 635.
  • If the use of shackles for any reason other than legitimate security concerns is prohibited, then the use of a stunbelt for any reason other than legitimate security concerns is also prohibited.