June 2017 SDR - Voice for the Defense Vol. 46, No. 5

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Tuesday, June 6th, 2017

Voice for the Defense Volume 46, No. 5 Edition

Editor: Michael Mowla

From editor Michael Mowla

1.  The online SDR, which is regularly emailed to all current TCDLA members, is summarized in a man­ner that allows readers to generally use the SDR instead of reading every opinion. It includes more than just the relevant holding(s).

2. These summaries are not a substitute for reading the whole case.

3. The summaries reflect the facts and relevant holdings of the cases. The summaries 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. Feel free to send me suggestions on how I may improve it.


Supreme Court of the United States

No significant decisions were handed down by the SCOTUS since April 15, 2017.

United States Court of Appeals for the Fifth Circuit

John Doe v. United States, No. 16-20567, 2017 U.S. App. LEXIS 6208 (5th Cir. April 11, 2017) (designated for publication)

        (1) Under 5 U.S.C. § 702 (Administrative Procedure Act), the United States may be sued when non­monetary relief is sought and the plaintiff’s claim is that an agency or an officer or employee of the agency acted or failed to act in an official capacity or under color of legal authority. The intent of the statute is to “broaden the avenues for judicial review of agency action by eliminating the defense of sovereign im­munity in cases covered by the amendment.”

        (2) When the government accuses a person of a crime without indicting him, the government fails to provide a public forum in which the person can defend himself, and subjects the government to suit under 5 U.S.C. § 702.

        (3) To survive a motion to dismiss under Fed. Rule Civil Proc. 12(b), a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. In making this determination, the court may consider the complaint, its proper attachments, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.

        (4) Under 28 U.S.C. § 2401(a), an action against the Government is barred unless the complaint is filed within six years after the right of action first accrues. A cause of action first accrues when the plaintiff can file suit and obtain relief.

        (5) A Fifth Amendment claim seeking expungement of district court records is cognizable even though prosecution of the party seeking expungement might yet occur. The statute of limitations is not deferred until the government is no longer able to indict or affirmatively states that it will not indict.

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Facts:

  • In 2015, Doe filed suit in the district court, contending under the Fifth Amendment that the Government violated his right to due process by publicly accusing him of a crime in a criminal proceeding without providing him a public forum for vindication.
  • Doe sought a declaration that the Government violated his Fifth Amendment right to due process and an order of expungement.
  • The Government moved to dismiss under Fed. Rule Civil Proc. 12(b)(1), arguing that sovereign immunity barred Doe’s suit, and the action was barred by limitations.

The suit was properly filed in the district court, and sovereign immunity does not protect the government

Doe’s suit was barred by limitations

  • Because the 2008 records that Doe seeks to expunge have been public for many years, the harm to Doe commenced in 2008, which is when the right of action first accrued.

United States v. Jones, No. 16-10463, 2017 U.S. App. LEXIS 6952 (5th Cir. April 20, 2017) (designated for publication)

        (1) Under 18 U.S.C. § 2119 (carjacking), a person commits a crime if he takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation. The carjacking statute is a valid exercise of congressional authority under the Commerce Clause because Congress could rationally believe that the activity of auto theft has a substantial effect on interstate commerce. It is not relevant that the vehicle has not left the state for years.

        (2) Under 18 U.S.C. § 924(c)(3), a “crime of violence” is a felony that: (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used during committing the offense.

        (3) The language of 18 U.S.C. § 2119 (carjacking) clearly supports carjacking being a “crime of violence” that supports a conviction under § 924(c).

State of Texas v. Kleinert, No. 15-51077, 2017 U.S. App. LEXIS 6951 (5th Cir. April 20, 2017) (designated for publication)

        (1) Under 28 U.S.C. § 1442, the federal-officer-removal statute, an officer may remove a state prosecution to federal court and obtain dismissal of the charges if the officer shows: (1) he is a federal officer or part of a federal task-force; (2) he was acting under the “color” of the federal office; and (3) a colorable federal defense.

        (2) To satisfy the “color of office test,” the defendant must show a causal connection between the charged conduct and asserted official authority. The State’s allegations do not control the causal-connection analysis. Instead, the court looks to the officer’s theory of the case to determine whether he has made an adequate threshold showing that the suit is for an act under color of office (i.e., was the federal officer acting in his official capacity or was “on a frolic of his own”).

        (3) An officer alleges a “colorable” federal defense if he plausibly alleges that he was acting as a federal officer and had a legal right to act as he did.

        (4) Merely because the task-force officer’s actions do not narrowly fit within a “Memorandum of Understanding” signed between the federal agency and officer does not mean the officer was not acting within the scope of the federal task force.

United States v. Guillen-Cruz, No. 16-40131, 2017 U.S. App. LEXIS 6161 (5th Cir. April 10, 2017) (designated for publication)

        (1) To determine whether a prior offense is a crime of violence for sentencing enhancement purposes, 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.

        (2) 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).

        (3) 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. If these documents show that the alternative mental states are means and not elements, then the statute is no divisible.

        (4) To establish plain error, an Appellant must show: (1) an error or defect that has not been intentionally relinquished or abandoned; (2) the legal error was clear or obvious, rather than subject to reasonable dispute; (3) the error affected his substantial rights (reasonable probability of a different outcome absent the error), and (4) if (1)–(3) are satisfied, the USCA5 may remedy the error “if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.”

        (5) Under U.S.S.G. § 2L1.2(b)(1)(C), a district court must increase a defendant’s offense level by 8 if the defendant has been deported after a conviction for an aggravated felony. “Aggravated felony” is defined under 8 U.S.C. § 1101(a)(43).

        (6) Under U.S.S.G. § 2L1.2(b)(1)(C), “aggravated felony” has the meaning given by 8 U.S.C. § 1101(a)(43), which defines it as “illicit trafficking in firearms or destructive devices (as defined in [18 U.S.C. § 921]) or in explosive materials (as defined in [18 U.S.C. § 841(c)]).

        (7) Under 18 U.S.C. § 921(a)(3), a “firearm” is: (A) any weapon (including a starter gun) that will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device.

        (8) Under 27 C.F.R. § 479.11, a “frame or receiver” is the part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.

        (9) Under 18 U.S.C. § 921(a)(4)(A) & (B), “destructive device” means (1) any explosive, incendiary, or poison gas bomb, grenade, mine, rocket, missile, or similar device, (2) any type of weapon that will, or which may be readily converted to expel a projectile by the action of an explosive or other propellant, and which has any barrel with a bore of more than one-half inch in diameter, or (3) any combination of parts either designed or intended for use in converting any device into any destructive device and from which a destructive device may be readily assembled.

        (10) A magazine is an element of a firearm that houses ammunition, and is plainly not a firearm, the frame or receiver of a firearm, a muffler, firearm silencer, or a destructive device under § 921(a)(4)(A).

Editor’s Note: one must question the basic knowledge of weapons and the ability to comprehend simple measurements on the part of the USPO, the prosecutors, and the district court.

  • The underlying issue is the export of magazines that hold 7.62 x 39 mm ammunition.
  • The United States Munitions List prohibits the export of any weapon (or its parts) the barrel-bore of which is greater than 0.5 inches in diameter.
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  • For instance, the AK-47 and its clones is the most common weapon that fires the 7.62 x 39 mm round.
  • The barrel-bore of a firearm is simply the inside cylinder of the firearm’s barrel—i.e., the tube through which the bullet travels.
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  • As the USCA5 observes, the barrel-bore of an AK-47 or its clones cannot be greater than 0.5 inches or 12.7 mm because otherwise the weapon could not fire 7.62 mm rounds. In fact, 7.62 millimeters = 0.3 inches.

 

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  • Perhaps the use of both millimeters and inches when describing the same object confused the prosecutors, USPO, and the district court.

United States v. McClure, No. 15-41641, 2017 U.S. App. LEXIS 7276 (5th Cir. April 25, 2017) (designated for publication)

        (1) If a defendant pleads guilty as part of a plea agreement, the Government must strictly adhere to the terms and conditions of its promises in the agreement. When a guilty plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. To assess a claim of breach, the USCA5 considers whether the government’s conduct is consistent with the defendant’s reasonable understanding of the agreement. See United States v. Valencia, 985 F.2d 758, 761 (5th Cir. 1993), and Santobello v. New York, 404 U.S. 257, 262 (1971).

        (2) The USCA5 applies general principles of contract law to interpret the terms of the plea agreement. When a plea agreement is unambiguous, the court will not look beyond the four corners of the document.

        (3) A defense counsel’s subjective belief that a defendant’s plea will preclude future prosecution related to an ongoing investigation, even if the defendant relied upon it, does not, without more, immunize him from prosecution.

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United States v. Nguyen, 16-10186, 2017 U.S. App. LEXIS 6390 (5th Cir. April 13, 2017) (designated for publication)

        (1) When reviewing sentencing decisions for reasonableness under Gall v. United States, 552 U.S. 38, 46 (2007), the USCA5 uses a bifurcated review process and considers: (1) whether the district court committed any significant procedural error, and if the district court’s decision is procedurally sound, (2) the substantive reasonableness of the sentence.

        (2) When considering the procedural unreasonableness of a sentence, the USCA5 reviews the district court’s interpretation and application of the U.S.S.G. de novo and its findings of fact for clear error. If the district court committed a significant procedural error, the USCA5 remands unless the error was harmless.

        (3) Significant procedural errors include failing to calculate (or improperly calculating) the U.S.S.G. range, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sen­tence, including an explanation for any deviation from the U.S.S.G. range. Great deference is given to a sentence if the judge “carefully articulates the fact-specific reasons he concludes that a non-Guidelines sentence is appropriate, commits no legal error in the procedure followed in arriving at the sentence, and gives appropriate reasons for the sentence.

        (4) A non-Guidelines sentence unreasonably fails to reflect the statutory sentencing factors set forth in 18 U.S.C. § 3553(a) where it: (1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing the sentencing factors.

        (5) Structuring requires proof of three elements: (1) the defendant knew of the financial institution’s legal obligation to report transactions greater than $10,000; (2) the defendant knowingly structured (or attempted to structure, or assisted in structuring) a currency transaction; and (3) the purpose of the structured transaction was to evade that reporting obligation. Although the Government must prove each of these elements beyond a reasonable doubt to establish the defendant’s guilt at trial, for sentencing purposes, the district court needed only to find that the elements were satisfied by a preponderance of the evidence.

Editor’s Note: this case is an example of why some opine that the federal criminal justice system needs a major “reboot” from top to bottom. In the district court proceedings, under Cause No. 4-15-CR-00185-A (N.D. Tex.), ECF 1 reflects that under 26 U.S.C. § 7206(2), appellant was charged under a one-count information of Aiding and Assisting in the Preparation and Presentation of a False and Fraudulent Return. The information alleged that “on or about the September 7, 2012, in the Fort Worth Division of the Northern District of Texas, defendant did willfully aid and assist in, and procure, counsel, and advise the preparation and presentation to the IRS a 2011 Form 1120 that was false and fraudulent as to a material matter (because it) omitted approximately $4,910,697 in income.” Nguyen pleads guilty, then is denied a reduction for acceptance of responsibility, making the U.S.S.G. range of 21–27 months, and ultimately is sentenced to 36 months in an upward-departure for relevant conduct that even the government stipulated there was insufficient evidence to support. This district court went out of its way to make sure it thoroughly punished Nguyen for perceived transgressions even though Nguyen accepted responsibility for his misfeasance and paid his fines and restitution in full.

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United States v. Ortega, No. 16-50301, 2017 U.S. App. LEXIS 7275 (5th Cir. April 25, 2017) (designated for publication)

        (1) The Government has an “informer’s privilege” to withhold from disclosure the identity of a CI. This privilege is not absolute and there is “no fixed rule” for when a CI’s identity should be disclosed. A court must balance the public interest in protecting the flow of information against the individual’s right to prepare his defense.

        (2) The USCA5 applies a three-factor test to determine whether the identity of a CI should be disclosed: (1) the level of the CI’s activity; (2) the helpfulness of the disclosure to the asserted defense; and (3) the Government’s interest in nondisclosure.

        (3) Under Franks v. Delaware, 438 U.S. 154 (1978), a search warrant must be voided if the defendant shows by a preponderance of the evidence that: (1) the affidavit contains a false statement; (2) the false statement was made intentionally or with reckless disregard for the truth; and (3) if the false statement is excised, the remaining content in the affidavit fails to establish probable cause.

        (4) If the USCA5 finds that a statement in a search-warrant affidavit is false but the district court does not make a finding regarding the intent of the affiant, the case must be remanded to the district court for further findings of fact.

Prystash v. Davis, No. 16-70014, 2017 U.S. App. LEXIS 7365 (5th Cir. April 26, 2017) (designated for publication)

        (1) Under 28 U.S.C. § 2253(c)(1)(A), a COA must issue before a habeas petitioner can appeal the district court’s refusal to grant a writ of habeas corpus.

        (2) The USCA5 will issue a COA upon a “substantial showing of the denial of a constitutional right.” This standard is met if the petitioner shows that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003), and Buck v. Davis, 137 S.Ct. 759, 773 (2017).

        (3) If the district court found that there was a procedural obstacle to habeas relief, the USCA5 will grant a COA if “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Gonzalez v. Thaler, 565 U.S. 134, 140–141 (2012).

        (4) If a petitioner faces the death penalty, any doubts as to whether a COA should issue must be resolved in the petitioner’s favor. Allen v. Stephens, 805 F.3d 617, 625 (5th Cir. 2015).

        (5) Under Batson v. Kentucky, 476 U.S. 79 (1986), and Powers v. Ohio, 499 U.S. 400, 406–411 (1991), although a defendant is not black, he may challenge the exclusion of black jurors.

        (6) Under Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 133 S.Ct. 1911 (2013), a claim of IATC that was procedurally barred could be excused this default by showing that the initial state habeas counsel had been ineffective.

        (7) To succeed on a Brady claim, one must show that the prosecution suppressed evidence that was favorable to the defense, material to either guilt or punishment, and was not discoverable using due diligence.

Rockwell v. Davis, No. 16-70022, 2017 U.S. App. LEXIS 6142 (5th Cir. April 10, 2017) (designated for publication)

        (1) Under 28 U.S.C. § 2254(d), federal courts cannot grant habeas relief if a claim was adjudicated on the merits in state court unless the state-court decision was contrary to or involved an unreasonable application of clearly established Federal law as determined by the SCOTUS or was based on an unreasonable determination of the facts considering the evidence presented in the State court proceeding.

Texas Court of Criminal Appeals

Ex parte Brossard, No. WR-83,014-01, 2017 Tex. Crim. App. LEXIS 377 (Tex. Crim. App. April 12, 2017) (designated for publication)

        (1) A guilty plea must be entered knowingly and voluntarily: (1) the defendant must understand the law in relation to the facts surrounding his plea; and (2) the defendant must have sufficient awareness of the relevant circumstances surrounding the plea. A guilty plea is valid only if it is “a voluntary and intelligent choice among the alternative courses of action open to the defendant.”

        (2) Sufficient awareness of the factual circumstances surrounding a plea, as opposed to complete knowledge, is required when a plea is entered. A court is permitted to accept a plea where a defendant does not have complete knowledge of the State’s case, so long as he has a sufficient factual awareness.

        (3) Under Brady v. United States, 397 U.S. 742 (1970), a defendant may have a sufficient factual awareness despite laboring under misapprehensions. A defendant’s plea is not rendered involuntary because it was induced by his attorney’s miscalculation of the penalties available if he pleaded guilty or went to trial. A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State’s case or the likely penalties attached to alternative courses of action.” However, a guilty plea induced by the State’s misrepresentation or improper promises by the State is involuntary and may be withdrawn.

Editor’s Note: Yet another guilty-plea case.

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Hankston v. State, No. PD-0887-15, 2017 Tex. Crim. App. LEXIS 379 (Tex. Crim. App. April 12, 2017) (designated for publication)

        (1) Cell tower and cellphone company records are business records memorializing a person’s voluntary subscriber transaction for the service from the cellphone provider. A person neither owns nor possesses these records, so a person has no reasonable expectation of privacy in these records since the records constitute information voluntarily conveyed to a third party.

        (2) There is no substantive difference between the Fourth Amendment and Tex. Const. Art. I, § 9.

Miller v. State, PD-0891-15, 2017 Tex. Crim. App. LEXIS 429 (Tex. Crim. App. April 26, 2017) (designated for publication)

        (1) The ordinary Strickland standard applies to a claim of ineffective assistance of counsel that is based on trial counsel’s erroneous advice regarding a defendant’s eligibility to receive probation from a sentencer, so the proper prejudice standard is whether appellant has demonstrated a reasonable probability that the results of the proceeding would have been different had trial counsel correctly informed him of the law.

Ex parte Pete, Nos. PD-0771-16, PD-0772-16, & PD-0773-16, 2017 Tex. Crim. App. LEXIS 432 (Tex. Crim. App. April 26, 2017) (designated for publication)

        (1) If a trial court grants a mistrial during the punishment hearing and the defendant requests a new trial only for punishment, the defendant will receive a new trial only for punishment and not the entire trial

Reed v. State, No. AP-77,054, 2017 Tex. Crim. App. LEXIS 376 (Tex. Crim. App. April 12, 2017) (designated for publication)

        (1) To obtain DNA testing under Chapter 64, (1) under Tex. Code Crim. Proc. Art. 64.01(a-1), a convicted person may seek forensic DNA testing of evidence that has a reasonable likelihood of containing biological material; and (2) under Tex. Code Crim. Proc. Art. 64.03, the judge must find that there is a reasonable likelihood that the evidence contains biological material suitable for DNA testing; and (3) the convicted person must show by a preponderance of the evidence that he would not have been convicted if the proposed testing’s exculpatory results were available at the time of his trial.

Texas Courts of Appeals

Ex parte Arango, Nos. 01-16-00607-CR & 01-16-00630-CR, 2017 Tex. App. LEXIS 3372 (Tex. App. Houston [1st Dist.] April 18, 2017) (designated for publication)

        (1) Under Tex. Fam. Code § 54.02(a), a juvenile court may waive its exclusive original jurisdiction and transfer the child to a district court for criminal proceedings if it finds: (1) the child was 14 years old or older at the time of the alleged offense; (2) there is probable cause to believe the child committed the offense; and (3) because of the seriousness of the alleged offense or the background of the child (or both), the welfare of the community requires criminal proceedings.

        (2) In deciding whether the welfare of the community requires criminal proceedings, the juvenile court must consider four nonexclusive factors: (1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against people; (2) the sophistication and maturity of the child; (3) the record and previous history of the child; and (4) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court. FFCL on these four factors are not required, but the order should expressly recite that the juvenile court took the factors into account in making this waiver determination.

        (3) FFCL supporting the juvenile court’s ultimate reasons for waiving its jurisdiction and ordering a transfer to district court are required and must be set forth in the transfer order: Under Tex. Fam. Code § 54.02(h), if the juvenile court waives jurisdiction, it shall state specifically in the order its reasons for waiver and certify its action, including the written order and findings of the court.

        (4) A waiver of juvenile jurisdiction based solely on the seriousness of the offense and not the background of the child, and supported only by a finding that the offense was against a person, is invalid and an abuse of discretion.

        (5) A claim that a juvenile transfer order is invalid is cognizable on pretrial habeas because the TCCA has recognized that one of the proper uses of pretrial habeas relief is where the conservation of judicial resources would be better served by interlocutory review.

Ex parte Madison, No. 10-16-00081-CR, 2017 Tex. App. LEXIS 3708 (Tex. App. Waco April 26, 2017)

        (1) A court may declare only that part of a statute unconstitutional under which a defendant is charged

        (2) The First Amendment limits the government’s power to regulate speech based on its substantive content. Content-based regulations distinguish favored from disfavored speech based on the idea or message expressed and operate to restrict viewpoints or public discussion of an entire topic or subject matter. The usual presumption of constitutionality is reversed, the content-based statute is presumed invalid, and the State bears the burden to rebut this presumption.

        (3) A statute that suppresses, disadvantages, or imposes differential burdens upon speech because of its content is subject to strict scrutiny. It may be upheld only if it is necessary to serve a compelling state interest and employs the least speech-restrictive means to achieve its goal.

        (4) Content-neutral regulation of the time, place, and manner of speech, as well as regulation of speech that can be justified without reference to its content, receives intermediate scrutiny, and is permissible if it promotes a significant governmental in­terest and does not burden substantially more speech than necessary to further that interest.

        (5) To be unconstitutionally overbroad, the statute must pro­hibit a substantial amount of protected expression, and the danger that the statute will be unconstitutionally applied must be realistic and not based on “fanciful hypotheticals.” Laws that inhibit the exercise of First Amendment rights will be held facially overbroad only if the impermissible applications of the law are real and substantial when judged in relation to the statute’s plainly legitimate sweep. A statute must be upheld if the court determines a reasonable construction rendering it constitutional.

        (6) Impersonation is a nature-of-conduct offense, and a statute implicates the First Amendment only if it qualifies as “expressive conduct” akin to speech. Tex. Penal Code § 33.07(a)(1) regulates only the conduct of assuming another’s person’s identity, without that person’s consent, with the intent to harm, defraud, intimidate, or threaten any person by creating a web page. Otherwise proscribable conduct does not become protected by the First Amendment simply because the conduct hap­pens to involve the written or spoken word.

        (7) Almost all conceivable applications of Tex. Penal Code § 33.07(a) to speech associated with the proscribed conduct fall within the categories of criminal, fraudulent, and tortious activity that are unprotected by the First Amendment.

        (8) Because Tex. Penal Code § 33.07(a)(1) promotes a substantial governmental interest, the State’s interest would be achieved less effectively without the law, and the means chosen are not substantially broader than necessary to satisfy the State’s interest, Tex. Penal Code § 33.07(a)(1) survives intermediate scrutiny. Thus, Tex. Penal Code § 33.07(a)(1) is facially constitutional under the First Amendment.

Ex parte Perez, No. 14-16-00332-CR, 2017 Tex. App. LEXIS 3246 (Tex. App. Houston [14th Dist.] April 13, 2017) (designated for publication)

        (1) A defendant is placed in jeopardy when the jury is empaneled and sworn. Because jeopardy attaches at this point, the Constitution confers upon a criminal defendant a “valued right” to have his trial completed by a particular tribunal. Thus, when a trial court declares a mistrial against the defendant’s wishes, usually further prosecution for the same offense is barred.

        (2) The exception to further prosecution after a mistrial is if there was a “manifest necessity” to grant the mistrial, which means a “high degree” of necessity. A trial court’s discretion to declare a mistrial based on manifest necessity is limited to, and must be justified by, extraordinary circumstances. Manifest necessity exists for declaring a mistrial when it is simply impossible to continue with trial.

        (3) Once the defendant shows he is being tried for the same offense after declaration of a mistrial to which he objected, a heavy burden shifts to the State to justify the trial court’s declaration of a mistrial. It is the State’s burden to demonstrate the manifest necessity for a mistrial.

        (4) A trial court abuses its discretion whenever the trial court declares a mistrial without first considering the availability of less drastic alternatives and reasonably ruling them out. The trial court must entertain “every reasonable alternative” to a mistrial.

        (5) When the trial court discovers a juror has moved outside the county, there are at least three options: (1) grant a mistrial if the defendant consents, (2) continue with 11 jurors if the defendant consents, or (3) continue the trial with all 12 jurors, including the unqualified one. Because proceeding to verdict with the out-of-county juror was a less dras­tic alternative to a mistrial, double jeopardy barred the de­fen­dant’s retrial.

        (6) When the court is faced with absent jurors, a trial court must entertain every reasonable alternative to a mistrial, including waiting and proceeding with 11 or 5 jurors provided the defendant is willing to do so.

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Vanhalst v. State, No. 06-16-00080-CR, 2017 Tex. App. LEXIS 3181 (Tex. App. Texarkana April 12, 2017) (designated for publication)

        (1) Under Tex. Code Crim. Proc. Art. 38.14, a defendant may not be convicted solely upon the testimony of an accomplice witness; instead, the accomplice’s testimony must be corroborated by other evidence tending to connect the de­fendant with the offense committed. An accomplice is one who participates with a defendant before, during, or after the commission of a crime and acts with the required culpable mental state. The participation must involve an affirmative act that promoted the commission of the offense with which the accused is charged.

        (2) An accomplice as a matter of law or fact is one who is susceptible to prosecution for the offense with which the accused is charged or a lesser included offense.

        (3) One is not an accomplice simply because he knew of the crime but failed to disclose it or even concealed the crime (such a person cannot be a co-conspirator).

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