January/February 2017 SDR - Voice for the Defense Vol. 46, No. 1

Printer-friendly versionPrinter-friendly versionPDF versionPDF version
Thursday, January 26th, 2017

Voice for the Defense Volume 46, No. 1 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

The Sixth Amendment speedy trial guarantee did not apply to the 14-month delay between D’s conviction and sentencing. Betterman v. Montana, 136 S. Ct. 1609 (2016).

        D pleaded guilty to bail jumping after failing to appear in court on domestic assault charges. He was then jailed for over 14 months awaiting sentence, in large part due to institutional delay. He was eventually sentenced. D appealed, arguing that the 14-month gap between conviction and sentencing violated his speedy trial right. The Montana Supreme Court affirmed the conviction and sentence, ruling that the U.S. Const. Amend. VI Speedy Trial Clause does not apply to post-conviction, presentencing delay. The Supreme Court affirmed.

         The speedy trial guarantee protects an accused from arrest or indictment through trial, but does not apply once a defendant has been found guilty at trial or has pleaded guilty. The Speedy Trial Clause implements the presumption of innocence and therefore loses force upon conviction. Although a due process right to liberty, while diminished, remains after conviction, D did not advance a due process claim.

The federal Immigration and Nationality Act, which includes “aggravated felony” as a reason for deporting a non-citizen, includes a state offense if all the elements of the federal crime are met with the exception of being related to interstate or foreign commerce; D acknowledged that New York arson law only differed from 18 U.S.C. §  844(i) in that it lacked an interstate commerce element. Luna Torres v. Lynch, 136 S. Ct. 1619 (2016).

        D, a lawful permanent resident, pleaded guilty in New York to attempted third-degree arson. A U.S. alien convicted of an “aggravated felony” is deportable, ineligible for several forms of discretionary relief, and subject to expedited removal, 8 U.S.C. § 1227(a). An “aggravated felony” is defined as any of numerous offenses listed in § 1101(a)(43), which includes 18 U.S.C. § 844 relating to arson and explosives. Section 1101(a)(43)’s penultimate sentence states that each enumerated crime is an aggravated felony irrespective of whether it violates federal, state, or foreign law. An immigration judge determined D’s arson conviction was an aggravated felony. The Board of Immigration Appeals affirmed. The Second Circuit denied review. The Supreme Court affirmed.

        A state offense counts as a Section 1101(a)(43) “aggravated felony” when it has every element of a listed federal crime except an element requiring a connection to interstate or foreign commerce; state crimes do not need a “jurisdictional hook.” U.S. Congress meant the term “aggravated felony” to capture serious crimes regardless of whether they are made illegal by the federal government, a state, or a foreign country. It is implausible that Congress viewed the presence of an interstate commerce element as separating serious from non-serious conduct.

Fifth Circuit

District court did not abuse its discretion in admitting Facebook and text messages against D; those messages were adequately authenticated under Fed. R. Evid. 901. United States v. Barnes, 803 F.3d 209 (5th Cir. 2015).

        Conclusive proof of authenticity is not required for the admission of disputed evidence. The jury holds the ultimate responsibility for evaluating the reliability of the evidence; regardless, any error in admitting the messages was harmless.

        (2) The district court did not abuse its discretion in permitting a person to testify who admitted to using methamphetamine on the morning of his testimony; persons are presumed to be competent to be a witness if they have personal knowledge of a matter and agree to speak truthfully. Nothing in the record cast doubt on the court’s threshold finding of competency; because the witness met the minimum threshold for competency to testify, any remaining issues with the credibility of his testimony were properly left to the jury.

        (3) For purposes of 21 U.S.C. § 856—maintaining a “place” for use in drug-related activities—the district court did not err in defining “place” to include not only a house but also the “yard area” to that house.

In alien-transporting case, district court did not err in applying a six-level enhancement under USSG § 2L1.1(b)(6) for intentionally creating a substantial risk of death or bodily injury; D knew the alien—who ultimately died of complications from diabetes—was sick, dehydrated, diabetic, and needed insulin, yet she did not seek medical attention and abandoned him at a rest stop. United States v. Muñiz, 803 F.3d 709 (5th Cir. 2015).

        Likewise, the district court did not clearly err in applying a 10-level enhancement under USSG § 2L1.1(b)(7) because D’s conduct was a but-for cause of the alien’s death.

In drug prosecution where case agent was permitted to offer both expert testimony and lay opinion tes­ti­mony respecting drug jargon, the district court inadequately differentiated between the agent’s lay and expert testimony; this error was harmless. United States v. Haines, 803 F.3d 713 (5th Cir. 2015).

        The district court also erred in permitting the agent to give lay opinion testimony about common words and language that were well within the province of the jury to interpret. Nevertheless, these errors were harmless.

        (2) In a drug-conspiracy case, the statutory minimum sentence for a given defendant is determined on the basis of the relevant quantity of drugs attributable to that individual defendant, not the quantity of drugs attributable to the conspiracy as a whole.

Texas death-sentenced D’s claim of cumulative error rendering his trial fundamentally unfair—made for the first time on federal habeas review—was unexhausted and also procedurally barred. Nickleson v. Stephens, 803 F.3d 748 (5th Cir. 2015).

        Raising individual claims does not also raise a claim of cumulative error based on the accumulation of those claims. Rather, this is a standalone claim that is subject to conventional exhaustion and procedural-default principles.

Court of Criminal Appeals

The oral term of the plea agreement was limited to unfiled cases that arose from the same facts as the cases to which D pled; the prosecution of a murder case unrelated to those cases was not barred by the oral term of the agreement. Williams v. State, No. PD-1124-15 (Tex.Crim.App. Sept 14, 2016, pet. ref’d).

        D pled guilty to two felony offenses. In addition to the written plea agreement, the parties orally agreed to a statement made by defense counsel. This statement, occurring at the plea hearing after defense counsel acknowledged the written terms of the agreement “in each case,” was: “And the State . . . is going to refuse prosecution of any other case in which the State has notice . . . unfiled cases.” D appealed that this oral part of the agreement was unambiguous and barred prosecution of an un­related murder case because the State had notice of it at the time. The State contended that this oral part was ambiguous and that affidavits from the attorneys involved showed that the plea agreement was not intended to encompass the murder case. COA agreed with the State and affirmed D’s murder conviction. CCA affirmed.

        “Defense counsel’s references to the ‘State’ and to ‘any other case’ appear to be imprecise language that, in context, was merely shorthand for the ‘McLennan County District Attorney’s Office’ and ‘any other case involving the defendant.’ But there is another way in which the phrase ‘any other case’ may be shorthand. It may be a reference to other cases that arise from the same facts as the cases that were pled. That is, the current cases involve certain offenses—an aggravated robbery and an aggravated assault. But future cases could involve other offenses that arose from the same transactions, unless the parties agree that the State will not prosecute such cases. . . . Moreover, the reference to ‘any other cases’ could have meant any cases involving offenses that occurred at about the same time. . . . There is no indication in the record of the plea proceeding that defense counsel sought to carefully parse an oral term of the plea agreement. . . . We do not hold that the above circumstances conclusively establish that the refusal-of-unfiled-cases term was case-specific (limited to offenses that arose from the same facts as the offenses to which appellant pled). We do, however, find the circumstances sufficient to establish ambiguity. . . . [O]nce we conclude that the oral term of the plea agreement was ambiguous, we must inexorably conclude that the more limited construction of the term is appropriate. The defense counsel in the prior cases, who was appellant’s agent, was the one responsible for the language used, and so the language must be construed against appellant. But even if that rule of construction did not work against appellant, defense counsel for those cases unequivocally stated that the murder case was not included in the plea agreement—thereby indicating that he did not intend the broad meaning to his words to which appellant now ascribes. The prosecutor likewise stated that the murder case was not included in the agreement. And there were offenses arising from the facts of the offenses pled that could have been later prosecuted absent the oral term of the plea agreement.”

Tex. Pen. Code § 21.12(a) prohibits a school employee from engaging in sexual contact with a student at the school; D was wrongly convicted because the record lacked evidence that D worked for complainant’s school and not only the school district. State v. Sutton, 499 S.W.3d 434 (Tex.Crim.App. 2016).

        D was charged with having an improper relationship between educator and student. The indictment alleged D was an employee of Caney Creek High School (CCHS) when he engaged in sexual contact or deviant sexual intercourse with G.T., a person enrolled at CCHS. D was convicted on all five counts. COA reversed, holding the record did not contain legally sufficient evidence for the jury to conclude that D worked at CCHS. CCA affirmed COA.

        Two parts of § 21.12(a)(1) implicated D’s sufficiency claim: whether D was “an employee of” and “work[ed] at” a public or private primary or secondary school where G.T. was enrolled. The evidence at trial showed D was employed by Conroe Independent School District (CISD) Police Department, not CCHS. Several other witnesses at trial, including G.T., supported D’s contention that he did not work for, or at, CCHS. D was not assigned to CCHS or to the feeder system in which CCHS was located. D officed at the CISD Police Department, not at CCHS. CCA said that while employees of a school are generally also considered to be employees of the school district overseeing that school, the inverse may or may not be true. Had D been assigned to CCHS or its feeder system, his status as an employee of the school would have been a closer call. There was evidence that CISD officers generally have “overlapping responsibilities” to respond to all the feeder systems in the school district, that D was assigned to be the mentor for the ser­geant of the Caney Creek feeder, that D supervised school district programs made available to students such as G.T., and that D would occasionally pick G.T. up after school when he was off duty. However, this evidence would not support a reasonable inference that D worked at CCHS. The State argued that the Texas Legislature intended § 21.12(a)(1) to apply to a broad class of school employees that included D. CCA said this argument ignored § 21.12(a)(2), which incorporates a specific list of school district employees to which the statute applies. Police officers are not included on that list. It is a general rule of statutory construction that the express mention of one thing is tantamount to an exclusion of others.

Tex. Health & Safety Code § 841.085(a) creates a single offense for violating a civil-commitment order, not a separate offense for each alleged way a violation occurred; thus, two of D’s three convictions violated dou­ble jeopardy. Stevenson v. State, 499 S.W.3d 842 (Tex.Crim.App. 2016).

        A jury convicted D of three counts of violating a sexually violent predator civil-commitment order. On appeal, D argued that (1) the trial court lacked jurisdiction; (2) the judge erred in denying his motion to quash, motion for directed verdict, and requests to admit certain evidence; and (3) double jeopardy barred his multiple convictions. COA upheld all three convictions and denied his remaining claims. CCA agreed, except for COA’s resolution of D’s double-jeopardy claim, and affirmed and vacated in part.

        U.S. Const. Amend. V “prohibits a second trial after the accused has already been convicted or acquitted of that crime and forbids multiple punishments for the same offense in a single prosecution. In a multiple-punishments case, like the one here, the double-jeopardy analysis hinges on whether the Legislature intended multiple punishments. . . . Double jeopardy is not violated if the Legislature intended the offenses to constitute ‘separate allowable units of prosecution.’. . . To determine the allowable units of prosecution, we first look to the gravamen of the offense. The gravamen of the offense can be the result of conduct, the nature of conduct, or the circum­stances surrounding the conduct. . . . In a circumstances-surrounding-the-conduct crime, different types of conduct may establish alternate methods of proving a single crime, as opposed to separate crimes, as long as the circumstances surrounding that conduct are the same. . . . [A] civil-commitment order violation is a circumstances-surrounding-the-conduct crime. . . . It is the very circumstance that the person has been adjudicated a sexually violent predator resulting in a civil-commitment order that renders otherwise innocent conduct criminal. . . . We next look at the evidence presented at trial to determine how many units have been shown and whether the evidence would actually support conviction and punishment under each theory of the offense. Having determined above that the evidence sufficiently supported Stevenson’s guilty verdict because the State demonstrated Stevenson was adjudicated a sexually violent predator, was subject to a civil-commitment order, and then violated that order, we conclude that the entry of three judgments violated Stevenson’s double-jeopardy right against multiple punishments. Therefore, Stevenson’s two additional judgments should be vacated because the statute creates a single offense for violating § 841.082’s requirements, not a separate, punishable offense for each alleged way that a violation occurred.”

Police were justified in patting down D for weapons, and finding heroin, because a reasonably prudent per­son considering all the circumstances would have been warranted in believing that his safety or that of others was in danger. Furr v. State, 499 S.W.3d 872 (Tex.Crim.App. 2016).

        D was charged with possession of a controlled substance after police found heroin on him while patting him down for weapons. He filed a motion to suppress, arguing the stop and frisk violated the U.S. Const. Amend. IV prohibition on unreasonable searches and seizures. The trial court denied the motion. D pled guilty and was sentenced to two years’ imprisonment. He appealed the denial of the motion to suppress. COA affirmed the trial court. CCA affirmed.

        Police had reasonable suspicion to detain and frisk D based on an anonymous tip, his presence at a location known for drug activity, and his nervous behavior. The officer’s observation that D appeared to be under the influence of a drug corroborated the tip sufficiently to support a brief investigative detention, and his failure to promptly respond to officer’s question about whether he was armed supported the protective frisk. “[T]he State argues that we should adopt a rule that it is per se objectively reasonable for the police to pat down a suspect for weapons if they are accused of possessing drugs. While it is true that we have held ‘it is objectively reasonable for a police officer to believe that persons involved in the drug business are armed and dangerous,’ we made that comment in the context of sellers of narcotics, not mere drug use. . . . And we decline the State’s invitation to extend that reasoning[.]”

A jury could have reasonably inferred that the syringe in an open compartment in D’s car was there when he was removed from the car and not put there later by one of the passengers. Tate v. State, 500 S.W.3d 410 (Tex.Crim.App. 2016).

        D was convicted of possession of a controlled substance under Tex. Health & Safety Code § 481.115. COA reversed, holding there was insufficient evidence to prove he intentionally or knowingly possessed the substance. CCA reversed COA and affirmed the trial court.

        The evidence was sufficient to prove D intentionally or knowingly possessed a syringe of methamphetamine found in the car he was driving because the compartment in which it was found was directly to the right of the driver’s seat and a detective’s testimony supported an inference that the passengers did not put the syringe in the compartment. COA improperly analyzed each circumstance of guilt in isolation without considering the cumulative force of all the evidence and focused on D’s innocent explanation that one of the passengers framed him. D’s statement that he owned the car was viewed in the light most favorable to the verdict, he was the owner of the vehicle, and it would be reasonable to infer that the owner-driver would be aware of items in his vehicle in plain view.

Court of Appeals

D’s aggravated kidnapping jury charge was egregiously harmful because it included only the deadly-force abduction method and omitted secreting or holding, allowing conviction on an unauthorized legal theory as the indictment alleged only secreting or holding, and the application paragraph did not require a finding of the elements of abduction as well as an aggravating intent. Uddin v. State, No. 14-15-00083-CR (Tex.App.—Houston [14th Dist] Nov. 10, 2016).

        “Although there is evidence in the record that supports each of the elements of aggravated kidnapping, the charge given the jury was not just incomplete—it was affirmatively misleading. The abstract portion of the jury charge authorized an aggravated kidnapping conviction based on an unalleged method of abduction. Moreover, the application paragraph charged a distinct, lesser offense: kidnapping. This was not an incidental omission or mistake, but went to the very basis of the case and exposed appellant to conviction of a specific offense without requiring the jury to reach a verdict on the essential elements of that offense as charged in the indictment. Nothing in the record alleviated this harm, and the State’s closing argument further misled the jury. . . . Having sustained this issue, we do not reach appellant’s additional complaints on appeal. Accordingly, we reverse the trial court’s judgment and remand the case for a new trial.”