January/February 2019 SDR - Voice for the Defense Vol. 48, No. 1

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Wednesday, January 30th, 2019

Voice for the Defense Volume 48, No. 1 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.

The SDR Christmas 2018 Edition

January/February 2019 SDR-1


Supreme Court of the United States

United States v. Sitt, No. 17-765, 2018 U.S. LEXIS 7167, 586 U.S. ____ (Dec. 10, 2018) [The ACCA’s definition of burglary]

        Under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), a district court must impose a mandatory 15-year minimum prison term on certain defendants convicted of unlawfully possessing a firearm or who have at least three prior convictions for certain “violent” or drug-related felonies. Under 18 U.S.C. § 924(e)(2)(B), the prior felonies include any crime punishable by prison exceeding one year and that also (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

        Under Begay v. United States, 553 U. S. 137, 141 (2008), the ACCA requires a court to evaluate a prior state conviction in terms of how the law defines it and not how an individual might have committed it.

        Under Mathis v. United States, 136 S.Ct. 2243 (2016), a prior state conviction does not qualify as generic burglary under the ACCA if the elements of the state statute are broader than those of generic burglary. This is the “categorical approach” under Mathis v. United States, 136 S.Ct. 2243 (2016).

        The ACCA’s definition of burglary includes “ordinary” burglaries, defined as an unlawful or unprivileged entry into (or remaining in) a building or other structure with intent to com­mit a crime.

United States Court of Appeals for the Fifth Circuit

United States v. Douglas, Nos. 17-30884 & 17-30890, 2018 U.S. App. LEXIS 34984 (5th Cir. Dec. 19, 2018) (designated for publication) [Plain error, consecutive sentences involving groups; substantially the same harm]

        When the defendant does not object to error before the district court, plain error review applies. Under Fed. Rule Crim. Proc. 52(b), a court of appeals may consider errors that are plain and affect substantial rights even though they are raised for the first time on appeal. Under Molina-Martinez v. United States, 136 S.Ct. 1338 (2016), and United States v. Olano, 507 U.S. 725 (1993), these conditions must be met before a court may consider plain error: (1) error has not been intentionally relinquished or aban­doned; (2) the error must be plain (clear or obvious); (3) the error must have affected the defendant’s substantial rights, which requires the defendant to show a reasonable probability that, but for the error, the outcome of the proceeding would have been different; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

        Under U.S.S.G. § 3D1.1(a)(1), the district court must group the counts of conviction into distinct groups of closely related counts by applying U.S.S.G. § 3D1.2, which requires grouping counts involving substantially the same harm. Counts involve substantially the same harm when they represent essentially a single injury or are part of a single criminal episode or transaction involving the same victim. Otherwise, counts not involving substantially the same harm are treated as individual groups.

        Under U.S.S.G. § 3D1.1(a)(2), the district court must determine each group’s offense level by applying the rules in U.S.S.G. § 3D1.3, which provides that the offense level for a group is the offense level after adjustments.

        Under U.S.S.G. § 3D1.1, the combined offense level is used to determine the guideline sentence range.

        Under United States v. Candelario-Cajero, 134 F.3d 1246, 1248 (5th Cir. 1998), when there are multiple counts of conviction contained in different indictments or informations for which sentences are to be imposed at the same time or in a consolidated proceeding, under U.S.S.G. § 5G1.2, when a district court sentences a defendant on multiple counts that are not stat­u­to­rily required to be a certain length or to be sentenced consecutively, it shall determine the total punishment and impose it on each such count except to the extent otherwise required by law.

        Under § 5G1.2(d), a district court can impose consecutive sentences only to the extent necessary to produce a combined sentence equal to the total punishment (equal to the top of the guidelines range). If the sentence imposed on the count carrying the highest statutory maximum is adequate to achieve the total punishment, then the sentences shall run concurrently except to the extent otherwise required by law.

Editor’s note: the complete analysis for plain error review: When the defendant does not object to error before the district court, plain error review applies. Under Fed. Rule Crim. Proc. 52(b), a court of appeals may consider errors that are plain and affect substantial rights even though they are raised for the first time on appeal. Under Molina-Martinez v. United States, 136 S.Ct. 1338 (2016), and United States v. Olano, 507 U.S. 725 (1993), these conditions must be met before a court may consider plain error: (1) error has not been intentionally relinquished or abandoned; (2) the error must be plain (clear or obvious); (3) the error must have affected the defendant’s substantial rights, which requires the defendant to show a reasonable probability that, but for the error, the outcome of the proceeding would have been different; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

United States v. Foster, No. 17-50465, 2018 U.S. App. LEXIS 34986 (5th Cir. Dec. 17, 2018) (designated for publication) [Confrontation Clause and deposition testimony]

        Under U.S. Const. Amend. VI, the Confrontation Clause affords a criminal defendant the right to be confronted with the witnesses against him.

        Out-of-court statements like a videotaped deposition may be introduced if the government can demonstrate the unavailability of the declarant whose statements it wishes to use.

        Under Ohio v. Roberts, 448 U.S. 56, 63–64 (1980), the Confrontation Clause requires a defendant the right of a personal examination and cross-examination of the witness, in which the defendant has an opportunity not only of testing the recollection and sifting the conscience of the witness but of compelling him to stand face to face with the jury in order that they may look at him and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. This right is not absolute. Out-of-court statements like a videotaped deposition may be introduced if the government can demonstrate the unavailability of the declarant whose statements it wishes to use. A witness is “unavailable” if the prosecutor made a good-faith effort to obtain his presence at trial. The lengths to which the prosecution must go to produce a witness is a question of reasonableness.

        Deposition testimony is admissible only if the government has exhausted reasonable efforts to assure that the witness will attend trial. Although the question of how much effort is required on the part of the government to reach the level of a good faith and reasonable effort “eludes absolute resolution applicable to all cases,” because of the importance of the right to confrontation, the good-faith-effort requirement demands much more than a merely perfunctory effort by the government.

        Under Chapman v. California, 386 U.S. 18, 24 (1967), a defendant convicted on the basis of constitutionally inadmissible Confrontation Clause evidence is entitled to a new trial unless it was harmless in that there was no reasonable possibility that the evidence complained of might have contributed to the conviction. The government bears the burden of establishing the error is harmless beyond a reasonable doubt.

United States v. Harrison, No. 16-11641, 2018 U.S. App. LEXIS 35110 (5th Cir. Dec. 19, 2018) (designated for publication) [Actual conflict of interest and requirement for an evidentiary hearing]

        A motion under 28 U.S.C. § 2255 requires an evidentiary hearing unless either: (1) the movant’s claims are clearly frivolous or based upon unsupported generalizations, or (2) the movant would not be entitled to relief as a matter of law even if his factual assertions were true.

        Under Cuyler v. Sullivan, 446 U.S. 335, 348 (1980), for multiple representation to violate the Sixth Amendment, there must be an actual conflict of interest that adversely affects the representation. A defendant need not show prejudice because it is presumed.

        Where an allegation of actual conflict of interest evinces something more than a speculative or potential conflict, a hearing must be held.

United States v. Reyes-Contreras, No. 16-41218, 2018 U.S. App. LEXIS 33640 (5th Cir. Nov. 30, 2018) (designated for publication) (en banc) [16-level enhancement for a crime of violence; application of Descamps and Mathis]

        Under U.S.S.G. § 2L1.2(b)(1)(A)(ii), a 16-level enhancement is added for a “crime of violence,” which includes an enumerated list of crimes, including manslaughter and an offense that has an element of the use, attempted use, or threatened use of physical force against another.

Editor’s note: When faced with whether a prior state offense qual­ifies as an enhancement, here is a clear explanation of the categorial approach versus the modified categorial approach, why some statutes are “divisible” and others “indivisible,” and of Descamps and Mathis:

  • When considering whether a prior state conviction may be used to enhance certain offenses under the U.S.S.G., a court must look at the state statute to determine whether the statute qualifies for the enhancement.
  • 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” [Shepard v. United States, 544 U.S. 13, 25–26 (2005)]: 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.
  • For example, under Tex. Penal Code § 30.02(a), 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.

Texas Court of Criminal Appeals

Braughton v. State, No. PD-0907-17, 2018 Tex. Crim. App. LEXIS 1242 (Tex.Crim.App. Dec. 19, 2018) (designated for publication) [Legal sufficiency of a claim of self-defense or defense of a third person]

        Under Tex. Penal Code § 9.31, 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. The use of force is not justified in response to verbal provocation alone, or if the actor provoked the other’s use or attempted use of unlawful force. Under Tex. Penal Code § 1.07(a)(42), a “reasonable belief” is one that would be held by an ordinary and prudent man in the same circumstances as the actor.

        Under Tex. Penal Code § 9.32(a), a person is justified in using deadly force against another (1) if he would be justified in using force against the other under Tex. Penal Code § 9.31, and (2) when and to the degree the person reasonably believes the deadly force is immediately necessary: (A) to protect the person against the other’s use or attempted use of unlawful deadly force, or (B) to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. Per Tex. Penal Code § 9.01(3), deadly force means force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury.

        Under Tex. Penal Code § 9.32(b), the person’s belief under Tex. Penal Code § 9.32(a)(2) that the deadly force was immediately necessary as described is presumed to be reasonable if the person: (1) knew or had reason to believe that the person against whom the deadly force was used: (A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment; (B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or (C) was committing or attempting to commit [ag­gravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery]; (2) did not provoke the person against whom the force was used; and (3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

        Under Tex. Penal Code § 9.33, a person is justified in using deadly force against another to protect a third person if: (1) under the circumstances as the person reasonably believes them to be, the person would be justified under § 9.32 in using deadly force to protect himself against the unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect; and (2) the person reasonably believes that his intervention is immediately necessary to protect the third person (i.e., if under the circumstances as the defendant reasonably believes them to be, the third person would be justified in defending himself).

        Under Saxton v. State, 804 S.W.2d 910, 913–914 (Tex. Crim. App. 1991), and Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003), and Krajcovic v. State, 393 S.W.3d 282, 286 (Tex. Crim. App. 2013), in a claim of self-defense or defense of third persons that would justify a defendant’s use of force against another, the defendant bears the burden to produce evidence supporting the defense, while the State bears the burden of persuasion to disprove the raised issues. The defendant’s burden of production requires him to adduce some evidence that would support a rational finding in his favor on the defensive issue. The State’s burden of persuasion is not one that requires the pro­duction of evidence; rather it requires only that the State prove its case beyond a reasonable doubt. In resolving the sufficiency of the evidence issue on a claim of self-defense or defense of a third party, the court determines 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 the offense beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt (and not whether the State presented evidence which refuted appellant’s self-defense testimony). The issue of self-defense is one of fact to be determined by the jury, and a jury verdict of guilty is an implicit finding rejecting the defendant’s self-defense theory. Defensive evidence that is merely consistent with the physical evidence at the scene of the alleged offense will not render the State’s evidence insufficient since the credibility determination of such evidence is solely within the jury’s province and the jury is free to accept or reject the defensive evidence.

Ex parte Chaney, No. WR-84,091-01, 2018 Tex. Crim. App. LEXIS 1243 (Tex.Crim.App. Dec. 19, 2018) (designated for publication) [Actual innocence, Art. 11.073 relief based on new scientific evidence on bitemark evidence]

        Under Tex. Code Crim. Proc. Art. 11.073, a defendant may obtain postconviction relief based on a change in science relied on by the State at trial if: (1) relevant scientific evidence is currently available and was not available at the time of the convicted person’s trial because the evidence was not ascertainable through the exercise of reasonable diligence by the convicted person before the date of or during the convicted person’s trial; (2) the scientific evidence would be admissible under the Tex. Rules Evid. at a trial held on the date of the application; and (3) the convicting court must make FFCL finding that had the scientific evidence been presented at trial, on the preponderance of the evidence the person would not have been convicted. Courts consider whether the field of science, a testifying expert’s scientific knowledge, or a scientific method on which the relevant scientific evidence is based has changed since the applicant’s trial.

        Under Tex. Code Crim. Proc. Art. 11.073(d) and Ex parte Robbins, 478 S.W.3d 678, 691 (Tex. Crim. App. 2014), “Scientific method” means the process of generating hypotheses and testing them through experimentation, publication, and republication. “Scientific knowledge” includes a change in the body of science (the field has been discredited or evolved) and when an expert’s opinion changes due to a change in their scientific knowledge (an expert who, upon further study and acquisition of additional scientific knowledge, would have given a different opinion at trial).

        Under Ex parte Weinstein, 421 S.W.3d 656, 665 (Tex. Crim. App. 2014), due process of law under the Fourteenth Amendment is violated when a conviction is obtained using false evidence irrespective of whether the false evidence was knowingly or unknowingly used against the defendant. A defendant is entitled to relief on a false-evidence claim if he proves that the: (1) complained-of evidence was false and that (2) false evidence was material to his conviction. Whether evidence is false turns on whether the jury was left with a misleading or false impression after considering the evidence in its entirety. The good or bad faith of the parties is irrelevant. Falsity is a factual inquiry, and review of the court’s findings is under a deferential standard. False evidence is material when there is a reasonable likelihood that the false evidence affected the judgment of the jury. Materiality is a legal question reviewed de novo.

        Under Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996), and Ex parte Brown, 205 S.W.3d 538, 544–545 (Tex. Crim. App. 2006), a habeas applicant can obtain relief on the basis that he is actually innocent of the crime for which he was convicted in light of newly discovered evidence. The applicant must prove by clear and convincing evidence that no reasonable juror would have convicted him based on the newly discovered evidence. Newly discovered evidence is that which was not known to the applicant at the time of trial, plea, or posttrial motions and could not be known to him even with the exercise of due diligence. An applicant may rely on a single piece or multiple pieces of new evidence so long as the burden of proof is met, and the newly discovered evidence must affirmatively support the applicant’s innocence. The court must weigh the newly discovered evidence against the State’s case at trial to determine the probable impact the evidence would have had at trial if the new evidence had been available.

Editor’s note: the opinion contains a long analysis on Chaney’s Brady claim. Because I do not believe that it is as relevant as his other claims, I exclude it from this summary.

State v. Garcia, No. PD-0344-17, 2018 Tex. Crim. App. LEXIS 1209 (Tex.Crim.App. Dec. 12, 2018) (designated for publication) [Reasonableness of a warrantless blood draw]

        Under the Fourth Amendment, a warrantless search is per se unreasonable unless it falls within a recognized exception. Per Missouri v. McNeely, 569 U.S. 141, 148–156 (2013), the exigent circumstances exception applies when the exigencies make the needs of law enforcement so compelling that a warrantless search is objectively reasonable. Under this exception, an officer may be justified in conducting a warrantless search to prevent the imminent destruction of evidence. In DWI cases, the natural dissipation of alcohol in the blood may support a finding of exigency but not do so categorically. The exigent-circumstances review should be informed by the totality of the facts and circumstances available to the officer and analyzed under an objective standard of reasonableness. Where officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.

        Under Kothe v. State, 152 S.W.3d 54, 62–63 (Tex. Crim. App. 2004), as long as supported by the record, a trial judge’s findings of historical fact are entitled to deference since the judge is in a better position than the appellate court to settle disputes. Such findings are also typically considered to be highly relevant to deciding Fourth Amendment issues.

        Under Brigham City, Utah v. Stuart, 547 U.S. 398, 405 (2006), an officer’s subjective motivation is irrelevant as far as the Fourth Amendment is concerned. But whether an officer was aware of a fact is subject to deference and relevant to a Fourth Amendment reasonableness inquiry. Under State v. Duran, 396 S.W.3d 563, 572 (Tex. Crim. App. 2013), the question of whether an officer has reasonable suspicion to detain an individual for further investigation is determined from the facts and circumstances known to the officer at the time of the detention (what he saw, heard, smelled, tasted, touched, or felt—not what that officer could have or should have known.)

        Under Terry v. Ohio, 392 U.S. 1, 21–22 (1968), in assessing the reasonableness of an officer’s actions, a reviewing court should consider not only the facts known to the officer, but also the specific reasonable inferences that he is entitled to draw from the facts considering his experience. This necessitates an inquiry into whether an inference was reasonable under the circumstances.

        Under United States v. Sharpe, 470 U.S. 675, 682 (1985), reasonableness is ultimately a question of substantive Fourth Amendment law. It should be informed by the practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Once the facts are settled, the appellate court is in just as good a position as the trial judge to decide this issue, so the trial judge’s determination that a law-enforcement inference was reasonable under the circumstances is reviewed de novo.

        If an officer holds an objectively reasonable belief that an evidence-destroying medical treatment is about to take place, the Fourth Amendment does not command him to wait until the treatment is mere moments away before he may act. The officer is permitted to take reasonable measures, up to and including initiating a warrantless blood draw, to preserve the integrity of important evidence.

Jenkins v. State, No. PD-0086-18, 2018 Tex. Crim. App. LEXIS 1162 (Tex.Crim.App. Dec. 5, 2018) (designated for publication) [Validity of an indictment under Tex. Const. Art. V, § 12(b) and waiver under Tex. Code Crim. Proc. Art. 1.14(b)]

        The presentment of a valid indictment vests the district court with jurisdiction of the cause. A trial court’s jurisdiction over a criminal case consists of the power of the court over the subject matter of the case, coupled with personal jurisdiction over the accused. Unlike in civil cases, where personal jurisdiction may be had merely by that party’s appearance, criminal ju­ris­diction requires the filing of a valid indictment or information. Even if an indictment has a substantive defect, it can qualify as an indictment that vests a district court with jurisdiction unless it is so defective that it does not meet the constitutional defi­nition of an indictment.

        To meet the definition of indictment under Tex. Const. Art. V, § 12(b) and vest the court with personal and subject matter jurisdiction, the indictment must charge: (1) a person; and (2) the commission of an offense.

        If a court and the defendant determine from the face of the indictment that the indictment charges an offense for which the court has jurisdiction, it is a valid indictment and not void. This is despite Tex. Code Crim. Art. 21.02, which requires the name of the accused for an indictment to be valid. An indictment can be defective but still be one that vests the court with jurisdiction.

        Under Tex. Code Crim. Proc. Art. 1.14(b), if a defendant does not object to a defect, error, or irregularity of form or substance in an indictment before the date on which the trial on the merits commences, he waives the error and may not raise it on appeal or in any postconviction proceeding. The requisites of an indictment stem from statutory law alone, and a defect in a charging instrument (form or substance) is waived unless raised prior to trial.

Traylor v. State, No. PD-0967-17, 2018 Tex. Crim. App. LEXIS 1024 (Tex.Crim.App. Nov. 7, 2018) (designated for publication) [report of jury-verdict vote count under Blueford v. Arkansas, 566 U.S. 599 (2012)]

        The Double Jeopardy Clause protects against multiple pros­ecutions for the same offense. A trial may be discontinued without barring a subsequent trial for the same offense when circumstances manifest a necessity to declare a mistrial, including a jury’s inability to reach a verdict.

        Under Blueford v. Arkansas, 566 U.S. 599 (2012), a report of a jury-verdict vote count is not a final verdict of acquittal for double jeopardy to attach if: (1) the jury is still deadlocked on the lesser-included offense; (2) the jury continues deliberating after the reported vote count; (3) the jury gives no further indication that it was still unanimous; and (4) nothing in the jury instructions prohibits the jurors from revisiting the prior vote.

Texas Courts of Appeals

Hines v. State, No. 01-16-01017-CR, 2018 Tex. App. LEXIS 9178 (Tex. App. Houston [1st Dist.] Nov. 8, 2018) (designated for publication) [Standards for insanity and the use of deadly force in self-defense]

        Under Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011), the standard of review for challenges to the legal sufficiency of the evidence supporting rejection of the defenses of legal insanity and self-defense is the standard from Jackson v. Virginia, 443 U.S. 307 (1979).

        Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), and Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010), to determine legal sufficiency, after viewing the evidence in the light most favorable to the verdict, a reviewing court considers whether the factfinder was rationally justified in finding the essential elements of the crime beyond a reasonable doubt. The reviewing court does not substitute its judgment for that of the factfinder by reevaluating the weight or credibility of the evidence but defers to the factfinder’s resolution of conflicts in testimony, weighing of evidence, and drawing reasonable inferences from the facts. The evidence is measured by the elements of the offense as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Circumstantial evidence and direct evidence can be equally pro­ba­tive in establishing the guilt of a defendant, and guilt can be established by circumstantial evidence alone. The standard of review is the same for direct and circumstantial evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The reviewing court considers 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. It is not required that each fact “point directly and independently to the guilt of the appellant” if the cumulative force of all the incriminating circumstances is sufficient to support the conviction.

        Under Tex. Penal Code § 8.01 and Riley v. State, 830 S.W.2d 584, 585 (Tex. Crim. App. 1992), a defendant cannot be convicted of a criminal offense if at the time of the conduct charged the defendant, as a result of severe mental disease or defect, did not know that his conduct was wrong. Insanity is an affirmative defense, so the defendant bears the burden to prove by a preponderance of the evidence that: (1) because of severe mental disease or defect, (2) he did not know right from wrong at the time of the offense.

        Under Arnold v. State, 873 S.W.2d 27, 30 (Tex. Crim. App. 1993), and Ruffin v. State, 270 S.W.3d 586, 592 (Tex. Crim. App. 2008), if the evidence shows that a court previously adjudged the defendant insane, the burden of proof shifts to the State, so the defendant is presumed insane and the State must disprove insanity. The State may defeat the presumption of insanity by show­ing that at the time of the charged conduct the defendant knew his conduct was illegal. The factfinder may consider the defendant’s demeanor before and after the offense including attempts to evade police.

        Under Clark v. Arizona, 548 U.S. 735, 774–776 (2006), whether a defendant is legally insane is not the same issue as whether the defendant has been diagnosed with a mental illness caus­ing psychosis.

        Under Tex. Penal Code § 9.31(a), a person is justified in using force against another when and to the degree that he reasonably believes the force is immediately necessary to protect against the other person’s use or attempted use of unlawful force. If a person is so justified, under § 9.32(a), he may use deadly force when and to the degree he reasonably believes the deadly force is immediately necessary to protect himself against the other person’s use or attempted use of unlawful deadly force. A “reasonable belief” is that which would be held by an ordinary and prudent man in the same circumstances as the actor. “Deadly force” is force intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury. The amount of force used must be in proportion to the force encountered.

        Under Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1992), and Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003), the defendant bears the burden of producing some evidence to support his self-defense claim. Once the defendant produces the evidence, the State bears the burden of persuasion to disprove the defense. This burden of persuasion does not require the State to produce evidence to disprove the defense but must only prove its case beyond a reasonable doubt.

Howard v. State, No. 01-18-00076-CR, 2018 Tex. App. LEXIS 9616 (Tex. App. Houston [1st Dist.] Nov. 27, 2018) (designated for publication) [4th Amendment rights of parolees]

        Under Crain v. State, 315 S.W.3d 43, 48 (Tex.Crim.App. 2010), Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000), and Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997), a ruling on an MTS is reviewed under a bifurcated standard of review: almost total deference to the trial court’s determination of historical facts that turn on credibility and demeanor, de novo on other application-of-law-to-fact issues, nearly total deference to application-of-law-to-fact questions (mixed questions of law and fact) if their resolution turns on an evaluation of credibility and demeanor, and de novo on mixed questions of law and fact if their resolution does not turn on an evaluation of credibility and demeanor. Under Osbourn v. State, 92 S.W.3d 531, 538 (Tex.Crim.App. 2002), and State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App. 2008), the trial court’s decision must be affirmed if it is correct on any theory of law that finds support in the record.

        Under Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App. 2000), if the trial court does not make explicit FFCL, the evidence is reviewed in a light most favorable to the trial court’s ruling and the review assumes that the trial court made implicit findings of fact supported in the record that buttress its conclusion.

        Under Carpenter v. United States, 138 S.Ct. 2206, 2213–2214 (2018), and Riley v. California, 134 S.Ct. 2473, 2482 (2014), whether a person’s Fourth Amendment rights have been compromised by a warrantless search of his possessions depends on whether: (1) the person had a subjective expectation of privacy in those possessions; and (2) that subjective expectation of privacy is one that society is prepared to recognize as reasonable under the circumstances.

        Under United States v. Knights, 534 U.S. 112 (2001) (probationers), probationers do not enjoy the “absolute liberty” to which every citizen is entitled. Courts granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens. However, a warrantless-search probation condition may diminish a probationer’s expectation of privacy in his home. A standard less than probable cause applies in the context of a warrantless search involving a probationer who is subject to a warrantless-search probation condition. The Fourth Amendment requires only reasonable suspicion that the probationer is engaged in criminal activity and reasonable suspicion existed.

        Under Samson v. California, 547 U.S. 843 (2006) (parolees), parolees have fewer expectations of privacy than probationers be­cause parole is more akin to imprisonment than probation. There is an overwhelming governmental interest in supervising parolees because they are more likely to commit future criminal offenses, have a high recidivism rate, and thus require close supervision. The Fourth Amendment does not prohibit an officer from conducting a suspicionless search of a parolee who is subject to a warrantless- and suspicionless-search parole condition (including at a halfway house).

Jacobs v. State, No. 06-16-00008-CR, 2018 Tex. App. LEXIS 9813 (Tex. App. Texarkana Nov. 30, 2018) (designated for publication) [Nonconstitutional error under Tex. Rule App. Proc. 44.2(b) and using an out-of-state conviction to enhance under Prudholm v. State, 333 S.W.3d 590 (Tex. Crim. App. 2011)]

        Under Tex. Code Crim. Proc. Art. 38.37 § 2(2)(b), evidence that the defendant committed the following offenses is admissible for any bearing it has on relevant matters, including the character of the defendant and acts performed in conformity with his character: sex-trafficking of a child, continuous sexual abuse, indecency with a child, sexual assault of a child, aggravated sexual assault of a child, online solicitation of a minor, sexual performance by a child, possession or promotion of child pornography, and an attempt or conspiracy to commit one of these offenses.

        Under Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010), admitting evidence in violation of a rule of evidence is nonconstitutional error.

        Under Tex. Rule App. Proc. 44.2(b) and Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000), nonconstitutional error is disregarded unless it affects substantial rights of the defendant, and a conviction will not be overturned for it if after examining the entire record, the reviewing court has “fair assurance that the error did not influence the jury or had but a slight effect.” Improper admission of evidence is not reversible error if other unchallenged evidence proves the same facts.

        Under Tex. Penal Code § 12.42(c)(2) and Anderson v. State, 394 S.W.3d 531, 535 (Tex. Crim. App. 2013), a person convicted of certain sexual offenses who has previously been convicted for one of the sexual offenses listed in § 12.42(c)(2)(B) or under the laws of another state containing elements that are substantially similar to the elements of an enumerated Texas offense must receive an automatic life sentence.

        Under Prudholm v. State, 333 S.W.3d 590, 594–595 (Tex. Crim. App. 2011), to determine whether an out-of-state sexual offense contains elements that are substantially similar to a listed Texas sexual offense, a court must: (1) compare the elements of the out-of-state statute and the Texas statute, which must display a “high degree of likeness” (elements do not have to be identical and need not parallel one another precisely, but and although it is not required that a person who is guilty of an out-of-state sexual offense would be guilty of a Texas sexual offense, the out-of-state offense cannot be markedly broader than or distinct from the Texas offense); and (2) the elements must be substantially similar with respect to the individual or public interests protected and the impact of the elements on the seriousness of the offenses.

Lopez v. State, No. 07-18-00084-CR to 07-18-00094-CR, 2018 Tex. App. LEXIS 9519 (Tex. App. Amarillo Nov. 20, 2018) (designated for publication) [Sexual assault of child/bigamy enhancement provision of Tex. Penal Code § 22.011(f)]

        Under Tex. Penal Code § 22.011(a)(2)(A), a person commits sexual assault of a child (F-2) if he intentionally or knowingly causes the penetration of the sexual organ of a child by any means. Under Tex. Penal Code § 22.011(f), the crime is an F-1 if the victim was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Tex. Penal Code § 25.01.

        To trigger the enhancement under Tex. Penal Code § 22.011(f), the State is required to prove facts of a sexual assault and the six bigamy prohibitions listed in Tex. Penal Code § 25.01. Merely being married to another at the time of the assault (per a marriage license) is insufficient to satisfy that burden if there is no evidence that the defendant took, attempted, or intended to take any action involving marrying or claiming to marry [the victim] or living with [the victim] under the appearance of being married.

Roman v. State, No. 01-17-00379-CR, 2018 Tex. App. LEXIS 10019 (Tex. App. Houston [1st Dist.] Dec. 6, 2018) (designated for publication) [Waiver of the right to complain of a condition of community supervision by failing to object when the condition is imposed]

        Under Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993), and Ex parte Heilman, 456 S.W.3d 159, 162 (Tex. Crim. App. 2015), the preservation requirements that apply to an alleged constitutional violation depend on the nature of the right allegedly infringed: (1) absolute, systemic requirements and prohibitions that cannot be waived; (2) rights that must be implemented by the system unless expressly waived; and (3) rights that are implemented upon request (waived if not asserted).

        Under District of Columbia v. Heller, 554 U.S. 570 (2008), the Second Amendment right to possess a firearm for self-defense is a personal right that is not unlimited. Prohibitions on the pos­ses­sion of firearms by felons and the mentally ill, laws forbidding the carrying of firearms in sensitive places, or laws imposing con­ditions and qualifications on the commercial sale of arms are constitutional.

        Under Dansby v. State, 448 S.W.3d 441, 447 (Tex. Crim. App. 2014), and Speth v. State, 6 S.W.3d 530, 534–535 (Tex. Crim. App. 1999), the placement of a defendant on community supervision occurs in the form of a contract between the trial court and a defendant. Community supervision is not a right but a contractual privilege, and conditions are terms of the contract entered into between the trial court and defendant. Conditions not objected to are affirmatively accepted by the defendant as terms of the contract. By entering into the contractual relationship without objection, a defendant affirmatively waives rights limited by the contract’s terms. In considering the plea agreement, a defendant must take or leave the conditions of supervision.